AFFIDAVIT OF KELLY A. GLEASON
Comes Affiant, Kelly A. Gleason, upon being duly cautioned and sworn, and
states as follows:
1: | am an attorney licensed to practice in Kentucky, Tennessee, and the
U.S.
Supreme Court. | am currently in private practice after previously working as a public
defender in Kentucky and Tennessee. While formerly employed by the Department of
Public Advocacy, | represented Donald Herb Johnson at the trial level for several years.
| first began work on Don's case in 1990 as a law clerk in the Capital Trial Unit.
2. Under the supervision of Neal Walker’ and Bill Spicer, the attorneys for
Don
Johnson, |, along with Cris Brown and Randy Edwards, did the initial mitigation work in
the case — conducting interviews with Don, his sisters Misty and Lavada, his brother
Dean, his father Charlie, and his mother Rose. | also viewed the photographs and
videotape of Helen Madden as she was found following her death, met members of her
family, and participated in other preparations for the defense of this case. In October
1991 | was sworn in as an attorney and began my practice in the Capital Trial Unit.
Ss. In fourteen years working on capital cases — including over twelve years
as
a lawyer — Don’s case is one of the most compelling mitigation cases | have ever seen.”
1Neal Walker was the supervisor of the Capital Trial Unit until he left in
December 1990. Mike Williams, an employee of the unit, ultimately assumed the role of
supervisor.
2My work in the Capital Trial Unit included consulting on dozens of capital cases,
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Although evidence of guilt was circumstantial, as we investigated the case and filed
appropriate guilt-phase motions, it became apparent that the defense against capital
murder charges would be based on a guilt-phase mental state defense and a penalty
phase mitigation presentation. We also continually sought a settlement of the case for
less than death.
Bill Spicer, who at that time was director of the DPA Stanton field office
and
manager of the region which included Perry County, served as counsel for Don
Johnson for many years and George Sornberger, a member of the Capital Trial Unit,
also represented Don for a time. Following George’s withdrawal, Mike Williams and |
were counsel of record for several years. Mike entered the case when Judge Douglas
Combs, Perry Circuit Court, was presiding judge. During this time, it was necessary to
spend a lot of time and effort attempting to secure funding for an adequate mitigation
investigation and expert assistance. The Perry County Attorney continually resisted
these efforts — at the time the county was responsible for all such expenditures.
4. Although the Perry County Commonwealth Attorney was charged with the
responsibility of prosecuting this case, he requested the Attorney General's intervention
in the case. The Attorney General's office also objected to our requests to receive
appropriate funding in order to present a defense to capital charges.
The case was set for jury trial upon a venue change to Letcher County,
as well as direct representation. In Tennessee, my job as Deputy Counsel in the
Capital Division was to train and consult with attorneys representing capital clients at
the trial and appellate level. | also have served as faculty at numerous capital defense
training seminars and trial colleges. Thus, the scope of my familiarity with capital cases
is broad.
and
ready to commence when the prosecutors requested a continuance of the trial - even
though the prospective jurors were present in the courtroom and counsel had
announced ready. This was an unusual request since the AG's office suddenly
reversed® their previous position that Don Johnson was not entitled to funding to
investigate and present mitigating evidence. Over our objections, Judge Combs
granted the AG’s request for a continuance.
Judge Douglas Combs recused himself from this case in the summer
of1993
after assisting the Commonwealth in interviewing a jailhouse snitch who claimed
knowledge of the case. Special Judge John David Caudill of the Floyd Circuit Court
was assigned as the judge in this case. During off-record conversations in chambers
with the prosecutors and defense counsel, Judge Caudill mentioned the costs to
taxpayers of Perry County for investigating the case and the fact that at that point, no
one in Kentucky had been executed in decades. Judge Caudill either inquired about or
suggested the possibility of a settlement of the case.
Following Special Judge Caudill’s statements to the parties, and meetings
with Judge Caudill at which | was not present, Mike Williams talked to me about having
Don enter a plea of guilty. Mike felt that even with no formal plea agreement from the
prosecution, Judge Caudill would not give Don a death sentence. | disagreed with Mike
and stated my belief that doing so would place Don at unnecessary, serious risk without
3The AG based the continuance upon the newly released opinion Sommers v.
Commonwealth, 843 SW.2d 879 (Ky. 1992) which did NOT address the right of a
capital client to present to the jury evidence of mitigation.
