Executed May 25, 2005 12:28 a.m. by Lethal Injection in Indiana
W / M / 20 - 40 W / F / 82
26th murderer executed in U.S. in 2005
970th murderer executed in U.S. since 1976
3rd murderer executed in Indiana in 2005
14th murderer executed in Indiana since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Gregory Scott Johnson
A newspaper delivery boy noticed the home of 82 year old Ruby Hutslar on fire and roused a neighbor to call police. He returned but could not enter the home due to the fire and smoke. Firemen were able to put out the fire in about a half hour. Ruby Hutslar was found 5 feet from the front door with broken bones on her nose and cheek and 20 fractured ribs. Her larnyx and spine were also fractured. An autopsy revealed that she died as a result of these injuries and not fire or smoke inhalation. A dispatch was sent out that Johnson was a suspect in several fires in the area. Johnson was seen by Officers watching the firemen fight the fire and was arrested for Public Intoxication. In custody, Johnson initially denied any involvement, but admitted setting 4 recent fires in the area. During a later interrogation, Johnson was asked if by killing Hutslar he was trying to join his friend, Mark Wisehart, on death row. Johnson became emotional and gave a full confession. (Johnson had testified as a prosecution witness against his friend Mark Wisehart charged with capital murder) Johnson stated that he had entered the home by breaking a front window with a broom and immediately confronted 90 pound Hutslar in her night clothes. Hutslar slumped to the floor, breathing heavily. Johnson said he stepped on her as he moved around the house. He took a watch and silver dollars, found some matches, started the fire and fled.
W / M / 20 - 40
W / F / 82
Johnson v. State, 584 N.E.2d 1092 (Ind. January 27, 1992)
Conviction Affirmed 4-0; DP Affirmed 4-0
Debruler Opinion; Shepard, Dickson, Krahulik concur. (Givan Not Participating)
Johnson v. Indiana, 113 S. Ct. 155 (1992) (Cert. denied).
PCR Petition filed 12-01-93. PCR denied 06-30-95 by Special Judge Richard D. Culver.
Johnson v. State, 693 N.E.2d 941 (Ind. 1998)
(Appeal of PCR denial by Special Judge Richard Culver)
Conviction Affirmed 5-0; DP Affirmed 5-0
Sullivan Opinion; Shepard, Dickson, Selby, Boehm concur.
Petition for Writ of Habeas Corpus filed 06-29-99 in U.S. District Court, Southern District of Indiana.
Petition dismissed as untimely on 10-28-03 by U.S. District Court Judge Richard L. Young.
Johnson v. McBride, 381 F.3d 587 (7th Cir. 2004).
(Appeal of Habeas denial by U.S. District Court Judge Richard L. Young)
Affirmed. Easterbrook Opinion; Bauer, Manion concur.
Johnson ate his traditional last meal Monday with his attorneys. He had ribs, pulled pork, sauteed mushrooms, soda and chocolate cheesecake (he wanted Oreo pie, but they were out). For his attorneys, he ordered pizza.
"Everyone has been professional." After the execution, a handwritten statement from Johnson was distributed. In it, he expressed hope that his sister would survive even without his liver. "There are those who claim that Debi will have a new liver three weeks after being placed on the list. I'll be watching from above and expect her to be recuperating at that time." He was critical of the Indiana Parole Board for refusing to believe he sincerely wanted to help his sister, that he could have changed in 20 years. The board, he wrote, violated the Indiana Constitution, which states the penal code is "founded on the principles of reformation, and not of vindictive justice." He then thanked others for their prayers. "I'll see you on the other side."
Clark County Prosecuting Attorney
JOHNSON, GREGORY SCOTT (ON DEATH ROW SINCE 06-19-86)
Court: Madison County Superior Court
Trial Judge: Thomas Newman
Prosecutor: William F. Lawler
Defense Attorneys: Garry W. Miracle
Date of Murder: June 23, 1985
Victim(s): Ruby Hutslar W/F/82 (No relationship to Johnson)
Method of Murder: stomping with feet; beating with broom handle
Sentencing: June 19, 1986 (Death Sentence, 10 years imprisonment)
Aggravating Circumstances: b(1) Burglary
Mitigating Circumstances: alcoholism, intoxication, 20 years old at the time of the crime, graduated from high school at Indiana Boys School, served 9 months in National Guard / 2 months in Army, got along well in jail.
"State executes killer who wanted to donate liver; Gregory Scott Johnson is 3rd inmate Indiana has put to death this year," by Vic Ryckaert and Kevin Corcoran. (May 25, 2005)
MICHIGAN CITY, Ind. -- Gregory Scott Johnson was executed by lethal injection at 12:28 a.m. today at the Indiana State Prison for stomping 82-year-old Ruby Hutslar to death in 1985.
Tuesday afternoon, Gov. Mitch Daniels rejected Johnson's plea for time to determine if he could donate part of his liver to his ailing sister. Later, the U.S. Supreme Court rejected Johnson's final appeal.
Johnson's final words, according to prison officials, were: "Everyone has been professional." After the execution, a handwritten statement from Johnson was distributed. In it, he expressed hope that his sister would survive even without his liver. "There are those who claim that Debi will have a new liver three weeks after being placed on the list. I'll be watching from above and expect her to be recuperating at that time," he wrote.
But he was critical of the Indiana Parole Board for refusing to believe he sincerely wanted to help his sister, that he could have changed in 20 years. The board, he wrote, violated the Indiana Constitution, which states the penal code is "founded on the principles of reformation, and not of vindictive justice." He then thanked others for their prayers. "I'll see you on the other side," he wrote.
Johnson's view of the penal system was not shared by the great niece of his victim. Judy Woodard, Union City, said early today that her great-aunt now can rest in peace. "It's been a long time. I'm so glad it's over," she said. "Justice has been done."
About 20 protesters had gathered outside the prison several hours before the execution for a candlelight vigil. "Deep inside, there are spiritual values in all people," Marti Pizzini, Michigan City, said at the vigil. "We are on the side of right, and we will prevail."
Unlike at some past executions, there were no pro-death penalty demonstrators at the prison. There was, however, the usual anti-execution gathering outside the governor's residence, at 46th and Meridian streets, though it attracted fewer people than the previous execution. "There is only one logical reason for the death penalty, and that's vengeance. We're better than that," said Bonnie Johnson, 62, a retired French teacher from Franklin.
Almost 12 hours before Johnson was scheduled to die, Daniels denied a final plea for mercy. Johnson hoped his liver could help his sister Debra Otis. But Daniels said he had found no reasonable grounds to spare Johnson's life. "If his proposal had turned out to create a clear, demonstrated medical advantage to his sister, I might well have considered a brief postponement to seek a way to fulfill the request," Daniels said in a written statement. "The advice of medical experts, including Debra Otis' own specialist, was definitive that she should not pursue a procedure with Mr. Johnson as donor, but rather will be better served by accepting transplanted organs through the conventional process."
Johnson was convicted in 1986 of felony murder for stomping Hutslar to death inside her Anderson home and then burning it down.
Tuesday, after meeting with his attorneys, he spent several hours with two spiritual advisers until about 10 p.m., when he was moved to a holding cell where he watched television, alone, waiting to be moved to the execution chamber, said Java Ahmed, a spokeswoman for the Department of Correction. Johnson selected five witnesses for his execution; prison officials would not identify them.
He had eaten his traditional last meal Monday, joined by his attorneys, said Barry Nothstine, a prison spokesman. He had ribs, pulled pork, sauteed mushrooms, soda and chocolate cheesecake (he wanted Oreo pie, but they were out); for his attorneys, he ordered pizza. Johnson is the third inmate in Indiana executed this year, the most in one year in the state since 1949.
In a one-page letter to Daniels on Tuesday, Drs. A. Joseph Tector and Dr. Hwan Y. Yoo, both of Clarian Health Partners in Indianapolis, stated that "quite apart from any legal, ethical or other questions, Gregory Scott Johnson is not a medically appropriate organ donor for his sister, Debra Otis." Tector is Clarian's organ transplant director, and Yoo is Otis' specialist. Tector said Daniels asked him to summarize his and Yoo's views. The governor's request came in a roughly 15-minute phone call Friday, which Tector took between liver transplants. Tector said Daniels' primary concern was that executing Johnson on time not put his sister in harm's way.
The physicians assured Daniels that Johnson's execution would not jeopardize her health, Tector said. In their letter, the physicians stated Johnson was an unsuitable donor due to his exposure to hepatitis B, his obesity and unspecified "hereditary factors." It would have been possible to use only part of Johnson's liver so he could be kept alive for execution later, but such transplants are not preferable, the doctors said. Otis is in poor health in an Anderson nursing home. She is likely to need a full liver and kidney from a donor found through regular transplant channels, the physicians concluded. Given her blood type and condition, they said, she is likely to be given preferential treatment on the transplant list. "By way of a hypothetical example," the physicians noted, "had Ms. Otis joined the waiting list last Wednesday (May 18), there would already have been two opportunities to perform the needed transplant."
The physicians also stated they did not want to jeopardize the Clarian Transplant Center's compliance with guidelines set by the United Network for Organ Sharing, which has "a clear position against allowing condemned prisoners to donate organs." Tector said Clarian's transplant center, one of the nation's largest, also has done no split-liver procedures in the past four years, because such procedures are frowned upon for adult patients. Tector said Otis would be eligible to join the transplant list after she recovers from a broken back and an infection. Otis, 48, appeared this week on NBC's "Today" show and other programs as experts discussed the propriety of harvesting organs from a condemned killer.
The Indiana Supreme Court denied Johnson's last state appeal Friday. The Indiana Parole Board on Friday recommended against allowing the transplant and another request for clemency. Johnson claimed the Madison County prosecutor had concealed evidence and noted his case had not been given a full legal review because of a mistake by his lawyer. Attorney Michelle F. Kraus filed his federal appeal a day late, prompting his case to be rejected in August 2004. An unsuccessful round of federal appeals likely would have kept Johnson alive for several more years.
"Indiana executes man who wanted to donate liver, by Karen Murphy." (Wed May 25, 2005 02:44 AM ET)
MICHIGAN CITY (Reuters) - Indiana on Wednesday executed a convicted murderer who had sought a reprieve so he could donate part of his liver to an ailing sister. Gregory Johnson, 40, was pronounced dead at 12:28 a.m. CDT (0528 GMT) after an injection of lethal chemicals, officials at the Indiana State Prison said.
A signed, hand-written statement by Johnson released after his execution accused authorities of failing to recognize that he had changed while in prison and was capable of a humane act such as donating an organ. His final words were, "Everyone has been professional," prison spokeswoman Java Ahmed said. Johnson requested barbecue spare ribs, pulled pork, chocolate cheese cake and a beverage as his final meal, Ahmed said.
