Mo. Exoneration Bid Tests Limits Of Prosecutorial Power

By RJ Vogt | May 17, 2020, 8:02 PM EDT

Brittany Johnson calls for the exoneration of her father, Lamar Johnson, during a December news conference in downtown St. Louis. The city's Circuit Attorney Kim Gardner found evidence that Johnson was wrongfully convicted of murder in 1995, but opposition by the state attorney general has so far stymied her efforts to exonerate him. (AP Photo/Jim Salter)

Lamar Johnson has spent over half his life in a Missouri state prison, convicted of a 1995 murder that he and St. Louis Circuit Attorney Kim Gardner agree he did not commit.

With Gardner's help, Johnson finally became the subject of a Missouri Supreme Court hearing last month, held remotely due to the ongoing COVID-19 pandemic.

But strangely, the question at the center of the April 14 arguments was not about Johnson's guilt or innocence; it was about Gardner's authority to exonerate him.

Can a prosecutor start the process of righting a wrongful conviction?

Lamar Johnson has always maintained his innocence, but it's unclear if the local prosecutor can give him a chance to prove it in court.

According to Gardner, the answer is yes. After a 2017 report by the Fair Punishment Project ranked St. Louis worst in the nation for prosecutorial misconduct, her office sought and received a federal grant to launch a conviction integrity unit aimed at uncovering wrongful convictions.

Such units, or CIUs, have doubled in number over the past four years as progressive prosecutors like Gardner won local elections around the country. Her CIU selected Johnson's case for its first attempted in-court exoneration after finding the prosecution in his case paid off the only eyewitness, relied on false testimony and ignored signed confessions from two other men.

But last summer, when Gardner asked a local judge to grant Johnson a new trial, she was rebuffed — not only by the judge, but also by Missouri Attorney General Eric Schmitt, whom the judge had asked to join the case in a highly unusual move that underscored tension between the prosecutor and the state's law enforcement establishment.

Without addressing the evidence Gardner dug up, both the attorney general and the court said she can't ask for a new trial due to a procedural rule that requires defendants to file such motions within 25 days of conviction.

Because the rule does not mention prosecutors, Gardner believes the time limit does not apply to her. But on appeal, the attorney general has maintained that her interpretation "would undermine the adversarial nature of the criminal justice system."

Over a hundred legal ethics scholars and dozens of prosecutors have sided with Gardner, arguing that "a minister of justice" must have some method to carry out her ethical responsibilities when faced with a wrongful conviction.

Some have also noted that other Missouri prosecutors initiated exonerations with little to no resistance, questioning whether the opposition Gardner faces is tinged with political and racist undertones.

Miriam Krinsky, the executive director of Fair and Just Prosecution, a group that's supported Gardner, said the Supreme Court's ruling in the case could determine the future prospects of conviction integrity units in Missouri — and possibly even embolden resistance to the national wave of exoneration efforts in other states.

"Sadly the pushback has been particularly vicious for elected women of color like Kim Gardner," Krinsky said. "It's unfortunate that some in law enforcement and at a statewide level are undermining the choice voters made and eroding her ability to do the job they put her in office to do."

The state high court's decision is expected later this summer. Gardner, who filed a federal civil rights lawsuit in January over what she described as a widespread, racially motivated conspiracy to undermine her, told Law360 that the ruling will reveal whether Missouri has "the will to allow prosecutors to correct wrongful convictions."

"The credibility of the whole justice system is at stake," she added.

Evidence of Innocence

At the heart of Johnson's murder conviction is an eyewitness identification by Greg Elking, who was with the victim, Marcus Boyd, on the night two masked men shot him on his front porch.

Elking initially told investigators he couldn't see the culprits' faces. But police had already latched onto the then-20-year-old Johnson as a suspect, and Gardner's office discovered evidence that detectives coached Elking to select Johnson during a lineup. The conviction integrity unit also found records that prosecutors paid Elking over $4,000 and resolved some of his traffic tickets in exchange for his testimony.

