Alleged Juror Bias

One of the most prominent claims of Jones’ supporters is that racism played a role in his conviction and sentence; however, both the trial court and the OCCA, have found otherwise.  One of the questions in the trial judge’s report is whether the defense raised race as an issue at trial.  Judge Bass responded that trial counsel did raise a Batson challenge, but “[t]here were no allegations as to race prejudice as to prosecution of the defendant or witnesses.  Trial counsel did object to one victim impact statement as being racially prejudicial and the statement was redacted.”  The next question on the report is whether race “otherwise appear[ed] as an issue in the trial?”  Judge Bass said it did not.  In it’s mandatory sentence review, the OCCA stated, “We find no evidence that race played any role in the jury’s sentencing determination.”  DA Op. at 551.

There are three primary facets to Jones’s race argument:

1. He asserts that an arresting officer referred to him using a racial epithet.  There is no evidence Jones had made this allegation before The Last Defense.

2. Jones claimed in one of his certiorari petitions that the prosecutors in his case “took every opportunity to racialize Mr. Jones by appealing to the deeply entrenched and stereotypical association between blackness and dangerousness.”  Pet. at 9.  Jones then pointed to only one alleged “example.”  Pet. at 9-10.  Jones noted the prosecutor said Jones was “out prowling the streets”, thereby appealing to vicious racial stereotypes, in spite of the fact that Jones had no prior violent felony convictions.  Pet. at 10.  The truth is that the word “prowl” is a very apt description for what Jones and Jordan did when they drove around until they found a person to rob (Tr. VIII 146-47, 150-55).  After the two spotted Paul Howell’s Suburban, they followed him to a restaurant, parked by the exit to wait for him to leave, and then followed him home (Tr. VIII 155-62).  Jordan let Jones out before they arrived at Howell’s house, at which time Jones ran up to Howell and shot him (Tr. IV 104; Tr. VIII 164).  It is far from inaccurate to say that Jones stealthily searched for his prey.  Pet. at 10 n.10 (quoting Oxford English Dictionary, definition)

3. Jones claims a juror harbored racial animus against him.  Jones claimed in his direct appeal that Juror V.A. overheard Juror J.B. say, before second stage deliberations, that they should “place him in a box in the ground for what he has done.”  Jones, 126 P.3d at 535 n.3.  Judge Bass and the parties questioned Juror V.A. at length and she made no allegation that Juror J.B., or any other juror, used a racial epithet to describe Petitioner (Tr. XII 95-103; Tr. XIII 73-77).  Then, in 2017, Jones filed a post-conviction application based on an allegation by Juror V.A. that she heard an unnamed juror (who must be Juror J.B. because she states that she went to the trial judge about this alleged incident) say “they should have just take[n] the n***** out and shot him behind the jail.”  The only “evidence” Jones provided the OCCA was a screenshot of an exchange on Facebook which purported to be between V.A. and an investigator for Jones.  The OCCA found the claim procedurally barred but also made the following findings:

The only perceivable difference between Jones’ original claim and his current claim is Juror V.A.’s new assertion that Juror J.B. made a racial epithet.  Juror V.A.’s recollection of what was said by J.B. on February 27, 2002, was no doubt better on that day when she reported it to the trial court than it is now.  Moreover, Juror V.A.’s concern with Juror J.B.’s alleged comment was obviously significant enough that she felt compelled to report it to the trial court.  Thus, it is highly improbable that Juror V.A. neglected to add, during the trial court’s investigation into the matter, that J.B. used a clearly offensive racial epithet or for that matter, failed to mention that another juror [assuming J.B. was the juror referred to on Facebook] engaged in similar conduct.

When Jones submitted his commutation application in October of 2019, he provided the Board with a copy of the purported Facebook exchange.  However, on April 14, 2020, Jones supplemented his application with additional exhibits.  One of those exhibits is an affidavit from Juror V.A. 

The affidavit confirms the authenticity of the Facebook messages.  V.A. indicates that she told the bailiff about the alleged comment and also reported it to the judge.  V.A. also states that the comment was “said aloud in a group setting.”  At trial, Judge Bass questioned every juror—regarding V.A.’s report at that time—and none reported hearing a juror express any opinion as to the appropriate punishment.  DA Op. at 535.  Further, V.A. asserts that she “paraphrased” the comment, but fails to explain why she omitted the racial epithet she now claims was used.  This is particularly striking because V.A. states that she “felt this juror had a bias that needed to be brought to the court’s attention” and that she “felt that there was racism on the jury[.]”

