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A life (without parole) story: Part 2

This story is the second in a three-part series published by The Crime Report and Alternet. Part one was posted on Monday and part three will be posted Wednesday.

BESSEMER, Ala. -- Dinah Robinson moved to Houston from Alabama in 1982, when her son, Aaron Johnson, was 7. She spent about five years there, working as a health care aide and office assistant. When crack emerged in Houston, she sent Aaron back to Birmingham.

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Dinah Robinson at her home in north Birmingham. David J. Krajicek

"I would see these young men standing on the corner, saying, 'This is my corner. You can't pass by,'" she said. "I just did not want Aaron caught up in something like that. I thought he would be safer in Birmingham."

She rejoined her son in Alabama in 1987 and discovered that crack was there, too.

"I was worried about him," she said. "You just never knew what would happen from one day to the next...You might die any day. A robber might shoot you. A drug dealer. The police. Your neighbor. Everybody has a gun. So you feel like you have to get a gun.

"I know that won't make sense if you don't live here. But that was the reality of being a young black man coming up."

"You had to be ready to fight," Aaron Johnson added. "When I was going to school the neighborhood started having turf wars. Gangs came in selling crack, and they carved up the neighborhoods into a bunch of divisions. You had to cross from one into the next just going to school. And if you're not from that neighborhood, there'd be fights, shootings...So you had to be ready for that any day."

On Jan. 12, 1992, Johnson was celebrating his 17th birthday with friends in a motel room. The party broke up acrimoniously at about midnight when a teenage girl accused another of flirting with her boyfriend.

Leaving the party, Johnson drove along the six-lane Red Mountain Expressway toward north Birmingham. In his car were two other teens, Demetrius Preyer, 15, and Kecia Collins, 17, a female who had been involved in the motel argument.

Johnson and another car carrying three girls from the party raced along, attracting a Birmingham detective, David Robinson. As he got close, the officer saw muzzle flashes from inside Johnson's car. Robinson stopped both cars and learned that Collins had fired the shots, apparently while sitting on Preyer's lap.

"We were driving and a girl rides up on the side of us driving kind of funny, and we all were laughing and stuff," Preyer said in a hand-written court document. "I drop my head. I got back up and she (Kecia Collins) picks up a gun and points at the window and before I could make a motion shots were fired and a police was riding up on the side of us."

At least two bullets struck the other car. Miraculously, no one was hurt.

Detective Robinson found not one but three guns in Johnson's car--a .32-caliber pistol, a .38 revolver, and a sawed-off shotgun. Johnson was adamant that the guns were not his. Court documents do not make their ownership clear.

The incident rated a four-sentence brief in the Birmingham News--three unnamed juveniles charged with attempted murder "stemming from a car chase."

Birmingham had a record 148 murders in 1992, three a week, so a non-injury gun assault would not have attracted much news attention. But the expressway shooting can be seen as a template example of the casual violence that plagues black communities.

Collins, Johnson and Preyer were charged with three counts each of attempted murder, one for each of the teens in the second car. Preyer was granted youthful offender status. Johnson was offered a sentence of a year at Alabama's Mount Meigs juvenile detention facility. But he insisted he had broken no laws and refused the deal, so his case was transferred to adult court by a juvenile judge who was miffed at him.

Ultimately, prosecutors and defense attorneys worked out a deal: Johnson and Kecia Collins pleaded guilty to three counts of attempted assault, and their sentences of 10 years in prison were suspended as long as they avoided arrest for three years.

Johnson Becomes a Father

For two years, Johnson stayed out of trouble and worked toward a high school diploma. His girlfriend, Terina Cook, gave birth to their son, Demaraaron Johnson, on Sept. 11, 1993. Johnson and Cook were married four months later.

During an interview at Alabama's Donaldson prison, he told me he drank alcohol and smoked marijuana but had resolved to avoid hard drugs after observing its effect on his father's family.

"...I was trying to understand why they were doing themselves like that," he said. "You know, all the money's spent, there's no food, no transportation, nobody goes to school or anything of that nature.

"My little cousins was the people that was suffering the most...You walk in the house, ain't no lights on, ain't no furniture in the house. You've got children that are 8, 7, maybe the oldest was about 12, and they don't have nothin'--no clothes because their parents and grandparents, aunties and uncles, done sold everything for crack. So it was pretty bad."

