Episode 250: Lamar Johnson, Part 2

 

Nick: I’m Nick.

 

Jessa: And I’m Jessa.

 

Nick: And we, collectively, are the Getting Off podcast. We’re back!

 

Jessa: We are!

 

Nick: We’re back to talk about, what exactly..

 

Jessa: Oh boy.

 

Nick: Well, we left off last time, we’d reached a certain point in the case of a man named Lamar Johnson, who was convicted in 1994 of homicide, and finds himself, finds his case in a very interesting and unusual situation. Last time, we led you through the basic facts of the case. The history of the trial itself, at which he was convicted and then the typical standard appellate history. And we brought you up to, basically, now in time, chronologically. And that was all necessary just to provide context to what we’re going to talk about now. But what we’re going to talk about now is, from my perspective, what is actually the most interesting aspect of this man’s case. Most interesting, I mean, certainly legally, but in sort of cultural, societal, all sorts of ways. It’s a good story in some respects. It’s a terrible story in some respects. But legally, I think it’s actually really interesting. So where I think we brought up to the point, we probably brought everybody up to a point from last summer. Like, in terms of where we were in time because we reached, we were talking about this thing that exists in some number of prosecutors’ offices around the United States called Conviction Integrity Units or Conviction Review Units. And there are things that some local elected prosecutors have chosen to create within their offices that designed to look back at old cases that may have problems with them, and examine for themselves whether they do or they do not, in an effort, if we accept at face value, to provide legitimacy and integrity, as the name suggests, to the system. They want to say, “Look, if we’ve got it wrong, tell us. We’ll take a look and we’ll decide for ourselves.” And in some cases, they wind up agreeing that there were problems.

 

Jessa: And as we talked about last time, that is not the majority of cases.

 

Nick: No, it’s a small number. Larry Krasner, one of our heroes, has such a unit, created such a unit when he was elected in Philadelphia. The data that I found on his office, and this is just one office, but I expect that it’s probably, this might even be a higher number than other places. They have only agreed that there were problems with cases that were brought to their attention 4% of the time. That means they rejected 96% of the cases that were brought to their attention, as supposedly having significant problems. Even Larry Krasner, who’s like the poster guy for this “movement” of new progressive-minded prosecutors, reform-minded prosecutors, even in his office it is only 4% of old convictions that they believe are significantly problematic. The existence of these units has not led to chaos in the streets. It just hasn’t. Or chaos within the system. Number one: not that big a number of cases had even been brought to Krasner’s offices attention. It was something like 200, right? That’s not thousands and thousands of cases. The overwhelming massive majority of those, they rejected and said “No. There weren’t any problems. These were good convictions.”

 

Jessa: And the data nationwide appears to be relatively consistent with that. I am unaware of any Conviction Integrity Unit that has overturning more than, like, 10% of the cases that they’re reviewing.

 

Nick: The numbers, there’s an organization, or that entity at the University of Michigan that sort of keeps data on these. They didn’t do it in terms of percentages. They did it in terms of actual raw numbers. A lot of Conviction Integrity Units, a significant number haven’t tried to overturn any decisions at all. We talked about Chicago and Houston had, sort of, unusually large numbers. Numbers that stick out, but those were because of specific, really widespread problems. In Chicago, it was one particular police officer who committed massive misconduct and in Houston, I think there was a problem with the crime lab. So, you know, but that’s also good if we have really egregious problems, problems that are recurring because of incompetence or a bad actor. That’s good that we catch that.

 

Jessa: And, by the way, it’s reassuring that the vast majority that are reviewed, the conviction is proper because that suggests that the legal system is working. Right? Like.

 

Nick: Yeah.

 

Jessa: And we want that. We want people that we convict to be guilty. We want people that we acquit to be innocent. We want the system to do its job.

 

Nick: Literally, everybody wants that. You and I are defense attorneys. Everybody wants that because we want our system to be legitimate and to have integrity. That, again, is sort of the point of these units. And so if we look at this at a 96, well, actually, the error rate is way way way way higher than 96% because 96% represents only the cases that are brought to this unit’s attention.

 

Jessa: Right.

