Exonerated man shouldn’t have to prove innocence

— March 11, 2014

Kerry Drake

What the criminal justice system did to Andrew Johnson – lock him up in prison for nearly 24 years for a crime DNA evidence shows he didn’t commit – was an unquestionable miscarriage of justice.

But last Thursday, the Legislature played another cruel joke on the exonerated Cheyenne man, just when it seemed he might be compensated for all the years of his life that the state of Wyoming took away.

No amount of money could make up for being branded a dangerous felon or give Johnson back the time he lost with his loved ones, but it could at least have helped give him a fresh start. Instead, a legislator was irrationally hell-bent on punishing Johnson some more.

It didn’t even seem to matter he was publicly called out for his stupidity and callousness by his colleagues. Whatever sparked his mysterious agenda, he succeeded in keeping Johnson’s misery and poverty intact.

There are not many jobs available in Wyoming for 63-year-old black men with no current skills who haven’t worked in an occupation for more than two decades. What little help he has received has come from family members who don’t have much themselves.

Senate File 30, sponsored by the Joint Judiciary Interim Committee, could have greatly improved Johnson’s quality of life if the bill hadn’t been changed at the last minute by Rep. Bob Nicholas (R-Cheyenne).

Rep. Bob Nicholas (R-Cheyenne)

Nicholas ignored the DNA evidence that cleared Johnson and still treated him as guilty, and the legislator was determined that he not be awarded a dime from the state.

How did he reach this conclusion? By having a clearly unethical conversation with Laramie County District Attorney Scott Homar about Johnson’s alleged guilt.

Johnson was convicted of raping a woman in Cheyenne in 1989, before DNA testing of evidence was available. The victim had testified that she hadn’t had sex with anyone for two weeks prior to the sexual assault.

In February 2013, Johnson became the first beneficiary of a 2008 Wyoming law that guarantees post-conviction DNA testing for qualified inmates. The test revealed that the sperm found in the victim’s rape kit belonged to her fiancee, and not Johnson. The inmate was released on bond in April, and awaited a new trial.

But Homar, who refused to admit Johnson had been exonerated even though DNA testing cleared him, nevertheless decided to not try him again. The prosecutor noted physical evidence from the first trial had been destroyed, and the lead investigator in the case had died in 2007.

Still, even though he dropped all charges against Johnson, Homar maintained at the time that “there is certainly evidence that weighs against Mr. Johnson in this matter ….evidence that was used to convict him at trial in 1989.”

SF 30, which provided up to $500,000 to anyone convicted of a crime who was later exonerated due to new DNA testing that proved his innocence, passed the Senate. The released prisoner would qualify for up to $100 for every day he spent in prison, and would have been paid in yearly installments of $50,000.

Nicholas successfully amended it during third reading in the House to require a convicted person to prove his innocence at a new court hearing, even if all charges against him had been dropped. Because the bills now differed, a conference committee was appointed to reach an agreement.

According to Wyoming Tribune-Eagle reporter James Chilton, who covered the panel’s meeting on the Legislature’s final day, Nicholas repeatedly said that the DNA tests did not prove Johnson’s innocence. Amazingly, the legislator – who is an attorney – also said he believed even if the testing had been done at the first trial, the jury would have still convicted Johnson of sexual assault.

How did Nicholas reach this conclusion? He explained, “I sat down with Homar, and he went through all the evidence he had. … There wasn’t any doubt, not even a doubt that he didn’t do it.”

So while Homar wouldn’t retry Johnson, he was able to convince Nicholas of his guilt, and Nicholas rewrote the bill to make sure Johnson would have to prove his evidence at a new court hearing in order to apply for compensation. But if other key evidence had been destroyed, as Homar claimed, how would the defendant be able to do that beyond a reasonable doubt?

Nicholas, after all, maintained that DNA evidence alone wasn’t enough. “You can’t give someone $500,000 just because the DNA is wrong,” he said. “This is [like] the O.J. Simpson case; the idea that he didn’t commit it is ridiculous. If the DNA is bad, you still have to have a determination of whether or not the guy did it or not.”

In drawing that analogy, Nicholas seems to have forgotten that Simpson’s DNA actually showed he was at the murder scene; the only reason it was later discounted is because his defense raised the possibility that the evidence had been tainted and the DNA tests were unreliable. In Johnson’s case, it was the absence of his DNA that proved his innocence. The two cases are totally different.

Sen. John Schiffer (R-Kaycee) blasted Nicholas for his shoddy work writing the amendment at the very end of a year-long process. “The fact that you’re writing legislation for one case, that’s wrong,” Schiffer admonished him. “We’re not allowed to write those kind of bills.”

Sen. Bruce Burns (R-Sheridan) told Nicholas he was stunned at his position there’s no doubt Johnson would have been convicted, even with DNA evidence that should have cleared him. Burns stressed Nicholas had heard only the prosecution’s side of the case, and nothing about what Johnson’s lawyers had to say in his defense.

But Nicholas and Rep. Tim Stubson (R-Casper) stuck to their guns and refused to give up the House amendments to SF 30 and another measure, SF 28, which provided a new trial for inmates cleared by newly discovered non-DNA evidence. Schiffer and the Senate had no choice but to let two bills die that were needed but had been butchered.

