STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
v
JUSTLY JOHNSON,
Defendant.
Case No.: 99-005393-01
Hon. James Callahan
DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT
Bridget McCormack (P58537)
David A. Moran (P45353)
Imran Syed (P75415)
Attorneys for Defendant
Christiana Schmitz
Daniel Signs
Student Attorneys for Defendant
MICHIGAN INNOCENCE CLINIC
Universi ty of Michigan Law School
625 S. State Street
Ann Arbor, MI 48109
(734) 763-9353
Byron Lichstein (Wisconsin Bar No. 1048483)
Attorney for Defendant
WISCONSIN INNOCENCE PROJECT
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
(608) 265-2741
MOTION FOR RELIEF FROM JUDGMENT
Justly Johnson - by his attorneys Bridget McCormack, David Moran and Imran Syed of
the Michigan IImocence Clinic; Byron Lichstein of the Wisconsin Innocence Project; and his
student attorneys Daniel Signs and Christiana Schmitz of the Michigan Innocence Clinic - asks
that this Court set aside the judgment of conviction and sentence in this case and order a new
trial, pursuant to MCR 6.501, and further states the following.
1. After a bench trial in front of Judge Prentis Edwards in the Wayne County Circuit Court, No.
99-5393, Mr. Johnson was convicted on January 12,2000, offelony murder, assault with
intent to rob while armed, and possession of a firearm during the commission of a felony.
2. On January 26, 2000, Judge Edwards sentenced Mr. Johnson to life in prison without parole.
He is currently incarcerated at the Gus Harrison Correctional Facility.
3. Mr. Johnson appealed by right, and his convictions were affirmed on direct appeal by the
Court of Appeals (No. 228547) on March 26,2002. The Michigan Supreme Court (No.
121568) denied his application for leave to appeal on Dec. 4, 2002.
4. James Albulov represented Mr. Johnson during preliminary matters. Sanford Schulman
represented Mr. Johnson at trial. Gerald S. Surowiec represented Mr. Johnson on appeal. Mr.
Johnson is currently represented by Bridget McCormack, David Moran and Imran Syed of
the Michigan Innocence Clinic at the University of Michigan Law School, and by Byron
Lichstein of the Wisconsin Innocence Project at the University of Wisconsin Law School. He
does not request counsel from this court.
5. Mr. Johnson has filed two prior motions for relief from judgment in pro per. The trial court
denied the first motion on March 16, 2004; the Court of Appeals and the Michigan Supreme
Court denied leave to appeal. The trial court denied the second motion on April 15,2008; the
2
Court of Appeals and the Michigan Supreme Court denied leave to appeal.
6. Mr. Johnson filed a petition for habeas relief in the United States District Court for the
Eastern District of Michigan in pro per on July 14, 2006. That same day he asked the court to
hold the petition in abeyance while he pursued claims of newly discovered evidence in state
court. The federal district court granted his request.
7. Mr. Johnson then filed a third motion for relief from judgment while represented by the
Wisconsin Innocence Project. The trial court denied this motion on February 2, 2010; the
Court of Appeals and the Michigan Supreme Court denied leave to appeal.
8. On September 20,2011, now represented by the Michigan Innocence Clinic (in addition to
the Wisconsin Innocence Project), Mr. Johnson filed an amended habeas petition before the
Hon. Bernard A. Friedman of the Eastern District of Michigan. That same day, Mr. Johnson
asked the district court to hold in abeyance his amended habeas petition while he pursues
claims of newly discovered evidence in state court. On October 12,2011, Judge Friedman
granted Mr. Johnson's motion to stay and hold in abeyance the habeas proceedings.
9. This motion is properly before Judge James Callahan, as the successor judge in Judge
Edwards's court.
10. All of the issues raised in Mr. Johnson's current motion for relieffromjudgment are newly
discovered and were not raised in any previous motion or appeal before any court.
FACTUAL BACKGROUND
11. On May 9, 1999, around I :00 a.m., Lisa Kindred was murdered on Bewick St. in Detroit.
She was shot while waiting for her husband in the family's minivan with her three children.
12. After being hit, Lisa Kindred sped off with her three children still in the minivan, raced to a
gas station approximately two blocks away, got out of the car and collapsed. She was taken
3
to the hospital alive, but died shortly after arrival.
13. The police investigation centered on two people arrested in the vicinity of the crime scene,
Antonio Burnette and Raymond Jackson. Both were arrested and questioned aggressively,
and both later testified that they were afraid they were going to be charged with the murder if
they did not implicate someone else.
14. Burnette and Jackson ultimately implicated Justly Johnson and Kendrick Scott in the
murder. Neither Burnette nor Jackson claimed to have witnessed the murder, however, and
no other evidence implicated either Johnson or Scott.
15. Justly Johnson testified at trial and proclaimed his innocence. He described his movements
that night and testified that he was with Antonio Burnette during the time of the murder.
Newly Discovered Evidence of an Eyewitness
16. In September of2011, CJ Skinner, Lisa Kindred's son, who was sitting in the front
passenger seat of the car when his mother was shot and witnessed her shooting, told
investigative television reporter Scott Lewis what he saw. Skinner said that the man who
shot his mother was a black man in his thirties with a scruffy beard, a prominent nose, and
either very short hair or a shaved head-a description that does not match Mr. Johnson or his
codefendant. See Scott Lewis, Action News tracks down a key witness overlooked by Detroit
Police in a 1999 Mother 's Day Murder, WXYZ.COM Sep. 20, 20 II; available at:
http: //www.wxvz.com/dpp/news/Iocal news/investi gations/new-informati 0 n-uncovered-in-
mother's-day-murder-case.
17. In October 20 II, the Michigan Innocence Clinic spoke with Skinner, and he gave the same
description of the man that he saw shoot his mother. Charmous Skinner, Jr. Affidavit 8
(Exhibit C to Accompanying Memorandum in Support).
4
18. Subsequent to this interview. the Michigan Innocence Clinic visited Skinner in Pennsylvania
and administered a double-blind sequential photo array. This array included a picture of
Johnson and a picture of his co-defendant, Kendrick Scott, from the time of their arrest.
Christiana Schmitz Affidavit 7 (Exhibit A to Accompanying Memorandum in Support).
19. Skinner did not recognize anyone in the lineup as the man who shot his mother. He stated
that the man he saw shoot his mother was not in the photo array. Jd. at 9.
Newly Discovered Evidence from the Victim's Ex-Husband
20. In September of 2011 the Michigan Innocence Clinic contacted Charmous Skinner Sr. . the
ex-husband of Lisa Kindred. Mr. Skinner told the Clinic that approximately one year before
her murder, Lisa told him that because of her new husband, Will Kindred, she was scared for
her safety and the safety of her children. Charrnous Skinner, Sr. Affidavit 5 (Exhibit B to
Accompanying Memorandum in Support). She also told Mr. Skinner that if anything ever
happened to her, the police should investigate Will. ld. at 8.
Claim One: Mr. Johnson Is Entitled to Relief From Judgment and a New Trial Because of
Newly Discovered Evidence of an Eyewitness to the Murder of Lisa Kindred, Which
Estahlishes Ineffective Assistance of Trial and Appellate Counselor, in the Alternative,
Amounts to Newly Discovered Evidence oflnnocence
21. Pursuant to MCR 6.502(G)(2) and 6.508(D)(3), Mr. Johnson is entitled to a new trial based
on the newly discovered evidence of an eyewitness to the murder of Lisa Kindred. This
newly discovered evidence demonstrates that Mr. Johnson's trial and appellate counsel were
ineffective.
22. Because Mr. Johnson obtained the new evidence after filing his earlier motions for relief
from judgment, MCR 6.502(G)(2) permits this successive motion for relief from judgment.
23. Mr. Johnson is entitled to relieffromjudgment and a new trial under MCR 6.508(D)(3)
because the eyewitness testimony provided by CJ Skinner satisfies the good cause and actual
5
prejudice requirements of that rule. In any case, the good cause requirement should be
waived under MCR 6.508(D)(3) given the overwhelming evidence ofMr. Johnson's
innocence.
24. The requirements ofMCR 6.508(D)(3) are met because Mr. Johnson has established actual
prejudice and good cause. "Actual prejudice" resulted because, in light of the weak and
circumstantial evidence supporting Mr. Johnson's conviction, testimony from an eyewitness
stating that Justly Johnson and his codefendant were not the men who shot his mother would
have given Mr. Johnson a reasonably likely chance of acquittal. Mr. Johnson satisfies the
"good cause" requirement because he is alleging ineffective assistance of trial and appellate
counsel. Even if the "good cause" requirement is not met, it should be waived pursuant to
MCR 6.508(D)(3) because Mr. Johnson is actually innocent. There is no evidence
implicating Mr. Johnson at this time given that both of the witnesses who testified against
Mr. Johnson at his trial have recanted.
25. Mr. Johnson's trial counsel was ineffective for not interviewing CJ Skinner and calling him
as a witness. Mr. Johnson's appellate counsel was ineffective for not raising on direct appeal
ineffective assistance of trial counsel for failure to interview CJ.
26. The Sixth and Fourteenth Amendments guarantee a defendant the effective assistance of
both trial counsel and appellate counsel on direct appeal. Strickland v Washington, 466 US
668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); Evitts v Lucey, 469 US 387, 395-97; 105 S Ct
830; 83 LEd 2d 821 (1985). To establish ineffectiveness, a defendant must demonstrate that
counsel's performance fell below an objective standard of reasonableness and that the
representation so prejudiced the defendant as to deprive him of a fair trial. Strickland,466
US at 669.
6
27. Both trial and appellate counsel failed to interview a person known to have been in the same
vehicle as the victim of a homicide when the homicide occurred. Appellate counsel failed to
litigate trial counsel's deficient conduct on appeal. In both cases, counsel ' s conduct fell
below the objectively reasonable threshold established by Strickland.
28. Trial and appellate counsel's conduct prejudiced Mr. Johnson. In light ofa record fraught
with inconsistencies and contradictions, the exculpatory testimony of an eyewitness would
have made a significant difference. At the very least, "there is a reasonable probability that,
but for counsel's unprofessional errors the result of the proceeding would have been
different." Strickland v Washington, supra at 668.
29. In the alternative, if this Court finds counsel's conduct was reasonable, then Mr. Johnson is
entitled to relief based on newly discovered evidence.
30. A new trial is merited on the basis of newly discovered evidence where the defendant shows
that: (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newl y
discovered evidence was not cumulative; (3) including the new evidence upon retrial would
probably cause a different result; and (4) the party could not, using reasonable diligence,
have discovered and produced the evidence at trial. People v Cress, 468 Mich 678, 692; 664
NW2d 174, 182 (2003) (internal citations omitted). See also MCR 6.508(D)(3). The weight
of the new evidence must be taken as a whole when deciding whether it would have affected
the ultimate outcome of the trial. Kyles v Whitley, 514 US 419; 115 S Ct 1555; 131 L Ed 2d
490 (1995).
31. The new evidence of an eyewitness, not merely its materiality, was discovered in September
of 20II. The new evidence is not cumulative because there were no other eyewitnesses at
Mr. Johnson's trial. Including the new evidence upon retrial would probably cause a different
7
result as explained in paragraph 27. If this Court finds Mr. Johnson' s trial counsel 's conduct
was reasonable, then it follows that Mr. Johnson could not, using reasonable diligence, have
discovered and produced the evidence at trial.