 

Nick: And the actual number of cases that exists is way higher than that. So I’m not sure we can necessarily draw the conclusion that you and I are talking about here, but if we can, it should reassure us, those numbers are better than, perhaps, some people might fear.

 

Jessa: Right. Like, assuming that people are fairly reviewing these, if they’re finding that the vast majority of convictions are proper, that’s a good thing.

 

Nick: Of course it is. We laud our system, I think politicians do, most citizens do, we believe it’s a good system and it is in everyone’s interest that it, in fact, prove to be a good system. So. Okay. That’s a bit more of the backdrop. So what we get to is the city of St Louis in Missouri. For international listeners, Missouri is a state almost in the dead center of America, right? Not too far west, not too far east, not too far north, not too far south.

 

Jessa: It’s part of the heartland, like Wisconsin.

 

Nick: Yeah. I think it is. It’s right on the Mississippi River. It’s actually a beautiful, old city. I’m very fond of it. And in St Louis, in the city, there are two different elected prosecutors. One for the county of St Louis, or the area that surrounds the city itself, and then one for the city of St Louis itself, so we’re talking about the city of St Louis. The elected, they don’t call them DA’s there. They call them Circuit Attorneys, that the elected Circuit Attorney for the city of St Louis. Okay fine. That is a woman named Kim Gardner, who was elected in 2016, as one of these reform-minded progressive prosecutors. She was elected, I don’t recall what the percentages were, but she won by a lot.

 

Jessa: Right.

 

Nick: And she was elected after a different Circuit Attorney served four terms, decided that she was not gonna run for reelection. She won the Democratic primary, and then won the general election. Okay fine. She, in the year after she was elected or two years after she elected, she formed a Conviction Integrity Unit. Okay, great. And began to review cases. In 2017 and 2018 and 2019, the Lamar Johnson case was brought to their attention. Okay. That case had gone through all the things we talked about before. The case was brought to their attention by the, I think it’s the Midwest Innocence Project. MIP. Okay. Lots of information, lots of data. They’d done a lot of research, investigation, like, new research and investigation..

 

Jessa: We talked about some of that.

 

Nick: That’s right.

 

Jessa: Right.

 

Nick: Kim Gardner’s unit takes a look at it, agrees with it, and as we talked about at the end last time, produced a really big document, outlining the investigation and the findings which was released publicly simultaneously with a motion seeking to vacate, well, asking for a new trial, vacating Mr Johnson’s conviction, way back from 1994. And that motion was filed by both sides. Right? By the lawyers representing Lamar Johnson, that’s the defense, and by Kim Gardner’s office, the prosecutor’s. And as we teased at the end last time, one would think when both parties to a dispute come to the court and say “Hey, we agree on what should happen next”, that that would kind of be the end of it.

 

Jessa: Well, and why is that? Just for people that aren’t used to that. The reason that that is, if two adverse sides reach the same conclusion, and are asking the court to do something, it’s exceedingly unlikely that there would be an appeal. Right? Because everybody agrees that that’s what should be done.

 

Nick: Right. Let’s take it even more generally than that. What is any legal case? Well, it’s a dispute. Court systems exist, judges are employed to resolve disputes between entities. Those entities in any given case are called parties. And if the parties agree on any given thing, there’s no longer a dispute for the court to resolve on that issue. Or perhaps on the resolution of the case entirely. And courts typically aren’t in the business of upending resolutions that parties to a dispute reach themselves.

 

Jessa: Why is that? That’s fundamentally about laissez faire government because the idea is, you’re an adult. If you’ve reached an agreement, we’re really not gonna interfere with that. 

 

Nick: Right. And there’s all sorts of doctrines, I’m not sure what the right, you know, modesty and courts aren’t supposed to overreach and do things that they’re not being asked to do. Appellate will, oftentimes, issue really narrow decisions and not address the overarching issue in some case because they’re, like, “Look. That’s not the dispute here. We’re simply going to address the actual legal points of dispute”. Okay. That’s what one might assume, and again, just like, setting aside the sort of legal part of it, it’s like, if two people to a dispute agree, then it doesn’t really sound like there’s a dispute anymore. What’s the problem? Well, that is not what happened.

