Johnson was convicted of aggravated murder and sentenced to death.
Nearly two decades after Harriet Thompson, 28, was killed in Salem, a judge is considering a request from the Oregon Innocence Project to allow additional DNA testing of crime-scene evidence in the case.
The tests, using techniques that had not been developed when Johnson went on trial in 2004, could lead to the real killer and exonerate Johnson, his lawyers say.
But Judge Channing Bennett this month said he was not sure if Oregon law allows him to grant the tests.
DNA tests have set free more than 350 wrongly convicted people in the United States since 1989, including 20 who were on death row. Johnson’s case shows that getting authorization for tests to be carried out can be a challenge.
Thompson was found in her blood-spattered home by her landlord. Johnson was later found selling some of her jewelry but denied ever having been in her apartment. After his DNA was found there on items unrelated to the murder, he acknowledged having visited her socially but insisted he was not there when Thompson was killed.
In 2015, the Oregon Legislature tackled a DNA testing statute enacted 14 years earlier which set the bar high for those convicted of crimes to request DNA tests.
Wax, a former federal defense lawyer who has also represented detainees held at the Guantanamo Bay U.S. military prison, said only two motions for testing had been granted from 2001 to 2015. Wax did not know how many had been requested but says it’s likely that many convicts didn’t request testing because it was so hard to get approval from judges.
The 2001 law said a court could authorize testing only if it found “there is a reasonable possibility that the testing … would establish the innocence of the person.”
Aliza Kaplan, who in 2015 was with the Oregon Innocence Project, told lawmakers: “This standard creates a Catch-22, essentially requiring a person to prove their innocence before testing is granted, when the whole point is to determine guilt or innocence after the results are in.”
The new 2015 bill, as introduced, said a convicted person must show testing would “lead to a finding that the person would not have been convicted or would have received a lesser sentence if the DNA test results had been admitted at trial.”
But a House committee amended the bill, specifying that a convicted person must show the tests would “lead to a finding that the person is actually innocent of the offense.” That version was unanimously approved by the Legislature.
That statute could now impact Johnson’s case in the Marion County Circuit Court, just three blocks from the marble-domed state Capitol.
In the courtroom, Judge Bennett asked Wax how DNA testing would establish Johnson’s innocence, with his question seemingly guided by the 2001 DNA statute.
Wax explained that blood was found on a sink where the killer is believed to have washed up. He said that if DNA tests show it came from someone other than Johnson or Thompson, and if that same person’s DNA is on Thompson’s clothing and on the murder weapon, that is “compelling evidence” of Johnson’s innocence.
Prosecutor Katie Suver objected to the request for testing, saying it “would continue to delay the execution of the sentence and the finality of the case.”
She said the jury that convicted Johnson already knew his DNA was not found on any of the case’s murder-linked evidence that was tested for DNA.
But DNA technology available during Johnson’s trial could only exclude him as a suspect, Brittney Plesser, another of Johnson’s lawyers, told the judge. Now the testing can provide matches to other people, including profiles on an FBI database, she said.
Tests might also produce a match to a man who has a criminal record of violence against women and whose semen was found inside the victim, Johnson’s lawyers said. The man was questioned by police years ago but wasn’t arrested.
Johnson’s attorneys asked the court last week to order the district attorney’s office “to disclose copies of all investigative reports and interview recordings of and related to” the man whose profile was identified on Thompson’s vaginal swabs.
They said an expert had analyzed the sample and believe it got inside Thompson near the time of her death.
Even if testing casts doubt on Johnson’s conviction, he would remain in prison but could request a new trial, noted Kaplan, who is now a law professor at Lewis & Clark Law School.
The judge said he would study the issue before making a ruling.
Kaplan suggested in the interview that it would be more efficient to simply perform the additional DNA testing instead of going through legal hearings to determine if testing is justifiable.
“Why don’t we just do this?” she asked. “The amount of money, energy and time in just litigating this seems crazy to me. It could lead to his actual innocence.”