Episode 251: Lamar Johnson, the Conclusion

 

Nick: I am Nick.

 

Jessa: And this is Jessa.

 

Nick: And collectively, we are the Getting Off Podcast. We’re back. We’re back again. We’re always back. Today, we’re back to continue, probably to resolve, to reach the end of our discussion of the Lamar Johnson case. And where are we right now? Well, last time, we reached, I think it’s fair to say, we basically reached the end of what the trial court did on this new motion to vacate his sentence to give him a new trial, which I think, look. It’s clear that what the CA, the Circuit Attorney would do, if the conviction was vacated, would then be to dismiss the case. So. That’s what’s actually going on here. The Circuit Attorney believes that he is actually innocent and is seeking to undo his conviction for the purposes of freeing him. Okay. So the trial level court in, the circuit court for the city of St Louis, denied that motion, in pretty emphatic fashion. And did other things, like, that just made it pretty clear that she didn’t really agree with their view of the evidence, brought in, ordered the Attorney General to appear on the case, which we talked about last time, in a way that doesn’t appear to have, to our eyes, a lot of legal support or legal authority to do that. The AG’s office did get involved, and thus, two entities, the AG’s office and the Circuit Attorney were both representing one party, that is the state of Missouri, which was the plaintiff in this case. And the AG offered an opinion that appeared to be more of what the judge was interested in reading about, which was “No authority to do this. They’re way out over their skis. Sorry. Too bad. You lose”. And that is what the judge did. So then, what happens next? Well, of course, the parties who disagreed with the trial court’s decision appealed that decision to the intermediate court of appeals in the state of Missouri.

 

Jessa: To which, the court of appeals is like “So this is above our paygrade. These are pretty important issues”.

 

Nick: There’s a way in Wisconsin for them to punt even harder than these guys punted. There’s a mechanism in the Wisconsin appellate system where the intermediate court of appeals can literally offer no opinion at all and just immediately direct it to the Supreme Court. They didn’t do that here. They did write a decision, but they still immediately directed it to the Supreme Court without anybody having to appeal. They just did it themselves. They were, the court of appeals, which is called just The Court of Appeals in Missouri, was less unsympathetic to this effort than the trial court judge was. Do you think that’s a fair thing to say?

 

Jessa: I do because I think that while the trial court sort of cast aspersions about the assertions of innocence, the court of appeals was like “Golly gee. It sounds like there are some pretty important things that people could fight about, and it’d be probably pretty important that people got to fight about those, but we don’t that we have the authority to let them, so we’re gonna ask the Supreme Court of Missouri to decide if we have that authority.

 

Nick: Right. They’re like “We agree with the trial court that there’s just no law in our state that allows this type of motion to be brought at this time”, but they write “despite the importance of this case of first impression” and we’ll talk about what that means in a second, “the orders challenge on appeal are not appealable. Though we must dismiss the appeal, we transfer the case to the Missouri Supreme Court pursuant to” blah blah blah rule. Okay so, what is, when lawyers or judges talk about things of first impression, what does that mean?

 

Jessa: That means that there’s no law that governs it. That basically means that this is an issue no judge has previously decided, that is also not clear from the statute.

 

Nick: That’s right. It means there’s no, this question, this precise question has never been answered before. So we’re going to be making, I mean, maybe new law is putting it a bit too dramatically, but we’re going to be answering a question for the first time.

 

Jessa: And the answer to that question will stand as precedent for lower courts to follow in the future, so our interpretation of the law will be a declaration that lower courts previously did not have to guide them. So this opinion is..

 

Nick: Right. They’re setting precedent. You know, intermediate courts of appeal can do that. Any decision they reach has less impact than a decision reached by the ultimate, the highest appellate court. A state appellate court, or in the federal system, the United States Supreme Court. But, so, they write a decision. It is way shorter than the trial court’s decision. Again, I think they are more sympathetic. And they say “Wow. This is all pretty weird. The AG’s involvement. This is all kinda strange”. But they agree. Ultimately, it’s, look, the trial court found no merit to the contention that it could review Lamar Johnson’s conviction under the statutes, the criminal appellate procedural statutes cited. And then cites to some of the cases, some issues relating to these statutes have been addressed before. But never this precise one. Because, I believe what is unique about this one is two things. One, the involvement of the Circuit Attorney supporting it. And two, the timing of it.