Lamar Johnson, shown here with his family, was 20 years old when police identified him as a murder suspect.

"When [Gardner] went and looked in her files, she found the evidence we'd been asking for for 10 years and previous prosecutors told us didn't exist," said Tricia Bushnell, the executive director of the Midwest Innocence Project and an advocate for Johnson.

During trial, two alibi witnesses said Johnson was at a friend's house on the night of the murder, only leaving for a few minutes. A police detective testified that he believed it would take "no more than five minutes" for Johnson to drive from the house to the crime scene, but Gardner's CIU found that the round-trip drive would take at least 20 minutes.

The unit's 70-page report alleges the prosecutor in the case, Dwight Warren, violated "ethical and constitutional duties" by presenting testimony "he knew or should have known … was false."

Warren has called the allegations "nonsense" in public statements; after 45 years in law enforcement as a police officer and prosecutor, he resigned not long after Gardner was elected and has since published a blog post blasting her conduct in an unrelated investigation of former Missouri Gov. Eric Greitens.

The CIU's report also claims Warren covered up the extensive criminal history and racist motivations of a jailhouse informant who played a key role in the conviction. It concludes with copies of corroborating confessions by Johnson's co-defendant and another man named James Howard.

"I know Lamar Johnson is innocent of that crime because I was there and Lamar Johnson was not there," Howard wrote.

Despite the detailed evidence of Johnson's innocence, Judge Elizabeth B. Hogan rejected Gardner's effort to re-open the case in August.

In a strongly worded order, the judge hinted that Gardner could have an ulterior motive in accusing Warren, her former employee, of misconduct. She also lambasted Gardner for interviewing jurors from the original trial during the review, conduct so threatening to "the integrity of the legal process" that Hogan said she was compelled to appoint Attorney General Schmitt to the case.

That move raised eyebrows around the country, considering Gardner was already representing Missouri in the case.

It also led to awkwardness when both Johnson and Gardner appealed: Schmitt's office moved to dismiss Gardner's filing, saying that only the attorney general can represent the state on appeals. When that motion was granted, Gardner's office was effectively kicked out of the case — she remains as an intervenor only.

"I don't think I've ever seen that in a criminal case," Bushnell noted.

A History of Opposition

The Missouri attorney general's office did not respond to repeated requests for comment on how a prosecutor should handle potentially wrongful convictions. But during the April 14 Supreme Court arguments, state counsel Shaun Mackelprang said Gardner should have turned over the evidence she found to Johnson or his lawyers.

St. Louis Circuit Attorney Kim Gardner has urged the Missouri Supreme Court to let prosecutors re-open cold cases, a position the state attorney general has staunchly opposed. (AP Photo/Jim Salter)

"What a prosecutor can't do is file a petition on behalf of the defendant," he said. "When a prosecutor takes that step — regardless of whether they say they're filing it on behalf of the state — the prosecutor has taken on the role of advocating on behalf of the defendant. It's inconsistent with the adversarial nature of our system."

According to Mackelprang, Johnson should have filed a habeas corpus action or sought some other post-conviction relief, two areas where the attorney general, not Gardner, would have jurisdiction.

But Johnson has already pursued those options multiple times during the 25 years he's spent in prison. Each time, the attorney general's office opposed relief on procedural grounds.

"When he filed he didn't even get an evidentiary hearing," Bushnell said. "For the attorney general to now say that's supposed to be the process, well they fought him when he tried that. And this is an attorney general who for the last 30 years, his office has fought release in all habeas cases."

Johnson's former cellmate Ricky Kidd would know. He, too, spent over 20 years in prison proclaiming innocence, but a judge finally vacated his conviction in August. The attorney general opposed relief throughout his case, like it has in every single exoneration it's been a party to — a total of 20 over the past 10 years.

