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.

The case led to one more appearance for Prosen: a guest spot on The Maury Povich Show, to tell about his rage.

When Judge Ogden Bass finally gaveled the Johnson murder trial to order in December 1997, jurors had more than sterile exhibits and diagrams to examine.

They had the couple's bedroom itself.
Defense attorney Stansberry knew he had strong evidence from Lannie Emanuel, a Dallas County crime-lab expert who usually testified for the state in murder cases. And a clerk's office adjacent to the courtroom was empty, part of a project to add a court to the Brazoria County Courthouse in Angleton.

"We had all the bedroom furniture, the original bed and bedding seized from the crime scene," Stansberry said. "So we thought, 'Why not set up a full mock-up?' "

As important was what the state did not have: most of the excluded evidence of the main life insurance policies and Johnson's interest in them even before Prosen's body was put to rest. Based on what was presented to jurors, it sounded like the state was trying to show the defendant designed a grand scheme only for the insurance that would have given him title to the dead woman's Cadillac.

Stansberry was surprised that the state still pushed forward with the capital murder case. The attorney said he was mystified that the state did not focus instead on a conviction for the lesser felony offense of manslaughter, which would require no proof of money as a motive or even that Johnson planned in advance to kill her.

"We did the best we could with the hand that was dealt us," said prosecutor Dale Summa.

"A manslaughter conviction, which carried a maximum sentence of 20 years, would have been tantamount to a life sentence for him," Stansberry said. While arguing his innocence, the defense gave jurors an out of convicting him of misdemeanor negligent homicide. That verdict would mean he was grossly careless but that the death was still the result of an unintentional act.

Summa pressed for openings, but there were few. Bass rejected a prosecution request to allow the testimony of an ex-soldier associate of Johnson's, who wanted to give an account about Johnson executing two Korean prisoners of war.

Similarly, the court refused to have other witnesses ready to tell about Johnson's mysterious and morbid stories from years earlier. "They wanted to bring in all this evidence that he knew how to kill people with cyanide pellets in car exhaust systems and so on," Stansberry said. "It didn't make sense to the jury that somebody with as much experience as Johnson supposedly had with weaponry would give a target a chance for survival."

Johnson later explained his reasoning in using the lightweight birdshot ammunition in his hunt for the mongrel mutt on the morning of the shooting. "I didn't want to kill the dog."

Summa brought up inconsistencies in the defense. Johnson had his arsenal, including shotguns he kept downstairs. With his extensive firearms training and use, why would he even be in their bedroom with his finger on the trigger of a loaded shotgun with the safety off?

The victim's sons tearfully recalled the fear for their mother in the months and days before she was killed. But Stansberry countered that she was a strong, independent woman who would have left Johnson had she been in a potentially lethal situation.

Near the end of the trial, jurors stepped into the mock-up bedroom. In the bed was a mannequin with an abdomen marked with the entry points for each shotgun pellet that traveled into her heart. Emanuel took the bloodied sheets marked with gunpowder burns. He carefully lined the holes up with each point on the abdomen, demonstrating that the shooting could have occurred as Johnson described it.

After final arguments, jurors had a request. They wanted the shotgun. And they wanted to be left alone in the mock-up room. Not long after they returned, the panel convicted Johnson of negligent homicide.

It was a victory for the defense. Johnson had already served more than the maximum one-year punishment for that crime. He was free.

Jeff Prosen's permanent glare during the trial became even more intense. He and brother Robert comforted their other brother, Philip, who sobbed after the verdict.

Stansberry said Johnson often cried in private when talking of Edwina Prosen. The attorney and his law partner turned to share their postverdict euphoria with Johnson. What they saw was the same flat stare that had covered their client during the lengthy proceedings.

"Hey," they told him, "You know, you won!"
Johnson's only reply: "I know."
The defendant and James Johnson, his son and guardian, were escorted from the courthouse by deputies. But the matter would not yet be put to rest until the Prosen brothers decided to end their efforts.

As the O.J. Simpson murder case illustrated, the civil justice system awaits those frustrated by the outcome of criminal cases. And the burden of proof and less stringent rules of evidence make such lawsuits inviting.

The Prosens sued Johnson to stop him from getting the insurance proceeds and to try to force him to pay punitive damages for the alleged wrongful death of their mother.

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