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Critiques of the Judiciary
“The purpose of a jury is to guard against the exercise of arbitrary power ... and [is] in preference to the ... conditioned or biased response of a judge.”

-- Justice Byron White
Taylor v. Louisiana, 49 US 522 (1975)

Judicial Dismissal of Jury Verdicts

Another Example of Overreaching Judicial Authority
In 1991, the U.S. Supreme Court held [Payne v. Tennessee, 501 US 808 (1991)] that a victim impact statement in the form of testimony was allowed during the sentencing phase of a trial, and that such statements did not violate the Constitution and could be ruled as admissible in death penalty cases.1  In the case described below, the victim's impact statement, delivered by the widow of a slain sheriff's deputy, was among the evidence that moved the jury to impose the death penalty on the deputy's admitted killer.

Federal District Judge Ginger Berrigan did not object to the victim impact evidence when it was presented.  However, once the jury reached its unanimous decision, she declared a mistrial on "constitutional" grounds.  Berrigan's apparent sympathy for the confessed killer led her to exercise her authority to invalidate the decision of a legally-constituted trial jury, and raises concern about her fitness to serve on the federal bench.

“[T]he testimony of this palpably suffering widow transformed permissible victim impact evidence into constitutional error.”
-- Judge Helen Ginger Berrigan

Judge overturns penalty in killing of cop; Errors necessitate new phase, she says
May 21, 2010

A federal judge has overturned a jury's recommendation that John Wayne Johnson be executed for killing an off-duty Orleans Parish Criminal Sheriff's Office deputy during a botched Algiers bank robbery in 2004, finding that "the interest of justice" would be served by granting him a new trial that would decide only his penalty.

U.S. District Judge Ginger Berrigan leaves intact Johnson's conviction for fatally shooting Lt. Sidney Zaffuto, 50, during the Jan. 8, 2004, armed robbery attempt of the now-closed Iberia Bank branch at 4626 Gen. DeGaulle Drive. But she said trial errors and the cumulative effect of several other errors by the prosecutors, including a finding that the government improperly withheld information from the defense attorneys, and errors of her own require a new penalty phase.

If the ruling stands, a jury would be selected and hear testimony to determine Johnson's punishment.

In her 69-page ruling released Tuesday, Berrigan, who was nominated to the federal bench by President Clinton, also wondered whether the crime was even a capital offense.

"The slaying of Deputy Zaffuto was tragic and reprehensible," Berrigan wrote. "Nevertheless, it occurred in the chaotic circumstance of an aborted robbery in which the defendant himself was shot. Johnson is certainly legally responsible for what occurred, but this slaying lacks the horrific circumstances of many other capital cases that involve substantial premeditation to murder, as well as torture or other significantly callous and deliberative conduct."

U.S. Attorney Jim Letten, whose prosecutors are handling the case, could not be reached for comment Thursday. Johnson's defense team applauded the decision.

“Berrigan would do ANYTHING to overturn a death penalty.  She loves criminals.  She coddles and reveres them. ... My sincere condolences to the Z[a]ffuto family for hav[ing] your loved one killed then justice killed by a[n] ideologue judge. ...” 2

(Presumed to be Sal Perricone,
Assistant U.S. Attorney)3
May 21, 2010

"Her ruling recognizes the need for decency and restraint in capital cases," said Ben Cohen, who joined the defense team of Julian Murray and Ron Rakosky to seek a new trial.

The May 2009 trial itself fell to the punishment to begin with, according to Johnson's attorneys. Johnson, 58, has always taken responsibility for Zaffuto's death, saying the killing was accidental.

He was willing to plead guilty and spend the rest of his life in prison, the defense attorneys say. But federal prosecutors argued that Johnson intentionally killed the deputy and went to trial seeking the death penalty, according to the defense.

"John Johnson is still prepared to accept that he spend the rest of his days locked up in prison without the possibility of ever being released," Murray said. "We, as his attorneys, hope that the government will come to see in the interest of justice that a life sentence is a sufficient and appropriate resolution of this case."

