Michael Johnson case

The following article gives context to my JOTR column. “Michael Johnson: He had his chance.” Re-published with permission of the Benton Harbor Herald-Palladium

Published 5/24/09 in Benton Harbor Herald-Palladium

By SCOTT AIKEN
H-P Staff Writer

ST. JOSEPH — Michael Jeffrey Johnson claims that a judge’s misunderstanding of how long the Lincoln Township man would be in prison and a secret deal are grounds to free him from a life sentence for murder.

His request has ignited controversy about a family’s forgiveness and a murderer’s possible rehabilitation in prison. It also has brought the 1980 murder of Sue Ellen Machemer back to public consciousness.

One voice publicized for the first time in this story is that of the woman he raped several months before he killed Machemer. She has written to the Berrien County prosecutor asking that he do everything he can to keep Johnson in prison.

The 46-year-old Johnson and his lawyer made their points for his freedom during a May 1 evidentiary hearing in Berrien County Trial Court on a motion to cancel the sentence and release him with credit for serving nearly 29 years.

But a review of records shows that the late Circuit Court Judge Julian Hughes clearly expressed his intent for Johnson to remain in prison for second-degree murder in the April 3, 1980, slaying of Machemer, a Lakeshore High School classmate.

Hughes said at sentencing in 1980 that the life term did not “slam the door” on release, but it would require commutation by the governor with input from the judge or his successor.

During a 1983 hearing, a year after Johnson’s conviction had been upheld by the Michigan Court of Appeals, Hughes rejected a motion to declare what his intentions were at sentencing, according to Herald-Palladium archives.

Hughes, who died in 2003, said the declaration was unnecessary because his intention was already clear – Johnson was to remain in prison unless his sentence was commuted by the governor or parole was granted after a favorable recommendation from the judge or his successor.

Johnson’s lawyer had sought the 1983 hearing to clarify the sentence in light of the state’s mandatory minimum law, which then said parole was not possible for people serving life sentences.

In 1985, the Michigan Supreme Court upheld Johnson’s conviction and used the case to rule that a state ban on “good time” sentence reductions for inmates convicted of certain violent crimes doesn’t apply to those serving fixed terms or life sentences.

The ruling meant Johnson became eligible for parole in 1993. Since then the parole board has shown no interest in releasing him.

Berrien County Prosecutor Arthur Cotter said his office was not aware of the 1983 hearing but that it appears to be important to the motion now before the court and will be investigated. A check of court records shows there is no transcript of proceedings from that court session.

Despite a request by Machemer’s parents that Johnson be paroled, many people want him to stay in prison, and the case has generated a large amount of interest in the community.

Judge John Donahue is not expected to rule for several weeks following the May 1 evidentiary hearing on Johnson’s motion for release.

The prosecutor’s office contends the court has no legal basis to resentence Johnson because the original sentence has not been ruled invalid.

“He wants to make an end run around the parole board’s decision to not parole him,” Assistant Prosecutor Aaron Mead said in pleadings.

Deal denied

Bruce Conybeare of St. Joseph, now retired, the lawyer who defended Johnson in the murder case, said there was no closed-door meeting with the judge to discuss sentencing, a claim his former client made in the recent testimony.

Conybeare said it would have been highly improper for him to confer with Hughes about the case without the prosecutor present. Johnson, who was 17 at the time and under a lot of stress, may not recall events correctly, he said.

“Whatever he remembers, there were no deals made,” Conybeare said.

Testifying in the May 1 evidentiary hearing, Johnson claimed that Conybeare told him that he met privately with the judge, who agreed Johnson would serve about 15 years if he pleaded guilty to second-degree murder.

A life sentence would be better than a term of years, Johnson said he was told, because the judge would construct a sentence that would free him in as little as 10 years. Johnson said he was told not to admit that anything was promised to him.

According to a transcript of Johnson’s guilty plea on Aug. 12, 1980, the prosecutor’s office agreed to drop a charge of first-degree premeditated murder in exchange for the plea to second-degree murder.