He said crack's destruction was as sudden as it was complete.

"It's like one day you wake up and see a person, they're healthy and strong, seem like they have plenty of life," he said. "Then you wake up the next morning and it's a totally different person. They're all beat down and they don't have anything, and you wonder what happened to everything. It's like a 360 overnight."

Johnson said he enrolled at Jefferson State Community College for the fall of 1994, planning to study business management.

But his life did its own about-face when Timothy Chester's Chevy rolled up on that September evening, four days after he had celebrated his baby's first birthday. Johnson admitted he was incensed that Chester had intruded on his family's domain.

He said, "I walked over to him and I'm asking him, why you comin' up here botherin' me? You think I'm something to play with?"

He said Chester replied, "If you've got a problem with me, maybe I ought to kill your ass."

Johnson said he feared that Chester and a front-seat passenger, later identified as Cedric Johnson (no relation), were armed.

"We were screaming at each. And then I did something stupid," Johnson said. "I told somebody--my wife, one of her sisters, I don't know who--to give me my gun."

A sister-in-law fetched his .40-caliber Glock from inside the house. Here is his account:

I was watching the car, so I held my hand behind me and she put the gun in my palm, like a baton in a race. I walked over to the car, maybe 15 feet away. I had the gun pointed down, and as I got close and took one more step, Chester [still seated in the car] swings the door open at me.

He maybe was thinkin' I was going to shoot him before he gets a chance to shoot me. So when he swung the door, I jumped out of the way. He basically got out of the car and tried to grab at the gun. We tussled. I had the gun in my left hand--I'm left-handed--and I swung it at him and hit him on the head. I hit him pretty good, and he fell back into the car, like he was half in and half out. The gun flew out of my hand when I hit him, and I turned to find it.

At that same moment I saw the car light up. Somebody fired a shot. I know it ain't my gun 'cause it's lyin' 10 feet away. I didn't know whether it was Chester shooting. But my mind is telling me that maybe I done got shot. But I'm OK, and all I can think is to get away. So I find my gun, I get my wife, we get in my car, and we leave.

Chester had been shot in the left temple. He was taken to Birmingham's Carraway Methodist Medical Center, where he died five hours after the shooting. The county medical examiner said Chester had seven ounces of crack cocaine concealed in his mouth when he was shot.

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Birmingham News, Sept. 15, 1994

Johnson surrendered to police later that day. He said he tossed the Glock out of his car window, and it was never found. He told police then, and continues to insist today, that the fatal shot was fired by Cedric Johnson, the passenger. A second shot shattered the rear window of Chester's car. Cedric Johnson ran from the scene and returned later, after police had arrived.

His gun, if he had one, was never found, either.

As we sat across a table from one another in prison, I asked Johnson why he had the gun if he wasn't involved in drugs and crime, as he claimed.

"Really, just protection," he said. "Everybody had a gun in those days in those neighborhoods. I had to protect my wife and kid...I regret it every day. I wish I never had the gun, period. That was the worst decision of my life."

On Trial for Murder

Johnson stood trial for murder in November 1996 in Jefferson County Circuit Court before Judge Mike McCormick. The stakes could not have been higher as a result of a muddling change in Alabama law.

In 1992, the legislature joined a number of states in adding sentencing enhancements for drive-by shootings, which were perceived as epidemic. The new Alabama law, Act 92-601, made it a capital offense--punishable by death or life without parole--to commit murder "while the victim is in a vehicle" or to fire a deadly shot "within or from a vehicle."

The legislative target was car-to-car and car-to-street violence. Johnson was in his yard, and Chester drove up. Yet under a liberal application of the law's sloppy language, Johnson was charged with capital murder.

His mother and father paid $18,500 to hire James McInturff and Walker Norris, reputable Birmingham criminal defense attorneys. During a weeklong trial, they built a case around Johnson's assertion that Cedric Johnson had fired the fatal shot. Aaron's relatives, including his wife, testified as eyewitnesses that the fatal shot came from inside the car. The defense suggested that Cedric Johnson was a police informant who was being protected by law enforcement.