Gov. Mitch Daniels said he agreed with the Indiana Parole Board which voted unanimously last week to deny Johnson's clemency petition. He said there were no grounds to second-guess years of court rulings. Johnson had requested clemency or a 90-day stay so he could donate part of his liver, recover from the surgery and then be executed. He was sentenced to death for killing an 82-year-old woman during a home break-in in 1985. The governor said he would have been amenable to a brief postponement if Johnson's transplant proposal offered "a clear, demonstrated medical advantage to his sister."
NOT A GOOD MATCH
He released a letter from two experts at Indiana University Hospital's transplant center which said Johnson's liver was not a good match for his sister, 48-year-old Deborah Otis. The letter said Johnson has Hepatitis B and large body weight, making his liver less desirable, and his sister in any case needs a full rather than partial transplant, along with a kidney from the same donor, to survive. Her organ is afflicted with nonalcoholic cirrhosis, though she is not currently on a transplant waiting list because of a temporary medical complication. The letter Daniels released said Otis would likely get a liver and kidney within 20 days once she went on a waiting list.
In his written statement, Johnson said the parole board had improperly concluded "that I was not sincere and there had been no change from the Gregory Scott Johnson of 20 years ago." "If you refuse to acknowledge any change or any attempts to change, then you are shredding portions of the Indiana Constitution, article one, section 19, 'the penal code shall be based on principles of reformation, and not vindictive justice.' "Thanks to all of you for your prayers, I'll see you on the other side," he wrote.
Transplant requests from death row prisoners in the United States have occurred before, though they are unusual, according to Richard Dieter, executive director of the Death Penalty Information Center. In a 1995 Delaware case a condemned man donated a kidney to his mother, and returned to death row. In Alabama, a prisoner awaiting execution won permission for an organ donation, but he was not a correct match, Dieter said. In a Florida case, an inmate was denied a request to donate a kidney to his brother. The condemned man was later exonerated and released from jail, but his brother died waiting for a transplant, Dieter said.
It was the 970th execution since the United States reinstated capital punishment in 1976, and the 26th this year.
Anderson Herald Bulletin
"Gregory Scott Johnson: Final pleas." (Associated Press May 25, 2005)
MICHIGAN CITY — Julie Woodard wants Gregory Scott Johnson to be known as the cold-blooded killer of her 82-year-old great-aunt, not someone who tried to donate his liver to his ailing sister. Johnson was to be executed early today at the Indiana State Prison, about 12 hours after Gov. Mitch Daniels released his decision to reject a clemency request. The U.S. Supreme Court on Tuesday also denied a stay of execution.
Johnson drew national attention in recent weeks when he asked for at least a delay of his execution to determine whether he could donate a section of his liver to his 48-year-old sister, who suffers from nonalcoholic cirrhosis.
His organ transplant offer did little to appease Woodard, the great-niece of Ruby Hutslar, whom Johnson was convicted of beating and stomping to death in 1985 while robbing her Anderson home before starting a fire to try to hide the crime. “I want him to be remembered as a man who viciously beat a sweet woman to death — not the man who tried to save his sister, but the man who killed Ruby Hutslar,” Woodard said.
Daniels said in a statement Tuesday that he found “no grounds to second guess years of court rulings or to reject the recommendation of the parole board.” That board voted unanimously on Friday to recommend that Daniels deny clemency or any reprieve for the liver tests.
Prison spokesman Barry Nothstine said Johnson spent most of Tuesday meeting with his attorneys and two spiritual advisers. “I saw him twice today, and he was very much at ease,” he said. “He was smiling, and he seemed at peace.”
About 20 people demonstrated against the death penalty outside the prison Tuesday night. During a candlelight vigil that lasted about 30 minutes, people spoke about why they oppose executions. “We don’t see any point in the death penalty except vengeance,” said the Rev. Charles Doyle, chairman of the Duneland Coalition Against the Death Penalty. “Vengeance isn’t healthy.”
Mike Clancy, a retired Chicago homicide detective, said he is morally opposed to the death penalty. He says he especially opposed it because of what he called antics used by police and prosecutors when they believe someone is guilty. “I can tell you that death row is filled with reasonable doubt,” he said.
About 15 of the demonstrators then marched in front of the prison for about 25 minutes carrying placards reading, “Thou Shalt Not Kill” and “Murder is Never Right.”
Daniels said he accepted the sincerity of Johnson’s motivation in making the offer to his sister, Debra Otis of Anderson. But Daniels said the advice of medical experts, including Otis’ own specialist, was that she would be better served receiving transplanted organs through the conventional process. “If his proposal had turned out to create a clear, demonstrated medical advantage to his sister, I might well have considered a brief postponement to seek a way to fulfill the request,” Daniels said. “But ultimately I was not faced with that decision.”
The parole board had said Johnson was clearly guilty of a brutal murder and should be put to death as scheduled by the Indiana Supreme Court. Some board members scoffed at the reprieve request, with one saying the media coverage about his donation request had diverted attention from the brutality of his crime.
Hutslar’s relatives also said they believed far too much attention has been given to Johnson. “It’s been a long 20 years,” Woodard said. “This should have been over a long time ago. This has been through three generations now. My grandmother, my mother, even my 14-year-old son is having to go through this now.”
Hutslar lived across the street from Johnson’s mother. Johnson said during his clemency hearing last week that after a night of partying, he met up with another man, whom he refused to identify, and they decided to break into Hutslar’s house to steal her prescription drugs and money. Family members describe Hutslar, who was widowed twice, as a kind woman who would gladly helped someone in need. “She loved her family. She wanted to rally around her family,” said Hutslar’s granddaughter, Sharon Barker of Markleville.
The governor’s office released a letter Daniels received from two transplant doctors at the Indiana University Medical Center saying the presence of a hepatitis B antibody in Johnson’s system and his heavy body weight made him unsuitable as a donor. The letter also said that a split liver procedure was risky, and given Otis’ condition and fact that she likely will need a kidney as well, she would be better served by obtaining a full liver and kidney from the same donor through customary channels.
Barker said she had no interest in attending Johnson’s execution, saying a Department of Correction official planned to call when it was over. “I’m just going to stay up with my husband,” she said. “Sit and wait and be quiet.”
"Murderer Put To Death; Man Had Tried To Postpone Execution To Explore Liver Donation. (POSTED: 1:27 am EST May 25, 2005)
MICHIGAN CITY, Ind. -- A murderer who unsuccessfully sought a death sentence reprieve so he could donate part of his liver to his ailing sister was executed early Wednesday. Gregory Scott Johnson, 40, died by chemical injection at 12:28 a.m. at the Indiana State Prison for beating and stomping 82-year-old Ruby Hutslar to death in 1985, then setting her house in Anderson on fire to try to hide the crime.
Before being put to death, Johnson only said, "Everyone has been professional."
Gov. Mitch Daniels Tuesday rejected Johnson's request for a reprieve so he could donate part of his liver to his 48-year-old sister, Debra Otis.
Johnson handwrote a statement Tuesday that was released after he was executed. "There are those who claim that Debbie will have a new liver three weeks after being placed on the list," the note said. "I'll be watching from above and expect her to be recuperating at that time." He said it was reported that the Indiana Parole Board "scoffed" at the idea of organ donation. "They felt that I was not sincere and there had been no change from the Gregory Scott Johnson of 20 years ago. I can understand those sentiments coming from Mrs. Hutslar's family, but am puzzled that it would come from a government board. Thanks to all of you for your prayers, I'll see you on the other side."
Johnson is the third person to be executed by the state this year, the most in any year since the death penalty was reinstituted in 1977.
Daniels said he found "no grounds to second guess years of court rulings or to reject the recommendation of the parole board." in denying clemency. The board recommended Friday that Daniels deny a reprieve, saying Johnson was guilty and should be put to death as scheduled. Some said some of the media attention about the liver donation has taken away from the brutality of the murder.
Hutslar's relatives agreed that far too much attention had been given to Johnson. Hutslar's great-niece, Julie Woodard, wants Johnson to be known as the cold-blooded killer, not someone who tried to donate his liver to his sister. "I want him to be remembered as a man who viciously beat a sweet woman to death -- not the man who tried to save his sister, but the man who killed Ruby Hutslar," Woodard said.
Family members describe Hutslar, who was widowed twice, as a kind woman who would gladly helped someone in need. "She loved her family. She wanted to rally around her family," said Hutslar's granddaughter, Sharon Barker of Markelville.
Daniels said he accepted the sincerity of Johnson's motivation in trying to donate part of his liver, but said medical experts had advised against it, saying Johnson's sister would be better served by accepting a new organ through the conventional process. Johnson's attorney, Michelle Kraus, said she was disappointed that his sister's doctor had written to the governor but did not contact her even though she had a release signed by Otis. "It was her desire her doctor speak to me. It was her desire that we pursue this liver donation. They simply stopped returning my phone calls," she said.
She agreed with prison spokesman Barry Nothstine who said Johnson seemed at peace Tuesday. "He had come to terms with this. He was at peace with what was going to happen. He was at peace with himself. He was at peace with God. He was ready for this," she said.
About 20 people demonstrated against the death penalty outside the prison Tuesday night. During a candlelight vigil that lasted about 30 minutes, people spoke about why they oppose executions. "We don't see any point in the death penalty except vengeance," said the Rev. Charles Doyle, chairman of the Duneland Coalition Against the Death Penalty. "Vengeance isn't healthy." Mike Clancy, a retired Chicago homicide detective, said he is morally opposed to the death penalty. He says he especially opposed it because of what he called antics used by police and prosecutors when they believe someone is guilty. "I can tell you that death row is filled with reasonable doubt," he said. About 15 of the demonstrators then marched in front of the prison for about 25 minutes carrying placards reading, "Thou Shalt Not Kill" and "Murder is Never Right."
With Michael Lambert scheduled to be executed next month for killing a Muncie police officer and several others on death row with their appeals nearly exhausted, Indiana is on pace to have the most executions in a year since eight people were executed in 1938.
Johnson was the 14th person executed by the state since 1977.
"Protesters hold vigil at Johnson execution," by Jessica Lowry. (May 25, 2005)
MICHIGAN CITY — Death penalty protesters gathered at Indiana State Prison on Tuesday night for the third time this year as Gregory Scott Johnson awaited execution by lethal injection. Johnson, 40, was scheduled to die at shortly after midnight following his conviction in the 1985 murder and burglary of 85-year-old Ruby Hutslar in Anderson. He was convicted of breaking into her home and beating her, then setting a fire to cover the crime.