 

Jessa: Say more about the second one.

 

Nick: Well. The timing?

 

Jessa: Because it was so late?

 

Nick: Yes.

 

Jessa: Okay.

 

Nick: Because it is, like, you know, decades after the timeline has expired. And so some of these cases that both sides are citing to, including the Circuit Attorney and the Innocence Project, that assert that, you know, under extraordinary circumstances, a court may be able to do things that the statute doesn’t appear to authorize. Those appeals, those arguments were made at a wildly different point in those cases. Yes, after the 25 days, but perhaps while some other form of appeal was still pending. And so, some court still had jurisdiction. Because, fundamentally, what the Attorney General’s office is arguing and the courts are saying is, the trial court, the whole court system actually has no jurisdiction over this matter.

 

Jessa: That’s a good point, and we should clarify that. Because part of what a judge is saying by saying “I don’t have the authority to do what you’re asking me”, is saying “I literally cannot require the thing that you’re asking me to require because I don’t control the decisions of the people”. That was very vague, but it’s basically like “I can’t mandate what you’re asking me to mandate.”

 

Nick: Right. Because judges don’t just, they’re not kings. They’re not gods. They don’t get to just do whatever they want. They are supposed to apply the law, and if there is no law allowing them to do whatever a party is seeking, then they simply can’t do it. And that can be so for a variety of very technical legal reasons. Here, what is being argued is that, literally, the court system doesn’t have any jurisdiction over this case anymore. That the trial court lost jurisdiction on this issue, at least, 25 days after the verdict was rendered.

 

Jessa: So as a practical matter, what does that mean? That means that the state of Missouri statutes, as we sit here today recording this, because this case is still pending in front of the Missouri Supreme Court, the Missouri statutes don’t appear to give a person asserting actual innocence, based on new evidence that was discovered after the timeline for appeal filing ran. Any ability to assert their actual innocence in higher courts, as a basis to get a new trial or to vacate a conviction or to get a remedy. What they’re saying is like “We don’t care what happens next”, basically. “We don’t care what evidence you uncover. Your time limit ran. You’re done. No soup for you. No appeal for you.”

 

Nick: Right. And some of those other cases, if I understand them correctly, are saying, maybe if you’re after the deadline, but, like, some version of your appeals are still within the system, you could raise that under extraordinary circumstances. But if, literally, your case is just straight up done, because they keep noting he “enjoyed”, from their perspective, this whole gamut of appellate options available to him. He went up and down the state system on sort of direct appeal. He went into the federal system on habeas. He tried habeas in the state system and just lost all along the way. In fact, he hadn’t had a pending appeal since, I think, 2003 or something. And so, but what’s striking to you and me is something that stems from something that you just said. They’re saying, because of procedural reasons, there is literally no way that a person who asserts their actual innocence can bring that claim after a period of time has gone by. There’s no “break glass here in case of emergency”.

 

Jessa: And, I think that laypeople and even lawyers have sort of a gut reaction to be like, wow. Seriously? We can have somebody who had a legitimate claim of actual innocence, and what you’re saying is we’re not gonna let them argue that?

 

Nick: Right. To me, that is shocking to me. And so I think I referenced this last time. This is sort of a perfect storm type of scenario because we’re dealing with the state that doesn’t have any emergency statute.

 

Jessa: Right.

 

Nick: Right? That would allow for the assertion of this kind of thing in extraordinary circumstances. And Wisconsin does have a statute of that sort.

 

Jessa: Most states do.

 

Nick: Other states do. And so, we’re gonna talk about really big picture stuff in this episode. But in other states, even in other states where the new prosecutor, the new breed of prosecutors has been getting pushback from the system, which is what we’re gonna talk about shortly. In most of those states, there is some kind of mechanism that allows for something like this to happen. Missouri, we believe, is quite unusual. So that’s what’s going on.