Claim Two: Mr. Johnson Is Entitled to Relief from Judgment and a New Trial Based on
New Evidence from the Victim's Ex-Husband Warranting Relief as Newly Discovered
Evidence of Innocence or, in the Alternative, Evidence of Ineffective Assistance of Trial
and Appellate Counsel
32. Pursuant to MCR 6.502(G)(2) and 6.508(D)(3), Mr. Johnson is entitled to a new trial based
on the newly discovered evidence from the victim's ex-husband. This newly discovered
evidence strongly suggests that Lisa Kindred' s ex-husband, Will Kindred, was involved in
her murder.
33. Because Mr. Johnson obtained the new evidence after filing his earlier motions for relief
from judgment, MCR 6.502(G)(2) permits this successive motion for relieffromjudgment.
34. Mr. Johnson is entitled to relieffromjudgment and a new trial under MCR 6.508(D)(3)
because the testimony provided by Charmous Skinner, Sr. satisfies the good cause and actual
prejudice requirements of that rule. In any case, the good cause requirement should be
waived under MCR 6.508(D)(3) given the overwhelming evidence ofMr. Johnson's
Innocence.
35. The requirements of 6.508(D)(3) are met because Mr. Johnson has established actual
prejudice and good cause. "Actual prejudice" resulted because without Mr. Skinner's
testimony to help him at trial, Mr. Johnson had no way to argue that Will Kindred should
have been the prime suspect in Lisa Kindred' s murder. Mr. Johnson satisfies the "good
cause" requirement because Mr. Johnson and his previous counsel had no reason to believe
that Lisa Kindred's ex-husband, who lived almost 600 miles away, had any information
relevant to the case. Even if the "good cause" requirement is not met, it should be waived
8
pursuant to MCR 6.508(D)(3) because Mr. Johnson is actually innocent. There is no evidence
implicating Mr. Johnson at this time as both of the witnesses who testified against Mr.
Jolmson at his trial have recanted.
36. This newly discovered evidence satisfies the four-part test set forth in People v Cress, supra
(see Paragraph 29, supra). (1) Evidence from Mr. Skinner, not merely its materiality, was
not discovered until September of 2011. (2) It is not cumulative because there was no
evidence presented at trial suggesting that Lisa Kindred was afraid of her husband. (3)
Including this new evidence upon retrial would probably cause a different result because,
without Mr. Skinner's testimony at trial, Mr. Johnson had no way to argue that Will Kindred
should have been the prime suspect in Lisa Kindred's murder. (4) Mr. Johnson and his
counsel could not, using reasonable diligence, have discovered and produced the evidence at
trial because Mr. Johnson and his previous counsel had no reason to believe that Lisa
Kindred's ex-husband had any information relevant to the case.
37. In the alternative, if the Court finds that the fourth factor of the four-part test for new
evidence warranting relief is not met because a reasonably diligent attorney would have
contacted Mr. Skinner and presented his testimony, it must follow that Mr. Johnson's trial
and appellate counsel were objectively unreasonable, in violation of the Sixth and Fourteenth
Amendments, for failing to do so.
38. Trial and appellate counsel's conduct prejudiced Mr. Johnson, depriving him of a fair trial.
Without Mr. Skinner's testimony at trial, Mr. Johnson had no way to argue that Will Kindred
should have been the prime suspect in Lisa Kindred's murder. In light of the weak and
inconsistent testimony used to convict Mr. Johnson, evidence of an alternative suspect would
have made a significant difference. At the very least, "there is a reasonable probability that,
9
but for counsel's unprofessional errors the result of the proceeding would have been
different. " Strickland supra at 668.
CONCLUSION
For the reasons stated above, this Court should relieve Justly Johnson from his judgment
of conviction after holding an evidentiary hearing to evaluate the issues raised.
Dated: December , 20 II
Respectfully Submitted,
MICHIGAN INNOCENCE CLINIC & WISCONSIN INNOCENCE PROJECT
"cD"!(' (.t; \J' Ie1(1 I jY'-
Bridget McCormack (P58357)
Attorney for Defendant
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Imran Syed (P754 fM
Attorney for Defendant
hristiana Schmitz
Student Attorney for Defendaht -
10
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Attorney for Defendant
Byron Lichstein (Wise. Ba No.1 048483)
Attorney for Defendant
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aniel Sign
Student Att rney for Defendant
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
v
JUSTLY JOHNSON,
Defendant.
Case No.: 99-005393-01
Han. James Callahan
DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION FOR RELIEF FROM
JUDGMENT
Bridget McCormack (P58537)
David A. Moran (P45353)
Imran Syed (P754I5)
Attorneys for Defendant
Christiana Schmitz
Daniel Signs
Student Attorneys for Defendant
MICHIGAN INNOCENCE CLINIC
University of Michigan Law School
625 S. State Street
Ann Arbor, MI 48109
(734) 763-9353
Byron Lichstein (Wisconsin Bar No. 1048483)
Attorney for Defendant
WISCONSIN INNOCENCE PROJECT
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
(608) 265-2741
TABLE OF CONTENTS
INTRODUCTION .
STATEMENT OF FACTS AND PROCEDURAL HISTORY. .... ....... ... .. .......... .. ..... . 2
The Crime 2
The Investigation and Conviction 2
Direct Appeal...... 5
Post-Appeal State Court Motions and Federal Habeas Petition 5
Newly Discovered Evidence for the Current Motion .. 8
ARGUMENT 9
I. MR. JOHNSON IS ENTITLED TO RELIEF FROM JUDGMENT
AND A NEW TRIAL BECAUSE OF NEWLY DISCOVERED
EVIDENCE OF AN EYEWITNESS TO THE MURDER OF
LISA KINDRED WHO EXCLUDES JOHNSON AND HIS
CO-DEFENDANT 9
A. Mr. Johnson May File this Successive Motion for Relief Because
CJ Skinner and His Potential Testimony Were Not Discovered
Before the Prior Motion.. 10
B. 6.508(D)(3) Permits the Court to Grant Mr. Johnson' s Motion for
Post-Conviction Relief Based on the New Evidence from CJ
Skinner 12
I. Mr. Johnson Has Suffered Actual Prejudice 13
2. Because Mr. Johnson is Actually Innocent, This Court
Should Waive the Good Cause Requirement as Permitted
under MCR 6.508(D)(3) 16
3. Mr. Johnson Also Satisfies the Good Cause Requirement ..... . 19
C. Mr. Johnson Was Represented by Ineffective Trial and Appellate
Counsel Because Counsel was Deficient and Mr. Johnson
Suffered Actual Prejudice, Satisfying Both Prongs of the
Strickland Standard for Ineffective Assistance............................. . 20
I. Trial and Appellate Counsel's Performance was Deficient.. ... 21
2. Trial and Appellate Counsel's Deficient Performance
Prejudi ced Mr. Johnson 23
D. Alternatively, the Newly Discovered Eyewitness Testimony is
ew Evidence Warranting Relief from Judgment........ .. .. .... .... ..... 24
II. MRJOHNSON IS ENTITLED TO RELIEF FROM JUDGMENT
AND A NEW TRIAL BECAUSE OF NEWLY DISCOVERED
EVIDENCE FROM THE VICTIM'S EX-HUSBAND............. ........ ..... 27
A. Mr. Johnson May File a Successive Motion for Relieffrom
Judgment Because Evidence from the Victim's Ex-Husband
Was Not Discovered Before the First Such Motion, and Relief
May be Granted on this Claim Because the Good Cause and
Actual Prejudice Requirements of MCR 6.508(D)(3) Are
Satisfied.. ... .... ... .... . 29
B. The Newly Discovered Evidence from the Victim's Ex-Husband
Is Itself New Evidence Warranting Relief from Judgment... ......... 31
I. The Evidence from the Victim's Ex-Husband, Not Merely
Its Materiality, Is Newly Discovered 32
2. The Evidence from the Victim's Ex-Husband is not
Cumulative.......... ........... ..... ..... ......................... ....................... 32
3. Evidence from the Victim's Ex-Husband Was Not
Discoverable and Producible at Trial with Reasonable
Diligence 32
4. The Evidence from the Victim's Ex-Husband Makes a
Different Result Probable on RetriaL... .... .... ............ ..... ... ....... 33
C. In the Alternative, the Newly Discovered Evidence from the
Victim' s Ex-Husband Establishes that Mr. Johnson Received
Ineffective Assistance of Counsel......... ... ... ........ .. .. .......... ............. 36
Conclusion 37
Exhibits
A. Affidavit of Christiana Schmitz
B. Affidavit of Charmous Skinner, Sr.
C. Affidavit of Charmous Skinner, Jr.
D. Homicide Scene Investigation Report
E. Unpublished Opinions of the Michigan Court of Appeals
ii
TABLE OF AUTHORITIES
Amrine v Bowersox, 128 F3d 1222 (CA 8 1997)......................................................... 26
Chapin v Dorey, MI Court of Appeals Unpublished Opinion, Docket No. 275666,
Feb. 3, 2009.................................... .......... .. ...... ....... ... .. .......................... ... ................... 33
Evitts v Lucey, 469 US 387; 105 S Ct830; 83 LEd 2d 821 (1985) 21
Kyles v Whitley, 514 US 419; 115 S Ct 1555; 131 LEd 2d 490 (1995) 26,33
People v Cress, 468 Mich 678; 664 NW2d 174 (2003)............................................... 24,26, 32-33
People v Dickson, 217 Mich App 400; 552 NW2d 663 (1996) 32
People v George, MI Court of Appeals Unpublished Opinion, Docket No. 288032,
May 4, 2010 26
People v Grant, 470 Mich 477; 684 NW2d 686 (2004) 23,36
People vJones, MI Court of Appeals Unpublished Opinion, Docket No. 282242,
February 10, 2009 26, 33
People v Nixon, MI Court of Appeals Unpublished Opinion, Docket No. 266033,
Mar. I, 2007)................................................................................................................ 32
People v Reed, 449 Mich 375; 535 NW2d 496 (1995)................................................ 19,31
People vSwain, 288 Mich App 609; 794 NW2d 92 (20 I 0) 12
People v Taylor, MI Court of Appeals Unpublished Opinion, Docket No. 284331;
December II, 2008 23,25-27
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984) passim
Wiggins v Smith, 539 US 510; 123 S Ct 2527; 156 L Ed 2d 471 (2003)..................... 36
MCR 6.502............ .................... .. ............ .... ... ..................... ................... ...... .. .............. passim
MCR 6.508(D)(3) passim
iii
Other Authorities
Consent Decree, United States v City ofDelroit, No. 03-72258 (E.D. Mich.
