How the innocent few gain freedom

Lamar Johnson, middle, looks back at the crowd behind him on Feb. 14 after St. Louis City Circuit Court Judge David C. Mason announces his conviction has been set aside. (Court pool photo by St. Louis Post-Dispatch photographer Christian Gooden)

For decades, Missouri inmates who maintained their innocence had little recourse after exhausting their court appeals, even if evidence existed proving they were wrongfully convicted. That changed in 2021, when Missouri lawmakers created a pathway for prosecutors involved in their cases to consider new evidence that the original conviction shouldn’t stand.

Lamar Johnson is just the second person to be released with the help of that 2021 state law. Here’s what the cases of those freed so far with the law — and those who haven’t — have in common.

St. Louis City Circuit Attorney Kim Gardner had first motioned for a new trial in Johnson’s case in 2019. A few months after the Missouri Supreme Court ruled in the case that prosecutors couldn’t ask for a new trial in cases of innocence or wrongful prosecution, the Missouri General Assembly passed a law stating that they could. The law enables prosecuting attorneys and circuit attorneys to file a motion to vacate or set aside a judgment of a person convicted in their jurisdiction.

Missouri Sen. Tony Luetkemeyer, R-Parkville, and Sen. Brian Williams, D-St. Louis, sponsored Senate Bills 53 and 60, which contained the provision. Luetkemeyer, who is an attorney, said that while some aspects of the law created “unanticipated” issues in the courts, the senators worked with the Missouri Association of Prosecuting Attorneys to draft the law.

“And so this is something that was supported by all the prosecutors in the state, Republicans and Democrats across the state,” Luetkemeyer said.

MAPA President Annie Gibson, who is the Daviess County prosecuting attorney, verified that the association consulted on the law.

“The last thing that any prosecutor in the state of Missouri wants is for an innocent person to be incarcerated, so we did work with lawmakers in getting that passed,” Gibson said. “And so we are on board with that legislation.”

Freed

Jackson County Prosecuting Attorney Jean Peters Baker was the first to employ the law as soon as it went into effect. Kevin Strickland had been convicted along with two others of a fatal 1978 shooting of three people in Kansas City, though a witness had recanted her identification of Strickland as a suspect before her 2015 death, and two co-defendants also said Strickland wasn’t involved in the crime.

Though the attorney general’s office sought to preserve the conviction, Judge James Welsh, a retired member of the Court of Appeals Western District who served as a special judge, ruled that Strickland’s 1979 conviction “is so undermined that it cannot stand.” Strickland walked out of prison later that day.

Johnson had served 28 years of a life sentence for the 1994 murder of Markus Boyd. Like Strickland, Johnson’s case involved recanting witnesses. The initial witnesses in Johnson’s case testified in support of his innocence during a five-day evidentiary hearing last December.

Tricia Rojo Bushnell

St. Louis City Circuit Court Judge David Mason determined that the state withheld information in the initial case that would have impeached the testimony of the key eyewitness, whom police had coaxed into identifying Johnson after he was unable to choose Johnson from a lineup at least four times.

Judge Mason said during the Feb. 14 hearing before he released Johnson that the statute “doesn’t give the greatest deal of guidance” in how judges should rule upon these cases.

“However, it does seem to let the court know that an important aspect of what we do in handling these cases is we have to look at the underlying trial and just how solid that trial was,” Mason said, “and then compare that to the subsequent evidence as to actual innocence.”

Midwest Innocence Project Director Tricia Rojo Bushnell was on the attorney teams for both Strickland and Johnson.

“I think if we look at Kevin Strickland’s case, if we look at Lamar Johnson’s case, what we can see is that once there is a hearing, right, and the evidence is presented to a judge fully, that that judge can make an accurate and just determination,” Rojo Bushnell said.

Stopped short of a hearing

The last three people put to death in Missouri each attempted to convince St. Louis County Prosecuting Attorney Wesley Bell to step in. The late Kevin Johnson was the only one of the three to have a prosecutor take on the case.

Bell’s Conviction and Incident Review Unit reviewed Johnson’s alleged erroneous conviction as his execution date was set, which was handed over to E.E. Keenan of Keenan & Bhatia in Kansas City as a special prosecutor due to a conflict in the office. Keenan had a month to review case files, reach out to witnesses, research and follow up on document requests.

