Later this spring, the Missouri Supreme Court will hear a highly unusual case. A man’s life hangs in the balance. So, too, does the authority of Kim Gardner, St. Louis’ top prosecutor, whose efforts to free him have been stymied by a power structure she says is allied against her because she is progressive and because she is black.
Gardner’s fight for Lamar Johnson’s freedom has become a reckoning moment over the power of progressive prosecutors—particularly women of color—and whether the systems they’ve vowed to reform will let them.
The strange twists and turns of State v. Lamar Johnson have exposed a conviction that appears gangrenous with police and prosecutorial misconduct. Johnson was convicted in 1995 of the first-degree murder of Marcus Boyd and sentenced to life in prison without the possibility of parole. Gardner, who in 2017 became the first black circuit attorney for the city of St. Louis, received a federal grant to open a conviction integrity unit to look back at cases like Johnson’s—marred by credible allegations of state malfeasance and claims of innocence.
Gardner’s investigation revealed that the sole “eyewitness” against Johnson was paid more than $4,000 to make a false identification that he later recanted, detectives fabricated four other witness statements, and the true perpetrators had come forward and said that Johnson had nothing to do with it. On July 29, 2019, Gardner’s office sought to vacate Johnson’s conviction and grant him a new trial because they believed that the evidence of his innocence was “overwhelming.”
Traditional prosecutors rarely advocate to upend a conviction, and other officials quickly stepped in. Circuit Court Judge Elizabeth Hogan denied Johnson’s release. But first, in an eyebrow-raising move, Hogan appointed Missouri Attorney General Eric Schmitt to intervene in the case. According to the judge, Gardner suffered from a conflict of interest because she was investigating misconduct by the police and the trial prosecutor, who no longer worked in her office.
The attorney general has not disputed that Johnson was wrongfully convicted, but is nonetheless spearheading the effort to keep Johnson in prison. In August, Schmitt argued, and the judge agreed, that Gardner’s motion was “improper [and] untimely,” rejecting a line of Missouri cases that permit an exception to prevent a “manifest injustice.” If this argument prevails in the state’s highest court, it will establish a legal precedent that would deal a death blow to Johnson’s case, Gardner’s conviction integrity unit, and the chance at freedom for scores of other wrongfully convicted people in Missouri.
Johnson’s case, and the treatment of Gardner, made headlines across the country. Forty-five prosecutors—Republicans and Democrats, from urban and rural districts—filed a brief in support of her position. “Addressing past injustices such as wrongful convictions is a core duty of an elected prosecutor,” they wrote, calling the appointment of the attorney general an “invitation for prosecutorial turf wars over phantom conflicts.” One hundred and six law professors weighed in with a brief of their own, noting that Gardner’s actions were not only correct but ethically required. (I was one of them). More than 25,000 people signed a Color of Change petition protesting the attorney general’s actions in the case.
Let’s be perfectly clear: A prosecutor’s primary duty is to serve as a “minister of justice.” Entombing the innocent under a smother blanket of technicalities is anathema to that mission. In conviction units across the country, prosecutors routinely look into misconduct by police and prosecutors to overturn wrongful convictions. To date, these efforts by have resulted in more than 350 exonerations.
So what is going on here? Gardner claims that the resistance she faces in Johnson’s case is part of a larger effort to upend her reform agenda and drive her from office by a police department with a history of racism.
Invoking the Ku Klux Klan Act of 1871, Gardner filed a federal lawsuit in January accusing the city, the police department, and other officials of engaging in “racially motivated conspiracy.” The named defendants, she claims, have done everything in their power to try to “remove her from the position to which she was duly elected—by any means necessary—and perhaps to show her successor what happens to Circuit Attorneys who dare to stand up for the equal rights of racial minorities in St. Louis.”
There is evidence to suggest Gardner is right. Although St. Louis’ population is 46 percent black, the city’s police department is 66 percent white. (The chief of the police department is black, but most of the top positions are filled by white officers). It has been tarred by accusations of racism. From 2014 to 2019, more than 40 current and former officers posted racist messages on social media. These included public Facebook posts calling for black residents to move to a different country to “pay their own welfare” and promoting the logo “Black Lives Splatter Because Blue Lives Matter.”
In her 2016 campaign, Gardner vowed to take on racial justice issues raised by the Black Lives Matter protests in nearby Ferguson. She pledged to divert low-level felony offenses, set up an independent entity to investigate police shootings, and enact policies to address racial disparities within the system. This agenda has met with resistance from power brokers within the St. Louis police department from the outset. The department’s union, the St. Louis Police Officers Association, has also publicly criticized Gardner’s decision to decline cases involving 28 of its officers because of concerns about their history of dishonesty and, she says, successfully blocked her attempt to seek city funding for an independent team of investigators to look into officer-involved shootings.