The Duneland Coalition Against the Death Penalty held a vigil for Johnson in the parking lot of the prison Tuesday, led by the Rev. Charles Doyle, a former chaplain who has been in contact with Johnson. Approximately 20 people attended the vigil, all in protest of the death penalty. The protesters held candles and gathered around a small table, which held a candle and a picture of Johnson. Many protesters also carried signs reading “Thou shalt not kill” and “Execution is not a solution.”
Johnson was denied clemency or a reprieve to donate part of his liver to his ailing sister. The state parole board met at the prison and unanimously denied the request. Johnson’s organ transplant offer did little to appease Julie Woodard, the great niece of the murder victim. “I want him to be remembered as a man who viciously beat a sweet woman to death — not the man who tried to save his sister, but the man who killed Ruby Hutslar,” Woodard said earlier.
Also executed in Indiana this year were Donald Ray Wallace and Bill J. Benefiel. Wallace was convicted of the 1982 murder of the Gilligan family in Evansville and was executed March 10. Benefiel was convicted in the 1987 rape, murder and confinement of Delores Wells and was executed April 21.
As many as eight additional executions are planned in Indiana this year. Indiana has not executed more than two prisoners since 1949, when three were executed. The next execution is set for June 22. Scheduled for lethal injection is Michael A. Lambert, who was convicted of fatally shooting Muncie patrol officer Gregg Winters in 1990.
"Governor lets execution proceed, by Kevin Corcoran. (6:15 PM May 24, 2005)
Gov. Mitch Daniels today denied Gregory Scott Johnson’s petition for clemency in connection with stomping 82-year-old Ruby Hutslar to death in her Anderson home and setting it on fire. In a written statement released shortly after noon, Daniels said that after study and review he had found no grounds to spare Johnson’s life. The U.S. Supreme Court today also denied a stay of execution.
Johnson also had asked for a temporary reprieve from his scheduled execution before sunrise Wednesday, so that medical tests could be done that might allow him to donate his liver to his sister, Debra Otis. Daniels said he did not question Johnson’s sincerity. “If his proposal had turned out to create a clear, demonstrated medical advantage to his sister, I might well have considered a brief postponement to seek a way to fulfill the request,” Daniels said in his statement. “The advice of medical experts, including Debra Otis’ own specialist, was definitive that she should not pursue a procedure with Mr. Johnson as donor, but rather will be better served by accepting transplanted organs through the conventional process.”
In a letter Monday to Daniels, Drs. Joseph Tector and Dr. Hwan Yoo, both of Clarian Health Partners in Indianapolis, stated that “quite apart from any legal, ethical or other questions, Gregory Scott Johnson is not a medically appropriate organ donor for his sister, Debra Otis. Tector is Clarian’s organ transplant director and Yoo is Otis’ specialist.
One of Hutslar’s relatives scoffs at Johnson’s donation offer. Julie Woodard wants him to be known as the cold blooded killer of her great aunt. Johnson drew national attention in recent weeks when he asked for at least a delay of his execution to determine whether he could donate a section of his liver to his 48 year old sister, who suffers from non alcoholic cirrhosis. “I want him to be remembered as a man who viciously beat a sweet woman to death — not the man who tried to save his sister, but the man who killed Ruby Hutslar,” Woodard said.
Hutslar’s relatives also said they believed far too much attention has been given to Johnson. “It’s been a long 20 years,” Woodard said. “This should have been over a long time ago. This has been through three generations now. My grandmother, my mother, even my 14 year old son is having to go through this now.”
Hutslar lived across the street from Johnson’s mother. Johnson said during his clemency hearing last week that after a night of partying, he met up with another man, whom he refused to identify, and they decided to break into Hutslar’s house to steal her prescription drugs and money. Family members describe Hutslar, who was widowed twice, as a kind woman who would gladly helped someone in need. “She loved her family. She wanted to rally around her family,” said Hutslar’s granddaughter, Sharon Barker of Markelville.
Barker said she had no interest in attending Johnson’s execution, saying a Department of Correction official planned to call when it was over. “I’m just going to stay up with my husband,” she said. “Sit and wait and be quiet.”
Gov. Daniels' statement
“In view of the family relationship, I accepted the sincerity of Mr. Johnson’s motivation in making this offer. If his proposal had turned out to create a clear, demonstrated medical advantage to his sister, I might well have considered a brief postponement to seek a way to fulfill the request. But ultimately I was not faced with that decision. The advice of medical experts, including Debra Otis’ own specialist, was definitive that she should not pursue a procedure with Mr. Johnson as donor, but rather will be better served by accepting transplanted organs through the conventional process.”
Anderson Herald Bulletin
"Parole board says Johnson to be executed," by Mike Krokos. (May 24, 2005)
She was a small, frail woman who worked hard in a factory, cherished family and loved to travel. Sharon Barker’s voice quivered as she talked more about her late grandmother Ruby Hutslar. “She lost two husbands and her only child,” Barker said.
Later, tears streamed down Barker’s face as she talked about the heinous crime committed in 1985 that killed her grandmother, then an 82-year-old Anderson resident. Hutslar was stomped to death and her house set on fire. “To come to the end that she did, it seems unfair to me. It seems cruel,” Barker said.
“I’ve grieved privately for 20 years,” Barker told members of the Indiana Parole board Friday during a public clemency hearing held in the auditorium of the Indiana Government Center in Indianapolis.
Gregory Scott Johnson, who admitted to the brutal killing, had asked the state to delay his May 25 execution so he can donate his liver to his ailing sister, 48-year-old Debra Otis. Tests show that the siblings share the same blood type, B-positive, which means Johnson’s liver would be a suitable donation for his sister. “I’d ask that they (the state) move forward (with the execution),” Barker said. “I ask, the family asks and I know grandma would ask that.”
Proponents and opponents of Johnson’s stay of execution testified, but in the end, by a 4-0 vote, the board decided Friday not to recommend clemency or a temporary stay of execution to Gov. Mitch Daniels for Johnson. About 40 people attended the hearing. Eight signed in as being present to support the clemency effort; eight signed in favoring keeping the execution as scheduled. The majority of the remaining audience were members of the media. Johnson was not present at the hearing.
“I found no evidence that Mr. Johnson’s plea for clemency could reasonably be based on the quality of evidence introduced and accepted by the courts, or of his legal representation,” wrote Raymond Rizzo, Indiana Parole Board chairman, in his decision. “No new evidence of participation by any other person was produced.
“I found no basis to believe that the court’s assessment of mitigating and aggravating factors in the death penalty phase was unreasonable or inappropriate. In short, I am convinced that Mr. Johnson did brutally murder 82-year-old Ruby Hutslar, and the imposition of his death sentence was neither flawed in its imposition nor has it been diminished by events over the years.”
“Governor, there are no questions in my mind about Gregory Johnson’s guilt and the imposition of the ultimate punishment of death,” wrote parole board member Thor Miller.
Parole board members listened to nearly three hours of testimony before rendering their decision.
For David McGuire, a Michigan resident originally from Anderson, speaking at the hearing gave him a chance for closure. McGuire talked of an incident 25 years ago when he was hit on the head by a baseball bat and Johnson, then 16, took off his shirt, wrapped it around then 8-year-old McGuire’s head, and ran one and half blocks with the young boy to get him help. “Part of this is I never got to thank him,” McGuire said, fighting back tears. “But how do you thank a murderer?”
Malcolm Lunsford, a deacon with the Roman Catholic Diocese of Gary, met Johnson five years ago on Death Row at the Indiana State Prison in Michigan City and said he has walked with the inmate on his faith journey ever since. Lunsford repeated to board members what Sister Helen Prejean said in her book, “Dead Man Walking:” “I found no monsters (in prison), only human beings.”
The deacon said Johnson asked him about becoming a practicing Christian, and three years ago, Johnson converted to the Catholic faith. “Since being baptized, I’ve seen a lot of change” in Johnson, Lunsford said. “He’s mellowed, matured and learned the value of prayer.”
The spiritual director added Johnson does not deny committing the crime and would “really like to make reconciliation” with Hutslar’s family. “Greg knows he has sinned, and he feels really bad about it,” Lunsford said. “I’m convinced Gregory Scott Johnson is sincere in his regrets and truly sorrowful,” he added. “If you knew the Gregory Scott Johnson I knew, you would find mercy in your hearts and grant clemency,” Lunsford said.
Those who testified in favor of the execution included Tanya Navarro, a victims advocate for the Madison County prosecutor’s office. The advocate recounted how Hutslar was “stomped to death until her small 90-pound. body was lifeless.” “I ask that you take into account the pain and suffering” of the family, “and not delay the execution,” Navarro said. A stay “will add to their pain and grieving they’ve already had for 20 years.”
Also appearing before the parole board was Christy Jones, a victims advocate for the Anderson Police Department. “I am here to speak for the silent ones who are no longer able to speak for themselves,” she said. In her job, Jones said she tries to help victims’ families “through the pain and suffering they are going through.” She added the voiceless victims must always be represented. “I will never, as long as I’m able to speak, I will never forget them,” Jones said. “Please take my advice and listen to the silent ones.”
Julie Woodard, Hutslar’s great niece, said Johnson knew what he was doing that night. She added she felt no ill will toward his family but felt granting clemency was not appropriate. “I don’t wish any harm to his sister. I hope she gets better,” Woodard said, but if Johnson is allowed to be a donor, “he’ll be remembered as a hero instead of the man who brutally murdered Ruby Hutslar.”
Johnson’s mother, Alice Newman, asked for clemency for her son. “This is a terrible thing that’s happened, but that doesn’t make me love my child any less. “My son’s ready,” she added. “It’s just that I’m not ready to give him up.”
After hearing the testimony, the parole board spent two hours behind close doors deciding what to do.
In his opinion, parole board member Randall Gentry said he took a close look at Johnson’s “very public request” to donate his liver to his sister. “On the surface this seems to be a noble cause, but the underlying facts make this board member believe otherwise,” Gentry said. “In this board member’s opinion, all requests regarding a delay in carrying out Mr. Johnson’s sentence at this late date seem to be an attempt at postponement for the sake of Mr. Johnson, not his ailing sister.”
Valerie Parker, vice-chairwoman of the board, in her opinion, said Johnson was afforded many opportunities to change the direction of his life as a youth. “But instead, he chose to continue his disregard for the laws governing our society and began his rampage on society as an adult.”
Unless Gov. Daniels steps in, the state will proceed with Johnson’s execution next Wednesday as planned.
