Tuesday Talk*: Ends or Means, What’s a Judge To Do?

To read the story is to invite the usual outrage at prosecutorial misconduct resulting in the wrongful conviction of an innocent defendant, the worst our legal system can produce.

A St. Louis judge dismissed a motion for a new trial Friday in the case of a prisoner the top prosecutor there says is innocent.

In denying the motion, 22nd Circuit Judge Elizabeth Hogan said in her ruling that the request to vacate Lamar Johnson’s 1995 murder conviction was 24 years too late. Missouri laws do not allow her to review such claims, she found.

The motion wasn’t brought by the defendant, but by the prosecution under the new progressive prosecutor, Kimberly Gardner.

The city of St. Louis Circuit Attorney Kimberly Gardner plans to appeal the ruling, press representative Susan Ryan said. One of Johnson’s attorneys, Lindsay Runnels, said they are reviewing the judge’s decision: “Not a single word addresses the clear, convincing, and overwhelming evidence that Mr. Johnson is innocent.”

The judge viewed Gardner’s motion as an attack on her predecessor, alleging misconduct by the prosecutor who handled the case. Judge Hogan, sua sponte, appointed the Missouri Attorney General to represent the state in the case, apparently as a check on Gardner’s potential misuse of her office. This was a bizarre framing of Gardner’s position, given that she was elected to office and, as such, is authorized to make the decision as Circuit Attorney.

As much as she could decide to fight against Lamar Johnson’s dismissal, she has the authority to accede to the accuracy of its position. In other words, rather than view this as an attack on her predecessors, it is a concession of the defense’s position that Lamar Johnson is innocent. No one would question her fighting it, and so there is no greater a reason to question her agreeing with it. Except, of course, that’s not what prosecutors traditionally do, even if it should be. If the facts show innocence, then that’s what they show.

But the more controversial problem arises from Judge Hogan’s denial of the motion. What difference did it make that the conviction was 24 years old? If it was wrongful, then it was wrongful, and the fact that it’s been wrongful for 24 years rather than discovered, and conceded, swiftly make it even worse.

The problem was that the law provided for no authority for the motion to dismiss or for a judge to grant such a motion. Not that it appeared that Judge Hogan was particularly inclined to do so anyway, but even if she wanted to grant the motion, there was no enabling law to allow her to do so.

What’s a judge to do?

On the one hand, there’s the “dirty little secret” that when everyone is in agreement about an outcome, particularly an outcome that everyone concedes constitutes a manifest injustice, the little detail of lack of authority can be “overlooked” and a judge can order dismissal. After all, who’s going to appeal? Who’s going to challenge the judge for doing what everyone agrees is the right thing to do? So what if there’s no law enabling the judge to do it if both sides agree?

Bear in mind, we have an adversary system, so if the prosecution and defense are in agreement, then hasn’t the adversary waived any complaint about the court’s stretching its authority beyond what the law would otherwise permit? But then, this requires the judge to agree to exercise her non-existence authority, to deem the concession by the adverse party sufficient to grant the relief even if there is no statutory basis to do so.

Here, Judge Hogan not only had sufficient doubt as to the propriety of Gardner’s concession, as reflected in her appointment of the AG even though no one asked, but chose not to stretch her authority to the point of granted relief beyond the period of time the law allowed.

Which prevails, the means (which dictated that the court deny the motion for lack of authority to grant it) or the ends, the continued imprisonment of a man the prosecution conceded was wrongfully convicted?

*Tuesday Talk rules apply.

32 thoughts on “Tuesday Talk*: Ends or Means, What’s a Judge To Do?

  1. Richard Kopf


    I have addressed a similar but more stark conundrum in my old blog.* If it truly is the case that the Missouri law does not give the judge the authority to help the innocent man (apparently because of the passage of time and, I’m guessing a limitation period in the otherwise relevant statute), then the duty of the judge is to keep the poor man in prison. As for the “why” of it, my old blog post, both pedantic and overly wordy, explains my thinking (such as it is).

    However, what I don’t think is proper is for the judge to get picky because she thinks the prosecutor is a wrongheaded wuss. Such conduct would really screw with the concept of separation of powers between the executive and the judicial.

    All the best.


    *The death penalty and the matter of factual innocence, Hercules and the umpire (September 10, 2014).