 

Jessa: Well, and if you’ve been a long time listener of this show, we’ve talked at length in prior episodes about the wide discretion that is typically granted to prosecutors.

 

Nick: We sure have.

 

Jessa: And I can’t even list all of the episodes that we’ve talked about that because it’s a pervasive topic here. These are people who are largely immune or sanctioned for their decisions. They’re trusted with a lot of advisory review power. With charging decisions. There’s a wide range. And part of that is, I think, the creation of units that review the work, such as these Conviction Integrity Units. I mention this because I am unaware of any requirement that to create a Conviction Integrity Unit, a prosecutor would need statutory authority. I actually think that’s implicit in our standard grant of discretion to prosecutors.

 

Nick: Right. Prosecutors, in most places, here in Wisconsin and in Missouri, are elected officers. So they’re constitutionally elected officers. Typically, the existence of local prosecutors comes into existence, first by the state constitution, then perhaps through statutes and the legislature next. Okay fine. They have, and they’re elected, like, this is democracy. They are elected to do these things. And there are limits to their authority, of course. They’re elected to be the people’s attorney on a certain type of case. Okay, fine. Then in the administration of their duties, how they choose to organize their office is..

 

Jessa: Is kind of up to them.

 

Nick: Of course. Now, and so that’s where you and I both agree, the authority or their ability to create a thing called a Conviction Integrity Unit comes from. That’s well and good, but does, how far does that extend? Just because you choose to have a unit in your office, you might have a sensitive crimes unit. You might have a homicide unit or a traffic unit. Okay fine. But just having that unit doesn’t mean, necessarily, anything more. They still, if they want to do something, like any lawyer, they need legal authority to do something legally. Right? We have statutes. We have case law. We talk about, in Massachusetts, things are all wacky and different because it’s..


 

Jessa: Common Law.

 

Nick: Exactly. Which is terrifying to you and I. But any lawyer, a judge will oftentimes ask the lawyer in court, “Okay, you’re asking me to do X, Y, or Z. What legal authority do I have to do what you’re asking me to do?” And that’s actually what the judge in this case did, and you and I believe that Missouri, I hate this phrase, but there’s perhaps a perfect storm leading to this crazy case in Missouri because, well. Kim Gardner, or any other elected Circuit Attorney in the state of Missouri, may be free to create such a unit. Her unit then went and filed the motion that we talked about and the judge, who is assigned to the case at that point, said “I am denying your motion”. The judge did a lot of things. The bottom line is, the judge denied the motion and said “I’m denying your motion, in part because I don’t think you have the legal authority to even bring the motion that you’ve brought, and I don’t have the legal authority to grant it”.

 

Jessa: Right. And why is that, or at least, why did the judge claim that was true here? Well, they claimed, this judge claimed it was true because the statutes governing appeals in Missouri set out very specific time limits, we talked a bit about that last time, in which a defendant has the opportunity to file appeals that challenge the conviction.

 

Nick: That’s right.

 

Jessa: And here, we were way outside of time limits. Decades outside of time limits because it’s, like, 10 to 20 days. We talked about it last time and I don’t want to misstate it because I don't have it in front of me, but.

 

Nick: Here’s what it is. For the specific statute that they were bringing this motion under, which is a statute seeking, granting a new trial, says that “You have 15 days after the verdict is returned by the jury to file this type of motion” or perhaps 10 more days if you seek the additional 10 days, and there was good cause shown for why the extension should be granted. Okay. So, this type of motion, if you read this Missouri statute of appellate procedure at face value, appears to say “You have 25 days after the trial ends to file a motion seeking a new trial”, based on, for example, newly discovered evidence. Okay. Wow, does that feel incredibly restrictive.

 

Jessa: Yeah.

 

Nick: I mean, who believes that newly discovered evidence, for example, would show up, suddenly, magically, right after the conclusion of a trial.

 

Jessa: Well, particularly, part of the standard of newly discovered evidence requires that evidence to not have been knowable by trial counsel at the time of trial, and so, most of the things that someone finds out 10 days after trial were probably discoverable by the trial attorney.

 

Nick: That’s right.

