[Deathpenalty] death penalty news-----TEXAS

[Rick Halperin]

July 19



URGENT ACTION APPEAL

19 July 2007----UA 187/07 Death penalty / Legal concern

USA (Texas) Lonnie Earl Johnson (m), black, aged 44

Lonnie Johnson is scheduled to be executed in Texas on 24 July. He was
sentenced to death in 1994 for the murder of two white teenagers in 1990.
He has consistently maintained that he acted in self-defense, and an
appeal newly filed on his behalf alleges that the prosecution withheld
evidence that supported his claim.

The bodies of Gunar Nelson Fulk, aged 16, and Leroy McCaffrey, aged 17,
the latter with a knife in his hand, were found near a rural road in
Tomball in Harris County, eastern Texas, on 15 August 1990. Both had been
shot. Police interviewed a woman, Tammy Durham, who said that she had
asked the teenagers to come to the store where she worked after she saw a
black man, wearing cut-off jeans and a dirty shirt and carrying a rolled
up newspaper, acting suspiciously near the store. After the teenagers
arrived, she saw them approach a black man who was using a payphone
outside the store and she said they left with him in their vehicle, after
asking for a can of petrol.

The police identified Lonnie Johnson, a 27-year-old man with no criminal
record, as a suspect. They obtained a statement from his girlfriend who
said that he had arrived at her hotel room in the city of Austin in Gunar
Fulk's vehicle in the early hours of 16 August 1990, and said that he had
shot the two teenagers. They subsequently took Lonnie Johnson into
custody, without a warrant, and obtained a statement which stated that he
had acted in self-defense after a gun was pulled on him and that he had
not known the two teenagers prior to that evening.

Lonnie Johnson was charged with capital murder. The defense lawyer sought
to have Lonnie Johnson's police statement suppressed on the grounds that
it was the product of an unlawful arrest. The trial judge agreed and ruled
that the statement was not admissible. However, the state appealed and a
higher court overturned the trial judge's ruling. The trial continued in
September 1994. According to the appeal just filed, at the trial the
prosecution ''seemed to argue that either Mr Johnson did not know the men
and feigned car trouble, or the men knew Mr Johnson in the context of drug
dealing. The state argued that Mr Johnson either shot the men in order to
steal Fulk's truck, or shot the men over money owed for a drug debt.''
Although Tammy Durham was unable to positively identify Lonnie Johnson,
the prosecution argued that he was the man whom she had seen and suggested
that he had been carrying a gun wrapped in the newspaper. Johnson was
found guilty of capital murder and after the prosecution produced numerous
witnesses to testify that the defendant was violent, had a bad temper, and
hated whites, he was sentenced to death.

After the trial, one of the witnesses who had testified in support of the
prosecution's argument that Lonnie Johnson would pose a future danger to
society if allowed to live - a prerequisite for a death sentence in Texas
- recanted his testimony. In an affidavit, the witness said that: ''The
statements that I made at trial about Lonnie displaying a handgun and
wanting to kill a motorist were all false. These were statements made to
make the District Attorney happy, so she would secure my early release
from prison''. However, the courts have ruled that this witness had not
been promised anything in return for testifying, and that his testimony
had not affected the outcome of the trial.

According to the appeal just filed in the state courts, Lonnie Johnson
continues to maintain that he had been out running on the evening of the
shooting. At the store in which Tammy Durham was working, he had accepted
an offer of a lift from the two teenagers. He maintains that he was not
wearing cut-off jeans or a dirty shirt or carrying a newspaper. He says
that after a few miles in the truck, Leroy McCaffrey had produced a gun,
saying something like ''nigger, this is the end of the ride for you'', and
Gunar Fulk had pulled the truck over to the side of the road. Lonnie
Johnson claims that he was ordered out of the vehicle, made to lie face
down on the ground, and that he was kicked, racially abused and urinated
upon. He was then ordered to stand up. Johnson says that, although his
memory of what happened next is not clear, he remembers managing to
wrestle the gun from Gunar Fulk and shooting him and then Leroy McCaffrey,
who was armed with a knife and had apparently begun to flee the scene.
Lonnie Johnson says that he then took the truck and fled to Austin.