June 12, 2003)........................ ...... .. .... ... .... .... .. ... .. .. ............................... ...... ................. 3
Joe Swickard, Delroif Cops Accused of Wholesale Arrests, Detroit Free Press,
Mar. 9, 2001... .. .... .. .... .. ....... ...... ........ ..... ............ .. ...................................... .................. 3
Keith Phucas, Man sentencedfor lying to grandjury about Roo House Tavern murder
Suspect TIMESHERALD.COM April 21, 2011....................................... .... .............. II
M.L. Elrick, Tamara Audi, & Mario G. Ortiz, Mom is Shot, Saves her Children, Dies,
Detroit Free Press, 5/ 10/99, at IB 2
Scott Lewis, Action News tracks down a key witness overlooked by Detroil Police in
A 1999 Mother 's Day Murder, WXYZ.COM Sep, 20, 2011 .. .................................... 8, 10
iv
INTRODUCTION
Justly Johnson was convicted on January 12,2000, of the murder of Lisa Kindred. Mr.
Johnson has always maintained his innocence, and evidence uncovered in the nearly twelve years
since his conviction supports Mr. Johnson's claim. In fact, given the recantation of the only
two witnesses to implicate Mr. Johnson, there is no longer any evidence whatsoever tying
Mr. Johnson to the murder of Lisa Kindred.
Additionally, a significant amount of exculpatory evidence has emerged over time. Most
recently, in September of 20II , a local investigative reporter uncovered a crucial and previously
overlooked witness. It has always been undisputed that the victim was shot as she waited in her
minivan, and her eight-year-old son, Charmous "CJ" Skinner, was in the car. Given that police,
prosecutors, and defense attorneys had failed to question him after the murder, it was assumed
that CJ had not seen anything. It was not until investigative reporter Scott Lewis contacted him
in 20 I I that it was discovered that CJ was a crucial eyewitness to the murder.
In addition to the newly discovered testimony of CJ Skinner, Mr. Johnson has also
uncovered evidence from Lisa's ex-husband, Charmous Skinner, Sr. (Mr. Skinner). This new
evidence strongly suggests that Lisa's husband, Will Kindred, was the person actually
responsible for her murder. Mr. Skinner recalls a specific conversation with Lisa approximately a
year before her murder in which Lisa expressed fear for her children' s and her own safety. Lisa
was afraid of her abusive husband, and police reports and other recently discovered documents
underscore the sensibility of her fears.
Based upon the newly discovered evidence of these two witnesses and their testimony,
Mr. Johnson requests that this Court grant relief from judgment and a new trial.
1
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The Crime
Shortly before I :00 a.m. on May 9, 1999, Lisa Kindred was shot and killed while inside
her minivan with her three children. Trial 1110/00 at6. The family, including Lisa's husband
Will, had gone to a drive-in movie and had afterward driven into Detroit's Bewick neighborhood
(despite the fact that it was late at night, far from where the family lived, and known to be a
dangerous area). Leaving his family sitting outside in the car, Will went into his brother-in-Iaw's
house. The alleged purpose of the visit was to speak with the brother-in-law, Verlin Miller, about
buying a motorcycle. ld at 13-14,22; PE 6/4/99 at 25. But Will had informed no one (not even
Miller himself) that he planned to visit Miller in the middle of the night. Trial 1/10/00 at 24, 40.
Lisa was shot as she waited outside in the car. ld at 6. After being shot, she drove to a
gas station some two blocks away, got out of the car, and collapsed. ld at 7, 37. She was taken to
the hospital alive but died shortly after arrival. ld at 32.
The Investigation and Conviction
Immediately after Lisa's murder, the Detroit Police released a statement indicating that
there "was a strong possibility that Kindred knew her assailant," and stressing that "she was not
involved in a carjacking." (Ex. A to Motion for Relief from Judgment (MRJ), 11/21/09: M.L.
Elrick, Tamara Audi, & Mario G. Ortiz, Mom Is Shot. Saves Her Children. Dies, Detroit Free
Press, 5110/99, at IB). Detroit police knew that Will and his brother-in-law were with Lisa
immediately before her death and that Will was the beneficiary of Lisa's life insurance policy.
(Ex. B to MRJ, 11/21/09: Life Insurance Policy Letter).
Will testified that after he had talked to Miller for about twenty minutes, Lisa walked up
to Miller's house to ask Will to come back to the car. Trial III 0/00 at 23. Will told her to go
2
back to the car and remained in Miller's house. Id. at 23. Later, while still inside Miller's house,
Will testified that he heard a loud noise and ran outside to find Lisa driving away and a man
running from the scene. Id. at 16, 26. Will said he saw broken glass on the ground where the van
had been parked. He said that he pursued on foot the man running from the scene, and that Miller
followed Lisa in a car. Id. at 16-17, 36.
The police investigation, and ultimately the prosecution's case at trial, centered on two
people arrested in the vicinity of the crime scene, Antonio Burnette and Raymond Jackson. Both
were arrested and questioned aggressively shortly after the murder.' Both testified that at the
time they spoke to police, they were afraid they were going to be charged with the murder if they
did not implicate someone else. Trial 1111 /00 at 41,105; PE 6/4/99 at 55. And both were
extremely impaired at the time of the events in question. Burnette, who was 14-years-old at the
time of the murder, testified that on the night in question he drank a 32-pack of beer and a half a
pint of Hennessey and smoked 10 marijuana cigarettes. Trial 1111100 at 39, 40. Jackson testified
that he was taking various medications for a mental illness. Id. at 96. Along with these
medications, Jackson had consumed three 40-ounce bottles of beer and smoked $30-worth of
marijuana. Id. He said that the combination of being high and drunk while on his medications
made him prone to "seei ng double and hearing things." Id.
After police interrogation, Burnette and Jackson provided statements implicating
Kendrick Scott and Justly Johnson in the murder. Neither Burnette nor Jackson claimed to have
, At the time, the Detroit Police Department had a well-documented practice of illegally arresting
potential witnesses in murder cases. Joe Swickard, Detroit Cops Accused of Wholesale Arrests, Detroit
Free Press, Mar. 9, 2001, at IA. A recent study revealed that, in 1998, the Detroit police arrested nearly
2.5 times as many people per homicide as any other department in the country. Id This practice resulted
in an investigation by the United States Department of Justice and a consent decree in which the police
department agreed to end the practice. Consent Decree, United States. v. City of Detroit, No. 03-72258
(ED. Mich. June, 12,2003), at 14-1 7.
3
witnessed the murder, and no other evidence implicated either Johnson or Scott. Rather, Burnette
testified that sometime during the day of the murder, Scott had mentioned he was planning to
"hit a lick.,,2 Id at 12,22. Burnette testified that, later that night, Johnson said Scott had shot a
woman earlier in the evening. Id at 24. Finally, Burnette testified that he had seen both Johnson
and Scott putting guns in their girlfriends' cars on the morning after the murder. /d at 30.
The prosecution's other key witness, Raymond Jackson, testified that Johnson told him
he had "hit a lick" and "messed up and had to shoot." /d at 72,73. Jackson testified that when
Mr. Johnson made the comment about "hitting a lick," he thought it was related to playing dice.
Id at 72.
Justly Johnson testified at trial and proclaimed his innocence. He described his
movements that night and testified that he was with Antonio Burnette during the time of the
murder./d at 153-61.
Thus, Johnson was convicted solely on the testimony of Jackson and Burnette. The Court,
acting as trier offact, stated that the "key witnesses are Jackson and Barnett [sic]," and that their
testimony was "the most important evidence we received. " Trial 1112/00 at 24,25,28. The Court
found Johnson guilty of felony murder, assault with intent to rob while armed, and possession of
a firearm during the commission of a felony. /d at 30-31.
At sentencing, Johnson again proclaimed his innocence. The court sentenced him to life
imprisonment for felony murder, concurrent with a 20-30 year term of imprisonment for assault
with intent to rob while armed, and consecutive to a two-year term for possession of a firearm
during the commission of a felony. Sentencing 1/26/00 at 197.
2 Testimony from several sources established that "hit a lick" has different meanings. Burnette testifi ed
that he thought it meant to commit a robbery, but others, including Jackson, testified that it also means to
shoot dice, or to generally "get over" on someone. Trial 1/11/00 at 22,72, 135.
4
Direct Appeal
Johnson appealed, alleging that: (I) the trial court did not obtain a valid waiver of his
right to a jury trial; (2) there was insufficient evidence for the trial court to find him guilty
beyond a reasonable doubt; and (3) he was denied effective assistance of counsel because trial
counsel failed to present alibi witnesses. The Court of Appeals affirmed his conviction, People v
Johnson, No. 228547 (Mich App, 3/26/02), and the Supreme Court denied leave to appeal.
People v Johnson, 467 Mich 911; 654 NW2d 333 (2002).
Post-Appeal State Court Motions and Federal Habeas Petition
Original Motion for Relieffrom Judgment
On December 2, 2003, Justly Johnson filed an in pro per "Motion for Relief from
Judgment" under MCR 6.502. He alleged that: (I) there was insufficient evidence for the trial
court to find him guilty beyond a reasonable doubt; (2) the judge abused his discretion by taking
on the role of the prosecutor; (3) prosecutorial misconduct denied him due process; (4) he was
denied ineffective assistance of trial counsel and appellate counsel; (5) the cumulative effect of
these issues denied his constitutional right to a fair trial; and (6) he was actually innocent of the
charged offenses.
This Court denied the 6500 motion on March 16, 2004. Johnson sought leave to appeal in
the Michigan Court of Appeals and the Michigan Supreme Court, and both courts denied leave.
People v Johnson, No. 261366 (Mich App, 9/23/05); People v Johnson, 447 Mich 1124; 712
NW2d 470 (2006).
Habeas Petition
On July 14, 2006, Johnson filed in the United States District Court for the Eastern
District of Michigan a pro per petition for writ of habeas corpus and a motion to hold the petition
5
in abeyance pending the exhaustion of additional state remedies. In addition to claims that he had
litigated on his direct appeal and in his first motion for relief from judgment, Johnson raised in
hi s habeas petition a new claim of actual innocence tied to the following new evidence:
Antonio Burnette's admission that he lied at trial. In an affidavit, Burnette admitted that
he never saw Mr. Johnson or Scott with any weapons, never heard either make any
statement before the crime planning to "hit a lick," and never heard Johnson say that
Scott shot someone. Burnette's affidavit also states that he testified falsely at trial due to
police pressure. According to Burnette, police told him that if he did not testify against
Mr. Johnson and Scott, he would be "locked up and charged with the crime of murder. "
Burnette' s affidavit also corroborated the alibi that Johnson has maintained since police
first interviewed him: according to Burnette, at the time the crime occurred, Mr. Johnson
was with Burnette in a friend's car, many miles away from the crime scene.
An affidavit from Lameda Thomas, swearing that her cousin, Raymond Jackson,
confessed to her that he lied at Johnson's trial. Thomas explained that Jackson told her
that Johnson had never said he "hit a lick" or that he "fuckup [sic] and had to shoot."
According to Thomas, Jackson's reasons for perjuring himself were police pressure and
fear that he would be charged with the murder.
An affidavit from Frederick Persons, a neighbor of Raymond Jackson, swearing that
Jackson admitted to lying due to police pressure. Jackson admitted to Persons that
Johnson had never told him that he had "hit a lick" or that he "messed up and had to
shoot," and Jackson only testified to this to "get the police off his ass." Persons claims
that Jackson said that police told him that the other two men they had in custody were
blaming him for the murder.
Finally, Johnson offered the results of a polygraph test he took on October 17, 2000.
