Inmate Seeks to Halt Execution for DNA Tests

A South Carolina man, scheduled to be executed Friday for the murder of a state trooper, is seeking clemency from Gov. Jim Hodges because someone else has confessed to the 1985 slaying.

There’s no doubt that Connie Sue Hess was at the murder scene, but last year the South Carolina Supreme Court doubted her credibility--in part because she has changed her story several times over the last 16 years. In a 3-2 vote, it denied Richard C. Johnson’s bid for a new trial, saying that his lawyers had not demonstrated conclusively that a new jury would acquit Johnson if they heard Hess’ testimony.

One dissenting justice said the decision, in the face of Hess’ confession, constituted “a denial of fundamental fairness shocking to the universal sense of justice.�

Even the state trooper’s mother wants Johnson’s sentence commuted to life.

“Killing Mr. Johnson, even if he is guilty, will not bring my son back and serves no purpose,� Thelma Blue wrote the governor. “Killing Mr. Johnson if he is innocent would be an abomination.�

Then, just two weeks before Johnson’s scheduled execution, his defense lawyers stumbled onto the possibility of DNA evidence that could cast doubt on the testimony of another key prosecution witness. The South Carolina Supreme Court could decide as early as Monday whether Johnson will be allowed to pursue DNA testing based on that evidence.

Over the last 13 years, 107 people have been exonerated from convictions in the U.S. as a result of DNA testing--including 12 from death row. However, no nationwide standard exists for deciding whether an inmate can obtain post-conviction DNA testing. Twenty-four states have passed laws giving inmates a right to such testing, but South Carolina is not among them.

If the governor commutes Johnson’s sentence to life, it would be the first time clemency had been granted in a capital case since South Carolina reinstated the death penalty in 1976. The state has executed 25 people in the last 25 years.

Many death penalty cases have a long and complicated history. But the Johnson case is a particularly tangled tale.

The story starts in September 1985, when Johnson met Daniel Swansen, by most accounts an eccentric businessman, in Morehead City, N.C. The two set out for Florida in Swansen’s motorhome.

Near the South Carolina line, the duo stopped at a rest area. Swansen picked up two hitchhikers, Hess and Curtis Harbert.

Not long afterward, Swansen and Trooper Bruce Smalls were shot dead, but who pulled the trigger is in dispute.

According to testimony at Johnson’s first trial in 1986, Johnson shot and killed Swansen inside the motorhome and hid his body under a mattress in the vehicle. Later the same day, Trooper Smalls pulled over Johnson, who had been drinking heavily, ingesting a variety of drugs and driving erratically.

Within moments, Smalls was killed. Johnson, Hess and Harbert attempted to flee but were soon captured.

Authorities threatened to prosecute all three, but only Johnson was tried. Harbert and Hess testified that Johnson had shot both men.

Johnson was convicted of Smalls’ murder and sentenced to death. Then, in a separate trial, he pleaded guilty to Swansen’s murder and received a life sentence. Johnson said he did not recall what happened because of his drug-induced state. When Johnson was arrested, his blood-alcohol level was more than twice the legal limit for driving.

Soon thereafter though, the state Supreme Court reversed Johnson’s conviction in the trooper case, because of improper comments made by the prosecutor in his closing argument, and ordered a new trial.

Johnson’s Statement Taken as Confession

Before that trial, Hess told her former lawyer that she wanted to recant her testimony against Johnson, according to court documents. Harbert had committed both murders, Hess now said.

The attorney sent a letter to the sheriff in the South Carolina county where the trio was arrested. But Johnson’s attorney was not notified of this potentially exculpatory information, and Hess’ new story did not become public until years later. Prosecutors did not call Hess to the stand in the second trial. Rather, they used her testimony from the first one. Harbert again testified against Johnson, and Johnson was again convicted of Smalls’ murder.

In the penalty phase, Johnson did not specifically address what had occurred, but he made what prosecutors and the judge took to be a confession. “I have no defense for anything or the tragedies that occurred. All I have is a sorrow for the lives that I have ruined.�

He was sentenced to death. The South Carolina Supreme Court upheld the conviction and the U.S. Supreme Court declined to review the case.