The young prosecutors were Mike Anderton and Laura Poston; two decades later, both still work in the same district attorney's office. They asserted that the gunshot that struck Chester's left temple could not have been fired by Cedric Johnson, who was seated on the victim's right side. Cedric Johnson testified that he did not have a gun that night, even though Aaron Johnson's witnesses said he pinged shots back toward the house as he ran away.

The jury, six African-Americans and six whites, deliberated for two days and then announced a deadlock. Judge McCormick declared a mistrial. Johnson said he was told that the jury was split on racial lines--six whites for conviction, six blacks for acquittal.

Attorney McInturff told the Birmingham News' Vickii Howell, "He should have been found not guilty."

Two days after the trial ended, Johnson was surprised by a development in his expressway shooting case from 1992: Judge McCormick revoked Johnson's probation and ordered him to serve the suspended 10-year sentence for assault. He had been barred from possessing firearms as a condition of his three-year probation. Trial testimony had shown that he had a gun in September 1994, so he was declared a probation violator.

Three Do-Over Trials

The district attorney mounted a second capital murder trial in August 1997. Again, Johnson's parents paid $18,500 to McInturff and Norris. Testimony and the framing of events by both sides were similar to the first trial. One important new narrative detail was reported by Jim Day in the Birmingham Post-Herald:

"In the prosecution's version of events, Deputy District Attorneys Mike Anderton and Laura Poston described how Johnson, 21, searched for Chester throughout the day, carrying a gun to settle a dispute between them."

This added a predatory overlay to the events, even though it was Chester who drove up on Johnson.

Birmingham police Detective Jimmy Warren, accused by the defense of protecting his informant Cedric Johnson, denied that in second-trial testimony. Phyllis Rollan of the Alabama Department of Forensic Science testified that blood-spatter evidence was consistent with the prosecution's narrative.

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Aaron Johnson in a recent prison mugshot. William E. Donaldson Correctional Facility

The trial result was a second hung jury. Johnson was told that jurors again voted along racial lines--blacks for acquittal, whites for conviction. Anderton immediately announced plans for a third trial.

"It's our contention that they are wasting the state's money," McInturff told reporters. "If it were any case other than capital murder, it would be too many (trials)."

Legal complications and financial considerations forced Johnson's family to abandon McInturff and Norris after the second trial. They hired Cynthia Umstead, a young attorney who followed McInturff's game plan. The third trial, in June 1998, concluded with yet another hung jury (9-3 for acquittal, according to Johnson).

Prosecutor Anderton pressed on toward a fourth.

Howell, who covered courts for the Birmingham News for 11 years, told me she did not remember Aaron Johnson's case, even though she wrote a number of bylined stories about it.

"Unfortunately, there were a lot of murders going on back then, so sometimes I'd have to run between trials," said Howell, an African-American who grew up in Mobile, Ala.

She said it was exceedingly rare for a criminal case to go to four trials. The only one that came close, she said, was a series of prosecutions in the headline-making 1995 slaying of William Hardy, a deputy sheriff moonlighting as a motel security guard.

In that similarly knotty Jefferson County prosecution from the same era, four men were charged with capital murder: Toforest Johnson, Ardragus Ford, Quintez Wilson and Omar Berry. Berry and Wilson were held on murder charges for 15 months then set free when the chief prosecution witness repudiated the story that investigators say she initially told.

Ford faced trial three times. After two hung juries, he was acquitted. Toforest Johnson's first trial also ended in a hung jury, but he was convicted in his second go-around and sentenced to death.

Howell said the murder of a cop was the sort of case that would normally prompt prosecutors to press so many trials.

She said the drive-by shooting enhancement suggests the district attorney was trying to make an example of Aaron Johnson. "So many people were being shot in drive-bys that they were throwing the book at the people involved to discourage others," Howell said.

Johnson's fourth capital murder trial was held in November 1998, five months after the third mistrial, two years after trial No. 1, and four years after the homicide. Witnesses had begun to scatter, which made Umstead's defense more challenging.

The Johnson family had run out of money, and Umstead was paid by the court for the fourth trial.

Johnson said he was confident as he was delivered to court. "I figured one more mistrial and I can go home," he told me.

That trial was presided over by Chris Galanos, a visiting judge from Mobile, 260 miles away, who was brought in to bolster Jefferson County's overextended bench. Johnson's first three trials lasted seven or eight days each. Galanos made it clear he was in a hurry to get home to Mobile. He vowed to dispose of the case in three days--and he did.