During this test, he was asked: (I) whether he attempted to rob a woman in a van on the
date in question, (2) whether he fired the gun that caused the victim's injuries, and (3)
whether he was participating in a robbery when the victim was shot. For all three
questions, he answered "no." It was the opinion of Leonard West, a licensed polygraph
examiner who administered the polygraph test, that Johnson was telling the truth to the
best of his ability.
Habeas Petition, July 10, 2006 at 8-9. (See also Exs. A, Band 0 to MRJ, 9/26/06).
The federal court held the habeas petition in abeyance so Johnson could file his new
claims in this Court.
6
Second Motion for Relief from Judgment
Accordingly, on September 26, 2006, Johnson filed his second pro per motion for relief
from judgment, raising the new issues listed above. On April 15, 2008, this Court denied the
motion without a hearing. The Court of Appeals and the Supreme Court denied leave to appeal,
People v Johnson, No. 287529 (Mich App, 2/11109); People v Johnson, 485 Mich 893; 772
NW2d 365 (2009).
Third Motion for Relief from Judgment
On November 21, 2009, Mr. Johnson, now represented by the Wisconsin Innocence
Project, filed a successive motion for relief from judgment in this Court. This motion alleged an
amplified claim of ineffective assistance of counsel based on newly discovered evidence. This
included:
Evidence implicating the victim's husband, Will Kindred, as the true perpetrator. The
Wisconsin Innocence Project uncovered records of domestic violence, time served for
child abuse, a restraining order, and the victim's application for a divorce. The
Wisconsin Innocence Project also contacted Lisa's sister, Jody Gonterman, a police
detective. Gonterman testified that Lisa had warned her that Will should be the
primary suspect if anything ever happened to Lisa.
Evidence from Clarence Burnette, Antonio' s father, contradicting Antonio's trial
testimony (that Clarence picked Antonio up before the murder), and thereby
bolstering Johnson's alibi and Antonio Burnette's recantation affidavit (that the two
were together during the time of the murder).
This Court denied the successive motion for relief from judgment without a hearing 011
February 2, 20 IO. The Court of Appeals and the Supreme Court denied leave to appeal, People v
Johnson, No. 298189 (Mich App, 12/2/10 (Docket); People v Johnson, _ Mich _
(7/25/2011).
7
Current Procedural Posture
On September 20, 2011, Mr. Johnson- now represented by the Michigan hmocence
Clinic in addition to the Wisconsin Innocence Project-filed an amended habeas petition before
the Hon. Bernard A. Friedman of the Eastern District of Michigan. That same day, Mr. Johnson
asked the district court to hold in abeyance his amended habeas petition while he pursues claims
of newly discovered evidence in state court. On October 12,2011, Judge Friedman granted Mr.
Johnson's motion to stay and hold in abeyance the habeas proceedings.
Newly Discovered Evidence for the Current Motion
New evidence of innocence prompted Mr. Johnson's motion to hold in abeyance
his amended habeas petition. First, the victim's son, CJ Skinner, was revealed to be an
eyewitness to his mother's murder. In interviews with WXYZ investigative reporter Scott Lewis,
CJ Skinner said that he witnessed his mother's murder and described the shooter as a black man
in his thirties with a scruffY beard, a prominent nose, and either very short hair or a shaved
head-a description that does not match Mr. Johnson or his codefendant. See Scott Lewis, Action
News trach down a key witness overlooked by Detroit Police in a 1999 Mother 's Day lvJlIrder,
WXYZ.COM Sep. 20, 2011; available at:
http://"www.wxyz.comldpp/news/local news/investigations/new-information-uncovered-in-
mother's-day-murder-case. Student attorneys from the Michigan Innocence Clinic visited CJ
Skinner in Pennsylvania and administered a double-blind sequential photo array. This array
included photos of Johnson and co-defendant Kendrick Scott taken at the time of their arrest. CJ
Skinner did not recognize anyone in the lineup as the man who shot his mother. Christiana
Schmitz Affidavit 9 (Exhibit A to this Memorandum).
8
Skinner's exclusion of Johnson and Scott constitutes reliable evidence of Johnson's
innocence never before presented to the court. Failure to discover and present CJ Skinner's
testimony at trial constituted ineffective assistance of trial counsel. Failure to raise this claim on
direct appeal constituted ineffective assistance of appellate counsel.
In addition, Charmous Skinner, Sr., Lisa Kindred's ex-husband, has sworn that his former
wife was afraid of her husband and identified him as a suspect if anything ever happened to her.
Specifically, about one year before Lisa's murder, he had traveled to Michigan to visit his son,
CJ Skinner. Charmous Skinner, Sr. Affidavit 4 (Exhibit B to this Memorandum). While in
Michigan, Mr. Skinner had a conversation with Lisa in which she told him that she was afraid of
her current husband, Will Kindred. Id. at 5. She said that she feared for her own safety and the
safety of her children. Id. Ominously, Lisa warned Charmous Skinner that if anything were ever
to happen to her, Will Kindred should not be excluded as a suspect. Id. at 8.
Based on this newly discovered evidence, and the arguments made below, Justly Johnson
requests relief from judgment.
ARGUMENT
I. MR. JOHNSON IS ENTITLED TO RELIEF FROM JUDGMENT AND A NEW
TRIAL BECAUSE OF NEWLY DISCOVERED EVIDENCE OF AN EYEWITNESS
TO THE MURDER OF LISA KINDRED WHO EXCLUDES JOHNSON AND HIS
CO-DEFENDANT
Mr. Johnson is entitled to relief from judgment based on the September 2011 discovery
of the victim's son's unequivocal eyewitness account of his mother's shooter. Mr. Johnson
should be relieved of his judgment of conviction as a result of this evidence either because: (1)
his counsel's ineffectiveness in failing to discover and present CJ Skinner and his testimony, or
because (2) the evidence warrants relief as newly discovered evidence. Which ground the Court
determines warrants relief will tum on the following question: Should the fact that CJ SkirUler
9
saw the man who shot his mother have been discovered by defense counsel at the time of Mr.
Johnson's trial and direct appeal? If the Court finds that trial and appellate counsel's failure to
discover that CJ Skinner had observed his mother's killer is objectively unreasonable, then Mr.
Johnson is entitled to relief because he was not afforded effective assistance of counsel in
violation of his rights under the Sixth and Fourteenth Amendments. If, on the other hand, the
Court finds that even reasonable diligence would not have caused trial counsel to discover that
CJ Skinner could identitY his mother's killer (given that police never interviewed him), then the
discovery that CJ Skinner had witnessed the murder and could describe the killer is evidence
warranting relief as newly discovered evidence of innocence.
A. Mr. Johnson May File this Successive Motion for Relief Because CJ Skinner and
His Potential Testimony Were Not Discovered Before the Prior Motion
A defendant may file a subsequent motion for relief from judgment where the subsequent
motion is "based on . .. a claim of new evidence that was not discovered before the first such
motion." MCR 6.502(0)(2). This motion meets this gateway standard.
The present claim is based on evidence from an eyewitness to the murder of Lisa
Kindred, evidence that was not discovered before Mr. Johnson's prior motion for relief from
judgment. This new evidence was discovered in September of2011 when WXYZ investigative
reporter Scott Lewis followed up on a lead that police had ignored: He tracked down the victim' s
eight-year-old son who had been in the minivan when his mother was killed. Lewis interviewed
CJ Skinner for a news story in September 20 II, and the interview revealed that CJ Skinner had
seen the person who shot his mother some twelve years earlier. See Scott Lewis, Action News
tracks down a key witness overlooked by Detroit Police in a 1999 Mother 's Day Murder ,
WXYZ.COM Sep. 20, 2011; available at:
http://www.wxyz.com/dpp/news/ local news/investigations/new-information-uncovered-in-
10
mother's-day-murder-case. CJ Skinner told Lewis that there had been no struggle, and that he
would never forget the face ofthe man who murdered his mother. Id CJ Skinner described the
shooter as a black man in his thirties with a scruffy beard, a prominent nose, and either very short
hair or a shaved head. ld. Lewis passed the information along to the Michigan Innocence Clinic.
The Clinic opened its own investigation, interviewing CJ Skinner first on the phone and
then visiting him in Pennsylvania, where he is currently incarcerated
3
CJ Skinner remembers the
night of his mother's murder vividly. He described the person he saw approach the minivan that
night in detail, see Charmous Skinner, Jr. Affidavit 8 (Exhibit C to this Memorandum), and he
agreed to look at a photo array. The Innocence Clinic administered a double-blind sequential
photo array, which included the pictures of Justly Johnson and his co-defendant, Kendrick Scott,
from the time of their arrest, as well as 18 other photos of similar quality featuring other men.
Christiana Schmitz Aff. (Ex. A). CJ Skinner examined each photo carefully and did not pick
anyone from the lineup. He concluded that the man who shot his mother was not pictured in any
of the photos he was shown. Christiana Schmitz Aff. 9 (Ex. A).
CJ Skinner' s interview with Scott Lewis was the first time he had spoken with anyone
about what he saw on the night of his mother' s murder. Charmous Skinner, Jr. Affidavit 12-16
(Ex. C). At only eight years old, he had, in his own words, "shut down" after him mother' s death.
ld. at 14. With no mother, CJ Skinner was left to a stepfather who had abused him in the past.
He eventually ended up in Pennsylvania with his biological father ' s family, but he still did not
open up about what he had experienced. ld. at 13-15. It was not until September of2011 that
he finally revealed that he saw the man who shot his mother.
J On April 21, 2011 , CJ Skinner was sentenced to two to four years for perjury and false swearing after he
told a grand jury that he did not know a murder suspect. See Keith Phucas, TIMESHERALD.COM 4/21 /201 1,
at: http://www.timesherald.com/aI1icle/2011 0421INEWSO1/304219969.
11
Because the present motion is based on evidence from an eyewitness that was not
discovered until September 2011 , the motion passes the threshold requirement ofMCR 6.502(G)
and is therefore properly before this Court. The new evidence presented in this motion contrasts
with the evidence presented in People v Swain, 288 Mich App 609, 635-36; 794 NW2d 92
(20 I0) - a case in which the Michigan Court of Appeals held that the defendant could not
satisfy MCR 6.502(G)(2) because the new witnesses she presented and "their potential
testimony" were known to her at the time oftrial and at the time of her prior motion for relief
from judgment. See id. at 635-36 ("Because the evidence on which defendant's successive
motion for relief from judgment was based was not discovered after defendant filed her first
motion for relief, the trial court was prohibited from granting defendant's motion.").
Unlike the defendant in Swain, Johnson presents in this motion new evidence that he was
not previously aware of, and thus he satisfies the MCR 6.502(G)(2) threshold, and therefore, this
Court may consider his successive motion for relief from judgment. In order to grant relief on the
motion, the Court must further determine that Mr. Johnson satisfies the 6.508(D)(3) standard, as
discussed below.
B. 6.508(0)(3) Permits the Court to Grant Mr. Johnson's Motion for Post-
Conviction Relief Based on the New Evidence from CJ Skinner.