Fort Wayne Journal-Gazette
"Daniels won’t block execution to allow liver donation," by Mike Smith. (AP May 24, 2005)
Gov. Mitch Daniels on Tuesday rejected the request of a convicted murderer for a reprieve of his execution so he could donate part of his liver to an ailing sister. The decision was announced about 12 hours before Gregory Scott Johnson, 40, is scheduled to die by lethal injection early Wednesday at the Indiana State Prison in Michigan City for the beating death of 82-year-old Ruby Hutslar.
Daniels said he found “no grounds to second-guess years of court rulings or to reject the recommendation of the parole board.” That board voted unanimously on Friday to recommend that Daniels deny clemency or a request that Johnson receive a 90-day reprieve so he could donate part of his liver to an ailing sister.
Daniels said he accepted the sincerity of Johnson’s motivation in making the offer to his 48-year-old sister, Debra Otis. But he said the advice of medical experts, including Otis’ own specialist, was that she would be better served receiving transplanted organs through the conventional process. “If his proposal had turned out to create a clear, demonstrated medical advantage to his sister, I might well have considered a brief postponement to seek a way to fulfill the request,” Daniels said in a written statement. “But ultimately I was not faced with that decision.”
Johnson was convicted of breaking into Hutslar’s Anderson home in 1985, beating and stomping on her, then setting a fire to hide his crime. The state attorney general’s office says he fully admitted to the murder originally, but changed his story after his conviction. During a hearing before the parole board last week, he denied killing Hutslar, but said he was in the house with an accomplice and set the fire.
The parole board had said Johnson was clearly guilty of a brutal murder and should be put to death as scheduled by the Indiana Supreme Court. Some board members scoffed at the reprieve request, with one saying he had shown no compassion when he killed Hutslar, and another saying the media coverage about his request had diverted attention from the brutality of his crime.
Michelle Kraus of Fort Wayne, Johnson’s attorney, had said that her client’s blood type matches his sister’s. She said that could make his liver compatible with Otis, but more time was needed to explore medical and ethical questions about such a transplant. Alice Newman, Johnson’s mother, said after the parole board hearing that she was hopeful her daughter would receive a new liver from another donor and planned to visit her doctor again within a week. Otis lives in an Anderson nursing home.
Unless the U.S. Supreme Court grants a requested last-minute stay or the governor changes his mind, Johnson will become the third person executed since Daniels took office Jan. 10.
Donald Ray Wallace, who was put to death March 10, and Bill Benefiel Jr., who was executed April 21, did not seek clemency through the parole board, but did ask Daniels to grant them clemency. Daniels took no action on those requests.
Johnson would become the 14th person to be executed in Indiana since the state’s death penalty was reinstated in 1977.
"Governor denies Johnson clemency." (May 24, 2005)
INDIANAPOLIS (AP) - Gov. Mitch Daniels denied clemency or a reprieve for convicted murderer Gregory Scott Johnson on Tuesday, just hours before he was to be executed for the beating death of an Anderson woman.
Daniels said he found "no grounds to second guess years of court rulings or to reject the recommendation of the parole board." That board voted unanimously on Friday to recommend that Daniels deny clemency or a request that Johnson receive a 90-day reprieve so he could donate part of his liver to an ailing sister. Daniels said he accepted the sincerity of Johnson's motivation in offering to donate part of his liver, but said medical experts had advised against, saying Johnson's sister would be better served by accepting a new organ through the conventional process.
Johnson, 40, is scheduled to die by lethal injection early Wednesday for the beating death of 82-year-old Ruby Hutslar. He was convicted of breaking into her home in 1985, beating and stomping on her, then setting her house on fire to hide his crime. The state attorney general's office says he fully admitted to the murder originally, but changed his story after his conviction. During a hearing before the parole board last week, he denied killing Hutslar but said he was in the house with an accomplice and set the fire.
Governor's press release:
Indiana Governor Mitch Daniels today denied the clemency petition of Gregory Scott Johnson. On May 20, the Indiana Parole Board voted 4-0 to recommend against a grant of clemency for Mr. Johnson, who was found guilty of felony murder and arson in connection with the June 23, 1985 slaying of Ruby Hutslar in Anderson following a burglary of her home.
The governor said that after his own independent study and review, he found no grounds to second-guess years of court rulings or to reject the recommendation of the parole board.
Mr. Johnson also had asked for a temporary reprieve from his scheduled execution May 25 before sunrise, so medical testing and procedures could be conducted to allow him to donate his liver to his sister, Debra Otis. Specific to this request, the governor said:
"In view of the family relationship, I accepted the sincerity of Mr. Johnson’s motivation in making this offer. If his proposal had turned out to create a clear, demonstrated medical advantage to his sister, I might well have considered a brief postponement to seek a way to fulfill the request. But ultimately I was not faced with that decision. The advice of medical experts, including Debra Otis’ own specialist, was definitive that she should not pursue a procedure with Mr. Johnson as donor, but rather will be better served by accepting transplanted organs through the conventional process."
Attached is a letter to the governor from Dr. Joseph Tector and Dr. Hwan Yoo, both of Clarian Health Partners in Indianapolis, which outlines their medical conclusions about this case. Dr. Tector is Clarian’s Director of Organ Transplantation, and Dr. Yoo is Ms. Otis’ specialist.
"Johnson Reflects," by Kevin Rader, Eyewitness News.
May 24 - Gregory Scott Johnson is resigned to his fate. Twenty years ago he brutally stomped 82-year-old Ruby Hustlar to death. "I am ashamed of who I was. I can only accept what I have coming. If I must die for it, then I am ready."
Sitting in a Michigan City prison holding area, he says his life was a waste. "At some point I reached the point where the only thing I cared about was my next buzz and damn everything else." That attitude led him to kill his neighbor and ultimately to his own execution. "I was just a street punk. I don't know what I was looking for."
Twenty years has passed since Johnson committed murder. He says he has changed. But the feeling of loss for the victim's family remains the same. Sharon Barker says, "It's always hard when somebody dies, you grieve and move on. But when it's something like this it's just different. It's different. I"ll never get over it."
Johnson's mother, Alice Newman, covered her heart as the state parole board voted against clemency for her son. But like her son, she has had 20 years to prepare for this day. "I sometimes think that he'd be better off being put to death as he is staying in a little cell the rest of his life."
Barker told the Parole Board, "So we are at the end of the appeal process. I ask that this go forward. My family asks that. I ask that and grandma would ask that." Johnson's execution is something everyone has come to accept.
The Indiana state Supreme Court has scheduled a May execution date for a man condemned for the 1985 beating death of an 82-year-old Anderson woman. 40-year-old Gregory Scott Johnson is scheduled to be put to death by chemical injection May 25th for killing Ruby Hutslar during a burglary. She suffered 20 fractured ribs and her larynx and spine also were fractured.
National Coalition to Abolish the Death Penalty
Gregory Scott Johnson - Indiana - May 25, 2005
The state of Indiana is scheduled to execute Gregory Scott Johnson, a white man, May 25, 2005 for the June 23, 1985 murder and burglary of Ruby Hutslar, an 82 year old, white woman. Johnson set fire to the home after robbing and beating Hutslar. He was sentenced to death June 19, 1986.
Johnson was 20 years old at the time of the crime. He served 9 months in the National Guard. Mitigating circumstances include child abuse and serious psychological trauma preceding the incident. Some mitigating evidence was discovered after the trial which rendered the jury unable to consider all mitigating factors before sentencing Johnson to death.
Prosecutors did not disclose evidence that another person may have been at the murder scene. Johnson claims he lied when he confessed to protect an accomplice he refused to name.
Johnson is also making the claim that his appellate counsel was ineffective. His attorney during appeals contends this claim based on the fact that he was not compensated in a timely manner for his work. Johnson is currently also pursing a stay of execution so that he may donate a portion of his liver to his sister who is in need of a transplant.
Please take a moment to write the state of Indiana protesting the execution of Gregory Scott Johnson.
"Board Holds Hearing Today On Johnson Execution; Death Row Inmate Wants To Donate Organ To Sister." (Fri May 20, 2005 12:55pm)
SOUTH BEND, Ind. -- A death row inmate's request that his execution next week be delayed so he can be an organ donor for his ailing sister isn't the first time a condemned man has tried to donate an organ.
In fact, other death row inmates have been organ donors. And in one case, an inmate was granted a last-minute stay of execution in the hope of saving his dying brother with a transplant. But the issue of a condemned inmate donating an organ does raise ethical concerns.
In this case, Gregory Scott Johnson, scheduled to die by chemical injection early Wednesday for the murder of an elderly Anderson woman two decades ago, has asked the state parole board to delay his execution. He says he wants to donate a portion of his liver to save his sister, who needs a transplant.
The board is set to consider his request for clemency on Friday, and board members won't comment before the hearing. The panel's recommendation will go to Gov. Mitch Daniels, who also hasn't revealed his position. No tests have been done to see whether Johnson would even be a compatible donor for his sister, Debra Otis.
But the case reopens an old debate about the ethics of accepting organs from condemned inmates. The issue is whether someone in prison has the ability to give informed consent, said Dr. Mark Fox, chairman for the ethics committee for the United Network for Organ Sharing, a private group that runs the nation's transplant system. "Their lives are constrained in ways that yours and mine are not," he said. "Free, informed consent involves the freedom to either to accept or to reject treatments that are being proposed."
Fox said the fact that the donation could prolong his own life could compromise an inmate's decision-making ability. "The importance of an autonomous informed consent where there is no benefit to the person who is being operated on, the demands of that are so great that someone's whose liberty is otherwise constrained can never meet that standard," Fox said.
There also is a concern that Johnson's sister could feel pressured to accept the partial liver from her brother, rather than a full liver from someone who has died, because it might be the only way to extend her brother's life. "Neither of them may feel they have the complete freedom to make the decision that is appropriate for them," Fox said.
Dr. Joseph Tector, director of transplants at the Indiana University School of Medicine and Clarian Health Partners in Indianapolis, said Johnson's sister likely would be better off getting a full liver.
Tector, who is familiar with the case, said he is confident he could find a liver for Otis because there is only one other person in the region, which includes Michigan and Ohio, with her blood type awaiting a transplant.
Otis, 48, suffering from non-alcoholic cirrhosis, told NBC's Today show this week that she wants the transplant from her brother. She didn't return calls from The Associated Press.
Other medical ethicists see no problem in Johnson donating part of his liver to his sister. Dr. Arthur Caplan, chairman of the department of medical ethics at the University of Pennsylvania, said the transplant should be allowed if Johnson's liver is compatible and healthy. Dr. Douglas W. Hanto, chairman of the ethics committee for the American Society of Transplant Surgeons, said the decision is a question of law, not medical ethics.