    1. SHG Post author

      Introducing death into the mix takes us to a somewhat different place. After execution, you can’t do a Mulligan. If the deft remains alive, his sentence can be commuted or he can be pardoned. But in lesser venues the the marble palaces of federal court, it’s not unheard of to jerry-rig the system a bit to accomplish an agreed-upon end that the means wouldn’t allow. I’ve had judges impose unlawful sentences with everybody in the well giving him the wink. After all, the misaligned gears of justice can’t serve only to crush souls.

      1. Richard Kopf


        Crushing souls is what we do, but not only what we do. On a more practical level, the choice is almost never binary. With a little bit of research on Missouri law, I bet I could find a remedy that would permit the trial judge to grant relief.

        And, as you say, in the case of a lifer there is always a pardon or commutation (although the same is true in the death penalty context). That said, your post seemed to stipulate that the choice was binary. So, I assumed it to be so, if only to play along.

        Additionally, your implicit point that “winks and nods” generally don’t work in the federal courts is to my way of thinking a very good thing. But, then again, crushing souls is sometimes what we are legally required to do. And please don’t try to pull at my supposed heart strings using the cry of “justice, That is for children not trench lawyers.

        All the best.


        1. SHG Post author

          I would never try to pull at your supposed heartstrings, Judge. I’m far too realistic to squander limited resources on a futile effort. Generally, I’m in agreement on the winks and nods thing, as it usually doesn’t inure to the deft’s advantage. That said, when both sides in an adversary system concede a point, who is the judge to substitute his sense of “justice” for theirs?

          As you point out (and I’m inclined to agree), with a little effort, there’s probably some mechanism to allow a remedy, but it requires the judge to want to employ it. Saying there’s no authority is easier than saying there’s potential, even if dubious) authority, but she just doesn’t want to do it because she disagrees with both adversaries.

        2. Skink

          ” With a little bit of research on Missouri law, I bet I could find a remedy that would permit the trial judge to grant relief.”

          I read the order. It’s pretty thorough. It could have been written by you.

          In essence, the ruling is that a new trial motion must be filed within 15 days. There is a non-applicable exception. There is no other basis for a motion or order for a new trial. It’s a “go talk to the lege” explanation. Nothing to see, there–pretty basic jurisdiction.

          But there’s more. Toward the end, she reminds the parties that a NT motion isn’t the only way to go: there’s always HC relief. Johnson went that route in 2003 on substantially the same arguments and was represented by the Innocence Project. It was denied in circuit, intermediate appeal, state SC and federal district. A fair reading is the only difference now is that the state filed. I’m no CDL, but doesn’t that affect the landscape?

          Otherwise, the governor has the power of the pen.

          1. SHG Post author

            The difference now is that the prosecution and defense are in agreement rather than opposition. But is that because it’s real or that there’s a different prosecutor inclined not to defend its prior convictions at all costs? With the cries for second look laws, the point that there needs to be enabling legislation becomes increasingly important.

            Even if a nod and wink works on occasion, it’s not a sound doctrinal way to run a legal system.

            1. Skink

              SHG–I spoke with the Hotel hat-check girl. All hats have been checked-out. It seems a couple are overdue for return.

            2. SHG Post author

              If only we had some pics of them so we could identify the overdue hats. Perhaps some unique identifying characteristics?

            3. Skink

              Hotel security says he don’t have no pictures. He mumbled something about a Russian bot. Is that a drink?

            4. Skink

              Stop whinin’. The hat came back, right? Everyone knows it’s all about the results.

              Besides, that’s a purdy face for a old dude that hasn’t forgot what its like to be lawyerin’ all day.

        3. Miles

          Since our TT went off the rails on the first comment, it only seems reasonable to take advantage of the opportunity.

          Judge, if a death penalty 2255 came before you, on the eve of execution, clearly barred under AEDPA, but conclusively proving innocence, so much so that the government didn’t oppose, and the deft was someone who stood little chance of a pardon (say, an undocumented immigrant accused of killing a blond female cop), such that you knew with certainty that the deft was innocent but there was no legal authority to prevent his execution, and the govt agreed, do you let him fry?

          1. SHG Post author

            Advisory opinions? That’s not exactly a fair ask. And TT didn’t quite go off the rails, even if it expanded its scope a bit.

            1. desconhecido

              I think the judge has already offered his opinion. From “The death penalty and the matter of factual innocence”

              “Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner had “sat on his rights” thus contributing to the absence of a legal remedy to address his factual innocence.”

