No.

16-15977

IN THE UNITED STATES COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

BOBBIE JEAN JOHNSON,

Petitioner,

v.

JIM ROGERS,
Warden, Louisiana Correctional Institute for Women,
Respondent.

___________________

PETITION FOR WRIT OF HABEAS CORPUS

BY A PRISONER IN STATE CUSTODY

___________________

Caroline Wallace Tillman La. Bar No. 31411

Cecelia Trenticosta Kappel, La. Bar No. 32736
The Promise of Justice Initiative
636 Baronne St
New Orleans, LA 70113
Tel: (504) 529 5955

Counsel for Bobbie Jean Johnson

 TABLE OF CONTENTS

PETITION FOR WRIT OF HABEAS CORPUS ........................................................................... 1

INTRODUCTION .......................................................................................................................... 1
OVERVIEW OF CURRENT PROCEDURAL POSTURE ........................................................... 3
STATEMENT OF FACTS ............................................................................................................. 4
A. The Crime ............................................................................................................................ 4
B. The Investigation and Ms. Johnson’s Arrest........................................................................ 5
C. What the Jury Heard ............................................................................................................ 7
D. What the Jury Never Heard................................................................................................ 11
1. Police located the murder weapon, or a gun they believed to be the murder weapon,
hidden in Kimberly Ligon’s house just over a week after the murder and several days before
the gun would be recovered from Ms. Johnson’s purse. Police left the gun in the residence.
11
2. The last known person seen with the victim, on the night of his death, matched
Kimberly Ligon’s physical description (and not that of Ms. Johnson)................................. 12
3. The NOPD received information pinpointing the victim’s time of death between
9:00PM and 9:30PM on Friday, July 15, 1977. .................................................................... 13
4. Neighbors who lived nearby The Mint (on the same side of the street) heard a gunshot
and screeching car tires coming from the alley behind the shop on the night of the crime. . 14
5. During the time period of the crime, Kimberly Ligon was in the process of being
evicted from her apartment due to a failure to pay rent. ....................................................... 15
6. Police spoke to someone with detailed information about the crime, but failed to include
this information in any formal report. ................................................................................... 15
7. The victim typically kept his safe open at night............................................................. 15
8. Identifiable fingerprints were recovered from the crime scene and these prints did not
belong to Ms. Johnson. ......................................................................................................... 16
9. Wendell McDonald gave the .32 H&R revolver to Elliot Marigny on July 26, 1977,
who then placed the gun in Ms. Jonson’s purse shortly before Ms. Johnson was pulled over
by police ................................................................................................................................ 16
10. Elliot Marigny told police that Kimberly Ligon knew about Wendell’s gun, but he did
not name Ms. Johnson as someone who shared this knowledge. ......................................... 16
11. Ms. Johnson may not have even known that Elliot Marigny was carrying a gun the
night she was arrested. .......................................................................................................... 17
12. Kimberly Ligon lied to the police when questioned................................................... 17
13. NOPD Detective Martin Venezia referred to Ms. Johnson as “bitch.” ...................... 18

i
 14. Within weeks of her confession, Ms. Johnson claimed that she confessed as the result
of police torture, including “bagging” wherein police placed a bag over her head and
threatened to suffocate her unless she agreed to confess to the crime. ................................. 18
15. The police officers involved in this case had numerous abuse of force complaints,
including some instances of “bagging,” as well as a gamut of other troubling behaviors. .. 19
16. Arthur Samson was stabbed repeatedly before he was shot. ...................................... 21
17. Arthur Samson was 59 years old and 5’6” tall—20 years older and half a foot shorter
than Ms. Johnson described in her alleged confession. ........................................................ 21
18. There was evidence within The Mint that sexual activity had taken place recently and
the police learned that the victim regularly solicited young, white prostitutes and entertained
them in the office of his business. The physical evidence strongly suggested that the
decedent died in the office of the building............................................................................ 22
19. The victim had a number of defensive wounds on his body. ..................................... 23
20. There was evidence that could have been used to impeach the claim that a knife was
ever found in Ms. Johnson’s purse or turned over to Detective Venezia, as Officer Dussett
testified at trial. ..................................................................................................................... 24
21. Ms. Johnson’s personal history made her particularly vulnerable to police pressure. 24
PROCEDURAL HISTORY.......................................................................................................... 24
CLAIMS FOR RELIEF ................................................................................................................ 27
CLAIM I. THE STATE VIOLATED ITS CONSTITUTIONAL OBLIGATIONS UNDER THE
DUE PROCESS CLAUSE, BRADY V. MARYLAND AND NAPUE V. ILLINOIS BY FAILING
TO DISCLOSE EXCULPATORY AND IMPEACHMENT EVIDENCE, AND KNOWINGLY
PRESENTING FALSE TESTIMONY SUCH THAT CONFIDENCE IN THE OUTCOME OF
THE TRIAL IS UNDERMINED.................................................................................................. 27
A. If the state courts do not grant Ms. Johnson relief, this claim will need to be considered on
the merits. .................................................................................................................................. 28
B. Ms. Johnson’s Brady claim has merit. ............................................................................... 28
1. The favorable evidence was in the State’s possession for nearly 40 years. ................... 28
2. The favorable evidence was suppressed......................................................................... 30
3. The collective materiality of the withheld favorable evidence completely undermines
confidence in Ms. Johnson’s conviction for first degree murder.......................................... 32
C. Ms.Johnson’s Napue claim has merit. ............................................................................... 36
CLAIM II. MS. JOHNSON DID NOT RECEIVE CONSTITUTIONALLY EFFECTIVE
ASSISTANCE OF COUNSEL. .................................................................................................... 36
A. If the state courts do not grant Ms. Johnson relief, this claim must be considered on the
merits......................................................................................................................................... 37
B. Ms. Johnson’s ineffective assistance of counsel claim has merit. ..................................... 37
1. Counsel failed to challenge the admissibility of his client’s confession. ....................... 37

ii
 2. Counsel failed to challenge the admissibility of evidence allegedly seized from his
client. ..................................................................................................................................... 39
3. Counsel failed to conduct investigation in this case. ..................................................... 40
4. Counsel barely represented his client at trial. ................................................................ 41
5. Counsel failed to challenge a biased juror. .................................................................... 41
6. Counsel failed to object to the mention of other crimes his client may have committed.
43
7. Counsel failed to object to the prosecutor’s repeated reference to facts not in evidence.
44
8. Counsel failed to draw the jury’s attention to favorable information. ........................... 45
9. Counsel’s failures undermine confidence in the outcome of the trial. ........................... 45
CLAIM III. THE PREJUDICE SUFFERED BY MS. JOHNSON DUE TO THE STATE’S
NON-DISCLOSURES AND HER ATTORNEY’S INEFFECTIVENESS COLLECTIVELY
ENTITLES HER TO RELIEF. ..................................................................................................... 45
CLAIM IV. MS. JOHNSON WAS CONVICTED BASED ON A COERCED CONFESSION IN
VIOLATION OF THE FIFTH AMENDMENT........................................................................... 46
A. If the state courts do not grant Ms. Johnson relief, this claim must be considered on the
merits......................................................................................................................................... 46
B. Ms. Johnson’s Involuntary Confession Claim Has Merit .................................................. 47
TIMELINESS ............................................................................................................................... 49
A. The factual predicate of Ms. Johnson’s Brady and Napue claims would not have been
discovered more than a year ago through the exercise of reasonable diligence so the claim is
timely under 28 U.S.C § 2244(d)(1)(D).................................................................................... 49
1. Relevant Law.................................................................................................................. 50
2. The State hid the relevant evidence for almost four decades. ........................................ 52
3. Ms. Johnson has spent her incarceration as an indigent with—until recently—no outside
help. ....................................................................................................................................... 53
4. Ms. Johnson has made diligent efforts to investigate her case from inside prison, but
these efforts were not enough to find the evidence that the State had in its possession. ...... 55
5. Ms. Johnson only recently obtained the investigative assistance that this case
necessitated. .......................................................................................................................... 57
6. The efforts necessary to obtain the evidence show it could not have been found earlier
by Ms. Johnson through the exercise of reasonable diligence. ............................................. 58
B. Ms. Johnson’s Application is timely under McQuiggin v. Perkins. .................................. 64
1. Relevant Law.................................................................................................................. 65
2. In light of the evidence now known, it is likely no reasonable jury would convict Ms.
Johnson. ................................................................................................................................ 66
C. Ms. Johnson is entitled to statutory tolling. ....................................................................... 70

iii
CONCLUSION ............................................................................................................................. 71

iv
 PETITION FOR WRIT OF HABEAS CORPUS

MAY IT PLEASE THE COURT:

Petitioner Bobbie Jean Johnson, by counsel, respectfully petitions this Court pursuant to

Article One, Section Nine of the United States Constitution, the Fourth, Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution, 28 U.S.C. § 2254, and other law set

forth below, to grant her relief from her unconstitutional conviction and sentence.

INTRODUCTION

This is Ms. Johnson’s first petition in the federal courts seeking habeas corpus relief. Ms.

Johnson is serving a life sentence for a crime she did not commit. Her conviction for the July 15,

1977, first-degree murder of Arthur Samson rested entirely on two pieces of evidence: a

confession she made to police and a gun that was found in her purse at the time of her arrest, ten

days after the crime occurred. Ms. Johnson’s confession was obtained by members of the New

Orleans Police Department (NOPD) with histories of use of force abuses. Since her first

opportunity to speak to a defense lawyer, at her first appearance, she has consistently asserted

that it was obtained through torture, including beatings by police officers, and efforts to suffocate

her using plastic bags placed over her head. This unreliable confession failed to correctly identify

significant details of the crime and portrayed a timeline of events that was implausible, if not

impossible. Ms. Johnson was convicted only because the State of Louisiana coerced an

involuntary confession from her through torture, withheld very favorable evidence from her

defense, knowingly presented false evidence to the jury, and appointed her a lawyer who failed

to provide even the bare minimum level of acceptable representation. Ms. Johnson was tried by a

jury containing a juror who knew the victim and was biased against her. As such, her conviction

was a violation of the Constitution, as expounded in, e.g., Brady v. Maryland, 373 U.S. 83

1
(1963), Napue v. Illinois, 260 U.S. 364 (1959), Strickland v. Washington, 466 U.S. 668 (1984),

and Irvin v. Dowd, 366 U.S. 717 (1961).

Before and during Ms. Johnson’s capital murder trial, the State maintained and presented

a version of the facts that represented the tip of the iceberg of the investigative efforts actually

undertaken. Police reports and handwritten notes—written by both NOPD Detectives and

Assistant District Attorneys under the Connick Administration of the Orleans Parish District

Attorney’s Office—were recently discovered by Innocence Project New Orleans (IPNO)1 in the

District Attorney’s and NOPD’s files. These documents painted a dramatically different picture

of events than what the jury in Ms. Johnson’s 1978 trial was ever made privy to, including

information that undermined the accuracy of Ms. Johnson’s confession and neutralized her

possession of the murder weapon. As briefed in more detail below, these facts were not heard at

trial because the State suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963), knowingly presented false evidence, in violation of Napue v. Illinois, 260 U.S. 364

(1959), and Ms. Johnson’s attorney failed to perform as a constitutionally adequate

representative, in violation of Ms. Johnson’s right to the effective assistance of counsel as

defined by Strickland v. Washington, 466 U.S. 668 (1984).

As discussed in detail below, at pages 53 to 69, the factual predicates for Ms. Johnson’s

claims under Brady, Napue and the new element of her Strickland claim and Fifth Amendment

coerced confession claim could not have been discovered previously through the exercise of due

diligence. Until IPNO investigated the case, Ms. Johnson—who, before her arrest, was an
1
Innocence Project New Orleans is a nonprofit law firm that provides investigation and litigation services
to wrongfully convicted, indigent men and women incarcerated in Louisiana and Southern Mississippi.
Due to limited resources, IPNO is unable to accept every case it investigates for litigation, which has
resulted in the undersigned counsel signing on to litigate this matter. IPNO strongly believes that Ms.
Johnson has meritorious legal claims and, if resources were no issue, IPNO itself would be conducting
litigation on Ms. Johnson’s behalf. (Ex. 40).

2
indigent young woman forced into drugs and prostitution by a series of older men—never had

anyone to properly investigate her case. Her own extensive efforts to obtain documents from law

enforcement agencies and courts, through both correspondence and litigation, failed to yield

results, and it was not until IPNO began investigating that this critical new evidence was

uncovered. These claims are filed within one year of Ms. Johnson’s discovery of the underlying

facts and are therefore timely under 28 U.S.C. § 2244(d)(1)(D). Timeliness for all these claims is

also satisfied because the evidence also establishes that, but for each of these constitutional

errors, no reasonable juror would have found Ms. Johnson guilty beyond a reasonable doubt. See

McQuiggin v. Perkins, 133 S. Ct. 1924 (2013). See also 28 U.S.C. §§ 2244(b)(2)(B)(ii).

On information and belief, Ms. Johnson filed a state post-conviction application many

years ago, which was never adjudicated, which in itself may have statutorily tolled the statute of

limitations rendering all claims timely.

Ms. Johnson respectfully requests that this Court hear her claims for relief and grant her

relief from her conviction, sentence and incarceration.

OVERVIEW OF CURRENT PROCEDURAL POSTURE

This Petition contains claims that are, at the time of filing, unexhausted. These claims

have been presented in an application for state post-conviction relief pending before the Orleans

Parish Criminal District Court, Case No. 261-130, division “F”. 2 Upon filing this Petition,

Petitioner will move to stay her federal claims and hold them in abeyance until the state courts

are given an opportunity to rule.

Ms. Johnson is filing this Petition at this time because, as noted above, the factual

predicate of most of her claims were discovered one year ago and under the timeliness provisions

2
The state post-conviction petition was filed on this date, October 31, 2016.

3
of 28 U.S.C. § 2244(d)(1)(D), they must be filed within a year. Although Ms. Johnson has also

filed a state post-conviction application, she cannot rely on that filing to secure statutory tolling

under 28 U.S.C. § 2244(d)(2) while she exhausts her claims because, if such an application is

ultimately found untimely under the state time bar (La. C. Cr. P. art. 930.8), she will not be

entitled to statutory tolling during its pendency. See Pace v. DiGuglielmo, 544 U.S. 408 (2005).

In these circumstances, filing and then seeking to stay a “protective” habeas application is

the mechanism the Supreme Court advises an applicant to utilize. Id. at 416; see also Rhines v.

Weber, 544 U.S. 269 (2005). The Fifth Circuit has recognized the efficacy of this approach.

Wardlaw v. Cain, No. 06-30803, 2008 U.S. App. LEXIS 17155 at *8 n.2 (5th Cir. Aug. 12,

2008); Hayes v. Wilson, 268 Fed. Appx. 344, 350 n.6 (5th Cir. 2008); Howland v. Quarterman,

507 F.3d 840, 846 (5th Cir. 2007). It is for this reason—to protect her right to have her first

Habeas Petition reviewed on the merits—that Ms. Johnson files this unexhausted Petition. Ms.

Johnson reserves the right to supplement this Petition in the event of denial of relief by the state

courts, in order to address the relevance of any state court adjudications on her entitlement to

relief in federal court, such as the reasonableness of a state court merits adjudication under §

2254(d), as well as to address any further evidence relevance to the timeliness of this Application

or merits of the claims developed during the course of the state court proceedings.

STATEMENT OF FACTS

A. The Crime

Arthur Samson, age 59, was found dead inside his 1130 St. Charles Avenue store, The

Mint, an antiquities and coin shop. (Ex. 2 at 6). Mr. Samson’s body was discovered on the

morning of July 16, 1977. (Ex. 2 at 4). The victim had been shot once and stabbed around 100

times, including on his arms, back, stomach, chest, hands and neck. (Ex. 2 at 7). Many of the stab

wounds were extremely deep, actually puncturing the stomach, lungs, and other internal organs.

4
(Ex. 2 at 7). The gunshot wound was a single shot, likely fired at close range, to the upper right

chest with no visible exit wound. (Ex. 2 at 7).

The store appeared ransacked in some areas, with chairs kicked over in the office room of

the store. (Ex. 1 at 42). A wardrobe-style safe kept in the rear storage room of the building was

opened; around $2000 in cash was seemingly missing. (Ex. 1 at 41, Ex. 2 at 10).The victim’s

pants pockets were also turned out from his pants. (Ex. 2 at 6-7). NOPD Detective John Kastner

was assigned to investigate the case. (Ex. 2).

B. The Investigation and Ms. Johnson’s Arrest

At the same time that Detective Kastner was assigned the Samson homicide, a high-

profile murder case was also being investigated in New Orleans. On July 6, 1977, a young

woman named Robyn Seymour was home from college when she was abducted, raped, and

murdered. (Ex. 25). NOPD Detectives Martin Venezia and Dale Bonura were assigned to the

case, along with many other officers who were under their direction, including Detective Thomas

Woodall. (Ex. 25). Detectives determined that Robyn Seymour was killed by a .32 caliber

revolver. (Ex. 2 at 11).

Detective Kastner learned that Arthur Samson was also shot by a .32 caliber revolver.

(Ex. 2 at 12).

On July 26, 1977, around 2:00AM, Bobbie Jean Johnson was the passenger in a Grand

Prix car that was pulled over by NOPD Urban Squad officers for traffic violations near the St.

Bernard Housing Project. (Ex. 2 at 10, Ex. 25 at 29). Wendell McDonald was the driver and

Elliot Marigny was the backseat passenger, seated behind Ms. Johnson. (Ex. 2 at 10, Ex. 25 at

30). Police learned that the license plate number did not correspond with the vehicle and that the

vehicle itself was reported as stolen during the commission of an aggravated rape. (Ex. 2 at 10,

5
Ex. 25 at 29). Police searched the car incident to arrest and recovered a .32 caliber H&R revolver

from Ms. Johnson’s purse.3 (Ex. 2 at 10-12, Ex. 25 at 30).

Officer Dussett turned the revolver over to Detective Venezia. (Ex. 2 at 10, Ex. 25 at 34).

Ballistics analysis performed by Officer Allen Tidwell of the NOPD crime lab on the pellets

recovered from both the Seymour and Samson homicides revealed that the pellets came from a

.32 caliber revolver, and all had been fired from the same gun. (Ex. 2 at 11, Ex. 25 at 41).

