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 OF THE DAY: "The conflict between Schmitt and Gardner over the McCloskeys is an inverse mirror to their conflict over Lamar Johnson. Between the two cases, neither prosecutor appears to be consistently applying their own philosophies of discretion and restraint. Johnson is now spending his 25th year in prison for the 1994 murder of Marcus Boyd. For Johnson to have killed Boyd, as Reason reported last year, he would have needed to leave an apartment party, travel three miles on foot, commit the murder, and travel back to the same party on foot, all within the span of five minutes. Unfortunately for Johnson, his case was marred by false testimony and Brady violations. According to a 67-page motion for a new trial for Johnson filed by Gardner (which accompanied an exculpatory report from her office's Conviction Integrity Unit), Johnson's conviction was reliant upon "perjured testimony, suppression of exculpatory and material impeachment evidence of secret payments to the sole eyewitness, and undisclosed Brady material related to a jailhouse informant with a history of incentivized cooperation with the State." Johnson remains in prison despite the fact that the lead detective, Joseph Nickerson, was found to have fabricated parts of his investigation. Nickerson reportedly bribed a witness $4,000 to identify Johnson as the killer at trial. Additionally, Boyd's killers confessed to their crimes and absolved Johnson of any involvement in 1996 and 2002. While Johnson's innocence claims are supported by Gardner, the Midwest Innocence Project, and many others, he continues to sit behind bars because of a procedural deadline that provides just 15 days after a conviction for the filing of a motion for a new trial. When Gardner attempted to file a motion for a new trial last July, Circuit Judge Elizabeth B. Hogan used the procedural deadline to deny the motion."
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SUB-HEADING: What is the State's position when an innocent man spends 25 years in prison?
GIST: "Last month, Mark and Patricia McCloskey were captured on video aiming guns towards anti-police brutality protesters after the protesters breached the gate to their private neighborhood. On Monday, St. Louis Circuit Attorney Kimberly M. Gardner—the city's elected head prosecutor and a Democrat—filed felony charges against the couple for the unlawful use of a weapon.
Gardner's decision to charge the couple despite the fact that they did not fire their guns, no protesters were injured, and the couple did not leave their own private property led Missouri Attorney General Eric Schmitt, a Republican, to file a brief saying that the couple was free to defend their property under the state's "castle doctrine."
"There is a common law interest if the attorney general feels that the broader interest of Missourians are affected, like the chilling effect that this might have with people exercising their Second Amendment rights," Schmitt told the St. Louis-Dispatch. "We felt it was important to get it in and make the state's position known early."
The conflict between Schmitt and Gardner over the McCloskeys is an inverse mirror to their conflict over Lamar Johnson. Between the two cases, neither prosecutor appears to be consistently applying their own philosophies of discretion and restraint.
Johnson is now spending his 25th year in prison for the 1994 murder of Marcus Boyd. For Johnson to have killed Boyd, as Reason reported last year, he would have needed to leave an apartment party, travel three miles on foot, commit the murder, and travel back to the same party on foot, all within the span of five minutes. Unfortunately for Johnson, his case was marred by false testimony and Brady violations. According to a 67-page motion for a new trial for Johnson filed by Gardner (which accompanied an exculpatory report from her office's Conviction Integrity Unit), Johnson's conviction was reliant upon "perjured testimony, suppression of exculpatory and material impeachment evidence of secret payments to the sole eyewitness, and undisclosed Brady material related to a jailhouse informant with a history of incentivized cooperation with the State."
Johnson remains in prison despite the fact that the lead detective, Joseph Nickerson, was found to have fabricated parts of his investigation. Nickerson reportedly bribed a witness $4,000 to identify Johnson as the killer at trial. Additionally, Boyd's killers confessed to their crimes and absolved Johnson of any involvement in 1996 and 2002.
While Johnson's innocence claims are supported by Gardner, the Midwest Innocence Project, and many others, he continues to sit behind bars because of a procedural deadline that provides just 15 days after a conviction for the filing of a motion for a new trial. When Gardner attempted to file a motion for a new trial last July, Circuit Judge Elizabeth B. Hogan used the procedural deadline to deny the motion.
Schmitt, meanwhile, opposed a new trial for Johnson solely, he said, because of the filing deadline. What's more, Schmitt also supports a proposed Missouri House bill that would weaken Gardner's prosecutorial discretion by giving Schmitt the power to pursue charges where local prosecutors have already decided the penalties to be unduly harsh.
As with most defendants, the fates of the McCloskeys and Johnson do not rest in the hands of impartial people. But in this case, their odds are doubly bad due to a political beef between a tough-on-crime Republican state attorney general and a reform-minded Democratic city prosecutor.
It is odd and unfortunate that Schmitt believes the dismissal of charges in only one of these cases serves the "broader interest of Missourians," and that Gardner appears to have a similarly exclusive view of when her discretion is appropriate. While these two battle over their respective turfs, Johnson is still set to die in prison for a crime he did not commit and the McCloskeys are facing the wrath of the criminal justice system for threatening violence—but not actually committing it—in order to defend their home.
As with most defendants, the fates of the McCloskeys and Johnson do not rest in the hands of impartial people. But in this case, their odds are doubly bad due to a political beef between a tough-on-crime Republican state attorney general and a reform-minded Democratic city prosecutor.
It is odd and unfortunate that Schmitt believes the dismissal of charges in only one of these cases serves the "broader interest of Missourians," and that Gardner appears to have a similarly exclusive view of when her discretion is appropriate. While these two battle over their respective turfs, Johnson is still set to die in prison for a crime he did not commit and the McCloskeys are facing the wrath of the criminal justice system for threatening violence—but not actually committing it—in order to defend their home.
No matter who wins between Gardner and Schmitt, justice loses."
The entire commentary can be read at:
https://reason.com/2020/07/23/the-missouri-ag-is-advocating-for-the-mccloskeys-civil-liberties-what-about-lamar-johnsons/
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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