Witness Credibility

It was mentioned in The Last Defense that Ladell King and Kermit Lottie received consideration from the State for their testimony.  Jones’ jury was aware of almost all of this information.  Jones, 128 P.3d at 541. There was one item—a letter to federal courts where Lottie had pending charges from a detective attempting to assist Lottie with his upcoming sentencing due to his assistance in Jones’ case—that was not disclosed to the jury. Id.  However, the jury was aware of the pending charges, and Lottie had testified to the same facts before federal charges were even filed, demonstrating that his testimony at trial was unaffected by those charges. Id.  The Oklahoma Court of Criminal Appeals concluded the evidence against Jones was overwhelming and he “received a verdict worthy of confidence.”  Id. at 541-42.

Although Jordan is presently out of prison, he was sentenced to life imprisonment with all but the first 30 years suspended. (Tr. VIII 93-94).  The jury was aware of his plea deal. (Tr. VIII 93-95).  Jones now claims that, “What I didn’t know at the time [Jordan] testified against me was that Chris already had a secret deal with the prosecution to serve far less than 30 years in prison[.]”  Ms. Lavenue (and likely Ms. Elliott) will sign affidavits swearing there was no agreement with Jordan beyond what the jury was told. The 85% rule went into effect on July 1, 1999. 21 O.S. 13.1.  However, it applied only to crimes committed on or after March 1, 2000.  21 O.S. 12.1.

Finally, an affidavit by McKenzie signed in 2008 but given to the Board in April states that he inadequately cross-examined Jordan.  The OCCA found otherwise:

Counsel did cross-examine Jordan at length, pointing out inconsistencies in his story and otherwise attacking his credibility. Jones’ arguments on appeal are nothing more than complaints about exactly how that impeachment should have been accomplished.  Jordan admitted in guilt-stage cross-examination that many of the details he had previously given to police and his own attorney were false; Jones’ defense counsel methodically went over many of these untruths.  Jordan also admitted, on cross-examination, that he had previously lied about his involvement in this case to help himself out.  In the punishment stage, trial counsel cross-examined Jordan again about his plea negotiations, and how he stood to gain from helping the State convict Jones.  The fact that counsel did not ask every question Jones is now able to formulate on appeal is not proof of deficient performance.

DA Op. at 546-47.

The Witnesses to Whom Jordan Allegedly Confessed

Another oft-repeated claim is that Jones’ trial attorneys failed to call two witnesses who were in jail at the same time as Jordan and to whom Jordan allegedly confessed.  On direct appeal, Jones claimed counsel should have called Emmanuel Littlejohn to testify that Jordan said Jones was not involved in the murder at all.  Jones learned about this potential evidence when he met Littlejohn in jail.  2/11/2003 Rule 3.11 Motion to Supplement Direct Appeal Record with Attached Exhibits and/or for an Evidentiary Hearing (OCCA No. D-2002-534) (“3.11”), Ex. 13.  Littlejohn had been convicted of murder and sentenced to death, but the OCCA reversed his death sentence.  Littlejohn v. State, 989 P.2d 901 (Okla. Crim. App. 1998).  Thus, Littlejohn was in the Oklahoma County Jail for his re-sentencing when Jones was awaiting his trial. 

David McKenzie thoroughly investigated this potential evidence.  Littlejohn took a polygraph, which was inconclusive.  2/11/2003 Rule 3.11 Motion to Supplement Direct Appeal Record with Attached Exhibits and/or for an Evidentiary Hearing (OCCA No. D-2002-534), Ex. 7 at 3.  McKenzie interviewed Littlejohn and spoke with one of his attorneys about his credibility.  3.11, Ex. 7 at 3.  McKenzie “concluded that Mr. Littlejohn was not credible and should not be called as a witness during first stage.”  3.11, Ex. 7 at 3.

Malcolm Savage also attended the interview with Mr. Littlejohn.  3.11, Ex. 8 at 2.  “Based on the meeting with Mr. Littlejohn and information received from others, [Mr. Savage] agreed with Mr. McKenzie that Mr. Littlejohn was not credible and should not be called as a witness during first stage.” [1] 3.11, Ex. 8 at 2.

The OCCA described Littlejohn as a “multiple felon and convicted murderer” who had “obvious credibility problems” and “little to lose by perjuring himself with claims that were impossible to corroborate.”  DA Op. at 546.  The OCCA concluded McKenzie’s decision not to present Littlejohn was reasonable.  DA Op. at 546.

