Petition for Writ of Certiorari — Edward Keith Johnson, Jr., Petitioner v. Tim Hooper, Warden
Supreme Court briefJun 18, 2024
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4~52§4 ORIGINAL
IN THE
SUPREME COURT OF THE UNITED STATES
FILED'
JUN 1 8 2024
EDWARD KEITH JOHNSON - PETITIONER
vs.
TIM HOOPER, WARDEN - RESPONDENT^)
ON PETITION FOR A WRIT OF CERTIORARI TO
___ UNITED STATES COURT OF APPEAL FOR THE FIFTH CIRCUIT
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR CERTIORARI
EDWARD KEITH JOHNSON #379494
CAMP C BEAR 4
LOUISIANA STATE PENITENTIARY
ANGOLA, LOUISIANA 70712
RECEIVED
JUL I 7 2024
Received
JUN 2 8 2024
QUESTJON(S) PRESENTED
Was Petitioner Denied the Right to Due Process violating the Fourteenth Amendments to the United
States Constitution and Article 1, Section 2 of the Louisiana Constitution of 1974 when the Trial Court
applied the misinterpretation of the Law to LA. R. S. 15:440.5.
Whether Petitioner Sixth and Fourteenth Amendment to the United States Constitution was Violated
when Denied the Effective Assistance of Counsel at Trial and Appellate Counsel on Appeal?
Whether Petitioner's Fourteenth Amendment to the United States Constitution was violated when
Prosecutor withheld Brady Material?
i
LIST OF PARTIES
[ ]
All parties appear in the caption of the case on the cover page.
[X]
All parties do not appear in the cation of the case on the cover page. A list of all parties to the
proceeding in Hie court whose judgment is the subject of this petition is as follows:
Edward Keith Johnson #379494
Camp C Bear 4
Louisiana State Prison
Angola, Louisiana 70712
Tun Hooper, Warden
Administration Building
Louisiana State Prison
Angola, Louisiana 70712
James E. Stewart Sr., District Attorney
501 Texas Street
Shreveport, Louisiana 71101
ii
TABLE OF CONTENTS
QUESTION(S) PRESENTED,
...i
LIST OF PARTIES.................
TABLE OF AUTHORITIES CITED
iv
OPINIONS BELOW
vi
JURISDICTION,
,.vii
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.
viii
STATEMENT OF THE CASE
.1
Course of Proceedings,
I
Facts of the Offense.....
2
4
REASONS FOR GRANTING THE PETITION
LAW AND ARGUMENT...
4144414444444444444t44444444l44444444444444444444444444»4444444444444414t44444444444444444444144444444t44l4444414444
Claim No. L
Claim No. 2...
Claim No, 3...
muitutummuuiuii.iuu
CONCLUSION,,,,,,,
...4
..... 4
iimtimminuitimuttitLi
10
,,16
.,19
444111414141144111441441444
PROOF OF SERVICE...
44444444444444444414444444444444444444444444
INDEX TO APPENDICES
APPENDIX A
United States Court ofAppeal, Fifth Circuit, denial
APPENDIX B
Petitioner's Motion for Certificate ofAppealability (COA)
APPENDIX C
United States District Court, Eastern District of Louisiana, denial
APPENDIX D
Petitioner's Writ of Habeas Corpus with attached Exhibits
111
....20
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786,125 L. Ed.2d 469
2
State v. In re AM., 2008-2493 (La. 11/21/08) 994 So.2d 1277.....................................................
.5
Washington v. Texas, 388 U S. 14,19 (1967)................................................................................
6
State v. AM., 08-2493 (La 11/21/08), 994 So.2d 1777................................................................
7
State v. AM., 08-2493 (La. 11/21/08), 994 So.2d 1777,1280.....................................................
7
State v. Lopes, 01-1383 (La 12/7/01), 805 So.2d 124...................................................................
8
United States v. Canion, 488 F.2d 12,14 (1st Cir. 1973), cert Denied, 416 U.S. 907,40 L. Ed. 2D 112,
94 S.Ct. 1613 (1974).......................................................................................
8
United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2nd Cir. 1970)
;..8
Teny v. State, 21 Ala App. 100,105 So. 386,387 (Ala App. 1925).............
8
Carrion, 488 F.2d at 14....................... ........
8
Lily v. Virgina, 527 U.S. 116, 123 (1999)i.....
9
White v. Illinois, 502 U.S. 346,356(1992}....
9
Maryland v. Craig, 497 U.S. 836,844 (1990}
........ 9
Perry v. Leelce, 488 U.S. 272, 283 n.7(1989}.
9
Kentucky v. Stincer, 482 U.S. 730,736 (1987)........................................
9
California v. Green. 399 U.S. 149,158 (1970)........................................
9
Ford v. Wainwright, 477 U.S. 399,415 (1986)........................................
9
Lee v. Illinois, 476 U.S. 530,540 (1986)i................................................
9
Watkins v. Sowders, 449 U.S. 341, 348 n.4 (1981)............................. .
9
Robert v. Ohio, 448 U.S. 56,63 n.6 (1980).............................................
9
United States v. Salerno, 505 U.S. 317,328 (1992}................................
9
Strickland v. Washington,466 U.S. 668 (1984)................ ........................
11
Davis v. Secretary, Dept, of Corrections, 341 F.3d 1310 (11& Cir. 2003)
11
Evitts v. Lucey, 469 U.S. 387 (1985)........................................................
15
United States v. Bass, 310 F.3d 321 (5th Cir. 2002)..................................
15
Overstreet v. Warden, 811 F.3d 1283 (11* Cir, 2016).,....... ...... „............
15
Lynch v. Dolce, 789 F.3d 303 (2nd Cir. 2015}..........................................
15
Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005)........................................
15
iv
Payne v. Stansberry, 760 R3d 10 (D.C. Cir. 2014).
15
Roe v. Delo, 160 F.3d 416,419 (8* Cir. 1998).....
15
United States v. Agurs, 427 U S. 97 (1976)..........
17
.......17
Brady v. Maryland, 373 U.S. 83 (1963)..
Strickler v. Greene, 527 U.S. 263, 280 (1999).............. .
17
United States v. Olsen, 737 F.3d 625,626 (9th Cir. 2013),
18
United States v. Bagley,473 U.S. 667, 676 (1985)......
19
STATUTES AND RULES
La R. S. 15:440.5
4
La R.S. 15:440.1 et seq.