Further, Officer Tidwell concluded that the revolver recovered from Ms. Johnson’s purse was a

match to the weapon that had fired the pellets in these two homicides. (Ex. 2 at 11, Ex. 25 at 41).

On July 26, 1977, Bobbie Jean Johnson made several, very similar, statements to police.

(Ex. 2 at 11-12, Ex. 25 at 35-38, Ex. 18). Ms. Johnson admitted that the Grand Prix car she was

arrested in was stolen from a white woman after Thomas Marquez (T-Bell) had sex with the

woman. (Ex. 18). Ms. Johnson told police that the gun recovered from her purse was placed there

by Elliot Marigny. (Ex. 18). Ms. Johnson went on to say that Elliot Marigny gave Kimberly

Ligon this gun on July 15, 1977 and Kimberly Ligon returned it to him on July 24, 1977. (Ex.

18). Ms. Johnson told police that on July 16, 1977, Kimberly Ligon had bragged about shooting

a white man the previous evening, for a large amount of money. (Ex. 18). When Ms. Johnson

expressed disbelief in the story, she said that Kimberly Ligon showed her a gun that she claimed

she had used. (Ex. 18). Ms. Johnson confirmed that Kimberly Ligon was a prostitute who picked

up tricks on St. Charles Avenue, from the area around her house. (Ex. 18). During this interview

Detective Kastner questioned Ms. Johnson if Kimberly Ligon had ever mentioned a white man

on St. Charles that she was turning tricks for. (Ex. 18).

3
Detective Venezia had made it widely known that the Seymour murder was committed with a .32 caliber
weapon and so NOPD officers had been taking special care to make note of these weapons when they
were located. (Ex. 2 at 11, Ex. 16).

6
 At the conclusion of these interviews, NOPD officers took action on Ms. Johnson’s

information and sought out Kimberly Ligon. (Ex. 2 at 13-14, Ex. 25 at 42). Detectives Kastner

and Venezia, as well as Sgt. London, located Kimberly Ligon at the home of Betty Taylor and

brought her in for questioning. (Ex. 2 at 13-14). Kimberly Ligon refused to make a statement

about her knowledge of the .32 H&R revolver and denied having any role in the Samson

homicide. (Ex. 2 at 14). She did admit to committing an unrelated armed robbery and was

processed and booked on that charge only. (Ex. 2 at 14). This interview was not recorded or

transcribed.

On August 3, 1977, at 9:43 P.M., Detectives Venezia and Bonura signed Ms. Johnson out

of jail custody and brought her to the Criminal Investigation Division for additional questioning.

(Ex. 2 at 14). During this questioning, Ms. Johnson told the detectives that she wished to make a

complete statement concerning the Samson homicide to Detective Kastner. (Ex. 2 at 14). On

August 4, 1977, Ms. Johnson made a taped confession to the Samson homicide to Detectives

Kastner and Woodall. (Ex. 2 at 15). Ms. Johnson was returned to jail at 3:10AM. (Ex. 2 at 15).

As Ms. Johnson consistently has maintained, since she was first able to speak to an attorney at

her first appearance, her confession was coerced after being beaten and suffocated with plastic

bags over her head, by the police. (Ex. 28).

C. What the Jury Heard

At trial, the case against Ms. Johnson consisted entirely of the confession she gave to

Detectives John Kastner and Thomas Woodall in the early morning hours of August 4, 1977, and

the presence of the .32 caliber H&R revolver found in her purse at the time of her arrest. No

other physical evidence connected Ms. Johnson to the murder and there were no eyewitnesses to

7
the crime. The State’s theory of the case very closely tracked Ms. Johnson’s confession, though

occasionally attempted to expand Ms. Johnson’s role.4

The case was tried in October of 1978, slightly over a year after the murder. ADA Joseph

Roberts conducted the capital prosecution. (Ex. 1 at 3). In his opening statement, ADA Roberts

told jurors that Ms. Johnson was found with a gun and a knife in her purse, but that the knife was

subsequently lost. (Ex. 1 at 23). He went on that he would “present to you the murder weapon,

the gun that was used. The knife was lost; we don’t have the knife. But Officer Doucet [sic.] will

tell you he did recover the gun and the knife from Bobby Jean’s purse.” (Ex. 1 at 23).

The first witness, a pathologist who conducted the Samson autopsy, testified as to the

manner of death. (Ex. 1 at 26). The pathologist confirmed that the victim was stabbed over 101

times and shot once in the stomach; he retrieved a pellet during the autopsy. (Ex. 1 at 26). ADA

Roberts introduced the autopsy findings report and pellet as evidence. (Ex. 1 at 26-27).

Next, the jury heard from NOPD Officer Mitchell Doucet, who testified that Ms. Johnson

was the passenger in a car he had pulled over during a traffic stop. (Ex. 1 at 29). He testified that

when he searched her purse, he recovered a .32 H&R revolver and a knife. (Ex. 1 at 29-30). He

claimed that he turned over both the gun and the knife to Detective Venezia. (Ex. 1 at 30). Next,

NOPD Officer Allen Tidwell testified that he had received the .32 H&R revolver from Detective

Venezia, as well as the pellet from the Samson autopsy. (Ex. 1 at 34). Officer Tidwell confirmed

that the gun he tested was the same gun that had fired the Samson pellet. (Ex. 1 at 35).

Next, Detective Kastner testified. (Ex. 1 at 37). He described the general state of the

scene, including that it appeared to have been rummaged through and the safe was opened. (Ex.

4
For instance, at one point, ADA Roberts opined that “Maybe [Ms. Johnson] did the stabbing herself
because she was the one caught with the knife. Who knows?” (Ex. 1 at 72).

8
1 at 38-39). Kastner described finding the victim face up in the office area, with the pockets of

his pants pulled out. (Ex. 1 at 38). Detective Kastner testified that no useable fingerprints were

recovered from the scene. (Ex. 1 at 42). Detective Kastner told the jury that he questioned Ms.

Johnson twice, once on July 26th and again on August 4, 1977, when she voluntarily confessed to

the crime. (Ex. 1 at 42-43).

Finally, the entirety of Ms. Johnson’s taped confession was played for the jury, without

defense objection. (Ex. 1 at 45-63). Within the confession, Ms. Johnson discussed her

involvement in other crimes. In summary, she explained that she and Kimberly Ligon were in the

French Quarter when Kimberly Ligon was solicited by the victim. (Ex. 1 at 47). The victim

picked up Kimberly Ligon in a cab and she directed Ms. Johnson to follow the cab in a stolen

Grand Prix car. (Ex. 1 at 48). Upon reaching The Mint, a location that Ms. Johnson claimed that

Kimberly Ligon said she had been casing out, the women went inside the store. (Ex. 1 at 48). As

Ms. Johnson stayed in the front of the store, acting as a lookout, Kimberly Ligon told Ms.

Johnson to pull the gun on the victim, and then took the gun from Ms. Johnson and led the victim

to the safe in the rear of the store and demanded that he open the safe. (Ex. 1 at 48). After taking

money from the safe, Kimberly Ligon placed the money in Ms. Johnson’s purse and kept the

purse. (Ex. 1 at 48, 52). After the robbery, Ms. Johnson said that Kimberly Ligon then told the

victim that they could start “tricking” behind the counter area of the store. (Ex. 1 at 48-49). As

Kimberly Ligon and the victim were tricking, she told Ms. Johnson to shoot the victim and Ms.

Johnson shot him twice. (Ex. 1 at 49). Kimberly Ligon then stabbed the victim repeatedly. (Ex. 1

at 49). Kimberly Ligon and Ms. Johnson left out the front door of the store and ran across the

street to where Ms. Johnson had parked the stolen car. (Ex. 1 at 50).

9
 At closing, ADA Roberts reiterated that the murder weapon was found in Ms. Johnson’s

purse. (Ex. 1 at 69). Roberts reminded the jury of Ms. Johnson’s confession and, having

apparently recognized a discrepancy between the confession and the autopsy finding, told the

jury:

When a man is laying [sic] on the ground and you point a gun at him and shoot
him in the chest and try to shoot him in his head, but apparently missed, by her
own admission. The Coroner found only one hole, one pellet, so apparently she
missed. That’s why Detective Kastner found no other evidence in the Mint. You
could see from the pictures the clutter in that place, and finding a little pellet
would be almost impossible to recover, in fact, when it hit the floor it probably
got destroyed.

(Ex. 1 at 71). Lastly, ADA Roberts harped on the fact that—despite having no knife to present in

court—Ms. Johnson was found with a knife in her purse and that “we didn’t present it to you

today because it was lost, but by her own admission in the statement, she did have a knife. She

was the one caught with the murder weapon; she was the one caught with the knife, in that

statement, and that statement was freely and voluntarily given.” (Ex. 1 at 71).

During the trial, Ms. Johnson’s appointed counsel, Thomas Baumler, accepted every

juror, Ex. 1 at 11-20, presented no witnesses, Ex. 1 at 65, delivered no opening or closing

remarks, Ex. 1 at 24 and 73-75, presented no case theory, made only one objection (to the

admission of a photograph), Ex. 1 at 64-65, and asked a total of nine cross examination

questions—the majority of which dealt with the type of microscope used by Officer Tidwell.

(Ex. 1 at 35-36). The jury took less than one hour to render a guilty verdict, but was unable to

reach a decision in the penalty phase, thus sparing Ms. Johnson’s life. (Ex. 1 at 86). ). Mr.

Baumler even failed to take action when it became apparent that a biased juror was seated on the

jury. Part way through the trial, a juror realized she knew the victim, and doubted her ability to

remain partial. The following exchange between the trial court and juror demonstrated the juror’s

lack of indifference towards the case and victim

10
 COURT: Yes, ma’am? (A juror had raised her hand.)

JUROR: I think I know the person he’s talking about. I didn’t know the person at
first. I know he was a coin dealer, Mr. Samson.

COURT: Well, you’ve been sworn and accepted. We have no alternative but to
proceed. You nonetheless can be fair and impartial in judging this case?

JUROR: That’s what I say. I don’t know. He was on Tulane at one time and then
he moved.

COURT: You just know him in passing?

JUROR: No, I used to go deal with him.

(Ex. 1 at 40). The inclusion of jurors who have provided similar responses has been found to

compromise a defendant’s right to an impartial jury. See, e.g., United States v. Thompson, 744

F.2d 1065, 1067 (4th Cir. 1984) (involving juror’s statement “I am just not sure that I could be

totally fair”). Yet Ms. Johnson’s counsel sat idly by.

D. What the Jury Never Heard

Jurors in Ms. Johnson’s trial were presented with only a tiny fraction of the evidence

available in this case. Evidence obtained since Ms. Johnson’s trial totally undermines the State’s

case and strongly corroborates Ms. Johnson’s defense—that she is completely innocent of this

crime, and that evidence strongly points to Kimberly Lignon as being the true perpetrator. The

circumstances under which the new evidence was obtained are detailed below in Section VI. The

import of the unheard evidence is laid out below.

1. Police located the murder weapon, or a gun they believed to be the murder
weapon, hidden in Kimberly Ligon’s house just over a week after the murder
and several days before the gun would be recovered from Ms. Johnson’s
purse. Police left the gun in the residence.

On Saturday, July 23, 1977, police searched Kimberly Ligon’s apartment and found a .32

H&R revolver hidden under a pile of dirty clothes in a closet. (Ex. 5 at 15-17). The State

believed that this was the same gun used to commit the Samson murder. (Ex. 13). The murder

11
weapon was found in Ms. Ligon’s home only eight days after the homicide and several days

before it would eventually be recovered from Ms. Johnson’s purse. Thus, the first time that

police became aware of the gun’s location after the commission of the Samson homicide, it was

in Kimberly Ligon’s possession.

Aside from drawing attention to Ms. Ligon’s potential role in the murder, this

information also contradicted a portion of Ms. Johnson’s confession, wherein she claimed that

she returned the gun to Elliot Marigny the morning after the crime. (Ex. 1 at 56). Instead, the

presence of the gun in Kimberly Ligon’s possession on July 23, 1977, seemed to support the

truthfulness of Ms. Johnson’s original statement to police officers, given on July 26, wherein she

told police that Ligon gave the gun back to Elliot Marigny on July 24, 1977. (Ex. 18 at 3).

2. The last known person seen with the victim, on the night of his death,
matched Kimberly Ligon’s physical description (and not that of Ms.
Johnson).

On August 9, 1977, at 1:30PM, Detective Kastner conducted an interview with Byron

Bacon, a United cab driver for taxi #1811. The driver described picking up a man and a woman

and bringing them to The Mint on St. Charles Avenue in the evening, after 8:00PM. (Ex. 5 at 18-

19). The couple was described as a white man and white woman, with the man being “not fat but

heavy set,” around 45 to 50 years old, and wearing shirt and pants, but not a suit. (Ex. 5 at 19).

Arthur Samson was a white man, around 203 pounds and 5’6” tall. (Ex. 19). At the time of his

death, he wore a white short sleeved shirt and brown pants, but no jacket. (Ex. 5 at 11).

The woman was described as being 27 to 30 years old, a thin, white female, around 5’10”

tall with an elongated neck, tan complexion, cleanly dressed with her hair up. (Ex. 5 at 19).

12
Kimberly Ligon was a white woman, age 26, who stood 5’9” tall and weighed 135 pounds.5 (Ex.

20). Photographs of Kimberly Ligon contained within the police files depict a woman with a

long neck and tan complexion. (Ex. 21, Ex. 22, Ex. 23).

Detective Kastner’s notes made no mention of another car following the taxi to The Mint.

(Ex. 5 at 19). Neither was there mention that the white woman stopped to talk to anybody else

before getting in the cab with the man. Notably, this interview was completely absent from

Detective Kastner’s official police report, despite the fact that the official report was dated

September 1, 1977 and the interview occurred several weeks earlier. (Ex. 2).

3. The NOPD received information pinpointing the victim’s time of death

between 9:00PM and 9:30PM on Friday, July 15, 1977.

Police received a series of information that allowed them to determine that the Samson

homicide occurred on Friday, July 15, 1977, sometime between 9:00PM and 9:30PM. Police

learned that, on the evening of his death, the victim planned to leave The Mint and have dinner

with his cousin. (Ex. 2 at 5; Ex. 5 at 9). The victim spoke to his cousin on July 15 sometime

between 6:30PM and 8:30PM, but when his cousin attempted to call him again, between 9:00PM

and 9:30PM, no one answered the phone at the shop. (Ex. 5 at 8).

A friend of the victim told police that he had a habit of having sexual relations with

prostitutes in the office of his shop once or twice a week, “always 8-9 o’clock at night when he

would let girls in.” (Ex. 5 at 5).

A cab driver who drove a man matching Arthur Samson’s description to The Mint on the

night of the crime, estimated that he dropped him off sometime after 8:00PM. (Ex. 5 at 18-19).

5
In contrast, in 1977, Bobbie Jean Johnson was a 20 year old African American woman who stood 5’1”
tall and weighed 110 pounds. (Ex. 20).

13
 During a canvass of the scene conducted the day after the homicide, two witnesses who

lived nearby to The Mint described hearing gunshots between 9:00PM and 9:30PM on July 15,

1977. (Ex. 3). Both witnesses heard the gunshots and the sound of a car screeching out of the

back alley behind the rear of The Mint. (Ex. 3).

The totality of this evidence demonstrated to police that the murder of Arthur Samson

happened between 9:00PM and 9:30PM on Friday, July 15, 1977. The time of the offense is

important because it invalidates portions of Ms. Johnson’s confession. Ms. Johnson’s confession

indicates that the crime happened much later in the evening than it actually did. (Ex. 1 at 62). For

example, in her confession, Ms. Johnson told police that she and Lignon picked up the victim in

the French quarter around 10:30 P.M. or 11:00 P.M., and that the crime took place within the

hour or two following that. (Ex. 1 at 64). Additionally, Ms. Johnson told police that she drove the

stolen Grand Prix to The Mint and used this same car as a get-away vehicle after the crime had

occurred. (Ex. 1 at 48, 50). The Grand Prix was not stolen until around 4:00 A.M. on Saturday,

July 16, 1977. (Ex. 12). Thus, not only was Ms. Johnson incorrect about the time that the crime

took place, but the actual timeline rendered other aspects of her confession impossible.

4. Neighbors who lived nearby The Mint (on the same side of the street) heard a
gunshot and screeching car tires coming from the alley behind the shop on
the night of the crime.

Canvassing detectives spoke to two neighbors who both lived in buildings on the same

side of the street as The Mint. (Ex. 3). Both witnesses told police that they heard gunshots and

screeching car tires of a car speeding off coming from the alleyway behind The Mint on the night

of July 15, 1977. (Ex. 3). This information contradicted Ms. Johnson’s confession, which

describes Ms. Johnson and Ms. Ligon racing across St. Charles Avenue (to the side of the street

opposite The Mint) to reach the get-away car that Ms. Johnson had parked prior to the crime.

(Ex. 1 at 50, 53, 59). The neighbors police spoke with were certain that the screeching car noises

14
they heard came from the alleyway behind the buildings, which coincidentally was also the area

nearest to the room where the safe was kept. (Ex. 3, Ex. 5 at 12).

5. During the time period of the crime, Kimberly Ligon was in the process of
being evicted from her apartment due to a failure to pay rent.

During the course of the NOPD’s investigation of the Samson homicide, Detective

Kastner learned that Kimberly Ligon and her boyfriend, Charles Lee Holmes, were in the process

of being evicted from their apartment building due to nonpayment of rent. (Ex. 7). The police

learned that the pair had failed to pay their $70.00 rent on July 9, 1977 and were in the process of

being evicted at the time the crime occurred. (Ex. 7).

6. Police spoke to someone with detailed information about the crime, but failed
to include this information in any formal report.

Notes within the NOPD’s Samson homicide file demonstrated that Detective Kastner

spoke to someone with intimate knowledge of the crime. Specifically, a note stated “yellow red

white halter top, blue jeans – (blood), took clothes off at Betty house.” (Ex. 5 at 21). There is no

reason to believe that this information originated from Ms. Johnson, as it is a level of specifics

not included within her confession or any of her other documented statements. (Ex. 1 at 46-63,

Ex. 18). Given that the confession was recorded after nearly five hours of interrogation and

discussion of the crime, had this level of detail been available, it certainly would have been

included.