But it was Gardner’s decision in 2018 to pursue a case against former Missouri Gov. Eric Greitens that triggered an especially explosive conflict with the police department. The initial charge, felony invasion of privacy, followed accusations by Greitens’ hairdresser that he sexually assaulted her, took a picture of her naked body, and threatened to send it “everywhere.” The woman, who testified under oath before state lawmakers, was found credible by both Republican and Democratic legislators. Gardner hired a retired FBI agent, William Don Tisaby, to investigate the case because, she claims, the St. Louis Police Department and the FBI showed no interest in investigating the allegations. (John Hayden, St. Louis’ police chief, adamantly denies this.) The St. Louis Police Department then asked for an independent prosecutor to investigate Tisaby, whom they claimed was lying and tampering with evidence in his investigation of Greitens—with Gardner’s knowledge. The judge agreed and appointed an attorney in private practice who is a close friend of Greitens’ lead counsel. As part of the investigation, Gardner alleges, the police executed a search warrant of her office and seized a server containing all of her employees’ emails and files in 40 investigations into police misconduct. Last June, the special prosecutor indicted Tisaby for perjury and evidence tampering; the case is scheduled to go to trial in March. Gardner, meanwhile, ultimately dropped the case against Greitens in exchange for the governor’s resignation. But the investigation into her office is ongoing, and her lawsuit cites the investigation as an example of how she’s been relentlessly undermined.
The St. Louis Police Officers Association called Gardner’s lawsuit the “last act of a desperate woman” and demanded her ouster. But the local black police officers’ union—yes, in St. Louis, there is one union for black officers and one union for white officers—has come to Gardner’s defense. “That lawsuit is legitimate,” the union’s president said. The nation’s largest organization of black law enforcement officials is standing by her.
Progressive district attorneys across the country have also rallied to Gardner’s side, including 11 black female prosecutors who signed a joint statement praising her strength in facing down what they called “the city’s corrupt and racist political establishment.” Pointing to their own experiences in office, they say that the pushback they face is qualitatively different than that of their white male counterparts—riven by racism and misogyny designed to terrorize them into leaving their jobs.
Gardner has received hate mail and even notes on her car windshield full of vile, racist expletives. One such message Gardner shared with Slate vowed, “You’re not going to beat these white boys.” This vitriol is familiar to many of the prosecutors who are supporting her. Baltimore State’s Attorney Marilyn Mosby has been locked in a battle with Maryland Gov. Larry Hogan, who has called upon the state’s attorney general to “take over” violent criminal prosecutions in the city, stating that the crime rate is “unacceptable.” In January, after declaring her support for Gardner, Mosby—who has received death threats since taking office in 2015—received a racist voicemail message. On it, the caller describes Mosby and Gardner as “birds of a feather, bitch. That’s what you are. You hate cops. You hate white people.”
Kim Foxx, the state’s attorney for Cook County, Illinois, is dealing with her own special prosecutor, appointed to investigate her decision to drop the charges against black actor Jussie Smollett for alleging he was the victim of a hate crime that he staged himself. (A few weeks ago, the special prosecutor indicted Smollett for lying to police in connection with that incident). In April 2019, white nationalist groups showed up at a rally organized by the Chicago Fraternal Order of Police to publicize their opposition to Foxx. She, too, has received death threats. And Aramis Ayala, the district attorney for Orange and Osceola counties and the first black person ever elected to the top prosecutor position in Florida when she won in 2016, was sent racist letters and a noose in the mail after she announced that her office would no longer seek the death penalty. Florida’s then-governor, Rick Scott, responded by transferring 29 murder cases in Ayala’s district to another county, a decision that the Florida Supreme Court upheld. Ayala has stated that she will not run for reelection in 2020, citing a “direct conflict” between her agenda and the state’s power structure.
Gardner is not giving up. She views the upcoming battle in the state Supreme Court over Johnson’s conviction as part of a larger struggle. If anything, she says, the threats and vitriol have strengthened her resolve to free Johnson and fight for her right to do her job in the way she sees fit: as a prosecutor elected to bring systemic change to a city that, she says, “is ground zero for criminal justice reform.” The establishment power structure, she told me, “is trying to make an example out of me, take my bar card, ruin my career, and run me out of town. It is not going to happen.”