Joseph Smith of Algiers also is accused in Zaffuto's death and is awaiting his trial, but his attorneys argue that he is mentally disabled and legally exempt from capital prosecution. A third man, Herbert Jones of Gretna, pleaded guilty but died last year before his sentencing.

In seeking a new trial, Johnson's attorneys argued that the prosecutors committed 18 errors. Berrigan rejected most of them but she sided with the defense on allegations such as that the prosecutors improperly inflamed the jury's passions for a death penalty in closing arguments.

Among her findings of error, Berrigan noted a letter that Zaffuto's widow, Shirley Zaffuto, read to the jury during the penalty phase, in which she calls Johnson "evil" and him and his cohorts "selfish, greedy criminals" who "terrorized innocent bank employees and customers." The result, Berrigan found, was that "the government exposed the jury to clearly inadmissible and highly emotional evidence, appealing powerfully to the sympathies of the jury."

Berrigan also found that prosecutors erred in allowing Shirley Zaffuto to testify during the penalty phase with a teddy bear dressed in an Orleans Parish deputy's uniform.

At the time, Berrigan denied a mistrial request but looking back, she said, she found "the testimony of this palpably suffering widow transformed permissible victim impact evidence into constitutional error."

Copyright 2010, The Times Picayune
Publishing Corporation


  1. "Victim Impact Statement," Wikipedia, the free encyclopedia, http://en.wikipedia.org/wiki/Victim_impact_statement, accessed 07/02/10.

  2. legacyusa [Comment], re: Paul Purpura, "Death-penalty deliberations may have been skewed by trial errors, judge finds," nola.com, May 21, 2010, http://www.nola.com/crime/index.ssf/2010/05/death-penalty_deliberations_ma.html, accessed 03/17/2012.

  3. Paul Rioux and Gordon Russell, "Letten says aide admits sniping under pen name; Sal Perricone is unmasked in nola.com controversy," The Times-Picayune, New Orleans, March 16, 2012, National, p. 1.

From: Paul Purpura, "Judge overturns penalty in killing of cop; Errors necessitate new phase, she says," The Times Picayune, New Orleans, May 21, 2010, Metro, p. B 3.  Paul Purpura can be reached at ppurpura@timespicayune.com.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Deputy's killer is sentenced to death; Jury is unanimous in federal court case
May 28, 2009

A jury sentenced John Wayne Johnson to death Wednesday for killing an Orleans Parish sheriff's deputy during a botched Algiers bank robbery in 2004, the second death penalty imposed in New Orleans federal court since capital punishment was restored for federal crimes in 1988.

The jury of eight women and four men deliberated less than three hours before reporting the unanimous sentence Wednesday afternoon.

The same jury had convicted Johnson, 56, on May 19 of killing Lt. Sidney Zaffuto, 50, in a Jan. 8, 2004, gun battle inside the former Iberia Bank at 2436 Gen. de Gaulle Drive, where Zaffuto was working an off-duty security detail.

Clutching a teddy bear dressed as a police officer, Zaffuto's widow, Shirley Zaffuto, broke down in tears as U.S. District Court Judge Ginger Berrigan read the sentence. After embracing prosecutors, Zaffuto was escorted from the courtroom by relatives, who declined to comment.

"Nothing can undo the tragedy that occurred in that bank when an innocent man lost his life, but we achieved justice today," said U.S. Attorney Jim Letten, whose office had rejected Johnson's pretrial offer to plead guilty in exchange for a life sentence.

Johnson, who cannot walk because of a bullet that remains lodged in his leg from the shootout, displayed no outward emotion.

"It's obviously a big blow to him, but he didn't seem surprised because he saw how fast the jury came back," said Julian Murray, one of Johnson's attorneys.

About 10 of Johnson's relatives declined to comment as they sat in silence long after everyone else had left the courtroom.

'It was a surprise'

Defense attorneys said they were surprised by the sentence because the jury rejected allegations that Johnson had killed a Harvey restaurant owner in 1974, a key aggravating factor that prosecutors had cited in seeking the death penalty.