7. The victim typically kept his safe open at night.

One of the decedent’s close friends, Ralph Miller, contacted the police with information

about the victim’s habits and patterns concerning his business. (Ex. 8). Mr. Miller advised that

the victim “usually” kept the safe in his store open at night. (Ex. 8). This information is notable

15
in that it contradicted Ms. Johnson’s confession, wherein she claimed that Kimberly Ligon

forced the victim to open his safe during the commission of the crime. (Ex. 1 at 48).

8. Identifiable fingerprints were recovered from the crime scene and these
prints did not belong to Ms. Johnson.

Detective Kastner testified at trial that there were “no surfaces that would yield

fingerprints suitable for identification purposes” found within The Mint. (Ex. 1 at 42). However,

in reality, the NOPD lifted three fingerprints from the crime scene that were suitable for

comparison and, when compared, were found not to match Ms. Johnson. (Ex. 10).

9. Wendell McDonald gave the .32 H&R revolver to Elliot Marigny on July 26,
1977, who then placed the gun in Ms. Jonson’s purse shortly before Ms.
Johnson was pulled over by police

Elliot Marigny was the backseat passenger seated behind Ms. Johnson when they were

pulled over during a traffic stop on July 26, 1977. (Ex. 2 and 11). Just prior to the traffic stop

being conducted, Elliot Marigny placed a .32 H&R revolver in Ms. Johnson’s purse. (Ex. 13, Ex.

17, Ex. 25). Elliot Marigny, in a signed written statement to Detective Venezia on July 26, 1977,

confirmed that he had possession of the revolver and placed it in Ms. Johnson’s purse as they

were being pulled over by police.6 (Ex. 17, Ex. 18). Marigny told police that the gun belonged to

Wendell McDonald and had been loaned to him by McDonald. (Ex. 15 and 17).

10. Elliot Marigny told police that Kimberly Ligon knew about Wendell’s gun,
but he did not name Ms. Johnson as someone who shared this knowledge.

6
At trial, jurors listened to Ms. Johnson’s confession and heard her say that Elliot Marigny had placed the
gun in her handbag. (Ex. 1 at 57). However, as presented to the jury, this could have been a self-serving
statement completely uncorroborated by any other testimony or evidence. Jurors had no reason to believe
or even suspect that Elliot Marigny had independently corroborated Ms. Johnson’s account to the
authorities. Additionally, ADA Roberts stressed the importance of the fact that the murder weapon was
found in Ms. Johnson’s possession in her purse throughout his closing argument. (Ex. 1 at 69).

16
 Detective Venezia’s handwritten notes regarding his interview with Elliot Marigny on

July 26, 1977, demonstrated that Marigny named Kimberly Ligon as being amongst the

“witnesses who knew Wendell had gun.” (Ex. 15). Notably, Ms. Johnson’s name is not included

within this list of people who had knowledge of the murder weapon’s existence according to

Elliot Marigny. (Ex. 15). This evidence also negates a portion of Ms. Johnson’s confession,

where she claimed that Elliot Marigny had given her the gun on the night of the murder and that

she gave him back the gun on Saturday morning (Ex. 1 at 55-56). If Elliot Marigny had actually

given Ms. Johnson the weapon prior to the murder, as she confessed, he certainly would have

realized that Ms. Johnson was also a witness who had knowledge of the gun.

11. Ms. Johnson may not have even known that Elliot Marigny was carrying a
gun the night she was arrested.

There is evidence to suggest that, on the night she was arrested, Ms. Johnson may not

have even been aware that anyone in the car was carrying a weapon. A witness actually saw

Wendell McDonald hand the gun to Elliot Marigny earlier that evening and described that Ms.

Johnson “may not have seen the gun change hands, because she was a little ways off to the side.”

(Ex. 14 at 4).

12. Kimberly Ligon lied to the police when questioned.

On August 9, 1977, police questioned Kimberly Ligon. (Ex. 6). The notes from this

conversation are the only contemporaneous notes or statements from any of the police’s

conversations with Kimberly Ligon. During this conversation, Kimberly lied multiple times. (Ex.

6). She told police that she met Ms. Johnson on July 22, 1977. (Ex. 6). She also lied when she

claimed to have just moved into an apartment with Charles Lee Holmes (her boyfriend) on July

23, 1977 at 5:00PM—conveniently just hours before police located a .32 H&R revolver in her

17
house. (Ex. 6). In contrast, in Ms. Johnson’s first statement to police, made on July 26, 1977, she

told police a number of things that police later confirmed as being truthful. (Ex. 18).

13. NOPD Detective Martin Venezia referred to Ms. Johnson as “bitch.”

Detective Venezia referred to Ms. Johnson as “bitch” twice in handwritten notes located

within the rape and Grand Prix armed robbery file. (Ex. 11). The jury never heard this abusive

language towards Ms. Johnson from one of the Detectives who spoke to her at the time she,

supposedly, requested to confess. (Ex. 2 at 14).

14. Within weeks of her confession, Ms. Johnson claimed that she confessed as
the result of police torture, including “bagging” wherein police placed a bag
over her head and threatened to suffocate her unless she agreed to confess to
the crime.

The jury never heard Ms. Johnson’s consistent claim that her confession was obtained

through police torture. Specifically, Ms. Johnson made consistent claims that she underwent

“bagging,” wherein police officers placed a plastic bag over her head and threatened to suffocate

her until she agreed to make a confession by repeating the facts she was told and shown. On

August 4, 1977, shortly after Ms. Johnson’s booking for the Samson homicide, she was

appointed OIDP attorney Kerry Cuccia for purposes of first appearances. (Ex. 28). Mr. Cuccia

filed for a preliminary hearing on Ms. Johnson’s behalf. (Ex. 27). Mr. Cuccia recalled Ms.

Johnson telling him that she confessed as the result of NOPD officers placing a bag over her

head and attempting to suffocate her. (Ex. 28). Ms. Johnson told Mr. Cuccia that she was

innocent and that she had confessed only to stop the torture. (Ex. 28).

Mr. Cuccia recalled not only believing Ms. Johnson’s claim of police abuse, but

becoming more convinced due to the behavior of some of the police officers related to the case.

(Ex. 28). Mr. Cuccia remembered speaking to some of the police officers involved in the case

and that the subject of Ms. Johnson’s confession was raised. (Ex. 28). Mr. Cuccia believed that

18
either he accused the officers of suffocating Ms. Johnson and they “gave scoffing

chuckles/comments” or that the officers themselves said “something to the effect of ‘I guess she

told you we put a plastic bag over her head.”’ (Ex. 28).

Additionally, in a July 23, 1981, letter directed to Mr. Lombard, the Orleans Parish Clerk

of Court, Ms. Johnson again repeated her claim that police placed plastic bags over her head to

obtain a confession. (Ex. 30). In February of 1982, Orleans Parish Criminal Court Section F

received a letter from Ms. Johnson where she again detailed the police abuse and torture,

including bagging, which led to her confession. (Ex. 29). Despite Ms. Johnsons’ best attempts,

jurors never learned of her claims of police torture and bagging.

15. The police officers involved in this case had numerous abuse of force
complaints, including some instances of “bagging,” as well as a gamut of
other troubling behaviors.

The jury never heard evidence concerning the abysmal records of the NOPD officers

involved in Ms. Johnson’s case that took her confession and developed the evidence against her.

John Kastner, Thomas Woodall, Dale Bonura and Martin Venezia each have allegations of use of

force abuses, including instances wherein they utilized torture and violence to extract a

confession or otherwise obtained confessions that have been determined to be false.

John Kastner was alleged to have forced a homicide suspect to confess by beating him in

the face and body and sticking a thumbnail into the defendant’s gums in January of 1978. This

claim was at least partially credited by the state supreme court, as the case was remanded on the

basis that the State had failed to adequately rebut the claims of abuse. State v. Davis, 380 So. 2d

607 (La. 1980). Additionally, John Kastner is a convicted felon. Mr. Kastner pled no contest to

felony theft, involving a sum of over two million dollars, stemming from the late 1980s. (Ex.

26).

19
 In 1979, Martin Venezia was found to have obtained a false confession from a first

degree murder suspect. See State v. Adams, Orleans Criminal District Court No. 278-951 (Mar.

16, 2015) (granting consent judgment for compensation payment based on clear and convincing

evidence of petitioner’s factual innocence). Additionally, in the same case, there were claims that

Detective Venezia hid or otherwise ignored evidence which pointed to the true perpetrators and,

in the process, framed an innocence person for first degree murder. (Ex. 31). The jury never

heard that Martin Venezia was disciplined and eventually fired from the New Orleans Police

Department as the result of shooting at his son with his service weapon and then attempting to

cover up evidence that the incident had taken place. (Ex. 46, Ex. 31). Finally, Martin Venezia is

a convicted felon, having been convicted of negligent homicide in Florida stemming from a

driving incident. (Ex. 31).

Thomas Woodall was found by the NOPD’s own Internal Affairs Division to have beaten

a civilian and lied about the incident to investigating officers. (Ex. 43). Woodall was

reprimanded for being involved in a physical fight wherein he, and two other officers, beat a

civilian driver, resulting in the victim having facial cuts, a black eye, bruises and a broken finger.

(Ex. 43). IAD then found that Woodall lied about the incident to investigators to negate his own

responsibility. (Ex. 43). Thomas Woodall is the only one of the four officers who escaped a

criminal conviction, though he was federally prosecuted for civil rights violations stemming

from reports that he beat suspects in an attempt to obtain confessions. (Ex. 32).

Dale Bonura was fired from the NOPD as the result of a federal criminal conviction for

his role in the investigation of the homicide of an NOPD officer in the Algiers area of New

Orleans. Bonura, and the other officers charged—including Thomas Woodall—were accused of

coercing confessions and other information from suspects. (Ex. 32). The United State Fifth

20
Circuit noted that “[s]ome of these individuals were handcuffed or tied to a chair during their

questioning. Several were hit with fists or books or both. [Two of the defendants] were also

"bagged," a process whereby the officers placed a bag over the victim's head and temporarily

sealed the bottom to cut off the air supply.” United States v. McKenzie, 768 F. 2d 602, 604 (5th

Cir. 1985). The jury never heard that one of the officers who questioned Ms. Johnson at the time

when she announced that she wished to confess to murder was found to have bagged criminal

suspects to obtain confessions—the exact same torture that Ms. Johnson alleged she suffered.

16. Arthur Samson was stabbed repeatedly before he was shot.

Jurors heard Ms. Johnson confess that Kimberly Ligon stabbed the victim after Ms.

Johnson shot him. (Ex. 1 at 60). Ms. Johnson was quite specific about the order of offenses,

saying “[s]he stabbed him after I shot him” and rationalizing that the victim had been unable to

fight off the knife attack because he had already been shot. (Ex. 1 at 60). In reality, the autopsy

report revealed that the victim had already been stabbed, leading to a collapsed lung, prior to

being shot. (Ex. 19). The jury never heard that Ms. Johnson’s confession incorrectly reversed the

order of offenses.7

17. Arthur Samson was 59 years old and 5’6” tall—20 years older and half a foot
shorter than Ms. Johnson described in her alleged confession.

Within Ms. Johnson’s confession, she described the victim as “in his late thirties or forty”

and “about six feet” tall. (Ex. 1 at 59). In reality, the victim was actually 6 inches shorter and

almost twenty years older than Ms. Johnson’s confession indicated. (Ex. 19).

7
It is unclear from the record exactly what portion of the autopsy protocol was entered into evidence at
Ms. Johnson’s trial, the multi-page entirety of the findings or merely the final diagnoses (Ex. 1 at 64).
Regardless, even if the entirety of the autopsy protocol was entered, it would have been up to the
untrained jurors to read and find the relevant references, and then recognize its significance without any
direction to do so, , as this crucial fact was never brought to their attention by counsel.

21
 18. There was evidence within The Mint that sexual activity had taken place
recently and the police learned that the victim regularly solicited young,
white prostitutes and entertained them in the office of his business. The
physical evidence strongly suggested that the decedent died in the office of
the building.

During the investigation of the crime scene, police discovered multiple pieces of

evidence suggesting that sexual activity had recently taken place at The Mint. Detective Kastner

observed an open tube of K-Y jelly lubricant on the desk located in the office area of the store.

(Ex. 2 at 9). Next to the K-Y jelly, Detective Kastner confiscated a towel that had numerous

stains. (Ex. 2 at 9). The towel tested positive for seminal fluid, but negative for blood. (Ex. 2 at

9). Additionally, police noted a box of prophylactics in the garbage can. (Ex. 5 at 13).

This information was important because it fundamentally conflicted with the sequence of

events and timeline offered within Ms. Johnson’s confession. Within the confession, Ms.

Johnson claimed that the robbery occurred almost as soon as the women had entered the store.

(Ex. 1 at 48). Then, if the confession is to be believed, the victim engaged in sexual activity with

Kimberly Ligon after she had forced him to open the safe at gunpoint. (Ex. 1 at 48). Ms. Johnson

described Kimberly Ligon and the victim “tricking” on the floor behind the counter of the

storefront room. (Ex. 1 at 48, 55). However, almost as soon as they began tricking, Kimberly

Ligon rifled through the victim’s pockets. (Ex. 1 at 51). According to the confession, Kimberly

Ligon then directed Ms. Johnson to shoot the victim, Ms. Johnson shot Arthur Samson twice,

and then Kimberly Ligon stabbed him repeatedly. (Ex. 1 at 49). All of this action supposedly

occurred behind the counter in the front storeroom. (Ex. 1 at 55). The evidence of sexual activity

in the office area of the business contradicts this version of events.

Arthur Samson’s body was discovered in the doorway to the office room of The Mint.

(Ex. 2 at 6). The office was also where the victim was known to entertain prostitutes in the

evening hours, between 8:00 P.M. and 9:00 P.M. (Ex. 5 at 5). The evidence of sexual activity

22
was also located in the office. (Ex. 2 at 9). On the day of his death, the victim’s wife left the store

around 5:00PM. (Ex. 2 at 5). Around 5:30 P.M., the victim went to his friend’s store and stayed

about an hour, leaving around 6:30 P.M. (Ex. 5 at 13). Thus, the evidence strongly suggests that

sexual activity occurred sometime between 6:30 P.M. and the victim’s murder (sometime around

9:00 P.M. to 9:30 P.M., as discussed at length above in point 3). This is inconsistent with the

confession, wherein sexual activity is interrupted by an attempt to rifle through the victim’s

pockets, followed closely by a shooting and stabbing. Arthur Samson was discovered fully

clothed and belt buckled on his pants. (Ex. 5 at 8; Ex. 24). It is evident from the physical

evidence and condition of the body that the victim was not killed while “tricking.” If sexual

activity occurred on the night of the murder—as the evidence suggested it had—this activity was

completed before the murder took place. The fact that the victim only frequented white

prostitutes is also contrary to the State’s version of events, as there is no explanation of why the

victim would have allowed Ms. Johnson to enter his shop, as an African American woman, when

he is supposed to have only solicited Kimberly Ligon (a white woman). (Ex. 1 at 47-48, Ex. 20).

Additionally, the location of the victim’s body, as well as the contextual information

about where the victim entertained prostitutes, demonstrated that Ms. Johnson’s confession was

incorrect about the physical location of the crime within the building and the timeline of events.

19. The victim had a number of defensive wounds on his body.

Among his injuries, Arthur Samson had many cuts to his hands and arms. (Ex. 19). The

police believed that these cuts “indicat[ed] that he had perhaps attempted to fight off his

murderer.” (Ex. 2 at 7). The jury never learned that the victim had evidence of defensive wounds

on his body. This information would have been valuable because it contradicted Ms. Johnson’s

confession, wherein she claimed that the victim made no attempt to ward off the stabbing. (Ex. 1

at 60).

23
 20. There was evidence that could have been used to impeach the claim that a
knife was ever found in Ms. Johnson’s purse or turned over to Detective
Venezia, as Officer Dussett testified at trial.

The jury never learned that there was reason to doubt the State’s claim that a knife was

recovered from Ms. Johnson’s purse at the time of her arrest. Detective Kastner’s official report

concerning the Samson homicide completely omits any mention of a knife ever having been

found within Ms. Johnson’s purse, despite detailing the discovery and chain of custody of the .32

H&R revolver allegedly recovered at the same time. (Ex. 2 at 10). At trial, Officer Dussett

claimed that he turned over both the knife and the gun to Detective Venezia shortly after

arresting Ms. Johnson. (Ex. 1 at 30). However, a handwritten note detailing the chain of custody

described Officer Dussett only turning over “the weapon” to Detective Venezia. (Ex. 42). The

evidence card only described the gun and six bullets. (Ex. 41). There is no evidence card within

any of the case files discussed herein that pertains to the alleged knife.

21. Ms. Johnson’s personal history made her particularly vulnerable to police
pressure.

At the time of her arrest, Ms. Johnson was a young woman who had already been through

numerous instances of abuse and sexual trauma at the hands of men. (Ex. 35). The jury never

learned that, as a child, Ms. Johnson had been repeatedly molested by her caretaker’s husband or

that, as a teenager, she was forced into prostitution by a much older man. (Ex. 35). This trauma,

coupled with Ms. Johnson’s serious drug and heroin addiction, rendered her extremely

vulnerable to false confession and police pressure during interrogation and questioning. (Ex. 35).

PROCEDURAL HISTORY

Ms. Johnson was tried and convicted at a jury trial in New Orleans for first-degree

murder on October 10, 1978, and was sentenced to life in prison after the jury was unable to

agree on the imposition of the death penalty. The defense presented no witnesses. Ms. Johnson’s

24
first direct appeal was denied and her conviction was affirmed on appeal without a formal

opinion. State v. Johnson, 381 So.2d 832 (La. 1980) (per curiam). 8 On June 3, 1994, Ms.

Johnson was granted an out of time appeal pursuant to Lofton v. Whitley, 905 F.2d 885 (5th Cir.