 

Jessa: Not always, but like, it’s a very short turnaround for new evidence to present itself.

 

Nick: That’s right. And so, what we believe to be true, you and I are not appellate attorneys. I think we’ve been pretty clear about that and I want to be clear about that again. We believe that Missouri’s appellate, criminal appellate statutory procedure is unusual in that it does not have a crystal clear provision that would permit a filing of a new appeal far later in time, on the grounds that Lamar Johnson is asserting here.

 

Jessa: Where it’s, like, most states have some type of new evidence statute that allows..

 

Nick: Right. Cause what’s going on here is the, the court and others and we’ll get to that in a minute, is saying, “You had an opportunity to bring this kind of motion. It passed, like, oh, I don’t know, 26 years ago. So you’re way way way untimely. We’re not even gonna reach the merits.” That’s part of the decision because this simply isn’t allowed. And so they’re just saying, “nope. You missed your window, so doesn’t really matter what you have to say”. I mean, that seems crazy to me on it’s face. That is putting, I don’t know, form over function, or finality over accuracy or truth. I mean, really prioritizing one thing over another cause those are restrictive, really restrictive timeline and there’s, like, no ripcord in case of emergency.

 

Jessa: Right.

 

Nick: And so that’s what the judge is saying. And I will tell you, when you and I first looked at that statute, you’re like “Oh wow”. It appears to just say what it says. Now, lawyers are pretty good, looking at something that appears to say what it says and saying it, arguing that it actually means something different. And there was some of that here. For example, part of the statute says “On application of the defendant made within 15 days after the return of the verdict and for good cause shown, it can be extended for 10 more.” Okay.

 

Jessa: It’s silent about how long the state has.

 

Nick: That’s right. And so, what if, and also, what if neither side objected to the waiver, waiving that timeline? And, okay. So that’s what the statute says. That’s what the court did. The court did some other things.

 

Jessa: Which, like, by the way, a court finding that someone is asking for a remedy that the court has no authority to order..

 

Nick: Isn’t weird.

 

Jessa: Isn’t that weird. Like, and generally speaking, this is a huge generalization, but generally speaking, conservative judges are less likely to, sorta, put a foot out there and overreach in the interest of fairness because they tend to decide things on more narrow grounds, whereas more liberal judges will be a little more flexible. Generally speaking with form versus function.

 

Nick: And there are some judges and some lawyers, perhaps, who have, right. We’re talking about, for example, originalism or that kind of stuff. There are some people who take a very restrictive view of, let’s say, statutes or the language in constitutions and say “You cannot, you really can’t get creative and look to broaden the scope of its meaning or its authority. It really only means what it says and literally nothing else, and we take a very narrow view of what it actually means.” Okay fine.

 

Jessa: And by the way, what is that? It’s because the legislature is tasked with writing the law and the judiciary is tasked with interpreting it, and so they don’t want to create new law. They only want to interpret existing law.

 

Nick: Because this is a separation of powers thing. That is not their job. And that’s true. It is not courts’ jobs to create law or write law. That is the job of the legislature. It is the job of the judiciary, typically, to interpret and apply and enforce the laws. Say what the law is. Now, that sounds nice and that sounds pretty simple. It’s not because statutes are written ambiguously and also, like, no statute and no writer or statutes can ever envision, like every actual scenario that might come to pass. Okay fine. It is more ambiguous than you and I initially believed, based on the reading solely of the statute in question because, and this is, here’s what courts do. There are cases that interpret the meaning of the statutes in question. And I will say this. And I think you’ll agree with me. Tell me if I’m wrong, that these cases provide a basis, I believe, for a judge to have ruled either way on this.

 

Jessa: I agree with you cause the court analyses some of the appeals decision and ultimately concludes that the cases that allow for an untimely appeal really focus on whether or not a timely appeal had also been followed. And I think that’s an interpretation. I think the case law, if the judge wanted to go the other way, it could have found support for that.

 

Nick: And some of these decisions also talk about the system simply could not allow an egregious, like, miscarriage of justice to take place, only because of, like, procedural specifics. And so, the court sort of has the inherent authority, perhaps, to do this in extraordinary circumstances. These cases make it clear that this is not to be invoked lightly.

 

Jessa: Everyday, bro.

 

Nick: Right. So, the trial court, the judge in St Louis in 2019, doesn’t only say “I don’t have the authority to do this”, she does a few other things. One, well, okay. She does sort of throw shade on the bases upon which the Circuit Attorney is bringing this motion. Right. She’s not impressed with the results of this investigation. She says, “It’s not totally apparent”, because the motion and the investigation really allege four different things. Right? And among them are: his really actual innocence, newly discovered evidence, but also prosecutorial misconduct in the form of Brady violations, failing to disclose a variety of different things and also presenting knowingly false testimony. Okay. She says “Number one, much of this has been heard by courts in his previous appeals and been rejected, and number two, it’s really not, I don’t think it says, it shows what you guys say it shows”. And I think one of the reasons she did that is to say, is to ward off an argument that “Oh, this is an extraordinary circumstance. It’s warranted to sort of go outside the statute here” And I think she’s, implicit in what she’s saying here is “I’m not impressed by that. I don’t think this is such a circumstance.” 

 

Jessa: Right. Now all of that would be one thing. But she actually does something else, too, that is, in my view, pretty highly unusual.

 

Nick: Right.

 

Jessa: Which is, she didn’t just reject this after finding that she had no statutory authority to grant it. She also appointed the Attorney General’s office to act as a representative for the state. And she did that, what’s called, “sua sponte” or “on the court’s own motion”, so it wasn’t at the request of either side. And notably, it wasn’t as though she discharged the prosecutor and said “You’re gonna be replaced by the AG.” She kept them both on as some weird co-counsel situation, even though, as we’re about to talk about, they argued very different positions. So to understand why that matters, you first have to understand what a District Attorney does and what an AG does. So your father worked at an AG’s office for a ton of his career, Nick, I’m gonna turn that over to you for a minute.

 

Nick: Absolutely. So, let’s talk about what these entities that we’re discussing are. I think we pretty clearly talked about what Circuit Attorneys, what’s called Circuit Attorneys in Missouri are. That’s what is called in other places and we’re most familiar with the phrase District Attorney. The DA. That is someone who is elected by the citizens of a given jurisdiction to represent the state or the county or the parish of the Commonwealth, in criminal matters, and perhaps in other types of cases. Forfeiture matters, traffic stuff, perhaps with matters involving termination of parental rights. Things like that, but typically the primary focus is on criminal matters. And they are, these entities, their existence is created by law, either by the state constitution or by the legislature, with power that’s delegated to them by the state constitution. And so, that is the constitutionally or statutorily created person, appointed person, designated person to represent the people in this type of case. Okay. What is the Attorney General? Well, the Attorney General is a statewide office. In some states, I think probably, most states, that is also an elected position. That’s so in Wisconsin and I believe it’s so in Missouri. That office has a different sort of spectrum of authority. They are to represent the state itself, like, state agencies, state actors, many statewide, not local. In cases that are brought against the state, so if you sue the state of Wisconsin, if you sue the department of motor vehicles or the department of corrections or whatever, the Attorney General will probably represent those agencies. They also, sometimes, have some authority in criminal matters, which are typically reserved for the local attorneys. Here in Wisconsin, for example, there are a handful of ways that the Attorney General's office could become involved in a local criminal matter. And that’s also so in Missouri. One way is if the local prosecutor seeks their assistance and there are a handful of grounds that they can use to do that. One is if there is some kind of conflict of interest, right? If somebody in the Circuit Attorney’s office is related to somebody involved in the investigation. Or if it’s a local figure. And that’s not uncommon here in Wisconsin. Another way if the case is just more than they can handle. Right?

 

Jessa: Right. Cause here, we have a lot of counties that have one or two prosecutors because they’re small and rural and if they have a homicide or a sexual assault or some big serious felony, that local prosecutor may not have a ton of experience or manpower in handling those types of cases, so they’re able to call upon the expertise of the AG’s office.

