Appeals Court Weighs Authority Of Missouri Prosecutors To Correct Wrongful Convictions | St. Louis Public Radio

Appeals Court Weighs Authority Of Missouri Prosecutors To Correct Wrongful Convictions

Dec 11, 2019

Updated Dec. 11 with oral arguments

The ability of prosecutors in Missouri to undo wrongful convictions they discover is in the hands of a state appeals court.

A three-judge panel of the Eastern District of Missouri heard oral arguments Wednesday in the case of Lamar Johnson. St. Louis Circuit Attorney Kim Gardner asked for a new trial in his case in July, saying her Conviction Integrity Unit found pervasive police and prosecutor misconduct in his 1995 murder conviction.

St. Louis Circuit Judge Elizabeth Hogan rejected Gardner’s request, saying she filed it well beyond court deadlines. The attorney general’s office is defending that position in court at Hogan's request.

Supporters of Lamar Johnson wait outside a courtroom at the Missouri Court of Appeals on Wednesday. Two of his friends from prison, Ricky Kidd and Rodney Lincoln, are at right. Both men were recently freed after wrongful convictions.
Credit Rachel Lippmann | St. Louis Public Radio

“There is a really important issue at stake in this case, and that is what happens in Missouri when a prosecutor realizes that a conviction or a sentence is wrong,” said Tony Rothert, the ACLU of Missouri’s legal director, who watched oral arguments. "According to the attorney general's office, there's nothing the government can do. That's all on a defendant who is locked away in prison, who may not have an attorney, who has no education, no resources; they're supposed to figure out how to undo a wrongful conviction. That is not what the Constitution requires. That's not what other states do. And that shouldn't be the case in Missouri, either."

There is no deadline for the appeals court to act. Johnson remains behind bars in Jefferson City.

Original story from Dec. 10:

Activists led by the online advocacy group Color of Change are urging Missouri Attorney General Eric Schmitt to allow a St. Louis man a chance to prove his innocence in court.

On Tuesday, the group delivered a petition to Schmitt demanding that he allow Lamar Johnson to have a new trial.

“Attorney General Schmitt’s crusade to keep Lamar Johnson from getting a new trial is proof that the establishment will go to any lengths to defend this failed tough-on-crime approach,” said Marybeth Onyeukwu, a senior campaign manager with Color of Change. 

A small number of individuals — those actually carrying the boxes with the petitions — were allowed to deliver them to the attorney general’s staffers in the Old Post Office in downtown St. Louis. But reporters from a number of outlets, as well as many of the activists present, were denied access to the building. Schmitt himself was not present.

Johnson was sentenced to life in prison in 1995 for shooting and killing Marcus Boyd, a decision he unsuccessfully appealed at the state and federal levels. Circuit Attorney Kim Gardner filed documents with the court in July saying her new Conviction Integrity Unit found evidence of police and prosecutorial misconduct in Johnson’s case. Prosecutors asked for permission to reopen the case, likely so they could decide not to hold a second trial. That would have allowed Johnson to go free.

But St. Louis Circuit Judge Elizabeth Hogan ruled in August that Gardner did not have the authority to make that request, and that even if she did, it was filed well beyond time limits set out in court rules and decisions.

Gardner appealed — oral arguments in the case will be heard Wednesday in the Eastern District of Missouri. The attorney general’s office is representing the state at the request of Hogan. In most criminal trials, the prosecutor would serve that role.

“We stand here with the efforts of Circuit Attorney Kim Gardner, who has tried her best to advance the cause of justice in this case and is being stopped by people like Attorney General Schmitt,” said Jamala Rogers, the executive director of the Organization for Black Struggle. “That’s unacceptable. That’s a misuse of our tax dollars.” 

Color of Change, which organized the petition drive, said they collected more than 25,000 signatures.
Credit Rachel Lippmann | St. Louis Public Radio

Ricky Kidd befriended Johnson while the two were serving time in the same prison between 1997 and 2013. Kidd was exonerated earlier this year after prosecutors in Kansas City decided not to try him again for a 1996 double murder. 

“We used to sit at the round table in the law library, and we would write lawyers and we would write lawyers and we would write organizations and we would cry on paper and put it in an envelope and lick a stamp and send it in the mail hoping that someone would hear our cry,” Kidd said. 

The Midwest Innocence Project later took up both Kidd's and Johnson’s cases.

“We knew that it was a possibility that freedom would reign again on us one day, but we just didn’t know which one would go first,” Kidd said. “But we made a pact to each other. We said whoever made it first would come back and get the other. And so I stand here today excited to be free, and excited to stand on that promise I made to Lamar that I would come back and get him.”

The legal case

Whatever the emotional arguments for Johnson’s release, the legal question is fairly simple — did Gardner have the authority to ask for the new trial?

Gardner and the Midwest Innocence Project, which has worked with Johnson as a client since 2010, say yes.

Lamar Johnson
Credit Missouri Department of Corrections

“Despite the staggering amount of unrefuted evidence showing Johnson is actually innocent and his conviction was obtained solely through perjured testimony, this appeal is not about the merits of Johnson’s innocence — but rather whether there is anything the Circuit Attorney can do to correct this injustice,” Gardner wrote in her brief. “The Circuit Attorney is constitutionally, statutorily, and ethically required to act to correct the legal wrong that is a wrongful conviction of an innocent man secured by perjured testimony.”

The Innocence Project agrees.

“A mechanism must exist in Missouri courts for an elected prosecutor to remedy a clear and convincing wrongful conviction,” attorneys wrote in documents they submitted. “The Circuit Court erred in denying a new trial because Lamar Johnson’s convictions and sentences violate the Due Process Clause of the Fourteenth Amendment in that he is actually innocent, and the State failed for many years to disclose that it used perjured testimony to convict him.”

But the attorney general’s office says Gardner was 24 years late in her request. The state Supreme Court has ruled that a trial court has no further say in a case once a sentence has been handed down, unless court rules or the law say otherwise, lawyers for the state wrote.

“To allow otherwise would result in a chaos of review unlimited in time, scope, and expense. Accordingly, any action taken by a circuit court after sentence is imposed is a ‘nullity’ and ‘void’ unless specifically authorized by law.”

All sides will present their arguments to a three-judge panel Wednesday morning. The appeals court will release a decision at a later date. The loser is likely to appeal to the Missouri Supreme Court.

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