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State justices stay inmate's execution, grant another a hearing

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The Associated Press

Published: May 21, 2009

TALLAHASSEE - The Florida Supreme Court today ruled in favor of two convicted killers under active death warrants, granting a stay of execution for one and a new appeal hearing for the other.

The justices stayed next Wednesday's scheduled execution of David Eugene Johnston, 49, who was convicted of stabbing and strangling Mary Hammond at her Orlando home in 1983.

The court ordered authorities to conduct DNA testing of Johnston's blood-covered clothing and shoes and the victim's fingernail clippings and report on the results within 90 days. The fingernails may contain bits of flesh and blood that the 84-year-old woman scratched from her attacker's body.

The high court also returned an appeal by Richard Marek to Circuit Court in Broward County for rehearing. Marek, 47, previously received a stay. He had been scheduled for execution May 13.

Marek was convicted of kidnapping and strangling Adella Marie Simmons after picking her up on Florida's Turnpike where her car had broken down in 1983.

The rulings came a day after the justices heard oral argument in both cases.

Johnston's lawyer, Todd Doss, told the high court that his case "cries out for DNA testing" because it may exonerate his client.

Justice Jorge Labarga said the DNA of whoever killed Hammond was probably under her fingernails.
"Why not test it and then we'll be sure?" Labarga asked.

Assistant Attorney General Kenneth Nunnelley said the testing was unnecessary because other evidence against Johnston was too strong.

The justices ruled Circuit Judge Peter Weinstein, who denied Marek's appeal, should have disqualified himself because of improper contacts between his staff attorney and the state's lawyer in the case.

They sent the appeal back to the 17th Circuit with orders for another judge to hold a hearing on Marek's claim for a reduced sentence because his co-defendant, Raymond Wigley, received a life term.

His claim of disproportionate sentencing was based on newly obtained statements from three witnesses who said Wigley admitted to them that he, not Marek, strangled Simmons after both men abducted her. Wigley was killed by another inmate in 2000.

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