At the trial, the defense had little or no evidence that the two teenagers
were the aggressors, or that the gun belonged to them rather than Johnson.
However, according to the appeal just filed, Lonnie Johnson's lawyer
claims that various documents found in the Harris County District
Attorney's Office in two of four boxes of evidence to which she was
permitted access in early June 2007 are exculpatory and yet were
apparently not disclosed to the defense at the time of the trial. The
appeal argues that these documents provide evidence of prosecutorial and
investigative misconduct in the case; of the unreliability of the
ballistics testing done on the alleged murder weapon (the ballistics
expert who conducted the testing has been discredited in other cases);
that the gun may have belonged to one of the two teenagers; that DNA was
taken from under Fulk's fingernails but that any test results had not been
released to the defense (any such testing, it is argued, could lend
support to Johnson's claim that he struggled with Fulk and had been
urinated on by McCaffrey); and that the black man whom Tammy Durham had
seen outside the store was an individual other than Lonnie Johnson,
potentially discrediting the prosecution's theory of Johnson having a gun
in a newspaper. The appeal brief claims that the original trial judge, now
in private legal practice, has been approached and agreed that such
evidence could support Lonnie Johnson's claim of self-defense.

In another case in June 2007, a judge on the Texas Court of Criminal
Appeals (TCCA) noted that the court had ''repeatedly held that flight is
evidence of a circumstance from which an inference of guilt may be
drawn.'' Lonnie Johnson's newly filed appeal to the TCCA provides evidence
of the racially charged climate and examples of racist violence in east
Texas which could help to explain his flight from the crime scene. In this
climate, the appeal argues, ''common sense dictates that if a black person
found themselves in a position where they needed to explain the deaths of
two white 'boys', they may be scared that they would not survive long
enough to exercise any due process rights afforded them by the United
States Constitution.''

Amnesty International opposes all executions unconditionally. Today, 129
countries are abolitionist in law or practice. In contrast to this, the
USA has carried out 1,087 executions since resuming judicial killing in
1977. Texas accounts for 397 of these executions. If Lonnie Johnson is
executed, he would become the 100th person convicted in Harris County to
be put to death since executions resumed in Texas in 1982.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:

- expressing sympathy for the families of Gunar Nelson Fulk and Leroy
McCaffrey, explaining that you are not seeking to downplay the suffering
their deaths will have caused;

- opposing the execution of Lonnie Johnson;

- noting that an appeal just filed calls into question the reliability of
the capital murder verdict against Lonnie Johnson, and alleges that
defense counsel at trial were not provided evidence in the state's
possession, which has only just come to light, and is said to be
supportive of Lonnie Johnson's claim of self-defense;

- calling on the addressees to stop this execution in the event that the
courts do not, and to commute the death sentence of Lonnie Johnson.

APPEALS TO:

Rissie Owens, Presiding Officer
Board of Pardons and Paroles
Executive Clemency Section
8610 Shoal Creek Boulevard, Austin, TX 78757, USA
Fax: 1 512 463 8120
Salutation: Dear Ms Owens

Governor Rick Perry
Office of the Governor, P.O. Box 12428
Austin, Texas 78711-2428, USA
Fax: 1 512 463 1849
Salutation: Dear Governor

PLEASE SEND APPEALS IMMEDIATELY.

Amnesty International is a worldwide grassroots movement that promotes and
defends human rights.

This Urgent Action may be reposted if kept intact, including contact
information and stop action date (if applicable). Thank you for your help
with this appeal.

Urgent Action Network
Amnesty International USA
600 Pennsylvania Ave SE 5th fl
Washington DC 20003
Email: uan at aiusa.org
http://www.amnestyusa.org/urgent/
Phone: 202.544.0200
Fax: 202.675.8566

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END OF URGENT ACTION APPEAL

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