Johnson saw red flags. His familiar roster of eyewitnesses, including his wife and her sisters, were not in the courthouse; they had not received subpoenas. He said Umstead made impromptu changes in the defense plan, suggesting that he testify for the first time.

"She told me it was my only chance to tell our side of the story," Johnson said.

Unrehearsed, he stammered through a fierce cross-examination. Judge Galanos allowed transcripts of defense witness testimony from earlier trials to be entered into the record, but lawyers say juries are more likely to be influenced by in-person testimony.

The quick fourth trial ended with a conviction for capital murder. The penalty phase began immediately, and Johnson testified a second time to save his life. The jury voted 8-4 for life without parole.

Expecting freedom, Johnson was instead locked away forever.

Fourth Trial 'a Travesty'

The death of Timothy Chester left a trail of human wreckage among his loved ones. His girlfriend, Teresa Jones, was pregnant at the time of the homicide and gave birth to their son, Timothy Jr., just weeks after his father's funeral.

Jones described the void in her son's life in a brief courthouse interview with Howell.

"He cries every night, asking, 'Where's daddy?'" Jones said. "What am I supposed to tell him?"

Timothy Jr., now 21, apparently still lives in Birmingham. Attempts to reach him were unsuccessful.

Whether or not Aaron Johnson killed Chester, his series of trials stand as a paragon of messy justice. Persistence paid off for the prosecution over a defense that seemed to have grown complacent.

In his petition for a new trial, filed on Jan. 26, 1999, appeals attorney Erskine Mathis argued that Johnson had lost an unfair fight.

"The state should not be allowed to try someone forever," Mathis wrote. "There must be a stopping point. At some point a defendant's money for defense or even his resolve to continue the fight wears out. Should the state be allowed to prevail because it is more wealthy and able to pass the case to someone else when individual state agents become tired?"

"The fourth trial was a travesty," said Claudia Whitman, Johnson's longtime wrongful conviction advocate. Whitman, Mathis and other appeals attorneys have challenged the validity of the conviction on a number of counts. Among them:

  • Chain-of-custody evidence issues with the car and questionable forensic testing on blood-spatter patterns and bullet trajectories;
  • No residue testing on Cedric Johnson to determine whether he had fired a gun;
  • Ineffective counsel by Umstead in her failure to subpoena defense witnesses in the final trial;
  • Errors by Judge Galanos, who failed to instruct jurors of options to a capital murder verdict, including manslaughter. (Galanos, a former district attorney in Mobile, was later cited by the Center for Public Integrity as a national leader in prosecutorial errors and misconduct.)

Johnson's parents paid $25,000 to Mathis and $15,000 to Birmingham attorney Roger Appell for appeals, according to Dinah Robinson. (Aaron Johnson has sued Appell, who did not reply to a request for an interview.) They also paid $10,000 to Rita Briles, yet another Birmingham-area lawyer, to handle his post-conviction relief appeal, known as Rule 32. (Robinson said Briles missed a crucial filing deadline.)

Whitman believes that the missing witnesses led to Johnson's conviction. She collected statements from Terina Johnson and others, who said they had not been subpoenaed and would have testified. (The snafu may have been related to change-of-address complications after a fire destroyed the home of Terina's family.)

Whitman also found a new, non-family eyewitness who swore that Cedric Johnson shot Chester. And she sought an evidence analysis from Dr. Dan Spitz, a Michigan pathologist who frequently testifies as a forensic expert. Spitz concluded that Johnson's version of the events is plausible, and he wondered why the defense did not hire a blood-spatter expert to counter the prosecution's theory of the case--a fundamental component of a competent criminal defense.

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Aaron Johnson Family photo

Aaron Johnson has done many of his own legal filings since earning certification as a paralegal in 2003 from Blackstone Career Institute. In part, this is necessary due to a conundrum of a sentence of life without parole.

Toforest Johnson, convicted and condemned to die 20 years ago in the hotel parking lot murder of the off-duty Alabama sheriff's deputy, is represented in ongoing post-conviction proceedings by two prominent legal advocacy groups, the Southern Center for Human Rights in Atlanta and the Berkeley Law School Death Penalty Clinic.

