Missouri

The Missouri A.G. Is Advocating for the McCloskeys' Civil Liberties. What About Lamar Johnson's?

What is the state's position when an innocent man spends 25 years in prison?

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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. 

No matter who wins between Gardner and Schmitt, justice loses.

NEXT: Laws Protecting Private Employees' Speech and Political Activity Against Employer Retaliation: Introduction

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  1. Never confuse a court of law with a hall of justice – – – – – – – –

    1. Justice Department is as fitting as Democratic People’s Republic. Governments love fig leaves.

      (Anyone else ever think of East Germany when they see mention of the EU’s GDPR General Data Protection Racket?)

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    2. Never confuse the law with justice.

      FTFY.

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  2. Can anyone say…false dichotomy?

    1. One case has nothing to do with the other. They both stand on their own as justice or injustice.

      If the author wants to write about Johnson being in prison being an injustice, he should do so. There is no reason to drag the other case into it.

      1. Just a bit of journalistic bait and switch.

      2. Indeed. Did Johnson have the local AG falsify evidence to justify a prosecution?

        The McCloskeys have that issue.

        I’m sure glad George Soros is such a good force for the world.

        1. 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.
          </blockquote.

          It would seem the answer to your question is yes.

        2. It was not the state AG, it was the St. Louis Prosecuting Attorney, a Soros funded and approved official.

    2. What is wrong with pointing out government hypocrisy? All you clowns suddenly defending it is pretty damn weak.

      1. Not defending it but it is a bit of a stretch to tie the two cases together. It sounds like Johnson deserves either a new trial (at the least) or a full pardon, however, this is not remotely realted to the St Louis DAs politically driven prosecution that runs counter to state laws.

        1. It is related to the Missouri AG refusing to do anything on a technicality.

          1. That is still a stretch. Criticize him for his lack of action on this case but don’t try and tie it to another case. Especially when no AG has done anything since 1995. It is inexcusable but hardly related.

          2. Basically everyone is a bit of a hypocrite, news at 11.

    3. Exactly. There’s no need to mention the two together.

  3. Ignores the “reform minded city prosecutors” many failings and corruption. Why is reason carrying water for her?

    1. Because they have the same patron
      They are fellow travelers

    2. What makes a prosecutor “reform minded?” Is it merely paying lip service to reform all the while throwing as many people in cages for as long as you possibly can, often for non-violent offenses – all the while giving a pass to all your friends at city hall for all their corruption, back-room dealing and empty rhetoric about doing anything to help anyone outside of their circle of cronies?

      It’s funny, it seems every prosecutor in the country is reform minded on the campaign trail and yet the rate at which we either fine or imprison people for petty bullshit just goes up and up. How odd, it’s almost like some people run for office say things they don’t mean just to get themselves a prestigious job title. Huh.

      1. There is a new breed of prosecutor out there. This is one of them. They are funded by a new initiative of “grass roots” progressive organizations that started a few election cycles back. Instead of focusing on national politics, they decided to go local and to the justice system. They are a new breed of politically motivated prosecutors.

        Prosecutors like the New York City DA who won office on a promise to pursue prosecutions of Trump, his family and anyone connected to them – absent any indication of a crime. Simply “elect me and i’ll use my office to harass an individual for political reasons”. This St. Louis DA is one of that group. She has already been caught out for falsifying evidence in a case against a republican lawmaker. The left sees politically motivated prosecutions as their way forward in silencing the opposition. This philosophy has permeated the party from top to bottom. You see it at the national level and the local level. This is a new fight that is coming – unless the fight is lost before it is joined.

  4. 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.

    My god what an evil bitch. I don’t know how one could sleep at night being this kind of person.

    1. I was going to point that out, then ponder what that judge’s ruling has to do with a double standard on the part of the AG. Seems Davis’ beef is with judge Hogan.

      P.S. Prodecural deadlines are also known as the agreed upon rules.

      1. These sorts of deadlines for defendants are ludicrous, particularly in cases where there was evidence withheld, new evidence has been developed, etc.

        I first had these arguments with lawyer friends some 25-30 years ago. The legal system has a very strong interest in the concept of getting to a final decision. Once that final decision is reached, it will not be revisited. It is one of the sort of unwritten foundations that the system is built upon. Kind of like Roberts with his stare decisis.