The sentence for first-degree murder is mandatory life without parole. For second-degree murder the sentence is any term of years up to life. A person could be paroled at the time after serving 10 years, which was increased to 15 years in 1992.

In response to questions from Hughes, Johnson said he understood he would give up the right to trial and other rights by pleading guilty. Other than the plea agreement stated, he said, nobody had promised him anything.

Girl drowned in ditch

Johnson admitted he rolled the 16-year-old Machemer from a car and into a water-filled ditch along an abandoned railroad right of way in Lincoln Township because she would not stop screaming as he tried to sexually assault her.

Johnson told the court he watched the girl for several minutes while her head was under water and intended to kill her.

Johnson had stopped to help Machemer when her car ran out of gas. She then agreed to give him a ride home, and he had her turn onto the old railroad bed, telling her it was a shortcut.

The car got stuck, and Johnson tied her hands behind her and attempted a sexual assault but panicked when the girl resisted, according to his testimony.

Machemer drowned in the ditch, according to an autopsy report. Johnson was arrested April 7, 1980, the same day as her funeral, attended by more than 600 people.

At the time of the murder, Johnson, the son of affluent parents, had been on juvenile court probation for two months for the Nov. 4, 1979, knife point rape of a woman in Benton Township. He was 16 at the time, and the rape charge in juvenile court was reduced to assault with a dangerous weapon.

Because the juvenile court proceedings and records were not open to the public at the time, the news media did not connect Johnson to the rape, which was reported by police, until after he killed Machemer.

Joel Thurtell, then editor of the Berrien Springs Journal-Era, quoted unnamed court workers who said Probate Court Judge Ronald Lange released Johnson from the juvenile center to his parents after a one-month stay and later sentenced him to probation, though professionals recommended incarceration.

Probate court officials asked the prosecutor’s office to investigate the possibility that publishing the story violated laws on the release of information about juveniles. No charges were filed against Thurtell and the matter was dropped.

Such cases eventually led to changes in the law to open public criminal files involving juveniles after June 1, 1988, with certain exceptions.

How long is life?

In pleadings filed in trial court to support Johnson’s pending motion, his lawyer, Carl Marlinga of Sterling Heights, contends that a life sentence imposed for second-degree murder in 1980 had a different meaning than today in terms of time to be served.

In 1992, the state changed the parole board members from civil service employees to political appointees, and sentences that meant one thing prior to the change came to mean something else, the defense contends.

Life terms after the change were “shockingly out of proportion” to the sentences from 1942 through 1984, when lifers whose offenses made them eligible for parole were released at the rate of 5-15 percent a year after serving an average of 15-18 years, the defense pleadings state.

From 1995 through 2004, the percentage dropped to 0.15 percent a year.

Marlinga also referred to a 2007 U.S. District Court decision in Detroit resulting from a lawsuit by inmates that says Michigan violated the ex post facto clause of the Constitution when it changed parole rules in 1992. The Constitution prohibits the government from increasing sentences retroactively.

The ruling applies to the parole board, and Berrien County authorities agree that the board, not the trial court, ought to be dealing with Johnson’s case.

Marlinga did not return phone calls seeking comment for this story.

Russ Marlan, spokesman for the Michigan Department of Corrections, said the state’s argument in the federal case is that trial judges are not required to impose a life sentence when that is an option for a offense for which parole is possible.

“We’ve looked at life max people, and 85 percent of the time the judge sentences to a term of years,” he said.

If a judge means for a prisoner to serve 10 years, Marlan said, he or she can fashion a sentence accordingly.

“Our position is that life is the maximum,” he said, and judges do not have to impose that sentence.

The parole board interviews 400 to 500 lifers a year but paroles only about 10 annually. About 4,500 prisoners are serving life sentences in the state, and 40 percent can become eligible for parole.

A majority of the parole board, which recently increased from 10 members to 15, must vote to parole a person serving life. For sentences in terms of years, a vote of the majority of a three-member panel is required.

Marlan said several votes and a public hearing are required in considering parole for a life sentence offender.

In light of the federal ruling and order, the parole board is interviewing groups of inmates serving parolable life terms for non-drug offenses and the results are being sent to the court.