Over the years, several inmates have donated kidneys to family members, even in cases where execution dates had been set.
In Delaware, condemned killer Steven Shelton donated his kidney to his mother, Vesta Shelton, in April 1995. He remains alive on death row today.
In Alabama in 1996, the execution of David Larry Nelson was halted by the Alabama Supreme Court less than 24 hours before it was scheduled to see if Nelson could donate a kidney to his sick brother. The brother was too ill to have surgery, though, and later died. Nelson remains on death row.
Others have tried unsuccessfully to donate organs. In 1996 in Georgia, triple-murderer Larry Lonchar wanted to donate his kidney to the detective who helped send him to death row, but then-Gov. Zell Miller refused to allow Lonchar to be tested for compatibility.
In Texas in 1998, Jonathan Nobles' request for a stay of execution to donate his kidney was rejected. Texas prison officials said they opposed the donation because of security concerns, the chance an inmate could transmit a disease and the dilemma of keeping a death row inmate alive if something goes wrong during the surgery.
Caplan said he doesn't think if Johnson wins a reprieve to donate his liver it would set a precedent for other inmates. "I don't think this is a likely route to beat a death sentence," he said. "In general, prisons are not a great place to look for organ donors because of the infectious disease problem. And not many people on death row are going to have relatives needing transplants."
"Inmate seeks reprieve to save sister; Indiana killer's sibling needs liver transplant," by Mike Dooley. (05/16/05)
Michigan City, Ind. — Greg Johnson's death wish might save a life — if the state of Indiana grants it.
The 40-year-old Johnson has been on death row since June 1986. The year before, a jury convicted him of killing 82-year-old Ruby Hutslar while burglarizing her Anderson, Ind., home.
Johnson has exhausted his appeals and is scheduled to be executed May 25. But in an ironic twist, he's now seeking a last-minute delay — not to spare his life but possibly to save his sister's. According to Johnson, his sister, Debbie Otis, was diagnosed as a diabetic several years ago. She managed to keep the disease under control, he said, until about three weeks ago when she went into shock and fell, breaking her back.
Doctors who examined Otis determined she has steatohepatitis, a type of non-alcoholic hepatitis found in diabetics. A liver transplant would be her best chance for survival, one doctor has told Michelle Kraus, Johnson's court-appointed attorney. And that chance would be even better if the donor was a sibling, like Johnson. Many organs used in transplants come from the bodies of those recently deceased, but in Johnson's case, the chemicals used in his lethal injection would make the liver and kidneys unusable. He has asked prison officials if he could be electrocuted instead, in which case it might be possible to reuse the organs.
That request is not likely to be granted because the equipment needed for an electrocution is no longer in place at the prison. State law has changed and now requires executions to be carried out by injection rather than in the electric chair.
Johnson also has another option. Kraus said if tests show he is a suitable match, the transplant would take only part of Johnson's liver. Enough would remain to keep him alive until the state could carry out the death sentence, possibly as soon as a few weeks after the transplant surgery. The problem, though, is the calendar. Unless Gov. Mitch Daniels' office grants a temporary reprieve or the state Supreme Court issues a stay delaying his execution, Johnson's opportunity to be a donor will end after 12:01 a.m. May 25, the time and date set for him to receive a lethal injection.
Johnson's case is the first where a death-row inmate in Indiana has asked to be a donor, according to Java Ahmed, director of public and media relations for the Department of Correction. "The department would follow any order" issued by the governor or the court, Ahmed said, but is powerless to act without one.
Kraus has filed a request for a reprieve with Daniels' office as part of a petition for clemency for her client. She said she will file the request for a stay in the next few days when she has all the medical information needed. Ahmed said the state's primary concern, if Johnson's request is granted, would be the cost of the procedure.
Taxpayers, she said, should not be expected to pay for the tests and operations involved. Johnson said his sister has health insurance that could pay most, if not all, the expenses of a transplant. Kraus said she was told Johnson would have to be hospitalized for about a week after the surgery.
Before he went to prison for Hutslar's murder, Johnson's driver's license indicated he was willing to donate his organs for transplant. Today, he hopes he might still have a chance to make good on that pledge.
"Condemned Man: Let Me Try To Save My Sister; Inmate, Saying He'd Donate Liver, Rejects Arguments Against Execution Delay." (UPDATED: 9:13 am EST May 18, 2005)
MICHIGAN CITY, Ind. -- Convicted murderer Gregory Scott Johnson says he doesn't deserve mercy, and that he has given up trying to save his life. But he says he wants to delay his execution to see if his liver can save his sister, and he rejects the arguments of those who oppose the request.
"The state of Indiana has waited to put me down for 20 years," Johnson (pictured, left) told ABC News in a jailhouse interview this week. "I don't know how bloodthirsty the citizens have to be through its elected government not to be able to wait for just a couple more weeks, or however long it takes, in order to save the life of someone who is innocent."
Johnson, who was convicted of killing his 82-year-old neighbor, Ruby Hutslar, in 1985, is scheduled to die by chemical injection on May 25.
Defense attorneys want the execution postponed for medical tests to see whether Johnson, 41, can donate part of his liver to his dying sister, Deborah Otis. Death by chemical injection would ruin the organ. His attorneys say that if Johnson's liver is a match for Otis, part of his liver should be harvested, and then he can be put to death once he recovers.
In a jailhouse interview, Johnson said his request was a simple matter that should draw simple acceptance. "I don't understand why they'd have a problem removing an organ if they don't have a problem with killing me in the first place, and the organ is going to someone who deserves to live," Johnson said.
Prosecutors call the last-minute request suspicious. Otis said her brother has only good intentions. "I know this is going to be an ethical and political decision," Otis said. "It puts a lot of people under pressure. I understand that. That's not my intent or his. He just simply wants to help me live."
Johnson made his plea before a parole board on Monday. The board will hear more testimony Friday, and then it will make a recommendation to Gov. Mitch Daniels. An aide to the parole board said the request is unlikely to sway the panel unless Johnson's attorney can prove a delay would be necessary to save Otis' life, RTV6's Norman Cox reported Tuesday.
The Indiana Supreme Court on Monday refused a request by Johnson's attorneys to reconsider the death sentence and whether an accomplice might have been responsible for the killing.
"Condemned Man's Execution Now A Near Certainty; Parole Board Rejects Plea For Clemency." (UPDATED: 4:39 pm EST May 20, 2005)
INDIANAPOLIS -- Gregory Scott Johnson will be executed next week, unless Gov. Mitch Daniels overturns Friday's decision by the state parole board. The board rejected Johnson's plea for clemency, or at least a reprieve so he could donate his liver to his ailing sister.
Johnson, who was convicted of murdering an elderly Anderson woman, is scheduled to die by lethal injection just after midnight next Wednesday at the state prison in Michigan City. Friday's decision means Johnson's execution is almost certain to go forward.
Johnson's case has gained national notoriety because of his request that the state keep him alive long enough to donate his liver to his sister, Deborah Otis. His family and attorneys pleaded for enough time to do compatibility tests and for his sister to recover from an infection so she could have a transplant.
Johnson's mother, Alice Newman, told RTV6's Norman Cox, "This is a terrible thing that happened. But, that doesn't make me love my child any less than anyone loves their child. Now I stand the chance of maybe losing my daughter also."
Relatives of Johnson's victim, Ruby Hutslar, 82, of Anderson, asked where his compassion was when he stomped her to death during a robbery to get money for drugs, then set her house on fire to cover the crime.
Sharon Barker told RTV6 the death certificate listing of her grandmother's murder, "multiple blunt force trauma", doesn't come close to fully describing how horrible it was. "I've read that she had 30 broken bones. I just don't understand the viciousness of this," Barker said.
The board voted unanimously to reject clemency for what they called a heinous, brutal crime. One member of the parole board said he believes Johnson's show of concern for his sister is just an attempt to buy time for himself. "On the surface this seemed to be a noble cause. But, the underlying facts make this board member believe otherwise," parole board member Randall Gentry said.
After the vote, Johnson's mother said she was devastated and hoped that her daughter can find another donor. "Hopefully she will," Newman said. "They say they can have one in, what, 20 days? I hope they do."
The parole board vote is only a recommendation. Gov. Daniels has the final decision, but he is unlikely to go against a unanimous vote, RTV6 reported. His press secretary says there is no timetable for him to act. He could do so at any time up until the execution.
Fort Wayne Journal-Gazette
"Parole board not moved by killer’s bid to donate," by Mike Smith. (AP May 21, 2005)
INDIANAPOLIS – The Indiana Parole Board voted unanimously Friday to recommend that the governor deny clemency to convicted murderer Gregory Scott Johnson, who is scheduled to die by lethal injection next week.
Some board members scoffed at his attorneys’ request that if Gov. Mitch Daniels did not commute Johnson’s sentence, he at least grant him a 90-day reprieve to open up the possibility of Johnson donating part of his liver to an ailing sister. “His attorneys cited that reason as being one of compassion,” said Valerie Parker, the board’s vice chairwoman. “I had to ask myself, how much compassion was shown to Ruby Hutslar, who by all accounts was much smaller in stature than Mr. Johnson and of no immediate threat to his plans to take from her those things that did not belong to him?”
Johnson was convicted of breaking into the 82-year-old woman’s Anderson home in 1985, beating and stomping on her, then setting her house on fire to hide his crime. The state said he confessed to the killing originally but changed his story after his conviction. During a hearing before the board on Monday, Johnson denied killing Hutslar but said he was in the house with an accomplice and set the fire.
Johnson had requested the 90-day reprieve from his execution scheduled for early Wednesday so he could donate part of his liver to his 48-year-old sister, Debra Otis, who lives in an Anderson nursing home. The state attorney general’s office took no position on the reprieve request, but said Johnson, now 40, was clearly guilty of Hutslar’s murder and his death sentence should be carried out.
Family members of Hutslar and Johnson also testified before the board made its nonbinding recommendation to Daniels. The Indiana Supreme Court denied a petition for rehearing Friday, but a separate petition was filed before the 7th U.S. Circuit Court of Appeals.
Johnson’s attorneys argued that he should be granted clemency on several grounds. Among other things, they said his case was not fully reviewed by the federal courts because an original appeal request was filed one day late. They also say prosecutors did not turn over certain evidence to defense attorneys before trial.
But they also argued for the reprieve. Michelle Kraus, one of Johnson’s attorneys, said he was recently given a blood test, and his B-positive type matches that of his sister. She said that could make his liver compatible with Otis, but more time was needed to explore medical and ethical questions about such a transplant. “He is trying to do something good,” she said. “He has struggled to find good in his life.” Alice Newman, Johnson’s mother, said she stood to lose her son, and without a reprieve and transplant, perhaps a daughter, too.