Johnson then obtained new lawyers, John H. Blume and Diana L. Holt, who launched new appeals without success.

Holt said Johnson firmly maintains his innocence. She said the statement he made in court was an “expression of sorrow for people losing their loved ones, not a confession. Now it’s become like suicide for saying ‘I’m sorry.’ �

In 1999, as time was running out for Johnson, Holt went looking for Hess and found her living in Nebraska. Hess told Holt several stories about what happened, though in each version she said Johnson was innocent.

Just eight days before Johnson was to be executed, Hess, against the advice of an attorney, signed a sworn affidavit in the presence of several witnesses saying that Harbert had murdered Swansen after having sex with him and that she had murdered Smalls.

At the earlier trials, Harbert said Johnson had murdered Swansen after having sex with him.

In light of Hess’ confession, the South Carolina Supreme Court stayed the execution and assigned a judge to review the case.

There was no strong physical evidence against Johnson. When his hands were tested for gunpowder shortly after he was arrested, no residue was found, records state. Judge William P. Keesley expressed dismay, however, at his inability to get access to other evidence collected during the investigation of Smalls’ murder.

Months later, Keesley decided that Hess lacked credibility because she had changed her story several times and consequently concluded that Johnson’s conviction should be upheld.

The state Supreme Court voted, 3 to 2, to adopt his recommendation in June 2001, and that seemed to be the end of the legal road for Johnson.

Then, a couple of weeks ago, a new twist emerged. Blume and Holt asked the state Supreme Court to stay Johnson’s execution based on “recently discovered exculpatory evidence believed to be in the possession of the Medical University of South Carolina,� which performed the autopsies in the Swansen and Smalls slayings.

The defense lawyers, aided by DNA specialist Barry C. Scheck of the Innocence Project in New York, said in court papers that the evidence had not been disclosed by authorities until April 12 during the investigation of “matters under seal in another capital murder case.� Johnson’s lawyers are under court order not to say more.

William E. Salter III, a senior assistant attorney general in South Carolina, maintains that Johnson is not entitled to the DNA tests because he had an opportunity, through different attorneys earlier in the case, to obtain the relevant material. In addition, Salter maintains in recent court papers that Johnson is not entitled to the testing because it relates only to a collateral issue in the case--whether Harbert or Johnson had sex with Swansen before he was shot.

Johnson’s attorneys retort that if the tests show that Harbert had sex with Swansen it would demonstrate that he had lied at trial.

The autopsy report on Swansen states there are clear signs that he had anal sex before he was killed.

This year, the Richmond, Va.-based U.S. 4th Circuit Court of Appeals, which has jurisdiction over South Carolina death penalty appeals, ruled that there is no constitutional right to post-conviction DNA testing. The court said that if such a right were to be granted it should come from a state legislature, not from a federal court.

But Judge J. Michael Luttig issued a long opinion in which he became the first federal appeals court judge to state that he believes there is a constitutional right to post-conviction DNA testing.

“A right of access to evidence for tests which . . . could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required, I believe, as a matter of basic fairness,� wrote Luttig, a staunchly conservative jurist. Luttig added that the right to testing is particularly important when a defendant’s access to the courts is precluded because he has used up his appeals and his only remaining chance is clemency.

‘There Has to Be a Residual Doubt’

Scheck said he hopes Gov. Hodges will heed that message. Johnson’s “is the toughest kind of case for clemency because it involves the shooting of a policeman.�

But he added, “If there is any case that cries out for clemency based on residual doubt, this has to be it. When two of the five justices of the state Supreme Court say Johnson is entitled to a new trial, there has to be a residual doubt about his guilt.

“If I were the governor, I would want to see the testing done in order to make an informed clemency decision.�

But South Carolina Atty. Gen. Charlie Condon said the case had been reviewed many times by appellate courts and the execution should go forward. “The system has really bent over backwards to investigate every possibility of any evidence that we’ve got the wrong person,� Condon told a South Carolina newspaper a few days ago. “It’s time for justice to be served.