When Jones got to the Tenth Circuit, he actually agreed McKenzie “made an informed, strategic decision not to call [Littlejohn] as a witness.”  Opening Brief at 28.  Jones’ argument was that, based on Littlejohn’s (not credible) information, McKenzie should have investigated and discovered that Christopher Berry was another potential witness with whom Jordan had allegedly spoken.

In his application for post-conviction relief, Petitioner claimed that Berry, who was awaiting charges on first degree child abuse murder, would have testified that he heard Jordan brag about shooting Mr. Howell.  2/25/2005 Original Application for Post-Conviction Relief (OCCA No. PCD-2002-630) at 27-31; Jones, slip op. at 10.  Berry was in the Oklahoma County jail on charges of first degree child abuse murder.  In 2002, Berry pled guilty and was sentenced to life imprisonment without the possibility of parole. According to Berry, he overheard Jordan brag to other inmates on a number of occasions that he shot Paul Howell. [2]  2/25/2005 Appendix of Exhibits to Application for Post-Conviction Relief (OCCA No. PCD-2002-630), Ex. 1.  However, unlike Littlejohn, Berry implicated Jones when he stated that Jordan told him his “partner in the case was charged with capital murder.”  2/25/2005 Appendix of Exhibits to Application for Post-Conviction Relief (OCCA No. PCD-2002-630), Ex. 1. The OCCA held that Berry also had credibility problems, and recognized that he implicated Jones in the murder. The Tenth Circuit affirmed without making any relevant findings except to note that, although McKenzie was also Berry’s attorney, Berry admitted that he did not tell McKenzie about the alleged statements made by Jordan. [3] Jones, 805 F.3d at 1218.

Suzanne Lavenue and Sandi Elliott tried Jones.  Sandi Elliott also tried Littlejohn.  Ms. Elliott is willing to sign an affidavit attesting to Littlejohn’s strong dislike of her (providing a motive for his willingness to testify in Jones’s trial). 

Littlejohn had other felony convictions aside from his murder conviction.  Littlejohn, 85 P.3d at 296.  By the time Petitioner’s case went to trial, he had been sentenced to death.  Id. at 290-291.  Thus, as found by the OCCA, Littlejohn had nothing to lose. Jones, 128 P.3d at 546.  Furthermore, after meeting with Littlejohn and speaking to his attorney, Mr. McKenzie believed him to be a “pathological liar.”  3.11, Ex. 9 at 3.

In his own criminal proceedings, Mr. Littlejohn’s competence to stand trial was questioned.  Littlejohn v. State, 989 P.2d 901, 904-905 (Okla. Crim. App. 1998). Testimony at the competency hearing indicated that Mr. Littlejohn had neurological damage.  Id. at 905.  One expert believed Mr. Littlejohn was able to “stay on topic for only short periods of time.”  Littlejohn v. Workman, No. CIV-05-225-M, 2010 WL 2218230, at *33 (W.D. Okla. May 27, 2010) (unpublished).  Further, there was an indication Mr. Littlejohn may have suffered from delusions.  Littlejohn, 989 P.2d at 907.  In addition, an expert opined at Mr. Littlejohn’s 2000 re-sentencing that although he knew the difference between right and wrong he “lacked sensitivity” to it.  Littlejohn v. Trammell, 704 F.3d 817, 861 (10th Cir. 2013).  Further, Littlejohn was diagnosed with antisocial personality disorder, one characteristic of which is persistent lying.  Littlejohn v. Royal, 875 F.3d 548, 564 (10th Cir. 2017). 

Berry is a convicted child killer who would not have been credible, and who actually implicated Jones in the murder.  This claim has been explored and rejected by the Oklahoma Court of Criminal Appeals and the Tenth Circuit.  Id. at 1221-22; Jones, 128 P.3d at 546.

[1] Petitioner’s third chair counsel, who did not meet Mr. Littlejohn, and the investigator who worked on Petitioner’s trial, disagreed with Mr. McKenzie and Mr. Savage.  3.11, Ex. 9 at 3 & Ex. 10 at 2-3

[2] Although Mr. Berry gave post-conviction counsel the nickname of one of the men to whom Mr. Jordan allegedly confessed, Opening Brief at 42, Petitioner has never provided confirmation from that particular inmate, or any others.