Julie Woodard, Hutslar’s great-niece, said she did not wish any harm to Johnson’s sister. But if Johnson was allowed to donate the liver, she said, “He is going to be remembered more as a hero for saving his sister than for this brutal murder.” Sharon Barker, Hutslar’s granddaughter, said Hutslar loved her family, but had lost two husbands and a daughter – Barker’s mother – during her life. “For her to have gone through that and to come to the end she did just seems unfair to me. It’s cruel,” she said in asking that the execution be carried out as scheduled.
Board members said Johnson’s case had been reviewed several times by the courts and his guilt was not in doubt. Member Randall Gentry suggested that local and national media attention over the transplant issue had caused some to drift from the basic facts of the case – that Johnson had “admitted to the beating and brutal stomping death of a defenseless elderly lady ...”
Johnson’s mother said she was devastated by the recommendation, but said her son recently told her that if clemency was denied, he was prepared to die. “I sometimes think that he’d be better off being put to death as he is staying in a little cubicle cell the rest of his life,” Alice Newman said.
Daniels has made no public statements about the pending execution, but a spokeswoman said he planned to thoroughly review the board’s recommendation and all records in the case before making any decisions.
"Killer's request to give liver to sister is denied ," by Vic Ryckaert. (May 21, 2005)
Gov. Mitch Daniels now holds the only hope for a Death Row inmate who wants to delay his execution so he can donate his liver to his sister. Gregory Scott Johnson's offer to help Debra Otis held no sway with the Indiana Parole Board, which voted 4-0 Friday against postponing his execution.
"Mr. Johnson has acquired enough victims to last a lifetime," board member Valerie Parker said. "How much compassion was shown to Ruby Hutslar?" Barring action by the governor, Johnson, 40, will die by chemical injection early Wednesday for murdering the 82-year-old Hutslar in her Anderson home. Hutslar was stomped to death and her house set ablaze in 1985. "In this board member's opinion," Randall Gentry said, "all requests regarding a delay in carrying out of (the) sentence at this late date seem to be an attempt at postponement for the sake of Mr. Johnson, not his ailing sister."
Daniels' spokeswoman, Jane Jankowski, said the governor would take the next few days to review Johnson's case. He did the same before the executions earlier this year of Bill Benefiel and Donald Ray Wallace. Also Friday, the Indiana Supreme Court denied Johnson's latest appeal. His lawyers said they would file an appeal Monday in a federal court.
Johnson received national attention for wanting to donate his liver to Otis, 48, who doctors say will die without a transplant. The request, a first in Indiana, generated a debate among bioethicists. Arthur Caplan, director of the Center of Bioethics at the University of Pennsylvania, called the Parole Board's decision shortsighted. "At most we're talking delays in a period of months," Caplan said. "We could get an answer that he could save his sister's life."
Two local experts disagree, saying the Parole Board made the right decision. "Certainly in cases of liver donation, this sets a worrisome scientific medical, ethical and legal precedent that might come back to haunt us," said Eric Meslin, director of the Indiana University Center for Bioethics. "We don't want prisons to be preferred sources of high-risk transplant procedures."
Allowing Death Row inmates to donate their organs could unduly influence juries, judges and even governors, said Dr. David Orentlicher, co-director of the Center for Law and Health at the Indiana University School of Law. "I think they got it right," said Orentlicher, also a Democratic state representative. "While this is not an appropriate case of organ donation by an inmate, it's given us a chance to think about the issue, and we can now think about whether to establish guidelines for future cases."
The Parole Board's hearing Friday in an auditorium at the Indiana Government Center drew about 75 spectators and seven television news cameras, including at least two national affiliates.
Hutslar's loved ones expressed outrage that a murderer has received so much attention. Sharon Barker, Hutslar's granddaughter, reminded board members that her grandmother suffered 30 broken bones when she died. "I just don't understand the viciousness of this," Barker said, noting that the fire Johnson set destroyed most of Hutslar's photographs and heirlooms. "She not only died that morning," Barker said, "she also lost most of her history."
Julie Woodard, Hutslar's great-niece, said she has sympathy for Johnson's family but was against the transplant. "It's getting to the point where he will be remembered as a hero who saved his sister's life instead of the man who brutally murdered Ruby Hutslar."
Johnson's mother, Alice Newman, said her son was ready to accept his fate. "It's just that I'm not ready to give him up."
David McGuire, originally from Anderson, drove from Ann Arbor, Mich., to tell the Parole Board how Johnson helped him 25 years ago after he was hit in the head with a baseball bat. Johnson, then 16, took off his own shirt and wrapped it around McGuire's bloody head, then carried the then-8-year-old boy a couple of blocks to get help. "I never got to thank him, but how do you thank a murderer?" McGuire said.
Johnson v. State, 584 N.E.2d 1092 (Ind. January 27, 1992) (Direct Appeal).
Defendant was convicted of felony-murder during commission of burglary, and arson, and sentenced to death, following jury trial in the Superior Court, Madison County, Thomas Newman, J., and defendant appealed. The Supreme Court, DeBruler, J., held that: (1) defendant's statements to police were not involuntary; (2) evidence supported conviction; (3) trial court should have considered intoxication at time of offense as mitigating circumstance; (4) jury instruction in penalty phase was not improper; (5) testimony regarding other arsons by defendant did not warrant mistrial; (6) defendant was not entitled to change of judge; (7) failure to produce police and fire investigative reports was not reversible error; (8) admission of testimony that deceased victim looked scared was not reversible error; (9) evidence of jail disciplinary reports at penalty phase was not hearsay; (10) evidence of defendant's past arsons was admissible at penalty phase; (11) defendant was not denied effective assistance of counsel at penalty phase; and (12) death sentence was appropriate. Affirmed.
Appellant Gregory Scott Johnson was charged in Count I with felony murder pursuant to I.C. 35-42-1-1(2) in having killed Ruby Hutslar by striking her with a blunt instrument and kicking and hitting her during the commission of a burglary. In Count II, he was charged pursuant to I.C. 35- 43-1-1(a) with having knowingly damaged the dwelling of the alleged victim by means of fire, a class B felony. In a separate Count III, the prosecution sought the death sentence by alleging pursuant to I.C. 35-50-2-9(b)(1) , the aggravating circumstance that the killing had been done intentionally while committing the crimes of burglary and arson.
A trial by jury resulted in verdicts of guilty as charged in both Count I and Count II. A judgment of conviction was then entered. Three days later the jury reconvened for the hearing regarding sentencing recommendation. Following the presentation of evidence, the jury retired and then returned a verdict recommending that the death sentence be imposed.
A month later the court held the sentencing hearing, during which the evidence and arguments were heard and concluded. The trial court then made an express and written finding that the State proved the aggravating circumstance to the court beyond a reasonable doubt. The court also considered all categories of mitigating factors, noting that appellant had a history of prior criminal conduct and had consumed some drugs and alcohol, but found that no mitigating circumstances existed and imposed the death penalty for the murder. The court also imposed a ten-year sentence for arson.
Johnson raises numerous issues on appeal which we have consolidated and restated as follows: I. Whether the trial court erred by admitting evidence of statements made by appellant when arrested and when interrogated later at the stationhouse; II. Whether the evidence was sufficient to prove the criminal intent required on all counts; III. Whether it was error to fail to find intoxication at the time of the offense to be a mitigating circumstance; IV. Whether a jury instruction given at the penalty phase was erroneous because it omitted reference to the possible penalties for arson; V. Whether the trial court erred by refusing to grant a mistrial when evidence of other arsons was injected by the prosecution; VI. Whether the trial court erred when denying a motion for change of judge; VII. Whether the trial court erred in refusing to grant pre-trial and in-trial motions to require the prosecution to produce police and fire investigative reports; VIII. Whether the trial court was in error when admitting evidence describing the deceased victim as having a scared look; IX. Whether it was error at the penalty phase to admit evidence of jail disciplinary reports; X. Whether it was error to admit evidence at the penalty phase hearing of appellant's confession to four arsons; XI. Whether appellant was afforded the effective assistance of counsel at the penalty phase hearing before the jury; XII. Whether it was error to deny a defense motion to dismiss Count III, seeking the death penalty; and XIII. Whether the death sentence is appropriate in this case.
In order to support its case, the prosecution submitted the following evidence. A boy delivering morning papers at about 6 a.m. on June 23, 1985, in Anderson, Indiana passed the house of the alleged victim, Ruby Hutslar, age 82. He saw smoke coming out from under the eaves of her roof. Alarmed, he roused a neighbor and reported the fact. He and two passersby then attempted to enter the house, but found the main front door locked. They broke open a front window of the house, but were unable to enter. They went to the back of the house and found the back door open, but were unable to enter because of the heat and smoke. A basement window was observed to have been unscrewed, broken and removed.
At 6:30, firemen arrived and observed one pane of glass in the front door broken. One was unable to reach in to attempt to unlock the door because of the intense heat inside. Fully equipped, a fireman broke open the front door, entered the living room crawling, and found Ruby Hutslar on the floor, six feet from the front door. She was carried out of the house. Efforts to resuscitate her at the scene and later at the hospital were not successful. The cause of her death was determined upon autopsy to be blunt force injuries to the head, neck and chest. She had not died of smoke inhalation or burning.
The fire had started in the center of the house and had climbed a stairway and concentrated in the attic. The fire was put out in about a half hour. A closet and the stairway on the first floor burned but the rest of the first floor and its contents suffered mostly smoke and heat damage. It was observed that the drawers in the furniture had been pulled out and some dumped out. Some small boxes and containers had been opened and their contents dumped out. The contents of a clothes closet were scattered about and the mattress had been removed from a bed. The house was in disarray, and this had not all been caused by the work of the firemen. An investigation into the cause of the fire resulted in the opinion that the fire had been set.
At approximately 6:40 a.m. a police radio broadcast instructed officers to be on the lookout for appellant Johnson because he was suspected of setting several fires in the area of the Hutslar residence. Within minutes appellant was seen by Detective Miller to be standing on the street along with others, watching the fighting of the Hutslar fire. Appellant was known to this officer, who approached him, spoke to him and observed that his eyes were bloodshot, his breath smelled of alcohol, and he was unsteady on his feet, nervous, and anxious. He appeared to be dirty and in disarray. Another onlooker testified that appellant had approached and stood very close behind him and was sweaty. When the onlooker moved sideways, appellant did also, so as to stand close behind him again. The officer placed appellant under arrest for public intoxication.