"It was a surprise. That's all I can say," Murray said. "The prosecution kept talking about how he had committed two murders and that's why he should be put to death."

The jurors, escorted from the courtroom by U.S. marshals, found sufficient proof of several other aggravating factors, including Johnson's three previous felony convictions on robbery, burglary and weapons charges.

In their closing arguments Wednesday morning after the trial's five-day penalty phase, prosecutors depicted Johnson as a hard-core career criminal who was beyond rehabilitation.

"We are asking for the death penalty not because he deserves it, but because he has earned it," Assistant U.S. Attorney Brian Marcelle said.

Johnson's attorneys said he was raised in poverty by a single mother and had committed robberies to feed a heroin addiction but never intended to kill anyone.

"The death penalty is reserved for the worst of the worst, and this man is not the worst of the worst," Murray said. "There is still a lot of good in him."

One fatal shot

Johnson and two other masked gunmen burst into the bank lobby and disarmed Zaffuto while holding a gun to his head, according to testimony.

A second deputy opened fire on the robbers, and Johnson fired five shots, one of which killed Zaffuto, a St. Bernard Parish native who was born with a serious heart defect and became one of the state's first successful open-heart surgery patients at age 5.

Prosecutors presented testimony that it wasn't the first time Johnson had killed someone during a robbery. Two alleged accomplices said Johnson, who was never prosecuted in the case, gunned down Joseph Gennaro in 1974 during a hold-up at Ruiz's Restaurant in Harvey.

But defense attorney Ron Rakosky said the two statements were riddled with inconsistencies on several key issues, including the number of robbers and where in the restaurant Gennaro had been shot.

He also emphasized that police reports described the killer as 6 feet 4 inches tall, half a foot taller than Johnson.

"Who do you believe? How can you believe anything?" Rakosky said. "All you have is the testimony of two convicted felons seeking leniency. There's no DNA. There's no fingerprints. There's no nothing."

Defense attorneys openly expressed their hope of persuading just one juror to hold out against the death penalty, which requires a unanimous decision.

"It takes all of you to sentence him to death, but it only takes one of you to save him," Murray said. "He deserves punishment, but he doesn't deserve to die."

Prosecutor Mark Miller called on jurors to summon the courage to vote their consciences.

"Don't feel guilty about doing your duty in a death penalty case," he said. "Don't be the water that washes his hands clean of blood."

Appeal will be filed

Former New Orleans police officer Len Davis is the only other person to be sentenced to death on federal charges in New Orleans since federal capital punishment was restored more than 20 years ago. Davis, who remains on death row, is appealing his 2000 conviction for ordering a hit man to kill a New Orleans woman after she filed a brutality complaint against him.

Johnson's attorneys said they plan to appeal on several grounds, including an assertion that the federal death penalty is being employed unconstitutionally in New Orleans because all 42 defendants indicted on capital offenses were either black or Hispanic.

In all but a few of the cases, the defendant pleaded guilty and received a lesser sentence, or prosecutors chose not to seek the death penalty.

Murray ended his closing argument Wednesday morning by imploring jurors to show mercy for his client.

"John Johnson is my friend, and I beg you, please don't kill him," he said, his voice cracking as he placed both hands on Johnson's shoulders. "Please don't kill him."

Prosecutors sought to deflect Murray's emotional plea by asking jurors to think about how Shirley Zaffuto, who never learned to drive, must ride a bicycle to run errands because her husband isn't there to give her a ride. Or how Sidney Zaffuto's teenage stepson, Andrew Medina, lost the only person he had ever called "Dad."

"If you want to shed a tear," Miller said, "shed a tear for Lt. Zaffuto's family and shed a tear for the city of New Orleans, because we lost one of our best, and we lost one of our bravest."