 

Jessa: I would note that there’s actually even some Supreme Court of the United States decisions that sort of support the notion that actual innocence is not a sure fire way to get out of a jail. To get out of prison. To get your rights back. And what am I talking about? I’m talking about the denial of cert by the United States Supreme Court in the Troy Davis case, where, essentially, they issue an opinion saying “We’re not gonna hear this because we’re not sure that a standalone claim of actual innocence, absent a co-existing constitutional violation, has a legal remedy”. At least, Scalia said that.

 

Nick: Right. Troy Davis is a case that we, who knows, could wind up doing down the road. He was a guy who was convicted of homicide in Georgia. Became a case that a lot of people, celebrities and whatnot, supported. The claim that he was straight up innocent. All sorts of crazy appellate stuff. Eventually, they petitioned the Supreme Court on, what you said, saying “You need to take this case because he is just straight up actually innocent. There’s some inherent legal basis. It’s like a 14th amendment violation or whatever that allows for you to review this.” The Supreme Court did not take the case, per se, but did order that it be returned to the trial level court for an evidentiary hearing to evaluate the legitimacy or the credibility of his claims of actual innocence.

 

Jessa: Which the trial court then denied, but whatever. I don’t want to get to.

 

Nick: The reason you brought that up is. I’m kind of jumping ahead. The Missouri appellate court denies it and sends it straight to the Supreme Court of Missouri. That’s where it’s pending right now. Okay. So who knows what the Missouri Supreme Court will decide? But let’s engage in some sort of thought experiment. Let’s say they deny it on the same grounds that have been asserted today. Okay fine. What options, if any, would Lamar Johnson have? Because one thing that I, there’s a variety of things in some of these decisions and filings by the AG’s office or by the trial court that I don’t feel are particularly genuine to me. They feel disingenuous. And one of those is the assertion by the AG’s office that he can take these claims elsewhere under places where he has the authority to bring them, but that ain’t here. You can’t go home, but you can’t stay here. The problem with that is, I don’t know, there may not be anywhere that he can take them because, we might find that out if he loses at the Supreme Court. And that’s where the Troy Davis case and cases of its type come in. What they were addressing in part was, is there any constitutional, is the constitution violated by someone who brings a claim of actual innocence and nothing else? Right? Does that implicate the constitution? There’s no clear answer on that. But in this instance, if Lamar Johnson attempted to get back into federal court, and that would be by habeas, and there aren’t any issues with that because he’s brought habeas claims before, he may be procedurally barred on that, as well, because of those prior efforts. But for him, he wouldn’t, his claims are not only actual innocence. He actually is also alleging constitutional violations in the form of Brady violations. So that, I think you and I agree, we believe would put him in

 

Jessa: A different category than Troy Davis.

 

Nick: A better footing than Troy Davis. Now, but a problem with that is, at least, the claim of Brady violations isn’t new.

 

Jessa: Right.

 

Nick: Some of the grounds for that claim are new. Some are old. Some are new. And so, habeas is a morass. It is incredibly complicated. It was made, it was always difficult. It was made even more difficult procedurally by..

 

Jessa: AEDPA.

 

Nick: Thank you very much, which was relatively recent federal legislation concerning the procedures involved for..

 

Jessa: Federal appeals, particularly for capital cases, but..

 

Nick: Yes. And you don’t get an unending number of kicks at the can, which I suspect would be an issue for him. What is habeas, aside from being a total morass? The idea is that, you may be able to bring your case from state court to federal court if you allege that the state court has consistently violated a constitutional right and you can only get redress in the federal system because you’ve exhausted your remedies within the state system, and the state system refuses to correct this fundamental constitutional violation.

 

Jessa: So depending on how big of a swing Lamar Johnson’s lawyers take, they may argue that it’s unconstitutional for a state to provide no procedural remedy for an actually innocent person.

 

Nick: I wonder if that would not even be a habeas thing. If you are, I actually think that’s a completely different thing. It’s very closely related but it is fundamentally, I believe, a different legal argument or approach. Jessa, you and I speculated about that off mic earlier. That could you bring to the federal system, to the Supreme Court. I don’t think that would be hopping into federal district court. I think that would be a petition to the Supreme Court directly from, well, although..

