Missouri Attorney General’s Lack Of Courage In Lamar Johnson Case Is A Miscarriage of Justice

This piece is a commentary, part of The Appeal’s collection of opinion and analysis on important issues and actors in the criminal legal system.

In St. Louis, a man who has sat in jail for more than 25 years is battling for his freedom and the chance to prove his innocence. Lamar Johnson has the support not of the public defender but, surprisingly, of the locally elected prosecutor, Circuit Attorney Kim Gardner, who has championed a new trial for him. But a court has yet to rule if Gardner is correct. The primary roadblock has been Missouri Attorney General Eric Schmitt, who appears focused far more on preserving a conviction than pursuing actual justice.

Schmitt should take note of a recent case in Pennsylvania, where a court heaped praise on a prosecutor for acknowledging that a man deserved a new trial, even when it meant reversing a murder conviction. Last month, Robert Falin, deputy district attorney in Pennsylvania’s Montgomery County, stepped before the Third Circuit Court of Appeals with a startling statement: Rather than argue against a lower court’s decision to reverse a murder conviction, Falin surprised everyone by backing the decision, saying, “I no longer believe that the lower court committed error.” Two judges—an Obama and a Trump appointee—commended Falin’s commitment to justice, emphasizing that a prosecutor’s job is not to win at all costs but to “see that justice is done,” which includes conceding when mistakes have happened. 

As the Third Circuit judges recognized, a prosecutor has an obligation not to secure convictions but to represent the interests of the state. And there is no question what those interests should be: truth and justice. The Missouri Supreme Court has stated that a prosecutor “has the responsibility of a minister of justice.” And the American Bar Association, in setting out “standards for the prosecution function,” provides that a prosecutor should “not defend a conviction if the prosecutor believes the defendant is innocent or was wrongfully convicted, or that a miscarriage of justice associated with the conviction has occurred.”

These words should be a lesson for Schmitt, who appears to have a different view of the role of a prosecutor. Lamar Johnson was convicted of murder in 1995, but Gardner, whose office originally prosecuted Johnson, now believes he is innocent. Last year, her office uncovered evidence that she argues proves that Johnson’s original trial was marred by injustice, including perjured testimony, the withholding of evidence, and just one eyewitness, who has since recanted. Two other men have signed affidavits admitting they, and not Johnson, committed the murder and Johnson himself has an alibi for the time of the crime. Gardner then did what we should want any prosecutor to do—she sought to remedy this grave injustice.

When a prosecutor claims that an innocent person is in prison, one would expect a court to hear the evidence and decide if that person has been wrongfully convicted. But Schmitt has committed his office’s resources to ensuring that doesn’t happen. Schmitt has sidestepped questions of Johnson’s innocence, saying his office “is not here to comment on guilt or innocence,” instead arguing that Johnson is barred from a new trial due to procedural technicalities—that he had to have filed a motion for new trial within 15 days of his original sentencing and that Gardner lacked authority to file such a motion on Johnson’s behalf. 

Lawyers from across the country have backed Gardner, saying she was correct to act on his behalf. Forty-five elected prosecutors filed a brief in support, arguing that prosecutors are “ethically required” to right past wrongs. A group of 106 legal scholars urged the court to rule for Johnson, saying Gardner “acted well within her ethical, professional, and legal obligations” in seeking a new trial for him.

Nevertheless, the Missouri courts have sided with Schmitt, seemingly content to ignore that an innocent person very well may be locked in prison. Johnson still has a chance before the state Supreme Court, where earlier this month a group of retired Missouri judges filed a brief in support of Johnson, arguing that courts have the obligation to “not only dispense justice, but equally important, to maintain the integrity of the judicial system.”

Unfortunately, the reality is that it is rare for prosecutors to demonstrate the courage to address past wrongs, whether it be conceding that an error occurred in a case, like Falin did, or proactively seeking to uncover and fix wrongful convictions, like Gardner is trying to do. For example, District Attorney Margaret Moore of Texas’s Travis County appears intent to pursue a second trial against Rosa Jimenez, whose conviction had already been overturned. U.S. Magistrate Judge Andrew Austin asked if Moore had read the opinions of “four different judges” who all concluded Jimenez, who has been in prison for over 17 years, is likely innocent.

Since 1989, over 2,500 people have been proven to have been wrongfully convicted. Far too frequently, the prosecutor and the office responsible for the conviction have stood in the way of those exonerations, refusing to admit they got it wrong. University of San Francisco School of Law Professor Lara Bazelon, an authority on wrongful convictions, has labeled such prosecutors as “innocence deniers,” saying they “delay justice and in some cases actively work against it.” 

Certainly not all prosecutors are “innocence deniers.” In Bazelon’s book “Rectify: The Power of Restorative Justice After Wrongful Conviction,” she highlighted Ken Cuccinelli, who as Virginia’s attorney general made an effort to elevate justice above preserving a conviction when evidence showed a man had been wrongfully convicted. After the court asked Cuccinelli how he could sanction undoing the jury’s verdict of guilty beyond a reasonable doubt, Cuccinelli, who is now the acting deputy secretary of Homeland Security for the Trump administration, responded, “My job is not to defend convictions, it’s to defend justice.”

That’s why when someone in Gardner’s position shows the spine to argue that an innocent person is in prison, a court should hear the evidence and make a decision on the facts. And someone in Schmitt’s position should help make that happen. 

After all, that is a prosecutor’s job.

Ben Miller is a senior legal counsel at the Justice Collaborative, a nonprofit organization working to reform the criminal legal system.