When a defendant presents new evidence in a successive motion for relief from
judgment, the defendant must not only show that the evidence is newly discovered under MCR
6.502(G)(2), but he must also satisfY requirements under MCR 6.508(D)(3) if relief is to be
granted. MCR 6.508(D)(3) permits a court to grant relief to a defendant on a successive motion
only ifhe is able to show good cause (for failing to previously discover the evidence) and actual
prejudice (importantly, a court may waive the good-cause requirement if it concludes that there
is a significant possibility that the defendant is innocent). As already explained, CJ Skinner's
12
testimony is new under MCR 6.502(0)(2) because it was not discovered until September of
2011. The new evidence from CJ Skinner also satisfies MCR 6.508(0)(3).
1. Mr. Johnson Has Suffered Actual Prejudice.
For purposes of post appeal relief, "'actual prejudice' means that ... but for the alleged
error, the defendant would have had a reasonably likely chance of acquittal." MCR
6508(0)(3)(b)(i). In the case at hand Mr. Johnson has suffered actual prejudice because, but for
the failure to present CJ Skinner's testimony at trial, Mr. Johnson would have had a reasonably
likely chance of acquittal.
If counsel had interviewed CJ, the defense would have learned that he had crawled from
the back seat of the minivan to the front, passenger side seat while he, his mother, and his
siblings waited for Will Kindred. Charrnous Skinner, Jr. Aff. ,; 5 (Ex. C). The defense would
have learned that CJ Skinner got a good look at the man who shot his mother, and he knew that
the man who shot her looked nothing like Justly Johnson or his co-defendant, Kendrick Scott. Id
at ';8-9. In short, had defense counsel interviewed CJ Skinner, he would have learned that the
only eyewitness to the shooting (other than CJ Skinner's infant siblings, who obviously could not
testilY) would give testimony that would be entirely exculpatory to Mr. Johnson.
In the context of a case based entirely on the incoherent testimony of two unreliable
witnesses, the significance of this direct, eyewitness testimony cannot be overstated. At trial, Mr.
Johnson's conviction turned on the testimony of Raymond Jackson and Antonio Burnette.
Burnette was 14 years old at the time of the events he claimed to have witnessed, and he testified
that he drank a 32-pack of beer and a haIfa pint of Hennessey and smoked 10 marijuana
cigarettes that night. Trial 1/ 11/00 at 39, 40. Furthermore, Burnette admitted at the preliminary
examination that, when he originally spoke to police, he had been under arrest and was afraid he
13
would be charged as the killer ifhe did not implicate Mr. Johnson. PE 5/26/99 at 68-69.
Burnette's testimony at trial was contradictory and incoherent. For example, the prosecutor
attempted to establish through Burnette that, Burnette had been present for a conversation before
the murder where Kendrick Scott and Justly Johnson said they planned to "hit a lick." Burnette
explicitly contradicted himself on this point, testifYing in almost the same breath that Jolmson
both had and had not participated in a conversation with Scott about planning to "hit a lick. ,,4
Moreover, despite having testified on direct examination that his father, Clarence
Burnette, picked him up at 10:30 p.m., Burnette testified on cross that he had been with Justly
Johnson for the entirety of the night of the murder. Trial 1111/00 at 32-39. He also testified that,
while returning from his sister's house, he and Mr. Johnson saw ambulances at the gas station
where Lisa drove the minivan. Id.
Raymond Jackson, the other witness who testified against Mr. Johnson, provided
similarly weak evidence. Like Burnette, Jackson admitted to giving his original statement to
police Ollt offear. Id. at 97. He said the police told him they would shoot him ifhe moved. Id. at
104. He testified that during his second questioning session, the police yelled at him, harassed
4 Q... Did you tell the Court that [Johnson] and [Scott] talked about their plans, this
was back on Bewick before your dad came to take you someplace else? Do you
remember that [Johnson] and [Scott] talked about their plans to do things that night?
A. Yes.
Q. Okay. It will be page 45. Did you tell the Court that [Johnson] and [Scott] were
talking about hitting a lick?
A. Yes.
Q. Was that true when you told that to the Court?
A. Yes.
Q. Is it still true?
A. Yes.
Q. Okay. And did [Johnson] talk about hitting a lick?
A. No. (Trial 1111100 at 21).
14
him and would not let him see his family.ld. at 97, 104. He said that he was under suspicion for
the murder when he was questioned by police, that police used intimidating tactics in questioning
him, and that police told him two other witnesses were blaming him for the murder. PE 6/4/99 at
43-45,55-56; Trial 1/11/00 at 105.
The prosecution attempted to use Jackson to establish that Mr. Jolmson had been talking
about committing a murder, but Jackson testified that he was taking Haldol , Zoloft, Antibuse and
other drugs that he could not name. Trial 1/11/00 at 85, 86. He said these drugs make his "vision
really blurry," "make [him] forget a lot of things," and affect his abil ity to understand what is
going on around him. ld. at 86, 89, 105. Further, Jackson testified that when he talked to Mr.
Johnson, he was "drunk and high," having consumed three 40-ounce beers and $30 worth of
marijuana. ld. at 73. Jackson testified that when he is high and drunk at the same time he is on
his medications, he is prone to "seeing double and hearing things." ld. at 96. Jackson also said
that Mr. Johnson was very drunk when the two men talked, and that Jackson "couldn' t believe
nothing [Johnson] said. " ld. at 73.
In addition to that backdrop of impairment, the prosecution had Jackson testify that he
recalled Mr. Johnson talking about "hitting a lick," but Jackson said that can mean "a lot of
things," including robbery but al so including playing dice, and Jackson said he thought Mr.
Johnson was talking about playing dice ld. at 72-73, 106. He testified that people near his house
"shoot dice everyday." ld. at 101. Jackson had the same interpretation of the phrase "messed up
and had to shoot;" he said he thought Mr. Johnson was talking about playing dice. Jackson said
he never heard Mr. Johnson talk about hurting anyone or being involved in a shooting. ld. at 100.
106.
15
These were the prosecution's only two witnesses to inculpate Mr. Johnson. The trier of
fact had little to go off of-circumstantial evidence as testified to by incoherent, unreliable
witnesses. Had CJ Skinner's testimony been presented at trial, it would have represented
the only direct evidence as to the identity of the perpetrator. Any reliability that Jackson's
and Burnette's testimony could claim would have evaporated in light of direct, eyewitness
testimony saying, in effect, " I saw the shooter, and he was neither Justly Johnson nor Kendrick
Scott."
CJ Skinner's testimony would have been particularly persuasive because he was not from
the Bewick neighborhood, and he did not know the defendants in the case or the two witnesses,
Jackson and Burnette, and he would have had no reason to shade his testimony in favor ofMr.
Johnson or Mr. Scott if they had been the ones who killed his mother. All of these facts would
have bolstered CJ Skinner's testimony, making it strong and reliable. There is at least a
reasonable likelihood that Mr. Johnson would have been acquitted.
2. Because Mr. Johnson is Actually Innocent, This Court Should Waive the
Good Cause Requirement as Permitted under MCR 6.508(D)(3).
"The court may waive the 'good cause' requirement. .. if it concludes that there is a
significant possibility that the defendant is innocent of the crime." MCR 6508(D)(3). In this case,
the record and all existing evidence points to Mr. Johnson's innocence, and therefore, the good
cause requirement should be waived.
The only evidence ever tying Mr. Johnson to the murder of Lisa Kindred was the
testimony of Antonio Burnette and Raymond Jackson. This testimony was weak and unreliable
to begin with. See supra Part LB. 1. The truthfulness of the testimony of Burnette and Jackson
was called into question simply by virtue of the circumstances of the case (both witnesses felt
pressured and scared into making the statements they made, both were drinking heavily and
16
using drugs the night of the murder and both made inconsistent statements at trial as compared to
the pretrial hearing). To add to that, both witnesses have since recanted. Raymond Jackson told
both a neighbor and his cousin that he had lied at Mr. Johnson's trial to protect himself: Jackson
believed that unless he testified the way police wanted him to, he himself would be charged with
the murder of Lisa Kindred. (See Exs. D and E to MRJ, 11/21/09: Lameda Thomas Affidavit
1-4; Fredrick Persons Affidavit 1-6). Antonio Burnette felt the same way. Burnette said he
had lied at Mr. Johnson's trial, and that in fact he had been with Mr. Johnson for the entire night.
He said he had never heard Mr. Johnson make any incriminating statements. (Ex. C to MRJ,
11 /21/09: Antonio Burnette Affidavit 1-7). Because both Jackson and Burnette have recanted,
there is no existing evidence tying Mr. Johnson to the murder of Lisa Kindred.
Moreover, other evidence suggests a more likely suspect. Two different people close to
Lisa Kindred have reported that she was afraid of her husband, Will Kindred. She told her sister,
Jody Gontermann, that Ms. Gontermann (a law enforcement officer herself) should not let police
excl ude Will if anything ever happened to Lisa. (Exs. H and I to MRJ, 11/21/09: Detective
Michael H. Branks Affidavit 4; Kaitlin A. Lamb Affidavit 7). On a different occasion, she
told her ex-husband, CharnlOus Skinner, Sr. , the very same thing. Charmous Skinner, Sr. Aff. 8
(Ex. B). Lisa was afraid of Will, and she had good reason to be.
Will Kindred had a history of abusing Lisa and her family. Less than two years before the
murder, on October 11 , 1997, Will violently assaulted Lisa. (See Ex. G1 to MRJ, 11/2 1/09:
Roseville Police Report No. 97031038.) During the incident, Will punched Lisa in the arm. Id.
Afraid of Will, Lisa locked herself in the bathroom. Will pounded on the bathroom door, and
eventually kicked it in. Id He then yelled at Lisa and grabbed her by the shirt in the neck area,
17
pulling her up to lift her off the ground. Id. He shoved her onto the toilet. Id. During the assault
he repeatedly told Lisa that he would kill her and the whole family. Id.
Lisa drove to the police station with her children. (Ex. 0 I to MRJ, 11/21/2009). She told
the police that Will assaulted her at their home and would not allow her to use the phone. Id. On
the way to the police station, Will followed her and at one point pulled up alongside her and
yelled "maybe I should take out the whole family." [d. When Lisa pulled into the police lot, Will
fled. [d. Police and Lisa returned to the residence, and police took for safekeeping a .22 caliber
rifle.ld. Police documented Lisa's injuries from the assault. Id.
Lisa told police that earlier that morning Will had also abused CJ. Will had pushed the
child into his room, picked him up off the floor by his shirt, and threw him onto the bed, causing
CJ to hit his head on the wall. (Ex. 0 I to MRJ, 11/2l/2009). A few months before, Will
repeatedly beat CJ with a belt (Ex. 02 to MRJ, 11 /21/2009: Roseville Police Report No.
97015063). Lisa heard CJ screaming that he could not breathe. Id. Will stated that he hit the child
about 15 times because the hits did not seem to be hurting him. Id. CJ was taken to the hospital
for treatment. Id. His injuries included scratching and bruising to his arms and shoulders, large
bruises across his back that were approximately four inches wide and eight inches in length, and
bruising on his legs and stomach. [d.
Aside from these incidents, Roseville police responded to numerous other incidents
involving threats and arguments between Will and Lisa, Will's abuse ofCJ, and Will's threats of
suicide if Lisa left him. (Exs. 03, 06 and 08 to MRJ, 1l/21/2009: Roseville Police Report Nos.