6
LA. CONST. ART. 1 §16
...8
LaR. S. 15:440.6........
10
La. C.E. Art. 801..........
12
La. C.E, Art. 802
12
La, C.E, Art, 803(1)
12
4441444444444
La. C.E. Art. 704,...
La, C,Cr, P, Art, 77L
LA. C.E. Art. 412.2,,,.
28 IT. S. C. § 2254....
44441444441
12
.,12
....13
.... 17
OTHER
Lawyers admitted pro hac vice have similar requirements. La. Rules of Prof 1 Conduct R. 5.5.....
....7
Richard D. Friedman, The Confrontation Clause Re-Rooted and Transformed, Vol. 2003-2004, Cato
Supreme Court Rev., 439(2004).„
9
5 John Henry Wigmore, Evidence § 1367, at 32(James Chadboum rev. 1974).
v
9
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ certiorari issue to review the judgment below.
OPINIONS BELOW
[X]
For cases from federal courts:
The opinion of the United States Court of Appeals appears at Appendix “A” to the
petition and is
[X]
reported afEdward Keith Johnson v. Vannov. Warden. US Fifth Circuit
Court of Appeals No. 23-30724: or,
[ ]
has been designated for publication but is not yet reported; or,
[ ]
is unpublished
Die opinion of the United States district court appears at Appendix “C” to
the petition and is
[X] reported at Edward Keith Johnson y.. Yaiinoy,. Wa den, USDC No.. 20:
356-JWD-SDJ: or.
[ ]
has been designated for publication but is not yet reported; or,
[ ]
is unpublished
[X]
For cases freon state courts:
Die opinion of the highest state court to review the merits appear at
Appendix “D” to the petition and is
[XJ
reported at Edward Keith Johnson v. State. 296 So.3d 602(Mem)
(La.. 5/14/2Q); or,
[ ]
has been designated for public record; or,
[ ]
is unpublished
The opinion of the Louisiana Second Circuit Court of Appeal appear at Appendix “D”
to the petition and is
[X]
reported at State v. Edward K. Johnson. 253 So.3d 887 (La App 2"1 Cir.
8/15/18: or.
[ ]
has been designated for publication but not yet reported; or,
[ 3 is unpublished
vi
JURISDICTION
[A]
For cases from federal courts:
Hie date on which the United States Court ofAppeals decided my case
was March 20.2024 .
[ ]
No petition for rehearing was timely filed in my case.
[ ]
A timely petition for rehearing was denied by the United States Court of Appeals
and a copy of the order
on the following date:____________
denying rehearing appears at Appendix
[ ]
An extension of time to file the petition for a writ of certiorari was granted to and
___ (date) in
including____
(date) on___
Application No.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
[X]
For cases from state courts:
The date on which the highest stale court decided my case was May 14.2020.
A copy of that decision appears at Appendix “A”.
[ ] A timely petition for reheoing was thereafter denied on the following date:
_____________________, and a copy of the order denying rehearing appeals
at Appendix_____.
[ ] An extension of time to file the petition for a writ of certiorari was granted to and
(date) in Application
(date) on
including
No........
The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).
vii
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Sixth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
viii
STATEMENT OF THE CASE
Course of Proceedings:
Johnson was chained by bill of indictment on June 18, 2015 with__ count of aggravated rape.
He entered not guilty pleas to both. On August 16, 2017, Johnson was found guilty as charged. On
September 11, 2017, Johnson filed a motion for new trial and motion for post-verdict judgment of
acquittal in which the trial court denied, then sentenced Johnson to life at hard labor without the
possibility of probation, parole, or suspension of sentence.
Johnson timely appealed his conviction and sentence to the Second Circuit Court Of Appeal
without success. He also launched a timely, yet unsuccessful collateral attack on his conviction and
sentence.
On June 10, 2020, Johnson filed a timely petition for writ of habeas corpus in the Middle
District of Louisiana On September 12, 2023, United States Magistrate Judge Scott D. Johnson signed
a Report and Recommendation recommending to the United States Middle District Honorable Court
that Mr. Johnson's Writ of Habeas Corpus Petition should be dismissed with prejudice. Magistrate
Johnson further recommended that a certificate of appealability be denied if Mr. Johnson sought appeal.
The Honorable District Court denied and dismissed Johnson's habeas petition with prejudice and
further ruled that a certificate of appealibility would be denied if Mr. Johnson sought to pursue an
appeal The Fifth Circuit Court of Appeal notified Mr. Johnson to file a motion and brief within Forty
(40) days from October 16, 2023. Mr. Johnson respectfully requested that this Honorable Court grant
him an extension of time in which to comply with the certificate of appealability requirements. On
March 20, 2024 the Honorable United States Court of Appeal Fifth Circuit denied Mr. Johnson's
Petition Certificate of Appealability and further denied Mr. Johnson's motion to proceed in forma
pauperis. Petitioner Edward Kieth Johnson, now seeks Writ of Certiorari to this Honorable United
States Supreme Court.
1
Facts of the Offense
The grand jury bill of indictment alleged a single count of Aggravated Rape in violation of
Louisiana Revised Statute 14:42. Mr. Johnson entered a plea of not guilty to this charge on May 18,
2015. On July 28, 2017, counsel for Mr. Johnson made multiple motions: first, a motion to require a
Daubert} hearing of Mb. Kiersten Prochnow, a counselor who had provided counseling to AD., the
complaining witness; second, a motion to continue; third, a motion to supplemental discovery; and
fourth, amotion to allow an expert witness, Dr. Shelly Visconte, to review an electronic recording of a
protected witness.2 On July 31, 2017, the district court denied the motion for a Daubert hearing, the
motion to allow expert witness to review an electronic recording of aprotected witness, and the motion
for supplemental discovery. The district court denied the motion for a continuance partly on July 31,
2017 and partly on August 2, 2017.3 Defense counsel subsequently applied to the Louisiana Second
Circuit Court of Appeal for a writ for supervisory review of these denials on August 4, 2017.4 The
Second Circuit denied this writ on August 7, 2017, without assigning reasons.5
Mr. Johnson's trial, assigned docket number 331,421, began on August 9,2017. The State called
the following nine (9) witnesses to the stand, all of whom were questioned on direct examination by the
prosecution and on cross-examination by the defense counsel: AD., the complainant and a minor, Ms.
