KANSAS CITY, Mo. — Over the summer, Jackson County Prosecutor Jean Peters Baker said she was focused on the “stroke of the clockâ€Â — 9 a.m. Aug. 28, to be exact.
It was the first time local prosecutors in Missouri were empowered to file motions asking judges to free prisoners they deemed wrongly convicted. Baker became the first and, as of Thursday, appeared to remain the only prosecutor to utilize it.
But to post-conviction attorneys and legal observers across the state, while the new law is a step in the right direction, it has not worked as effectively as they had hoped. Some say little has changed.
“It’s a travesty,â€Â Sean O’Brien, a University of Missouri-Kansas City law professor, said of how the law is playing out in the case of Kevin Strickland, who Baker is trying to exonerate in a 1978 triple murder in Kansas City.
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That’s because the Missouri Attorney General’s Office, which has fought to uphold convictions, is “abusing†the process by filing “motion after motion,†according to Senate Minority Leader John Rizzo, who wrote the provision in the law.
Under the law, a prosecutor can file a motion to vacate a conviction “at any time†if they have information that a prisoner might be innocent or “erroneously convicted,†commencing a hearing before a judge. The attorney general can appear at the hearing to question witnesses and make arguments, it states.
Rizzo said the law was not intended to allow the AG’s office to file motions the way it has in Strickland’s case. But in September, the Missouri Court of Appeals, Western District, ordered a judge to consider motions filed by Attorney General Eric Schmitt’s office. That decision, Rizzo said, “made new law out of thin air.â€
“It’s really a tragic situation of people that have been wronged by the judicial system that are continuing to be wronged by the judicial system and the attorney general,†Rizzo, an Independence Democrat, told The Star.
In May, Strickland, 62, received rare support from Jackson County prosecutors who said he is “factually innocent†and called for his release. Baker filed a motion seeking to free Strickland when the new law went into effect in August. The AG’s office has fought her efforts, contending Strickland, who was 18 when he was arrested, is guilty and received a fair trial in 1979.
Rizzo said Strickland, who has spent more than 40 years in prison, continues to be “irrevocably damaged in pursuit of power.â€
In a statement, Chris Nuelle, a spokesman for Schmitt, said the appeals court and the Missouri Supreme Court have issued orders agreeing with his office’s read of the new statute.
“And any comments to the contrary are unfounded,†Nuelle said.
Asked about the new law, Greene County Prosecutor Dan Patterson in an email said the Missouri Association of Prosecuting Attorneys — of which he is president — helped draft its language “with safeguards designed to ensure a full review of all available evidence by the court in making any decision.â€
AG opposition
When Baker announced her office determined Strickland is innocent following a months-long review, she did so with support of federal prosecutors in western Missouri, Jackson County’s presiding judge and other officials.
“Now that we know, he must be released soon, rather than quibble over procedural hurdles,†Kansas City Mayor Quinton Lucas said in a letter made public May 10. “This man has served 43 years for something he did not do.â€
Nathan Garrett, then a member of the Board of Police Commissioners, called Strickland’s conviction “alarming.†He said the Kansas City Police Department had no plans to “oppose or in any manner hinder Mr. Strickland’s efforts to seek exoneration and effect his release.â€
Weeks later, Kansas City’s City Council passed a resolution urging Missouri Gov. Mike Parson to pardon Strickland.
Since then, ºüÀêÊÓƵ County Prosecuting Attorney Wesley Bell said he also agrees the evidence that Strickland was wrongly convicted “is overwhelming.â€
Still, the attorney general’s office has argued Strickland continues “to evade responsibility†for the April 25, 1978, killings of Larry Ingram, John Walker and Sherri Black at 6934 S. Benton Ave.
In the last 20 years, the AG’s office, under Republicans and Democrats, has resisted nearly every wrongful conviction case to come before it, news outlet Injustice Watch and The Appeal reported in 2020. Attorneys see the AG’s office as the largest barrier to freeing the innocent in Missouri and say it has had a policy to fight innocence claims, no matter the evidence, for at least 30 years.
“They will make arguments that are completely contradictory to each other in order to save a conviction,†ºüÀêÊÓƵ-based attorney Liz Ramsey said on an October panel about wrongful convictions. “Innocence does not matter; humanity does not matter.â€
The Star requested an interview with Schmitt, a Republican running for U.S. Senate. His office provided a statement instead.
“The Missouri Attorney General’s Office, which handles post-conviction challenges, works daily to ensure that criminal convictions are upheld,†it said. “There is no written or unwritten rule, the Attorney General’s Office evaluates the facts and merits of every case it handles to make a reasoned decision on whether to oppose post-conviction relief and work to uphold convictions.â€
The AG’s office added that there are instances in which it “confesses error in certain proceedings.â€
Barry Scheck, co-founder of the Innocence Project, has seen attorneys general stand in the way of local prosecutors’ efforts to free the wrongly convicted in other states, which he said deprives voters who elected their district attorneys. It’s what is happening now, he said, in the cases of Strickland and Lamar Johnson, who ºüÀêÊÓƵ’ circuit attorney says is innocent in a 1994 murder.
“The Missouri situation is the most unfortunate I’ve seen,†Scheck told The Star.
Local attorneys contend that the AG’s office cares more about finality than justice. That position, they say, is not consistent with the American Bar Association’s ethical rules for prosecutors, noting a prosecutor should seek to right a conviction if there is clear evidence of innocence.
