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Missouri Prosecutors Lack the Power to Right a Wrongful Conviction


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Source: The Intercept

For more than 25 years, Lamar Johnson has been locked up in a Missouri prison for a crime that almost no one believes he committed. That includes the elected circuit attorney for the city of St. Louis, where Johnson was originally prosecuted for murder and sentenced to life in prison without the possibility of parole.

Thanks to a ruling this month from the state’s supreme court, Johnson’s time behind bars will continue, despite extensive evidence that police and prosecutorial misconduct compromised his case and the fact that the real perpetrators have come forward to take responsibility for the crime.

But the state’s high court didn’t consider any of this. Instead, it ruled in response to a purely procedural question: Does an elected prosecutor, in this case Circuit Attorney Kim Gardner, have the power to overturn a wrongful conviction? The court determined that she does not — a decision that has far-reaching implications for the future of prosecutors’ conviction integrity units and those wrongfully convicted in Missouri.

The Missouri Supreme Court ruling is “deeply disappointing,” Gardner said in a statement. “What is at stake is equal justice under the law and public trust in the integrity of the entire criminal justice system.”

Evidence of Innocence

Johnson was convicted of the October 1994 murder of a man named Marcus Boyd on thin and troubling evidence. Johnson had an alibi for the night of the crime that police failed to fully investigate. An eyewitness to the crime, Gary Elking, initially told police that he had no clue who killed Boyd because the assailants wore dark clothing and masks that covered all but their eyes. Later, under police pressure, Elking fingered Johnson for the crime, and prosecutors would go on to pay Elking roughly $4,000 for moving expenses, utilities, and miscellaneous items, incentivizing his testimony. That information was not turned over to Johnson’s defense. The state also relied on a jailhouse informant who claimed Johnson had bragged about the crime. Prosecutors failed to reveal that the man, William Mock, who had an epic criminal record and a history of testifying for the state, had indicated that racial animus was motivating him to help to convict Johnson.

In 2016, Gardner became the first Black elected circuit attorney in St. Louis. A year later, she secured funding to start the office’s first conviction integrity unit. CIUs have become integral to correcting miscarriages of justice. To date, they have been responsible for 483 exonerations, according to the National Registry of Exonerations, even though there are just 62 units across the country out of some 2,300 prosecutors’ offices.

“I know Lamar Johnson is innocent of that crime because I was there and Lamar Johnson was not.”

In 2018, the Midwest Innocence Project asked Gardner to review Johnson’s case, and the following year, she completed an extensive inquiry, concluding that Johnson was innocent. Among the compelling details she uncovered was the fact that two men, Phillip Campbell and James Howard, had each separately, and credibly, confessed to Boyd’s murder. “Lamar Johnson was not involved in the death of Marcus Boyd,” Howard said in an affidavit. “I know Lamar Johnson is innocent of that crime because I was there and Lamar Johnson was not.”

Armed with the truth, Gardner sought to intervene, filing a motion in circuit court conceding Johnson’s innocence and asking the judge for a hearing on the matter. “A prosecutor’s duty is not circumscribed by time or place. A prosecutor’s duty is to maintain the integrity of our justice system as a whole,” Gardner wrote in a court filing. “Because the circuit attorney has become aware of evidence of government misconduct, perjured testimony, concealed exculpatory and impeachment evidence that is clearly material, and evidence of innocence, she is duty-bound to move for a new trial.”

But the circuit judge disagreed. She found that Gardner didn’t have the right to file such a motion and called on Missouri’s attorney general, Eric Schmitt, to weigh in. He agreed with the judge, who subsequently dismissed the case. The conflict ended up at the state Supreme Court, which heard the case remotely last April.

The question before the court was whether a prosecutor had the power to right a wrongful conviction perpetrated by her office. The attorney general’s office argued that the answer was no. Prosecutors shouldn’t be seen as supporting a defendant, Shaun Mackelprang, chief of the attorney general’s criminal division, told the judges, adding that giving prosecutors this power could “undermine public confidence” in the justice system. Even if that weren’t the case, Schmitt wrote in a court brief, the court rule governing the ability to file a motion for a new trial, which Gardner invoked, had a hard-and-fast 15-day deadline. Gardner’s motion wasn’t filed until July 2019, making the motion “8,758 days out of time.”