Deborah Norgaard, the grandmother of AD.; E.N., the minor cousin of AD.; Ms. Alex Person, a
worker at the Gingerbread House who conducted interviews of minor children related to the case; Mr.
Nathaniel Veal, a development specialist with the Department of Children and Family Services; Ms.
Kristen Prochnow, a mental health counsel®", Dr. Jennifer Rodriguez, an expert in pediatrics
specialized in child abuse; Detective Tracey Mendels, a Crime Scene Investigator for the Shreveport
1
2
Daubert v. Merreil Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Cl 2786, 125 L. Ed.2d 469.
Petitioner's Exhibit 1 - July 28, 2017 Motion to Allow Exp at Witness to Review El ectronic Recording of Protected
Witness, et seq.
3 Petitioner's Exhibit 2 - August 3, 2017 Notice of Intent to Apply far Writ of Review and Request for Return Date.
4 Petitioner's Exhibit 3 -August 4,2017 Application by Defendant for Writ of Review.
5 Petitioner's Exhihit 4 - August 7, 2017 Second Circuit Denial of Wit.
2
Police Department; and Detective Michael Jones, a Youth Services Division member in the Shreveport
Police Department.
On two separate occasions, Mr. Enright objected to the testimony of Ms. Prochnow on die
grounds that it exceeded the scope of what a fact witness is allowed to testify.6 Mr. Enright also
objected to Ms. Prochnow's use of expert knowledge and training.7 On all occasions, the trial court
overruled his objections.
Defense counsel presented five (5) witnesses: Officer Steven Wood, From the Bossier City
Police Department; Officer Jeremy Kelley, from the Shreveport Department; Ms. Krystal Ard, Mr.
Johnson's niece; Mr. David Day, the father of A.D., and Mr. Edward Keith Johnson.
The jury unanimously found Mr. Johnson guilty as charged on August 16,2017. On September
11, 2017, Mr. Johnson filed motions for new trial and post-verdict judgment of acquittal. The district
court denied these motions and subsequently sentenced Mr. Johnson to life imprisonment at hard labor
without benefit of probation, parole, or suspension of sentence.
Ms. Peggy Sullivan of the Louisiana Appellate Project (LAP) represented Mr. Johnson on direct
appeal. In its appeal to the Louisiana Second Circuit, LAP asserted four arguments of en-or:
1.) There was insufficient evidence to support the conviction; 2.) Hie trial court
erred in denying [defense counsel's] request to allow an expert to review A.D.fs
Gingerbread House interview prior to trial; 3.) The trial court erred in allowing
the State to reference other crimes evidence outside the scope of its LA. C. E.
Ait. 412.2 notice; aid 4.) the trial court erred by denying [Mr. Johnson] the
opportunity to conduct a Drnbert hearing as to Ms. Kiersten Prochnow's
testimony.8
On August 15, 2018, the Second Circuit denied Mr. Johnson's appeal and assigned reason.9 LAP
did not appeal to the Supreme Court of Louisiana, and Mr. Johnson's conviction therefore became final
on August 30, 2018.
6
7
8
9
Petitioner's Exhibit 5 - Transcript of Trial of Edward Keith Johnson, August 14,2017,25-26:32; 42:1-4
Id. at 35:9-12.
Petitioner's Exhibit 6 -August 15, 2018 Second Circuit Notice of Judgment at 3.
Petitioner's Exhibit 6 - August 15, 2018 Second Circuit Notice of Judgment
3
REASONS FOR GRANTING THE PETITION
LAW AND ARGUMENT
Claim No. 1: Was Petitioner Denied the Right to Due Process violating the Fowrteenth
Amendment to the United States Constitution and Article 1, Section 2 of the Louisiana
Constitution of 1974 when the Trial Court applied the misinterpretation of the Law to LA. R. S.
15:440.5.
There was a fundamental change in the Louisiana Provisions of La. R. S. 15:440.5 in 2014.
Prior to 2014, the Law read in pertinent part: La. R. S. 15:440.5(Q “...If the defendant's attorney is
provided a copy of the videotape statement by court order or by permission of the district attorney, only
the attorney and the defendant shall he permitted to view the tape, and no copies shall be made
by any person.”
This was clearly a violation of any defendant's Constitutional Rights to Due Process and the
Legislature corrected this grave prejudicial law when it amended it in 2014 to read as follows:
This Fundamental change allowed more people to assist the accused in
criminal proceedings involving sexual assault allegations. This statute further
expanded the list of people who could review evidence provided by victims of
sexual abuse. Attorney's regularly employ expert witnesses to testify as to their
expertise in their designated fields in the defense of cases in need of them.
Experts are a need in order to determine credibility of witnesses, but also to
ensure that proper procedures and protocols are being followed when conducting
the interviews of protected persons.
In Mr. Johnson's case, an expert witness was crucial in determining that the methods used by
Interviewer, Ms. Person was leading and carried out in such away as to illicit predetermined responses
from a particularly sensitive and impressionable child such as AD. Ad has a well established history of
antisocial and explosive behavior. (Vol. V., p. 880).
This conviction is based mainly on the testimony and statements given by AD and Mr. Johnson
was denied his Due Process Rights to a fair trial when the Court denied his attorney the ability to have
4
an expert witness review the videotape in order to determine the mythology of obtaining the statements
and whether the interviewer used leading questions and or any other deceitful tactics to illicit a
predetermined statement
Mr. Johnson asserts that at the very minimum a Daubert Hearing should have been conducted
by the trial court to determine the expert's qualifications and the relevance of his potential testimony.
There is no prohibition to preclude an expert from rendering general testimony about child forensic
interviewing. Mr. Johnson notes that his attorney argued that an expert was fundamental to Mr.
Johnson's defense and would given testimony as to how the questioning of a delicate child was ilicited
through the leading questions by the interviewer. Mr. Johnson points out that in State v. In reA.M.w,
the Louisiana Supreme Court held that the right to present a defense does not encompass the light to
present expert testimony commenting directly on the credibility of a victim's testimony. Mr. Johnson
contends that the experts testimony would not contain any opinion on the credibility of the victim.
La R. S. 440.5 (C).
During preparation for trial, the State provided Mr. Johnson's defense counsel with recordings
of interviews conducted at the “Gingerbread House.” The persons interviewed were minors A.D., Alex,
and E.N. Defense counsel requeued that an expert witness be allowed to view the tapes in order to
provide advice to counsel in preparation for trial and be able to give a jury more knowledge into the
procedures of how these interviews are conducted, why they are conducted, the reasoning of
professionally trained individuals in conducting these interviews and the proper procedures in doing so.
