The Bradley County district attorney threw out murder charges against one suspect in the 1999 Valentine's Day triple slaying in Cleveland, saying evidence of calls between the judge and a detective tainted the case so badly that Michael Younger couldn't get a fair trial.
Now the same DA's office is saying the same evidence is harmless and shouldn't be used to free the only person ever found guilty in the grisly killings.
A jury found Maurice Johnson guilty in 2009 on three counts of murder in the deaths of O.J. Blair, Cayci Higgins and Dawn Rogers. The three had been bound and shot in the head, execution style, in a Cleveland apartment following a fight between Johnson and Blair.
Johnson was given three life sentences without parole. The Tennessee Court of Criminal Appeals upheld the convictions; now Johnson is arguing in the appeals court that he didn't get a fair trial because his lawyers didn't do their jobs right. That motion is awaiting a hearing.
Johnson offers a handful of arguments to prove ineffective assistance of counsel, ranging from lack of a paid defense investigator and failure to raise the possibility of third-party guilt to misconduct by prosecutors, a case detective and the judge. He also is seeking to have Criminal Court Judge Amy Reedy and the 10th Judicial District DA's office booted from his case.
Johnson's attorneys, Steve Ward and Mitchell Bryant, weren't available for comment this week.
Among other things, Johnson alleges the attorneys used the wrong procedure once claims of "personal undisclosed relationships" between Reedy and former Cleveland Police Detective Duff Brumley became public during co-defendant Michael "Money" Younger's case in October 2010.
Johnson had already appealed his triple murder conviction before Younger's May 2010 trial ended in a mistrial.
Reedy declared the mistrial after Assistant District Attorney Paul Rush, who was prosecuting the case with ADA Richard Fisher, violated her order against asking a specific question of a witness. Younger's attorneys also claimed Rush had withheld evidence helpful to their client. (Earlier this year, Rush was publicly censured by the Tennessee Board of Professional Responsibility for two ethical violations arising from that incident, but the board found that he had not failed to turn over exculpatory evidence.)
Before a new trial date was set for Younger, District Attorney Steve Bebb moved to dismiss the murder charges. He claimed Brumley, the detective, had been investigated, suspended and then fired by the Cleveland Police Department. That and allegations of other misconduct by Brumley, including threatening a witness, and more than 200 telephone conversations between Brumley and Reedy around the time of Younger's trial affected his credibility as a witness, Bebb said.
Bebb also asked Reedy to recuse herself from the case based on the phone calls. She refused but later stepped aside of her own volition.
In his motion to dismiss Younger's murder charges, Bebb wrote: "The absolute impropriety of these telephone calls is such that the State cannot in good faith subject Mr. Younger to further criminal prosecution. ..."
In a December 2010 hearing on the dismissal motion before Special Judge Jon Kerry Blackwood, who took over the case from Reedy, Bebb went further:
"I believe from the beginning, from even the Maurice Johnson trial, that something affected our ability to get a fair trial. ... We could not get the judge to recuse herself. ... (I)t appeared to me, and I think it ought to appear to this Court, in reading her order at the end of this case, that she intended for the case to go away, for the State of Tennessee to be blamed and Duff Brumley not to be blamed."
Blackwood dismissed the charges against Younger. Now Johnson claims that he should be able to use the same allegations of misconduct, bias and hostility that were aired in that trial to help his own case.
He said his attorneys didn't use the right procedure to raise those issues of wrongdoing, and that his 14th Amendment right to due process was violated because the judge refused his request to recuse herself.
Writing for the DA's office, Fisher said Johnson's claims have no merit and, in a claim-by-claim refutation, says Ward and Bryant were thorough and effective.
He said Johnson's claim that his attorneys were ineffective because they didn't investigate Brumley's personnel records, "intimidation of witnesses" or credibility aren't believable. He noted that Brumley was one of nine officers on the triple homicide task force and not a key witness in Johnson's case.
"There is no reference to any aspect of trial testimony that Brumley or any other investigator threatened or coerced any witness to fabricate testimony," Fisher wrote. "... There is no showing or allegation of corruption by the witness."
Later in the motion, Fisher wrote: "The State was unaware of any negative aspect of the personnel file of Detective Brumley and had no reason to inspect his file."
He also noted: "The telephone log of calls between Brumley, who has a mowing service in addition to his law enforcement duties, and the Judge, who is one of his customers, [word missing] talk on the phone" but said, "There were no calls during the days of the Petitioner's trial. Testimony and/or the record will resolve issues raised by Petitioner and subsequently by his counsel."
Johnson's petition was set for a hearing in Bradley County Criminal Court this month, but first the appeals court must resolve a battle over whether any of the court officials can stay on the case.
Johnson's current attorney, Richard Hughes, has asked the Court of Criminal Appeals to remove the judge and prosecutor so they can testify in his post-conviction hearing: Reedy on whether Johnson's attorneys acted incorrectly; and Rush and Fisher about the allegations of improper communications between Reedy and Brumley in the Younger case.
"The impartiality of the court has been called into question by the petition in his pro se petition based solely on allegations that were made by the state," Hughes wrote.
Fisher in June filed a separate motion for Reedy's recusal, citing questions of "due process, partiality of the Trial Court and the perception of justice and fairness" raised by Johnson.
The Court of Criminal Appeals has not said whether it will grant what's called an interlocutory appeal to hear the recusal requests, but Johnson's petition for post-conviction relief won't be heard until that question is decided.
Brumley has a lawsuit pending against the Cleveland Police Department over what he contends was improper dismissal.
His lawyer, Jerry Tidwell, said Fisher's filing in Johnson's case directly contradicts Bebb's position in Younger's.
"General Fisher's filing appears to be in conflict with General Bebb's prior expressions in writing, that Duff Brumley is lacking in credibility," Tidwell said. "General Fisher seems to think Mr. Brumley has credibility as a witness. He said in writing there's no indication in the phone calls that anything inappropriate or improper was going on. That seems to be in conflict with General Bebb's expressed opinion.
"I think I have to conclude they've had a change of heart."
Contact staff writer Judy Walton at firstname.lastname@example.org or 423-757-6416.