Valdosta Daily Times

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April 18, 2013

Judge grants retrial in 24-year-old Wyoming rape case

CHEYENNE — After more than two decades in prison on a rape conviction, Andrew Johnson learned Tuesday morning he would receive a new trial based on DNA evidence. He had planned to be out on bond by Tuesday afternoon and move into his sister's home in Cheyenne.

Johnson's family scrambled to meet bond requirements.

This time, though, a force other than the Wyoming judicial system was responsible for Johnson's continued incarceration. Severe wintry weather conditions shut down all Cheyenne government buildings by early afternoon, Aaron Lyttle, Johnson's attorney, said.

Johnson had to wait at least one more day to be released after being the first person in Wyoming to be granted a retrial based on DNA testing.

Tuesday's hearing

Johnson, albeit looking somewhat frail and tired in his orange-striped jumpsuit, glowed as he was ushered into the Laramie County courtroom Tuesday morning. He nodded and smiled at the familiar faces nestled among media and attorneys in the gallery.

Johnson was confident the outcome of the half-hour hearing would end in his favor, his attorney later told reporters. He proved to be right.

In the early morning hours of June 10, 1989, Cheyenne police responded to the residence of a woman who claimed she had just been raped. Although intoxicated, she was unequivocal about the identity of her assailant.

She and Johnson had been barhopping together earlier that evening until she left him at a bar and went home. The woman told authorities Johnson returned to her apartment a short while later and attacked her.

Johnson denied seeing the victim after she left the bar. Although his eyeglasses and wallet were located at the woman's apartment, both parties agreed he had been there earlier.

DNA found in the victim’s rape kit was used at trial, but testing was still in its infancy and blood tests came back inconclusive, a Rocky Mountain Innocence Center representative told the Star-Tribune in an earlier interview.

The initial DNA tests could not exclude Johnson at the time, a fact that the state used in its initial prosecution, according to Tuesday’s testimony.

Johnson was convicted of first-degree sexual assault and aggravated burglary partly because of eyewitness testimony from the victim. Johnson was designated a habitual offender and was sentenced to life in prison because of a previous record.

The Innocence Center has been helping Johnson with his case for the past several years and was recently granted a state-sanctioned test to reveal whether the DNA found in the victim’s rape kit matched that of Johnson.

Recent DNA results not only excluded Johnson from being a match, but confirmed that the found DNA belonged to the victim’s former fiancé, according to the defense team.

At the time, the victim told police she had not had sex with anyone other than her assailant in the past two weeks.

Innocence Center attorney Elizabeth Fasse relied heavily on the victim’s own statements when arguing for Johnson’s retrial Tuesday. The victim had additionally maintained that it was a single-perpetrator rape.

Laramie County District Judge Thomas Campbell expressed concern about opposing evidence from the victim and questioned whether an expert had previously testified as to how long sperm could remain in the victim.

Fasse said of the 300 DNA-based exonerations throughout the country, several of them involved witness misidentification.

“DNA does not lie,” Fasse said. “DNA wins out every time.”

Fasse argued that the DNA evidence was conclusive enough to help the case meet the burden for a new trial.

Laramie County District Attorney Scott Homar didn't explicitly state his opposition to Johnson receiving a new trial, but highlighted issues he thought the judge should take into consideration.

In a phone interview with the Star-Tribune after the hearing, Homar said he left it up to the judge whether he thought the case met the stringent standards required for a retrial.

“It’s certainly his call,” Homar said. “I was questionable about it, or I would have simply acquiesced, which I did not.”

Despite some concerns, Campbell ruled that there was sufficient evidence to issue an order for a new trial. He ordered a $10,000 cash or commercial bond for Johnson.

Return home

Johnson’s family huddled just outside the courtroom immediately after Tuesday's hearing. Many were disappointed with the outcome.

“I’m confused,” Johnson’s sister Sharon Kramer said. “I did think he’d be exonerated today.”

Kramer, 55, had been busy preparing her house for her brother’s return. Johnson will live with her once he is freed on bond.

Johnson’s room is equipped with matching black lacquered bed frame, nightstand and drawers with gold trim. A boom box and a few odds and ends rest on top of the drawers. The mattress will arrive shortly.

Kramer said Johnson’s imprisonment has cast a shadow over the family.

“It’s like, you know someone’s innocent and there’s nothing you can do to help that person,” she said.

Kramer, who for many years only corresponded with Johnson through letters, beamed when planning for her brother’s return.

“I think the first night he’s here, my daughter is going to cook a great big meal,” she said. “She was in Afghanistan and she was a cook there.”

Weather conditions prevented Johnson’s stepdaughter, Angela Johnson, who lives in Aurora, Colo., from attending the hearing. She was notified of the results by her mother.

Angela expressed mixed emotions in a phone interview shortly after the hearing.

“I’m excited. I really want to talk to him, and I’m anxious to see him,” she said. “But I was definitely expecting them to drop the charges. It’s like, it’s over, but it’s not over.”

Angela said her confidence in her stepfather’s innocence has never wavered. He and Angela’s mother married shortly after he was convicted, and he legally adopted her, she said.

“It takes a special kind of person to love someone else’s child as their own,” Angela said in an earlier interview. “The way that he was with me, I couldn’t fathom him doing that to someone. I knew in my heart that that wasn’t in his character, and I know my mom wouldn’t have me be around someone she thought was unsafe.”

Impending trial

Johnson’s attorneys took a decidedly optimistic stance after the result of Tuesday's hearing.

Fasse said she and co-counsel Lyttle, from the Cheyenne firm Long Reimer Winegar Beppler LLP, were “overjoyed the judge made the decision that he did.”

Johnson, she said, was “very happy by the result.”

Homar said the judge’s ruling was not totally unexpected.

When asked about the victim’s claim that she had not had intercourse in two weeks, Homar said, “There’s obviously some timing issues we’re going to have to nail down.”

Homar said the victim is aware of the recent proceedings and is “concerned.”

“Obviously, it’s not something she wanted back in her life,” he said. However, Homar said she still seemed willing to testify.

Homar said the former fiancé whose DNA matched that found in the victim had not yet been notified of the results, but was very cooperative with the testing.

“I had no reason to think the DNA might not be there,” Homar said. “It was more of an exclusionary thing.”

The victim and the man are now divorced, Homar said.

The Laramie County District Attorney’s Office is currently treating the case as an ongoing criminal investigation. Taking the new evidence into consideration, Homar said they could end up getting a plea agreement, going to a new trial or dismissing the case altogether.

Fasse said she remains fairly confident in her client’s ultimate exoneration.

“They’re going to have to come up with a new theory,” she said of the district attorney’s office. “There are over 300 DNA exonerations in this country. … DNA evidence trumps witness testimony time and time again.”

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