 

Nick: For assistance. Right. Cause there have been cases in northern Wisconsin which is a pretty rural area where some really horrific homicide has taken place. Like, the Jayme Closs case is an example of this. And so if there is literally only the elected DA in that office, handling a case of that magnitude might not allow him or her to, like, literally do anything else and that ain’t gonna work. So that’s an example. So there’s stuff like that. They can’t just come in whenever they want. They don’t have the legal authority to do that. Okay. So how did the AG’s office get involved here in Lamar Johnson’s case, way after the fact? Okay. Nobody, well, neither of the parties sought their entry into the case. The judge, as you said, sua sponte, on her own, said “I am bringing them in”, and then invited people to, now there’s all of a sudden three sets of attorneys to brief the issue of whether or not the judge could or could not do that.

 

Jessa: And here’s what’s particularly odd about that. Typically, if there’s a conflict of interest, for a prosecutor to handle a case, the whole office is disqualified. You say “Look. It’s conflicted out. We have to give it to somebody else”. So, normally, if a judge found that the AG’s presence was necessary, they would determine that the local prosecutor wasn’t able to handle this because of conflict or whatever. No such finding exists here. In fact, this judge did the opposite and says “No no no. I’m not disqualifying the DA’s office. I just think that the integrity of the system requires input from the AG”. So what we actually have is this weird situation where two different prosecutorial offices are offering two different arguments about the facts of the case. And that’s notable because, typically in both yours and my experience, when the AG’s office is brought in, they tend to caucus with the local DA’s and reach some agreements about what the right course of action is.

 

Nick: And again, that reflects that there is two different, ultimately two different ways that they can come in. Either they come in in a complementary way. They come in to help and assist, in which case it remains the local DA’s case, in terms of who is actually formally making the decisions and they’re just there to provide assistance. And certainly they would caucus and really defer to the local because that person, again, is an elected official. Or if, in the instance of a conflict, the DA is completely out. The office is completely out and the case belongs solely to the AG. Right?

 

Jessa: Right.

 

Nick: So it’s one or the other. Well, here, neither one of those things was true. So there’s all sorts of craziness about this. Here’s one part that I think is crazy. On one hand, with her left hand, the judge is taking a very strict restrictive view of whether or not she does or does not have the legal authority to do something. Okay. That’s okay.

 

Jessa: That’s fair.

 

Nick: And that, look. The decision she made to deny the motion, there certainly is a legal basis to do that. That’s an okay decision. I’m fine with that, from a legal perspective. But then with her right hand, about this business about bringing the AG in, she’s really playing pretty fast and loose with the authority to do that. So on one hand, she’s like “No no no. I can’t do anything that I don’t have clear authority to do” and on the other, she’s saying “I can do whatever I damn well please”, despite the fact there really isn’t any legal authority to do this. And she’s citing to her inherent authority to run her courtroom and to make sure the integrity of the system is not compromised. And you would think, if you believed in your inherent powers and you were primarily concerned with the integrity of the system, that you might have a different view of the motion itself.

 

Jessa: Right.

 

Nick: So that seems to be in conflict.

 

Jessa: Yeah.

 

Nick: That’s weird.

 

Jessa: Well, and the idea that two separate agencies would be pursuing different theories of a case is total chaos from, like, a litigation perspective.

 

Nick: Right. Let’s flesh that out. Here’s one part of that. That’s why we have laws about who represents the people.

 

Jessa: Yeah.

 

Nick: And that’s why we have pretty, I mean, we elect DAs, CAs, Circuit Attorneys, to do that. And then there’s no dispute over who gets to make the decision. The elected person gets to make the decision.

 

Jessa: I can’t just roll into a trial and be like “I have opinions about this. As a citizen, I would like to be heard. I don’t think this law is fair.”

 

Nick: No. You and I were talking earlier tonight about random people can’t just walk into a courtroom and start talking. Typically, the attorneys, or the parties are the only people who get to, like address the court. There are exceptions to that rule, but that’s generally true. And so, why is there a third set of lawyers, just walking in and being like “We’ve got things to say”. And the judge seems to be trying to dodge a bullet by saying, a legal bullet, so to speak, by saying “Oh no no no no. I didn’t disqualify the Circuit Attorney’s office”. And I think that she’s doing that because she probably believes that she doesn’t have the authority to disqualify them. Okay. But then you have a different legal problem, where you’ve got two different sets of attorneys representing one party on the case, and that don’t fly.

 

Jessa: And they’re arguing conflicting positions because the DA’s office here is saying “We have an ethical obligation to correct wrongs that our office has created. We think this guy is innocent. We think that we violated his rights. We want to fix that.” And the AG’s office is saying “We care about finality. We care about the statutory interpretation. We don’t care what this prosecutor thinks her ethical duties are. We care about preserving the integrity of the system writ large, and that means you can’t just grant motions for new trials way outside of time limits”.

 

Nick: Right. And again, there are reasonable, legitimate ways to argue both sides of the general issues or concerns that you just articulated. Finality is a legitimate issue. We can argue over where in the list of priorities finality ought to lie, or at what point we ought to start caring really strongly about finality. But as a general proposition, everyone would agree, shit can’t just go on forever and ever and ever. A decision, a system designed to reach decisions, to resolve conflicts, and once resolved, they can’t go on forever and ever.

 

Jessa: We have to be able to, at some point, have confidence in a decision.

 

Nick: That’s right. And that is literally the function of juries. That is the institution of a jury, of the jury, was created for that purpose. Okay fine. So that’s cool. That’s legit. And certainly, courts can’t run around willy nilly doing things that they don’t have the authority to do. Everyone would agree with that. Okay fine. And on the other side, the concerns the prosecutor is articulating, the local prosecutor, you and I are obviously sympathetic to. That’s all fine. Those are legitimate positions, at least at a certain level of generality. But the question is, why does the AG’s office even get to chime in? There doesn’t appear to be any legitimate authority to do that, and also, a thing that is definitely not a thing is that, as you said, a party would be simultaneously represented by two different advocates who take conflicting positions. That’s not allowed!

 

Jessa: Well. Then you’re creating this whole thing of weighing the credibility of their respective advocates. What procedure exists for that? Nothing. They’re not witnesses. They’re not sworn.

 

Nick: Right. You have to pick a horse. A party to a case gets to have representatives who advocate their interests. What you can’t have is different advocates for the same party advocating for different interests. That’s not the system. And so, again, the judge did this without the apparent legal authority. Nobody asked for it, and creates kind of chaos in the process. One thing you and I have talked about is, why? Why did she do that? That’s not apparent to me. Just reading the actual record itself, the briefings, the motions, the decisions, it’s unclear to me why she actually did that because she didn’t have to. I think it is clear. Tell me if you disagree. From the trial court judges decision denying the motion, that she doesn’t like any of this.

 

Jessa: I agree with you.

 

Nick: That she disagrees with all sorts of aspects of this effort, which is fine, I guess. But she could’ve accomplished the goal of denying the motion by simply denying the motion on it’s, either procedurally or on its merits. Or some combination of both without involving the AG. By involving the AG, she creates a whole other set of legal complications and how come?

 

Jessa: Well. Right. And what’s, certainly in her decision to appoint the AG, she says “Because I’m concerned about the integrity of the justice system”. Except, really, what was she saying? She was saying “I don’t like that a prosecutor would seek to overturn a conviction”. That’s really what she’s saying. “I question the legitimacy of any prosecutor who would seek to free someone”. That might be overdramatic, but the practical effect of that is saying exactly that. Like, “I doubt your decision making skills, District Attorney”.

 

Nick: Right. And I think the way you just said it is absolutely one way to interpret what she did. That’s not explicitly what she said, but it’s pretty close. What she cites to is “You guys. That team. Innocence Project plus the Circuit Attorney. I think you violated a local court rule that says that nobody can speak to jurors without getting permission from the court. And you did that. That’s a really egregious thing you did, that you violated..”

 

Jessa: Even though that was not a huge part of the overall conclusions. That was some small part of the investigation.

Nick: It was one aspect of it.

 

Jessa: But it was not..