[3] Berry “did try to talk to [McKenzie] about it, but [he] didn’t seem interested in it.”  2/25/2005 Appendix of Exhibits to Application for Post-Conviction Relief (OCCA No. PCD-2002-630), Ex. 1.  Berry did not explain what he meant when he said he “tried” to talk to McKenzie.

Eye Witness’ Description

One letter writer also states that, “The eyewitness testified that the shooter had hair hanging from under a cap (braids or dreadlocks).  This description fit the profile of the co-defendant.” The witness’ exact testimony was:

The witness specifically denied seeing braids.  As described by the Tenth Circuit, “[Witness] could see ‘about a half an inch to an inch’ of the man's hair between his stocking cap and ‘where his ear connect[ed] to his head.’ Trial Tr. Vol. 4, at 117:4–5, 16. But she didn't see braids or corn rows.”  

Lack of Credible Alibi

Jones’s then-girlfriend, testified at trial that Jones told her he was somewhere “on the south side [of Oklahoma City]” when Paul Howell was murdered (Tr. IX 34-35).  In his direct appeal, Jones alleged that his trial attorneys should have called his family members to testify that he was at home at the time of the murder. The OCCA ordered an evidentiary hearing on this claim. At the hearing, the State proved that Jones’s attorneys thoroughly investigated this possible alibi—including speaking with Jones’s parents and sister, Jones himself, and a friend named ‘BC’ whom Jones’ parents said was also present—and chose not to raise it for two primary reasons (3/21/05 Tr. 176-85; 3/22/2005 Tr. 13-34). 

1. David McKenzie and Malcolm Savage both testified that Jones repeatedly told them his family was mistaken and he was not at home on the night of the murder (3/21/05 Tr. 179, 182-84; 3/22/05 Tr. 16-19, 34). Jones was “unequivocal that he was not at home with his parents, as his parents had described, with regard to the evening that Mr. Howell was murdered.” (3/22/05 Tr. 18). 

2. ‘BC’ told Jones’ attorneys’ investigator that she was not at the Jones house on the night of the murder (3/21/05 Tr. 177-82; 3/22/05 Tr. 14, 27-28). Both Ms. Cudjoe and Julius Jones agreed that the night they were both present at the house was the night before the murder (3/21/05 Tr. 179-84). In fact, ‘BC’ even had a receipt from a trip to Kinko’s that she and Jones’s mother had made together on the day before the murder (3/22/05 Tr. 86-87). The defense was also aware that Jones’ girlfriend and other witnesses (to include Jordan, King, Owens, and McDonald) placed Jones outside of his parents’ home that evening (3/21/05 Tr. 186-94; 3/22/05 Tr. 19-27). 

Mr. McKenzie was concerned that calling Jones’s family to present the alibi “would burn the Joneses for second stage” (3/22/05 Tr. 15, 19). The OCCA discussed the above evidence, and noted that Jones himself did not testify at the hearing.  DA Op. at 545-46.  The OCCA, therefore, concluded that counsels’ decision not to present this alibi defense was a sound strategic one.

Bullet Analysis

A letter written by Trae Young of the Atlanta Hawks indicates that “the prosecution used a scientifically discredited bullet analysis, presented by an analyst who pled guilty for giving false testimony only months after Julius’s trial.” Suzanne Lavenue (former ADA who prosecuted Jones) first noted this, and we assumed Trae Young must have confused the ballistics (“bullet analysis”) with some testimony by Kathleen Lundy, an FBI agent who used science (“lead analysis”) that has since been discredited.  Lundy testified that the bullets found in this case all came from the same batch at the manufacturer, and she later pled guilty to committing perjury in another case. 

An affidavit recently signed by a juror sheds further light on this:

I remember that one of the prosecution’s expert witnesses testified that he [Terrence Higgs] had ‘no doubt’ about the bullet that killed the victim being a match to the weapon found in the home belonging to Mr. Jones’s parents.  This was a major factor for me in determining that Mr. Jones was guilty.  At the time that I served on Mr. Jones’s trial, I believed everything that this expert testified to and the defense didn’t present any expert of their own to challenge his conclusions.

It is not known if the ballistics evidence was ever challenged, and it’s improbable that Jones could have recently obtained a second opinion given that he does not have access to the evidence.  Thus, it is very concerning that some people have the mistaken impression that the ballistics evidence matching the actual bullets fired in this case to the gun recovered in the attic access from Jones’s closet is flawed.