The Appeal Podcast: The Cruel Roadblocks to Getting Innocent People Out of Prison

With Daniel Harawa, assistant professor at Washington University in St. Louis School of Law.

Last month, 106 legal scholars signed a brief supporting St. Louis prosecutor Kim Gardner’s efforts to get a new trial for Lamar Johnson, a man convicted of murder in 1995 for a crime many–including the prosecutor’s office that convicted him–say he couldn’t have possibly committed. The initial trial, which involved paid witnesses who later recanted and jailhouse snitches, is now seen as a stain on the St. Louis Circuit Attorney’s Office, but pro-carceral forces in Missouri and a system rigged in opposition to obtaining new trials are preventing this from happening. How could something so obviously wrong be permitted by our justice system? Today we are joined by Daniel Harawa, assistant professor at Washington University in St. Louis School of Law, to explain how our system often makes achieving justice virtually impossible–even when DA’s themselves support it.

Transcript

Adam Johnson: Hi welcome to the appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcast.

Recently, 106 legal scholars signed a brief supporting St. Louis prosecutor Kim Gardner’s efforts to get a new trial for Lamar Johnson, a St. Louis man convicted of murder in 1995 for a crime he couldn’t have possibly committed in a trial that involved paid witnesses who later recanted and jail house snitches. Now the prosecutor’s office, who wrongfully convicted Johnson, is trying to set him free, but reactionary state forces are preventing this from happening. How could something so obviously wrong be permitted by our justice system? Today we are joined by Daniel Harawa, assistant professor at the Washington University in St. Louis School of Law, to explain how our system is rigged against freeing post-conviction even the most patently innocent people.

[Begin Clip]

Daniel Harawa: The attorney general purports to say that the state has an interest in finality of convictions and that’s why courts just can’t keep rehearing motions. But (a) it’s not often that you hear a prosecutor come into court and say ‘we wrongfully convicted somebody’ so the idea this would open some kind of flood gates is laughable, but (b) it has really startling implications in jurisdictions that elect progressive prosecutors if an attorney general, a conservative attorney general can just swoop in and basically derail that prosecutor’s case.

[End Clip]

Adam: First off, thank you so much for coming on.

Daniel Harawa: Of course. It’s my pleasure to be here.

Adam: So before we kind of get into the nitty gritty of the kind of broader problems with the system in general, I want to talk about this specific case, about the Lamar Johnson case who was, I guess he was convicted of murder in 1995. There seems to be a lot of holes in the prosecution’s case to the point of which I think is now sort of maybe even legal consensus that he ought to be released. The prosecutors claim that he murdered, that he ran three miles, murdered someone and ran three miles back in less than five minutes, which of course would be a world record about two times over. How exactly, once the jury convicted of this, what’s the kind of outline of the case and what’s the current status of the attempt to get him a new trial?

Daniel Harawa: Sure. So like you said, Lamar Johnson was prosecuted for murder in St. Louis in 1995 and the facts of the case were essentially that the decedent, Marcus Boyd, and Greg Elking were sitting on a porch one night when two masked men came up and shot Mr. Boyd and ran away. Mr. Elking was the only eye witness to the crime and he was the only eye witness who testified against Mr. Johnson.

Adam: Okay.

Daniel Harawa: Now, Mr. Elking had no relationship with Mr. Johnson and because it was nighttime, because the perpetrators were in masks, Mr. Elking could not tell who committed the crime. And he was actually shown multiple lineups by police officers and said he could not identify the perpetrator. And it wasn’t until the police said it was Mr. Johnson that Mr. Elking changed his story and said that Mr. Johnson was the one who committed the crime. It also turned out years later that the police had promised Mr. Elking basically a whole new life in exchange for his testimony, that they were going to give him money, that they were going to give him a house, that they were going to relocate him and his spouse. And so all of that compelled Mr. Elking to testify against Mr. Johnson. Now since then, Mr. Elking has recanted, said he didn’t know who the perpetrator was, he didn’t see Mr. Johnson and he explained that he was essentially coerced or bribed into testifying that Mr. Johnson did it. And the only other evidence against Mr. Johnson at trial was a jailhouse informant who, as we know, jailhouse informants already have strong incentives to lie or to fabricate. And here this jailhouse snitch had all the incentives that snitches generally have. Was promised leniency, was promised release. And so he testified that Mr. Johnson essentially said that he did it and that was the extent of the evidence against Mr. Johnson at trial.

Adam: Yeah. We discussed in Episode 52 jailhouse snitches, for those who want to go back and listen, not reliable. Is it typical to pay a witness to testify? I feel like we don’t see that a lot. Is that normal practice?

Daniel Harawa: So there are victim assistance.

Adam: Oh, the idea is that he’s a victim and they’re helping him out. Okay.

Daniel Harawa: I think that’s how they would justify if they disclosed the information. But they hid it for years and it wasn’t till Kim Gardener’s office and their conviction integrity unit reviewed the file that they realized these payments were made.

Adam: So the jury was not made aware of that at the time.

Daniel Harawa: The jury was not made aware of any of this at the time. And in fact Lamar Johnson is now represented by the Innocence Project and they interviewed some of the jurors on this case originally and they said if they had known any of this that they most certainly would not have convicted Lamar.

Adam: Right. So then we get into the kind of constitutional issues and legal issues. There was a brief filed a few weeks ago by 106 scholars supporting the St. Louis Circuit Attorney General Kim Gardner who is attempting to sort of get a new trial. I know you can’t approximate the feelings or do a straw poll in your head, but as it sort of generally understood that this thing is sort of one of the, this trial is kind of a no brainer and that obviously kind of lends the next question of what’s holding it back? Like what’s the political context here?

Daniel Harawa: Yeah, so I think it’s a no brainer in that this isn’t Mr. Johnson who is coming into court and saying that he’s innocent. It’s the prosecutors, the prosecutor’s office that’s saying ‘we reviewed his files, our office engaged in misconduct and malfeasance, the police officers engage in misconduct and malfeasance so we are trying to correct our wrongs and get Mr. Johnson released from prison.’ He’s been behind bars for 25 years wrongfully. And of course Mr. Johnson agrees, he’s maintained his innocence all along. And in fact soon after he was convicted, the real perpetrators wrote him a letter saying, ‘we’re sorry that you got roped into this we know you weren’t involved.’ And Mr. Johnson has tried to get out of prison for years based on the fact that the real perpetrators have admitted to the crime and has been unsuccessful. So you would think that when the prosecutor and the defense attorney both come into court and say he’s innocent, you would think that would be a no brainer, that justice would work its way and through the system and Mr. Johnson would be released. But unfortunately he has yet to have been released.

Adam: So this is obviously familiar with anyone who’s seen the Netflix series When They See Us, where you say, okay, well they’re exonerated, but somehow they’re still in jail for another, you know, X amount of time or it’s difficult to get a retrial. I want to talk about the broader themes here. Obviously you have issues of jailhouse informants, snitches paying people, undisclosed payments of people, which seems corrupt to most people. What are some of the broader institutional reasons why Circuit Judge Elizabeth B. Hogan and others would sort of want to prevent this from moving forward? Is it kind of an institutional protection of their decisions? Does it open them up to lawsuits? The average moral person listening to this is just outrage and thinking, well what this is? It’s like the line from Platoon “Hell is the impossibility of reason.” This seems, this seems very similar to that. Can you kind of explain what the institutional lack of reason is here?

Daniel Harawa: Sure. So I think that something that’s a feature of Lamar’s case that may be a little different from most cases is that the circuit attorney is a progressive prosecutor elected in a conservative state who is trying to do real reform and really trying to take a very introspective look at how the circuit attorney’s office has operated in St. Louis over the years. And the trial judge in this case, after Ms. Garner filed the motion, the trial judge appointed the attorney general to insert himself into the case to give his views. And that’s unprecedented given the fact that Kim Gardner represents the state in the trial court and there was really no role for the attorney general in this case. And yet the attorney general said that the trial court does not have the authority to even consider the motion.

Adam: Right.

Daniel Harawa: So nobody’s even considered the merits of Mr. Johnson’s innocence. And the attorney general purports to say that the state has an interest in finality of convictions, and that’s why courts just can’t keep rehearing motions. But (a) is not often that you hear a prosecutor come in the court and say ‘we wrongfully convicted somebody.’ So the idea that this would open some kind of floodgates is laughable, but (b) it has really startling implications in jurisdictions that elect progressive prosecutors if an attorney general, a conservative attorney general can just swoop in and basically derail that prosecutor’s case.

