Delaware Public defenders try to stop execution of convicted killer Attorneys argue there is overwhelming evidence man is mentally retarded

By Randall Chase

Associated Press

DOVER, Del. (AP) -- Federal public defenders trying to halt the execution of convicted Delaware killer Shannon Johnson claimed in court papers Thursday that there is overwhelming evidence that he is mentally retarded and can't be executed.

The public defenders made the assertion in a federal appeals court filing. State prosecutors appealed a federal district judge's decision Wednesday that halted Johnson's scheduled Friday execution.

Johnson waived his right to further appeals and wants to be executed, but federal public defenders have intervened in his case without his consent for the second time, arguing now that his estranged sister should be allowed to act on his behalf because he is mentally incompetent.

Prosecutors argue that Johnson's sister has no standing to intervene and that the execution should proceed.

The federal public defenders contend that prosecutors have cited the wrong standard for staying an execution in arguing that U.S. Chief District Judge Gregory Sleet abused his discretion in halting Johnson's execution.

The public defenders argue that Johnson's sister, Lakeisha Ford, does not have to meet the standards for obtaining a preliminary injunction in a civil case, as prosecutors claim. Ford, as Johnson's "next friend," is entitled to a stay of execution pending a full court hearing if she shows "meaningful evidence" that Johnson is incompetent, they say.

"Ms. Ford put before the district court not only abundant meaningful evidence of Mr. Johnson's incompetency, but also overwhelming evidence that Mr. Johnson is a person with mental retardation and therefore categorically ineligible for execution," the public defenders wrote in the court filing.

The public defenders claim that a state judge's ruling that Johnson was competent based on a flawed hearing and cherry-picked analysis of expert reports about his intelligence.

"Additionally, even if the state court finding that Mr. Johnson does not have mental retardation were properly subject to a presumption of correctness, Ms. Ford has put forth meaningful evidence that she will be able to rebut that finding by clear and convincing evidence," they wrote.

Johnson's attorney, in her own filing to the appeals court, described his "purported incompetency" as a "fiction" created by the federal public defender's office.

"Four mental health experts personally examined Mr. Johnson between 2008-2011; all four experts opined Mr. Johnson was competent," said attorney Jennifer-Kate Aaronson.

In addition to the effort to halt the execution in court, an attorney who said he is working with the public defenders and Johnson's sister sent a letter to Gov. Jack Markell's office asking that Markell grant a reprieve. Attorney Stamatios Stamoulis said a reprieve would moot the current appellate court fight and allow the district court to conduct a hearing on Ford's application to intervene. Markell's office did not immediately respond to email and telephone messages seeking comment Thursday.

Sleet's decision to halt the execution and order oral arguments on Ford's attempt to intervene in the case stunned prosecutors, who noted that the federal public defenders were not authorized by Johnson to intervene in the case but did so anyway.

It's unclear whether the appeals court will act on the state's appeal of Sleet's decision before the previously scheduled execution time or the oral arguments scheduled for Monday.

Prosecutors said in their appeal that Sleet "paid no recognition" to the appropriate standard for staying an execution and had abused his discretion. They also argued that Johnson has the right to decide his own fate and not have litigation "foisted" upon him.

Johnson was sentenced to death for the 2006 murder of Cameron Hamlin, 25, who was shot after Johnson found him sitting in a car with his ex-girlfriend near downtown Wilmington. Johnson later shot the former girlfriend, but she survived.

After the state Supreme Court upheld his conviction and death sentence in 2009, Johnson said he did not want to pursue any further appeals.

Following a six-day competency hearing last year, Superior Court Judge M. Jane Brady declared in February that Johnson was mentally competent to waive his right to further appeals, and that he understood the legal consequences of that decision. Last month, she scheduled the execution date after Johnson waived his right to a requirement that an execution be held no sooner than 90 days from the sentencing date.

After Johnson sought to waive his further appeals, federal public defenders tried to intervene without his consent, arguing that he was incompetent because he was mentally disabled. Brady refused to allow them to participate in the state court competency hearing, and they defied her order to turn over their files on Johnson to state prosecutors and Johnson's state court attorneys.

Sleet subsequently ordered the federal public defenders to turn over their files to prosecutors and defense attorneys. He also voided their appointments to represent Johnson, declaring that they had misled the federal court into believing that they were acting with his knowledge and consent.

Sleet also ordered the public defenders last year to cease efforts to collect information about Johnson and not to try to intervene in any legal matter pertaining to him without explicit court permission.

Published: Fri, Apr 20, 2012

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