Memo Could Have Helped Killer’s Case, Expert Says

Prosecutors were ethically--and perhaps legally--obligated to reveal that their own psychological expert called Unabomber Theodore Kaczynski “pretty normal” in comparison to convicted cop killer Michael Raymond Johnson--an assessment that could have helped the Vietnam veteran escape the death penalty, legal authorities said Wednesday.

Johnson, 51, was found guilty last year for the 1996 execution-style shooting of Ventura County Sheriff’s Deputy Peter Aguirre, 26.

Defense attorneys argued that Johnson, 51, was insane when he ran naked from the shower of his estranged wife’s Meiners Oaks home and shot the officer. Prosecutors said he was not and deserved the death penalty. Jurors sided with prosecutors, and in January 1998 recommended that Johnson be sentenced to die.

But in a confidential interoffice memo written after the conviction but before sentencing, Deputy Dist. Atty. Maeve Fox summarizes an assessment by a prosecution medical expert who declares Johnson schizophrenic. A copy of the memo, which attorneys revealed but did not release last month, has been obtained by The Times.

“The bottom line is that [Dr. Daniel] Martell feels that we are going to lose the fight regarding whether Johnson has a mental disease,” Fox wrote in the Feb. 4, 1998, memo to her colleague on the case, Matt Hardy.

It was Martell’s belief that Johnson had a long-standing history of mental illness based on records he had reviewed, Fox wrote. Martell--a widely recognized medical expert who analyzed such defendants as Kaczynski and Jeffrey Dahmer--never examined Johnson personally.

“On a more somber note,” Fox wrote in the memo, “one of Martell’s comments to us was, ‘I wish I was working for the defense on this case.’ He indicated that this indeed is a ‘rare’ case in which the defendant does indeed suffer from exactly what the defense says he does.”

At the end of her nine-page memo, Fox noted that Martell had worked on the Kaczynski case.

“Martell says that compared to our guy, Kaczynski is pretty normal. Yikes!!!” she wrote.

Martell, whose practice is based in Newport Beach, was on the witness list in the Johnson case, but he was mainly used as a consultant to plot prosecution strategy.

Prosecutors never called him to the stand. They also never told defense attorneys, as they may have been legally obligated to do, about Martell’s assessment. Instead, prosecutors turned to another psychologist who testified that Johnson was sane.

Officials in the Ventura County public defender’s office called the prosecutor’s failure to disclosure Martell’s findings “reprehensible.”

“There was a certain moral and ethical responsibility to turn this over,” Public Defender Kenneth Clayman said Wednesday. “To have a renowned expert who says the defense is correct, to say it is a ‘classic example of schizophrenia,’ to say he wished he was testifying for the defense. . . . How in the world could this information not be revealed?”

“My God, they stood up and asked for death,” said Todd Howeth, the deputy public defender who represented Johnson in the trial. “To bury that report, how could that ever put forth the truth of what really happened?”

Martell said Johnson was making “a classic cry for help” in 1994 when he met with county mental health workers. “He told the doctors at [Ventura County mental health department] that he was afraid he was going to hurt someone and they sent him out on the street,” according to Fox’s memo.

Martell suggested that Johnson, who had a history of substance abuse, may have been using drugs “as an attempt to self-medicate, which is very common among schizophrenics,” the memo said.

Prosecutors only revealed the memo in March--14 months after Johnson’s conviction--after Howeth said he became suspicious that notes on Martell’s opinions might exist. He said he specifically demanded to see any notes on Martell’s assessments last November.

Howeth has been collecting information to help prepare for an appeal of Johnson’s case. All death penalty convictions are automatically appealed to the state Supreme Court.

The district attorney’s office refused comment Wednesday, citing pending litigation. But in a written statement to the Supreme Court in March, Dist. Atty. Michael D. Bradbury argued that some of the information was not evidence, but rather a summary of prosecution strategy. Martell’s statements, therefore, did not have to be shared with the defense, Bradbury argued. He went on to say the information would not necessarily “cast doubt upon the correctness of the conviction.”

“To the contrary, it is our position that the death penalty was properly imposed in this case, and that the judgment should be affirmed on appeal,” he added.

But at least one legal authority believes that the prosecution stumbled by not revealing Martell’s findings, agreeing with the public defender’s office that the district attorney had a duty--ethically, if not also legally--to bring them out in open court.

“A prosecutor’s obligation is different from that of any other lawyer,” said Robert Pugsley, professor of criminal law and legal ethics at Southwestern University School of Law, who cited the American Bar Assn.’s rules governing prosecutor conduct.

“According to the ABA, a prosecutor’s duty is to [seek] justice, not merely seek convictions,” Pugsley said. “That’s what should have happened here. They should have gone larger, looked at the big picture. . . . They are supposed to be public servants.”

“The point is,” said Public Defender Clayman, “this goes directly to the pursuit of truth that the people are duty-bound to pursue.”

Howeth said he is filing additional requests with the district attorney’s office hoping to obtain other documents relating to Martell’s assessment. Howeth said believes the information could ultimately not only overturn Johnson’s death sentence, but if the case is retried it could change the outcome.

“Jurors should never have been deprived of this information,” Howeth said. “They were making a life or death decision, and they should have had every shred of information possible in order to make that decision.”