St. Louis top prosecutor ‘not authorized’ to appeal case of man she says was framed, state attorney says

UPDATE (11/1/19, 6:56 pm): This article has been updated to include a statement from the City of St. Louis Circuit Attorney’s office.

The Missouri Attorney General contended in a court motion filed Friday that the St. Louis top prosecutor is “not authorized” to appeal a local court’s refusal to consider granting a new trial to a man the circuit attorney says was framed for a 1994 murder.

The filing marks the latest clash in an increasingly fraught battle between St. Louis Circuit Attorney Kimberly Gardner and the attorney general’s office over Gardner’s effort to correct what her office has concluded is the wrongful conviction and ongoing incarceration of Lamar Johnson.

The Attorney General’s position, filed in the Missouri Court of Appeals, came in a motion to strike the appellate brief brought by Gardner last week. The attorney general said in the motion that the state prosecutors alone have the authority to appeal the lower court’s decision on behalf of the state, and asked that, as the only representative of the state, the appeal be dismissed.

Having two contrary offices representing the state in the matter “could lead to confusion and a subtle undermining of public confidence in well-established criminal procedures that protect the interests of all parties, including Mr. Johnson and the State,” the attorney general’s office said in the motion.

The attorney general also said that if Gardner’s office planned to continue expressing concerns about a “possible injustice” in Johnson’s case, the local prosecutor could file a friend-of-the-court brief on Johnson’s behalf.

Gardner’s office issued a statement Friday, calling the attorney general’s motion “an unprecedented overreach of power” and “dangerous and unconstitutional and will affect how prosecutors across the whole state of Missouri utilize their discretion.”

Gardner’s office wrote in the statement that the attorney general is attempting to maintain a wrongful conviction.

“No one disputes the evidence of Lamar Johnson’s innocence or the evidence of misconduct unearthed by the Circuit Attorney’s investigation. This is indefensible. Where the stakes are so high, there is no room for gamesmanship,” Gardner’s office said in the statement.

In July, Gardner’s conviction integrity unit filed a motion for a new trial contending that Johnson’s murder conviction was obtained as a result of prosecutorial misconduct and police fabrications. Over the weekend, Johnson will reach his 25th anniversary in custody.

Johnson was convicted and sentenced to life in prison without parole for what the state said was his role in the 1994 slaying of his former friend, Marcus Boyd. That October, Boyd was gunned down on his porch by two ski-masked assailants. Another man, James Gregory Elking, was on the porch with Boyd but was left unharmed.

Elking cooperated with authorities and identified Johnson as the shooter at trial, but has since recanted his identification and testimony. He was paid more than $4,000 after agreeing to talk with police and prosecutors, information that was withheld from the defense, according to the motion for a new trial.

In addition to Elking’s recantation and the undisclosed payments, the conviction integrity unit’s review revealed several other pieces of evidence that called into question Johnson’s guilt: Friends of Boyd disputed statements police had attributed to them that provided Johnson with a motive for the murder; two other men credibly confessed to the murder; the trial prosecutor failed to disclose the criminal history of the jailhouse informant who testified that he had overheard Johnson discussing the murder; the prosecutor misled jurors about the benefits the informant would receive in exchange for his cooperation; and a detective had provided false testimony that discredited Johnson’s alibi.

After the motion for a new trial was filed, 22nd Circuit Judge Elizabeth Hogan, acting on her own, appointed the Missouri Attorney General’s office to also represent the state, ruling that Gardner’s office had a conflict in challenging the actions of her own office. That set off the first skirmish between the two state agencies over whether the motion for a new trial should be heard. Hogan ultimately sided with the attorney general’s office in August, finding that the circuit attorney’s request was 24 years too late, and that state law does now allow the judge to review such cases.

Last week, Gardner appealed the local judge’s ruling to Missouri Court of Appeals Eastern District. The American Civil Liberties Union, the Innocence Project, 34 elected prosecutors and more than 100 legal scholars filed friend-of-the-court briefs in support of Gardner.

The group of elected prosecutors in its brief last week wrote that Johnson’s case had become a “symbol of unfairness” in the criminal justice system.