Marcus Boyd and Gary Elking were sitting in the dark on the stoop of Boyd’s apartment in St. Louis, Missouri, when two masked men brandishing guns ran up to them and started to fire. Boyd was shot multiple times and died at the scene. Elking, terrified but unharmed, fled on foot.
Days later, Elking would tell the police that he couldn’t identify either of the assailants because they wore dark clothing and black ski masks that covered all but their eyes. The only other person at the scene, Boyd’s girlfriend, Leslie Williamson, was similarly unable to identify the attackers. She’d been upstairs drawing a bath for the couple’s young daughter when she heard the popping of gunfire; she made it down to the porch in time to glimpse a man in black holding a gun.
The police had nothing concrete to go on. But by the time they finally interviewed Elking, they had already latched onto a suspect: 20-year-old Lamar Johnson.
Johnson would soon be arrested and tried for the October 1994 murder on thin and troubling evidence. The state’s theory of the crime was that Johnson murdered Boyd over a drug-related dispute. And Elking, who had been at Boyd’s that night to pay off a drug debt, would be key to the conviction. Although he’d told police he didn’t know who the masked men were, he later picked Johnson out of a lineup. The prosecution also relied on the testimony of a jailhouse informant, William Mock, who said he’d overheard Johnson brag about the killing while the two were locked up in the same unit after Johnson was arrested.
In 1995, Johnson was sentenced to life in prison without the possibility of parole. Still, he has long maintained his innocence — and now has a powerful ally in his corner: Circuit Attorney Kim Gardner, chief prosecutor for the city of St. Louis.
Gardner ran on a reform agenda and in 2016 became the first black elected prosecutor in the city’s history. She won federal funding to start a conviction integrity unit and in 2018, at the behest of the Midwest Innocence Project, began investigating Johnson’s case. A year later, she concluded that he was innocent.
In July 2019, Gardner filed a motion with Circuit Court Judge Elizabeth Hogan conceding that Johnson was wrongfully convicted. She asked the judge to grant a hearing on the matter and, ultimately, a new trial for Johnson. “When a prosecutor becomes aware of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of a crime that the defendant did not commit — the position in which the circuit attorney now finds herself — the prosecutor is obligated to seek to remedy the conviction,” Gardner wrote in the court filing.
But Hogan balked, questioning whether Gardner had the power to challenge the conviction. She called in Missouri Attorney General Eric Schmitt to see what he had to say about it. Schmitt argued that not only did Gardner lack that authority, but the court couldn’t even entertain the matter. Hogan aligned herself with Schmitt and dismissed the case without considering the evidence Gardner had uncovered.
Hogan’s decision sparked a unique legal battle that, on April 14, culminated in a video conference hearing before the Missouri Supreme Court. The question before the judges, who are working remotely amid the coronavirus crisis, is whether a prosecutor has any power to right a wrongful conviction — a decision that will resonate far beyond the current case. According to Schmitt’s office, the answer is no. Giving a prosecutor that power “has the potential to undermine public confidence” in the criminal justice system, Shaun Mackelprang, chief of the attorney general’s criminal division, told the judges. “The prosecutor’s interests are broader than the interests of a single individual.”
I Was There, Johnson Was Not
Gardner’s yearlong inquiry revealed that Johnson’s conviction had been marred by extensive police and prosecutorial misconduct. She found that police had fabricated witness statements in an effort to frame Johnson (the witnesses said they’d never told police the things that had been attributed to them) and had pressured Elking into making an identification after he’d repeatedly told them he did not know who had attacked Boyd that night. Elking said that a detective told him who to pick out of the lineup.
Elking said that a detective told him who to pick out of the lineup.
Gardner learned that Elking had been paid more than $4,000 in exchange for his testimony and that prosecutors had also fixed a string of traffic tickets for him. None of this information was turned over to Johnson’s defense. Beginning in 2009, Johnson’s lawyers repeatedly requested records related to the payments, but the state denied their existence. Ultimately, Gardner located more than 60 documents related to the benefits Elking was awarded in exchange for his cooperation.
The state also failed to tell the defense that the jailhouse informant, Mock, had an epic criminal history (some 200 pages long) and a history of testifying for the state, and that he’d indicated in a letter to prosecutor Dwight Warren that racial animus was motivating him to help convict Johnson. “Yet, the state failed to disclose any of this information to Johnson at trial,” Gardner wrote in a court filing.
There was also the fact that Johnson had an alibi: He was with his girlfriend, child, and two friends several miles away at the time of the shooting. But his whereabouts that night were never fully investigated by police nor raised by the defense at trial.
On top of it all, Gardner learned that not long after Johnson was convicted, two men, Phillip Campbell and James Howard, had each separately confessed to killing Boyd. Both insisted that Johnson had nothing to do with it. Campbell pleaded guilty to the crime after Johnson was convicted and was sentenced to seven years. Howard, who is currently in prison for an unrelated crime, has never been charged with Boyd’s murder, so by standing up for Johnson he has put himself on the hook for another potential conviction. “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.”