It was the right decision, but obviously one that has a tremendous negative impact to Johnson. His only recourse now is to sue the state for compensation. I hope he does, and I hope he takes it to the cleaners. I just wish Nicholas could be the one stuck with the bill instead of the state.

Prosecutors obviously don’t want to admit mistakes their offices have made, even if they occurred long before they came to power. Homar’s initial insistence that the DNA testing didn’t make Johnson innocent shows his inability to give the wrongfully convicted man a break, but fortunately it wasn’t up to the D.A.: the judge signed his order of exoneration on Aug. 15, 2013. After that document was signed, there should be no reason for Johnson to ever have to prove his innocence, because the state recognizes it.

In the latest tragedy in Andrew Johnson’s case, a conversation between Homar and Nicholas effectively took Johnson’s exoneration away, requiring him to prove his innocence at a new court hearing even though the state did not preserve the evidence from his original trial so it could be reviewed. The state has acted shamefully in the first two acts of its consideration of Johnson’s innocence or guilt; the state owes him a third act in which justice finally prevails.

— Veteran Wyoming journalist Kerry Drake is editor-in-chief of the nonprofit, online community newspaper, The Casper Citizen. He also moderates the WyPols blog.

— Columns are the signed perspective of the author, and do not necessarily reflect the views of WyoFile’s staff, board of directors or its supporters. WyoFile welcomes guest columns and op-ed pieces from all points of view. If you’d like to write a guest column for WyoFile, please contact WyoFile editor-in-chief Dustin Bleizeffer at dustin@wyofile.com.

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Kerry Drake

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Cheyenne and...

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  1. Kerry, this is an exquisite understanding of the highest principles of American justice that Mr. Nicholas, a supposed lawyer, apparently cannot grasp. And shame on the prosecutor for pursuing his tainted case outside the rules of law. A disgraceful chapter in Wyoming history for which we should all be ashamed.

  2. Remember this, I bet Nicholas does, since he likely peddled a bit of influence on this as well. I guess when the “facts” go Mr. Nicholas’ way, he has no complaints:

    CHEYENNE — State Rep. Bob Nicholas, R-Cheyenne, no longer faces a felony charge of abusing a disabled adult.

    The Florida State Attorney’s Office decided late last week not to file formal charges against Nicholas due to insufficient evidence, said Samantha Syoen, communication director for the state attorney’s office.

    Nicholas, 54, was arrested Nov. 23 while vacationing in Boca Grande, Fla.

    Witnesses claimed they saw Nicholas punch and kick his 19-year-old disabled son, according to a Lee County Sheriff’s Office arrest report.

    The document states that multiple witnesses outside of a restaurant saw Nicholas hit his son repeatedly with a closed fist, push him onto the sidewalk and then kick him more than five times.

    Nicholas was placed under arrest later that day and was transported to the Lee County jail without incident. He was released Nov. 24 on a $20,000 bond.

    However, Nicholas said the charges were an overreaction and that he was only trying to get control over his son.

    Nicholas’ son suffers from seizures and has a mental condition similar to autism.

    Nicholas said his son became disruptive and combative during their lunch. He said he was attempting to physically remove his son from the restaurant when the incident occurred.

    The sheriff’s office report stated Nicholas’ son had redness and a “welt-like surface injury” on his neck. In addition, the report noted that a sergeant observed a foot-sized skin abrasion to the son’s left ribcage that appeared to have a shoelace pattern to it.

    But Nicholas said his son was not injured, and he did not abuse him.

    He said his son was playing basketball with his cousins shortly after the incident occurred.

    Court records show that a plea of not guilty was filed on Dec. 7. Syoen said assistant state attorney Kelly Worcester, who heads the department’s felony division, reviewed the case and decided not to bring formal charges against Nicholas on Dec. 8.

    “I’m just glad it’s over,” Nicholas said Wednesday of the charges he could have faced. “They looked at the facts and dismissed it.”

    Nicholas lives in Cheyenne with his son. He is an attorney and was elected to represent House District 8 in 2010.

    1. Hi GW, I’m moderating comments for WyoFile. Your point in reprinting this article in the comments is well-taken. However, I’d prefer if you summarized it in your own words or just included a link, rather than reprinting the whole article from another news source. Can you reformat and resubmit, please?
      Thanks, Greg@wyofile.com

  3. I hope he is awarded in a civil suit a much larger sum than the $500,000. Rep. Nicholas cost the tax payers much more than to top amount of the bill. I sure hope his constituents have taken notice. Sad day for our legislatures to be running their own personal agendas.

  4. The Burden of proof is on the State. Innocent till proven guilty,.

    The Burden of Exoneration? All on the victim. Still guilty till proven innocent, by defendant/victim. But that is s-o-o-o-o Napoleanic.

    The Rectification Of Innocence, if found ? — still looking.

    Nicholas in his zeal to defend the power structure has committed no civil or criminal crime here. But he sure has a lot to answer for in the court of Morality & Sin, if you allow as much. I’m with Napolean here…guilty as charged . The only way Nicholas can exonerate himself is take it all back , apologize, and do his best to get Johnson some compensation for the travesty.

  5. Agreed. Government run amok. DA Homar rarely takes a case to court or sends a criminal to jail in Laramie County – most often a slap on the wrist and probation. Yet he conspires to keep Mr. Johnson from receiving compensation for being wrongly convicted? Give Mr. Johnson his due and send Mr. Homar back to private practice – Nicholas as well.