1990). State ex rel. Johnson v. Criminal Dist. Court, 637 So. 2d 489 (La. 1994). Her appointed

attorney raised the following assignment of error: (1) defendant was denied the effective

assistance of counsel. The Louisiana Court of Appeal for the Fourth Circuit affirmed the

conviction. State v. Johnson, 654 So.2d 1375 (La. Ct App. 1995).

On information and belief, Ms. Johnson filed a post-conviction application shortly after

her direct appeal was affirmed. Only a partial copy of this application was located among her

papers. Neither the application nor its disposition are included in the court record currently

available (a court record that is demonstrably incomplete).9 This application raises three claims,

including the biased jury claim, now presented to this Court: (1) that a biased juror was allowed

to sit in judgment; (2) that the jury was mis-instructed as to the law of principals, and; (3) that the

jury was mis-instructed as the law concerning intent. On information and belief, this application

has never been adjudicated.

Ms. Johnson filed an application for post-conviction relief during summer 2001. This

application appears in the court record, but does not have a file stamp concerning the date it was
8
As of the time of this filing, undersigned counsel has been unable to ascertain the particular assignments
of error raised, if any, within Ms. Johnson’s first appeal. Neither Ms. Johnson nor the Louisiana State
archives have a copy of the brief filed on Ms. Johnson’s behalf and the opinion generated by the
Louisiana Supreme Court under No. 64-836 provides no insights; neither the briefs nor a formal opinion
are available on internet legal databases. It is known that on October 24, 1979, the Louisiana Supreme
Court ordered Thomas Baumler, Ms. Johnson’s appointed attorney, to file assignments of error and a brief
in this matter by November 5, 1979. (Ex. 33). Evidently some briefing was eventually filed on Ms.
Johnson’s behalf, as the per curiam affirmation of her conviction and sentence was issued on March 12,
1980.
9
The available district court record is clearly incomplete, as evidenced by the fact that Ms. Johnson
possesses documents received from the court, which are not in the court file itself, including a ruling on a
subsequent post-conviction application. See further below.

25
received. A motion for leave to proceed in former pauperis, which may have been filed with this

application, was granted on June 28, 2001. This application raises two claims: (1) the jury was

mis-instructed as to reasonable doubt and; (2) counsel was ineffective for not objecting to the

reasonable doubt instruction. Ms. Johnson appears to have unsuccessfully sought a writ of

mandamus to secure a ruling on this application under writ number 2002-K-219. It appears she

may have unsuccessfully re-raised the mandamus issue under writ number 2002-K-579. Counsel

has been unable to find any record of this application being ruled upon.

Ms. Johnson filed another application in August of 2003. A file stamped copy (stamped

September 22, 2003) appears in the court record. This application raises three claims: (1) the

grand jury indictment was not read in court; (2) counsel was ineffective for not objecting to the

indictment being read, and; (3) the grand jury foreperson was improperly selected. This

application was denied on October 2, 2003. A copy of this ruling is not in the court record, but is

included among Ms. Johnson’s papers. Ms. Johnson’s papers also include an October 16, 2003,

notice of appeal as to this ruling, an undated request for extension of time to appeal, an October

31, 2003, judgment from the trial court stating “writ denied” and a November 4, 2003, appellate

writ concerning issues raised in this application. The court record contains a second order stating

“writ denied” from July 7, 2004, and a corresponding minute entry. A search of the court of

appeal website contains no record of any request for appellate review being docketed as to the

trial court’s October 2, 2003, order.

Ms. Johnson’s papers also include an undated, Motion for Alternative to Traditional

Incarceration. This appears a relatively recent document based on its typography, references to

electronic monitoring, and citation to La. R.S. § 15:550 (which was enacted in 2004). The court

may have treated it as a Motion to Correct Illegal Sentence as Ms. Johnson’s papers include an

26
order of October 12, 2010, denying such a motion received on October 5, 2010. However, this is

not clear as this October 12, 2010, order references arguments not made in Ms. Johnson’s motion

and erroneously refers to her in the masculine.

CLAIMS FOR RELIEF

As described below, Ms. Johnson claims that she is incarcerated in violation of the

Constitution because the State unlawfully withheld exculpatory or impeaching information in

violation of Brady v. Maryland, 373 U.S. 83 (1963), presented an involuntarily-taken confession

in violation of the Fifth Amendment, and presented false evidence in violation of Napue v.

Illinois, 260 U.S. 364 (1959); and because she received ineffective assistance of counsel at her

trial in violation of Strickland v. Washington, 466 U.S. 668 (1984). These claims entitle her to

relief individually and in combination. In addition, she seeks relief on the basis that she was tried

by a jury containing a juror who was biased against her, in violation of her federal constitutional

right to an impartial jury. Irvin v. Dowd, 366 U.S. 717, 722 (1961).

CLAIM I. THE STATE VIOLATED ITS CONSTITUTIONAL OBLIGATIONS

UNDER THE DUE PROCESS CLAUSE, BRADY V. MARYLAND AND NAPUE V.
ILLINOIS BY FAILING TO DISCLOSE EXCULPATORY AND IMPEACHMENT
EVIDENCE, AND KNOWINGLY PRESENTING FALSE TESTIMONY SUCH THAT
CONFIDENCE IN THE OUTCOME OF THE TRIAL IS UNDERMINED.

No one who has reviewed this case—including the original jury—has ever been made

aware of the breadth of evidence favorable to Ms. Johnson, including evidence strongly linking

the murder weapon to persons other than the defendant, as well as evidence demonstrating the

unreliability of Ms. Johnson’s confession. The totality of this heretofore unknown evidence

exculpates Ms. Johnson and impeaches the State’s case, witnesses, and police investigation.

Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). This

evidence was known to the State at trial. The State’s suppression of favorable evidence, and

27
presentation of false testimony, undermines faith in the outcome of trial. The impact of all

withheld evidence must be analyzed collectively. Kyles v. Whitley, 514 US 419, 436 (1995).

A. If the state courts do not grant Ms. Johnson relief, this claim will need to be
considered on the merits.

This claim is timely because, as detailed on pages 53 to 69, it is filed within a year of

when the facts it is predicated upon could have been discovered “through the exercise of due

diligence.” 28 U.S.C. § 2244(d)(1)(D). Additionally, as detailed on pages 69 to 76, this claim is

timely because, in light of the facts now known, it is likely that no reasonable jury would convict

Ms. Johnson. See McQuiggin v. Perkins, 133 S. Ct. 1924 (2013). The claim is not exhausted at

this time because the vast majority of the Brady material was only recently discovered by Ms.

Johnson. Ms. Johnson has filed a state post-conviction application to exhaust this claim and

seeks to hold it in abeyance pending the completion of state post-conviction proceedings.

B. Ms. Johnson’s Brady claim has merit.

1. The favorable evidence was in the State’s possession for nearly 40 years.

The State is imputed with the knowledge of all its representatives working on a case,

regardless of an individual prosecutor’s knowledge. Kyles, 514 U.S. at 437. The entirety of the

new evidence in Ms. Johnson’s case was located within case files produced and maintained by

the New Orleans Police Department and the Orleans Parish District Attorney’s Office. These

case files each date back to 1977, when the crimes being investigated and prosecuted occurred.

The State was obligated to disclose this favorable evidence prior to trial and the entirety of the

evidence was within the State’s possession. The Brady evidence consists of documents

28
discovered within four files at the New Orleans Police Department and two files at the Orleans

Parish District Attorney’s Office.10

Exhibits 2, 3, 5, 6, 7, 8, 17 and 24 were all found within the New Orleans Police

Department’s file for the homicide investigation of victim Arthur Samson. These documents are

favorable because they serve to undermine the evidence against Ms. Johnson by disproving

elements of her confession. Additionally, as this evidence exculpates Ms. Johnson, it also serves

to further implicate Kimberly Ligon by strengthening her motive and more deeply connecting

her to the crime.

Exhibit 10 was found within the New Orleans Police Department’s Fingerprint Log

Books. This evidence demonstrated that fingerprints lifted from the crime scene were not only

suitable for comparison, but did not match Ms. Johnson. (Ex. 10). This information directly

contradicts Detective Kastner’s testimony, wherein he claimed that “there were no surfaces that

would yield fingerprints suitable for identification purposes.” (Ex. 1 at 42). It is favorable that

fingerprints lifted from the crime scene did not belong to Ms. Johnson.

Exhibits 14, 15, and 41 were found within the New Orleans Police Department’s file for

the homicide investigation of victim Robyn Seymour. This evidence is favorable because it acts

to nullify Ms. Johnson’s possession of the gun used in the homicide by explaining how the gun

came to be in her purse and that she was very likely not even aware of the gun’s presence in the

vehicle.

Exhibits 11, 12, and 42 were found within the New Orleans Police Department’s file for

the investigation of a rape and armed robbery involving a car theft. This evidence is favorable

10
As discussed in greater detail below, the vast majority of the Brady evidence in this case is newly
discovered evidence.

29
because it establishes the timeline wherein the rape victim’s Grand Prix was stolen and disproves

a major element of Ms. Johnson’s confession. This evidence also demonstrates the extremely

troubling behavior of the police officers towards Ms. Johnson in this case, including written

references to Ms. Johnson as a “bitch” in the handwriting of Detective Venezia.

Exhibits 9, 17, 19 were found within the Orleans Parish District Attorney’s Office’s file

concerning the prosecution of the Arthur Samson homicide. This evidence is favorable because it

works to disprove elements of Ms. Johnson’s confession, nullify her possession of the gun, and

demonstrates that the prosecuting attorney was unaware of much of the police investigation in

this case.

Exhibit 13 was found within the Orleans Parish District Attorney’s Office’s files

concerning the prosecution of the Robyn Seymour homicide. This document is favorable because

it nullifies Ms. Johnson’s possession of the gun while also more deeply tying Kimberly Ligon to

the murder weapon.

This evidence, both individually and collectively, is favorable to Ms. Johnson.

2. The favorable evidence was suppressed.

Despite having this favorable information in its possession, the State failed to disclose

any of the evidence to Ms. Johnson or her attorney prior to trial. Ms. Johnson’s trial counsel is

deceased. However, all available evidence indicates that this abundant favorable evidence was

not disclosed. First, Ms. Johnson’s appointed counsel neglected to file for any pre-trial

discovery. (Ex. 38). While this lack of defense request is indicative of the fact that no

information was produced by the State in response, it certainly did not obviate the State’s duty to

disclose it; the State has an affirmative obligation to disclose favorable evidence in its possession

regardless of requests by the defense. E.g., United States v. Bagley, 473 U.S. 667 (1985); United

States v. Agurs, 427 U.S. 97, 107 (1976). In addition, there is no indication within the court

30
record that any discovery materials were ever provided to Ms. Johnson’s defense attorney; no

such discovery materials are present within the record.

Based on the State’s discovery responses to Ms. Johnson’s co-defendant, who made

multiple discovery requests, it is apparent that the State did not disclose favorable evidence even

when directly requested. When Ms. Ligon’s attorney requested Brady material through a Prayer

for Oyer, the State responded that “[t]here is no such evidence in this case.” (Ex. 4). Though not

every piece of evidence that is favorable to Ms. Johnson would also be favorable to Ms. Ligon, a

good deal of the newfound information, including evidence that undermines and impeaches Ms.

Johnson’s confession, qualifies as Brady material that should have been disclosed pursuant to the

Ligon defense request.

Thus, even when a request for Brady materials was made, the State denied the existence

of such evidence.

Finally, the Orleans Parish District Attorney’s Office, specifically during the

administration of District Attorney Connick, is infamous for its history of Brady violations and

the nondisclosure of favorable materials to the defense. See, e.g., Smith v. Cain, 132 S. Ct. 627

(2012); Kyles v. Whitley, 514 U.S. 419 (1995); Mahler v. Kaylo, 537 F.3d 494 (5th Cir. 2008);

Monroe v. Blackburn, 748 F.2d 958 (5th Cir. 1984) (finding that the State violated Brady but

new trial not granted due to timing of violation); Clark v. Blackburn, 632 F.2d 531 (5th Cir.

1980) (finding that the State sent defense witnesses out of state to avoid process); Lockett v.

Blackburn, 571 F.2d 309 (5th Cir. 1980) (finding that the State sent defense witnesses out of

state to avoid process); Monroe v. Blackburn, 607 F.2d 148 (5th Cir. 1979); In re Williams, 984

So. 2d 789 (La. 2008) (referring to prior Brady reversal in procedural history); State v. Bright,

875 So. 2d 37 (La. 2004); State v. Cousin, 710 So. 2d 1065 (La. 1998). See also, In re Jordan,

31
913 So. 2d 775 (La. 2005). See, e.g., State v. Knapper, 579 So. 2d 956 (La. 1991); State v.

Rosiere, 488 So. 2d 965 (La. 1986); State v. Perkins, 423 So. 2d 1103 (La. 1982); State v. Curtis,

384 So. 2d 396 (La. 1980); State v. Parker, 361 So. 2d 226 (La. 1978); State v. Falkins, 356 So.

2d 415 (La. 1978); State v. Carney, 334 So. 2d 415 (La. 1976); Jones v. Cain, 151 So.3d 781

(La. App. 4 Cir. 2014); State v. Morgan, 2014-0276 (La. App. 4 Cir. 5/23/14) (unpub'd); 162 So.

3d 379; State v. Lindsey, 844 So. 2d 961 (La. Ct. App. 2003); State v. Thompson, 825 So. 2d 552

(La. Ct. App. 2002) (referring to prior Brady reversal in procedural history); State v. Henderson,

672 So. 2d 1085, 1087 (La. Ct. App. 1996) (referring to prior Brady reversal in procedural

history); State v. Oliver, 682 So. 2d 301 (La. Ct. App. 1996); State v. Adams, 609 So. 2d 894,

897 n.6 (La. Ct. App. 1992); State v. Smith, 591 So. 2d 1219 (La. Ct. App. 1991); Smith, 591 So.

2d 1219 (La. Ct. App.1991); Johnson v. Cain, No. CIV.A. 11-1151, 2014 WL 7330598 (E.D. La.

May 2, 2014); Williams v. Butler, 2:88-cv-05718-PEC (E.D. La. Mar. 11, 1992); Conway v.

Cain, No. 377-313 (Orleans Parish Mar. 21, 2014); Morgan v. Cain, No. 367-809 (Orleans

Parish Jan. 17, 2014); Duncan v. Cain, No. 290-908 (Orleans Parish Jan. 7, 2011); John

Simerman, Michael Perlstein, Open to Appeal; Convicted criminals Say DA Policy Change

Gives Them Fair Shot, Times-Picayune, July 20, 2003, at 1 (National); Open to Appeal;

Convicted criminals Say DA Policy Change Gives Them Fair Shot, Times-Picayune, July 20,

2003, at 1 (National); Keith Pandolfi, Innocence Project New Orleans Investigates Suspected

Cases of Wrongful Convictions, New Orleans City Business, Jan. 13, 2003 (News).

3. The collective materiality of the withheld favorable evidence completely

undermines confidence in Ms. Johnson’s conviction for first degree murder.

The test for materiality was laid out by the United States Supreme Court in United States

v. Bagley, 473 U.S. 667 (1985). When summarizing the Bagley materiality test in Kyles v.

Whitley, 514 U.S. 419 (1995), the Court held “[t]he question is not whether the defendant would

32
more likely than not have received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”

Id. at 434. All items of favorable evidence withheld must be analyzed together to determine if,

collectively, they undermine confidence in the outcome of trial. Kyles, 514 U.S. at 436. The

affirming court noted that the case against Ms. Johnson consisted of the fact that “the defendant

confessed to the crime and that there was strong physical evidence against her.” State v. Johnson,

No. 94-KA-1365, at 4 (La. Ct App. May 16, 1995). The only evidence presented against Ms.

Johnson was her possession of the gun utilized in the Samson homicide and her confession to

police. (Ex. 1). The Brady evidence in this case speaks directly to these points. The withheld

evidence in this case falls under two main categories: 1) information undermining the legitimacy

and accuracy of Ms. Johnson’s confession and 2) information nullifying Ms. Johnson’s

possession of the .32 H&R revolver linked to the homicide.

The withheld evidence is favorable because it undermines the validity and veracity of Ms.

Johnson’s custodial confession made to New Orleans Police Officers on August 4, 1977. Neither

the jury nor the court ever learned that many of the details contained within Ms. Johnson’s

confession were demonstrably false. The Brady evidence in this case demonstrates that Ms.

Johnson’s confession was less worthy of belief because it was inaccurate; the specific

inaccuracies are discussed in far greater detail in the Statement of Facts section. (See Ex. 2, 3, 5,

6, 8, 19 and 24). Ms. Johnson’s confession shows a lack of familiarity with the circumstances of

the crime and includes details that are demonstrably false. Most notably, Ms. Johnson confessed

to having driven the stolen Grand Prix car to the scene of the crime and that she and Ms. Ligon

used that same vehicle as their getaway car after the murder was complete (Ex. 1 at 48, 50)—the

Brady evidence in this case demonstrates that this version of events is impossible because the

33
victim was killed in the 9:00PM hour on July 15, 1977, (Ex. 5 at 5, 18, 19, Ex. 3), but the Grand

Prix was not stolen until 4:00AM on the morning of July 16, 1977. (Ex. 12). Thus, the Brady

evidence showed that Ms. Johnson’s confession involved her driving a stolen car that had not yet

been stolen. Among other errors, Ms. Johnson also got wrong the age and appearance of the

victim, the location the homicide occurred within The Mint, the number of shots she fired, and

the order of events which occurred during the attack. Great significance has been placed on Ms.

Johnson’s confession in this case not only by the reviewing court, but also the trial prosecutor

and, presumably, by the jury. The withheld evidence showed that the confidence in the accuracy

of Ms. Johnson’s confession was misplaced.

The withheld evidence is also favorable because it nullifies the impact of the weapon’s

recovery from Ms. Johnson’s belongings and further inculpates Kimberly Ligon. The affirming

court specifically credited the physical evidence against the defendant when denying Ms.

Johnson’s appeal. State v. Johnson, No. 94-KA-1365, at 4 (La. Ct App. May 16, 1995). The only

physical evidence that implicated Ms. Johnson was the .32 H&R revolver seized from her purse

during the July 26, 1977, traffic stop. (Ex. 1). Neither the jury nor the court ever learned that this

gun, later found to have been the gun used in the Samson homicide, had little connection to Ms.