“Every decision the board reviews is with one thing in mind,” Marlan said. “They shall not release anybody they think will be a menace to society or threat to the public.”

Prison life

Johnson’s lawyer and his family say he quickly adjusted to prison life, has a long list of accomplishments to his credit, no misconduct tickets for more than 20 years and would not be a threat if released.

His sisters, Jackie Huie and Dawn Williams, said he earned a GED, obtained an associate degree at Montcalm Community College, earned a paralegal degree and learned a vocational trade. He has become an accomplished painter, served as editor of prison newspapers and completed a group psychotherapy program.

In addition to the support of his own family, the parents of Sue Ellen Machemer, Mel and Ellen Machemer, also forgave Johnson and supported his release.

Johnson’s case has been reviewed by the parole board five times but the board has not granted him an interview, a required step toward release from prison.

His family expresses exasperation with the board’s unwillingness to interview Johnson.

In describing the 1980 plea agreement in court pleadings, Marlinga said Johnson at the time was an “emotionally immature, unsophisticated young man with a sex drive typical of 17-year-olds.”

A 2006 report by Stephen Harris, a licensed psychologist, said Johnson shows “no evidence of psychopathy,” no indications of anti-social personality disorder and that his prognosis is “extremely good.”

An analysis of the level of danger posed by Johnson “continues to place him in a very low category,” the report said.

Mental health professionals, however, have been wrong about Johnson in the past.

After he was charged with rape in 1979, several months before Johnson murdered Machemer, psychologists reported to the juvenile court that the sex crime could likely be attributed to his immaturity and that he was unlikely to commit similar crimes.

A Nov. 26, 1979, letter from lawyer Conybeare to Joseph Sura, a court employee, refers to an assessment by medical doctor Charles Payne. He determined that Johnson knew right from wrong on the night of the rape in Benton Township but because of his immaturity was unable to act with better judgment, according to the letter obtained under the Freedom of Information Act.

W.R. King, a psychologist, concluded that the attack was not a planned sexual transgression and that Johnson believed the victim acquiesced and “enjoyed her part,” the letter said.

King strongly recommended that Johnson not be considered for waiver into adult court or committed to the state and assigned to a juvenile facility because that would be more likely to hurt than help his social conduct.

State police reports of the Benton Township attack tell a very different story.

The 25-year-old victim told police she was walking near a business off Michigan 139 on her way home in the early morning hours when someone approached and put a knife against her ribs.

The man, later found to be Johnson, forced her into a car and drove down a dirt road where he bound her hands behind her, stripped off
her clothing and raped her at knife point over a two-hour period.

During the assault, Johnson forced the woman to say degrading things about herself, she told police, and would alternate between being highly tense and threatening or relaxed.

Eventually he wrapped the woman’s dress around her head, dragged her out of the car and threatened to kill her if she moved before he was gone, according to reports.

Johnson threw more of her clothes out of the car, and after she got dressed she found a phone booth and called police.

While she was waiting for the police, Johnson returned. The woman told Johnson she had called the police, and as he was driving away troopers pulled up. Johnson’s car was stopped nearby and he was arrested.

Today, the woman, who lives in another state, said she believes the timely arrival of the police saved her life.

“I know in my heart of hearts that he had wavered on the decision to kill me, dumped me out of the car, then reconsidered and came back to kill me,” she said in a letter to Cotter, the prosecutor.

The woman said she strongly opposes Johnson’s petition to release him on the claim that the sentence for Machemer’s murder was “invalid.”

“He does not deny that he killed Sue Ellen Machemer. Let’s stay focused on reality,” she said in the letter.

“Mr. Cotter, please do whatever it takes to keep him where he is,” the woman wrote.

The murder and prior rape “clearly shows an escalation in the violent actions he was willing to carry out, possibly bolstered by the relative slap on the wrist he had received as a result of the attack on me,” the woman wrote.

The forgiveness extended by the murder victim’s parents are “admirable,” she said, but the judge should decide what to do for society.

Cotter, who apologized to the rape victim for the way the case was handled in 1979, said things would be done differently today.

“It was an absolute travesty of justice,” he said.