During a September hearing in Strickland’s case, Assistant Attorney General Andrew Crane argued that while prosecutors have a duty to continue to seek justice after a conviction, “that’s not the state’s ethical obligation.â€
“Just because the prosecutor’s convinced and petitions, it does not mean that the entire state of Missouri must yield to that interest in all cases, especially not without evidentiary testing,†he said.
Exonerees interviewed by The Star agreed evidence should be tested to ensure it’s accurate. They know better than anyone that most prisoners are guilty of something, even if they were overcharged or hit with excessive sentences.
But when the AG’s office goes “overboard, innocent lives are at stake,†said Ricky Kidd, a Kansas City man who spent 23 years in prison for a double murder he did not commit.
O’Brien said prosecutors seeking to free innocent prisoners work without interference from attorneys general in other states, such as Texas. He called Missouri’s AG “extreme†compared to others.
In fact, attorneys general in at least six states work with local prosecutors to find and right injustices. That includes Minnesota, where Attorney General Keith Ellison in August announced its first statewide conviction integrity unit to examine innocence claims.
“When you are in the justice business and in a position to take someone’s liberty away, you should never stop pursuing justice and the truth,†Ellison said.
Post-conviction lawyers have advocated for a statewide truth commission or review — something similar to the National Transportation Safety Board, which investigates plane crashes — but say such a unit could not exist in the Missouri AG’s office, given its record.
Scheck described the office’s record of working to uphold convictions as “not totally unique,†but “certainly an outlier.†He called its reputation for “reflexively opposing†wrongful conviction claims disturbing to lawyers across the political spectrum.
He gave an example: for years, attorneys for a Louisiana prisoner worked with local prosecutors to re-investigate his case. The prosecutor went to court agreeing he was innocent and waived a procedural time bar. The man walked off death row.
When ºüÀêÊÓƵ Circuit Attorney Kimberly M. Gardner in 2019 concluded Johnson, now 47, was wrongly convicted in a fatal shooting, she did the same thing. But in Missouri, the attorney general intervened, and Johnson remains behind bars.
‘Shouldn’t be this hard’
Having worked in other states, Megan Crane, co-director of the MacArthur Justice Center’s Missouri office, said freeing the innocent in Missouri is “inordinately harder†than it is elsewhere.
One reason, Crane said, is because actual innocence is not a reason to free a prisoner unless they are facing the death penalty. The ability to file a petition solely based on actual innocence has been established in other states, through case law or legislation.
“It shouldn’t be this hard and it isn’t this hard other places,†she said.
Tricia Rojo Bushnell, executive director of the Midwest Innocence Project, said part of it is also process. In Kansas, for example, the local prosecutor, not the attorney general, responds to petitions seeking to free innocent prisoners.
Had he been convicted in Kansas, for example, Strickland likely would have been freed months ago.
O’Brien, the UMKC law professor, suggested the AG’s office be written out of the Missouri law altogether, though Rizzo said amending the provision would be difficult.
“Eric Schmitt is making a mockery of the statute and the intention of the statute,†O’Brien said, asserting that the AG’s office has “no business†in the Strickland case.
Ramsey, the ºüÀêÊÓƵ lawyer who has helped free innocent prisoners, said the AG’s office is fighting to carve out as large of a role as it can in the new law to make the process “exactly like habeas corpus,†a legal avenue lawyers already had. The AG’s office has been able to obtain discovery, take depositions and file motions — much broader powers than attorneys thought it would have.
“Habeas corpus is not workable, and Senate Bill 53 is not workable,†Ramsey said at the recent panel. “Senate Bill 53 may help some people, and that’s great ... but it’s not enough. We have to have more. We have to go farther.â€
An assistant attorney general once told Ramsey of a wrongly convicted man trying to regain his freedom: “It’s just a case.†She responded that it was not, that the incarcerated man was a person with a family.
“It says to me that they have taken the humanity out of what they do,†Ramsey told The Star. “To see someone act so jovial and cavalier about someone who had been wrongfully convicted was very upsetting.â€
Post-conviction attorneys said they fear the attorney general’s tactics in Strickland’s case — such as filing motions that caused delays — will dissuade other prosecutors, especially ones with fewer employees than Baker, from utilizing the new law.
O’Brien said the battle to free Strickland will have a “chilling effect†on other prosecutors. He has spoken to some who say, “I don’t know what I can do or whether what I do will get overturned or challenged. I’m not sure what my power is in this situation.â€
Exonerees across the state are also following Strickland’s case. One of them, Josh Kezer, said an attorney general is charged to serve every victim — including those of injustice, who have had their freedom taken away and been exposed to rape and murder behind bars.
“How can you claim to be a victim advocate and advocate for innocent men being in prison?†Kezer, who spent 16 years in prison for a southeast Missouri murder he did not commit, asked during a September interview. “Because when you do that, you are advocating for the guilty murderer, the guilty rapist, the guilty child molester to be free.â€
Jackson County prosecutors, Strickland’s lawyers and attorneys with the AG’s office will appear in court Thursday afternoon for a pre-trial conference. They are expected to argue about more motions filed this week by the AG’s office.
As of now, Strickland’s evidentiary hearing — during which local prosecutors will argue he is innocent before Judge James Welsh — is set to start at 10 a.m. Monday.