The California Court of Appeals will review a motion by defense lawyers of Cleamon "Big Evil" Johnson that argues their client is a victim of vindictive prosecution, a claim that if ruled in his favor would drop three of the five murder charges against the 89 Family Swan Bloods gang member.
Los Angeles Superior Court Judge Sam Ohta, who is presiding over the case, had ruled against the motion in September, but the Court of Appeals agreed to review it, a decision that thrilled Johnson and his attorneys Robert Sanger and Victor Salerno
"This was very, very good news," said Salerno. He downplayed any significance that the prosecution had asked for an extra week last Thursday to present their written case to the appeals court which is now due Dec. 18. The defense will have an opportunity to respond to the prosecution's argument and the two sides could meet at the Ronald Reagan State Building to present their cases in February.
According to a piece in the Yale Law Review, legal "vindictiveness" does not refer to a prosecutor’s ill feeling toward, or even his desire to harm, a defendant. Rather, wrote Doug Lieb, a law clerk for the 9th Circuit U.S. Court of Appeals, "As defined by the Supreme Court,vindictiveness means that a prosecutor has retaliated against a defendant for the exercise of a legal right, denying his/her due process."
Johnson spent more than 13 years on death row in San Quentin for the unrelated 1991 double murder of Donald Ray Loggins and Payton Beroit that he and co-defendant Michael "Fat Rat" Allen were found guilty of in 1997. That conviction was overturned in 2011 by the California Supreme Court which ruled that a juror, leaning toward acquittal, was wrongly removed by judge Charles E. Horan.
Johnson and Allen were sent back to the Los Angeles Men's Central Jail for a retrial As they prepared to retry that 1991 case, the district attorney's office, aided by LAPD detectives, set out to find additional cases to pin on Johnson.. They were given the luxury of time by the defendant's decision to waive their rights to a speedy trial and the many subsequent delays in the case LAPD detectives scoured the California penal system looking for inmates willing to testify against the man who is among the most famous gang members in the city's history.
In addition to the two men - Payton Beroit and Donald Ray Loggins - shot to death at a car wash in 1991, the district attorney's office now alleges Georgia Denise "Nece" Jones, Albert Sutton and Tyrone Mosley were all killed or ordered killed by Johnson. While Johnson was in Ironwood State Prison, Jones was shot and killed June 12, 1994 at 87th Place and Wadsworth Avenue in the 89 Family Swan neighborhood. Sutton was also killed in that neighborhood. Mosley was shot and killed in September 15, 1991 on 97th Street and McKinley Avenue, a 97 East Coast Crips neighborhood.
Johnson, acting as his own lawyer, was previously tried on the Mosley killing in 1998.. The result was a hung jury, well in his favor.
If the court grants the vindictive prosecution appeal, Johnson and Allen would still face a trial on the original double murder case. However, that case was not a ":slam 'dunk" and relied much on the testimony of one Freddie "FM" Jelks, himself a gang member facing prison who was killed many years ago in an unrelated incident on the west side..
Earlier in court, Johnson' lawyers sought to have Jelks' recorded testimony kept from being played back in court. Johnson's lead attorney Sanger, even threatened - or joked - he would go "Clint Eastwood" on an empty witness stand, a reference to the actor grilling an imaginary President Obama sitting on a chair at the 2012 Republican Convention
Last year, Johnson told a visitor the extra charges were "bullshit." .
"It's just more bullshit to keep me locked up, keep a trial going," said Johnson who is back in the regular high power section of the jail, after nearly a year in a special, segregated cell, (not for his own safety). "They think when I get out, I'm going to go on some rampage. And the police tell people that. Man, I just want to be free. I'm someone who could help stop this violence."
Johnson claims to be a changed man. He told a visitor recently " I am not the same person I was when I went in here. I'm not Big Evil. I'm Cleamon Johnson."
"Have you ever heard of Dr. Bruce Banner?" the visitor asked him, referring to the Hulk's alter ego.
He broke into a gigantic laugh, "Don't make me angry. You wouldn't like me when I'm angry."