This expert witness would have also been able to give understanding to the jury on the behavioral
issues and obstacles in abstracting information from minors through the process of these interviews.11
The trial court denied this request, on the grounds that La. R.S. 15: 440.5 restricts the viewing of such
10 Stale v. In re AM., 2008-2493 (La. 11/21/08) 994 So.2d 1277.
11 Petitioner's Exhibit 1 - July 28, 2017 Motion to Allow Exp at Witness to Review El ectronic Recording of Protected
Witness, et seq.
5
material to the following specific members of a. defense team: “the attorney and his regularly employed
staff, the defendant, the defense investigator designated to work on the case, the defense paralegal
designated to work on the case, and other staff members of the attorney who are transcribing the
videotaped oral statement.”12 Mr. Enright subsequently appealed the matter to the Second Circuit,13
which denied the defense's writ without assigning reasons.14 On direct appeal, Ms. Peggy Sullivan, on
behalf of the Louisiana Appellate Project for Mr. Johnson, raised raised this issue as an assignment of
error.15 Once more, the Second Circuit denied the assignment of error, holding that a clear reading of
the statute prevents expert witnesses for the defense from viewing the tapes.16
Defendants in Louisiana are granted the right to present a defense and the right to confront
accusers under both die Louisiana And United States Constitutions.17 The Supreme Court of the United
States has long included the ability to offer the testimony of witnesses within the realm of due process:
The right to offer the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present a defense, the right to present the
defendant's version of the facts as well as the prosecution's to die jury so it may
decide where the truth lies. Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging their testimony, he has the
right to present his own witnesses to establish a defense. This right is a
fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19 (1967). At issue in the instant case is a fundamental
aspect of this requirement: the right of the defendant to understand the evidence and charges laid
against him. La. R.S. 15:440.5 prohibits defense counsel from hiring an expert to review the videotaped
testimony made admissible in La. R.S. 15:440.1 et seq. By doing so, it prevents a defense team from
adequately preparing for trial, because defense counsel will be unable to properly analyze the audio
visual recording for potential issues that may be brought up on cross. While it is true that a competent
12 La. R.5.15;440.5[Q
13 Petitioner's Exhibit 3 - August 4, 2017 Application by Defendant for Writ of Review.
14 Petitioner's Exhihit 4 -August 7, 2017 Second Circuit Denial of Writ.
15 Petitioner's Exhibit 6 - August 15, 2015 Second Circuit Notice of Judgment at 3.
16 Petitioner's Exhibit 6 -August 15, 2015 Second Circuit Notice of Judgment at 11-13.
17 U. S. Const. Amends. VI, XTV; La. Const. Art. 1 §16.
6
attorney will, for example, note the isaie of a forensic interviewer asking leading questions of an
alleged victim and bring such issue up on cross-examination, 18 it is not reasonable to expect any
criminal defense attorney to be able to review a forensic interview and detect issues that require a
trained forensic psychologist to identify.
Unfortunately, the Louisiana Supreme Court has made this expectation law. In State v. AM.,
08-2493 (La. 11/21/08), 994 So.2dl777, the Court ruled against a defendant who claimed the La R.S.
15:440.5 unconstitutionally violated his right to confrontation. In its decision, the Court stated:
Given the substantial state interest in prosecuting crimes of violence against
protected persons with a minimum of additional intrusion into the lives of such
protected persons, the legislature may also assume that reasonably competent
counsel provided with pre-trial disclosure of die record statements made by
protected persons possess the requisite tools to prepare for cross-examination as
they may in any other case unaided by a psychologist or an investigator, or, for
that matter, a law partner, whose contributions may, to some indeterminate
degree, or may not, aid in the process.19
There are two significant errors in this opinion, which the Court must ad&ess and reverse. First,
as mentioned supra, the Court expects attorneys to posses a breadth of knowledge that is unrealistic.
Second, the Court significantly overestimates the scope of intrusion into the lives of persons protected
under La. R.S. 15:440.5.
The requirements for a practicing attorney in Louisiana are the passage of the bar examination
and the MPRE, which gauge the ability of an applicant to the bar to understand and apply law to facts
in a manner that comports with the Louisiana Rules of Professional Conduct.20 Furthermore, unlike
other post-graduate fields of work, such as medicine, the practice of law admits members from a
diverse variety of educational backgrounds. It is unfeasible to expect criminal defense attorneys to
possess the requisite training in both forensic science and child psychology that would allow them to
18 As Mr. Enright did at trial. Petitioner's Exhibit 5 - Transcript of Trial of Edward Keith Johnson, August 9, 2017,97102.
19 State v. A.M., 08-2493 fLa. 11721/08], 9945o.2d 1777,1280.
20 Lawyers admitted pro hoc vice have similar requirements. La. Rules of Prafl Conduct R. 5.5.
7
property review an audiovisual recording as set forth in La. R.S. 15:440.1 et seq. To deny attorneys the
advice of experts in cases is to require attorneys either to know or to master a field with which they are
likely only passingly familiar or cause them to reader ineffective assistance of trial counsel.
More ability to confront one's accuser at trial is not sufficient to meet the requirements of due
process or of the Confrontation Clause.21
Importantly, La. R.S. 15:440.5 does not merely prevent the defense from introducing an expert witness
at trial; rather, it prohibits the defense from hiring an expert to analyze and explain issues to the defense
attorney, who may then use that knowledge to inform cross-examination at trial.
This prohibition on expert analysis weakens due process and the Confrontation Clause to the
point of meaninglessness. A defendant must be able to understand the person which is accusing him in
order to meaningfully confront the accuser at trial.22 The Louisiana Supreme Court cogently expressed
this point in St&e v. Lopes, 01-1383 (La. 12/7/01), 805 So.2d 124, wherein the Court held that:
LA. CONST. ART.l §16 provides that the defendant has a right to a fair trial.
This constitutional article is the source of specifics rights due a defendant in a
criminal trial; such as “impartial trial,” “to confront and cross-examine the
witnesses against him,” “to present a defense,” and “to testify in his own behalf.”
Id Utilizing this constitutional source provision, it is evident that the defendant's
constitutional right to confront and cross-examine witnesses would be
significantly impaired if he is unable to understand what these accusers say. See
United States v. Carrion, 488 F.2d 12, 14 (Is* Cir. 1973), cert. Denied, 416 U.S.