Gardner’s lawyers countered that she was required to try to right a wrong perpetrated by her own office — a prosecutor’s loyalty is to justice, after all. And regarding the rule, Daniel Harawa, a law professor at Washington University in St. Louis, pointed out that fealty to a 15-day deadline would produce an absurd result: If a prosecutor discovered a defect in a case on day 14, she could seek to correct it, but if that injustice came to light on day 16, she could not.

On March 2, nearly a year after the parties’ arguments, the Missouri Supreme Court sided with the attorney general, ruling that Gardner lacked the authority to intervene so many years later. Johnson also lacked the power to file for a new trial on his own, the court concluded. “He already exercised his right to appeal,” Judge Zel Fischer wrote, “and the court of appeals affirmed the judgment.”

“This case is not about whether Johnson is innocent or whether there exists a remedy for someone who is innocent and did not receive a constitutionally fair trial,” Fischer wrote. “This case presents only the issue of whether there is any authority to appeal the dismissal of a motion for a new trial filed decades after a criminal conviction became final. No such authority exists; therefore, this court dismisses the appeal.”

“The Supreme Court’s decision puts the burden of correcting a wrongful conviction squarely on the shoulders of the wrongfully convicted themselves.”

Still, three of the court’s seven judges signed on to opinions that concurred in result but tried to offer Johnson some hope. The court’s chief justice, George W. Draper III, wrote that he believes a different court rule would offer Gardner a chance to overturn Johnson’s conviction — a position Fischer’s opinion dismissed. Draper also called on the Missouri Legislature to provide prosecutors a clear avenue to address wrongful convictions. “One’s sense of justice and belief that innocent people should not be imprisoned for crimes they did not commit requires there to be some mechanism for the state to redress an error it helped create,” he wrote.

Judge Laura Denvir Stith agreed with Draper but also wrote that Johnson should seek to overturn his conviction via a writ of habeas corpus. She urged Schmitt’s office, which has argued that it is required to oppose habeas writs, not to stand in the way. Stith suggested that the office needed to take a broader view of its job. “The attorney general misunderstands the full extent of the prosecution’s role in the justice system,” she wrote. “The prosecutor’s role is not simply one of being an adversary to the defense.” She added that the court expected the attorney general to heed his duty to seek justice when called upon again to consider Johnson’s case.

Johnson’s lawyers, Tricia Bushnell of the Midwest Innocence Project and Lindsay Runnels of the firm Morgan Pilate, were dismayed by the ruling. “By declining to give prosecutors a mechanism to fulfill their sacred duty to correct an injustice,” they wrote in a statement, “the Supreme Court’s decision puts the burden of correcting a wrongful conviction squarely on the shoulders of the wrongfully convicted themselves.” The lawyers vowed to continue to fight for Johnson’s exoneration.

Changing the Rules

While it’s nice to think that Missouri lawmakers might be compelled to act or the attorney general’s office might take seriously its duty to correct an injustice, there are plenty of reasons to suspect that neither will happen.

Since the election of Gardner and fellow progressive prosecutor Wesley Bell, who represents St. Louis County and is also Black, state lawmakers have spent a lot of time trying to usurp their authority and punish them for breaking with the criminal legal system’s status quo. They’ve pushed bills that would transfer authority to prosecute certain crimes to the attorney general’s office — based on dubious claims that Gardner and Bell are failing to pursue charges — and even penned a bill that would have granted Gov. Mike Parson the ability to remove an elected circuit attorney for pretty much any reason.

Supporters of Bell and Gardner have charged that these attacks are racially motivated. In September, state Sen. Jamilah Nasheed blasted colleagues for their support of a measure that would allow Schmitt’s office to have concurrent jurisdiction over homicide cases in the city of St. Louis. “Here you are trying to strip away her power simply because she’s a Black woman standing up for criminal justice reform,” Nasheed said of Gardner.

“The prosecutor’s role is not simply one of being an adversary to the defense.”

