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“If you run with the wolves, you are guilty of the kill.” Detective quoted on American Justice.

America may have the world’s most draconian criminal laws. According to the defense bar, the worst of the worst are felony murder statutes. Simply put, felony murder laws permit police to charge every accomplice in a single crime as the perpetrator. If four people participate in a robbery, and one inadvertently pulls the trigger, all can be sentenced to life, even death. It does not matter that an unsuspecting driver or even an innocent female passenger in the back seat knew nothing about the intended crime. All are equally culpable.

 

Why Felony Murder?

Felony murder laws serve authorities in several ways. One is simple vengeance. If a police officer is killed in the line of action, a prosecutor can pursue the death penalty. The two most egregious examples are Sonia Jacobs and Faye Brown. Both were both sentenced to death though neither pulled the trigger. Lisl Auman was handcuffed in the back of a police cruiser when her acquaintance killed an officer. She was sentenced to life imprisonment. 

Felony murder statues also enable authorities to blackmail suspects. If the actual perpetrator is unknown to police, casual accomplices can be threatened with long sentences. Prompt cooperation is often the result.

Because of the law’s severity, felony murder statutes have been abolished in most countries. None exist in the England, Australia New Zealand,  or even in Germany, Italy or Japan. 

Yet an additional benefit of felony murder statutes is the ability to isolate social undesirables. Policing has diverse purposes one of which is to fortify social norms. Those who live outside socially accepted categories-women raising children outside of wedlock-particularly those who are on poor or welfare, are likely targets. Motherhood is a sacrosanct institution. Criminal justice authorities despise the “unfit mother.”

 

Accomplice to Robbery

Nobody understands this better than Kiesha Johnson. On February 19,  2003, the thirty year old black, single mother of two children accompanied acquaintance Andre Johnson (of no relation) to the house of a local drug dealer in Salem, Oregon. Kiesha insists that the purpose was to meet and greet a new supplier. Andre would testify that she knew ahead of the impending robbery. 

Upon seeing Kiesha, the female drug dealer became enraged. Strangers entering drug houses unannounced can be dangerous-anyone can be a cop or an informer. Andre and the dealer entered the kitchen to complete the purchase. Kiesha waited in the living room. 

Some seconds later, three gun shots rang out. Kiesha, in a panic, fled the scene. The dealer lay dead on the floor. Andre took the drugs, and then robbed two other houseguests at gunpoint. 

Andre was soon apprehended. He accepted a plea bargain of 30 years, and agreed to testify against Kiesha. Kiesha could not believe that she was being charged with murder. Yes, she was a drug user; yes, she may have aided and abetted a robbery; but no she did not anticipate a shooting. And she did not kill anyone.

No bargain this plea bargain.

The prosecutor offered a plea bargain: 20 years. Kiesha was stunned. 20 years for participating in a robbery? She decided to go to court and take her chance in front of a jury. 

The main evidence against Kiesha was testimony by Andre-the actual shooter. Two other acquaintances who were sharing drugs just before the robbery, also testified. All three insisted that Kiesha knew ahead of the impending robbery. Andre stood in court and testified that Kiesha knew nothing of the murder.

 

Judge as Prosecutor?

All defendants should have the right to be defended by competent, legal counsel in a fair and impartial court. At the very least, the expectation of an unbiased judge is the core of American criminal justice. When the judge is prejudiced, the defendant is doomed from the start.

Kiesha drew the  Hon. Joseph V. Ochoa.  From the outset, Ochoa was incensed that a poor, black, drug using mother opted for a jury trial. She was guilty and a jury trial would be a waste of the court’s time and taxpayer money. A plea bargain would be good enough.

Midway through the proceedings, the exasperated judge called the prosecutor, the defense lawyer, and Kiesha into chambers. The trial was taking too long, and a plea bargain was in order. The judge returned to the original offer of twenty years. When Kiesha showed reluctance, Ochoa became furious. “If you don’t take the plea, I’m gonna run the train up your ass.”

Ochoa’s offer was a blatant violation of Oregon’s code of criminal procedure. Judges are forbidden from brokering plea bargains. The defense attorney apparently did not object. The prosecutor, knowing that this was illegal and anxious of a mistrial, remonstrated with the judge. At the very least the defense attorney should have asked that the meeting be mentioned in the court record, and preserved for future appeals. This never happened . 