 

Jessa: I don’t feel qualified to speak about the procedural mechanisms of that.

 

Nick: But habeas, you go through the local level courts. But if you’re alleging that the state committed something unconstitutional, I think you make your appeal from the state Supreme Court to the federal Supreme Court. But here’s the issue with this thing that you and I are spitballing about. I don’t, they’re not arguing that. That’s not a claim that they’re asserting.

 

Jessa: Not that we’ve seen, at least.

 

Nick: Not at the trial level. And not at the appellate level. I mean, I wonder if they could’ve made that at the intermediate appellate level because, I don’t know that they anticipated that decision. But having gotten it, could they not have argued that’s unconstitutional to have no mechanism to address that?

 

Jessa: And is it possible that that argument has been waived?

 

Nick: I’m saying. Listeners, I hope, are getting a sense from this conversation how complicated criminal appeals are and can be. Both substantively and procedurally. And they also, the kind of stuff we’re talking about now, invoke this notion of federalism, which is the relationship between states and the federal government and state courts system and the federal courts system and that is probably the hardest class I took in law school. Let’s get away from that.

 

Jessa: How the hell did we end up with this mess? Like, how is the Supreme Court of Missouri even having to tackle this? This is a disaster.

 

Nick: Right. We talked about bringing in the AG before. I don’t know why the AG was necessary because, again, the trial court could’ve just straight up denied the motion and then the two sets of lawyers for the defense and the circuit could’ve appealed that denial. I don’t know why we need the AG’s involvement, but we’ve got it. Okay fine. Right. So now we’re talking about larger..

 

Jessa: Now we’re talking about the things that I hate in terms of involvement in the legal system, which is politics. Because we’re talking about, usually, the AG’s office is sort of in lock step with a local, it’s not often that you see clashes like this, right? Because usually, they’re consulting and working together and being a team.

 

Nick: Well. Especially on criminal matters, right? Like, prosecutors generally don’t have, historically, wildly different views of stuff than one of their compatriots. So. Right. Here in Wisconsin, elected DAs have a warm relationship, generally speaking, with the criminal attorneys, the criminal units within the AG’s office because they turn to them for advice, guidance, support, and the appellate teams in the AG’s office are the ones who handle the appeals that come out of the local DA’s office. That’s a different jurisdictional issue. This is weird. That is one of many things that’s weird. What does that represent? 

 

Jessa: Well, okay. We can tell you some ideas.

 

Nick: We can tell you some ideas.

 

Jessa: Because, like, here’s what is apparent. Okay. The St Louis District Attorney, Circuit Attorney, ran on a very progressive, reform-based platform. That appears to be significantly more progressive than what the Attorney General’s office of Missouri supports. It also appears to be significantly more progressive than what this trial court judge feels.

 

Nick: Indeed. One thing that is going on here is that the system at large, the powers that be, the status quo, the system is pushing back against her in a big way. Now that is not unusual. A lot of these new breed of prosecutors have experienced that. Larry Krasner has totally experienced that. Others of this sort of mindset have experienced that around the country. It may be the case that nobody is experiencing it at the same level that Kim Gardner is. It is gotten to the point where she, and this just happened this week. She literally filed a federal lawsuit against basically the whole system in St Louis, alleging that they are committing a variety of constitutional, violations of her constitutional rights, as the elected DA or CA, and are doing so just to like, in denial of her authority. She is in open warfare with basically all the other powers that be. So we’re talking about the police department in the city of St Louis, their union, county officials, state officials, who all historically, traditionally would work together in some way, shape, or form to administer justice and run the government and keep, you know, a community in a nation of laws running. And now they’re at open, in open war with each other. She ran on a very aggressive, what I guess is called a progressive platform. She said she was going to not charge certain types of crime. She said she was going to hold the police much more accountable, etc etc. The same similar platform as people like Larry Krasner. Some people, what you could call it, the left, criticised her for not doing that fast enough when she took office. But she has picked fights even beyond, or wound up in fights even beyond what that might suggest. Yes. She is in combat, in total disagreement with the local cops and their union, and she created a list of police officers who she believes have committed such egregious violations in the course, during their job, that they won’t prosecute cases involving those cops because she believes that they can’t put them up on the stand and assert, you know, vouch for these people’s credibility. That is something, not surprisingly, that police unions don’t like. She has also gone after the police chief, saying “I have to do X, Y, and Z because these guys are literally refusing to investigate”. One example of that was, she investigated the sitting governor of the state of Missouri not too long after she took office. He wound up resigning. She charged him. The case went away. It turned into an enormous mess. But if you go after a sitting governor, you are going to make some enemies. So That was a problem. The manner in which she conducted that investigation and handled that prosecution has now been turned around and is being used as a weapon against her. It’s resulted in an investigation into her and her office, and this ex-FBI agent that she hired to investigate the governor, who wound up being charged with crimes for the way he conducted that investigation. But it’s led to, you know, litigation that has led to discovery of the inner workings of her office, access to her servers, all kinds of crazy stuff.