907, 40 L. Ed. 2D 112, 94 S.Ct. 1613 (1974); United States ex rel. Negron v.
New York, 434 F.2d 386, 389 (2* Cir. 1970); Terry v. State, 21 Ala. App. 100,
105 So. 386, 387 (Ala. App. 1925). Likewise, a defendant who may choose to
exercise his constitutional right to testify in his own behalf may be meaningless
if a language barrier causes him to be misunderstood or he misconstrues
questions posed to him because he simply does not understand the language.
See, Carrion, 488 F.2d at 14.23
La. R.S. 15:440.5 functions similarly to a statute that would prohibit the use of translators or
interpreters; indeed, in the event that an alleged victim who does not speak English underwent a
21 See, e.g., United States ex rd. Negron v. New York, 4341.2d 386 (2d Cir. 1970)(hdding that the denial of an interpreter
to a defendant at trial violated due process and the right to confront accusers).
22 See Negron, supra.
23 State v. Lopes, 01-1383 (La. 12/7/01), 805 Sa2d 124, 126.
8
protected interview, the reading of R.S. 15:440.5 demanded by the Court would prevent defease
counsel from hiring an interpreter to ensure the accuracy of the state's claims regarding the contents of
the interview. This is beyond absurd; it is Rafkaesque. So, too, is the prohibition on defense counsel
sharing recordings with expert witnesses in order to obtain expert analysis of the childhood psychology
and behavior displayed in forensic interviews conducted pursuant to R.S. 15:440.1 et seq.
The Court's emphasis on the Legislative desire to shield alleged victims from intrusion has led it
to allow a serious infringement of the rights to present a defense and to confront one's accuser. While
the government interest in reducing intrusion into the private lives of children is substantial, it is
insufficient to overcome the requirements of the Confrontation Clause, which has been rooted in
Anglo-American law for centuries.24
The Confrontation Clause itself serves the valuable purpose of allowing the adversarial
procedure to unveil the truth through cross-examination.25 However, where the defense is denied the
ability to meaningfully understand and prepare questions for an accuser, the power of crossexamination falters.
Even if the state interest in shielding alleged victims were so sufficient as to overwhelm the
defendant's right to confrontation, La. R.S. 440.5 does net uphold the state interest in such a way as to
justify the exclusion of defense experts. A defense expert trained in the fields of forensic interviewing
and child psychology knows the ethical requirements involved with children who are alleging sexual
24 For a comprehensive hi stay of the rale of the Confrontation Clause, see generally Richard D. Friedman, The
Confrontation Clause Re-Rooted and Transformed, Vol. 2003-2004, Cato Supreme Court Rev., 439(2004).
25 Professor Friedman has here provided a plethora of citations for his assertion that “The U.S. Supreme Court has
repeatedly endorsed John Henry Wigm ore's charactaization of cross-examination as 'beyond any doubt the greatest
legal engineer ever invented for the discovery of truth': 5 John Henry Wigmore, Evidence § 1367, at 32£ James
Chadboum rev. 1974)(quoferiF in part in Lily v. Virgina, 527 U.S. 116,123 (1999)(p3urality opinion)). See also White v.
Illinois, 502 U.S. 346, 356(1992); Maryland v. Craig, 497 U.S. 836, 844 (1990); Perry v. Leeke, 488 U.S. 272, 283
n,7(1989); Kentucfy v. aimer, 482 U.S. 73ft 736 (1987); California v. Green. 399 U.S. 149, 158 (1970); Ford v.
Wainwright,477U.S. 399,415 (1986); lee v. Illinois, 476U.S. 530, 540 (1986); Watldns v. Sawders,449U.S. 341,348
n.4 (1981); Robert v. Ohio, 448 U.S. 56, 63 n.6 (1980); cf. United States v. Salerno, 505 U.S. 317,328 (1992)(Stevens,
J., dissentingX“Even if one does not completely agree with Wigmare's assertion... one must admit that in the AngloAmerican legal system cross-examination is the principal means of undermining the credibility of the witness whose
testimony is false or inaccurate.”).”
9
violence. Such an expert's knowledge of the ethical requirements would surely surpass that of the
average lawyer, who is authorized by statute to view the material in question. Any intrusion caused by
the ability of the defense to use an expert to aid in the preparation for trial is therefore de minimis.
Notably, La. R.S. 15:440.5 places no restrictions whatsoever upon the State's distribution of
protected interview material. They have the ability to show this same video they are fighting to prohibit
the defense from allowing an expert to view and hire the same expert themselves and show it to them.
Where is the justice in this? Unlike the defense, the State is limited only by the “protective order of the
court” required under La. R.S. 15. 440.6 - meaning that the State may freely grant access to an expert
witness or anyone not specifically named in the protective order. This gross disparity in who may
access the protected material fatally undermines any claim that an expert's access to the material would
present any meaningful intrusion into the life of the alleged vidim. For the reasons stated above, Mr.
Johnson asks that this Honorable Supreme Court of the United States address this Unconstitutional
violation to his Rights and grant relief as it sees fit.
Claim No, t: Whether Petitioner Sixth and Fourteenth Amendment to the United States
Constitution was Violated when Denied the Effective Assistance of Counsel at Trial and Appellate
Counsel on Appeal?
Mr. Johnson's counsel made three serious errors at trial that rendered him ineffective under the
Sixth and Fourteenth Amendments to the United States Constitution and under Article 1 §13 and 16 of
the Louisiana Constitution. First, Mr. Enright did not move to strike the improperly entered evidence of
Ms. Alex Person's testimony on the grounds that Ms. Person impermissibly asked leading questions of
A.D. during (he “Gingerbread Hearing.” Second, Mr. Enright failed to object to the enormous amount
of inadmissible hearsay that comprised the testimony of Ms. Kiersten Prochnow, a so-called “fart
witness” for (he State. Third, when, under the State's direction, Ms. Prochnow impermissibly exceeded
the scope of tertimony peimitted a feet witness and made a conclusion as to the ultimate issue of fart in
10
the ease - namely, whether or not Mr. Johnson had raped the alleged victim - Mr. Enright failed to
move for a mistrial. These three errors constitute ineffective assistance of counsel, because they not
only were so severe as to deprive Mr. Johnson of counsel, but they also deprived Mr. Johnson of atrial
whose result was reliable.