        They are all about rules and what order things come in. I was talking with the Chief Justice of the NC Supreme Court after the Frontline documentary series “Innocence Lost” came out – about the Little Rascals Daycare cases. From the documentary, it was clear that justice was severely miscarried due to a moral panic, and two people were sentenced to life in prison on completely unbelievable charges. (as in “no sane person could possibly believe that”). I asked why nobody was doing anything about it, and he told me that his court cannot just go grab a case and review it. There has to be an issue brought before the court – and the findings of fact would not be a part of that case. That is reserved for the trial court. I was pretty young at the time, and I found this to be an outrageous concept.

        You have a case where pretty much everyone knows that the people are innocent, and nobody is going to do anything about it. They are all happy and content to just let that situation continue for years while the cases are tried and work their way through the courts. They even lean on the idea that when all else fails, they have the governor behind them to issue pardons.

        It is really horrific when you first hear about it. But after years of reflection, I see where the people in the system are coming from. This system gives them protection. It absolves them of direct personal responsibility. In a world where thousands of people are protesting their innocence and hundreds of those thousands might actually be telling the truth, they need a shield, or the system would not function.

        This is one of those “diffuse responsibility” situations. The kind of situation where 1 person witnessing a person in distress will stop and call 911, but 20 people walking by a person in distress are much less likely to take personal responsibility and make that call – relying on the notion that someone else will do it.

  5. overarching lesson is never go to Missouri.

    1. Yeah, that’s what people say about every one of these cases. “That’s why you don’t go to Mississippi!”
      “That’s why you don’t go to Arizona!”
      “That’s why you don’t go to New York!”
      “That’s why you don’t go to California!”

      The problem is, there is no place that does not have this problem.

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  7. Why do you assume Gardner’s allegations are accurate? A reason her solution is problematic is that if her motion is granted, her allegations would never be subject to challenge; she would simply dismiss the prosecution with no judicial review – essentially assuming the governor’s pardon power. Johnson has the option of filing for habeas corpus with the new evidence, which the AG acknowledges. Then a court can evaluate whether the evidence warrants release or retrial. The case boils down to whether a prosecutor or a court determines whether the allegations are true and, if true, warrant release or retrial.

  8. “anti-police brutality protesters.” Holy fuck.

  9. What happened to Lamar Johnson is a travesty. I hope that Lamar Johnson’s family and attorney to contact the President via their Congressional Representative and US Senators. I understand that POTUS wants to do more pardons through his criminal justice reform program. My prayers go out to Lamar Johnson.

  10. If Johnson’s trial had as many holes in it as are described, how did a trial jury manage to bring in a guilty verdict? Also, what happened with after trial appeals, which one assumes there were, or weren’t there any?

    1. The Circuit Attorney’s Conviction Integrity Unit report details this quite nicely:

      https://themip.org/wp-content/uploads/2019/07/2019-07-19-MNT-Exh.-1_CIU-Report.pdf

      1. Basically, the state hid a bunch of exculpatory evidence. Their star witness has been shown to in all probability have absolutely no knowledge at all of the case – he claims he overheard a confession in holding, but records show he was likely never in a position to hear such a confession had it occurred.

        The defense had a solid alibi – he was at a party at the time of the murder, a few miles away. The prosecution cast doubt on this alibi saying that it was his girlfriend, so she was lying. To impeach her testimony, they pressed her on a time when he was out of her sight. She initially said he was gone 5 minutes. When they pressed her on the time, she assented that it could have been 7 minutes. Therefore, she couldn’t keep her story straight. Therefore, a liar.

        Meanwhile, the prosecution’s star witness couldn’t even remember how far away the accused was when he overheard the jailhouse confession. 10 feet? 60 feet? 80 feet? No recollection of any details of the time or place.

        The jury wanted to convict, so they chose who to believe and who to discount. That simple.

        This is why “eyewitness testimony” is considered so unreliable.

        This case was never a slam-dunk. And the prosecution did some pretty shady stuff.

        Now, they have the confession of the actual shooter who says Johnson was not involved.

        That should be the end of it. But the wheels of justice turn excruciatingly slowly. And people in positions like the AG of the state are in a conflict of interest. Their job is to uphold justice. But it is also to protect the law – which includes procedural rules like the 15 day rule. The same goes for the courts.

        In this case, I’d say the governor should have gotten involved by now. Even if you think he did it, life without parole is way excessive, considering that the trigger man got less than 10 years. So clemency and time served would be justice even if you think he is guilty… which is a bit of a stretch given the confession of the actual killer.

  11. “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.”