 

Jessa: Things that are typically outside the purview of the general public. Like, most of us don’t know how a local DA’s office works. If you wanted to file a bunch of open records requests, you could probably find out some of it.

 

Nick: But a lot of the contents of prosecutors files under Wisconsin’s laws are not subject to our local, our state open records law. They are protected from that. This is the opposite of that. What is striking about this is looking at it from this perspective. As you said in the last episode, we’ve talked a lot about how broad the powers of prosecutors are and how little scrutiny or accountability generally really exists for prosecutors’ actions. This is, like, the total opposite of that.

 

Jessa: It certainly is that to me. Look, I’m coming at this from a pretty biased place because to me, the people of St Louis elected somebody who wanted to change the way things were done. That’s a valid election result, so far as I know. I’ve seen nothing to challenge it. And what I see happening is, courts are saying, “We don’t care that the electorate hates our criminal justice system and thinks it’s flawed and thinks it’s bad and we need changes. We don’t care because we don’t trust the elected official to make that type of decision”.

 

Nick: I don’t even think they’re saying that. I think they’re saying “We just disagree with her and we’re just gonna stop it if we can, elections be damned.” Some of this, you can pretty easily argue, is anti-democratic or undemocratic. Small “d”. Like, against a democracy. This woman was elected. She didn’t make any secrets about what her agenda was. And the electorate chose her from a field of several candidates. And so the powers that be are basically, this is like The Empire Strikes Back. I’m kinda joking but I’m kinda serious. This is, what’s the right word for it? Not the hierarchy. But this is just, the system being like “No. We will push back against change”. Because it’s pointed at them. So this does set up really interesting questions about the limits, maybe the limits, of the authority of elected officials. Of course, some of these other entities that are pushing back are maybe elected officials, too, but maybe they’re not. One thing you and I talked about is, what should be the power dynamic between the judiciary and prosecutors? They’re parts of different branches of government. I believe that in Missouri, judges are appointed and then, subject to something like a retention election. So they are not just straight up elected. And the judge in question was appointed by, not the governor that Kim Gardner investigated and charged, but an earlier governor of the same political party as the governor that she went after. And the governor and I believe the AG are members of the other party, the political party of Kim Gardner. Okay fine. So even in the trial court decision, which was rendered in the summer, in August of 2019. The judge said things and did things that left me scratching my head because, again, typically, courts don’t address things that they don’t have to address. And she did a variety of things that felt unnecessary, that felt superfluous, the tone was of a sort that made me feel like the judge has some strong opinions about this entire undertaking. And isn’t just rejecting it straight up and down. There’s some editorializing here. Some of it subtle and some of it more explicit.

 

Jessa: In the interest of fairness, some of the reporting about this prosecutor suggests that she’s had massive turnover in the office, that prosecutors are fleeing her office, that they don’t want to work for her, that there’s widespread dissent about her policies.

 

Nick: Right. That, I don’t know that that’s weird or unexpected or unusual because I believe that has happened in some of the other offices when, in which these new breed of prosecutors, I gotta come up with a better off the cuff description for those because that’s a lame phrase. But that there has been turnover because these new electeds come in, promising really significant change, I don’t think it’s surprising that the folks who have been working there for a long time would have, would disagree with those new policies. That’s not weird to me. But it’s something that you have to manage and address because one of the other candidates that Kim Gardner defeated in the 2016 election was a woman who had been in the Circuit Attorney’s office in St Louis and was a really high level, experienced prosecutor. She lost to Kim Garnder. She left the office after Kim Gardner took office. She didn’t want to work for her. And she has already announced that she is going to run against her in 2020. Okay fine. That’s democracy. So what? She has alleged, and you and I have not been able to fact check this, that she has asserted that the current trial record under Kim Gardner, that they are winning only 20% of their trials. That is hard for me to believe.

 

Jessa: If that’s true, that’s a serious problem. And the reason for that is prosecutors have discretion as to what cases they charge. They should only be bringing cases that they believe they have, at a minimum, probable cause to prosecute. Many prosecutors don’t bring cases that they feel they cannot prove beyond a reasonable doubt.

 

Nick: Right. Prosecutors, generally speaking, have that kind of power and authority and discretion throughout the process. It’s a thing that you might charge a case, believing you can prove it, and then as the prosecution moves forward, you might learn new information that changes your mind. So prosecutors have the ability, a variety of ways, to sort of dump cases or get rid of cases that they lose confidence in. One way is just dealing it out. Giving it away for a really easy plea deal. Another is literally just dismissing it. Courts, at least here, and I suspect this is true everywhere, don’t automatically have to do that just cause a prosecutor wants..

 

Jessa: But it’s granted pretty liberally.

 

Nick: Yeah.

 

Jessa: So. Why are we talking about this? Well, because, you know, if really, this office is still pursuing convictions at trial, like, if they’re having trials that they’re only winning 20% of the time, it at least, on its face, looks like there’s a pretty serious judgement error in terms of what cases are being taken to trial. Since the prosecutors basically make the rules about who they’re choosing to prosecute, they should be able to choose to pursue cases at trial that are winners for them.

 

Nick: If that number is accurate, it represents a massive problem somewhere in that office, in the decision making process. You might give them some leeway and some slack and say “Alright. This represents this sort of new agenda, these new policies represents a seed change. It has led to really significant turnover, and so there’s gonna be some growing pains while they transition. But, like, that might explain a 60 or 70% or something win rate. 20% is mind, I mean, look. We don’t know if that’s true. It was asserted by an opponent of hers. But that opponent is announcing that she’s going to run in part on fundamental competence issues

 

Jessa: And then you gotta ask yourself, if the people elected somebody who wants to shake up the system, why is it the business of other people, like of the AG’s office or the judiciary to thwart that? Because isn’t there value in letting the person who was elected facilitate the changes and the promises that they made to their electorate? Now, the flip side of that, and there are, there’s this gut check about the idea that innocent people could be incarcerated that I think bothers any person with a conscience. I don’t think anyone is like “Yeah. I’m totally cool with that. I’m comfortable with the idea that we keep innocent people in cages”. I think there’s a fundamental fairness issue there that we want to fix that. There is actually a pretty compelling argument on the other side of that which is, everytime there’s a new piece of litigation, the victims of crimes have to go back and deal with the uncertainty of what’s gonna happen next. And it’s a slow form of torture to be subject to 20+ years of litigation where you have to go and relive this trauma over and over and over again, especially after this sacrosanct thing that we hold up as such a fair way to decide disputes which is our jury verdict, especially if we’re talking about something that a jury has already heard. That causes real pain to the families of victims. There’s a reason that we want to be able to put things to rest. And there’s a compelling reason to that. There’s the initial trauma of the crime then there’s the trauma of the process, and nobody who’s a crime victim asked to have to participate in this. We don’t want to torture innocent people. At a certain point, these repeated efforts at litigation do that. So there is a very straight faced argument that can be made in support of finality.

 

Nick: Oh. A strong argument. That’s a powerful, an emotionally powerful one. You and I are aware of more than one case that resurfaced years after the conviction on new evidence grounds, where prosecutors have made a decision to sort of acquiesce to the defenses, the remedies they seek, in part because the victims of that crime or those crimes just can’t take it anymore. They are unwilling to participate in a whole other round of it. They just can’t take it. So that’s really real.