Johnson fatally shot a Kirkwood police officer in 2005 and was sentenced to death by a jury in 2009. Keenan’s investigation had found merit in Johnson’s allegations that the original prosecutor’s charges had racist motivations. He was executed Nov. 29, a day after the Missouri Supreme Court chose to let stand his execution date.

Keenan said a few days after Johnson’s death that he didn’t anticipate the same factors repeating themselves again.

“I anticipate that the factors involved in this I think with respect to timing and the court being unwilling to pause an execution so close to the day are factors that are unlikely to recur much in the future,” Keenan said.

Amber McLaughlin’s attorneys requested the same Conviction and Review Unit to examine her case, which never announced any findings. She had argued that she was “erroneously and unconstitutionally convicted of aggravated capital murder” because her trial counsel failed to present psychiatric evidence that could have neutralized the jury’s finding that she acted with depravity of mind. McLaughlin, then known as Scott before a later gender transition, was put to death Jan. 3 for raping and stabbing ex-girlfriend Beverly Guenther in 2003.

Leonard Taylor also had requested that Bell trigger the law on his behalf. Taylor was found guilty of the 2004 murders of his girlfriend, Angela Rowe, and her three children, 10-year-old Alexus, 6-year-old Acqreya and 5-year-old Tyrese in their St. Louis County home. He maintained his innocence.

Bell declined to intervene in the case. In a statement issued shortly before Taylor’s scheduled execution, Bell said that after a review by his office’s Conviction and Incident Review Unit “we believe the jury got the verdict right,” though he declined to elaborate.

“For this office to provide details on why we came to this judgment could only further incriminate a person who sought relief from this office and currently has appeals pending,” Bell wrote.

Bell’s office didn’t oppose Taylor’s attempt to delay his execution. Taylor had asked the Missouri Supreme Court to give him between 90 and 120 days to investigate further, citing an affidavit from a forensic pathologist who challenged the determination of the victims’ times of death based on the level of the bodies’ decomposition and the presence of rigor mortis.

Rojo Bushnell also was involved with Taylor’s attorney team, which was simultaneously working on federal appeals to allow Taylor’s spiritual adviser in the room during his execution and allow his daughter to watch the execution, and said it wasn’t clear from the courts if it’s possible to overcome the time and pressure element that came up in these cases.

“It’s unclear, right, from the courts, whether they believe that it’s possible,” Rojo Bushnell said. “Certainly, we know that there’s other avenues that need to happen in cases like Leonard Taylor, where investigations could have been done earlier.”

Attorney Kent Gipson said the clear and convincing evidence of recanted witnesses and jailhouse informants in Lamar Johnson’s case is more clear-cut than the claims of his late client, Taylor, or Ken Middleton, who claims he is innocent of his wife’s 1990 shooting death in their Blue Springs home and is serving a life sentence plus 200 years in prison without parole.

“That’s simple compared to someone like Middleton or Taylor’s case,” Gipson said.

Middleton claims ineffective counsel led to his conviction and continued incarceration. The same judge who had presided over his initial trial had vacated his conviction and ordered a new trial in 2005. But on appeal a year later, a Missouri appeals court shot that trial down on jurisdictional grounds.

The Jackson County Conviction Review Unit reviewed Middleton’s case three times after the law passed and declined to intervene in the case.

“It’s not that a prosecutor takes every case presented to them, right?” Rojo Bushnell said. “It’s not that they file a motion to vacate all cases. It’s a rare and unusual circumstance.”

Lamar Johnson, left, embraces St. Louis City Circuit Attorney Kim Gardner. (Court pool photo by St. Louis Post-Dispatch Photographer Christian Gooden)

The attorney general’s role

“If we get to the hearing, the hearing works,” Rojo Bushnell said. “I think some of the obstacles have been figuring out a new process, right, given the problems that go with that. But I think that as we’ve seen, in multiple decades of practice, the Attorney General’s Office has fought these cases as it has in every other innocence case, and that has presented an obstacle.”

The provision also allows for the Missouri Attorney General’s Office to intervene in cases as well as file to dismiss a prosecutor’s initial motion triggering a hearing.