"For 10 years, the state did not argue that I was not innocent," Kidd told Law360. "They argued over petty legal impediments."

Notably, other Missouri prosecutors have been able to exonerate people by taking independent action, like Tim Lohmar, president of the Missouri Association of Prosecuting Attorneys and the St. Charles County prosecutor.

Two teenagers accused in 2015 of raping a 17-year-old woman had pled guilty, but subsequent evidence cast doubt on the alleged victim's accusation. In 2018, Lohmar moved to set aside their pleas under a rule with a since-expired time limit.

"Since the rule doesn't specify whether the state or the defendant may initiate the motion, we initiated the motion because we felt it was our responsibility to be proactive in correcting a serious wrong," Lohmar told Law360 in an email.

Unlike in Johnson's motion, where the judge refused to let Gardner to reopen the case, Lohmar was successful and the attorney general was not invited to join the case.

"When I as a prosecutor believe that a conviction I obtained lacks integrity, I have a responsibility to make it right," Lohmar said. "It's really that simple."

According to Peter Joy, a Washington University law professor who penned an amicus brief supporting Johnson, "It is interesting that the trial court granted the motion even though the rule only says 'defendant."

"It shows that the trial judge in Lamar Johnson's case could have granted the motion," he added.

National Implications

Marissa Bluestine, the assistant director of the Quattrone Center for the Fair Administration of Justice at University of Pennsylvania Carey Law School, has been directly involved with 17 exonerations over her career; she said it is unusual for a prosecutor instead of a defendant to file a new trial motion.

"It's almost always filed by the defense, and then the prosecutor has to respond in court," she said.

But Johnson's attorney Lindsay Runnel noted Missouri's case law is "quite clear that defendants can't file in the trial court after judgement is rendered."

As a result, Gardner determined that the best shot at exonerating Johnson without running into resistance from the attorney general would be filing the motion herself and taking advantage of the rule's silence on the time limit for prosecutors.

According to Bluestine, the move made sense because "there has to be some kind of mechanism for Gardner to actualize her ethical responsibility as a minister of justice."

"If you require the defense to do it, it just slows down the process," she said, adding that time is of the essence considering the pandemic virus currently sweeping through correctional facilities across the county. "If you truly have an innocent person in prison, you're increasing that person's incarceration unnecessarily and potentially putting their life in danger."

Some states have enacted laws to clear the red tape. In Utah, for example, legislators passed a Conviction Integrity Units Act in March clarifying that prosecutors may petition for new trials in cases like Johnson's.

Nineteen other states have taken a different tack by amending their professional conduct rules to reflect American Bar Association guidance that prosecutors must disclose "substantial new evidence of innocence" and "seek a remedy when the evidence is clear and convincing that their office convicted an innocent person."

Despite those steps, half of the 60 conviction integrity review units around the country have never recorded a single exoneration, according to the National Registry of Exonerations.

While their lack of progress could be chalked up to a lack of resources, political will or potentially even the absence of wrongful convictions in those jurisdictions, Runnels said procedural roadblocks are part of the problem.

"Some state legislatures have done the work of really making clear a procedural vehicle for prosecutors that want to do this," she said. "Other states — like Missouri — have not."

Daniel Harawa, a Washington University law professor who argued for Johnson during the Supreme Court hearing, said the case is an opportunity to "make clear that a prosecutor can always file a new trial motion whenever evidence of a wrongful conviction comes to light."

A decision otherwise, Bushnell said, would be "a blow to the efforts of prosecutors running on reforming the criminal justice system around the country."

"Kim Gardner was overt; reform is what voters elected her to do," she added. "Now she's being told she can't do that ... What does that mean for the nation?"

Gardner told Law360 the backlash she's faced is distracting from the issue at hand: Johnson's wrongful conviction.

"We have an innocent man in prison," she said. "It should be about him, not about the legal bullying."

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--Editing by Rebecca Flanagan.

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