    A detective paid $4,000 to bribe a witness? Out of his own pocket? In 1994 dollars? In today’s dollars that is probably $20K, or more.

    Johnson might be innocent, but I am not buying this part of the story. Maybe it was paid out of the “police slush fund for justice” or some other nefarious source? If so, say so.

    1. I read big chunk of the Circuit Attorney’s office report and it doesn’t explain it in any of the part that I read, but it does say the $4,000 was in several payments. So it sounds like they paid money to an informant for various things over time. Maybe meals and clothes for court, among other things. They also helped getting rid of some tickets he had.

      This was never disclosed to the defense, which is the big Brady violation in the case.

      Payments to an eyewitness are not novel or necessarily corrupt. Rewards for “information leading to the arrest and conviction” for a crime are common. But failing to disclose this closes off an avenue for the defense and should not be countenanced by the court.

      Johnson filed several writs of habeas corpus on these issues, all were denied. He filed them all pro se. Which is what you do when you are poor and in jail. Had he had actual legal representation, maybe things would have gone differently as this information came out.

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  13. It seems simple to me. Lamar Johnson should be granted a new trial and the McCloskeys’ should not be prosecuted.

    1. Agreed, but tying them together in the manner that the writer of this article is attempting is journalistically lame and reeks of left-leaning (not libertarian) political bias.

      Frankly, if Reason wants to make comparisons among actors in the separate cases, a better one is between DA Gardner in the McCloskey case and the allegedly dirty cop Nickerson in the Johnson case.

      “St. Louis prosecutor ordered crime lab to reassemble Patricia McCloskey’s gun”:
      https://www.ksdk.com/article/news/local/gardner-staffer-ordered-crime-lab-to-reassemble-patricia-mccloskeys-gun/63-be112149-d06c-4f54-a225-6545e74b5c2d

      1. This is a much better parallel.

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  16. You know when people say things that make you go “please, just stay off my side”?

    Yeah.

    This is one of those arguments.

    Railing against idiotic procedural defenses of the judicial system is a great thing. I’m glad reason is finally getting back to that particular angle of analysis of government abuse.

    But framing it in terms of a response to an obviously terrible and entirely politically motivated criminal prosecution of people who were exercising their 2nd amendment rights to self protection? Really? That’s the “gotcha” you want to run up the flag pole?

    This prosecutor has announced that no prosecutions of BLM protesters shall be forthcoming, and has released all arrestees in a perfunctory manner. Nobody has been prosecuted for trespass and tearing down the gates to the gated neighborhood in question, for example – despite being caught on camera from several angles.

    Yet this prosecutor is using a constitutionally dubious law in a constitutionally dubious manner to punish two citizens for daring to stand up to the perceived threat…. and you find the state AG opposing this to be a problem? Good lord, the politics of this are not even straightforward… these two are apparently donors to in state democrats, but also to national republicans. They also indicated support for BLM. So they are being prosecuted merely for daring to be caught on TV opposing a “protest” that they feared might include the vandalism or destruction of their home. And because of their temerity in daring to oppose this prosecution – hey, they were offered a diversion program and disbarment, what is the problem? – they have been villified on national TV as wealthy white supremacists who were so racist that they were prepared to kill people for peacefully protesting the murder of black people. The prosecutor even faked evidence against them – neither weapon was loaded and the handgun was intentionally rendered inoperable, a key component of the charged crime. So the prosecutor ordered it to be rendered operable and then charged the wife for holding an operable weapon.

    This is not the petard to hoist the state by. The prosecution of this couple is ludicrous on its face, with the law being fairly clearly unconstitutional (for vagueness and for violating the 2nd amendment), the application in this particular case being unconstitutional (for violating Heller) and the prosecutor falsifying evidence – let alone the obviously political nature of the prosecution in the first place. This puts it in an entirely different category from the run-of-the-mill injustice of the criminal justice system.

    These one-of-a-kind prosecutions are easy to remedy and should be stamped out early. They are individual, personal abuses, not systemic ones.

    The injustice of keeping innocent people in jail simply due to procedural rules is a systemic problem that plagues the justice system at all levels. It is a much more pernicious problem that requires a much more consistent push to remedy. We have repeatedly seen the highest courts in the land give this sort of injustice their stamp of approval for the most convoluted of reasons, simply in order to protect the machine and the cogs that make it go.

    This one-to-one comparison is far to facile and doesn’t really serve to move the ball down the court at all.

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