Given the breadth of the misconduct, Gardner felt she had to find a way to make things right — after all, it was her office that was responsible for Johnson’s conviction. “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,” she wrote. “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.”
The Taint of Misconduct
Not everyone agrees with that position. Schmitt’s office has since doubled down in opposition to Gardner with a mind-numbing array of arguments.
Among these is a seemingly mundane one: The court rule governing the ability to file a motion for a new trial — which Gardner did in seeking review of Johnson’s case — has a hard-and-fast 15-day deadline that can’t be waived, Schmitt wrote in a court brief. And since Gardner’s original motion wasn’t filed until July 2019, it was “8,758 days out of time.”
Before the Missouri Supreme Court, Daniel Harawa, a law professor at Washington University in St. Louis who is representing Gardner, noted that affirming the sanctity of a 15-day deadline would produce an absurd result. “It should not be that a prosecutor can learn that a person is wrongfully convicted on day 14 and take action, but that on day 16 it can do nothing.” Either way, he said, the court has the power to “clarify the rule or to amend the rules to make clear that a prosecutor can always file a new trial motion whenever evidence of a wrongful conviction comes to light.”
If Johnson was convicted based on prosecutorial misconduct, whatever the original prosecutor thought about his guilt is irrelevant.
Not so, says the attorney general, who has argued that no prosecutor in the state of Missouri has the power to undo a wrongful conviction. Sure, Gardner has a duty to turn over to Johnson or his lawyers the evidence of official misconduct that she’s gathered, but that’s all, Mackelprang said. To allow her more leeway would “create chaos” and erode the public’s faith in the system.
Just because Gardner has “reached the opinion” that Johnson is innocent doesn’t mean he is, Mackelprang told the court. Prosecutors aren’t allowed to “advocate on behalf of the defendant,” he said, because that is “inconsistent with the adversarial nature of our system,” where evidence is tested under cross-examination. And that can’t happen “if the prosecutor was allowed to simply, unilaterally present evidence” of innocence and expect Johnson could be released. “The previous prosecutor doesn’t believe that Mr. Johnson was innocent, at least as far as I know,” Mackelprang told the court. “The 12 jurors who found him guilty also did not believe he was innocent.”
The AG’s argument overlooks important facts — including that if Johnson was convicted based on prosecutorial misconduct, whatever the original prosecutor thought about his guilt is irrelevant. Moreover, jurors contacted during the reinvestigation of Johnson’s case said that if they had known about the state misconduct and hidden evidence, they would have been unlikely to convict. “I do not believe I would have voted to convict Mr. Johnson,” one juror said.
But a larger problem with the state’s position is that it is inconsistent with the everyday practice of criminal prosecution. Prosecutors routinely exercise discretion and stipulate to facts and evidence in individual cases — in other words, they make agreements with defendants that circumvent the adversarial process, such as with plea deals. That is key to the job, notes Sean O’Brien, a law professor at the University of Missouri, Kansas City. Following the AG’s logic “is like saying that a prosecutor should never accept a guilty plea,” he said. “That’s nuts.” O’Brien also notes that it is well-established that the U.S. criminal justice system is not purely adversarial precisely because a prosecutor’s duty is to seek justice. “So, if an innocent person is acquitted even the prosecutor wins because justice is done.”
O’Brien is one of nine legal scholars to sign on to an amicus brief filed with the Missouri Supreme Court in support of Gardner, who they say not only has the right, but also the duty to correct a wrongful conviction. A variety of friend-of-the-court briefs have been filed at various stages of the case — including by retired Missouri judges, 45 elected prosecutors from across the country, and the Innocence Network — advising the court that the law does, and must, allow Gardner to act. The prosecutor in Johnson’s case “violated so many constitutional rights in order to convict” that Gardner “needs to purge the taint of misconduct” from her office, O’Brien said. “Her ethical obligation to do so is not in question.”
Once Upon a Time in Missouri
Schmitt says that Johnson can vindicate his rights by following regular post-conviction procedure: File a challenge based on the evidence Gardner has supplied and let the legal system work its ordinary, slogging magic.
Once upon a time in Missouri, this might have been a reasonable suggestion. Until 1987, this kind of post-conviction challenge would have been brought in the county where the conviction was obtained — in Johnson’s case, St. Louis — which makes sense because that prosecutor represented the state in the underlying case and would have ready access to its history. If that rule had been retained, there is every reason to think that Johnson would be able to receive relief since Gardner would have the power to agree to it. O’Brien says that there are a number of examples of that happening under the old rule.
“The Missouri attorney general has never agreed to an innocence claim.”
But, in an effort to speed along death penalty appeals, the rule was changed to require that post-conviction challenges be raised in the county where the defendant is incarcerated — often quite far from the original jurisdiction. And in practice, since the prosecutor in that county has no connection to the case, that has meant the AG’s office is called in to represent the state. “The Missouri attorney general has never agreed to an innocence claim,” O’Brien said. “They have fought every single one.”