Sen. Tony Luetkemeyer

Luetkemeyer said that much like a defendant’s habeas proceedings, direct appeal or a motion for postconviction relief, he had envisioned the Missouri Attorney General’s Office to represent the state in cases.

“My definition when the law passed was that the attorney general be a full participant in any case where a new trial motion was filed by a prosecutor,” Luetkemeyer said.

Williams said that the Missouri Attorney General’s Office should not be a brick wall in the face of a hearing.

“The Attorney General’s Office should be doing everything they can not to withhold Missourians from justice but provide clarity,” Williams said.

In Strickland’s case, after the prosecutor and Strickland’s lawyers criticized then-Attorney General Eric Schmitt for dragging out the process, his office said at the time that it had “defended the rule of law and the decision that a jury of Mr. Strickland’s peers made after hearing all of the facts in the case.” While contesting the case, the attorney general won a ruling from the Court of Appeals Western District that a “common sense reading of the statute requires that the Attorney General be permitted to file motions relating to his ability to meaningfully participate in the hearing.”

The attorney general also succeeded in disqualifying the entire Jackson County Circuit Court from the case after the court’s presiding judge said publicly that the evidence showed Strickland’s innocence.

In Lamar Johnson’s case, the Attorney General’s Office under Andrew Bailey stated once again, “Our office defended the rule of law and worked to uphold the original verdict that a jury of Johnson’s peers deemed to be appropriate based on the facts presented at trial.”

In the late Kevin Johnson’s case, the AGO argued before the Missouri Supreme Court that the circuit court could deny the motion without a hearing while also arguing that he could be executed even if the prosecutor had a right to bring the motion.

The attorney general’s office also opposed a delay in McLaughlin’s case, arguing that the post-conviction actions don’t include discretionary or extraordinary relief. It also noted that St. Louis County had taken no action to review the conviction, so the request was “merely informal correspondence with the prosecutor.”

The AGO opposed a delay in Taylor’s execution, arguing in court papers that Taylor’s request “is based on nothing more than hope that more time will lead to a basis for future litigation.” The Supreme Court denied the request without comment, and Taylor’s execution proceeded as scheduled on Feb. 7.

“What is the fear of letting a judge do their job?” Rojo Bushnell said.

Waiting on parole

Michael Politte hit a roadblock in his case over a change of venue, a common occurrence in rural counties.

Politte was 14 years old when his mother Rita Politte died in a fire in her home in 1998. He was convicted of second-degree murder based on evidence of gasoline residue on his shoes that tied him to the incident. He was sentenced to life in prison. A private forensic expert’s later examination revealed that no such gasoline existed, and the Missouri State Crime lab eventually agreed that no ignitable liquids were on the shoes.

The primary question in Politte’s case before the Missouri Supreme Court was whether the motion should be filed by the prosecuting attorney in Washington County, where the murder occurred, or St. Francois County, where the trial took place on a change of venue.

Washington County Prosecuting Attorney John Jones, who filed the initial motion in which he determined Politte was convicted on false evidence but didn’t claim unequivocal innocence, said that the nearby county’s link to the case ended at the use of its courtroom and jury pool.

“It just doesn’t make any sense that a prosecutor with no connection and no ongoing ethical duty to correct a wrongful conviction would be the only one with authority to file a motion to vacate, but here we are,” Jones said.

Luetkemeyer said that he agreed with the court’s interpretation of the bill language, though it was not his aim when the law passed.

“I will be honest, I think the court interpreted the statute based upon the language that was passed in the legislature correctly,” Luetkemeyer said.  “If I were on the court, I probably would have reached the same conclusion, even though as an individual legislator who was responsible for putting that provision in there, that was not my intent.”

Luetkemeyer chairs the Missouri Senate’s Committee on the Judiciary and Civil and Criminal Jurisprudence and added that “we’re planning on fixing it.”

During a Feb. 20 committee hearing, Sen. Luetkemeyer motioned to tweak the provision as part of Senate Bill 189 from this session. He cited the court’s opinion from a week prior before it passed 5-1 in committee.

“After a Supreme Court decision on Tuesday, we need to clarify that those cases are brought by the prosecuting attorney that filed charges, not the place where the conviction occurred,” Luetkemeyer said.

Senior reporter Scott Lauck contributed to this report.