BACKGROUND: "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. 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.”
From Injustice Watch story by reporter Emily Hoerner.
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PASSAGE ONE OF THE DAY: "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."
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PASSAGE TWO OF THE DAY: "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."
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PASSAGE TWO OF THE DAY: "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."
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COMMENTARY:
"Missouri Attorney General’s Lack Of Courage In Lamar Johnson Case Is A
Miscarriage of Justice," by Ben Miller, published by 'The Appeal" on
February 25, 2929. (Ben Miller is a senior legal counsel
at the Justice Collaborative, a nonprofit organization working to reform
the criminal legal system.)
SUB-HEADING:
"Eric Schmitt should follow the lead of a Pennsylvania prosecutor who
acknowledged that a man deserved a new trial, even when it meant
reversing a murder conviction.
GIST: "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."
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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