97014732,97033793,97012239). Although police had already seized one .22 caliber firearm
from Will on October II, 1997, they seized a second such weapon during a later incident. (Ex.
09 to MRJ, 1l/2l/2009: Roseville Police Report No. 98003721).
18
In 1998, a little more than a year before her death, Lisa Kindred filed for divorce. (Ex. K
to MRJ, 11 /21 /2009: Lisa Kindred Divorce Compl.). In the divorce complaint, Lisa stated that
throughout the marriage, Will abused her and her son verbally, physically, and emotionally. [do
On February, 23, 1998, after filing for divorce, Lisa petitioned for a personal protection order
stating that Will drove to her workplace and repeatedly circled the parking lot waiting for her to
leave work. (Ex. L to MRJ, 11/21/2009: Lisa Kindred PPO). Lisa asked in the petition that the
order be entered without prior notice to Will and without a hearing to avoid increasing his
attempts to contact her and possibly retaliate. Jd.
With so much evidence pointing toward a more likely suspect, and with absolutely no
evidence implicating Mr. Johnson in the crime, the Court should waive the good-cause
requirement of 6.508(D)(3). Mr. Johnson's is an overwhelming case where the actual innocence
exception to good cause under MCR 6.508(D)(3) must apply.
3. Mr. Johnson Also Satisfies the Good Cause Requirement.
Even if the Court is not convinced that it should waive the good cause requirement
because there is a "significant possibility" that Mr. Johnson is innocent, Mr. Johnson has good
cause for not raising ineffective assistance of counsel claims on appeal or in his prior motions for
relief from judgment. Good cause for not having raised a claim on appeal " is established by
proving ineffective assistance of appellate counsel." People v Reed, 449 Mich 375, 378; 535
NW2d 496, 499 (1995). Because Mr. Johnson brings a claim of ineffective assistance of
appellate counsel , he has good cause for not having raised his ineffective assistance of counsel
claim on direct appeal.
Mr. Johnson also has good cause for not having raised his ineffective assistance of
counsel claim in his prior motions for relieffrom judgment. By the time that Mr. Johnson filed
19
his 2003 and 2006 motions, CJ Skinner had moved to Pennsylvania to live with his father ' s
family. Mr. Johnson filed his motions in pro per, and, being incarcerated, did not have any way
to locate CJ Skinner in a different state and then go interview him there. Therefore, Mr. Johnson
could not identify CJ Skinner as an exculpatory eyewitness. Mr. Johnson therefore did not and
could not know that he had received ineffective assistance of counsel at trial and on appeal.
Thus, Mr. Johnson had good cause for not raising his ineffective assistance of counsel claims in
his in pro per motions for relief from judgment.
By the time his 2009 motion for relieffrom judgment was filed, Mr. Johnson was
represented by the Wisconsin Innocence Project, but CJ Skinner had already moved to
Pennsylvania. Undersigned counsel informs this Court that the WIP attempted to call CJ Skinner
in 2009, but CJ never returned the calls. The WIP had no reason to pursue him further because it
had no reason to know that CJ had in fact been in the front seat, seen the shooting and could
describe the shooter. Reasons that made it logical to pursue CJ harder did not arise until 2011 ,
after WXYZ investigative reporter Scott Lewis's initial discovery. For all ofthese reasons, Mr.
Johnson has shown good cause for not discovering CJ and raising this particular claim of
ineffective assistance of counsel in his prior motions for relief from judgment.
Because Mr. Johnson can demonstrate actual prejudice and good cause should be waived
(or in the alternative, is satisfied), MCR 6.508(D)(3) permits the Court to grant his ineffective
assistance of counsel claim, as long as the ineffective assistance standard is satisfied (see below).
C. Mr. Johnson Was Represented by Ineffective Trial and Appellate Counsel
Because Counsel was Deficient and Mr. Johnson Suffered Actual Prejudice,
Satisfying Both Prongs of the Strickland Standard for Ineffective Assistance
The Sixth and Fourteenth Amendments to the U.S Constitution guarantee a defendant the
effective assistance of counsel both at trial and on direct appeal of right. Strickland v
20
Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (\984); Evitts v Lucey, 469 US 387,
395-97; 105 S Ct 830; 83 LEd 2d 821 (\ 985). A defendant alleging ineffective assistance must
establish that "counsel's performance was deficient" and that "the deficient performance
prejudiced the defense." Strickland v Washington, supra at 687.
1. Trial and Appellate Counsel's Performance was Deficieut
The adequacy of counsel's performance for purposes of an ineffective assistance of
counsel claim is determined based on an objective standard of reasonableness. Strickland v
Washington, supra at 688. The reasonableness of counsel's conduct is judged in the context of
"the facts of the particular case, viewed as of the time of counsel 's conduct. " Id. at 690. The
Michigan Supreme Court has found trial counsel's conduct to be objectively unreasonable and
constitutionally deficient where counsel failed to call eyewitnesses to a murder, a decision that
the court found could not be justified as strategic. People v Johnson, 451 Mich 115, 122; 545
NW2d 637, 640 (\ 996).
Failure to interview a known potential eyewitness falls below the standard of objective
reasonableness required of both trial and appellate counsel. Like counsel deemed deficient in
Johnson, trial cOlmsel in this case failed to call the only potential eyewitness who could have
testified at trial. Trial counsel had no strategic reason for this failure; in fact , trial counsel failed
to even interview the potential eyewitness in this case. Had he done so, he would have learned
that the account of the shooting that CJ Skinner would have given was in fact exculpatory to hi s
client. When Lisa Kindred was shot in the front seat of her minivan, her three children-
including eight-year-old CJ-were in the van with her. Counsel need not have looked any further
than the police reports to know thi s. (Homicide Scene Investigation Report, May 9, 1999, at 3,
21
Exhibit 0 to this Motion.)' But trial counsel failed to interview CJ Skinner about what he saw
on the night of his mother's murder.
Appellate counsel was also deficient for failing to litigate the ineffective assistance of
trial counsel during Mr. Johnson's direct appeal. Appellate counsel would have known that CJ
Skinner was a key eyewitness if he had taken even a cursory look at the police reports in this
case. Being so aware, any reasonable appellate counsel would have interviewed CJ Skinner, and
then raised an ineffective assistance of trial counsel claim for failing to present CJ as a witness at
trial.
Neither trial nor appellate counsel has any excuse for this failure. As in Johnson, there is
"no sign" in this case "that counsel made a strategic decision not to call the witness[] to testify
regarding the events that occurred on the night of the shooting." Johnson, 451 Mich at 115,124.
If counsel did know about a potential eyewitness in a case in which the inculpatory evidence was
as weak as in this one, failure to interview that eyewitness is not objectively reasonable. Trial
counsel would have seen that Antonio Burnette and Raymond Jackson' s testimony was hardly
overwhelming, and an actual eyewitness to the crime would have been reasonably likely to sway
the finder of fact into disbelieving Burnette and Jackson. For these reasons, there is no potential
strategic reasoning that could justify counsel's deficient conduct.
In short, both trial and appellate counsel failed to interview a person known to have been
in the same vehicle as the victim of a homicide when the homicide occurred. Appellate counsel
failed to litigate trial counsel ' s obviously deficient conduct on direct appeal. In both cases,
counsel's conduct fell below the Strickland threshold.
5 The report erroneously states that CJ Skinner was seven years old. He was, in fact, eight years old.
22
2. Trial and Appellate Counsel's Deficient Performance Prejudiced Mr.
Johnson.
Prejudice from counsel's deficient conduct exists where "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v Washington, supra at 668, 694. Reasonable probability (the Strickland
prejudice standard) and reasonable likelihood (the prejudice standard set forth in MCR
6.508(D)(3)) are one and the same. See People v Taylor, No. 284331 (Mich App, 12/1 1/08)
C" [p]robable' means 'likely to occur ... .''') (Exhibit E to this Motion). The analysis set forth
above in Part LB.! therefore applies to the prejudice requirement in Mr. Johnson's ineffective
assistance of counsel claim as well.
"The failure to make an adequate investigation is ineffective assistance of counsel if it
undermines confidence in the trial's outcome." People v Grant, 470 Mich 477,493; 684 NW2d
686,696 (2004) (internal citation omitted). In applying the second prong of the Strickland
analysis, courts examine the other evidence presented at trial to determine whether counsel's
deficient conduct prejudiced the defendant. See, e.g. People v Grant, supra at 493-97; People v
Johnson, supra at 122-24. As described in detail in Part LB. I, Mr. Johnson suffered prejudice
because of his trial counsel's failure to interview and present CJ Skinner as a witness at trial, and
his appellate counsel 's failure to litigate trial counsel's failure on direct appeal. Had trial counsel
interviewed CJ Skinner, Mr. Johnson would have been armed with direct, eyewitness testimony
excul pating him. In light of the weak, contradictory and circumstantial testimony of Antonio
Burnette and Raymond Jackson- the only evidence presented against Mr. Johnson at trial-the
exculpatory testimony of an eyewitness would have made strong and persuasive evidence. Had
CJ Skinner testified, there is a reasonable probability that Mr. Johnson would have been
acquitted.
23
Similarly, "but for" appellate counsel's failure to interview CJ Skinner, there is a
reasonable probability that Mr. Johnson would have won his direct appeal. As described in detail
in Part LB. I, the testimony of both Antonio Burnette and Raymond Jackson was often incoherent
and contradictory. Had appellate counsel interviewed CJ, he would have procured direct,
eyewitness testimony exculpating Mr. Johnson and could have thus made a very strong
ineffective assistance argument on direct appeal. There is a reasonable probability that such
evidence would have altered the outcome ofMr. Johnson' s appeal.
In sum, with new evidence of an exculpatory eyewitness, the Strickland prejudice
standard is easily met. In light of a record fraught with inconsistencies and contradictions, the
exculpatory testimony of an eyewitness would have made a significant difference. At the very
least, "there is a reasonable probability that, but for counsel's unprofessional errors the result of
the proceeding would have been different." Strickland, supra, at 668.
D. Alternatively, the Newly Discovered Evewitness Testimonv is New Evidence
Warranting Relief from Judgment.
In the alternative, if this Court finds that trial and appellate counsel were not deficient in
failing to interview CJ Skinner and present his exculpatory eyewitness testimony, Mr. Johnson is
entitled to relief based on the newly discovered evidence of an eyewitness to the murder of Lisa
Kindred. A court may grant a defendant a new trial based on newly discovered evidence where:
"( 1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly
discovered evidence was not cumulative; (3) the party could not, using reasonable diligence,
have discovered and produced the evidence at trial; and (4) the new evidence makes a different
result probable on retrial. " People v Cress, 468 Mich 678, 692; 664 NW2d 174, 182 (2003)
(internal citations omitted).
24
The Court of Appeals found these factors to be satisfied in a case strikingly similar to the
case at hand. People v Taylor, supra (Ex. E). In Taylor, the court upheld a trial court finding that
a defendant convicted of second-degree murder was entitled to a new trial based on newly
discovered evidence of an eyewitness. People v Taylor, supra at *I, (Ex. E). The eyewitness was
II years old at the time of the murder and claimed to have witnessed it from his bedroom
window.ld. Initially, at the advice of his mother, the witness had not come forward with what he
had seen. ld. Years later, while incarcerated with the defendant, the witness realized who the
defendant was and came forward. ld.
