Sex Offender Registry Defendant Can Pursue DNA Test To Try To Clear Himself, Massachusetts High Court Rules

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A man who pleaded guilty to sexually assaulting a woman in Fitchburg in 1994 can pursue a DNA test of evidence from the scene to try to prove he didn’t do it, the Massachusetts Supreme Judicial Court has ruled.

Don Earl Johnson, now 53, has done time in prison in Mississippi and Florida for failing to register as a sex offender in connection with the guilty plea he entered in Massachusetts nearly 25 years ago, before the creation of sex offender registries.

In February 2012, Deval Patrick, then governor of Massachusetts, signed a bill allowing for post-conviction DNA tests.

Massachusetts General Laws Chapter 278A, Section 2 states in part:

A person may file a motion for forensic or scientific analysis under this chapter if that person: (1) has been convicted of a criminal offense in a court of the commonwealth; (2) is incarcerated in a state prison, house of correction, is on parole or probation or whose liberty has been otherwise restrained as the result of a conviction; and (3) asserts factual innocence of the crime for which the person has been convicted. 

The Worcester District Attorney’s office argued that Johnson wasn’t entitled to a DNA test because he was not in prison as a direct result of his Massachusetts conviction, but rather for failing to register as a sex offender years later, which was only indirectly related to the Massachusetts conviction.

But the state’s highest court ruled Wednesday that the connection between his conviction and his request to test evidence is close enough under state law.

“Where a moving party is incarcerated for failing to register as a sex offender, his or her liberty has been restrained ‘as a result of’ a conviction but for which he or she would not be incarcerated,” wrote Justice David Lowy for the court, adding that Johnson therefore meets the requirement to pursue a DNA test.

The decision overturns a trial court judge’s ruling.

The high court remanded the case to Worcester Superior Court for a hearing to determine whether Johnson meets all the requirements set out in state law to get a DNA test.

In November 1994, Johnson pleaded guilty to indecent assault and battery and assault and battery after police arrested him in connection with a reported rape.

On April 6, 1994, a white woman told Fitchburg police that a black man had approached her in a bar earlier that day asking her if she wanted “some rock” – a slang term for crack cocaine – and that she said yes and followed him outside the bar up the street and around the corner. There, she said, a second black man and the first man both demanded that she perform a sex act, and when she said no they began pushing her, knocking her to the ground. She told police the first man raped her.

Hospital personnel examined the victim and compiled a rape kit, but it appears that police never had the physical evidence tested, according to court papers.

A bartender who told police that a black man had left the bar with the victim that day later identified Johnson as the man. According to prosecutors, Johnson acknowledged to police he had asked the victim if she wanted “some rock” and left the bar with her, but said he refused her when she tried to pay him with a check. He also at one point acknowledged the presence of a second man on the street, whom he said he didn’t know.

But police told Johnson they had found two checks from the victim on the floor of the bar and none at the scene of the attack on Allen Place, a seedy street on an incline which in recent years has had trees on one side and the back of an industrial building on the other. They also found two stains on the ground they took to be from bodily fluids.

“When police told the defendant that they found two checks in the bar and nothing on Allen Place, the defendant stated that he was not going to tell them what happened. … The defendant then ended the interview,” wrote prosecutors earlier this year in a brief, signed by assistant district attorney Donna-Marie Haran and Joseph D. Early Jr., the Worcester district attorney.

The state Supreme Judicial Court’s decision does not comment on the relative strength of the prosecution’s case against Johnson.

In his decision this week, Justice Lowy quoted Johnson on why he pleaded guilty to a reduced charge of indecent assault and battery:

“I pleaded guilty even though I was innocent because my attorney advised me that I already had [eight] months credit, that the plea would allow me to be out of jail ‘right away,’ that the risk of going to trial was a ‘life sentence,’ and that this was the case of a white woman versus a black man and a jury would not believe a black man. My attorney never shared the police report with me and I was unaware at the time of the plea that there might be material available for DNA testing.”

Johnson’s lawyer pointed out in a court brief that Johnson has never been convicted of another sex crime.

The appeal with the Massachusetts Supreme Judicial Court was filed in November 2018. According to the Federal Bureau of Prisons, Johnson was released from federal prison about six weeks ago, on July 12.

Johnson’s lawyer could not immediately be reached for comment on Thursday, August 22.

A spokesman for the Worcester District Attorney’s office sent a statement by email to New Boston Post:  “The defendant, Don Earl [Johnson], filed a motion in Worcester Superior Court which the Commonwealth opposed and which the Superior Court denied.  The defendant, thereafter, appealed the decision denying his motion and the Supreme Judicial Court overturned that decision and, in doing so, clarified the law. The District Attorney’s Office will have no further comment.”

The case is Commonwealth vs. Don Earl Johnson. It was decided Wednesday, August 21.

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