And despite Stith’s admonishment of the attorney general, there is little reason to think that Schmitt will change his approach any time soon. Since taking office, Schmitt has opposed every habeas petition that has come before him; last year alone, three men were exonerated despite his opposition. According to an investigation by Injustice Watch, the Missouri Attorney General’s Office has opposed relief in nearly every wrongful conviction case that has come before it since 2000, including fighting to uphold the convictions of 27 people who were eventually exonerated.

The Intercept asked a spokesperson for the attorney general’s office, Chris Nuelle, about Stith’s assessment that Schmitt misunderstood his duty to seek justice. Nuelle declined to answer, writing that he’d “stick to” Schmitt’s written statement — that the attorney general had been brought into the dispute “not to comment on innocence or guilt, but to ensure that the rule of law is upheld and the proper procedure is followed.”

There is a relatively simple solution, however, to the problem that prosecutors like Gardner and the wrongly convicted face: Change the Supreme Court rule that constrains prosecutors from acting on their findings.

In fact, it was the repeal of a particular court rule, Rule 27.26, that helped create the conundrum Gardner and Johnson find themselves in. That rule required defendants to file all post-conviction challenges in the jurisdiction where they were initially prosecuted. For Johnson, that would mean filing in the city of St. Louis, which would have allowed Gardner to take action.

But in the late 1980s, in an effort to speed along death penalty appeals, the court did away with that rule, requiring many appeals to instead be filed in the county where the defendant was incarcerated. Since individuals are often are incarcerated in smaller, more rural counties and rarely in their home districts, this means that the attorney general’s office is given the power to step in and represent the state and, in turn, oppose post-conviction relief, regardless of how compelling it may be.

But there is nothing to stop the Supreme Court from tweaking the current rules to allow people like Johnson to file in their home county. And that’s what the court should do, says Sean O’Brien, a law professor at the University of Missouri, Kansas City, and a founding member of the Midwest Innocence Project. “Absolutely they have the power to change it,” he said. And unless they do, CIUs will continue to lack “direct power to act on their findings if they find a person is innocent.”

This is how it works in neighboring Kansas, he pointed out. There, post-conviction litigation goes back to the county of conviction, which empowered Wyandotte County District Attorney Mark Dupree, who also started a CIU, to exonerate Lamonte McIntyre in 2017 and Pete Coones last November.

The way things work in Missouri means that wrongfully convicted individuals routinely find themselves caught in a procedural quagmire, O’Brien said. Consider the case of Rodney Lincoln, who was charged with murdering JoAnn Tate and attacking her two young daughters in 1982. He was convicted based on faulty forensics and a coerced eyewitness identification made by one of Tate’s daughters, which she later recanted. In denying Lincoln relief, the appeals court said that a claim of innocence was not a good enough reason to vacate the conviction, O’Brien recalled. “That is literally what the court said.” Missouri’s Supreme Court declined to review the case. Ultimately, the victim’s daughter asked the governor to grant clemency to Lincoln and in 2018 — 36 years after his conviction — then-Gov. Eric Greitens commuted Lincoln’s sentence.

And there’s Ricky Kidd, who was wrongfully convicted in 1996 for a double murder in Kansas City, Missouri. Even as his innocence became clear, he was repeatedly denied relief on procedural grounds. “We lost his case 11 times in different courts before we finally won the one time that counts,” O’Brien said. Kidd was finally exonerated in 2019.

All of this leaves Johnson in flux. But O’Brien remains optimistic; he has to be, he said. He believes that the system will have to confront Johnson’s innocence. “It is difficult to slam the door on justice and nail it shut because the public now knows Lamar’s situation,” he said. He hopes the state Supreme Court will see through the procedural haze too. “The court, hopefully, will come to realize that the justice system lacks credibility if it is perceived to be unfair.”

Johnson’s lawyers, Bushnell and Runnels, noted in their statement that not a single one of the Supreme Court judges has actually denied that Johnson is innocent. They lamented the “remarkable gaps in the criminal legal system that allow an innocent person to languish in prison year after year even when the evidence of innocence is clear.”

The lawyers said they intend to file a habeas petition as Stith suggested, and they hope that the attorney general will also heed the judge’s advice. They noted that when Johnson was told about the Supreme Court’s decision, he described the situation best: “It is sad that rules and technicalities matter more than someone’s innocence.”

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