Prosecutors Withheld Health Data on Killer

Prosecutors revealed Tuesday that they withheld information about the mental illness of convicted killer Michael Raymond Johnson during his trial last year, a lapse defense lawyers say resulted in a death sentence.

Johnson’s lawyer said he will ask the state Supreme Court for a new trial, because prosecutors kept secret a memo buttressing the defense argument that Johnson was a schizophrenic suffering from a paranoid delusion when he shot Deputy Peter J. Aguirre in 1996.

“It’s just incomprehensible to me that it wasn’t turned over,” said Deputy Public Defender Todd Howeth. “This goes to the heart of our case.”

Johnson, 51, was convicted in January 1998 of the execution-style murder of Aguirre, 26, who responded to a domestic-disturbance call at the home of Johnson’s estranged wife in Meiners Oaks.

Prosecutors argued that Johnson committed cold-blooded murder, but defense lawyers pleaded with jurors to spare the Vietnam veteran’s life because he didn’t know what he was doing when he shot Aguirre.

On Tuesday, Dist. Atty. Michael Bradbury notified the state Supreme Court and defense lawyers of the existence of a nine-page prosecutor’s memo that summarizes the opinion of psychologist Daniel A. Martell, a potential prosecution witness, who concluded that Johnson was mentally ill.

In that February 1998 memo, written after Johnson’s conviction but before his sentencing, Deputy Dist. Atty. Maeve Fox writes that Martell “indicated that this is indeed a rare case in which a defendant does indeed suffer from exactly what the defense says he does,” according to Howeth.

That memo was not made public Tuesday.

Nor would Bradbury or other prosecutors elaborate beyond a terse news release and Bradbury’s letter to the Supreme Court.

“Since the issues raised in the referenced letter will undoubtedly prompt litigation, there will be no further comment at this time,” the prosecutor said.

In general, prosecutors are required to promptly reveal information that tends to prove a defendant’s innocence or could affect the severity of sentence upon conviction.

Bradbury argued in his letter to the Supreme Court, however, that failure to disclose a prosecutor’s memo should not undermine Johnson’s conviction because the memo was a confidential “work product” and protected from disclosure by law.

“In providing these documents, we are not conceding that discovery of all this information would have been mandated at trial [by the judge],” Bradbury wrote. “Nor do we concede that the information is exculpatory, that it is suggestive of innocence or mitigation, that it casts doubt upon the correctness of the conviction, or that it entitles defendant to any remedy.”

In fact, Bradbury argues that the death penalty was properly imposed on Johnson, and that any appeal of his conviction should be rejected.

Legal experts said it is not immediately clear which side the Supreme Court eventually will take.

“This is a significant disclosure,” said Laurie Levenson, associate dean at the Loyola School of Law. “It is at least embarrassing to file this late disclosure with the Supreme Court. And it is the type of evidence that often helps a defendant not only avoid conviction, but certainly helps during the death-penalty phase.

“But whether it will lead to a new trial is unclear,” she said.

Bradbury’s argument that prosecutors failed only to reveal an inter-office memo carries weight, she said. So does his contention that the psychologist’s opinion doesn’t mean much because it was based on second-hand information--and not from an actual interview with Johnson.

Attorney Kevin DeNoce, a former appeals attorney for Bradbury’s office, said the case is not clear-cut.

“This is a true legal issue,” he said. “It’s touchy because we’re not talking about withholding hard, physical evidence. We’re talking about the opinion of an expert who was not even called by the prosecution.”

Prosecutors’ claim that memos are confidential is also correct, he said, “but work-product privilege is absolute only in reference to strategy. It’s qualified as far as it relates to expert opinion.”

Defense lawyer Howeth is certain prosecutors acted inappropriately.

“I’ve never encountered such a huge problem on such an important case,” he said.

Prosecutors were fully aware that their own expert witness agreed that Johnson was mentally ill when they argued the opposite to the jury in demanding the death penalty, Howeth said.

Even before Johnson was sentenced last April, Howeth sought a new trial, arguing that then-Deputy Dist. Atty. Matt Hardy was guilty of “a pattern of behavior . . . of making sarcastic and critical comments demeaning to the defense counsel and expert witnesses.”

He referred specifically to Hardy’s behavior during testimony of a mental health witness. According to jurors, “Hardy would attempt to make eye contact with jurors in the box and repeatedly rolled his eyes and smirked.”

Hardy did not deny it. In his response he wrote that the witness’ “effeminate mannerism and weak testimony . . . caused the understandable reaction from the prosecution.”

Judge Steven Z. Perren said he also found Hardy’s conduct unacceptable, but denied Howeth’s motion for a new trial.

Hardy was subsequently suspended and no longer works as a prosecutor.

Howeth said the newly discovered memo only reinforces his arguments for a new trial.

“This directly relates to that motion,” he said. “The prosecution was very persuasive in convincing the jury that Mr. Johnson did not suffer from a mental illness--and that was the crux of our defense.

“Now my fondest hope is that I will be able to properly present this information about his mental illness to a jury, so they can decide what an appropriate punishment would be and what charges he is guilty of.” Already there is fallout from Bradbury’s announcement.

Aguirre’s wife, Endina, said the possibility of a new trial only makes it harder for her and her young daughter to move forward with their lives.

“I’d like to really be able to just go on,” she said. “But it’s pretty difficult when you have a 6-year-old who talks about her father every day just like he’s still here.”