Johnson at all. The recovered gun was never in Ms. Johnson’s possession in any meaningful

sense; the withheld evidence demonstrated that the gun was placed in Ms. Johnson’s purse by

another passenger in the car and that Ms. Johnson may not have even known that the gun was in

the vehicle until the traffic stop occurred. (Ex. 13, 17 and 15). Jurors never learned that Ms.

Johnson was not even someone who was known to have knowledge of the gun. (Ex. 15).

While jurors were misled about the connection between Ms. Johnson and the murder

weapon, they were also never privy to Kimberly Ligon’s own link to the gun. (Ex. 5 at 15-17,

34
Ex. 13). Had this information been available at the time of Ms. Johnson’s trial it would have not

only offered the jury a suspect in Kimberly Ligon—who had far closer ties to the crime and its

physical evidence—but would have also served to impeach the quality and candor of the police

investigation.11 This type of information is inherently favorable to the defendant at trial. Kyles,

514 U.S. at 446 citing Bowen v. Maynard, 799 F. 2d 593, 613 (10th Cir. 1986) (“A common trial

tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge

the defendant, and we may consider such use in assessing a possible Brady violation”).

Much of the favorable information also impeaches the investigation itself by

demonstrating that the official NOPD Offense Against Person Report authored by Detective

Kastner in the Samson homicide, Ex. 2, failed to include the bulk of the investigative tasks

undertaken by officers in this case, including the discovery of information that tended to

inculpate Kimberly Ligon and exculpate Ms. Johnson. (Ex. 5, 6, 7, 13, 15).

Collectively this evidence undermines confidence in the outcome of trial. The affirming

court, and presumably the jury, credited Ms. Johnson’s confession as truthful and accurate and

compounded this belief with the knowledge that Ms. Johnson was found in possession of the

murder weapon; if the jury had heard the favorable evidence, they may well have disabused these

beliefs. Had the jury heard the favorable evidence, the defense case would have been stronger

and the State’s case far, far weaker. Under these circumstances, there can be no confidence in the

outcome of trial.

11
When called to the location because of a domestic disturbance, Ex. 5 at 15, NOPD officers conducted a
search of the home that apparently involved searching through closets and under clothing on the floor
(under what legal rationale is unclear), Ex. 5 at 15, only to locate a weapon of the caliber and type that
they were specifically told to be on the lookout for, Ex. 5 at 15, Ex. 16, and then elected to leave the
weapon in the home and filed no formal report. Ex. 13. Additionally, once this was discovered,
presumably by Detective Kastner, he failed to include any mention of the incident within his own official
report concerning the Samson homicide. Ex. 2.

35
 C. Ms.Johnson’s Napue claim has merit.

The State’s knowing presentation of false or misleading evidence, that has a material

effect on the outcome of trial, violates Napue v. Illinois. Such violation occurred in Ms.

Johnson’s case. Detective Kastner testified at trial that there were “no surfaces that would yield

fingerprints suitable for identification purposes” found within The Mint. (Ex. 1 at 42). However,

as the State well knew, the NOPD lifted three fingerprints from the crime scene that were

suitable for comparison and, when compared, were found not to match Ms. Johnson. (Ex. 10).

Had the jury known that another person’s prints were found at the scene of the homicide, but not

Ms. Johnson’s this would have given the jury great pause, and reasonable doubt concerning the

identity of the perpetrator. This violation, on its own, as well as in combination with the impact

of the Brady violations described above, undermines confidence in the verdict, and requires

relief.

CLAIM II. MS. JOHNSON DID NOT RECEIVE CONSTITUTIONALLY EFFECTIVE

ASSISTANCE OF COUNSEL.

The State’s suppression of favorable evidence made it impossible for Ms. Johnson to

receive a fair trial, but even with full disclosure, the representation that Ms. Johnson received

would have made her trial unconstitutional. Whether a criminal defendant received her

constitutional right to effective representation is assessed under the two-pronged test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). To succeed under a Strickland claim of

ineffective assistance of counsel, a petitioner must prove: (1) that counsel’s performance fell

below an objective standard of reasonableness under prevailing professional norms; and (2)

counsel’s inadequate performance prejudiced the defendant to the extent that the trial was

rendered unfair and the verdict suspect. When assessing counsel’s effectiveness a court must

36
look at all the circumstances of the representation provided, not merely individual errors.

Strickland, 466 U.S. at 690.

A. If the state courts do not grant Ms. Johnson relief, this claim must be considered on
the merits.

As detailed on pages 69 to 75, this claim is timely because, in light of the facts now

known, it is likely no reasonable jury would convict Ms. Johnson. See McQuiggin v. Perkins,

133 S. Ct. 1924 (2013). This claim has not been fuly exhausted. At the time of filing, Ms.

Johnson is preparing a state post-conviction application to exhaust all parts of this claim.

B. Ms. Johnson’s ineffective assistance of counsel claim has merit.

Thomas Baumler12 served as Ms. Johnson’s appointed defense attorney. (Ex. 34). When

Ms. Johnson was arrested, she was a poor young woman. (Ex. 35). Shuffled from one abusive

situation to another, she had no-one to help her to pay for a trial attorney. (Ex. 35). In the face of

a possible death sentence, the young Ms. Johnson was entitled to a state-provided lawyer to

ensure a fair trial. Gideon v. Wainwright, 372 U.S. 335 (1963). She had no choice but to rely on

this entitlement. Sadly, Mr. Baumler’s representation proved to be so minimal as to entirely fail

to subject the prosecution’s case to meaningful adversarial testing; as such, Ms. Johnson’s Sixth

Amendment rights were violated. See generally United States v. Cronic, 466 U.S. 648, 659

(1984).

1. Counsel failed to challenge the admissibility of his client’s confession.

12
While this claim is based on counsel’s performance in this case and not his character generally, counsel’s
documented history of lapses in performance, ethics, and professional judgment leaves little room for surprise that
his performance in this case was inadequate. In a particularly blatant example in July 1976, only a year before his
representation of Ms. Johnson began, Thomas Baumler declared in open court “To hell with the defendant, man. I
didn’t get paid for it.” (Ex. 37). This outburst was provoked by the court’s insistence that Mr. Baumler perfect his
client’s appeal. Mr. Baumler’s dismissive attitude is particularly troubling given that it suggests he provided indigent
clients, like Ms. Johnson, a lesser quality of representation.

37
 Despite clearly recognizing the magnitude of Ms. Johnson’s confession to her case as a

whole, Mr. Baumler failed to challenge the admissibility of Ms. Johnson’s confession through a

motion to suppress.13 (Ex. 38). In affirming Ms. Johnson’s conviction, the reviewing court took

pains to cite her confession as being one of the primary pieces of evidence against the defendant.

State v. Johnson, No. 94-KA-1365, at 4 (La. Ct App. May 16, 1995). Though Ms. Johnson’s

possession of the gun tied to the crime was obviously incriminating—when viewed without the

benefit of the Brady evidence concerning how she came into possession—her confession was

unquestionably the lynchpin of her conviction.14

In a case wherein a confession is critical to the state’s presentation, counsel’s failure to

move to suppress the confession is “unreasonable and outside the wide range of professionally

competent assistance.” Smith v. Dugger, 911 F.2d 494, 497 (11th Cir. 1990). As in the present

case, the Smith case involved an underlying conviction for first degree murder based largely on

the defendant’s confession; and, as in the present case, Smith’s attorney failed to move to

suppress the confession. Id. The Eleventh Circuit correctly concluded that not only was the

attorney’s failure to challenge the confession below the objective standard of professional norms,

but that this failure “was extremely prejudicial to [the defendant]” because [his] confessions

constituted the primary evidence in the state's case. “Without the confessions, conviction for first

degree murder was probably impossible.” Id. (quoting Smith v. Wainwright, 777 F.2d 609, 616-

17 (11th Cir. 1985)). Ms. Johnson’s present ineffectiveness claim mirrors that in Smith.

13
A newspaper article concerning Ms. Johnson’s trial stated that “[w]hen this reporter asked Baumler if it
wasn’t true defense attorneys still try to make a case even when not convinced of their clients’ innocence,
he said Johnson made a confession. ‘There was nothing to get a grip on.”’ (Ex.36).
14
In the case that there is doubt concerning this issue, it should be noted that though Ms. Johnson
possessed the .32 caliber H&R revolver that was linked to both the Seymour and Samson homicides, she
was only prosecuted for the Samson homicide, the crime to which she had confessed. (Ex. 2).

38
 Additionally, given that “suppression hearings typically involve questions concerning the

propriety of police and government conduct that took place hidden from the public view,”

Gannett Co. v. DePasquale, 443 U.S. 368, 428 (1979) (Blackmun, J., dissenting), Mr. Baumler

could have utilized the opportunity to question all of the NOPD officers involved in obtaining

Ms. Johnson’s confession regarding their conduct and the allegations of abuse. (Ex. 28, 29, 30).

Given that Ms. Johnson told her first appearance attorney, Kerry Cuccia, about the torture

she suffered at the hands of police, it is inconceivable that she did not also tell her trial lawyer.

Counsel’s failure to file a motion to suppress her client’s confession on this basis, clearly fell

below the minimal level of competent representation to which she was entitled. Competent

counsel would have presented evidence of the torture, including Ms. Johnson’s own testimony,

the testimony of Kerry Cuccia, confirming the consistency of Ms. Johnson’s account, evidence

of Ms. Johnson particular vulnerabilities to coercion, and would have developed evidence of the

police officers’ history of similar abuses in other cases. Proof of the egregious violations against

her would undoubtedly have resulted in the exclusion of Ms. Johnson’s confession. Brown v.

Mississippi, 297 U.S. 278 (1936). The only State’s evidence remaining would be evidence that

the gun was found in her purse, evidence which competent counsel would have proven was

placed there by another passenger in the car, just moments before her arrest (see part xx below).

Even without proof of how the gun came to be in her purse, the gun alone would not have

constituted sufficient evidence to sustain a conviction, let alone convince a jury of her guilt

beyond reasonable doubt.

2. Counsel failed to challenge the admissibility of evidence allegedly seized from

his client.

Thomas Baumler failed to challenge the admissibility of the evidence allegedly seized

from Ms. Johnson—the .32 H&R revolver and the knife. (Ex. 38). Suppression hearings have a

39
critically important role within the criminal justice system. Gannett, 443 U.S. at 436 (Blackmun,

J., dissenting). Whether or a suppression motion here would have succeeded, had Mr. Baumler

conducted a suppression hearing, he could have ascertained valuable information about Ms.

Johnson’s case and the validity of the evidence against her. We now know that the State was

concealing information about the providence of the gun and how it came to be found in Ms.

Johnson’s purse. (Ex. 13, 17, 25). The responsibility of defense counsel to take prompt legal

action to preserve the defendant’s rights, including by filing motions to suppress evidence, is a

well-documented standard of professional conduct. See ABA Standards for Criminal Justice 3.6

(1st ed. 1974) (“The Defense Function”). Due to counsel’s failure to challenge the State’s

evidence, the officers’ actions and knowledge concerning the weapon were never subjected to

adversarial testing and Ms. Johnson’s right to a fair trial was prejudiced.

3. Counsel failed to conduct investigation in this case.

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. There is no

indication within the court record or trial transcript that Mr. Baumler made any meaningful

attempt at investigation. “[A]n attorney must engage in a reasonable amount of pretrial

investigation and ‘at a minimum, . . . interview potential witnesses and . . . make an independent

investigation of the facts and circumstances in the case.’” Bryant v. Scott, 28 F.3d 1411, 1417

(5th Cir. 1994) citing Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985). Had, for instance,

Mr. Baumler sought out and interviewed Elliot Marigny, a reasonable action given that he was a

witness to Ms. Johnson’s arrest and the events that proceeded it, he would have learned that Mr.

Marigny placed the gun in Ms. Johnson’s purse prior to being stopped by authorities. (Ex. 13, 17,

25). Ms. Johnson’s attorney had a professional duty to conduct pretrial investigation in this case

and his failure to do so resulted in a trial that was fundamentally unfair.

40
 4. Counsel barely represented his client at trial.

Ms. Johnson’s counsel provided little more than a warm body throughout her trial. Mr.

Baumler failed to present an opening statement, a closing statement, utilize any juror challenges

or strikes, made only one objection to the admission of a photograph, asked only a handful of

cross examination questions without any readily apparent aim or focus, and repeatedly failed to

draw the jury’s attention to favorable information that might disprove elements of Ms. Johnson’s

confession. (Ex. 1). “The right to counsel plays a crucial role in the adversarial system embodied

in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord

defendants the ample opportunity to meet the case of the prosecution to which they are entitled.”

Strickland, 466 US at 685 (1984) (internal quotations omitted). Mr. Baumler’s trial performance

was so far below objective standards of representation that it cannot be claimed that Ms. Johnson

benefited at all from counsel’s skill or knowledge in meeting the prosecution’s case.

5. Counsel failed to challenge a biased juror.

In this capital case, trial counsel Baumler failed to adequately question the venire or even

challenge a single juror, whether peremptory or for cause. The entire voir dire section of the

transcript is less than twenty pages. Due to the blatantly inadequate voir dire, one of the accepted

jurors was sworn onto the jury despite her personal knowledge of the victim in this case. She

apparently did not realize her familiarity with the victim until shown photographs of the victim’s

body, riddled with over one hundred stab wounds. During the direct examination of Detective

Kastner, the following exchange occurred:

COURT: Yes, ma’am? (A juror had raised her hand.)

JUROR: I think I know the person he’s talking about. I didn’t know the person at
first. I know he was a coin dealer, Mr. Samson.

COURT: Well, you’ve been sworn and accepted. We have no alternative but to
proceed. You nonetheless can be fair and impartial in judging this case?

41
 JUROR: That’s what I say. I don’t know. He was on Tulane at one time and then
he moved.

COURT: You just know him in passing?

JUROR: No, I used to go deal with him.

Ex. 1 at 40. When asked directly about her ability to be fair and impartial, the juror at issue

equivocated and doubted her own ability to do so.

Despite the juror herself interjecting her concerns into the trial discourse, Mr. Baumler

took no action. Id. Counsel’s failure to object once this juror’s bias was known, forced Ms.

Johnson to endure a trial before a non-impartial jury that culminated in her conviction.

The Sixth Amendment provides criminal defendants the right to a trial by an impartial

jury; this right “guarantees to the criminally accused a fair trial by a panel of impartial,

‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). As such, the presence of a biased

juror cannot be harmless, but rather requires a new trial as a structural error, even without a

showing of actual prejudice. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998). Ms. Johnson

was deprived of this right when one of the female jurors 15 empaneled on her petit jury was

revealed to have a relationship in the form of multiple business dealings, over a course of time,

with the victim.

Juror bias may either be actual bias demonstrated in fact or bias that is presumed as a

matter of law. Solis v. Cockrell, 342 F.3d 392, 395 (5th Cir. 2003). Though this type of business

16
Interestingly, there is some evidence that even the State anticipated having to delete or remove these
references to other crimes, as within the Orleans Parish District Attorney’s Office’s file on the Samson
homicide prosecution, there was a copy of Ms. Johnson’s confession with a series of handwritten
annotations. The majority of the remarks appear to be small additions made by someone who had actively
listened to the taped confession and attempted to create a more accurate transcription. However, all
references to the Grand Prix having been stolen are crossed out. Additionally, sections that referenced
other crimes, like the general act of prostitution unrelated to this case, were marked “OUT” and crossed
out. (Ex. 39).

42
relationship is unlikely to rise to the level of presumed bias, the juror’s own words make it clear

that this was a case of actual bias in fact and “[d]oubts about the existence of actual bias should

be resolved against permitting the juror to serve.” United States v. Nell, 526 F.2d 1223, 1230 (5th

Cir. 1976).

In Virgil v. Dretke, the Fifth Circuit Court of Appeals found that an attorney’s similar

failure, in failing to explore a juror’s bias once raised, and then failing to object to the juror’s

inclusion in the petit juror, amounted to ineffective assistance of counsel. 446 F.3d 598 (5th Cir.

2006). “Expressed in Strickland terms, the deficient performance of counsel denied [the

defendant] an impartial jury, leaving h[er] with one that could not constitutionally convict,

perforce establishing Strickland prejudice with its focus upon reliability.” Virgil, 446 F.3d at

614. When this portion of the claim was raised during Ms. Johnson’s direct appeal, the court of

appeal unreasonably determined the question of prejudice in light in face of the strong evidence

of guilt apparently presented, rather than recognizing the per se prejudice to Ms. Johnson of

having biased jury. To do so was an unreasonable application of Strickland. 28 U.S.C. §

2254(d)(1). Failure to object to the presence of such juror also waived what would otherwise

have been a winning free standing issue on appeal.

6. Counsel failed to object to the mention of other crimes his client may have
committed.

Thomas Baumler failed to object to mentions of Ms. Johnson having committed other,

unrelated crimes. Specifically, during Ms. Johnson’s confession, jurors heard multiple references

to Ms. Johnson driving a stolen vehicle. (Ex. 1 at 48, 50). The possession or operation of a stolen

car is not a similar offense to murder such that the inclusion of these statements could have had

probative value, nor was it an action intrinsic to the crime charged. Simply omitting the fact that

the car was stolen would have still conveyed the information necessary to understand the

43
confession’s narrative: “[t]here was no need for the evidence in the form rendered.” United

States v. Rice, 550 F.2d 1364, 1372 (5th Cir. 1977). This other crimes evidence functioned only

to prejudice the jury, not to offer meaningful probative value.16 As such, counsel for Ms. Johnson

should have objected to the inclusion of this evidence.

7. Counsel failed to object to the prosecutor’s repeated reference to facts not in

evidence.

ADA Roberts made repeated references to the knife that was allegedly found in Ms.

Johnson’s purse at the time of her arrest. (Ex. 1 at 23, 29, 30, 69, 71, 72). By the time of trial,

any knife that may have existed had been lost by the State. (Ex. 1 at 23). However, the lack of

the knife’s presence did not stop ADA Roberts from repeatedly suggesting that the knife

allegedly found in Ms. Johnson’s purse was the knife utilized in the Samson homicide—despite

absolutely no evidence to support this belief. The jury heard remarks like “[m]aybe she did the

stabbing herself because she was the one caught with the knife”, Ex. 1 at 72, and “[s]he did have

a knife. She was the one caught with the murder weapon; she was the one caught with the knife.”