Ineffective assistance of counsel is governed by the familiar two-prong test set forth in
Strickland v. Washington,466 U.S. 668 (1984). In Strickland, the United States Supreme Court held
that in order to satisfy a claim of ineffective assistance of counsel,
the defendant must [first] show that counsel's performance was deficient. This
requires showing that 'counsel' guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. 'This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, atrial whose result is reliable.35
A single failure to preserve an error for appeal may be sufficient to constitute ineffective
assistant assistance of counsel under Strickland.27
Ms. Alex Person's Gingerbread testimony should not have been acfanissible. In addition to the
illegality of La R.S. 15:440.5(C), herein argued supra, (A)(4) of the same statute bars admission into
evidence when “the statement was ... made in response to questioning calculated to lead the protected
person to make a particular statement.”28 During his cross-examination of Ms. Person, Mr. Enright
clearly showed that Ms. Person's questioning ofA.D. was so calculated.29
However, Mr. Enright failed to move that the testimony be struck on these grounds. Instead, he
ended his questioning by stating that he had ‘Tost [his] train ofthought... [and] ha[d] nothing further. »30
Ms. Kiersten Prochnow's testimony also should have been excluded. Throughout her testimony,
Mr. Kiersten Prochnowrecounted the out-of-court statements that A.D. told her, such as her testimony
26 Stricklandv. Washington, 466U.S. 667,687-88 (19B4).
27 See, e,g., Davis v. Secretary, Dept, of Corrections, 341 F.3d 1310 (11* Qr. 2003)(hdding that counsel was ineffective
for failing to adequately preserve a Bafson daiiu for app ell ate review).
28 La. R.S. 15:440.S(A)(4).
29 Petitioner's Exhibit 5 -Transcript of Trial of Edward Keith Johnson. August 9, 2017, 102-03.
30 Id. at 103.
11
regarding AD.'s declaration when her counseling sessions involved the use of dolls.31 These statements
were hearsay, as they were, “statements] other than one made by the declarant while testifying at the
present trial or hearing, offered in evidence to prove the truth of the matter asserted.”32 The State
improperly elicited this testimony in order to further its claim that Mr. Johnson had sexually assaulted
A.D. Mr. Enright, with few exceptions, did not object to the content of Ms. Prochnow's testimony.36
The illegality of Ms. Prochnow's testimony culminated in her response to the State's question
“the action that [A.D.] showed you regarding the dolls.... Did that mean anything to you?”34 to which
she responded, “The actions meant that Ed raped him.”35 This statement was more than merely
exceeding her role as the alleged fact witness. Her given statement was a conclusion as to the ultimate
issue of fact at trial - whether Mr. Johnson had raped A.D. This is a violation of Louisiana evidence
law, which explicitly prohibits even an expert witness from providing an opinion as to the guilt of the
accused.36 Despite this clear illegality, Mr. Enright did not object on these grounds. Nor did Mr. Enright
move for either amistrial or juiy admonishment, which are the appropriate remedies in such
circumstances.37
Mr. Enright, despite his notable failure to object to the hearsay testimony of Ms. Prochnow,
nevertheless made timely objections to amultitude of illegal actions by the State at trial, including
31 Petitioner's Exhibit 5 -Transcript of Trial of Edward Keith Johnson, August 14,2017,23:3-7, 27:23-25.
32 L a. C.E. Art 801. Under La. C.E. Art 802, hearsay is inadmissible “ except as otherwise provided by this Code or other
legislation.” Ms. Prochnow's relaying of A.D.'s onl-of-court statements did not fall under any hearsay exception ar
exemption.
33 Mr. Enright properly obj ected to the State's illegal request for Ms. Prochnow to give an opinion as a fact witness. The
State inaccurately responded that because the State “intend[ed] to ask the witness what those actions represented to
her.... [tjhat goes to prraent sense impression.” Petitioner's Exhibit 5 - Transcript of Trial of Edward Keith Johnson,
August 14, 2017, 25:30-32; 26:1-20. In reality, present sense impression is defined by La. C.E. Art. 803(1) and is
limited to "[a] statement describing or explaining an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter.” Mr. Enright also coredly objected to Ms. Prochnow exceeding the
scope of what is permissible testimony for a fact witness. Petitioner's Exhibit 5 -Transcript of Trial of Edward Keith
Johnson, August H 2017, 35:9-24,25:26-30,
34 Petitioner's Exhibit 5 — Transcript of Trial of Edward Keith Johnson, August 14,2017,25:26-30.
35 Id at25:2L
36 La. C.E. Art 704.”[I]n a criminal case, an expert witness shall net express an opinion as to the guilt or Innocence of the
accused.”
37 La. C.Cr. P. Art. 77L
12
inter alia, that Ms. Prochnow's testimony had exceeded the scope of that which is permitted a fact
witness.38 However, the LouisianaAppellate Project (LAP) pursued only four assignments of error at
direct appeal. These four assignments were:
1.) there was insufficient evidence to support the conviction; 2.) the trial court
erred in denying [defense counsel's] request to allow an expat to review A.D.'s
Gingerbread House interview prior to trial; 3.) the trial erred in allowing the state
to reference other crimes evidence outside the scope of its LA. C.E. Art. 412.2
notice; and 4.) the trial court erred by denying [Mr. Johnson] the opportunity to
conduct a Daubert hearing as to Kiersten Prochnow's testimony.39
By failing to raise the critical issue of the scope of Ms. Prochnow's testimony, LAP deprived Mr.
Johnson of his right to counsel in appellate matters.
On two separate occasions, Mr. Enright objected to the testimony of Ms. Prochnow on the
grounds that her test im ony exceeded the scope of a fact witness.40 Ms. Prochnow's testimony was
derived exclusively from special counseling sessions with A.D. Throughout her testimony, Ms.
Prochnow stated that she had elicited an enormous amount of/evidence, including A.D.'s statements and
trust. She acquired this evidence through her analysis of alleged symptoms of abuse aid her use of
specific tools. These tools and methods of analysis were derived from the expertise, technical
knowledge, and training she obtained to become a trauma counselor.41 Though Mr. Enright objected,
Ms. Prochnow was allowed to give an expert opinion on the results of a psychological trauma session
as a fact witness.42
As the testimony continued, Mr. Enright again objected to Ms. Prochnow's continued use of
expert knowledge and training.'0 The prosecution had Ms. Prochnow review her own notes, which she
38 Petttiana's Exhibit 5 -Transcript of Trial of Edward Keith Johnson, August 14,2017,25:30-32; 26:1-20. Under Anide
701 of the Louisiana Code of Evidence, “[I]f the witness is not testifying as an expert, his testimony in the fonn of
opinion or inference is limited to those opinions ar inferences which are: (1) Rationally based on the perception of the
witness; and [2) Helpful to a dear undo-standing of his testimony or the determination of a feet in issue.”