Appellant made statements at the scene. Officer Miller testified that after being arrested, appellant was searched, placed in a squad car and there read his Miranda rights for the first time. Appellant became agitated and cursed and said he understood his rights. The officer testified that in his opinion appellant was then intoxicated from a slight to moderate extent. Appellant and his girlfriend testified at a hearing on suppression of statements that appellant was an alcoholic, drinking heavily each day, and that during the twelve hour period preceding his arrest he ingested huge quantities of alcohol and a variety of drugs. A pharmacologist testifying for appellant testified that it would not be possible to accurately predict the effect of the ingestion of the substances as described by appellant, but was able to say that a person who had done so would suffer loss of muscle coordination and that appellant would have had a blood alcohol level of .15 at the time of his arrest and .10 at 8:20 when he signed a waiver of rights form.
Within ten minutes of the arrest, Officer Adams arrived on the scene. He testified that appellant was then in the squad car, in cuffs, and was kicking hard on the inside. Adams went over and asked what was wrong, and saw that appellant appeared "somewhat" impaired by alcohol or drugs. He said "something about him not having a chance and about his upbringing," and "Wisehart did not kill the bitch, I did." Adams then asked, "Did you Scott?", whereupon appellant replied, "No, but if that's the way you fuckers want to play." The statement referred to unrelated prior events in which appellant had provided testimony for the prosecution at the trial of his friend Wisehart, for the murder of another woman.
Appellant was transported to the stationhouse where at 8:20 a.m. he was given his Miranda rights for the second time, this time by Captain Hanlon, his interrogator. He then signed a written acknowledgement and waiver of rights. He denied involvement in the Hutslar fire, but gave four written statements, confessing to having set or having attempted to set four fires in the area in recent times. At the time of the written rights waiver appellant smelled strongly of alcohol, his eyes were a little bloodshot, and he manifested anger. Periodically appellant was left alone during the interrogation and would sleep for a while. During the morning he was told that Mrs. Hutslar had died. At noon he vomited. He received food, drinks, and cigarettes. He did not appear exhausted, and continued sobering up as the day went on.
At 3:30 p.m. Hanlon commenced an interrogation regarding the Hutslar fire by asking if the Hutslar fire was not an attempt on appellant's part to join his friend Mark, who was then in prison, awaiting execution, as the result of a conviction based upon appellant's testimony. Appellant responded by placing his head in his hands and becoming emotional. He then admitted breaking into the Hutslar house. A full incriminating statement followed that was completed at 5:45 p.m. In it appellant stated that he broke the glass in the pane on the front door, entered, immediately encountered Ms. Hutslar who collapsed on the floor breathing heavily. He then searched out and took a watch and silver dollars, and in checking out some noises outside, stepped on her cheek and neck twice. He then found some matches, started the fire, and ran out the back door. He threw away the watch and coins and then joined those watching the firemen at the house, at which point he was arrested.
* * *
Appellant presented ten witnesses on his behalf at the penalty phase of the trial before the jury. One such witness was Doris Maxey, Madison County Jailer. On direct examination she testified that appellant had not been a problem at the jail while awaiting trial, and had been somewhat helpful. On cross-examination by the prosecutor, over hearsay and confrontation objections, she was permitted to testify that she was aware that appellant had been "written up" for three violations of the jail rules, namely, attempting to escape, possession of an item that could be used as a weapon, and defacing jail property. On redirect examination she testified that she had no personal knowledge of the facts alleged in the three reports. The reports were not introduced into evidence.
The witness had first hand knowledge that the reports had been made and was subject to full cross-examination with respect to that fact. She had no knowledge of the truth of the facts asserted therein, and could not be cross-examined with respect to them. The evidentiary purpose of presenting the reports in this manner on cross-examination was to test the knowledge or basis of the witness's opinion that appellant had behaved in confinement. In these particular circumstances, which include the witness's admission that she had no knowledge of the facts alleged in the reports, they were not offered and would not have been received as evidence that he had in fact misbehaved while in confinement. For this purpose, the questioned testimony of the witness about the reports was not hearsay. Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759; . It was not error to permit this cross-examination.
* * *
We finally consider whether the death penalty is appropriately applied in this instance. Review by this Court of every death sentence is automatic and mandatory. Review is more intensive and sentence review rules are applied only as guidelines. Cooper, 540 N.E.2d 1216. Adherence to the procedures set forth in the death sentence statute is basic and essential. The trial court correctly followed the procedures set forth in the death sentence statute. The trial court considered the pre-sentence report and the jury recommendation. The court then found appellant guilty of the crimes alleged in Counts I and II, namely murder and arson. The court also expressly found, as trier of fact, and beyond a reasonable doubt, that appellant did intentionally kill the victim while committing arson and burglary, the sole aggravating circumstance alleged in Count III. The court then assessed the evidence as to whether it supported the statute's mitigating circumstances, and finding that it supported none, concluded that the weight of the lone aggravator predominated and that the sentence of death was proper.
Here, the jury recommended the death sentence. Appellant was twenty years old at the time of this crime. He is a lifelong resident of Anderson, Indiana. As a juvenile under court protection he received eight months of counseling at a Center for Mental Health. He spent twelve months in Crossroads Children's Home in Fort Wayne. He graduated from high school while in the Indiana Boy's School. He served nine months in the National Guard and two months in the Army before being discharged because he had not revealed the full nature of his juvenile record. He became addicted to alcohol at age twelve and had been arrested six times as an adult for illegal consumption, and an attempted burglary charge pended at the time of this offense.
During the three month period preceding this killing he set a house and three garages on fire. During this period he worked at a car wash and restaurant but was out of work when the killing occurred. While at Crossroads he met Mark Wisehart, his best friend. He reported voluntarily to the police that Wisehart had killed one Marjorie Johnson, and appellant testified at Wisehart's trial for this killing. Wisehart was convicted and received the death penalty. Appellant was remorseful about having done this.
Ten witnesses testified before the jury on behalf of the appellant at the penalty phase trial. Appellant also testified. Family and friends verified his alcohol abuse and incorrigibility. Former officials verified that he got along in confinement. Appellant's crime, character and background resembles that considered by this Court in Woods v. State (1989), Ind., 547 N.E.2d 772. Woods was nineteen, appellant twenty. Both had juvenile records and both had been moved to institutions during childhood. Woods suffered a borderline mental disorder, while appellant abused drugs and alcohol. Woods armed himself with a knife, and in conjunction with others he knocked on the door of an elderly neighbor to rob him, then stabbed the neighbor, killing him, and stealing his property. Appellant did not arm himself with a weapon during the planning stage, but did so on the porch, entered the house, and beat and stomped the elderly neighbor to death, stealing her property, and burning the house. The weight of the aggravator in the two cases is approximately the same.
As determined above in Section III of this opinion, the trial judge committed error in failing the give some mitigating value to the effects of appellant's long history of alcohol addiction and its throes on the night of this crime. We have done so, and find it to have less value than the mitigators in Woods. Present in Woods, and absent here, was the mitigator for turbulent childhood marked by mistreatment and the mitigator for lack of an adult criminal history. We conclude however that appellant can fare no better than did Woods. When the mitigating circumstance here, namely substantial impairment of the faculty for appreciating criminality, is properly and accurately determined and evaluated, it is outweighed by the lone aggravating circumstance here, namely the intentional beating and stomping of Ruby Hutslar in the course of committing a burglary at her house and burning that house. The sentence is not aribitrary or capricious, and is not manifestly unreasonable. It is properly meted out in this case. The convictions for murder and arson are affirmed as is the imposition of death. SHEPARD, C.J., DICKSON and KRAHULIK, JJ., concur. GIVAN, J., not participating.
Johnson v. State, 693 N.E.2d 941 (Ind. 1998) (PCR).
Upon final affirmance by the Supreme Court, DeBruler J., 584 N.E.2d 1092, of his convictions for murder and arson and his sentence of death with respect thereto, petitioner sought post-conviction relief. The Madison Superior Court, Richard Culver, Special Judge, denied petition, and petitioner appealed. On direct appeal, the Supreme Court, Sullivan, J., held that: (1) contention that another person was with defendant at time of crimes was insufficient to render evidence concerning other person "material" and subject to prosecutor's duty to disclose; (2) prosecutor's failure to disclose various nonexculpatory evidence did not violate Brady; (3) doctrine of res judicata prevented relitigation of Brady issues related to sentencing under guise of claim of ineffective assistance of appellate counsel; (4) neither trial nor appellate counsel were ineffective; (5) facts which defendant contended disqualified former prosecutor from participating in post-conviction proceeding did not disqualify successor prosecutor or entire prosecutor's office; and (6) allegedly erroneous findings of fact by post-conviction court could not serve as basis for reversal. Affirmed.
We affirm the denial of Gregory Scott Johnson's petition for post-conviction relief.
Petitioner Gregory Scott Johnson appeals the denial of post-conviction relief with respect to his convictions for Murder, Arson, and sentence of death. We unanimously affirmed Johnson's direct appeal of these convictions and sentence in an opinion authored by Justice DeBruler. Johnson v. State, 584 N.E.2d 1092 (Ind.1992)
The murder conviction was on a charge that Johnson had killed an elderly woman by striking her with a blunt instrument and kicking and hitting her during the commission of a burglary of her home. The Arson conviction was on a charge that Johnson had knowingly damaged the victim's home by means of a fire. The death sentence was supported by the aggravating circumstance that the killing had been done intentionally while committing the crimes of Burglary and Arson. Ind.Code § 35-50-2-9(b)(1).
* * *
In his brief, Johnson asserts the failure of trial counsel to discover Johnson's (1) behavior trouble in school, (2) psychological impact as a result of testifying against his friend (Mark Allen Wisehart, who is currently on death row), (3) disappointments from his lack of paternal attention, (4) violent relationship with a man whom he thought to be his step-father (whom he now knows is his biological father); and (5) self-mutilation tendencies or early childhood abuse. Johnson has not provided us with citations to the post-conviction record substantiating the existence of such evidence. * * * We nevertheless reviewed the post-conviction record and gleaned the following evidence in support of these assertions. First, Johnson's mother testified that she had to go to school on two occasions because Johnson was "rowdy." Second, Johnson provides no evidence of the psychological impact upon Johnson in testifying against his friend, Mark Allen Wisehart, except to say that trial counsel never questioned anyone regarding the relationship between the two friends and the impact of the testimony. Third, Johnson's sister testified during post-conviction hearing about some abuse which Johnson suffered at the hands of Frank Newman (now known to be Johnson's biological father) and Johnson's grandfather. Johnson also contends it was ineffective for counsel to have failed to discover Johnson's epilepsy and present it as a mitigating circumstance. Johnson contends that medical records would have disclosed Johnson's epilepsy, but does not cite to the record directing us to these medical records. Our review of the record indicates that the only reference to Johnson's epilepsy was testimony from his mother during the post-conviction hearing that she learned about Johnson's epilepsy only after he was incarcerated.