The Taylor court held that the defendant had satisfied the four Cress factors. The court
found that the defendant satisfied the first factor because the witness testified that he had not
come forward before. ld. at *2. The defendant also satisfied the third factor, because even with
reasonable diligence at the time of trial the defendant would have been unable to discover the
witness.ld. In fact, the witness's mother had actually been interviewed by police at the time, but
she had told police that she did not see anything. ld. As to the second factor, the court found that
"[t]he newly discovered witness's testimony cannot be characterized as cumulative simply
because it tends to support defendant's version of the facts, particularly in light of the disparity
between the stories testified to by defendant and [the prosecution's star witness at trial]. Further,
the newly discovered witness's testimony provides information not testified to by defendant." ld.
Finally, with regard to the fourth factor, the court upheld the trial court's determination that a
different result would be probable upon retrial, deferring to the trial court 's discretion in
determining the credibility ofa testifying witness after hearing that witness's post-conviction
testimony. ld. at *3.
25
Like the evidence at issue in Taylor, the evidence in the case at hand, not merel y its
materiality, is newly discovered. CJ Skinner did not come forward as an eyewitness to his
mother's murder until September of2011. Charmous Skinner, Jr. Affidavit 1216, (Ex. C).
Moreover, CJ Skinner's potential testimony is not cumulative since no other eyewitnesses
to the shooting have ever testified. Like the evidence in Taylor, the new evidence " provides
information not testified to by the defendant" or anyone else at trial. And that information is
particularly compelling in light of the other evidence presented at trial. People v Taylor, supra at
*2, (Ex. E).
Presenting CJ Skinner' s testimony at a retrial would also cause a different result. Whether
the newly discovered evidence would make a different result likely at trial is a question about the
totality of all evidence in light of the new evidence presented. See, e.g. People v Jones, No.
282242 (Mich App, 2110/09) at *2 (citing Cress, 468 Mich at 692) (Ex. E). The weight of the
new evidence must be taken as a whole when deciding whether it would have affected the
ultimate outcome of the trial. See Kyles v Whitley, 514 US 419; 115 S Ct 1555; 131 LEd 2d 490
As discussed above in Part LB.I, the prosecution presented only weak, circumstantial
evidence at Mr. Johnson' s trial. In light of the nearly incomprehensible testimony of the
6 The U.S. Supreme Court' s command in Kyles that new evidence must be considered as a whole was
issued in the context of a Brady claim, but has been applied to new evidence claims in general. See e. g.
Amrine v Bowersox, 128 F3d 1222, 1230 (CA 8 1997) ("When determining the impact of evidence
unavailable at trial, a court must make its final decision based on the likely cumulative effect of the new
evidence had it been presented at trial."); People v George, unpublished opinion per curiam of the COUlt
of Appeals, issued May 4, 2010 (Docket No. 288032), at *3 (noting that the trial court rightly evaluated
the "collective effect of the newly discovered [evidence]" in determining whether a different result was
probable on retrial.) (Ex. E).
26
prosecution' s two star witnesses, an eyewitness giving direct and exculpatory testimony would
be compelling evidence. Like the witness in Taylor, CJ Skinner has no reason to lie for Mr.
Johnson or Kendrick Scott, men he does not know. See Charmous Skinner, Jr. Aff. 17 (Ex. C).
Indeed, CJ Skinner is an even more compelling witness than the witness in Taylor.
Because he is the victim's son, he has a strong interest in seeing the person or persons who
actually killed his mother go to prison. In light of the otherwise ambiguous and often
contradictory testimony presented at trial, CJ Skinner's testimony would make a different result
probable.
The final Cress factor requires a defendant to show that new evidence was not
discoverable and producible at trial with reasonable diligence. If this Court were to find that Mr.
Johnson's trial and appellate counsel were not objectively unreasonable for failing to interview
CJ Skinner, then that finding equates to a finding that Mr. Johnson could not, using reasonable
diligence, have discovered and produced CJ Skinner at trial. Thus, this factor would be satisfied
if this Court were to find that Mr. Johnson' s trial and appellate counsel were not ineffective in
failing to interview and present CJ Skinner.
The four-part test for newly discovered evidence of innocence warranting relief from
judgment would therefore be satisfied if this Court were to find that prior counsel were not
deficient for failing to interview CJ Skinner.
II. MR. JOHNSON IS ENTITLED TO RELIEF FROM JUDGEMENT AND A NEW
TRIAL BECAUSE OF NEWLY DISCOVERED EVIDENCE FROM THE VICTIM'S
EX-HUSBAND.
In September 20I I, the Michigan Innocence Clinic spoke with Charmous Skinner, Sr.-
the ex-husband of Lisa Kindred. The Clinic contacted Mr. Skinner after learning that Charmous
Skinner, Jr. (CJ), the son he had with Lisa, was an eyewitness to Lisa' s murder. Approximately
27
one year before her murder, Lisa told Mr. Skinner that because of her new husband, Will
Kindred, she was scared for her safety and the safety of her children. Charmous Skinner, Sr., Aff.
5 (Ex. B). She also told Mr. Skinner that if anything ever happened to her, the police should
investigate Will. Jd at 8.
This new evidence entitles Mr. Johnson to relief on one of two possible grounds: (I)
either it is itself new evidence warranting relief from judgment, or (2) it is new evidence of
constitutionally ineffective assistance of counsel. If the Court finds that even with reasonable
di ligence, trial and appellate counsel could not have discovered Mr. Skinner's testimony, then
that testimony is itself newly discovered evidence warranting relief. But, if the Court finds that
trial and appellate counsel's failure to discover the evidence was objectively unreasonable, then
Mr. Johnson is entitled to relief because he did not receive effective assistance of counsel under
the Sixth and Fourteenth Amendments.
After the Michigan Innocence Clinic learned from WXYZ reporter Scott Lewis in
September 2011 that Lisa Kindred's son, CJ, could describe his mother's murderer, the Clinic
spoke with Lisa' s ex-husband, Charrnous Skinner, Sr., ("Mr. Skinner") to learn more about CJ
and about Mr. Skinner's relationship with Lisa. Mr. Skinner is currently a firefighter in
Norristown, Pennsylvania.
Mr. Skinner and Lisa were married and had two children, a son, CJ Skinner, and a
daughter, Arynn Skinner. Charrnous Skinner, Sr. Aff. 3 (Ex. B). After Mr. Skinner and Lisa
divorced in 1993, CJ moved with Lisa from Pennsylvania to Michigan, and Arynn continued to
live with Mr. Skinner in Pennsylvania. ld. at 2, 3.
Approximately one year before Lisa' s murder, Mr. Skinner traveled to Michigan to visit
Clld. at 4. While in Michigan, Mr. Skinner talked with Lisa.ld. Lisa asked Mr. Skinner ifhe
28
would consider getting back together with her if she moved back to Pennsylvania. Id. When Mr.
Skinner asked Lisa why she wanted to get back together, she said that she was afraid of her
current husband, Will Kindred. Id. at 5. Lisa told Mr. Skinner that she feared for her own safety
and the safety of her children. Id.
Mr. Skinner urged Lisa to go to the police or get help, and she told him she had tried. Id.
at 6. She told him that the police had been called out to her home several times, and that Will
had gone to jail once for choking CJ. Id Lisa added that if anything ever happened to her, Mr.
Skinner should not allow the police to exclude Will as a suspect. Id at 7-8.
Approximately one year later, Lisa was murdered.
A. Mr. Johnson May File a Successive Motion for Relief Because Evidence from the
Victim's Ex-Husband Was Not Discovered Before the First Such Motion, and
Relief May be Granted on this Claim Because the Good Cause and Actual
Prejudice Requirements of MeR 6.S08(D)(3) Are Satisfied
MCR 6.502(G)(2) permits courts to adjudicate successive motions for relief from
judgment when a defendant presents "new evidence that was not discovered before the first such
motion." Mr. Johnson did not discover this new evidence from the victim's ex-husband until
September 20 II . Thus, Mr. Johnson satisfies the requirement that new evidence had not been
discovered prior to his previous motion for relief from judgment, and the Court may hear this
claim on a successive motion for relief from judgment.
Mr. Johnson's claim also warrants relief under MCR 6.508(D)(3) because he can show
actual prejudice and good cause for failing to previously discover the evidence (though the good
cause requirement should be waived, as the rule allows, given the significant possibility that Mr.
Johnson is innocent).
Mr. Johnson suffered actual prejudice when the evidence from Mr. Skinner was not
presented at trial because "but for the alleged error, the defendant would have had a reasonably
29
likely chance of acquittal." MCR 6.508(0)(3)(b)(i). The prosecution' s case relied entirely on the
unreliable testimony of Antonio Burnette and Raymond Jackson. Mr. Skinner's testimony would
have directed suspicion at Will Kindred and likely would have led to the discovery of Will's long
history of domestic abuse. And evidence that Will made Lisa fear for her safety and her life
would have made Will a prime suspect in Lisa' s murder. Given the weak evidence against Mr.
Johnson, Mr. Skinner' s testimony would have given Mr. Johnson a reasonably likely chance of
acquittal.
The Court should waive the good-cause requirement because Mr. Johnson is actually
innocent. "The court may waive the 'good cause' requirement of subrule (0)(3)(A) ifit
concludes that there is a significant possibility that the defendant is innocent of the crime. " MCR
6.508(0)(3). As described above in Part I.B.2, a significant amount of new evidence now
demonstrates Mr. Johnson's innocence. Antonio Burnette and Raymond Jackson- the sources of
the only evidence against Mr. Johnson-recanted their testimony just a few years after the trial.
Will Kindred's long history of abuse strongly suggests that he was complicit in Lisa' s murder.
And a newly discovered eyewitness has eliminated Mr. Johnson as the shooter in Lisa Kindred' s
murder. With strong evidence pointing toward a more likely suspect, and with absolutely no
evidence implicating Mr. Johnson in the crime, the Court should waive the good-cause
requirement of MCR 6.508(0)(3).
Even if the Court does not waive the good cause requirement, Mr. Johnson should still
obtain relief pursuant to MCR 6.508(0)(3) because he satisfies the good-cause requirement.
Under the theory that Mr. Skinner's testimony is new evidence warranting relief, the good cause
requirement is satisfied as discussed in Part II.B.3 below. Under the theory that Mr. Skinner' s
testimony is new evidence of ineffective assistance of counsel, good cause is established by
30
proving that trial and appellate counsel provided ineffective assistance. People v Reed, 449 Mich
375,378-79; 535 NW2d 496 (1995),
Mr. Johnson can also show good cause for not having presented this new evidence in
prior motions for relief. In his first two motions for relief, Mr. Johnson was unrepresented,
lacked resources, and had no reason to believe that Lisa Kindred's ex-husband might have
relevant information. Similarly, Mr. Johnson' s counsel for his third motion for relief-the
Wisconsin Innocence Project- had no reason to believe that Mr. Skinner had information
relevant to the case. An investigator working for the WIP even spoke with Mr. Skinner in May
2009, but this was about four months before the WIP discovered the history of domestic abuse
between Will and Lisa, and Mr. Skinner never told the investigator that Lisa feared for her safety
or that Will should be a suspect if something happened to her. Although the Wisconsin
Innocence Project later learned about the history of abuse between Will and Lisa and CJ, it had
no reason to believe that Lisa would have shared this information with her ex-husband who lived
almost 600 miles away in a different state.