39 Petitioner's Exhibit 5 - August 15, 2018 Second Circuit Notice of Judgment at 3.
40 Petitioner's Exhibit 5 -Transcript of Trial of Edward Keith Johnson, August 14, 2017, 35:9-24; 42:1-7.
41 See, e.g., Petitioner's Exhibit 5 -Transcript of Ttiai cf Edward Keith Johnson, August 14, 2017, 20:26-32; 21:1-9.
42 Id. at '35,9-24.
43 Id. at 42:1-7.
13
had written during several of her therapy sessions with A.D.44 These notes were taken during the
therapy sessions, while Ms. Prochnow employed psychological techniques to talk with A.D. and used
her past experience aid training to process the infoimation presented to her. At one point during her
testimony, Ms. Prochnow explained, in extensive detail, the process undertaken with A.D. During this
explanation, Ms. Prochnow relayed to the jury that she and A.D.:
Adjusted behavior chart, identified feelings where he experiences feelings in his
body, so sort of building that feelings vocabulary and having him identify where
he experiences anxiety or anger, and learned triggers, things that set him off or
make him angry in general or make him anxious and how he's able to recognize
his own— be in tune to his body and recognize when he feels upset/15
Ms. Prochnow then went on to state:
And so we learned about the cognitive triangle, which is simply how thoughts,
feelings and behavior are connected, and working on how you can change
certain thoughts to help you change your feelings which changes behavior. And I
taught him SUDS scales, which is just an acronym for the Subjective Units of
Distress Scale, which is just away of measuring how upset an I right now from 0
to 10/16 Ms. Prochnow's testimony, in part or in whole, could be given as an
expert witness.'17
However, the State, over repeated defense objections, repeatedly refused to characterize Ms.
Prochnow as anything other than afact witness. Accordingly, this testimony should not have been
admitted at trial. Though Mr. Enright preserved this matter on appeal, LAP did net bring a claim on
appeal that the testimony of Ms. Prochnow impermissibly exceeded her role as afact witness. Instead,
LAP only brought the issue of whether there needed to be a Daubert hearing prior Ms. Prochnow's
testimony as a “fact witness.” Even the Second Circuit noted in its writ denial that the writ request only
involved a Daubert hearing prior to any witness testimony, and that the scope of Ms. Prochnow's
testimony was not brought into question as an assignment of error.48
44 id. at 30:24-32.
45 Id at 34:2-9.
46 id. at 34:13-2 L
47 La. C.E. Art. 701.
48 Petitioner's Exhibit 6 -August 15, 2018 Second Circuit Notice of Judgment at 18. (“Johnson makes no argument on
appeal that Prochnow's testimony exceeded the scope of the state's agreement.”)
14
Ineff ective assistance of counsel extends to counsel on direct appeal through the Fourteenth
Amendment.'® The failure to bring assignment of error on direct appeal may constitute ineffective
assistance of counsel when there is clear error, properly objected to, in the trial phase or no strategic
decision exists to exclude assignment of error from appeal.50
In such cases, federal courts have held that:
the ineffectiveness prong of Strickland tums on whether at objectively
reasonable attorney would have presented the issue... because it had a
reasonable likelihood of success. In other words, this is the rare case where both
Strickland prongs turn on the same question, whether there is a reasonable
probability that the outcome of [an] appeal would have been different had [a
particular] issue raised.sl
Therefore, each claim must be examined under its likelihood to succeed given the appropriate standard
of review. The scope of a fact witness' testimony is a question of law and therefore is subject to de novo
review. To determine whether LAP was ineffective in such away that Mr. Johnson suffered prejudice, it
must only be shown there existed “a reasonable probability that the outcome of his appeal would have
been different had [an] issue been raised. 5 >52
The outcome of Mr. Johnson's appeal would have been significantly different had LAP extended
its assignment of error to include the scope of Ms. Prochnow's testimony. As put forth supra, Ms.
Prochnow's testimony was clearly outside the scope of what is permissible for a fact witness to
present.53 The Second Circuit made note of this in its denial of Mr. Johnson’s appeal:
Sinee the state agreed to present Ms. Prochnow as only a fact witness, and
limited her te&imony to what A.D. disclosed to her regarding the acts of sexual
abuse and who committed the acts, the trial court did not err in denying
Johnson’s motion to conduct a Daubert hearing. Mr. Johnson makes no appeal
that Ms. Prochnow's testimony exceeded the scope of the state’s
49 See Evitts v. Lacey, 469 US 387 (1985).
50 See e.g., United Stares v. Bass, 310F3d321 (EPCir. 2002); Overstreet v. Warden, 811 F3d 1283 (11* Cir. 2016); Lynch
v. Dolce, 789F.3d303 (2"* Cir. 2015); Sanders v. Cotton, 398 F3d 572 (7* Cir. 2005). See also Payne v. Stansberry,
760 F3d 10 (D.C. Cir. 2014).
51 Roev.Delo, 160 F3d 416,419 (tP Cir. 1998). See also Payne v. Stansberry, 760F.3d 10,14 (D.C. Cir. 2014).
52 Roe, 160 F,3d at 419.
53 La. C.E. Art. roilS
agreement.54
This indicates that the Second Circuit was well aware that Ms. Prochnow's testimony had
impermissibly exceeded what was allowed a fact witness. However, this indication is of much less
import than the clear statutory language of La. C.E. Art. 701, which the Second Circuit undoubtedly
would have correctly interpreted de novo mandate exclusion of the vast majority of Ms. Prochnow's
testimony. This exclusion, along with the appropriate exclusion of the Gingerbread House hearings
pursuant to the flagrant unconstitutionality of La. R.S. 15:440.5, would have left only the testimony of
an eight-year-old child, testimony by a Department of Child and Family Services worker that focused
on the home conditions of A.D.,55 and a coercive interrogation session as evidence for the State’s
prosecution of Mr. Johnson. While mere testimony by an alleged victim constitutes sufficient evidence
to convict a defendant, no reasonable juror would move to convict Mr. Johnson given paucity of
prosecutorial evidence weighed against the enormity of evidence offered by the defense, including the
inconsistency of statements by Deborah Norgaard and the timing ofA.D.’s initial allegation of abuse.56
The only relief possible in such a circumstance is the vacation ofMr. Johnson's conviction and
the setting of a new trial wherefore, Mr. Johnson Prays this Honorable Suprem e Court grant relief.