              A follow up question, if I may:

              In your experience as a defense attorney, how many people accused of murder have the actual capacity to “sat on his rights?” It would be my guess that most of the “rights satting” is done by counsel rather than by the accused.

            2. SHG Post author

              Sitting on rights is rarely the problem. If you don’t know there’s Brady, you can’t argue until you learn of it. And most prisoners don’t have lawyers, as their representation ends with their last court proceeding, so there’s no lawyer involved to sit on anything. But the prisoner finding a lawyer for post-conviction relief can be a very difficult problem, as they lack access and money or the ability to find someone willing to take the case on pro bono. Everybody wants a pro bono lawyer, but rarely is the case pro bono worthy.

          2. Richard Kopf


            Gotta know more facts–procedural default, second and successive, etc. But, yes, probably let him fry–except the Feds don’t fry, they sedate, heavily. 28 CFR § 26.3. More seriously, advisory opinions I cannot give so anyone out there reading this should chill.

            All the best.


    2. Keith Lynch

      If the law is set up in opposition to freeing the innocent and punishing the guilty, why do we even have it? Maybe the people of the United States should fire all the lawyers and judges and start over with a legal system built on different principles.

      1. SHG Post author

        The legal system is imperfect, part of which relies on procedure that, on rare occasion, can produce the nightmare of punishing the innocent. That doesn’t mean it’s invariably bad or that there’s a better system to be had. We constantly fight to improve the system, because nobody wants the innocent punished, but there is no simple mechanism that will make it work flawlessly, and every tweak has the potential to bring new, unintended problems, because people just keep coming up with new ways to create unforeseen problems.

  2. Howl

    Can there never be a time when legal duty becomes subordinate to righting a wrong? It has been said that courts and judges don’t do justice, they do law. Some who perform their legal duties scoff at the notion of justice. Yet the system is still called the “justice” system, and judges are still called “justices” employed by a Department of “Justice.” Maybe we should just drop the bullshit and call it the “legal system.”
    There are times when breaking a law is necessary and excusable in order to prevent a greater harm. Even non-lawyers understand that. Could it not also be that those who do law must sometimes have the fortitude to prevent an innocent person from continued punishment? Progress in any endeavor relies on those who test the boundaries, question the rules, and have the courage to challenge convention and precedent.
    How much evil has been perpetrated throughout history by those who were doing their legal duty? Letting even one man die, or rot in prison, in the name of legal duty adds one more notch on the side of evil.

    1. albeed

      “Can there never be a time when legal duty becomes subordinate to righting a wrong?”


      (With apologies to John Houseman)
      ‘The Study of Law is something new and unfamiliar to most of you, unlike any schooling you have ever known before.
      You’ll teach yourselves the Law, but I train your mind. You come in here with a skull full of mush and, if you survive, you’ll leave thinking like an Asshole.’

    1. Skink

      Dear Jake:

      I’m beneficent It’s been a long day of lawyerin’. The simple stuff appeals for some reason.

      The judge didn’t “punt.” She measured her jurisdiction and found none. She didn’t have jurisdiction to decide what the parties wanted to do. Jurisdiction has a couple meanings, but it has to do with the authority of a court to do stuff.

      It’s kinda like when you have a problem with your water bill. Month after month, you write a check, but when you have a problem with the bill, would you go to your bank to complain? Of course not, because the bank doesn’t have authority to fix the bill. See? I know it isn’t the same, Jake, but you get the idea, right?

      Courts don’t have authority to fix everything; courts need to have the authority to do what the parties ask. This judge didn’t have the authority to do what was asked, see?

  3. John Barleycorn

    Go figure….. no Simple, no Justice, again!

    And Fault with the Lines?

    Could be the traveling “minstrel” show of “law, faults, Justice, and lines” is the most efficient route.

    I don’t think the hat porn is gonna do it?!

  4. Matthew Wideman

    I feel special that this post is in my back yard! Gardner’s office is a mess. Press grandstanding over substance and doing her job. I certainly sympathize with the plight of the wrongfully convicted. I suspect her motion has more to do with her politics than her concern for the falsely convicted. What a joke.

    Judge Hogan is a good judge. I have had the pleasure to practice in front of her. I am sure she was annoyed at the Grand standing done in front of her.

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