Donte Johnson’s Defense Team Introduces Arguments Against Death Penalty
More than a year and a half after his arrest and just a month before his murder trial, Donte Johnson’s defense counsel announced they will “fight back” against the death penalty.
Johnson is charged with raping and killing 21-year-old Sabina Rose O’Donnell in a lot behind her home just north of Northern Liberties on June 2, 2010. O’Donnell, who was attacked while bicycling home from a friend’s house, died of strangulation.
After his arrest 14 days later, Johnson, 20, confessed to the crime. The state’s additional evidence against Johnson includes matching DNA and surveillance videotape that recorded him following O’Donnell minutes before her death.
But whether or not this is a capital case has been an issue since the beginning.
After his arrest, Johnson negotiated with the commonwealth for a plea deal that spared his life; the state offered life plus 40 to 80 years. But the day he was scheduled to sign, Johnson surprised the court by firing his court-appointed attorney, hiring a private lawyer and rejecting the plea. Then, in a hearing last year, Judge Renee Cardwell-Hughes had to advise Johnson that he technically had no counsel, since his new attorney had not been paid. Now, court-appointed attorneys Lee Mandell and Gary Server are representing Johnson. Server introduced three last-minute strategies designed to save Johnson’s life.
Two days ago, Server filed paperwork to show that he intends to constitute a defense based on a psychological evaluation of Johnson. It’s already been determined that Johnson’s IQ is not low enough to disqualify him from the death penalty. But Server is arguing that “organic brain dysfunction affecting the right frontal region” of Johnson’s brain will bring the “deliberateness” of the murder—a factor in death penalty—into question.
“We will be asking the court to permit expert testimony … about what my client’s state of mind was at the time of the murder,” said Server. “The jury must find that he acted willfully and deliberately before they can reach a conclusion that he had a specific intent to kill.”
The judge, Glenn Bronson, then asked for more information on that specific issue. “It’s a novel issue to me,” he said.
Server argued that experts have been introduced to determine a defendant’s state of mind at the time a crime was committed in cases with “battered women” and with defendants claiming self-defense.
Next, Server cited Commonwealth vs. Sanchez, a recent Pennsylvania Supreme Court ruling that declared that a jury, rather than court experts, rules on the death penalty. This opens the possibility of avoiding it because all 12 jurors would need to agree on this issue separately.
Server’s third strategy: He intends to formally accuse the commonwealth of discriminating against his client simply by choosing to seek the death penalty.
“I intend to file some sort of motion—I guess on equal protection grounds … to inquire as to the reasons why the commonwealth has decided to pursue death on Donte Johnson when they didn’t, for example, on a case you may well know, Corey Conaway.”
Corey Conaway is a 20-year-old man who was convicted last month of breaking into a home and beating a 68-year-old woman to death with a frying pan in Germantown in 2010. The parallel is unclear since the crimes are not similar.
When the judge asked Server to explain the grounds of the discrimination claim, Server replied that he didn’t know.
“You can’t just engage in a pattern of withdrawing death penalty on other similarly situation defendants then say I want to pursue it against this defendant because of the nature of the crime,” said Server. “I mean, all crimes are equally horrible.”
“No, they’re not!” retorted Assistant District Attorney Richard Sax.
Sax wearily said he was prepared to deal with whatever motions the defense ultimately files, and that he intends to go to trial on April 30 no matter what.
“I don’t know how many other cases you can compare this to,” said Sax. “Every crime is not equal.”
The next hearing is scheduled for April 15.