Claim No. 3: Whether Petitioner’s Fourteenth Amendment to the United States Constitution was
violated when Prosecutor withheld Brady Material?
There has been countless cases before this Honorable Supreme Court that has demonstrated the
unfortunate but substantial role that Brady violations repeatedly play in wrongful convictions. This
case is just another prime example of how the Louisiana District Attorneys undermine our justice
system by violation of Brady. The Brady violation that Mr. Johnson sustained shines an important light
on the willingness of prosecutors to circumvent the requirements of Brady. First, it confirms that
54 Petitioner's Exbihit 6 - August 15, 2018 Second Circuit Notice of Judgment at 18.
55 Petitioner's Exhibit 5 -Transcript of Trial of Edward Keith Johnson, August 10, 2017, 20-26.
56 Petitioner's Exhibit 5 - Transcript of TVial of Edward Keith Johnson, August 16,2017,48-50.
16
Louisiana prosecutors either do not understand ex' do not follow the commands of Brady in situations
where there can be no doubt as to its applicability: fabric samples for DNA Samples, Notes of Ms.
Prochnow, cell phone, laptop computer and a safe. To bring clarity to the mandate of Brady, this Court
should require that all documents in the possession or control of the Government that contain
information about testifying witnesses, such as the notes of Ms. Prochnow in Mr. Johnson's case,
should be automatically provided to defense counsel for use at trial, without filtration by Government
counsel on the grounds that the infoimation contained therein is either not exculpatory or not material.
Second, Brady violations are often discovered many years after a conviction, and in many cases
after the defendant has filed unsuccessful motions to set aside the conviction. When the courts of
appeal receive a petition for leave to file a successive motion to set aside a conviction under 28 U. S. C.
§ 2254 based on alleged Brady violations, they should be directed to require a substantive response
from the Government, so that there is an evidentiary basis to seek relief in the district court. The
procedure is especially important because the prosecutor alone knows why the Bratty material was not
produced at trial.
Third, because, as in this case, much Brad? material, is only uncovered long after a trial is
concluded, this Court should no longer require defendants to shoulder the heavy burden of proving that
the wrongly withheld evidence would have altered the outcome of the trial. Prosecutors already have
little enough incentive to turn over Brady material at trial, and if they fail to do so, the Prosecutor
should be required to explain why the failure did not affect the outcome, instead of imposing that
burden on the defendant, as the court below did in this case.
In violation of its ongoing prosecutorial obligation, the State failed to provide potentially
exculpatory evidence to the defense. During its investigation of Mr. Johnson, the state seized multiple
fabric samples for DNA testing, digital cam era files, cell phone, laptop computers, and a safe.57 Shortly
57 Petitioner's Exhibit 7 -May 27, 2015 Shreveport Police Department Narative Supplement.
17
before trial, after multiple supplementary requests for evidence, the State revealed that it had never
tested the fabric samples for DNA.58 At no point did the State provide the defense with the contents of
the camera, the cell phones, the laptop computers, or the safe. Hie State provided the defense with only
selected portions of Ms. Prochnow's notes. This prevented the defense from analyzing Ms. Prochnow's
notes in there entirety and adapting strategy accordingly.
The Fourteenth Amendment's requirement of due process mandates that the State provide all
evidence when that evidence is material and exculpatory.59 Whether evidence is “material” turns on
whether there exists “a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”60 The contents of the seized material could
seriously affect the credibility of A.D., Deborah Norgaard, and, correspondingly, the probability of a
different result in the proceeding. The contents of the computer, cell phones, camera, or safe might well
have evidence contradicting the testimony ofA.D. or Ms. Norgaard.
At present, the Caddo Parish District Attorney has declined to provide Mr. Johnson's with any of
the above material, refusing to even give Mr. Johnson a price for a Copy of the D.A. Files. It is
therefore impossible to determ ine what may constitute materially exculpatory evidence.
These undisputed facts are living proof of the conclusion drawn by then-Chief Judge Alex
Kozinski, dissenting from the denial of rehearing en banc in United States v. Olsen, 737 F.3d 625, 626
(0* Gr. 2013): “There is an epidemic of Brady violations abroad in the land. Only judges can put a
stop to it.” The documents withheld - Ms. Prochnow's notes, laptop computer, fabric samples for DNA
testing, cell phone, camera and safe - are plainly relevant in any criminal trial, especially when there is
no evidence beyond the trial testimony of the prosecution's witnesses. Defendant's are not required to
58 Petitioners Exhlhit 8 - August 16, 2017 Motion in Limine. It is notable that, although Mr. Enright tenaciously and
properly pursued evidence in this matter, the State's obligations under Brar^ would exist regardless of what is or is not
requested by the defense. See United States v. Agurs, 427U.S. 97 (1976).
59 Brady v. Maryland, 373 U.S, 83 (1963).
60 Stricter v. Greene, 527 US. 263, 280 (1999).
18
1
make a specific request for Brady material, and this Hon. Court has held that Brady applies to
impeachment as well as direct exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676
(1985). Thus, there can be no doubt that the material withheld in Mr. Johnson's case were Brady
material that should have been turned over for trial, and little doubt that had they been available to
defense counsel, the trial and almost certainly the verdict would have been very different.
CONCLUSION
Mr. Johnson's trial was irreparably damaged by the unconstitutional application of La. R.S.
15:440.5, by his deprivation of effective counsel at the trial and appellate levels, and by the Stat;s
refusal to provide material whose disclosure was required under Brady v. Maryland. These failures
deprived him of a fair trial whose result was reliable. Because a reasonable juror would not have
convicted Mr. Johnson but for these errors, Mr. Johnson should receive the appropriate remedy of a
new trial in which to properly present his case and have his Constitutional Rights afforded him.
The petition for a writ of certiorari should be granted.
Respectfully submitted,
EDWARD KEITH JOHNSON #379494
CAMP C BEAR 3
LOUISIANA STATE PENITENTIARY
ANGOLA, LOUISIANA 70712
Date: June 19,2024
19
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.