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any assurances that Judge Caudill would not sentence Don to death. We had more
than one conversation about this and | persisted in refusing to recommend a “blind”
guilty plea. It was my belief that we could proceed to a jury trial with a viable guilt
phase defense and a compelling mitigation case.
My position on recommending a guilty plea changed following a meeting
with
Don, Mike Williams, and Judge Caudill at the Floyd County annex courthouse where we
were scheduled for a hearing with Perry County Attorney Mark Barger about funds for
investigative/expert assistance. We were not on the record or in the courtroom at the
time of this conversation and Barger had not yet arrived. With only defense team
members and a sheriff's deputy present, Judge Caudill stood in front of Don, looked him
in the eye, and said, "Will you take life without for twenty-five?" Don said, "Yes."
After that exchange between Judge Caudill and Don, | agreed with Mike
that
we should recommend that Don enter a “blind guilty plea,” i.e., a guilty plea with no
formal, written plea agreement. It was my understanding that Judge Caudill was
offering a bargain in which he would sentence Don to LWOP 25 if Don entered a guilty
plea. | did not believe it was in Don’s best interest to enter a guilty plea or waive a jury
sentencing under any circumstances other than what | understood to be an offer to Don
of a less-than-death sentence.
Mike and | met with Don Johnson at the Perry County Jail to advise him
that
we thought he should enter a plea in light of Judge Caudill’s statement. We told him
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that we believed that Judge Caudill would impose a LWOP 25 sentence if Don pled
guilty. During this meeting Don indicated that he did not want to enter the plea. Mike
became angry and verbally abusive to Don when Don expressed his reluctance to
plead guilty. Mike yelled at Don and threatened to withdraw from the case if Don did
not plead guilty.
| discussed my concerns about the abusive nature of the meeting with
Cris
Brown, our mitigation specialist, following that meeting. At the time | was unaware that
the threat to withdraw was an ethical violation — my primary concern immediately
following the meeting was the coercive and abusive nature of Mike’s treatment of Don,
given Don’s history of abuse and abandonment. Later on, when | became aware of the
ethical ramifications of the threat, | confronted Mike about what | had witnessed, and he
denied threatening to withdraw.
Don ultimately did enter a plea of guilty. The prosecutors appealed Judge
Caudill’s ruling denying the prosecutors’ motion for a jury sentencing. After the
Supreme Court reversed Judge Caudill and ruled that the Commonwealth had a right to
jury sentencing, Mike and | agreed that we had to move to withdraw the guilty plea. We
had recommended the plea to Don based on Judge Caudill’s statement and we
understood that statement to be contingent upon judge sentencing.
Mike Williams and | disagreed about the grounds to withdraw the guilty
plea.
| asked him to include in the motion to withdraw the guilty plea the fact that Judge
Caudill had offered Don life without for twenty-five in the conversation at the courthouse
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annex and that our recommendation to plead guilty was based on that conversation.
Mike overruled me in his role as lead counsel and my supervisor.*
Mike Williams and | raised our own ineffectiveness in the motion to
withdraw
Don’s guilty plea. A special counsel was brought into the case to represent Don’s
interests. By this time | had left the Capital Trial Unit and was working in Stanton, so
Mike was no longer my supervisor. | called the special counsel (my memory is that he
was based in Ashland, Ky) because of my concerns that he would rely solely on Mike in
deciding Don's best interests. He did not return my call. Had he called, | would have
told him about the threatening conversation with Don at the Perry County Jail and
Judge Caudill’s indication to Don that he would sentence him to LWOP 25.
| learned at some point that DPA assigned Vince Yustas to represent Don
Johnson. | had strongly recommended to DPA and specifically to George Sornberger,
the Trial Services Director at the time, that someone outside the Department be
assigned to the case due to the conflict of interests arising from the plea. Yustas never
contacted me about the case.
Further Affiant sayeth naught,
Kelly A. Gleason
STATE OF KENTUCKY )
)
Alt was our policy — the policy of the Capital Trial Unit when Mike Williams was
supervisor — that lead counsel made strategic decisions in situations in which lead and
co-counsel were unable to agree.
COUNTY OF WARREN _ )
Sworn to and subscribed before me by Kelly A. Gleason, this day of
2004.
Notary Public, State of Kentucky at
Large
My commission expires:
