St. Louis Circuit Attorney Kimberly Gardner

Lamar Johnson has been in prison for 25 years for a murder that in all probability he did not commit. St. Louis Circuit Attorney Kimberly Gardner’s Conviction Integrity Unit investigated the 1994 case, and Gardner asked the St. Louis Circuit Court to order a new trial that would clear the way for his release. The circuit court judge refused to order a hearing on Gardner’s motion, saying that court rules and statutes do not provide an innocent inmate a remedy.

In the Court of Appeals, Daniel Harawa, a Washington University professor and former NAACP lawyer, argued persuasively on behalf of Gardner that current law allows for a remedy in unusual cases like Johnson’s. Thirty four prosecutors from 21 states supported the circuit attorney’s and Johnson’s arguments in a friend-of-the-court brief in the Court of Appeals.  

The Court of Appeals, appropriately, has transferred the case to the Missouri Supreme Court – the one court that can provide a remedy if one does not already exist. That’s because the Supreme Court has the constitutional power to adopt rules providing procedures for a new trial in such circumstances.

The court itself in the past has provided a procedural remedy. Nearly 19 years ago, the Missouri Supreme Court issued a simple and important rule that improved criminal justice in the state in response to an advance in forensic technology. It is time for the court to do the same in response to a social rather than technical advancement.

On February 20, 2001, the Missouri Supreme Court, which then consisted of five conservative judges appointed  by Gov. John Ashcroft and two appointed by Gov. Mel Carnahan, ordered the adoption of the new subdivision of an existing court rule entitled "Post-conviction Motion for Forensic DNA Testing not Available at Trial.” It went into effect September 1 of that year.

“A person in custody of the Department of Corrections claiming that forensic DNA testing will demonstrate the person's innocence of the crime for which the person is in custody may file a post-conviction motion in the sentencing court seeking such testing,” subdivision 29.17 of Supreme Court Rule 29 begins. The rule gets more densely procedural fast, but the gist is clear from the name and the beginning of it. As of 2001, there were innocent people languishing in Missouri prisons who would be exonerated through the application of forensic testing of DNA evidence that had not been available when they were convicted. The court introduced the new rule in response to the new technology for a good and simple reason: It is the court’s responsibility to ensure, not that unjust sentences are preserved, but that justice is served.

When the Missouri Court of Appeals transferred Johnson’s appeal to the Missouri Supreme Court on Christmas Eve, the three judges wrote an important and instructive unanimous opinion. They stated that this was a new kind of legal event that needs a new rule from the higher court — and/or a new law from the Missouri Legislature, and indeed our argument and guidance to the court here should be extended, mutatis mutandis, to the Legislature. What is new in the Lamar Johnson case is not a technical innovation, but rather a social movement. That social movement is the election of prosecutors on reform platforms. Reform prosecutors like Gardner are starting Conviction Integrity Review Units that are revisiting the rare but nonetheless problematic cases like Lamar Johnson’s.

Conviction Integrity Review Units like Gardner’s are dedicated to undoing past mistakes in police work and prosecution that led to an epidemic of mass incarceration. Gardner’s investigation of Johnson’s case uncovered ample evidence that if he were retried more fairly — without, among other things, the witness who recanted his testimony — it is reasonable to believe he would not be convicted. A new rule is needed because many people in his position are out of options in procedural terms. The same was true of countless people convicted without forensic review of DNA evidence before 2001. Subdivision 29.17 of Supreme Court Rule 29 provided a procedural fix for people unjustly convicted in Missouri without forensic review of DNA evidence.

If the court does not agree that its current procedures provide a remedy for Lamar Johnson, then the court needs a new subdivision to Rule 29 allowing Johnson and others whose convictions are called into question by a Conviction Integrity Review Unit to file a post-conviction motion in the sentencing court seeking a new trial. This does not open a floodgate – the circuit attorney must be persuaded that justice is lacking and then she must  persuade the trial court that justice requires the granting of a new trial.

The Missouri Supreme Court respects precedents. It has a precedent for handling Johnson’s case and more like it to come from Conviction Integrity Review Units. The precedent is in how the court added a procedural fix to adjust the criminal justice process in the light of DNA forensics. Conviction Integrity Review Units, like DNA forensics, are an important new correction to the imperfect field of criminal justice, and the Supreme Court needs to make a simple, crucial procedural fix to adjust for them. Justice in Missouri – which is this court’s domain – compels it.

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(1) comment


The editorial places too much emphasis on the supreme court adopting a DNA rule. In fact, that rule never became effective. The legislature passed a statute authorizing DNA testing before the rule became effective, and the court vacated its order adopting the DNA. This may be a recognition that the state constitution prohibits the court from adopting rules that change the substantive law and that new remedies are properly within the authority of the legislature. Even in the Johnson case, a legislative remedy should be sought, as in many other states, as such a remedy is clearly within the legislature's authority and questionably within the court's or prosecuting attorney's.

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