Some years later, in a federal habeas appeal, Kiesha’s public defender would criticize the defense counsel for not requesting recusal. Asking a judge to step down is perfectly warranted when the judge is so clearly prejudiced. A second more drastic step is to ask a higher court for a writ of mandamus to force recusal.

Needless to say, requesting a judge to step down in mid-trial is a bold and volatile move. Repercussions for the defendant are a distinct possibility. Yet, if the attorney had prepared better, and researched the judge, a demand for recusal might well have succeeded. Ochoa had already been censured for outrageous behavior in a 2000 trial.

 

Closing Arguments

After the last witnesses testified, both sides made closing arguments. The prosecutor argued:

We are not saying that Ms Johnson physically handled that weapon. Just because Kiesha doesn’t know that those crimes were going to happen doesn’t mean that she isn’t guilty of them . . . she is responsible for any acts or other crimes that were committed as a natural and probable consequence of the planning and preparation or commission of the intended crime.

In other words, even if Kiesha did not know that Andre intended to kill, she could be found guilty of murder as ‘a natural or probable consequence.’  Her culpability is the same as the shooter. This despite the fact that the actual shooter testified that the opposite was true.

 

Sentencing

Kiesha was found guilty. At sentencing, the judge iterated, “Ms. Johnson had no idea that Ms. B was going to be killed.”He added, “when you agreed to commit a robbery and a weapon is involved, that is one of the probable consequences of the act.”

The judge had a number of sentencing options, but decided to made good on his “train threat”. Using the bench as a grandstand, he castigated both the defendant and her attorney. “Since you did not accept my offer of the minimum sentence, what is to keep me from imposing the maximum?”

And impose the maximum he did. The confessed culprit-Andre, In a separate trial under a different judge was sentenced to life with a 30 year mandatory minimum. Kiesha received life imprisonment, with eligibility for parole after 25 years. In addition, by means of twisted logic, the judge imposed an additional 90 months for the armed robbery of the two visitors at the drug house–despite the fact that Kiesha was not even present when they occurred! The two robbery counts were to run concurrently, but consecutive to the 270 months of the felony murder sentence. The result: Kiesha was given the same amount of time in prison as Andre.

Feral judge: slap on the wrist.

A favorite expression of the anti-death penalty movement is “those with the capital do not get the punishment.” Likewise, the crimes of power often go unpunished, or end up with a slight slap on the hand.

A little more than a year after Kiesha’s conviction, Judge Joseph Ochoa oversaw a criminal case in which he continued to play the role of a second prosecutor. As in Kiesha’s case, he “belittled the defense attorney in and out of the presence of the jury.” The Oregon Supreme Court took measure. They suspended Ochoa “for a period of 30 days, during which he shall not receive the salary of his public office.” 

A slap on the wrist? This would hardly be a long term blot to his career. Now retired, Ochoa is currently listed as a “senior judge” and is “eligible for temporary assignment by the Supreme Court to any state court.” He can even be assigned to criminal trials.

 

A Question of Why?

Research into wrongful convictions often focus on the question of ‘how?’ We know that false confessions, junk science, eye witness misidentifications, non-disclosure of  evidence, and suborned perjury (i.e jail house snitches) have put many innocent people behind bars. We do not always understand ‘why’ criminal justice authorities choose to frame innocents.

In the case of women, the answer to the question of ‘why’ is often visible. Criminal justice authorities see themselves as more than a force for preserving public safety and prosecuting law breakers. Upholding social order and enforcing societal norms is part of the occupation.

Motherhood is one of the most sacrosanct of social institutions. Kiesha Johnson falls well outside the social stereotype of a good mother. Never married, she had two children with two different men. She was using drugs. And she is black.

Hope on the horizon?

In August, 2011, the Oregon supreme court issued a decision changing the protocols for the charge of felony murder. In State v. Lopez-Minjarez, the en-banc court declared that the “natural and probable consequence” instruction is an “incorrect statement” of Oregon law. The  law construed against Kiesha could not be used in the same way today.

It is still unknown whether the above mentioned decision will be applied retroactively. If so, a new trial could be convened. Kiesha has submitted a commutation request to Governor Kate Brown. One should hope that a female governor will grant relief to docile women who run with the wolves, and are judged not for their crimes, but for being ‘unfit mothers.’

Michael H. Fox is webmaster of the Womens Criminal Justice Network(wcjn.org) and two other websites devoted to wrongful and unfair convictions. He lives and teaches in Japan.

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