The Agitator

In Texas, where the average time served for homicide is less than six years, Lee Otis Johnson might appear to be an exceptionally dangerous criminal. For the past 42 months he has been languishing in prison, serving a sentence of 30 years. His crime: giving one marijuana cigarette to an undercover Houston policeman.

There is little doubt that Johnson's real "crime" was to be a militant black radical, a leading member of the Student Nonviolent Coordinating Committee. In May of 1967, there was a confrontation between Houston police and the predominantly black students of Texas Southern University. One white policeman was killed in the clash, probably by a stray police bullet, and no one was ever convicted of anything. Privately, however, police blamed Johnson, then 27, for "agitating" students in campus speeches.

During the next year, a dozen officers each spent 200 hours of overtime in tailing Johnson. They arrested him five times on charges ranging from suspicion of theft to carrying a concealed weapon, but they failed to get a single conviction. Finally, the authorities assigned a black police recruit to infiltrate the commune-style house where Johnson lived. The rookie began chauffeuring Johnson around town, bought food and supplies for the house. The surveillance continued for two months, until the rookie reported that Johnson had given him a joint.

The police hesitated for six weeks before filing a charge. Then, two days after Johnson made an angry anti-Establishment speech at a black rally, he was arrested for passing the marijuana. He denied the charge. District Attorney Carol Vance, who rarely tries a case, decided to prosecute Johnson personally. "When a person threatens to burn down a city, those responsible for a community's safety are justified in taking necessary steps to keep him from doing so," Vance later explained.

At the trial, in August of 1968, Vance peremptorily challenged all black veniremen, thus leaving Johnson to face an all-white jury. Vance also successfully opposed a motion for change of venue, even though two jurors admitted knowing of Johnson's militant reputation. After 1½ days of testimony and only half an hour of deliberation, the jury found Johnson guilty. Vance cited the fact that Johnson had previously been convicted of theft and asked for a sentence of 20 years. The jury went a step farther and decided on 30.

A state appellate court upheld Johnson's conviction, and officials showed little concern about the case. When Governor Preston Smith was harassed by University of Houston students shouting "Free Lee Otis!" he professed bewilderment. Said Smith: "I thought they were saying, 'Frijoles, frijoles!' I wondered what in the world do they have against Mexican beans?"

Unfair. In January, U.S. District Judge Carl O. Bue Jr. overturned the conviction and ordered the state to retry Johnson within 90 days or free him. "Outside influences affecting the community's climate of opinion were so inherently suspect as to create a resulting probability of unfairness," Bue ruled.

Vance is reported to be unenthusiastic about retrying the case ("The mood in Houston has changed dramatically," he says), but he is even more unenthusiastic about conceding that Johnson did not get a fair trial. He has decided to appeal Judge Bue's finding of probable unfairness, and the appeal process could take another six months to two years. While his lawyer jockeys for his release, Lee Otis Johnson continues to serve his fourth year in prison for passing that one marijuana cigarette.

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