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For Lawyer, Confession Trumped “Consistency”

by Thomas MacMillan | Dec 7, 2012 12:01 pm

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Posted to: Legal Writes

Thomas MacMillan Photo Taped confessions contradicted eyewitness accounts. The murder weapon was connected to other crimes. A hand print at the scene didn’t match the suspects.

None of that mattered to defense attorney Larry Hopkins, because his teenage client had admitted he shot and killed a 70-year-old man.

Hopkins (pictured outside court), a New Haven criminal defense lawyer, made that justification Thursday for his representation of accused murderer Bobby Johnson in 2006 and 2007.

He did so in a basement courtroom in Rockville, where Johnson is fighting to be released from a 38-year prison sentence for a crime he insisting he didn’t commit.

Johnson, who originally confessed and pleaded guilty to killing 70-year-old Herbert Fields on West Ivy Street in Newhallville on Aug. 1, 2006,  is now suing the state for release under a habeas claim. He claims he’s being wrongfully imprisoned for the murder, that he was wrongfully convicted after police threatened and lied to him, forcing him to confess.

Attorneys for the state argue that Johnson’s case is meritless, that he’s offering no new evidence of actual innocence and that he confessed freely to the crime.

Among Johnson’s claims: He received inadequate representation in 2006 and 2007 from his court-appointed special public defender: Hopkins.

Hopkins took the stand in Superior Court in Rockville on Thursday. Unlike on most other days, the defense attorney was in court to defend himself, to defend his actions in 2006 and 2007, when he advised Johnson to plead guilty and take a 38-year sentence.

In an allegation of inadequate representation, a defense lawyer taking the stand often faces a choice. He can defend his reputation by saying he did everything he could do to try to keep his client out of jail. Or, as one expert put it, he can “fall on his sword” by admitting he mishandled the defense, thus increasing the chance his former client may win his habeas claim.

During a break in testimony Thursday, as he smoked Marlboro reds in a black trenchcoat, Hopkins said he doesn’t concern himself with such choices. He said he simply answers the questions that are put to him without trying to spin the story for his benefit or for that of his former client: “I just get up and say exactly what I did.”

Hopkins said he has no opinion on whether Johnson is innocent or not. He said his concern as a lawyer is not guilt or innocence, but whether a case is winnable—and in his view Johnson’s wasn’t. Even though another teen arrested alongside Johnson for the crime did fight the charges and was found not guilty.

Johnson, who was 16 at the time of his 2006 arrest, confessed to police twice. While there were a number of inconsistencies in the case—inconsistencies that otherwise might have been used to defend Johnson in a trial—Hopkins said he couldn’t get around the fact that Johnson had admitted on tape that he had killed the 70-year-old Fields.

As Johnson attempts to win his freedom, he’s come up repeatedly against the fact that he confessed to the murder and pleaded guilty to it. The case is an example of the staggering burden of proof facing people who claim they were coerced into confessing. Their own words can still be used against them.

Inconsistencies

Over the course of several hours of questioning Thursday from Johnson’s attorney, Ken Rosenthal (pictured), Hopkins acknowledged a number of possible holes in the 2006 case against Johnson while saying repeatedly that he had done nothing to investigate them.

Before Johnson pleaded guilty, Hopkins received police ballistics documents showing that the gun that had killed Fields had been found on the body of a man named Larry Mabery, and that that gun was also linked to another murder, on July 12, before Fields was killed.

“I get the impression, in retrospect, that Mabery was something of a homicidal maniac,” Hopkins said. He sat in the witness box in a double-breasted suit. “Had I known that at the time, I would have been more suspect of Mr. Johnson’s confession.”

As it was, Hopkins didn’t investigate the Mabery angle. He didn’t think he needed to, since Johnson had confessed to borrowing the gun from Mabery before shooting Fields. Johnson now says police told him to say that on Sept. 15, 2006, the day the lab results came back showing it was Mabery’s gun that shot Fields.

Hopkins also acknowledged he didn’t attempt to contact Johnson’s grandfather, the man police said had first turned them on to Johnson as a suspect, a man who now denies he did any such thing. Nor did Hopkins discuss the case with Diane Polan, the attorney who successfully defended Kwame Wells-Jordan, Johnson’s 14-year-old friend who was accused of helping him kill Fields.

Hopkins claimed that he was stymied again and again by Johnson. His client kept telling him he was innocent but then was “unresponsive” when Hopkins would ask why he had confessed. Johnson would just shrug, Hopkins said.

So when he learned that the handprint of Richard “Bo Bo” Benson, Mabery’s cousin, was found on the passenger side of the car in which Fields was shot, Hopkins was “mildly” surprised, but didn’t discuss it with Johnson.

“I concluded that Mr. Johnson had been protecting [Benson] for some reason,” Hopkins said.

In one of several other inconsistencies, Johnson’s and Wells-Jordan’s confessions indicated that they had run north on Dixwell after the crime, while several witnesses at the scene said the perpetrators had run south.

“I never had any indication from him or anybody else that these statements were coerced in any way,” Hopkins said

Consistencies

Under cross examination from Adrienne Maciulewski, attorney for the state, Hopkins said he would have handled the defense differently if he’d had any indication from Johnson that his confession had been coerced or that the police had told him what to say.

After dealing with inconsistencies of the case, Maciulewski changed tack. “I want to talk about some of the consistencies.”

Johnson’s confession had an accurate description of the car Fields was found in, a Chrysler. He gave an accurate description of the gun, a .45 caliber Smith & Wesson pistol. He also described the fact that Fields was killed by a single shot to the neck. He said he was wearing a red shirt, and witnesses said the killer had worn red. His appearance matched witness descriptions.

Not only that, he signed all the documents indicating he understood and waived his rights when he gave his taped confessions, and when he entered his guilty plea that he stated that he had not been coerced into doing so.

How did that evidence compare with the inconsistencies in the case? Maciulewski asked.

“Despite consistencies or inconsistencies, the most crucial point in the whole case was he said he killed him,” Hopkins said.

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