(Ex. 1 at 71).

Even if a knife was actually seized from Ms. Johnson’s purse (a dubious contention, as

outlined above in the Statement of Facts), there was no evidence to suggest that the seized knife

had any connection to the Samson homicide at all. Given the total information vacuum

surrounding the seized knife, it could not have possibly held any probative value within Ms.

16
Interestingly, there is some evidence that even the State anticipated having to delete or remove these
references to other crimes, as within the Orleans Parish District Attorney’s Office’s file on the Samson
homicide prosecution, there was a copy of Ms. Johnson’s confession with a series of handwritten
annotations. The majority of the remarks appear to be small additions made by someone who had actively
listened to the taped confession and attempted to create a more accurate transcription. However, all
references to the Grand Prix having been stolen are crossed out. Additionally, sections that referenced
other crimes, like the general act of prostitution unrelated to this case, were marked “OUT” and crossed
out. (Ex. 39).

44
Johnson’s trial, but obviously carried a substantial risk of prejudice. Mr. Baumler failed to object

to the State’s repeated references to facts not in evidence concerning the knife and, in doing so,

rendered Ms. Johnson’s trial unfair.

8. Counsel failed to draw the jury’s attention to favorable information.

Counsel repeatedly failed to draw the jury’s attention to facts or information that did not

comport with the details of Ms. Johnson’s confession. For example, at trial, evidence was

introduced that demonstrated that the victim’s body was found in the office of The Mint (not the

front storefront room as Ms. Johnson had confessed) and that the victim was shot once (not twice

as in the confession). These important distinctions were never raised by Mr. Baumler and thus

any opportunity to emphasize the confession’s inaccuracies (at least those of which the defense

was, or should have been, aware) was lost. “The available evidence casting doubt on the truth

and veracity of [the defendant’s] confessions is strong enough that the failure to present any of it

for the jury's consideration undermines confidence in the outcome.” Soffar v. Dretke, 368 F.3d

441, 479 (5th Cir.), amended on reh'g in part, 391 F.3d 703 (5th Cir. 2004).

9. Counsel’s failures undermine confidence in the outcome of the trial.

“[T]he question is whether the cumulative errors of counsel rendered the jury’s findings,

either as to guilt or punishment, unreliable.” Moore v. Johnson, 194 F.3d 586, 619 (5th Cir.

1999). Counsel repeatedly shirked his duties and provided representation that fell below an

objective standard of reasonableness under prevailing professional norms, prejudicing Ms.

Johnson. Thomas Baumler’s lack of representation led to a trial that was fundamentally unfair to

Ms. Johnson and the result of which cannot possibly inspire confidence in the outcome.

CLAIM III. THE PREJUDICE SUFFERED BY MS. JOHNSON DUE TO THE STATE’S
NON-DISCLOSURES AND HER ATTORNEY’S INEFFECTIVENESS
COLLECTIVELY ENTITLES HER TO RELIEF.

45
 As detailed above, Ms. Johnson is entitled to relief as a result of the State’s Brady

violations and her ineffective counsel, but, in addition, these two claims must be considered

collectively. This is particularly true in a case such as this in which the State has prejudiced Ms.

Johnson on two fronts, by failing to honor its obligation to disclose favorable evidence and by

failing to honor its obligation to provide adequate appointed counsel. Parsing out the ways in

which the State violated a defendant’s rights and merely considering them individually is

inconsistent with the due process clause from which all such obligations stem.

The evidence relating to each claim is assessed cumulatively, and each claim must be

considered likewise. “[Materiality is defined] in terms of suppressed evidence considered

collectively, not item by item.” Kyles, 514 U.S. at 436. “[T]he question is whether the

cumulative errors of counsel rendered the jury’s findings, either as to guilt or punishment,

unreliable.” Moore 194 F.3d at 619. The impact of counsels’ errors must be assessed with regard

to “all the circumstances” of the trial. Strickland, 466 U.S. at 690. “[A] reviewing court may

consider any adverse effect that a prosecutor’s failure to disclose might have had on the

preparation or presentation of a defendant’s case, in light of the totality of the circumstances.”

Bagley, 473 U.S. at 683.

All the new evidence in this case would have been heard at a trial untainted by the twin

violations of Ms. Johnson’s rights. The prejudice to Ms. Johnson from her unconstitutional trial

is clear and is discussed within the Statement of Facts section as well as within the claims briefed

above.

CLAIM IV. MS. JOHNSON WAS CONVICTED BASED ON A COERCED

CONFESSION IN VIOLATION OF THE FIFTH AMENDMENT.

A. If the state courts do not grant Ms. Johnson relief, this claim must be considered on
the merits.

46
 As detailed on pages 69 to 75, this claim is timely because, in light of the facts now

known, it is likely no reasonable jury would convict Ms. Johnson. See McQuiggin v. Perkins,

133 S. Ct. 1924 (2013). This claim has not been fully exhausted. At the time of filing, Ms.

Johnson is preparing a state post-conviction application to exhaust all parts of this claim.

B. Ms. Johnson’s Involuntary Confession Claim Has Merit

One of the longest standing constitutional principles related to due process and state

criminal convictions is that the State cannot use a confession that was coerced by torture to

obtain a conviction. Brown v. Mississippi, 297 U.S. 278 (1936). Ms. Johnson reported she had

confessed due to torture—having a bag placed over her head by police and being threatened with

suffocation—as soon as she met with a lawyer and repeated this account in letters written close

in time to her interrogation. (Ex. 28, 29, 30). This issue has never previously been litigated, but

Ms. Johnson’s reports of torture are made credible by the appalling records of the four officers

who interrogated her: Dale Bonura, Thomas Woodall, Martin Venezia, and John Kastner. These

records are detailed in the Statement of Facts (see pages 20 to 22), but some of the most sinister

details include:

 Dale Bonura has a federal civil rights conviction for torturing a man during an

interrogation a few years after he interrogated Ms. Johnson. (Ex. 32). The torture he

inflicted on that man include “bagging” the suspect—the exact same torture Ms. Johnson

reported.

 Thomas Woodall was also charged in the case that led to Bonura’s conviction (although

he was acquitted). His willingness to indulge in illegal violence and dishonesty is,

however, confirmed by his 1979 reprimand for joining fellow officers in beating up a

driver and his subsequent lies to investigators about the incident.

47
  Martin Venezia, in addition to his significant disciplinary problems as a police officer

and afterward, was the lead interrogator in the Reginald Adams case. (Ex. 31). Mr.

Adams confessed, but claimed this was because Venezia “plied him with beer and

narcotics.” John Simerman, Man Walks Free After 1979 Murder Case Dismissed, New

Orleans Advocate (May 12, 2014). The State has subsequently agreed Mr. Adams falsely

confessed. See State v. Adams, Orleans Criminal District Court No. 278-951 (Mar. 16,

2015) (granting consent judgment for compensation payment based on clear and

convincing evidence of petitioner’s factual innocence).

 John Kastner was implicated in an accusation of beating and using thumb tacks to coerce

a confession in early 1978. This accusation was sufficiently credible to warrant a state

supreme court remand.

 Beyond the documented acts of violence and torture by the interrogating officers in this

case, it seems apparent that the NOPD homicide unit of the period was too accepting of

coercion during interrogation. In 1987 the Louisiana Supreme Court suppressed the 1976

confession of a defendant named William Seward. State v. Seward, 509 So. 2d 413 (La.

1987). Seward claimed three homicide detectives beat and bagged him during his

interrogation. Id. at 415 n. 6. The court found the detectives’ accounts of the

interrogation “improbable” and concluded “the evidence preponderately establishes that

Seward was beaten.” Id. at 418.

Ms. Johnson’s account is not just corroborated by the shameful records of her interrogators,

including the findings of the exact torture she reported being used by detectives including one of

those who interrogated her, it is also corroborated by Venezia’s notes referring to her as a

48
“bitch.” (Ex. 11). The attitude evidenced by this note is not consistent with a constitutional

interrogation.

The torture reported by Ms. Johnson would render unconstitutional a confession obtained

from the most hardened of suspects. In this case it was used on an indigent young woman with a

history of sexual abuse and repeated victimization by men, as well as a dependence on narcotics.

(Ex. 35). As the Supreme Court observed, “that which would leave a man cold and unimpressed

can overawe and overwhelm a lad in his early teens.” Haley v. Ohio, 332 U.S. 596, 599 (1948).

The same is true when the person under interrogation is a vulnerable young woman. Ms. Johnson

was convicted due to an involuntary confession in violation of the Fifth Amendment, and is

entitled to relief on this claim.

TIMELINESS

A. The factual predicate of Ms. Johnson’s Brady and Napue claims would not have
been discovered more than a year ago through the exercise of reasonable diligence
so the claim is timely under 28 U.S.C § 2244(d)(1)(D).

The first question for this Court is whether, through the exercise of due diligence, Ms.

Johnson could have discovered the factual predicate of her current claims prior to a year ago. In

re Swearingen, 556 F.3d 344, 349 (5th Cir. 2009). Her current claims are predicated on the

information contained within exhibits 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 41 and 42. 17 As

17
Most, but not all, of the withheld evidence predicating Ms. Johnson’s Brady claim is based on new
evidence. However, the Supreme Court has made clear that the materiality of all withheld favorable
evidence must be analyzed collectively. Kyles, 514 U.S. at 436. Applying this principle to cases in which
withheld favorable evidence has been uncovered in the same case on several different occasions, courts
from across the country have held that all the withheld evidence—not just that which has been recently
discovered—must be considered. See Schledwitz v. United States, 169 F.3d 1003, 1012 (6th Cir. 1999)
(“[T]his case . . . involves additional Brady violations that were not considered by this court in Schledwitz
II. Given that Kyles mandates that the question of whether the undisclosed evidence meets the
‘materiality’ standard must be considered in the aggregate . . . Schledwitz II has only limited res judicata
effect in this case.”); Hopkinson v. Shillinger, 781 F. Supp. 737, 745–46 (D. Wy. 1991) (“[T]his court has
evaluated all of the material raised in both petitions, in the context of the evidence presented at both trials,
to determine whether the petitioner has been deprived of due process of law by the withholding of

49
discussed in more detail below, these items were all obtained since October 31, 2015—within

one year of this filing. (Ex. 47). They could not have been discovered earlier by the exercise of

due diligence.

1. Relevant Law

A claim is timely if the application containing is filed within one year of when the

“factual predicate of the claim . . . presented could have been discovered through the exercise of

due diligence.” 28 U.S.C. § 2244(d)(1)(D). The Supreme Court has held that “[d]iligence . . .

depends upon whether the prisoner made a reasonable attempt, in light of the information

available at the time.” Williams v. Taylor, 529 U.S. 420, 435 (2000). The Fifth Circuit has made

clear that “28 U.S.C. § 2244 does not require ‘the maximum feasible diligence’ but only ‘due, or

reasonable diligence.’” Starns v. Andrews, 524 F.3d 612, 618 (5th Cir. 2008) citing Moore v.

Knight, 368 F.3d 936, 940 (7th Cir. 2004) citing, in turn, Wims v. United States, 225 F.3d 186,

190 n.4 (2d Cir. 2000).

It is particularly important in this case that the factual predicate of the claim should have

been disclosed prior to trial, but was withheld by the State at trial and for decades thereafter. Ms.

Johnson should not be prejudiced because the State withheld evidence from her for so long.

“When police or prosecutors conceal significant exculpatory or impeaching material in the

exculpatory evidence.”); State ex rel. Engel v. Dormire, 304 S.W.3d 120, 126 (Mo. App. 2010) (“Justice
requires that this Court consider all available [Brady] evidence uncovered following Engel's trial that may
impact his entitlement to habeas relief.”).
Considering all of the withheld evidence when new withheld evidence is discovered is consistent with the
fairness rationale underlying the Brady rule. To hold otherwise would be to give the State a perverse
incentive to disclose exculpatory evidence bit by bit in order to avoid assessment of the materiality of the
withheld evidence as a whole. As the Supreme Court has stated, “[a] rule thus declaring ‘prosecutor may
hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due
process.” Banks, 540 U.S. at 696. When assessing the merits of Ms. Johnson’s Brady claim, this Court
should consider all the evidence the State withheld at trial and not just the evidence Ms. Johnson has
recently discovered that the State withheld.

50
State’s possession, it is ordinarily incumbent on the State to set the record straight.” Banks v.

Dretke, 540 U.S. 668, 675-76 (2004). “[D]eclaring ‘prosecutor may hide, defendant must seek,’

is not tenable in a system constitutionally bound to accord defendants due process.” Id. at 696.

The relevance of the State withholding evidence to any diligence inquiry is well

recognized. See, e.g., Strickler v. Greene, 527 U.S. 263, 287-88 (1999) (holding “a defendant

cannot conduct the reasonable and diligent investigation . . . when the evidence is in the hands of

the State.”); Carter v. Bigelow, 787 F.3d 1269, 1282 (10th Cir. 2015) (holding “the prosecutorial

obligation to turn over material exculpatory or impeachment evidence continues throughout the

judicial process” (internal quotations omitted); Starns, 524 F.3d at 619 (holding, in a case in

which the State disclosed a witness’s address but downplayed the witness’s significance that

“hindsight is 20/20; . . . there was no requirement that [a petitioner] act diligently to investigate

further assuming the state could be taken at its word”).

It also clear that when considering reasonable diligence, the significant physical

limitations on what is practicably possible for an indigent person who is incarcerated are

relevant. The Fifth Circuit has held a party does not want for diligence for “for not undertaking .

. .[an] extraordinary effort.” In re Wilson, 442 F.3d 872, 877 (5th Cir. 2006). Courts have

expressly held that imprisonment limits what an applicant can be expected to do and is a relevant

factor in evaluating diligence. Moore v. United States, 438 Fed. Appx. 445, 450 (6th Cir. 2011)

(holding courts must “take into account the realities of the prison system”) (unpublished); Alcox

v. Hartley, 407 Fed. Appx. 174, 175 (9th Cir. 2010) (reversing for district court’s failure to

consider applicant “was imprisoned and destitute, and that until he obtained volunteer counsel

and an investigator, it would not have been reasonable to have expected him to undertake such a

daunting, comprehensive investigation from his prison cell”) (unpublished); Moore v. Knight,

51
368 F.3d 936, 939-40 (7th Cir. 2004) (holding “diligence inquiry should take into account that

prisoners are limited by their physical confinement.”); Schlueter v. Varner, 384 F.3d 69, 75 (3d

Cir. 2004) (holding “physical confinement can limit a litigant’s ability to exercise due

diligence”). As detailed below, when the limitations imposed on Ms. Johnson are considered

together with the State’s failure to perform its duty in disclosing the evidence at issue, it is clear

this Application is being filed within one year of when the factual predicate of the Brady claim

could have been discovered through the exercise of reasonable diligence.

2. The State hid the relevant evidence for almost four decades.

The Brady evidence that is the basis for Ms. Johnson’s claim, Ex. 3, 5, 6, 7, 8, 9, 10, 11,

13, 14, 15, 41 and 42, was all located within files created and maintained by State actors—the

New Orleans Police Department and the Orleans Parish District Attorney’s Office. (Ex. 47). As

discussed within Claim I above, this evidence was never disclosed to Ms. Johnson or her

representatives. In addition to a lack of disclosure, the State also denied the existence of Brady

evidence in this case. (Ex. 4, Ex. 48). In some cases, particularly concerning the time of the

offense, the State provided incorrect information to the defense.18 For example, in an answer to

Ms. Ligon’s Bill of Particulars, the State alleged that the exact date and time that the offense was

alleged to have occurred was July 16, 1977 at 12:30PM. (Ex. 48). In reality, this was, at best, an

approximation for when homicide detectives arrived on the crime scene. (Ex. 2).

In reality, the State’s subterfuge in this case began even before the ink had dried on

Detective Kastner’s Offense Against Persons Report in the Samson homicide. (Ex. 2). The Brady

evidence upon which Ms. Johnson’s claim is now based was all omitted from the official report

18
To be clear, these discovery responses and information requests were all provided to Ms. Ligon and her
counsel. Ms. Johnson’s counsel made no discovery requests. (Ex. 38).

52
documenting the investigation of Arthur Samson’s murder. The police failure to incorporate this

information into the official narrative of the investigation is telling. Important interviews and

information were documented largely through informal, handwritten notes. (Ex. 5, 6, 13, 15).

Despite being authored at the investigation’s conclusion, the official report in this case ignores

the vast majority of the investigation conducted; the State clearly had no intention of

disseminating this information. Even had Ms. Johnson secured the Offense Against Person

Report authored in her case—as she eventually did in the early 2000s when she secured a portion

of the District Attorney’s file concerning her prosecution—she would have remained unaware of

the vast majority of favorable information known to the State.

For reasons that may never be fully known, the State withheld and hid favorable evidence

in this case from 1979 until it was first made available to Innocence Project New Orleans on

October 31, 2015. (Ex. 47, Ex. 40).

3. Ms. Johnson has spent her incarceration as an indigent with—until

recently—no outside help.

Ms. Johnson was born into an extraordinarily difficult life. She never knew her father and

had a limited relationship with her mother. (Ex. 35). Ms. Johnson’s mother had at least 19

children from many different men; given this reality, money, food and resources were scant and

the children were raised by anyone who would take them. (Ex. 35). Due to this upbringing, Ms.

Johnson was estranged from the vast majority of her relatives. (Ex. 35). This lack of support

only grew direr with time, as Ms. Johnson was convicted to a life sentence and became even

more isolated. (Ex. 35).

During the period of her incarceration, Ms. Johnson has received minimal visits. (Ex. 35).

Her only consistent visitor and family member for the vast majority of her incarceration was her

53
twin sister Francis. (Ex. 35). Francis was limited in her ability to assist Ms. Johnson due to her

own ignorance of the law and criminal justice system, as well as indigence and severe health

problems. (Ex. 35). Francis, who is now deceased, had four children and was never able to work

successfully or hold down employment. (Ex. 35). Until recently, Ms. Johnson maintained no

other family connections. (Ex. 35). Ms. Johnson has never had the benefit of outside persons to

assist her in obtaining documents or otherwise investigating or litigating her case. (Ex. 35).