 

Nick: Right. So she, this isn’t an alleged constitutional violation or a statutory violation. It is a violation of a local court. That’s not a very powerful piece of authority. Right? They’re almost administrative rules. There are rules about how things are, the local judges get together and pass rules about how things are supposed to work locally. Okay fine. So that’s one thing. They also, the judge also asserts that there is a conflict in the Circuit Attorney’s efforts to bring this motion because they are criticizing or looking back at the conduct of a former member of that office. Okay. I don’t understand that at all. That doesn’t make any sense. She also says they’re not following best practices as articulated by the Innocence Project on how to run or administer a Conviction Integrity Unit.

 

Jessa: Well, and part of that is that there isn’t a defense attorney running the thing. Like, the call is coming from inside the house and that’s somehow suspect.

 

Nick: Right. So let’s talk about that. This is completely illogical. The Innocence Project, she says, promulgates these theories about best practices on how to run a CIU. Okay fine. And those are, the people running the CIU really have to have some real independence. Perhaps they should be defense attorneys.

 

Jessa: They can’t be yes-men to the institution. They have to be willing to say “Hey. I follow up questions”.

 

Nick: Right. And under some circumstances, it would be appropriate to seek outside review of some types of cases. Okay. What would be the reason behind that kind of procedure? Well, it would clearly be to make sure that the prosecutors in the office weren’t just rubber stamping the conviction, and not finding error from within their own.

 

Jessa: Right. So those guidelines exist to create an independent, more objective review. Here, we have an internal prosecutor saying “I did that and this is a problem.”

 

Nick: Right. So we literally have the opposite of what that, those policies, those model policies are designed to protect against. We don’t have prosecutors just rubber stamping work of their, one of their own. They’re saying, “Even we, the same team that we’re criticizing, even we think there are serious problems here.” So that can’t be a really serious concern.

 

Jessa: Well, also, the best practices as espoused by an innocence project is hardly a rule that is enforceable in our legal system. That’s an idea that some group of people with some expertise promulgated. So to the extent that they know shit about the justice system, their opinion is more valid than someone who knows nothing about the justice system.

 

Nick: But it doesn’t have any legal authority. Sometimes people will cite to ABA, American Bar Association, model policies but that, again, doesn’t have any legal authority. It’s just intended to be persuasive. Also, the ABA would be perceived as a more neutral organization than the Innocence Project, which is a defense side organization. Also, I would love to have judges allow me to cite to defense side organizations and be like “Yeah. That really carries a lot of weight with me.”

 

Jessa: “The Marshall Project disagrees with your sentence, Judge.”

 

Nick: Exactly. And we’re gonna get to what this is all representative of, a little further down the line.

 

Jessa: Here’s the, and this is where I kinda want to wrap this episode up. It’s not just you and I that are, like, what the hell was the authority to appoint the AG? There was a pretty notable amicus brief, which is a friend of the court brief, filed by over a hundred prosecutors from various places in the country.

 

Nick: There were two different amicus briefs. One from, and this is over time. One from a group of academics and that was 106 legal scholars. Law professors. And then there were two different sets of amicus briefs filed by groups of prosecutors. One in the trial court. One in the subsequent appellate court. And all of these folks are saying that the prosecutor really had the ethical duty to do this.

 

Jessa: And that the judge had no good reason to involve the AG in the first place.

 

Nick: That’s right.

 

Jessa: And, like, if you go way back to our Jordan Johnson episodes, the last time I can think of a clash about AG versus local prosecutorial involvement is in Missoula when the AG’s office stepped in to try to fix what they perceived as a systemic problem about rape prosecutions. And that led to litigation. We’ve talked about that in the past. I don’t want to tangent too hard there, but it’s not often that this type of conflict exists.

 

Nick: That’s right. Now, I think it’s appropriate to point out, that’s a good example. In that example, that came about largely because of external, political factors and you and I certainly believe, we’re not Missouri residents, but it certainly appears and we’ll talk about why shortly, there’s a lot of politics going on here.

 

Jessa: Right. So the judge at the trial level says “No, I’m not granting your motion” even though everybody agrees. And we’re about to see what happens next. And we’ll talk about that next time.

 

Nick: Indeed.

 

Jessa: In the meantime, I am Jessa.

 

Nick: I’m Nick.

 

Jessa: And this was Getting Off.

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