Copyright 2009, The Times Picayune
Publishing Corporation

From: Paul Rioux, "Deputy's killer is sentenced to death; Jury is unanimous in federal court case," The Times-Picayune, New Orleans, May 28, 2009, National, p. 1.  Paul Rioux can be reached at prioux@timespicayune.com.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Killer linked to slaying 30 years earlier - Evidence is part of death-penalty push
May 21, 2009

Setting out to persuade a jury to hand down a death sentence, federal prosecutors said Wednesday that John Wayne Johnson, convicted Tuesday of killing an Orleans Parish deputy during a botched Algiers bank robbery in 2004, also murdered a Harvey restaurant owner 35 years ago.

Johnson, 56, gunned down Joseph Gennaro inside Ruiz's Restaurant at Peters Road and Fourth Street on May 3, 1974, during a failed armed robbery and left him to die, Assistant U.S. Attorney Mark Miller told the jury at the start of the case's penalty phase.

A federal jury Tuesday found Johnson guilty of killing Lt. Sidney Zaffuto, 50, during the Jan. 8, 2004, armed robbery attempt at the former Iberia Bank at 2436 Gen. de Gaulle Drive. For that and other crimes, including Gennaro's death, Miller and Assistant U.S. Attorney Brian Marcelle argue, Johnson deserves the death penalty.

"It's the government's request without hesitation," Miller told jurors. "It's the government's request without reservation."

Johnson denies killing Gennaro, as his attorneys began their fight to prevent their client from dying by lethal injection.

"He is not an evil man, and that's what the death penalty should be reserved for: people who are evil," defense attorney Julian Murray said.

U.S. District Judge Ginger Berrigan said the jury should decide next week whether Johnson should be executed or spend the rest of his life in prison.

Prosecutors allege that one of Johnson's cohorts in the 2004 bank robbery attempt, Joseph Smith, also participated in the 1974 armed robbery.

Smith, 58, of New Orleans, faces trial in Zaffuto's death in August. Prosecutors plan to seek the death penalty. A third defendant, Herbert Jones Jr., 63, pleaded guilty in 2007 but died before he could be sentenced.

Johnson's connection to the 1974 robbery attempt is based in part on allegations by Robert Goodman Jr., 55, of New Orleans, who is expected to testify against Johnson today, Miller said.

Jones told the FBI that Johnson killed Gennaro, Miller said. The FBI in turn contacted the Jefferson Parish Sheriff's Office, which "miraculously" still had a ski mask recovered during the 1974 investigation, he said.

The FBI found one hair in that mask with DNA matching Goodman's genetic profile, Miller said.

Jefferson Parish District Attorney Paul Connick Jr. agreed to let U.S. Attorney Jim Letten's office prosecute Goodman, records show.

Goodman pleaded guilty in April to a federal Hobbs Act robbery attempt charge and faces no more than 20 years in prison. His sentencing is set for July 29, records show. He is now scheduled to testify against his alleged accomplice, Johnson.

Defense attorneys Murray and Ron Rakosky said Jones and Goodman were driven to accuse Johnson of Gennaro's killing to sweeten their plea deals with prosecutors.

Prosecutors also told the jury that Johnson has convictions in Jefferson and Orleans parishes dating to 1974 for simple burglary, being a felon with a firearm and armed robbery.

The prosecutors accuse Johnson and Jones of attempting to rob the First Bank and Trust branch at 4100 Gen. de Gaulle Drive on Oct. 3, 2003 — five months before Zaffuto was killed five blocks away.

Johnson was an illegitimate child, born from a tryst his married mother had with a church deacon who disowned his offspring despite seeing him in Sunday church services, Murray said. In his teen years, Johnson battled depression, and at age 18 he had his first taste of heroin, which he purchased from Jones, he said.

That set in motion a lifelong addiction, and "that's what led to the bank robbery," Murray said.

Copyright 2009, The Times Picayune
Publishing Corporation

From: Paul Purpura, "Killer linked to slaying 30 years earlier; Evidence is part of death-penalty push," The Times-Picayune, New Orleans, National, p. 1.  Paul Purpura can be reached at ppurpura@timespicayune.com.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.










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