Retired judges call on Mo. Supreme Court to correct potential wrongful conviction

Eleven retired Missouri judges, including a former state supreme court justice, contend a St. Louis judge wrongly denied a hearing for a man convicted of murder even though the prosecutor has concluded he is innocent and was framed by local police and prosecutors.

In a friend-of-the-court brief filed before the state Supreme Court this week, the retired judges joined a growing chorus of support including 45 elected prosecutors, legal scholars, criminal defense attorneys and the American Civil Liberties Union who support the effort by St. Louis Circuit Attorney Kimberly Gardner to overturn the conviction of Lamar Johnson.

Last July, Gardner filed a motion for a new trial in Johnson’s case after her conviction integrity unit re-investigated the 25-year-old murder investigation into the death of Marcus Boyd.

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The review found that in 1994 and 1995 police fabricated evidence that linked Johnson to the crime. And during Johnson’s trial, the motion for a new trial states, prosecutors failed to disclose the extensive criminal history of a jailhouse informant and more than $4,000 in payments to the only known living eyewitness to the shooting.

But Missouri 22nd Circuit Court Judge Elizabeth Hogan never considered the merits of the motion. Instead, Hogan appointed the Missouri attorney general’s office to also represent the state in the matter, questioning Gardner’s authority to even ask that the case be reopened.

That set off a clash between the two prosecutorial agencies, and the attorney general’s office sought to dismiss the motion for a new trial. Hogan ultimately declared she had no authority to consider the motion.

On appeal, the appellate court upheld Hogan’s ruling, but the court transferred the case to the Missouri Supreme Court for further review. In its opinion, the appellate court cited the fundamental questions about the criminal justice system the case raised, including the appropriate role of a prosecutor in correcting wrongful convictions.

Johnson, who has served more than 25 years of a lifetime prison term with no opportunity for parole, remains incarcerated.

The friend-of-the-court brief submitted this week by the retired judges noted that prosecutor’s obligations include “taking appropriate action when the prosecutor obtains evidence—even after a conviction is final—that casts doubt on the conviction.”

Johnson’s case is just one controversy Gardner has faced since she was elected in 2017. The top prosecutor has been engaged in an increasingly embroiled battle with the local police. When the Plain View Project in June published a database of public Facebook posts by St. Louis Metropolitan Police officers with the potential to undermine public trust in policing, Gardner placed 22 officers whose posts were included to an exclusion list. Two of those officers have since been fired.

In January Gardner filed a lawsuit against the city of St. Louis, the local police union and special prosecutors, contending they each have participated in thwarting her efforts to seek justice and equal rights for racial minorities in the city.

Meanwhile, several bills have been proposed in the state legislature that could curb prosecutorial discretion. One bill would allow police to seek prosecutions through the Attorney General’s office if the local circuit attorney declines to prosecute a case.

The bill’s sponsor, Rep. Jim Murphy (R), whose district includes portions of St. Louis County, said the bill was proposed in part as a reaction to what is going on with Gardner’s office, as well as what is happening under another progressive prosecutor, St. Louis County Circuit Attorney Wesley Bell.

“St. Louis has become one of those meccas for social justice reform by the prosecutors,” Murphy said in a phone interview. “[They are] making decisions on what laws should and should not be prosecuted. Their job is to enforce laws not to blanketly nullify them.”

He said the bill is not intended to take away prosecutorial discretion, but to provide an additional check on decisions made by elected prosecutors.

He said he hopes very few cases would be referred to the Attorney General, and that the bill would not lead to the types of clashes between the attorney general and a local circuit attorney currently underway in Johnson’s case.

“Sometimes when somebody’s looking over your shoulder you do your job a little better,” Murphy said.

Gardner did not respond to a request for comment Wednesday.