Missouri Attorney General Schmitt testifying to a Missouri House committee (photo by Tim Bommel, Missouri House Communications).
If Missouri’s elected prosecutors have evidence that a person has languished in prison for decades wrongfully, they don’t have the power to ask for a new trial.
That’s what the Missouri Supreme Court ruled in March, after St. Louis Circuit Attorney Kim Gardner filed a motion for a new trial for Lamar Johnson.
Johnson has spent 26 years in jail, and Gardner alleged former prosecutors and police fabricated evidence to get his murder conviction in 1995.
“What I think people found surprising was that the court said, ‘Well, we don’t have a way for the prosecutor to correct her mistakes,’” said former Missouri Supreme Court Chief Justice Michael Wolff, who joined an amicus brief of retired Missouri judges asking the high court to grant a new trial for Johnson.
The Supreme Court’s decision was felt by prosecutors all across the state, including Jackson County Prosecutor Jean Peters Baker, who recently advocated for Kevin Strickland’s release after 43 years in prison for a triple murder.
“It’s my job to be informed of the issues in the Kevin Strickland case,” Baker said. “But with that responsibility should come some legal tools to actually free him.”
In order for elected prosecutors to have a pathway to correct wrongful convictions, it was up to the state legislature to pass a law giving them this power, Chief Justice George Draper III wrote in a concurring opinion in Johnson’s case.
This spring, proponents came together to draft such legislation, and it eventually became part of a sweeping crime bill approved by lawmakers and awaiting the governor’s signature.
If Gov. Mike Parson signs off, the law would go into effect on August 28.
But while the new law might get rid of one barrier to correcting wrongful convictions, it could potentially create another — opposition from the Missouri attorney general.
‘A lane to drive in’
The pending law carves out a special role for the attorney general that he didn’t have before, Wolff said.
“The attorney general is given a lane to drive in,” Wolff said of the new legislation. “But it’s not as big of a lane as he had in the Lamar Johnson case.”
In the circuit courts, the elected prosecutors represent the state. But in the Johnson case, a circuit judge appointed the attorney general’s office to also represent the state, taking that power away from Gardner.
The new legislation states that if a prosecutor files a motion to vacate or set aside a judgement, the attorney general’s office could appear, question witnesses and make arguments at the hearing.
But the attorney general would not be a party in the case, as in the Johnson case, Wolff said.
If the prosecutor wins, then that’s the end of the attorney general’s involvement. The prosecuting or circuit attorney would likely not call for a new trial, and the person would go free.
But if the prosecutor loses, they could file an appeal and the attorney general could file a motion to intervene or dismiss the appeal.
Senate Minority Leader John Rizzo, D-Independence, said proponents of the bill added language to make the attorney general’s office a “backstop” in these court proceedings — but still, Attorney General Eric Schmitt was never an “advocate” for the legislation.
Gardner’s office was not able to comment on whether or not she will file another motion on behalf of Lamar Johnson if the law goes into effect in August.
A spokesman for the attorney general’s office said they are going to “hold off” on commenting about his potential role in these types of cases until Parson signs the bill into law.
The attorney general’s opposition
For decades, the Missouri Attorney General’s Office — whether led by a Republican or Democrat — has had a blanket policy of opposing any requests for relief in wrongful conviction cases.
According to an investigation by the nonpartisan news nonprofit Injustice Watch, the office has opposed calls for relief in nearly every wrongful conviction case that came before it and has been vacated since 2000.
Former Missouri Supreme Court Judge Laura Denvir Stith raised this concern in a concurring opinion in the Lamar Johnson case.
Stith wrote that in the last decade, the Missouri Supreme Court and the Court of Appeals have granted post-conviction relief or issued writs of habeas corpus that have vacated the convictions of more than 10 people.
“In each such case,” she said, “the attorney general opposed relief.”
Stith also said the attorney general had argued that he was “required” to oppose Johnson’s attempts to obtain a hearing on his newly discovered evidence, so he didn’t show bias to Johnson.
“In suggesting it is his duty, and that of the circuit attorney, as representatives of the state, to oppose a request for habeas or similar relief, the attorney general misunderstands the full extent of the prosecution’s role in the justice system,” Stith wrote.
She pointed to a U.S. Supreme Court ruling stating that prosecutors have a “duty to seek justice, not merely to convict.”
This is not the first time Stith has raised this concern with the attorney general’s office.
In 2003, Stith had posed a key question during a hearing for Joe Amrine, who was facing execution at the time. She had asked the then-assistant attorney general, “Are you suggesting … even if we find that Mr. Amrine is actually innocent, he should be executed?”
“That is correct, your honor,” he said.
Wolff remembers that day well, he said, and was floored by the response, but not necessarily surprised.
Amrine was exonerated, but each attorney general who followed has upheld that sense of “duty,” as Stith put it, to oppose relief in wrongful conviction cases.
Greene County Prosecutor Dan Patterson, who is also the president of the Missouri Association of Prosecuting Attorneys, said he would have to look at every wrongful conviction case that the attorney general’s office opposed to understand if there is a pattern.
“You have to look at the facts, the law and the evidence in each individual case,” Patterson said. “And you can’t lump them together like that.”
He said that he is not concerned about the attorney general office’s potential opposition.
“Our entire criminal justice system is an adversarial system designed to test the evidence and arrive at justice,” Patterson said. “And I believe that is an important part of that.”
Baker said she also isn’t worried.
“If the attorney general opposes, then I want to know why,” Baker said. “And we can have, hopefully, professional differences of opinion and allow a judge to vet that out.”
However, St. Louis County Prosecutor Wesley Bell’s office does see a potential hurdle with the attorney general potentially opposing even the “clearest” innocence cases.
“The attorney general has said, on the record, that they will oppose these no matter what their merits are,” said Dana Mulhauser, who leads St. Louis County’s conviction and incident review unit. “If the attorney general is committed to opposing them, then that’s a little bit frustrating.”
Won’t open the floodgates
If the bill passes, there won’t likely be a flood of motions filed when the law goes into effect on Aug. 28.
The law will be a “game changer” for St. Louis County, Mulhauser said, but wrongful conviction cases take a long time to review.
“A prosecutor’s job is to do justice,” she said. “And part of that is that if you learn that someone is innocent, or was wrongfully convicted, you have to do something about it.”
Mulhauser’s unit is looking into a number of cases currently, but they won’t be done with those investigations by August.
The law will likely be most impactful in larger cities, like St. Louis and Kansas City, where prosecuting attorneys have established units within their offices to review wrongful conviction cases, Patterson said.
His office in Greene County doesn’t have a conviction integrity unit. But if the bill is passed, he plans on creating a process to review these cases, as he anticipates other smaller jurisdictions will be doing as well.
“Even in smaller prosecutor’s offices,” Patterson said, “there’s a way to adjust and learn from conviction integrity units in other jurisdictions, and then tailor that to the size of your own office.”
This story has been updated since it was first published.
SUPPORT NEWS YOU TRUST.
GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.