DAY TWO

A death case derailed

Page 2 of 2

Cheating death

Prosecutors in DeKalb and Fulton said they would pursue a death sentence for Dunnigan.

His leading role made murder charges possible even if he hadn't shot Johnson. The kidnappings, severe beatings and brutality made him eligible for execution.

But prosecutors soon found the case was less than straightforward.

Autopsies failed to show everything the girls had endured in their final hours. Johnson's body was mangled by the train; Waller's had decomposed into a skeleton.

Police could not find the gun used to shoot Johnson.

Co-defendants' statements sometimes contradicted each other to minimize their own roles. Two agreed to testify about Johnson's death, but the law limited how prosecutors could use others' police interviews in court.

Dunnigan's lawyers remained worried, vowing to put on a strong defense. "I think a death penalty is in the cards in this case," one of them, Tom West, told the judge and district attorney during a conference in chambers.

DeKalb prosecutors started to talk about a possible plea — their standard practice even for death cases. But Fulton prosecutors refused to negotiate.

Doris Downs, then a Fulton prosecutor, was adamant this was the worst case she'd seen and a plea bargain was not an option. "They were not going to come down from the death penalty," West said later.

Then, the case became more complicated.

'If anyone deserved' death ...

DeKalb was forced to re-indict Dunnigan because the first indictment had too many grand jurors' names on it. State law mandates that a grand jury have between 16 and 23 members; Dunnigan's indictment listed 25.

Dunnigan's attorneys challenged the new indictment, too, in a slew of motions. A judge held hearings on issues such as whether a DeKalb prosecutor had improperly influenced the makeup of the grand jury.

Multiple faulty indictments can force prosecutors to drop charges altogether.

That would have been a catastrophe in both counties. Fulton prosecutors planned to use the DeKalb case to strengthen their own.

Downs said problems with DeKalb's grand jury spurred Fulton prosecutors to change tack and participate in the deal DeKalb was offering Dunnigan. It was "the best way to get Ahmond Dunnigan off the streets permanently," said Downs, now chief judge of Fulton Superior Court.

Defense attorney West later called the deal a "miracle plea": three life sentences in each county. Dunnigan could apply for parole in 30 years, in his 50s.

At his attorneys' urging, Dunnigan pleaded guilty to Johnson's murder. He promised to do the same for Waller's in Fulton.

But a month later, Dunnigan tried to back out of the deal. Prosecutors fought to keep it in place. The case would stretch over nearly three more years.

In 1997, Paul Howard became district attorney in Fulton and refused to accept life in prison for Dunnigan if parole would be possible.

"I wouldn't go along with it," he said. "I said, 'This is a death case.'"

He filed a notice that he'd seek death and told Dunnigan's attorneys to prepare for trial.

But Howard said he worried privately that Dunnigan would appeal a death sentence and force Fulton to abide by the offer of life with parole.

A plea deal for life without parole, Howard decided, would put Dunnigan away for good and respect the wishes of Waller's family to avoid a trial.

Dunnigan's attorneys convinced him a jury could put him on death row. In 1998, he pleaded guilty to Waller's murder in Fulton in exchange for life without parole.

Then-DeKalb District Attorney J. Tom Morgan was the first to offer a deal, but even he sounded regretful at one point: "If anyone deserved the death penalty, it was Mr. Dunnigan."

Pouya Dianat /AJC (ENLARGE)

Jamie Cook (left) and his older brother, O'Neal, looking off into woods near their home in Stone Mountain, were hard hit by the 1993 killing of their sister, Marsinah Johnson.

Irreparable damage

Before the plea, Johnson's father had sent Morgan a letter urging him to seek the death penalty and objecting to any sentence that included the chance of parole.

But Morgan said Johnson's mother agreed to the deal, which helped persuade him to accept it.

O'Neal Cook, Johnson's brother, said the case took so long that his family was eager for a resolution that included prison time for as many participants as possible.

Cook said he believes stress from the ordeal contributed to his mother's death from a brain hemorrhage in 1998. He and her other son, now 20, have struggled with the losses.

"My family has never recovered from this," he said.

Note: Accounts of crimes in this article are based on plea transcripts and other court records, as well as police reports that include interviews with co-defendants and witnesses.

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