 

Jessa: There’s also a financial consideration there, which is, how many resources is one office supposed to devote to one case over and over and over again because these communities don’t have unlimited funding to relitigate issues.

 

Nick: That’s true at a system-wide level as well. It’s an economy issue. It’s, like, look. We can’t just do all of it forever. Frankly, we aren’t doing a perfect job of handling the new cases that we’ve got. The system has very limited resources. Sometimes it doesn’t feel that way to individual defendants and the like. The system of courts has limited resources, so we just have to reach the end at some point. That was part of the Bembenek decision, right? They said “Look. We just can’t keep spending enormous…”

 

Jessa: “This can’t go on”.

 

Nick: Right. And of course, that’s true. There are only, it is reasonable to say, you only get, and I don’t mean to be flippant about this, but you only get so many kicks at the can. And they’re not wrong, the AG’s office, when they say “He has gone through the entire appellate process. He had opportunities to seek appellate relief and he availed himself of those opportunities and he lost.” And so, at some point, this is over. That’s true. On the other hand, doesn’t just fundamental decency and fairness suggest that, in the hopefully rare instance that we find really extraordinary evidence of error, shouldn’t there be some way, again, a ripcord to pull, an emergency outlet?

 

Jessa: I want to correct what you just said because you say “error” and that implies that there might be a procedural error, which would be grounds. When you say “error”, you mean “we’ve convicted an innocent person”.

 

Nick: Correct. Error, in the sense of, like, the system just got it wrong. We produced..

 

Jessa: A flawed result.

 

Nick: Exactly. So that’s exactly right. Whether or not the process that produced that conviction was flawed or not. The Troy Davis situation we talked about before. One point was there does not appear to have been any errors in his trial. The prosecutors didn’t act inappropriately. The judge didn’t, blah blah blah. It is possible that, shouldn’t we all be people who can change our mind if we learn new information? Like, you change your opinion sometimes.

 

Jessa: I do. A lot. Probably more people of my age and station do. Like, I’m a very fluid thinker.

 

Nick: You are. That’s true. That is absolutely true. But so, I think that’s a good thing. Shouldn’t the system be able to change its mind, collectively, if we in fact get new information? Now, I think we should. The bar should be high because finality is important and is legitimate. So, again, it shouldn’t be, like, we just run around going on and on forever. Then the question would be, though, who makes that decision? Who is the judge of whether or not any given case has met that high bar?

 

Jessa: Implicit in this whole analysis, if we’re going to let people assert actual innocence, we’re fundamentally asking some higher court to substitute their judgement for the judgement of the jury that convicted the guy based on this new information. We’re saying “Okay. Even though you’re not typically the finder of fact, because the jury is usually the finder of fact, we’re asking you to say these facts are so persuasive..”

 

Nick: That’s typically part of the legal standard that’s applicable here. To meet the legal bar when you’re asserting new evidence, typically part of the analysis is, is this new evidence, if the jury had had it, would it have likely or perhaps or probably change the verdict, or does it call the verdict into question? It’s some version of that, right? And of course, who’s making that decision? Well, what’s unusual about the Lamar Johnson case is the people tasked with prosecuting people are saying “We aren’t convinced. We’re not asking, we’re not opposing the motion.”

 

Jessa: “We’re joining it.”

 

Nick: Right. “We’re not asking the judge to not make that finding, that the defense is asking the judge to make. We agree. So there is no disagreement.” That is what is unusual about this. But even more unusual than that because that does happen sometimes. That’s what we’re talking about with these CIUs. But what is even more unusual than that is the system, the judiciary, not allowing it to happen.

 

Jessa: Well, and let’s look at it the other way. Just to talk about how that can look pretty absurd. What would it look like if somebody was acquitted, and of course, the state has no ability to appeal an acquittal because double jeopardy. But what would it look like if some judge that never heard a shred of testimony reviewed affidavits and a brief of some lawyer that contradicted the testimony at trial and said “Yeah, you’re right. This person should actually get the electric chair.”

 

Nick: Right.