He is one of about 3,000 men and women on death row in the U.S. With their lives at stake, most have access to experienced defense attorneys and knowledgeable advocates.

Claudia Whitman has been tireless in her work on behalf of Aaron Johnson, but she is not an attorney. She has begged for pro-bono legal advocacy to no avail. Johnson, like many of the country's 50,000 life-without-parolers, struggle to attract attention to their cases, especially if there is no DNA evidence to guide a wrongful-conviction challenge.

Dinah Robinson estimates that she and her son's father have invested more than $100,000 in his criminal defense and appeals. They have exhausted their savings and refinanced or sold family properties. They complain that several attorneys pocketed their money and did little work.

Robinson also hired a retired Texas cop as a private investigator.

"I sent him $3,000," she said. "He came to Birmingham, we talked about Aaron's case, and he left. I never heard from him again. I called him to try to get my money back, and his wife cussed me out."

Johnson describes Alabama defense attorneys as "vultures circling the prisons."

Although he believes he has been treated unfairly by the Alabama criminal justice system, Johnson insisted during our prison conversation that he is not resentful.

"It was a hell of a learning experience," he said. "I'm at fault because I should never have had the gun and I should never have assaulted Tim, so I'm gonna take responsibility. But I think 20 years was sufficient for that aspect. And to actually say I killed him, nah, don't do me like that. If they'd have been fair about the whole situation, then I would never be in my predicament (serving life without parole)."

Johnson dreams that someone in the justice system, out of benevolence or as a result of one of his court filings, will recognize his sentence as unjust and set him free.

Alabama's 'Flinty' Republicanism

But sentence relief does not seem likely in Alabama, where a flinty version of Republicanism reigns. Reform legislation that passed last year focuses on crimes of the future, not the past, through reclassification of nonviolent offenses that might now lead to probation rather than mandatory prison time. The GOP point man on the issue, Sen. Cam Ward of suburban Birmingham, made it clear what reform would not entail.

"No one is getting released early," he declared.

That seems antithetical to the stated goal of significantly reducing Alabama's prison population. But the ghost of Willie Horton haunts re-election dreams in the Yellowhammer State, where the parole process has become petrified.

Across the history of incarceration in the U.S., most violent felons have eventually become eligible for supervised release. Some have committed new crimes; inevitably, some always will. Alabama politicians--and, to be fair, those in the rest of the country--do not view that inevitability as acceptable. They see no political upside to discretionary parole.

Perhaps not coincidentally, Alabama incarcerates African-Americans at a rate that is more than double their population ratio: 59 percent of inmates are black, while just 27 percent of state residents are African-American, predominantly members of the Democratic minority.

Alabama has lagged the nation in recovery from the recession, and it faces annual spending cuts driven by budget deficits--$300 million in 2015, $200 million this year. Mass incarceration bears part of the blame. Prison spending has tripled in 20 years, to $499 million this year, nearly a quarter of the state's general-fund budget.

The imposition of long, stern sentences since the '90s ensures bloated prison budgets well into the future.

Aaron Johnson is one of 1,552 Alabama inmates--4.9 percent of the total prison population--serving life without parole. But virtually half of all inmates--47.8 percent--in Alabama prisons are serving sentences of 20 years or more.

Forty-one percent of inmates are 40 or older. Those in the 51-to-60 age bracket number 4,334, up 69 percent in the past 10 years. And 1,508 inmates are 60 or older, twice as many as 10 years ago.

Alabama spends about $17,000 per prisoner per year, or about $47 a day. But analyses by the National Institute of Corrections, Pew Charitable Trusts and others estimate that it costs four times that much--$70,000 a year, or $192 a day--to care for senior citizen inmates.

In February, Gov. Robert Bentley proposed an $800 million solution to the endemic, dangerous overcrowding in Alabama's relic prisons. Early release was not on the table. Instead, he wants to issue 30-year bonds to build an entirely new replacement set of four prisons. The legislature appears willing to comply, with the proviso that the lucrative building contracts go to in-state construction companies.

David J. Krajicek (@djkrajicek) writes about crime and justice for The Crime Report, Alternet, The New York Daily News and others. His work on this article was supported by The Fund for Investigative Journalism in Washington, D.C.

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