At the time of her arrest, Ms. Johnson had no regular source of income save for

prostitution and was unable to afford an attorney. (Ex. 35). Once she was convicted and

incarcerated in the Louisiana Correctional Institute for Women (LCIW) she got a job and began

to earn a wage of 4 cents per hour. (Ex. 35). It was only when she eventually became an Inmate

Counsel Substitute (ICS) around 1989 that she was promoted to a wage of 20 cents per hour.

(Ex. 35). Ms. Johnson occasionally received small amounts of money from distant family or

acquaintances, but never received regular monetary gifts. (Ex. 35). Between Ms. Johnson’s

prison employment and small gifts, it was difficult to save up any meaningful amount of money.

(Ex. 35). Prisoners typically need to use their earned income and gift funds to pay for necessities

like toiletries, stamps, canteen food and the like. (Ex. 49). Hiring an attorney or investigator has

always been prohibitively expensive for Ms. Johnson, as it is for the vast majority of inmates.

(Ex. 49, Ex. 35).

For people incarcerated in a correctional facility, obtaining documents is a unique

challenge. “The most difficult task ICS have is obtaining documents from outside prison.” (Ex.

49). Not only are inmates forced to pay for the documents they request, but it can be difficult to

even “get a response from a records custodian when seeking records from inside prison.” (Ex.

49). Having the ability to speak to records custodians in person and physically view files is a

54
great advantage when attempting to obtain records. (Ex. 49). Until recently, Ms. Johnson never

had anyone outside of prison that could assist her in obtaining records. (Ex. 35).

4. Ms. Johnson has made diligent efforts to investigate her case from inside
prison, but these efforts were not enough to find the evidence that the State
had in its possession.

As discussed in Ms. Johnson’s Brady claim, the State was obligated to disclose the

favorable information prior to trial. It did not do so. Ms. Johnson was similarly entitled to rely on

the State to disclose all favorable evidence. “Ordinarily, we presume that public officials have

properly discharged their official duties.” Banks v. Dretke, 540 US 668, 696 (2004). As

discussed above, due diligence does not require a petitioner to assume the State is violating the

Constitution.

Notwithstanding her entitlement to rely on the State playing fairly, Ms. Johnson made

repeated written requests and litigation attempts in an effort to obtain information and

documentation concerning her case. (Ex. 44, Ex. 45, Ex. 29, Ex. 30, Ex. 35). Ms. Johnson

attempted to solicit assistance in investigating and litigating her case. (Ex. 35, 47). Ms. Johnson

attempted to learn about the law such that she might be better able to help herself. (Ex. 35).

However, none of these attempts were successful in allowing Ms. Johnson to discover the

information that the State had kept hidden.

Ms. Johnson attempted to harness the power of the law to access documents and

information related to her case. As early as 1982, Ms. Johnson attempted to obtain a free copy of

her transcripts by filing a written request with the trial court. (Ex. 44 at 1). She continued these

attempts for years, and requested her trial transcript and court papers twice in 1985, and again in

1986, 1991, 1993, and 2010. (Ex. 44). Ms. Johnson also frequently wrote to various agencies

attempting to gain access to her records and documents concerning her case. (Ex. 45).

55
 Ms. Johnson recognized the necessity of obtaining documents related to her case and

made repeated requests. In 1993, for example, Ms. Johnson attempted to request a copy of her

Orleans Parish District Attorney’s file, but was informed that the agency was exempted from

providing copies. (Ex. 45 at 3). Though Ms. Johnson was offered the option for herself or a

representative to review her file, she was obviously unable to do so because she was incarcerated

and she had no available representative. (Ex. 45 at 3). Ms. Johnson wrote to a variety of agencies

in an attempt to secure documents, including police reports and information concerning her

arrest: the Orleans Parish District Attorney’s Office, the New Orleans Police Department, the

Louisiana State Archives, the Orleans Parish Sheriff’s Office, the Louisiana Supreme Court, the

Public Integrity Bureau, the New Orleans Public Library, and the LSU Law Library. (Ex. 45).

Ms. Johnson repeatedly attempted to obtain information and documents in her case. Though she

made copies (handwritten or printed) of some of the requests that she sent out, she was unable to

always keep a copy for herself. (Ex. 35). Thus, the examples included here are only a sample of

her attempts to secure documents in her case.

When her own attempts to secure records were not successful, Ms. Johnson attempted to

request help from both Innocence Project New Orleans as well as the national Innocence Project.

(Ex. 47, Ex. 35). Ms. Johnson even reached out to other inmates who she believed might be more

knowledgeable in legal matters and secured the assistance of a male inmate in the Louisiana

State Penitentiary, Vincent Simmons, to request documents and attempt a variety of legal

strategies to obtain information. (Ex. 35). With Mr. Simmons assistance, Ms. Johnson was able

to receive a copy of the Orleans Parish District Attorney’s Office’s file in her case. (Ex. 35, Ex.

47). However, even having secured access to the Offense Against Person Report authored by

Detective Kastner that was contained within the OPDA Samson homicide file, Ms. Johnson had

56
no reason to suspect that the police had actually strategically omitted information concerning

their investigation from the report.

Ms. Johnson repeatedly rose to the considerable challenge of obtaining documents and

files from within prison, but despite her diligent efforts, she was still unable to uncover the vast

amount of Brady information that the State had hidden from her since 1977.

5. Ms. Johnson only recently obtained the investigative assistance that this case
necessitated.

IPNO is a non-profit law office that provides free representation to inmates with provable

claims of factual innocence. (Ex. 40). As such, IPNO is the only hope for prisoners in Ms.

Johnson’s situation, who are innocent but without resources to prove it; except as noted above,

Ms. Johnson had no investigative assistance prior to IPNO’s involvement in her case.

IPNO performs extensive investigation on the cases it considers for litigation. IPNO’s

“review of cases consists of exhaustive records review and follow-up investigation.” (Ex. 40).

IPNO’s office policy necessitates the review of court files and transcripts of not only the

contested conviction, but also of any related cases. (Ex. 40, Ex. 47). To obtain case documents,

IPNO makes Public Records Act requests to all the agencies involved in the investigation, both

for records concerning the instant case, as well as any tangential cases. (Ex. 40, Ex. 47). IPNO

attorneys and investigators have the ability to personally follow up on records requests, as well

as the ability to physically view records in person, allowing for the possibility of scanning or

photographing documents to save funds. (Ex. 47). The ability to view documents in person is

also critical to collecting records in older cases, as many older cases do not have records scanned

or otherwise computerized; IPNO representatives are able to request and view original files. (Ex.

47). The benefits of having the ability to request and view records in person are numerous,

57
including having the opportunity to cultivate positive relationships with records custodians and

encouraging custodians to conduct additional searches for responsive documents. (Ex. 47).

Investigation, even investigation that is primarily document-based, can take a great deal

of time. Records requesters must identify the documents to be requested, make the appropriate

requests directed to the correct custodians, and then repeatedly follow up on those requests until

they are fulfilled. (Ex. 47). IPNO is successful in conducting investigation because it is able to

do so without being concerned with billable hours or the amount of time it has taken to locate a

single document. (Ex. 47, Ex. 40). Until IPNO began assisting Ms. Johnson in investigating her

case, she did not have access to the investigative assistance necessary to obtain the Brady

information in her case.

6. The efforts necessary to obtain the evidence show it could not have been
found earlier by Ms. Johnson through the exercise of reasonable diligence.

Ms. Johnson could not have possibly replicated the efforts through which IPNO finally

obtained the favorable evidence in her case, even through her exercise of reasonable diligence.

a. New Orleans Police Department file for Samson homicide

IPNO attorney Charell Arnold obtained the NOPD file corresponding to the Samson

homicide investigation as the result of an intensive back and forth with a known records

custodian that took place over six months. (Ex. 47). After making her initial public records act

request, Ms. Arnold was forced to repeatedly follow up in an attempt to actually secure

documents. (Ex. 47). In all, Ms. Arnold contacted the records custodian on at least twelve

different occasions to either check on the progress of searching for the records or to arrange to

view records that were located in response to this request. (Ex. 47). It is no surprise that Ms.

Johnson was unable to receive a response to any of her many requests for her police reports sent

58
via mail, as Ms. Arnold’s experience demonstrated that records must be teased out of the NOPD,

step by step. (Ex. 47).

Despite having made an very broad initial public records act request, Ms. Arnold was

only provided with the portion of the records that were scanned into the NOPD computer system.

(Ex. 47). However, since this initial segment of documents almost exclusively contained

handwritten notes, and no official police report, it was not immediately apparent that these

documents were even responsive to the initial request. (Ex. 47). If Ms. Arnold not been there

with the records custodian, in person, to confirm that the notes did correspond to the request,

these initial documents never would have been turned over. (Ex. 47). Furthermore, if Ms. Arnold

had not insisted that these documents could not be the entirety of the homicide investigation file,

the request would have been marked as completed after this initial disclosure because there were

no more documents scanned into the computer system under this item number. (Ex. 47).

Though well intentioned, the records custodian assigned to fulfill this request had no

institutional knowledge of where responsive documents might be located or how they could be

obtained. (Ex. 47). Even if Ms. Johnson managed to make a records request for the Samson

homicide file via mail (not the NOPD’s preferred method) she would have been unable to obtain

any of the non-scanned items unless she was specifically able to direct the records custodian to

where such documents were kept. (Ex. 47). To achieve this, Ms. Arnold sought out and hired an

independent consultant with a background in NOPD’s records retention policies in an attempt to

educate the records custodian about the types of records available and how they could be found.

(Ex. 47). IPNO paid this consultant to help craft a records request that would outline the many

types of documents that must be searched for and where these documents may be kept. (Ex. 47).

Not only would Ms. Johnson not have had the funds available to pay a consultant to help create a

59
more effective records request, but she would never been able to locate and communicate with

this consultant while incarcerated.

Even after alerting the NOPD records custodian to where specific information and

documents were held, Ms. Arnold still had to repeatedly follow up and continue to make requests

for documents. (Ex. 47). To view the original homicide case file, Ms. Arnold was forced to set

up three different in-person meetings with officials in the Homicide Division. (Ex. 47). The

Homicide Division cancelled two of the three meetings and only scheduled the third appointment

in response to a letter threatening litigation under the Public Records Act if another appointment

for viewing the records was not scheduled and kept. (Ex. 47). Once Ms. Arnold was afforded the

opportunity to view the original file, she found a number of documents that were never scanned

into the NOPD computer system; thus, without specifically requesting to view the original file,

these documents never would have been discovered. (Ex. 47). Ms. Johnson, nor any incarcerated

person without outside assistance, would ever be able to view an original homicide file in person.

(Ex. 49).

Ms. Johnson made repeated attempts to request the police file concerning her case over

the years, as well as requesting her police reports. (Ex. 35). None of Ms. Johnson’s requests to

the NOPD were ever answered—demonstrating the often fruitless task of attempting to request

records while incarcerated. (Ex. 35, Ex. 45).

b. New Orleans Police Department file for Seymour homicide

Ms. Arnold requested to review the Seymour homicide file due to IPNO’s policy of

requesting and gathering information from all available sources, even if only tangentially

connected to the case being investigated. (Ex. 40, Ex. 47). Ms. Johnson had no reason to believe

that Brady information about her case and conviction would be hidden in the police file for a

murder for which she was never charged or suspected. The fact that the reports concerning Ms.

60
Johnson’s arrest and the circumstances surrounding the traffic stop would be categorized under

the Seymour homicide item number was not an obvious conclusion.

Because the item number for the Seymour homicide was not included within any of Ms.

Johnson’s paperwork or documents, Ms. Arnold made the initial records request using only the

victim name and date. (Ex. 47). NOPD is typically able to locate a homicide file by utilizing

victim name, yet, in this case, Ms. Arnold was required to provide additional personal

information including victim race, birth date, address and social security number. (Ex. 47). As a

trained investigator, Ms. Arnold, was able to utilize online paid subscription newspaper archives

to learn three of the four required pieces of information. (Ex. 47). Ms. Johnson, incarcerated

without such research tools available, would have had no means of locating additional victim

information. (Ex. 47). Only after conducting additional document investigation was Ms. Arnold

able to locate an Item Number for the Seymour homicide. (Ex. 47). After providing additional

victim information and an item number, Ms. Arnold finally secured the documents after

contacting the records custodian to follow up on the status of the request eight times over the

course of a month. (Ex. 47).

The Robyn Seymour homicide file presented to Ms. Arnold for viewing was 446 pages

long. (Ex. 47). Under the NOPD’s copy rates, the cost of buying a copy of this file would have

been $461. (Ex. 47). Given that there is no way to buy only a portion of a file that you cannot

view, Ms. Johnson would have been forced to pay $461 to procure a copy of this report, had she

ever been able to successfully request it. (Ex. 47). For Ms. Johnson, an indigent woman with

very scarce outside support and a prison job making 20 cents per hour (at its most lucrative),

saving a sum of this magnitude would be inconceivable. (Ex. 35, Ex. 49).

c. New Orleans Police Department file for rape and armed

robbery

61
 Per IPNO’s policy of requesting and gathering information from all available sources,

even if only tangentially connected to the case being investigated, Ms. Arnold requested to view

the armed robbery and rape file. (Ex. 40, Ex. 47). Though Ms. Johnson was a suspect in this

case, she was never tried or convicted of this crime. As such, Ms. Johnson would have no reason

to believe, or even suspect, that there would be Brady information concerning her first-degree

murder conviction within this unrelated rape file.

Once Ms. Arnold was able to view the file, she was provided with a very poor quality

copy that was so heavily redacted that it could barely be read; given her good relationship with

the records custodian, she was able to request that she be provided with a higher quality, non-

redacted copy. (Ex. 47). This is the type of cooperative working relationship that takes time and

personal interaction to build—something that Ms. Johnson, being incarcerated, never would have

achieved. (Ex. 47). Even had Ms. Johnson successfully requested this file, she would have been

provided with a document too poorly copied and redacted to read, which she would have had to

pay for. (Ex. 47). The possibility of an incarcerated person being sent an un-redacted file when

they were initially provided with a redacted version is equally unlikely. Even through reasonable

diligence, Ms. Johnson could not have obtained these documents.

d. New Orleans Police Department fingerprint log book

Ms. Arnold obtained the fingerprint log book entry corresponding to the Arthur Samson

homicide only once she specifically learned about the existence of the latent print log books and

where these books would be stored within the NOPD. (Ex. 47). In this case, Ms. Arnold was

forced to hire a consultant to educate herself about the NOPD’s record retention policies so that

she could then educate the NOPD records custodian about the types of records that could be

available in response to her request. (Ex. 47). Ms. Arnold obtained the fingerprint log book entry

in this case because she specifically asked for it and was able to direct the record custodian to the

62
unit where it would be held. (Ex. 47). Even after taking this action, Ms. Arnold relied upon a

friend of the record custodian in the latent print unit to actually conduct the physical search

through the log books to locate the responsive record. (Ex. 47). Ms. Johnson would have had no

way to even know of the fingerprint log book’s existence, much less that it would contain

favorable information that she should seek out.19

e. Orleans Parish District Attorney’s Office file for Samson

homicide

The portion of the Brady material upon which this claim is now based that was found

within the Orleans Parish District Attorney’s Office file concerning the Samson homicide

prosecution, was located in the section of materials withheld as being privileged. (Ex. 47). The

privilege list prepared by Val Solino demonstrated that the Kimberly Ligon dismissal memo was

considered privileged work product not subject to disclosure under the Public Records Act. (Ex.

47). When Ms. Arnold originally requested to view the Samson homicide OPDA file, she was

not presented with the Ligon dismissal memo. (Ex. 47). It was only after Ms. Arnold contacted

Mr. Solino and questioned the rationale of withholding some of the materials that Mr. Solino

made the gesture of presenting the withheld materials for review and waiving privilege for this

particular set of requests. (Ex. 47). Mr. Solino made clear that this decision was a unique

occurrence that would not carry over to other OPDA cases. (Ex. 47). Ms. Arnold has never

worked on a case where the OPDA waived privilege in this manner while conducting records

responses. (Ex. 47).

19
As discussed above, Ms. Johnson was entitled to rely upon the State’s representations. At trial,
Detective Kastner testified that there were no surfaces within The Mint that produced fingerprints suitable
for identification purposes. (Ex. 1 at 46). Given this information, Ms. Johnson had no reason to believe
that there actually were useable fingerprints recovered from the crime scene and that these useable
fingerprints were identified as not belonging to her.

63
 Whatever the reason underlying Mr. Solino’s waiver of privilege with regard to this

document, it is clear that it was not a benefit that Ms. Johnson ever enjoyed. When Ms. Johnson

successfully obtained the OPDA file in case 261-130, the privileged items were all removed.

(Ex. 45 at 19). It is inconceivable that the District Attorney’s Office would waive privilege for an

incarcerated inmate without reason; Ms. Johnson could not have obtained these documents

through reasonable diligence.

f. Orleans Parish District Attorney’s Office file for Seymour

homicide

Ms. Johnson had no reason to believe that Brady material concerning her conviction

would be located within a file concerning someone else’s prosecution for a crime with which she

was never charged or particularly suspected. Had she requested the file for the prosecution of the

Seymour homicide, she would have been forced to purchase the entirety of the file, as she would

have been unable to view and purchase only specific documents while incarcerated. (Ex. 49).

Given the extreme volume of the file, even at the OPDA’s more reasonable copy rates, she likely

would have been forced to pay at least $500 if not more, plus shipping charges. (Ex. 47, Ex. 45).

Even then, Ms. Johnson would not have been provided with access to the privileged materials, as

discussed above in point e. (Ex. 47).

Ms. Arnold was able to locate the Brady information in this file because she was granted

special access to the privileged materials, a perk she specifically negotiated by questioning the

legal rationale for the withholding. (Ex. 47). Additionally, Ms. Arnold was able to personally

view the entirety of the file, alleviating the need for expensive copying costs. (Ex. 47). Ms.