 

Jessa: I mean, we would never do that, and our system doesn’t even allow for that, but there’s a reason for that. Right?

 

Nick: You’re right. Absolutely. But let’s talk about this. It wouldn’t or it shouldn’t, and I don’t think it would be, an appellate court making that decision absent some kind of evidentiary hearing that would create a record, you know what I’m saying? In the Troy Davis case, what the Supreme Court, SCOTUS, ordered was that the case go back down to the federal trial level for an evidentiary hearing to create an evidentiary record because all that they were considering up until that point was, as you said, affidavits, which are fundamentally, they’re basically like sworn-to hearsay. So, but you are, nonetheless, right. An evidentiary record is created but after the trial. So then it is judges. First, presumably, a trial court level judge, making a decision about what he or she thinks of this new evidence. And then after that, it is appellate court judges acting in the way that juries do.

 

Jessa: And when we’re talking about claims for actual innocence, it’s not as though there’s some statute that anyone is saying “Well, you violated the rules, so we get a do-over. We get to try again”, which is what most appeals are. What a claim of actual innocence is saying is, like, “Fix this injustice. Fix this bad decision.” And that’s really not actually what our courts are fundamentally set up to do because we rely on the decisions made by juries. So I guess, like..

 

Nick: What happened there then, the case would get kicked back down, all the way to the bottom, and then there would be a second trial that presumably would include this new evidence.

 

Jessa: We hope. But you have to find a reason to grant the new trial in the first place, which of course, currently doesn’t exist for Lamar Johnson.

 

Nick: Indeed. So where does this leave us? I mean, one thing, one place it leaves us is, I hope, I would hope, that this case would produce an effort in the state of Missouri to pass new legislation..

 

Jessa: To codify the ability to raise these claims post conviction.

 

Nick: Right. And again, it should, the standard should be very high. It shouldn’t be able to be met very often. It should be an uncommon thing. But there should be some mechanism to allow for this in the rare instance that it comes up. Other states have it. It’s not weird. It’s not unusual. Right. If that, even if it does happen, it’s unlikely to help Lamar Johnson. I’m unaware of a push to actually do that. And so the things that we should all be watching for are number one: what does the Missouri Supreme Court do with this, about all of these legal issues that we’ve been talking about, including the introduction of the AG’s office? And if Lamar Johnson is unsuccessful, what avenues, if any, does he have beyond the Missouri Supreme Court?

 

Jessa: And from a philosophical perspective, what quantum of evidence of innocence should create a claim of injustice? Do we think that that should exist, and if so, how do we define that?

 

Nick: Right. Because..

 

Jessa: Like, with legal words.

 

Nick: Right. Because it’s not math. We can’t plug this into a formula. And smart talented lawyers can disagree about this. Clearly that’s the case in Missouri. The Attorney General’s office clearly disagrees. In Troy Davis’s case, Scalia and others didn’t, were not impressed by the purported evidence. So, I mean, like, nothing’s perfect. It’s a system created by humans. Humans make mistakes. There are going to be close calls, hard decisions, and people can disagree. But..

 

Jessa: Where do we land philosophically and what should we do about it? So we’ll be back on this case once we get a Missouri Supreme Court decision because this is pretty interesting. At least, I think so. I hope this wasn’t too wonky for people.

 

Nick: I hope not. I don’t think it is because, well, you know. It’s not for me to say, just like perhaps appellate court judges shouldn’t be reviewing the decisions made by juries, I shouldn’t be speaking for you folks. But tell us what you think. Was this interesting to you? Was it too wonky? Was it too down in the weeds on criminal procedures?

 

Jessa: Because I feel like this is really kind of a combo of policy and case law deep dive, so I’m curious to hear feedback on this. What do you guys think? Did this engage you? Tell us.

 

Nick: And where do you come down on this sort of dynamic between the need for finality and the importance of potential actual innocence? Where should the line be on those issues?

 

Jessa: Yeah. So, tell us. Facebook us. Email us at gettingoffpod@gmail.com. Tweet at us. Instagram at us. Whatever. I’m Jessa.

 

Nick: I am Nick.

 

Jessa: And this was Getting Off.

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