* * *
We affirm the denial of Gregory Scott Johnson's petition for post-conviction relief.
Johnson v. State, --- N.E.2d ----, 2005 WL 1154827 (Ind. 2005) (Successive PCR).
Background: Following appellate affirmance, 584 N.E.2d 1092, of his conviction in the Superior Court, Madison County, of felony murder and arson, and of his sentence of death, and of his initial petition for post-conviction relief, 693 N.E.2d 941, petitioner sought leave to file successive petition for post-conviction relief.
Holdings: The Supreme Court, Randall T. Shepard, C.J., held that:
(1) petitioner's discovery of court order concerning hair testing prosecutor had failed to disclose before his trial was not basis for successive post-conviction petition;
(2) police investigation of suspect other than petitioner was not exculpatory evidence;
(3) dismissal of petitioner's federal habeas petition on ground of late filing was not basis for allowing successive post-conviction petition;
(4) petitioner was not entitled to post-conviction DNA testing; and
(5) petitioner's unsupported contention that particular drug protocol allegedly employed by state in executing prisoners by lethal injection created unacceptable risk of unnecessary pain and suffering was insufficient to establish Eighth Amendment violation. Motion for leave denied.
Johnson v. McBride, 381 F.3d 587 (7th Cir. 2004) (Habeas).
Background: After his convictions for felony murder and arson, and sentence of death, were affirmed on direct appeal, 584 N.E.2d 1092, and denial of his state postconviction petition was affirmed, 693 N.E.2d 941, petitioner sought federal habeas corpus relief. The United States District Court for the Southern District of Indiana, Richard L. Young, J., dismissed petition as untimely. Petitioner appealed.
Holdings: The Court of Appeals, Easterbrook, Circuit Judge, held that:
(1) petitioner's Brady claim was not a newly discovered claim, so that one-year limitations period for petition began to run when judgment became final, rather than when factual predicate of claim could have been discovered, and
(2) petitioner was not entitled to equitable tolling of limitations period. Affirmed.
EASTERBROOK, Circuit Judge.
A jury convicted Gregory Scott Johnson of bludgeoning and kicking Ruby Hutslar to death during a burglary; it found that Johnson set fire to her home in an effort to conceal his crimes. The jurors found aggravating circumstances and no mitigating circumstances; they recommended that Johnson be sentenced to death. The trial judge agreed and imposed that penalty. The Supreme Court of Indiana affirmed on direct appeal, 584 N.E.2d 1092 (Ind.1992), and rejected Johnson's collateral attack. 693 N.E.2d 941 (Ind.1998) .That decision became final on June 26, 1998, so Johnson had until June 28, 1999, to seek federal collateral review. 28 U.S.C. § 2244(d)(1). (June 26, 1999, the end of the statutory year, was a Saturday; the deadline therefore rolled forward to the following Monday.) Johnson's lawyer waited until June 25 to mail the petition to the district court, which received and filed it on June 29. Eventually the judge dismissed the petition as untimely.
It provides that the petitioner has a year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"; this language sets the outer limit at June 28. Johnson contends that we should use § 2244(d)(1)(D) instead; this subsection starts the period on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." See Owens v. Boyd, 235 F.3d 356 (7th Cir.2000). The "claim" presented in this federal collateral attack is that Indiana violated the due process clause of the fourteenth amendment by withholding evidence that Paul Decker participated in the offense, something that (if true) might have enabled Johnson to reduce the degree of his own culpability. This is not a newly discovered claim; it is the same claim presented in state court. (On the definition of a "claim," see Brannigan v. United States, 249 F.3d 584 (7th Cir.2001)
Indiana's judiciary deemed it to be a bad one because (a) Johnson did not contend in his confessions or at trial that Decker played any role in the offense; (b) even after trial no evidence has emerged that Decker participated. What Johnson now contends is that the police must have suspected Decker, or they would not have sought a judicial order to obtain hair samples that they compared with hairs found at the crime scene. According to Johnson's current lawyers, the fact that the *589 application for this order has never been disclosed to the defense means that the state is still hiding something and accordingly that the time to file a federal collateral attack has not started to run; that won't happen, Johnson maintains, until he receives the application and thus learns why the police told the court that they wanted to test Decker's hairs.
Speculation about what the police may have thought early in their investigation is some distance from knowledge that the state had, yet concealed, material exculpatory evidence. See United States v. Agurs, 427 U.S. 97, 108-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Mahaffey v. Schomig, 294 F.3d 907, 917 (7th Cir.2002). Testing showed that Decker was not the source of the hair. This record does not suggest anything other than a painstaking investigation by the police. Johnson would have known himself whether Decker participated; his role is not something that the prosecutor could have concealed. A desire to see more information in the hope that something will turn up differs from "the factual predicate of [a] claim or claims" for purposes of § 2244(d)(1)(D). The district judge therefore was right to use § 2244(d)(1)(A) to identify the last day Johnson had to get a collateral attack under way.
Counsel bungled the job in two ways. First, she waited until the final business day of the statutory year. Prudent lawyers act sooner, so that Murphy's Law will not undermine a client's interests. Second, counsel used first-class mail rather than Federal Express or another service that guarantees next-business-day delivery, or (better still) sending a messenger to the courthouse to file in person. Apparently counsel believed that use of the mails would add three days to the time available. Yet Fed.R.Civ.P. 6(e) applies only to documents "served" on opposing counsel, not to documents such as complaints or notices of appeal that must be filed in court. Nothing in the Rules Governing Section 2254 Cases in the United States District Courts treats any document as "filed" before actual receipt by the district court's clerk. Johnson concedes that his lawyer erred in supposing that use of the Postal Service adds to the time available for filing a petition. What he contended in the district court, and repeats here, is that lateness should be excused because delay was counsel's fault.
Johnson calls the argument one for "equitable tolling," which excuses delay when "despite all due diligence [the litigant] is unable to obtain vital information bearing on the existence of his claim." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990), relying on Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) codifies that doctrine, which as we have already held does not assist Johnson. Other events might justify delay, see Taliani v. Chrans, 189 F.3d 597 (7th Cir.1999) , but only if they (a) are unrelated to the tolling criteria built into § 2244, and (b) show interference with a prisoner's ability to commence a collateral attack. See Brooks v. Walls, 279 F.3d 518, 525 (7th Cir.), rehearing denied, 301 F.3d 839 (2002). No one interfered with Johnson's ability to pursue collateral relief in a timely fashion. He wants us to treat his own lawyer as the source of interference, but lawyers are agents. Their acts (good and bad alike) are attributed to the clients they represent. Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 396-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The sixth amendment creates an exception to this principle for criminal prosecutions. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) . Once trial and direct appeals have run their course, however, neither the sixth amendment nor federal law guarantees effective assistance of counsel for collateral proceedings, not even in a capital case. See Coleman v. Thompson, 501 U.S. 722, 752-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
So it is as if Johnson himself had made the decisions that led to the delay. Modrowski v. Mote, 322 F.3d 965 (7th Cir.2003), illustrates the point. Counsel filed a collateral attack one day late, and the prisoner insisted (just as Johnson does) that counsel's shortcomings should be treated as an excuse. Modrowski contended that his (former) lawyer experienced "a series of physical and mental ailments [that] prevented him from working on the petition and filing it on time." 322 F.3d at 966. We replied that attorney incapacity is equivalent to attorney negligence for equitable tolling purposes. We will not revisit our long-standing determination that petitioners bear ultimate responsibility for their filings, even if that means preparing duplicative petitions: petitioners, "whether in prison or not, must vigilantly oversee the actions of their attorneys and, if necessary, take matters into their own hands." Johnson v. McCaughtry, 265 F.3d 559 (7th Cir.2001) at 566. Furthermore, no principled distinction exists between incapacity and negligence for equitable tolling purposes. Even if a prisoner diligently checks an attorney's references and disciplinary records, he still cannot prevent the attorney from bungling his case. Nonetheless, we hold the prisoner responsible for his attorney's bungling. Likewise, a prisoner cannot prevent his attorney from becoming incapacitated, and there is no reason, however unfortunate the result, not to hold the prisoner responsible in this type of situation, as well. 322 F.3d at 968. Johnson's situation is the result of a simple gaffe by counsel; he has less claim to extra time than Modrowski did.
Modrowski's sentence was life imprisonment; Johnson contends that prisoners under sentence of death should receive different treatment. Yet neither the text of § 2244(d) nor the principle that lawyers are agents for their clients draws any distinction between capital punishment and other sanctions. The Supreme Court held in Coleman and Giarratano that all prisoners, including those sentenced to death, are responsible for their own legal affairs on collateral attack and cannot demand a lawyer at public expense or obtain relief from the shortcomings of their counsel. In Coleman a prisoner's post-conviction counsel filed his notice of appeal in state court three days late; this default meant that Coleman failed to exhaust available state remedies and thus wiped out the prospects of collateral review in federal court. The Supreme Court recognized that counsel was to blame but enforced the default nonetheless, holding that there would be no special dispensations in capital proceedings. To the extent Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir.2001), suggests that attorneys' errors in handling collateral attacks against death sentences justify equitable tolling even though the identical conduct in other cases would not, it is hard to reconcile with Coleman, which the third circuit did not mention. We agree with Rouse v. Lee, 339 F.3d 238, 251 (4th Cir.2003) (en banc)--another capital case in which counsel foolishly waited until the end to mail a petition and believed that Rule 6(e) added three days to the statutory filing deadline--that "[a]llowing consideration of the merits of time-barred claims to creep into the equitable tolling analysis lets petitioners effectively circumvent the statute of limitations because the merits of their claims will always be considered. This would enable petitioners who were in no way prevented from complying with the statute of limitations to create delay and undermine finality--two of the reasons that precipitated enactment of the AEDPA statute of limitations. [It is thus best never] to apply equitable tolling based on a factor that had nothing to do with [a] failure to file on time." It is unnecessary to add to the discussion of this subject in Rouse, 339 F.3d at 251-56.
Johnson enjoyed thorough consideration by the Supreme Court of Indiana on both direct appeal and collateral attack. To obtain another round of review in federal court, Johnson had to meet the statutory criteria. He did not do so, and we are not authorized to excuse his non-compliance. The statute itself holds out one last opportunity, however: if exculpatory evidence should emerge, distinct enough to create a separate "claim," then § 2244(b)(2)(B) could allow Johnson to file a successive petition. (This subsection applies when "(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.") AFFIRMED