Flynn controversy surfaces in Missouri wrongful conviction fight

St. Louis’ top prosecutor argued Thursday that the Missouri Attorney General, who opposes her efforts to correct a wrongful conviction, contradicted himself when he supported the federal government’s authority to drop charges against former national security advisor Michael Flynn.

Last year, St. Louis Circuit Attorney Kimberly Gardner filed a motion for a new trial in the case of Lamar Johnson, whom her conviction integrity unit determined was wrongfully convicted for a 1994 murder as a result of prosecutorial misconduct and police fabrications. Missouri Attorney General Eric Schmitt argued that Gardner lacks authority to correct a wrongful conviction by belatedly requesting a new trial, though similar processes are used in several other states, including neighboring Illinois.

But earlier this week, Schmitt signed on to a “friend of the court” brief with attorney generals from several other states backing the Justice Department’s authority to drop charges against Flynn, who pleaded guilty in 2017 to lying to the FBI about his talks with a Russian ambassador.

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The federal judge in that case recently appointed a “friend of the court” to present arguments against dropping the charges. The brief filed by state attorney generals emphasized the importance of a prosecutor’s ability to decide both when to prosecute, and when to decline to move forward with a criminal case.

On Thursday, Gardner’s motion to the Missouri Supreme Court contended that Schmitt’s recent position conflicts with his stance in the increasingly fraught battle over Johnson’s conviction. The Johnson case currently awaits a decision by the state supreme court, whose ruling could determine the future role prosecutors play in correcting wrongful convictions statewide.

“His position in the Flynn case—that it is within the unfettered discretion of the prosecutor to dismiss charges after a defendant has pleaded guilty, cannot be squared with his position before this Court—that a prosecutor cannot even seek a hearing when she determines an incarcerated person is innocent,” states Gardner’s motion.

The attorney general responded with a motion arguing that the central issues in the two cases are different and do not conflict. The motion noted that the brief Schmitt joined with his counterparts from other states in the Flynn case related to the U.S. Constitution, while Johnson’s case is about state laws, and that Flynn, unlike Johnson, hasn’t been sentenced yet.

Last month, Missouri’s highest court heard oral arguments in Johnson’s case.

Johnson, serving a lifetime prison term with no opportunity for parole, remains in the custody of the Missouri Department of Corrections amid the COVID-19 pandemic, which has hit places with limited ability to practice social distancing, such as prisons, jails, and nursing homes particularly hard.

Last year, a St. Louis trial judge appointed the Missouri Attorney General’s office to dually represent the state in the Johnson case, setting off the monthslong battle between the agency and the top St. Louis prosecutor. The judge eventually denied Gardner’s request for a new trial, and Johnson appealed. His case is pending before the state supreme court.

Injustice Watch Executive Director Juliet Sorensen signed an amicus brief in United States v. Michael T. Flynn asking the Court to undertake a review of the government’s request to dismiss the case. Sorensen plays no role in the assigning, reporting, or editing of Injustice Watch stories.