Adam: Right. So there’s, because it seems like there’s an effort underway, and maybe this is kind of the issue, where people know the quote unquote “progressive prosecutor” wave is coming. It has come in some places very much so already. Is there a sense that there’s going to be an uptick in this kind of zero sum mentality where the forces that can intervene will prevent prosecutors from, that they’ll effectively defang the prosecutors? Is that a fear right now?

Daniel Harawa: I mean I think if this case is an indication, I think Ms. Gardner will face significant pushback from kind of the established norms in a very conservative state. And you saw, like you said, similar efforts in Philadelphia with Larry Krasner. You saw the same thing happen in Florida, out of Miami. So I do worry that if this case, not only is this case about a man who was wrongfully behind bars and all of the kind of irregularities and improprieties that went into his conviction, but it’s also about the forces that be undermining efforts to change and to reform our criminal legal system.

Adam: Right. I want to talk a bit about Johnson himself. Whenever you’re talking about these cases it’s important to like actually remember there’s a real person here. To the extent to which you’ve been able to talk to him and feel out his perspective of this can you paraphrase it here? Can you tell us how he views this and what his approach to this is?

Daniel Harawa: Yeah, so I’ve never spoken with Mr. Johnson directly. I’ve only spoken with his attorneys. He’s currently represented by the Innocence Project.

Adam: Right.

Daniel Harawa: And Mr. Johnson, I mean he has maintained his innocence. He still maintains his innocence and he’s perplexed from what I’ve heard in that how can it be that the state says he’s innocent, but he’s still behind bars? And I think, like you said, for most people who hear that fact, they don’t understand how our justice system can operate in that way. So, from what I’ve heard, it’s not anger it’s just real confusion about how can the justice system or “justice” in quotation marks work this way? The fact that he is still hopeful that there will be justice one day for him just this a testament to his character and his faith in a system that has really wronged him and that everybody can now agree has wronged him.

Adam: Right. Can you tell us (a) what if any kind of broad efforts, maybe even like on a federal level to address these kinds of things are, I know that people like Warren and Sanders and others have released these criminal justice reform plans, do you know of any attempt to like streamline this process and put this out of the hands of a few capricious judges and attorneys general and (b) what are the prospects of Johnson’s case as it stands right now? What’s the next step?

Daniel Harawa: I think actually one of the things that has not been discussed as much but deserves discussion is what do we do when new evidence is discovered in a case. And a lot of states have DNA provisions, where if you discover new DNA evidence, you can file a motion and get a hearing, etcetera. But there’s not that same kind of mechanism in most states for cases where it’s something other than DNA evidence that proves innocence. So I do think that is an area that we need to be mindful of and need to be pushing for, making sure that at least an avenue on the books for courts to hear emotions like the one Ms. Gardner filed. There’s a petition, a color change petition about Mr. Johnson’s case right now that folks can sign and read up about the case. And as far as Mr. Johnson’s case goes, his case is scheduled for oral argument in front of the Missouri Court of Appeals on December 11th. The Missouri Court of Appeals expedited the appeal. So the court has said it’s an unusual posture given the fact that the attorney general’s a party representing the state, the circuit attorney’s a party representing the state, and then Mr. Johnson’s kind of just caught in the middle here. And so hopefully given the egregiousness of what happened, given the fact that over a hundred scholars support Mr. Johnson, given the fact that over 30 elected prosecutors filed their brief supporting Mr. Johnson, that will all hopefully compel the court to rule in his favor.

Adam: Would this be a precedent setting ruling if it is? Because I think that the core thing here is that all these rules against introducing new evidence or trying to introduce new evidence post conviction, is there any sense that those things can be loosened up? And I know it’s a state by state basis, but?

Daniel Harawa: Yeah, I mean so Mr. Johnson’s case is really important for the conviction integrity unit in St. Louis and any other conviction integrity units that may be established. It really goes to show that what happens here will dictate whether prosecutors can correct past malfeasance once it comes to light years later. So it really will test the equitable nature of courts and whether courts are the place where parties can go when there has been a grave injustice.

Adam: Okay. Thank you so much. I really appreciate it.

Daniel Harawa: Thank you both.

Adam: Thank you to our guest Professor Harawa. This has been The Appeal podcast. Remember, you can always follow us on The Appeal magazine’s main Facebook and Twitter page and you can always rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Craig Hunter. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.