Johnson would never have been able to successfully obtain this information through the exercise

of reasonable diligence.

B. Ms. Johnson’s Application is timely under McQuiggin v. Perkins.

64
 1. Relevant Law

The Supreme Court held in McQuiggin Perkins, 133 S. Ct. 1924 (2013), that, if a habeas

applicant shows that “no juror, acting reasonably, would have voted to find him [or her] guilty

beyond a reasonable doubt,” then her claims cannot be barred from merits review due to the

expiration of the statute of limitations. Id., 133 S. Ct. at 1928 (quoting Schlup v. Delo, 513 U.S.

298, 329 (1995)). This standard, sometimes referred to as the “miscarriage of justice exception,”

pre-dates the Perkins case. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Schlup, 513

U.S. 298; House v. Bell, 547 U.S. 518 (2006). The Court previously used the standard to

determine whether review of the merits of claims was required regardless of procedural defaults,

and, in Perkins, applied the same standard to require such review regardless of the statute of

limitations. Perkins, 133 S. Ct. at 1928. The Court held in Perkins that the “gateway to federal

habeas review applied in Schlup v. Delo and further explained in House v. Bell,” will “serve[] as

a gateway through which a petitioner may pass whether the impediment is a procedural bar . . .

or, as in this case, expiration of the statute of limitation.” 133 S. Ct. at 1298 (citations omitted).

Meeting the standard “requires ‘new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented

at trial,’ [but] the habeas court’s analysis is not limited to such evidence.” House, 547 U.S. at 537

(quoting Schlup, 513 U.S. at 324) (internal citation omitted). “[T]he habeas court must consider

all the evidence, old and new, incriminating and exculpatory, without regard to whether it would

necessarily be admitted under rules of admissibility that would govern at trial.” House, 547 U.S.

at 538 (internal citations and quotations omitted). Further, “[u]nexplained delay in presenting

new evidence bears on the determination whether the petitioner has made the requisite showing.”

Perkins, 133 S. Ct. at 1935.

65
 The Schulp-House-Perkins standard does not require a “conclusive exoneration.” House,

547 U.S. at 553. It also does not require the affirmative showing of innocence that would be

necessary for any hypothetical freestanding innocence claim. Id. at 555 (noting that “Herrera [v.

Collins, 506 U.S. 390 (1993)] requires more convincing proof of innocence than Schlup”).

Instead, as explained by the Court in House:

[T]he Schlup standard does not require absolute certainty about the
petitioner’s guilt or innocence. A petitioner’s burden at the
gateway stage is to demonstrate more likely than not, in light of the
new evidence, no reasonable jury would find him guilty beyond a
reasonable doubt --- or, to remove the double negative, that more
likely than not any reasonable juror would have reasonable doubt.

547 U.S. at 538 (emphasis added). In applying this standard, federal courts should not defer to

the original verdict even if there was sufficient evidence at the time to support it:

When confronted with [an insufficiency] challenge based on trial

evidence, courts presume the jury resolved evidentiary disputes
reasonably so long as sufficient evidence supports the verdict.
Because a Schlup claim involves evidence the trial jury did not
have before it, the inquiry requires the federal court to assess how
reasonable jurors would react to the overall, newly supplemented
record.

Id. As detailed below, Ms. Johnson meets this standard.

2. In light of the evidence now known, it is likely no reasonable jury would

convict Ms. Johnson.

Given the critical flaws in the case against Ms. Johnson, it is likely that any juror would

have at least a reasonable doubt as to her guilt. The new evidence—including physical evidence

and “earwitness” accounts—leaves too many problems with the prosecution’s case for a jury to

convict. A jury now would hear Kimberly Ligon had a financial motive to rob a rich target (see

pp. 15-16), Kimberly Ligon was closely tied to the murder weapon used in the crime (see pp. 12,

17-18), Kimberly Ligon fit the profile of prostitutes the victim would hire (see p. 14), a woman

matching Kimberly Ligon’s description was last seen with the victim as he was driven to his

66
death (see pp. 13-14), and the victim appeared to have engaged in sexual activity before his death

(see p. 23-25). A jury would also hear that fingerprints from an unknown person—not Ms.

Johnson—were found at the crime scene (see pp. 16-17).

In order to persuade a jury that Ms. Johnson was guilty of murder, in addition to

Kimberly Ligon, the prosecution could only point to her confession as direct evidence of guilt.20

If presented this evidence, the jury would also hear Ms. Johnson’s account of the brutality being

used to obtain the confession (see pp. 18-19), that one of the four interrogating officers brazenly

referred to her as “bitch” in his notes (see p. 18), that all four interrogating officers have been

implicated in misconduct related to interrogations including one being convicted of federal

crimes based on the exact same conduct as Ms. Johnson alleged (see p. 18), and that three of the

four interrogating officers are now convicted felons (see pp. 19-20). A reasonable jury could not

rely on a confession in the face of such evidence.

The challenge to the confession’s reliability would not be limited to the evidence of

brutality and disgraceful records of the interrogating officers. A jury would now hear that many

of the facts asserted in Ms. Johnson’s confession are simply wrong and that the best explanation

for these errors is that Ms. Johnson was not at the crime scene and did not know the details of the

crime. Ms. Johnson confessed to first encountering the victim around 10:30 P.M. or 11:00 P.M.,

at least an hour after he was actually killed (see p. 14), arriving at the crime scene in a car she did

not have access to until many hours after the crime (see p. 14), parking in an area other than

where the apparent getaway car was heard leaving (see p. 14), helping kill the victim in a room

20
The other circumstantial evidence against Ms. Johnson, the fact the murder weapon was in her purse 11
days after the crime and her association with Ms. Ligon, could not prove guilt beyond a reasonable doubt.
This is particularly true as the inculpatory weight of the murder weapon is significantly reduced by the
evidence Ms. Ligon had the gun between the crime and it being found in Ms. Johnson’s purse (see p. 12)
and the evidence Ms. Johnson did not know anything about the murder weapon (see p. 17).

67
other than where he was obviously killed (see p. 22), striking the victim more times than the

perpetrator did (see p. 21), and killing a person she described as being six inches shorter and

twenty years younger than the victim (see p. 21). In addition to these specific details, the

confession fails to give a coherent overall narrative of the crime (see p. 9). A reasonable juror

hearing this confession would have at least a reasonable doubt as to Ms. Johnson’s guilt.

Ms. Johnson’s case is comparable to others that have been found to have met the Schulp-

House-Perkins standard. The applicant in House was found to have met the standard, despite

other evidence against him, because “the central forensic proof . . . ha[d] been called into

question.” 547 U.S. at 554. Ms. Johnson’s evidence at least calls into question her confession in

this case.

Applying the Schulp-House-Perkins legal standard in Finley v. Johnson, 243 F.3d 215,

220-21 (5th Cir. 2001), the Fifth Circuit held that the State’s failure to disclose a restraining

order against the purported victim so weakened the applicant’s necessity defense that he met the

standard. There was no dispute that the defendant committed the act of aggravated kidnapping

and the defendant’s only chance of an acquittal was successfully raising the affirmative defense

of necessity. Similarly, in Fairman v. Anderson, 188 F.3d 635, 644-45 (5th Cir. 1999), the Fifth

Circuit held that an applicant had met the Schlup standard when the applicant’s defense was self-

defense and he had told police he hit the purported victim “because he was tired of being ‘picked

at.’” The new evidence of innocence was merely the recantation of an eyewitness who had

testified at trial that he did not see that the victim had a knife. Id. The weakness of the evidence

against Ms. Johnson on the facts now known surely means there is less of a chance of conviction

than in either of these cases.

68
 One application of the Schulp-House-Perkins that is readily comparable to this case is

Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012). In that case the court found the applicant had

made a sufficient showing despite “not trivial” evidence of guilt including “considerable

circumstantial evidence suggesting [the applicant] had an opportunity, and perhaps a motive, to

commit the murder.” Id. at 545, 547. Despite this, the court found that a new expert opinion

(that put the time of death at a time when the defendant had an alibi) was sufficient to meet the

Schlup standard. Id. at 546-47, 547 n. 41. In Ms. Johnson’s case there is also new evidence about

time of death, but—instead of this evidence relying on the imperfect science of time of death

comparison (id. at 544-45)—the considerable evidence comes from the police investigation.

While this time of death evidence rebuts Ms. Johnson’s confession instead of buttressing her

alibi, the principle is the same as in Rivas and, just as Mr. Rivas was found to have met the

standard, so too should Ms. Johnson.

Finally, it is clear that a confession does not preclude an applicant from meeting the

Schulp-House-Perkins standard. In two recent decisions—Floyd v. Cain, 2:11-CV-2819, 2016

U.S. Dist. LEXIS 124660 (Sept. 14, 2016) (remanding for consideration on merits), appeal

docketed, No. 16-31088 (5th Cir. Oct. 19, 2016), and Williams v. Brown, No. 3:09-CV-769, No.

3:10-CV-505, 2016 U.S. Dist. LEXIS 132273 (E.D. Va. Sept. 26, 2016) (remanding for

consideration on merits)—the courts found an applicant had met the Schulp-House-Perkins

despite having confessed to the crime. In the Floyd decision, the court found the misconduct

during the interrogation of another suspect by one of the interrogating officers was one of the

reasons to doubt the confession of the applicant. 2016 U.S. Dist. LEXIS 124660 at *74-75. In

that instance, the evidence of interrogation misconduct caused suppression of aa confession; one

of the instances of interrogation misconduct by an officer in this case led to a federal criminal

69
conviction. The case, as it now stands, is not one that any prosecutor would envy taking to a jury.

More importantly, it is not one that would likely leave any reasonable juror free of reasonable

doubt as to Ms. Johnson’s guilt.

Finally, Ms. Johnson’s claim of ineffective assistance of counsel is timely because, but

for the violation, it is likely that no reasonable jury would convict Ms. Johnson. See McQuiggin

v. Perkins, 133 S. Ct. 1924 (2013). Moreover, it is filed within a year of when all the facts it is

predicated upon could have been discovered “through the exercise of due diligence.” 28 U.S.C. §

2244(d)(1)(D). The parts of the claim not dependent on new evidence were timely raised during

Ms. Johnson’s direct appeal. Any failure to exhaust those aspects is excused by appellate

counsel’s ineffective representation in failing to seek writs to the Louisiana Supreme Court for

denial of the claim by the appellate court.

C. Ms. Johnson is entitled to statutory tolling.

As detailed in the procedural history (see pages 27 to 28), Ms. Johnson has filed several

state court post-conviction applications, but the there is no record of any state court ruling on her

first post-conviction application following her reinstated direct appeal in 1995. The initial

application contained claims that (1) a biased juror was allowed to sit in judgment; (2) the jury

was mis-instructed as to the law of principals, and; (3) the jury was mis-instructed as the law

concerning intent. Ms. Johnson repeatedly sought a ruling from the state courts on various issues,

including seeking mandamus, but through no fault of her own either the state courts failed to rule

on her initial post-conviction application, or the ruling has been lost in the court file.21 Therefore,

it is apparent that Ms. Johnson is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2).

21
This is unfortunately not an isolated incident. See Johnson v. Cain, 68 F. Supp. 3d 593 (E.D. La. 2014)
(Orleans Parish case in which the district court failed to rule on initial post-conviction application for
nearly twenty years).

70
Alternatively, Ms. Johnson requests an evidentiary hearing on whether, and to what extent, her

initial petition was adjudicated by the state courts. Ms. Johnson also reserves the right to brief

any statutory tolling that may be relevant to the timeliness of this Application under 28 U.S.C. §

2244(d) upon completion of state court proceedings.

CONCLUSION

Ms. Johnson has been continuously incarcerated since July 26, 1977, because the State

withheld favorable evidence from her and because her trial attorney failed to adequately

represent her. Ms. Johnson has served almost 40 years for a crime she did not commit. The

evidence now makes it clear that Ms. Johnson would not have been convicted if she had received

a fair trial. She was unable to obtain the evidence establishing this earlier because, as an indigent

raised without the benefit of positive guardianship and victimized repeatedly since she was a

young girl, she lacked the help necessary. This is a case in which a vulnerable member of society

has never before had her case adequately investigated or litigated, and as a result, has suffered a

wrongful conviction. This is exactly the kind of case the federal courts should review on the

merits and exactly the kind of case in which they should grant relief.

WHEREFORE, for these reasons, Ms. Johnson seeks:

1. Leave to amend her Petition as other facts may become known;

2. Leave to brief her procedural situation when state court proceedings are complete;

3. Leave to respond to any arguments the State might make;

4. Leave to complete any discovery not completed in state court;

5. Appointment of counsel in this case;

6. An evidentiary hearing on 28 U.S.C. 2244(d) and any other defenses the State may raise;

7. An evidentiary hearing on the merits of his claims;

8. Relief from her conviction in this case;

71
9. Relief from her sentence in this case; and

10. Such other relief as equity and justice may require.

Respectfully submitted,

/s Cecelia Trenticosta Kappel__

Caroline Wallace Tillman, La. Bar No. 31411
Cecelia Trenticosta Kappel, La. Bar No. 32736
The Promise of Justice Initiative
636 Baronne Street
New Orleans, LA 70113
(504) 529-5955

Counsel for Bobbie Jean Johnson

Certificate of Service

I hereby certify that a that a true and correct copy of the foregoing document has been
filed with the Clerk of the Court by using the CM/ECF System which will send a notice of
electronic filing to all counsel of record on this 31st day of October, 2016.

/s Cecelia Kappel

72
Case 2:16-cv-15977-NJB-KWR Document 1-1 Filed 10/31/16 Page 1 of 1
 Case 2:16-cv-15977-NJB-KWR Document 1-2 Filed 10/31/16 Page 1 of 116

APPENDIX
Exhibit 1 Trial Transcript, State of Louisiana V. Bobby Jean Johnson, No, 261-130........................2

Exhibit 2 NOPD Samson Offense Against Person Report………..................................................100

Exhibit 3 NOPD Samson Canvass Report…………………...........................................................116

Exhibit 4 Prayer for Oyer and Response ........................................................................................118

Exhibit 5 NOPD Samson Handwritten Note...................................................................................126

Exhibit 6 NOPD Samson Questioning Kim note............................................................................148

Exhibit 7 NOPD Samson Eviction Notice……...............................................................................151

Exhibit 8 NOPD Samson Ralph Miller Information.......................................................................153

Exhibit 9 OPDA Ligon Dismissal Memo .......................................................................................155

Exhibit 10 NOPD Samson Finger Print Card ...................................................................................157

Exhibit 11 NOPD Venezia Note…………........................................................................................159

Exhibit 12 NOPD Rape Offense Against Person Report………………….......................................161

Exhibit 13 OPDA Notes on gun in Kim’s house……………...........................................................168

Exhibit 14 NOPD Seymour Carolyn Gibson Statement ………………….………………..............170

Exhibit 15 NOPD Seymour Marigny Notes...............………………………………………….......175

Exhibit 16 NOPD Seymour 32 Revolver Notation......................…..................................................177

Exhibit 17 OPDA Marigny Statement………………………...........................................................179

Exhibit 18 NOPD Samson BJJ Statement ........................................................................................181

Exhibit 19 OPDA Samson Autopsy………......................................................................................185

Exhibit 20 Height and Weights of KL and BJJ……………….........................................................189

Exhibit 21 Kimberly Ligon Photo #1……........................................................................................191

Exhibit 22 Kimberly Ligon Photo #2…………………....................................................................193

Exhibit 23 Kimberly Ligon Booking Photo.......................................................................................195

Exhibit 24 Victim Belt Buckled Photo……......................................................................................197

Exhibit 25 NOPD Seymour Offense Against Person Report ...........................................................199

 Case 2:16-cv-15977-NJB-KWR Document 1-2 Filed 10/31/16 Page 2 of 116

Exhibit 26 Kastner Obituary…………………………..………………….......................................270

Exhibit 27 Motion for Prelim Cuccia…………..……………..........................................................273

Exhibit 28 Kerry Cuccia Affidavit………..………………………………………………..............275

Exhibit 29 Letter to Section F………………………………………………………........................278

Exhibit 30 Letter to Lombard from BJJ…………………...………..................................................283

Exhibit 31 Advocate Venezia Adams Article……….………...........................................................286

Exhibit 32 NYT Algiers Verdict Article...........................................................................................307

Exhibit 33 Baumler RTSC Letter…………......................................................................................310

Exhibit 34 CDC Docket showing appointments…............................................................................312

Exhibit 35 Bobblie Jean Johnson Affidavit.……..............................................................................314

Exhibit 36 BJJ Times Pic Article…………………….......................................................................319

Exhibit 37 Baumler Contempt Article…….......................................................................................321

Exhibit 38 Pretrial Docket………………….....................................................................................324

Exhibit 39 Annotated Confession from OPDA.................................................................................328

Exhibit 40 Emily Maw Affidavit………………………………………….......................................342

Exhibit 41 Gun Evidence Card……………………………..............................................................344

Exhibit 42 Gun Chain of Custody Note………………. ………………….………………..............347

Exhibit 43 Woodall Civil Service Record...............…………………………………………..........349

Exhibit 44 Attempts to get Transcripts and Documents Pleadings...................................................355

Exhibit 45 Attempts to get Documents Letters………………..........................................................377

Exhibit 46 Venezia Civil Service Record .........................................................................................403

Exhibit 47 Charell Arnold Affidavit………......................................................................................411

Exhibit 48 Bill of Particulars Answer………...……………….........................................................422

Exhibit 49 Calvin Duncan Affidavit …….........................................................................................424

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EXHIBIT 1
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EXHIBIT 2
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EXHIBIT 3
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EXHIBIT 4
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EXHIBIT 5
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EXHIBIT 6
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EXHIBIT 7
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EXHIBIT 8
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EXHIBIT 9
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EXHIBIT 10
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EXHIBIT 11
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EXHIBIT 12
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EXHIBIT 13
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EXHIBIT 14
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EXHIBIT 15
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EXHIBIT 16
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EXHIBIT 17
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EXHIBIT 18
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EXHIBIT 19
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EXHIBIT 20
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EXHIBIT 21
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EXHIBIT 22
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EXHIBIT 23
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EXHIBIT 24
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EXHIBIT 25
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