Thursday, July 12, 2007

Court Reverses '04 Rape Conviction

By Scott Sandlin
Copyright ) 2007 Albuquerque Journal; Journal Staff Writer
    The state Court of Appeals has reversed a rape conviction in a case where a man originally faced rape, kidnapping and murder charges.
    The court said "extraordinarily long" prosecution delays in setting up witness interviews and thus in getting the case to trial violated the defendant's right to a speedy trial.
    Rather than sending the case back to the district court for a retrial, the appeals court sent the case back to Bernalillo County District Judge Mark Macaron with orders to dismiss the charges against Brian Keith Johnson, 47.
    Based on the opinion, Johnson's attorney, assistant public defender Mark Horton, wants his client to be released from prison. Johnson was sentenced to 29 years for his November 2004 conviction on two counts of rape and one count of false imprisonment.
    He was incarcerated 26 months before the case went to trial.
    "It is fundamentally unfair for Mr. Johnson to remain imprisoned" during an appeal process that could take years, Horton said in a motion filed Friday.
    The Court of Appeals opinion said the prosecutor, then-Assistant District Attorney Linda Rogers, called Horton in October 2004 to say she could not go to trial because of personal problems, including post-traumatic stress disorder and depression.
    "I deeply regret that a very difficult time in my life added to the enormous pain experienced by Ms. Lopez's family," Rogers, now a Metro Court judge, said in a telephone interview. "The issues with which I was dealing at the time have been addressed and resolved."
    The Albuquerque jury that heard the case in the death of Donna Lopez-Segura could not reach agreement on the homicide count. After it convicted Johnson on other counts, the state filed notice that it was dropping the homicide charge.
    Both Horton and Sheila Lewis, who handled Johnson's appeal of the conviction, say there was serious question about their client's guilt.
    "They have some really interesting evidence to suggest it's the wrong guy," Lewis said. "They had enough that a jury could not agree on the murder. It sounds illogical that he could have had sex with her without being the murderer, but she was a prostitute. She was working in his room that night."
    The state Attorney General's Office, meanwhile, has announced it will ask the New Mexico Supreme Court to review the appeals court ruling and affirm Johnson's convictions.
    While acknowledging that the delay in getting to trial was long, Assistant Attorney General Ralph Trujillo argued in a petition filed Tuesday that "(Johnson) consented to or requested the majority of the delay, and the majority of the delay was for (his) benefit."
    Johnson has been in custody since September 2002, about three weeks after Lopez-Segura's body was found in a room at the Tewa Lodge in the 5700 block of Central. She had been strangled.
    The 26 months Johnson spent incarcerated before the case went to trial were simply too long, Court of Appeals Judge Michael E. Vigil wrote in an opinion joined by Judges Cynthia Fry and Roderick Kennedy.
    Based on previous state Supreme Court rulings, Vigil wrote, a defendant is considered prejudiced in getting a fair trial if it does not occur within nine to 15 months, depending on the complexity.
    Macaron found the Johnson case "extremely complex" because of the number of witnesses, many with a transient lifestyle, and the complicated crime scene investigation. Even accepting that, Vigil wrote, "the delay in this case is over 11 months longer than that."
    According to the opinion, Rogers disclosed difficulties to her supervisor in October 2004, and the case was reassigned to a new prosecutor, who unsuccessfully sought another extension to prepare for trial.
    "The delay occurred because the state failed to make its witnesses available for pretrial interviews despite repeated promises that it would do so and despite being granted repeated opportunities to do so," the appeals court opinion said.