That includes Johnson’s previous appeals, which the AG successfully argued should be tossed out on procedural grounds.
And even if Johnson’s appeal were to survive a procedural challenge, the process would only draw out his already wrongful incarceration. O’Brien ticked off a list of cases where innocent men had waded through years of litigation before being freed. There’s Ricky Kidd, who spent 10 additional years behind bars after bringing evidence of his innocence to court; Dale Helmig, who spent nearly six extra years in prison; and Darryl Burton, who did an additional eight years.
At times, the AG’s office has taken its opposition in these cases to the extreme. In 2003, the Missouri Supreme Court considered the case of Joseph Amrine, who was on death row for a murder he did not commit. The issue before the judges was whether Amrine, who had exhausted his regular avenues of appeal, had the right to court consideration of his innocence claim. The AG argued that he did not. Are you suggesting that “if we find that Mr. Amrine is actually innocent, he should be executed?” Judge Laura Denvir Stith asked. “That’s correct, your honor,” the assistant attorney general replied.
“The whole court was just stunned by that argument,” O’Brien, who represented Amrine, recalled.
Since 1991, 47 people have been exonerated in Missouri, including Amrine, Kidd, Helmig, and Burton. To date, none of those exonerations has been attributed to the work of a conviction integrity unit, which have become crucial to freeing the wrongfully convicted. There are 59 such units in operation across the nation, according to the National Registry of Exonerations. In 2019, conviction integrity units were involved in 55 exonerations, nearly 40 percent of the year’s total; in all, they have been involved in more than 400 exonerations.
And unless the Missouri Supreme Court steps in, prosecutors in the state may remain hobbled, which is essentially what Schmitt is advocating: Keep the power to vet these claims in his hands and dismiss from the process elected prosecutors like Gardner, who vowed on the campaign trail to work toward a more equitable criminal justice system.
Aside from a narrow and vengeful reading of the law and procedural rules, there is likely one other element underpinning Schmitt’s position: politics.
Aside from a narrow and vengeful reading of the law, there is likely one other element underpinning Schmitt’s position: politics.
Since taking office, Gardner has been battling the status quo. She is hardly alone. Reform prosecutors across the country have faced varying degrees of backlash from the entrenched power structures they’ve challenged, and they’ve repeatedly had their discretion questioned as they’ve sought changes that upset the old guard. And, as has also happened in other jurisdictions, Missouri lawmakers are now pushing a bill that would give the AG power to wrest from Gardner any number of criminal cases for prosecution. This kind of pushback has been especially brutal against prosecutors of color, like Gardner, who have been the target of racist attacks and death threats. “I’ve not seen a prosecutor as disrespected as Kim Gardner,” O’Brien said.
It does appear that Gardner’s actions are being singled out. In one example included in a brief filed with the state Supreme Court, Johnson’s attorneys point to several drug convictions that were tossed out by a trial court in 2003 — some two years after the defendants were sentenced — when the elected prosecutor in Cole County discovered evidence that they had been tainted by police misconduct. Nonetheless, the current elected Cole County prosecutor, William Locke Thompson, penned an amicus brief in support of Schmitt’s position. (In fact, 30 elected prosecutors signed onto the brief. All of them are from small or rural counties. Twenty-four of them are men; all of them are white. No prosecutor from the state’s major population centers joined in.)
“You have to ask yourself, what’s different about this case?” said Lara Bazelon, a professor of law at the University of San Francisco who was among 106 scholars of legal ethics to sign on to a brief in support of Gardner. “Is Lamar Johnson any less innocent? No. But Kim Gardner, she’s a progressive prosecutor and she’s a black woman and that sure is different.”
“When she brought her motion, the trial judge’s reaction was to question her ethics and appoint the attorney general to intervene,” Bazelon added. “Do I think that would happen if Gardner had been a white man? No. Do I think that would have happened absent the long history of tension between Kim Gardner and the establishment that she successfully took on in her reform campaign? No. There’s a direct line between who she is, what she stands for, and where we are with this case.”
So even though there is ample evidence of Lamar Johnson’s innocence, he remains locked up in Missouri’s Jefferson City Correctional Center as the Covid-19 pandemic maintains its stranglehold on the nation, including in prisons and jails, which are ill-equipped to contain its spread. To date, there are no confirmed coronavirus cases where Johnson is housed. Since March 23, the Missouri Department of Corrections has confirmed that just 30 inmates and 13 staff members have become infected — though, as a general rule, testing throughout the nation’s correctional systems has been limited. “Things are definitely crazy with the coronavirus,” Johnson wrote in an email to a Kansas City television reporter. “But I’m staying strong and faithful and of course, prayed up. A just result has to happen.”
That’s the result O’Brien is hoping for too. “In Lamar Johnson’s case, you’ve got a prosecutor who was confronted with hard evidence that this guy doesn’t belong in prison. She did the right thing,” he said. “The question here is whether the system is going to do the right thing.”