ST. LOUIS — St. Louis Circuit Judge David Mason will not sanction St. Louis Circuit Attorney Kim Gardner’s Office for failing to disclose evidence in the Lamar Johnson case to the Missouri Attorney General.
But that evidence can be allowed into a hearing to decide whether to overturn Johnson’s murder conviction as long as the Attorney General lays a solid enough foundation to do so.
Mason issued the order Friday after a flurry of court filings landed on his docket between Missouri Attorney General Eric Schmitt’s Office and Gardner’s office.
The political enemies are scheduled to go to court next week and argue whether Johnson should be set free.
Gardner’s office filed a motion in 2019 to vacate Johnson’s 1994 conviction for first-degree murder and armed criminal action for the killing of Markus Boyd in a reported drug dispute in St. Louis. He’s been behind bars for nearly 30 years serving a life sentence.
On Thursday, Schmitt’s staff accused Gardner’s staff of “intentionally” withholding the positive results of a gunshot residue test that was conducted on a jacket found in Johnson’s trunk.
Special Assistant Circuit Attorney Jonathan Potts filed a 12-page response to Schmitt’s motion for sanctions against Gardner Friday, stating the exclusion of the evidence was “an inadvertent non-disclosure resulting from the receipt of an email that was not clearly labeled,” from the Missouri Attorney General’s Office.
“The report, however, is unimportant,” Potts wrote. “It concerns gunshot residue testing conducted on a red-and-black Chicago Blackhawks jacket that was not even used in the crime.”
Schmitt’s Assistant Attorney General Gregory Goodwin responded to Gardner’s response, stating in part, “By concealing evidence of Johnson’s guilt until after the deadline for witness and exhibit lists, the Circuit Attorney hoped to exclude the unfavorable evidence from the hearing.”
In his order, Mason set the criteria for Schmitt’s office to admit the jacket into evidence:
- The jacket was on Lamar Johnson at or about the time of the crime alleged in this case.
- Testing of any material on the jacket must have an adequate foundation for admissibility
- Any individual called to testify as to the results of any testing of any residue on the above-named jacket must be appropriately qualified by way of evidentiary foundation
Mason also said he would take up Johnson’s motion to exclude two of six police reports the Attorney General wants admitted into evidence that mentions his involvement in an unrelated homicide report.
“That report concerns the homicide of Kenneth Perkins, and names suspects Antwon Taylor and Maurice Hoskins," Johnson's attorney, Alana McMullin wrote. "The report about this homicide and investigation, sometimes referenced as the ‘Tiffany Neighborhood Feud,’ includes references to a number of other alleged disputes, with Lamar Johnson named as both a victim and a suspect. While Lamar Johnson was interviewed in relation to this investigation, he was never charged.”
McMullin continued: "It is anticipated that the Attorney General’s Office is seeking to enter this evidence to argue Johnson was a suspect in other crimes and to conflate the issues of whether Lamar Johnson’s conviction was wrongful in this case (it was) with their belief that Lamar Johnson should remain confined because he was a suspect in other crimes."
Mason also ruled Johnson can dress in plain clothes for next week’s proceedings.
Among the points included in Gardner’s response to the Attorney General’s allegations:
Among the points included in Gardner’s response to the allegations:
- The Missouri Attorney General’s Office failed to disclose 14 new pieces of evidence, including a videotape of itself “proving that it was impossible for Lamar Johnson to drive between his location on Lafayette Avenue and the location of the shooting on Louisiana Avenue in enough time to kill Markus Boyd. Clearly this is an important piece of information and consistent with arguments made in the Circuit Attorney’s Motion to Vacate. Even so, the Circuit Attorney’s Office decided not to press this non-disclosure issue before trial to avoid distracting from what matters: Mr. Johnson’s innocence.”
- When the Attorney General’s Office discovered there was a gunshot residue report done on the jacket, “There was no call; there was no email. Instead, the Attorney General’s Office lay in the weeds until the afternoon of December 8 and made personal attacks on counsel’s integrity. All of this was done to manufacture a better storyline than the fact that the Attorney General is opposing the release of an innocent person from prison.”
- “This was an inadvertent non-disclosure resulting from the receipt of an email that was not clearly labeled. Only seven days have elapsed, which is far less than the 46 days the Attorney General permitted to lapse before making additional disclosures. There is also no unfair advantage at all. The sanctions motion should be denied on this basis alone.
- “This highly recognizable red Blackhawks jacket—with a bright red hood and bright red sleeves and BLACKHAWKS in capital letters on the back—was not worn in connection with Markus Boyd’s death. In 28 years, no eyewitness has ever mentioned a red Blackhawks jacket. Considering that Boyd was shot at close range, one would also expect the jacket to be covered in blood spatter. It’s not."
- “It makes no sense to use this minor blip as an excuse to interfere with the Court’s ability to review Lamar Johnson’s innocence based on a complete record.”
Among the points included in Schmitt’s response to Gardner’s response:
- It is worth pointing out that the “14 new pieces of evidence” the Circuit Attorney complains about are photographs of the Circuit Attorney’s file, photographs of places described in the Circuit Attorney’s motion, two videos made by the Attorney General’s investigator (which were work product until disclosed), maps of public places described in the Circuit Attorney’s motion, a previously disclosed and publically filed letter, and SLMPD police reports given to the Attorney General by Johnson’s lawyers. The Circuit Attorney’s citations to these exhibits defeat her point; after all, the Attorney General provided her with all of that evidence.
- “The Circuit Attorney’s own crime laboratory told Lamar Johnson’s lawyers, ‘The coat and pants would seem to hold more potential for probative evidence. An examination of the items for blood could be conducted. I would comment that it would be reasonable that there would be no blood on a suspect’s clothing after shooting someone with a gun. There are many variables that come into play with deposition of blood spatter in a shooting. However, an examination for blood in such an event is not unreasonable.’”
- “The Circuit Attorney has intentionally concealed evidence of Johnson’s guilt. Her response is little more than an argument that she forgot she requested gunshot residue testing, that she did not read or disclose the laboratory notes confirming there was gunshot residue testing, and that neither she nor her Chief Investigator read their emails. Whether for gross negligence or intentional misconduct, sanctions must issue.”