After a decade, retrial granted
Derrick Johnson was convicted of rape. If he doesn't get a retrial in 180 days, he'll go free.
By CARRIE WEIMAR
Published February 3, 2007
TAMPA - Ten years, ten months and 15 days into his life sentence for allegedly raping a 13-year-old girl, Derrick Johnson got a reprieve.
In a written order, U.S. District Judge Steven Merryday ruled Friday that Johnson's constitutional rights had been violated during his 1996 trial in Hillsborough Circuit Court. Johnson, 48, will be released from prison unless the government grants him a new trial within 180 days.
"The trial of Derrick Johnson was deeply flawed, pointedly imbalanced and fundamentally unfair, owing principally to denial of Johnson's well-established constitutional right to present a defense and establish his innocence," Merryday wrote.
Rochelle A. Reback, Johnson's attorney, said she was pleased by the judge's decision. While thousands of inmates petition for release each year, it is very rare that such a request is granted, she said.
"I hope the state will take a long, hard look at whether to devote additional resources toward appealing this case," Reback said.
The girl's grandmother, whose identity is being withheld by the Times because of the nature of the crime, said she doesn't want to see Johnson back on the streets.
"He poses a danger to everyone - young children, especially," she said. "My granddaughter was only 13 when this happened. She was still a child."
Assistant Deputy Attorney General Carolyn Snurkowski said her office is planning an appeal.
Tampa police said Johnson broke into the girl's home at 2:40 a.m. the night of Dec. 14, 1994. He entered her bedroom, threatened her with an umbrella and sexually battered her.
Johnson's trial attorney, Brian Donerly, painted a different picture.
He said Johnson had consensual sex with the girl in an abandoned house in exchange for crack cocaine. When Johnson didn't give her the drugs, the girl told her grandmother she was raped.
To bolster his case, Donerly noted the lack of physical evidence tying Johnson to the girl's house. No fingerprints or DNA evidence was found.
Donerly also planned to call a witness, Pernell Davis, who would testify that the girl was a prostitute and had traded sex for drugs in the past.
Prosecutors objected, citing Florida's rape shield law, which prevents a victim's sexual history from being admitted except in certain cases.
Donerly argued an exception was warranted because prosecutors had already introduced testimony about the girl's sexual history. A doctor called by the prosecution said the girl's vagina did not show signs of extensive sexual activity, and the girl testified she had had sex only once with her boyfriend. The girl also said she never used drugs.
Circuit Judge M. William Graybill, who died in 2002, sided with the prosecution and didn't allow Davis to testify. His decision was upheld by the 2nd District Court of Appeal.
But Merryday said it was a mistake.
"Any person even minimally conversant with the proper course of a trial knows that the prosecutor's direct evidence of sexual inexperience and drug use 'opens the door' to the subject," Merryday wrote.
It took jurors just 35 minutes to find Johnson guilty of armed burglary and sexual battery. His sentence of 60 years was enhanced to life in prison because of Johnson's prior felony conviction for resisting arrest, according to court records.
Since 1998, when she became an adult, the girl has been arrested on a number of charges, including felony burglary, aggravated battery, grand larceny and misdemeanor marijuana possession. None of the charges include prostitution or possession of cocaine.
The girl's grandmother said it was difficult enough to live through the trial once. She doesn't know if she could do it again.
"I don't know why he would get out," she said. "He's a dangerous, dangerous man."
Times researcher John Martin contributed to this report. Carrie Weimar can be reached at 813 226-3416 or cweimar@sptimes.com.