Because Mr. Johnson can demonstrate actual prejudice, and because good cause should
be waived (and if not waived, is satisfied), MCR 6.508(0)(3) permits the Court to grant relief
under either of the two alternative claims discussed below pertaining to the new evidence ofMr.
Skinner.
B. The Newly Discovered Evidence from the Victim's Ex-Husband is Itself New
Evidence Warranting Relief From Judgment,
The newly discovered evidence from Lisa Kindred's ex-husband described above is new
evidence that warrants relief from judgment. When making a newly discovered evidence claim, a
defendant must show: "(I) the evidence itself, not merely its materiality, was newly discovered;
(2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable
31
diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a
different result probable on retrial." People v Cress, supra at 692 (internal citations omitted). Mr.
Johnson can show the newly discovered evidence from Charmous Skinner, Sr. satisfies these
requirements.
1. The Evidence from the Victim's Ex-Husband, Not Merely Its Materialitv,
Is Newly Discovered
For evidence to be newly discovered, the defendant and trial counsel must not have been
aware of the existence of the evidence at trial. See People v Dickson, 217 Mich App 400, 409-10;
552 NW2d 663 (1996). As already explained, Mr. Johnson did not learn about the new evidence
from Charmous Skinner, Sr. until September 20 II.
2. The Evidence from the Victim's Ex-Husband Is Not Cumulative
The newly discovered evidence from Charmous Skinner, Sr. is not cumulative. Evidence
is typically deemed cumulative when it affirms evidence of a simi lar type already presented at
trial. See People v Nixon, No. 266033 (Mich App, 3/1/07) at *I (Ex. E). No party presented any
evidence at trial that even hinted at Lisa Kindred's fear of her husband, Will. In her conversation
with Charmous Skinner, Sr., however, Lisa explicitly stated that Will made her fear for her own
safety and the safety of her children. Lisa's statement that Will should be a suspect if anything
ever happened to her strongly suggests that she even feared for her life. No party presented this
type of evidence at trial. Thus, this newly discovered evidence is not cumulative.
3. Evidence from the Victim's Ex-Husband Was Not Discoverable and
Producible at Trial with Reasonable Diligence
Even with reasonable diligence, the testimony from Mr. Skinner was not discoverable
and producible at trial. "Reasonable diligence" in an investigation is judged by whether trial
counsel was aware of the facts necessary to prompt a more thorough investigation. See, e.g. ,
32
Chapin v Dorey, No. 275666 (Mich App, 2/3/09) at *5-6 (Ex. E). Mr. Johnson' s trial counsel
was not aware of any facts that would have prompted him to speak with Mr. Skinner. There were
no facts available at trial that would have made Mr. Skinner a relevant witness. And no amount
of diligence would have caused Mr. Johnson' s trial counsel to believe that Mr. Skinner had
information relevant to Mr. Johnson's defense.
4. The Evidence from the Victim's Ex-Husband Makes a Different Result
Probable on Retrial
Whether the newly discovered evidence would make a different result likely at trial is a
question about the totality of all evidence in light of the new evidence presented. See, e.g. People
v Jones, supra at *2 (citing Cress, supra at 692) (Ex. E). The weight of the new evidence mllst
be taken as a whole when deciding whether it would have affected the ultimate outcome of the
trial. Kyles, 514 US at419.
7
The evidence against Mr. Johnson was purely circumstantial. As described in detail
above in Part LB. I, the prosecution's case rested entirely upon the wandering, contradictory, and
at times incoherent testimony of 14-year-old Antonio Burnette, as well as the ambiguolls
testimony of Raymond Jackson, who testified that he was threatened by police and who was
highly impaired by mental illness, medication, drugs, and alcohol the night of the murder. These
two witnesses prompted this Court to state that the "key witnesses are Jackson and Barnett [sic],"
and that their testimony was "the most important evidence we received. " Trial 1/12/00 at 24,25,
28.
Mr. Skinner's testimony would have been exculpatory to Mr. Johnson, and directed
suspicion where it was most warranted-at Will Kindred. With knowledge of Lisa' s fear of Will
and Will's prior abuse CJ, trial counsel likely would have been alerted to Will ' s long history of
7 See footnote 6, supra.
33
domestic abuse. For example, less than two years before the murder, on October 11, 1997, Will
physically assaulted Lisa in their home. (Ex. G1 to MRJ, 11/21/09: Roseville Police Report o.
97031038). During the assault he repeatedly told Lisa that he would kill her and the whole
family. /d. Lisa drove to the police station with her children, where she reported the incident. /d.
She also told police about two instances in which Will had beaten CJ. /d. Roseville police
responded to numerous other incidents involving threats and arguments between Will and Lisa,
Will's abuse ofCJ, and Will's threats of suicide if Lisa left him. (Exs. 03, G6 and G8 to MRJ,
11/21/09: Roseville Police Report Nos. 97014732,97033793,97012239). In 1998, a little more
than a year before her murder, Lisa filed for divorce. (Ex. K to MRJ, 11/21/09: Lisa Kindred
Divorce Compl.). In the complaint, Lisa stated that throughout the marriage, Will abused her and
CJ verbally, physically, and emotionally. Id. After filing for divorce, Lisa petitioned for a
personal protection order against Will. (Ex. L to MRJ, 1l/21/09: Lisa Kindred PPO). Lisa asked
in the petition that the order be entered without prior notice to Will and without a hearing to
reduce chances of possible retaliation by Will. Id. With Mr. Skinner's testimony, in conjunction
with the long history of abuse, Mr. Johnson could have directed suspicion at Will Kindred.
With the spotlight properly on Will Kindred, the prosecution's case against Mr. Johnson
would have stood on much weaker ground. The already questionable testimony of Burnette and
Jackson would have been cast even further in doubt. Mr. Skinner' s testimony also would have
called into question Will Kendrick's purported reason for being in the Bewick neighborhood late
at night. Following a night at the movies, he took his family, including a two-year old and a 10-
day old, to an area he knew to be dangerous. He left his family alone in a van, on a dangerous
block, well after midnight, purportedly to discuss the purchase of a motorcycle. Even after Lisa
implored Will to come back to the car so they could leave, Will remained inside the house while
34
his family waited alone outside. What at first appears to be a misguided decision to venture into a
dangerous area late at night becomes much more suspicious when viewed in light of the new
evidence that would be provided by Mr. Skinner' s testimony. Mr. Skinner's testimony suggests
the late-night trip to Bewick was really a calculated plan executed by a man who had at multiple
times threatened to kill Lisa. Without Mr. Skinner's testimony to help him at trial, Mr. Johnson
had no way to argue what has since become clear-Will Kindred should have been the prime
suspect in Lisa's murder.
When viewed in light of all the evidence, Mr. Skinner' s testimony makes a different
result probable at the original trial and on retrial. The totality of the evidence against Mr.
Johnson consisted of two witnesses who, when they were not giving ambiguous or contradictory
testimony, actually revealed facts beneficial to Mr. Johnson. Portions of Antonio Burnette's
testimony demonstrate that Burnette was with Mr. Johnson at the time of the murder. Trial
l/ll/OO at 32-39) (testifying that he and Mr. Johnson were together when they saw ambulances
at the gas station). And Raymond Jackson testified that he never heard Mr. Johnson talk about
hurting anyone or being involved in a shooting.
8
Trial 1/11/00 at 100, 106. Given the new
evidence presented in this motion, the totality of the evidence at trial would have consisted of:
(I) the testimony of Burnette and Jackson; (2) the testimony ofCJ Skinner, an eyewitness who
would have testified that Mr. Johnson was not the man who shot his mother; and (3) the
testimony ofMr. Skinner, which would have provided a new suspect in Lisa's murder after CJ
Skinner eliminated Mr. Johnson as a suspect. It would have been powerful evidence that not only
was Mr. Johnson innocent, but that Will Kindred, or someone working for him, was responsible
for Lisa's murder.
In addition, both witnesses have since recanted and would not stand by their initial testimony at retrial.
35
Therefore, the new evidence of Mr. Skinner's testimony satisfies the four-part test for
new evidence warranting relief from judgment and a new trial.
C. In the Alternative, the Newly Discovered Evidence from the Victim's Ex-
Husband Establishes that Mr. Johnson Received Ineffective Assistance of
Counsel.
If the Court finds that Mr. Skinner's testimony was discoverable at the time of trial, then
Mr. Johnson argues in the alternative that trial and appellate counsel's failure to previously
discover and present the testimony was constitutionally ineffective.
The Sixth and Fourteenth Amendments guarantee a defendant the effective assistance of
counsel both at trial and on direct appeal as of right. Strickland v Washington, supra; Evitts v
Lucey, supra. To establish ineffectiveness, a defendant must demonstrate that counsel's
performance fell below an objective standard of reasonableness and that the representation so
prejudiced the defendant as to deprive him of a fair trial. Strickland v Washington, supra at 669.
To show prejudice, the defendant must demonstrate a "reasonable probability" that the result of
the proceeding would have been different absent counsel's errors. Strickland v Washington,
supra at 694.
[fthis Court finds that trial or appellate counsel could have discovered Mr. Skinner's
testimony, then the failure of trial and appellate counsel to do so was objectively unreasonable.
Failure to investigate and present exculpatory evidence is conduct that renders representation
ineffective. See Wiggins v Smith, 539 US 510; 123 S Ct 2527; 156 LEd 2d 471 (2003); People v
Grant, 470 Mich 477, 487-88, 493; 684 NW2d 686 (2004). Thus, if this Court finds that the four-
part test for newly discovered evidence is not met because a reasonably diligent attorney would
have contacted Mr. Skinner and presented his testimony, it must follow that Mr. Johnson's trial
and appellate counsel were objectively unreasonable for failing to do so.
36
As already explained, the absence ofMr. Skinner's testimony at trial prejudiced Mr.
Johnson. Given the weak evidence against Mr. Johnson, and with the inclusion of Mr. Skinner' s
testimony, there is a reasonable probability that the result at trial would have been different, or
that he would have succeeded in his direct appeal. Because Mr. Johnson has satisfies both prongs
of Strickland, he is entitled to relief from judgment and a new trial.
CONCLUSION
For all of these reasons, Justly Johnson respectfully requests that this Court hold an
evidentiary hearing on the claims presented in this motion for relief from judgment and, after that
hearing, vacate his judgment of conviction and order a new trial.
Dated: December 7, 2011
Respectfully Submitted,
MICHIGAN INNOCENCE CLINIC and WISCONSIN INNOCENCE PROJECT
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Byron Lichstein (Wis . Bar No.1 048483)
Attorney for Defendant
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David A. Mor (P45353)
Attorney for Defendant
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Christiana Schmitz
Student Attorney for Defendant
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Bridget McCormack ( 5
Attorney for Defendant
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Attorney for Defen' ant
37