A Georgia death row inmate says a prosecutor hid a plea deal with a key witness, tainting his trial

SAVANNAH, Ga. — Lawyers for a Georgia inmate sentenced to death 25 years ago are accusing a prosecutor of concealing a deal that they say casts doubt on the credibility of a key witness at trial.

Warren King was sentenced to death in September 1998 after an Appling County jury found him guilty of the murder of Karen Crosby, a grocery store clerk who was fatally shot during an armed robbery in southeast Georgia.

Now, King’s attorneys say they have evidence that the assistant district attorney who prosecuted the case, John B. Johnson, made a previously undisclosed deal with the only eyewitness to the crime. They are asking a Superior Court judge in Butts County, home to Georgia’s death row, to order a hearing in hopes of granting King a new trial.

Evidence at King’s murder trial showed that he and Walter Smith had robbed the country store together in September 1994, and that Smith had taken his uncle’s gun and a mask with him. Both men were charged with Crosby’s murder, with King being tried first.

Prosecutors granted Smith immunity to testify at King’s trial, and Smith told the jury that it was King who shot the woman. King’s attorneys say there were no other witnesses or physical evidence that King was the shooter.

What prosecutors did not tell the defense or the trial jury is that Johnson had promised to spare Smith from a possible death penalty in exchange for his testimony, King’s attorneys said in a July 8 legal document.

Prosecutors would have been required to disclose to defense attorneys any favorable treatment Smith received in exchange for testifying, King’s attorneys said in an appeal. If King’s trial lawyers had known about the deal, they could have used it to attack Smith’s credibility as a witness.

“Had this suppressed evidence been made public, the outcome of the trial may well have been different,” attorney Anna Arceneaux wrote in King’s legal filing.

Arceneaux wrote that prosecutors not only kept the defense informed of the deal before the 1998 trial, but that Johnson and Smith both denied its existence in comments to the jury.

The Associated Press left a telephone message Wednesday seeking comment from Johnson. The veteran prosecutor retired from the Brunswick Judicial Circuit District Attorney’s Office in 2021. He unsuccessfully challenged District Attorney Keith Higgins in a Republican primary in May.

The new legal documents include an affidavit from one of Smith’s attorneys, John B. Brewer III, stating that Johnson and Smith reached a pre-trial plea agreement. The terms were that Smith would receive a life sentence with a chance of parole in exchange for his testimony against King. Smith received that sentence in 2001 when he pleaded guilty to a murder charge in Crosby’s death.

“These terms were not put in writing, but there was a verbal agreement,” Brewer’s affidavit said. He added: “I would never have recommended that Mr. Smith testify against Mr. King unless I knew for sure that he had a deal and would avoid the death penalty.”

According to a transcript of his arguments at the 1998 trial, Johnson told the jury he should have disclosed all the deals with Smith “because it challenged his credibility.”

“There are no deals, or he would have told you,” Johnson told the trial jury. “And the defense would have made sure you heard that if there was one.”

King’s latest attempt to overturn his death sentence comes at the U.S. Supreme Court on July 2 refused to consider his claims that Johnson wrongly excluded black jurors during the trial. King is black; his trial was heard by 10 white jurors and two black jurors.

Lower courts upheld King’s conviction and sentence after his attorneys presented evidence that Johnson had used strikes to exclude 87.5% of eligible black jurors from the trial and only 8.8% of eligible white jurors, all women.

A 1986 U.S. Supreme Court ruling prohibits attorneys from excluding potential jurors based on their race. During the trial, Johnson offered other, nonracial reasons for excluding black panelists from the jury.

In their July 8 legal filing, King’s attorneys reiterate their claim that potential black jurors were rejected because of their race. They cite new evidence: Johnson’s own handwritten notes, obtained last fall. The attorneys say the notes show that Johnson carefully kept track of which potential jurors were black and which were women.

King’s lawyers said Johnson took notes on how potential black jurors answered questions about the death penalty and whether they had criminal records. They say he did not keep similar notes for white panelists, but instead kept track of which potential white jurors had family members who were victims of crimes.

King’s lawyers said the prosecutor’s notes provide “concrete evidence that Johnson did indeed consider the race and gender” of potential jurors.