Coming to No Good End

Undertaker Jay Herman shot his lover, Edwina Prosen, to death in 1991. That's the only thing he and her family have agreed on since.

A grand jury declined to indict the family for theft. But the police had more circumstantial evidence in their arsenal against the funeral home operator. In early November grand jurors indicted Johnson for capital murder.

He was set for trial the following June. On April 14, 1992 -- ten days before a scheduled pretrial hearing -- the telephone rang in the Brazoria County District Attorney's Office.

A lawyer for Johnson said there had been a slight complication. Johnson had been deemed incapacitated. He was now a ward of Harris County probate court. The application mentioned no capital murder charge, only that various lawsuits were pending against him.

William Mark Valverde, a physician at West Oaks Hospital, advised the probate judge in March 1992 that Johnson had been his patient since December. His diagnosis: "major depression/single episode and paranoid personality disorder."

Johnson, the doctor said, was having difficulty making reasonable and rational decisions regarding his health and the management of his property and estate. No one disputed that he was competent to be tried, although he was taking drugs for a variety of medical problems, including chronic back pain.

Johnson's son, Katy resident James Johnson, became guardian. Prosecutors showed their surprise in a hastily hand-written note on yellow legal paper, asking for a delay until they could determine the medical condition's effects on the capital murder trial.

That trial postponement came, but for vastly different reasons.
Johnson's first two attorneys met him in jail and agreed to represent him for $50,000. He signed the deed to the Sweeny Funeral Home over to them, and they later took some of his prized firearms they said were needed to cover the rest of the bill. After a bond reduction hearing, they parted ways. A third attorney came in for a bond hearing and was then dismissed by the defendant.

That's when then-state district judge Ogden Bass tapped a 22-year attorney, Lloyd Stansberry, as court-appointed counsel. Stansberry immediately attacked the foundation of the state's case: insurance policies.

In five different motions, the defense argued that by law the judge had to throw out the insurance documents and most of the rest of the evidence seized by police and the Prosen family.

Relatives of the dead woman had no right to rummage through Johnson's belongings, Stansberry said. And there was no probable cause for stopping the hearse on suspicion of transporting a stolen body. Hearses are supposed to carry bodies -- how would authorities have reason to think one was stolen?

Investigators gained formal search warrants as the criminal probe developed, but the defense argued that it was too late.

A fundamental aspect of Texas law bans so-called "fruits of the poisonous tree." If individual rights are violated in getting evidence -- or even in getting information about the location of evidence -- then prosecutors cannot use that material or anything else later collected because of it.

That law was well established for law enforcement officers, who are supposedly trained and aware of search legalities. Far less clear was whether it necessarily applies to the good intentions of civilians such as the Prosens.

Brazoria County prosecutor Dale Summa argued that, regardless of the family's actions, investigators would have easily uncovered the existence of the insurance policies.

But the defense maintained that the ban should be interpreted as total. Otherwise, police could circumvent the intent merely by having civilians collect evidence that was off-limits to law enforcement.

In the end, Bass barred almost every insurance-related piece of evidence. The state appealed, clearing the way for Johnson's release from jail under rules guaranteeing him a speedy trial.

"I didn't know where to land," Johnson said. "At that time I didn't have any idea who would help me or anything else. It was like the whole world was against me."

Johnson, still a ward of probate court, moved into a small apartment complex near Houston's museum district. As the months turned into years, the annual report by his guardian gave an almost idyllic description of life: He took walks, rode his bicycle, availed himself of museum exhibits and tours, and read in the local library.

Yes, his guardian son said in probate court documents, his father was "content with his living situation." But under the mental health category of the reports, the box with the check mark always read, "remained about the same."

In March 1995 Houston's First Court of Appeals upheld the trial judge's evidence ruling in a 2-1 vote. The D.A. pushed higher, challenging that finding before the Texas Court of Criminal Appeals.

Meanwhile, the Prosens began fearing the worst. They consulted with veteran criminal specialist Mike Hinton of Houston about taking over as special prosecutor, but Brazoria County continued with the case.

In November 1996 the state's highest criminal court affirmed the evidence ban in a 5-4 decision.

The general election that year replaced the remaining moderates with conservative Republicans. Prosecutors decided to seek a rehearing when the hard-line court would be in place the following January. But party affiliations or perspectives mattered not -- the new group of justices upheld the decision by the same 5-4 margin.

Jeff Prosen told reporters of his total disgust for the judicial system. "He murdered my mother for money. I want him to know he's not going to get the last laugh out of this."

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