Lamar Johnson is still in prison because the Missouri courts told ºüÀêÊÓƵ Circuit Attorney Kim Gardner she has no legal right to try to set him free.
More than two years ago, Gardner’s Conviction Integrity Unit determined that Johnson was innocent, and that predecessor prosecutors in her office, and police, had committed misconduct and violated Johnson’s rights in the murder investigation and trial that sent Johnson to prison more than a quarter of a century ago.
First a ºüÀêÊÓƵ Circuit Court judge, then the judges from the Eastern District of the Missouri Court of Appeals and finally the Missouri Supreme Court told Gardner that there was no Missouri statute that allowed a prosecutor to exercise her ethical imperative to seek justice long after a person had been convicted.
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Process, the judges said, was more important than justice. The court challenged the Missouri Legislature to pass such a law, and earlier this year, it did that. The law was pushed by Republicans and Democrats, including Rep. John Rizzo, who is married to one of Johnson’s Kansas City-based attorneys, Lindsay Runnels. Many prosecutors backed the law. On Aug. 28, it took effect.
Kevin Strickland is still in prison because the Missouri courts gave Attorney General Eric Schmitt the right to file a motion that state law doesn’t say he could file. When the new law allowing prosecutors to be ministers of justice took effect, Jackson County Prosecutor Jean Peters Baker became the first to use it, filing a motion seeking to free Strickland from prison. He was convicted of a murder more than 40 years ago that Peters Baker says he didn’t commit.
“The evidence of Strickland’s innocence is clear and convincing,†she wrote.
Enter Schmitt, a Republican, who spends most of his time these days running for U.S. Senate. Schmitt opposed Johnson’s release and also opposed Strickland’s. He has argued that they are guilty, despite new evidence presented by the prosecutors in the jurisdictions where they were convicted. He filed a motion asking the court to delay Strickland’s hearing.
On Wednesday, the judges from the Western District of the Missouri Court of Appeals sided with Schmitt and ordered the Strickland hearing delayed. The law the Legislature passed doesn’t allow Schmitt to file motions in the case, said Rizzo.
“This ruling creates new powers out of thin air,†he wrote in a statement, “while ignoring both the letter of the law and the legislative intent behind it.â€
I worked hand in hand with the nonpartisan Missouri Prosecuting Attorneys Association in writing the provisions of Senate Bill 53/60 that empower local prosecutors to overturn wrongful convictions based on new evidence.
— J O H N âš¡ï¸ R I Z Z O (@JohnJRizzo)
In Johnson’s case, process delayed justice, judges said. In Strickland’s case, judges invented new process to delay justice.
Michael Politte and Christopher Dunn are still in prison because, well, the courts say so, without giving us a reason.
On Wednesday, justice was delayed for Politte, imprisoned since he was 14. The state now admits the case against him was built upon completely inaccurate evidence. The habeas corpus petition seeking his release for a wrongful conviction was denied by the same appeals court that delayed justice for Strickland. The judges, like junior high math students, didn’t show their work, providing no reason why this man must stay in prison.
The day before, the Missouri Supreme Court dismissed a similar petition sought by Dunn, a ºüÀêÊÓƵ man who meets an “actual innocence†standard in Missouri law, according to a circuit court judge who held an evidentiary hearing on the case. But Dunn can’t be released, the judge said, because of a precedent in case law in the state that only applies the innocence standard to people on death row. In its action, the state’s highest court is letting that precedent stand.
“Today was a dark day for justice,†says attorney Tricia Rojo Bushnell, director of the Midwest Innocence Project and attorney for Politte, Johnson and Strickland. “These decisions really just highlight the system’s focus on finality over fairness.â€
Dunn is now putting his hope in the new law that Baker is trying to use to free Strickland. His attorney, Kent Gipson, has been in touch with Gardner’s office about the potential for filing a motion for a new trial on the case in ºüÀêÊÓƵ. And Gardner is considering using the new law to once again file a motion seeking Johnson’s freedom. Gardner spokeswoman Allison Hawk says that Gardner “is finalizing next steps in this case and will be presenting evidence in court to deliver the justice that Lamar Johnson deserves.â€
Schmitt will stand in the way, again, of course. The question then will be: Will judges follow the new path urged by the Supreme Court and passed by the Legislature, or continue to allow process, made up or otherwise, to delay justice?
“I can’t speak for the attorney general, but to us, justice means keeping victims from suffering additional harms by getting it wrong,†Bushnell says. “It means not making additional victims by convicting the wrong person. And it means addressing the continued harms we cause by acknowledging when the system and its actors got it wrong. We all deserve justice. And we deserve a system that believes in it.â€