St. Louis circuit attorney made an ‘intervenor’ to own case

In a case as procedurally tangled as Lamar Johnson’s, even the docket orders might have some value.

Johnson was convicted in 1995 of the murder of Marcus Boyd. St. Louis Circuit Attorney Kimberly Gardner, whose office now contends he was wrongfully convicted, sought a new trial for Johnson. A St. Louis judge, however, said there was no authority to entertain such a motion 24 years after the original verdict was rendered.

Gardner, purporting to act on behalf of the State of Missouri, appealed to the Court of Appeals Eastern District. But the Missouri Attorney General’s Office, which is defending Johnson’s original conviction, also said it represents the state of Missouri — and that under state law, it is the only entity that can do so.

“This case presents an unusual procedural posture,” Eastern District Chief Judge Colleen Dolan wrote in a Nov. 14 order. She went on to craft a solution that allowed both agencies to remain in the case by designating the circuit attorney as an intervenor.

On the one hand, it’s odd that Gardner finds herself officially a third party to the case she initiated. On the other, the court’s apparently ad hoc solution allows the circuit attorney to remain a party to the case, rather than just file an amicus brief as the attorney general’s office suggested she should.

“It could have been worse,” said Lindsay Runnels, an attorney for Johnson, who also filed his own appeal in the case.

Neither the circuit attorney nor the attorney general’s office responded to a request for comment.

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The case stems from the findings of the circuit attorney’s Conviction Integrity Unit, a program Gardner began shortly after she took office in 2017. The unit’s report on Johnson found evidence of his actual innocence, including that police allegedly pressured an eyewitness to implicate Johnson and purported misconduct by a former prosecutor.

Runnells, an attorney with Morgan Pilate in Kansas City who is representing Johnson in partnership with the Midwest Innocence Project, said her client could use the information to seek a new trial himself.

“Mr. Johnson might file a habeas. It’s possible, but it’s two or three years of litigation, of course,” she said. “What Ms. Gardner can do is the question here.”

That question is also on the minds of prosecutors around the country, some of whom have conviction review units similar to Gardner’s and similarly lack a clear legal path to seek new trials for the wrongfully convicted.

In an amicus brief, a group of 34 prosecutors from 21 states — including St. Louis County Prosecuting Attorney Wesley Bell — argue that “addressing a wrongful conviction by seeking a remedy through the local courts is the necessary first step in restoring the public’s trust in the justice system as a whole.”

“If no remedy is available, however, trust suffers yet another blow, and the ability of amici to promote safer communities is eroded,” the brief states.

Charles Weiss of Bryan Cave Leighton Paisner, an attorney for the group of prosecutors, said the court’s order helps to establish how the appeal will proceed, if not how the case will end.

“The court in its own way sorted this thing out by allowing everyone to stay in the case, in a sense,” he said.

Although local prosecutors represent the state at trial, Section 27.050 of the Revised Statutes of Missouri provides that the attorney general “shall appear on behalf of the state in the court of appeals and in the supreme court and have the management of and represent the state in all appeals” involving the state as a party.

In briefs to the appeals court, Assistant Attorney General Shaun Mackleprang argued that Gardner’s office “was merely one of the attorneys who represented the State in the underlying criminal case” and urged the court to dismiss her briefs on behalf of the state. He acknowledged that Gardner was alleging “a possible injustice on the merits of the case” and said his office “would not oppose” her filing an amicus brief in support of Johnson instead.

Gardner, however, argued that dismissing her from the case would “gut the central issues of the appeal.”

“While [the attorney general’s office] tries to ensure that no merit discussion or ruling occurs, Johnson waits for a court to hear his overwhelming evidence of innocence,” the circuit attorney wrote in a brief.

Weiss cautioned that while designating Gardner as an intervenor allows her to remain in the case, it doesn’t substantively affect the arguments or the positions of the parties.

“I don’t know what the Court of Appeals will do, but I do not think this will change what the court would do,” he said.

Arguments are set for Dec. 11 in St. Louis.

The case is State v. Johnson, ED108193.