When “Actual Innocence” Can’t Get You Out of Jail

I wrote awhile back about Kevin Strickland, a Black man wrongly convicted of murder 40 years ago who remains in prison in Missouri because the governor won’t act and the local prosecutors, who acknowledge that Strickland was wrongly convicted, have no legal means to release him. In Missouri they can’t just go to a court and ask a judge to void the conviction.

If that sounds crazy to you, it sounds crazy to me too. It sounds crazy to a lot of people.

There are two other Black men in prison here whose convictions have been acknowledged to be unjust. Their names are Lamar Johnson and Christopher Dunn. Here is a recent PBS News Hour report on Lamar Johnson. Johnson’s case was investigated by St. Louis circuit attorney Kimberly Gardner . She discovered prosecutorial misconduct up the wazoo. This is from the PBS report:

Gardner’s investigation turned up even more proof of Johnson’s innocence. The prosecution’s eyewitness recanted, admitting he’d only identified Johnson because police told him Johnson was guilty.

And her team found records showing prosecutors paid that witness more than $4,000 for housing and expenses, information that was never disclosed to the defense.

So, you have no evidence that he committed the crime. You have the confession of two other people that they committed the crime and that he did not. You have raised pretty good questions about whether or not the trial was fair. People will ask, then why is he in prison?

And the answer seems to be that Missouri simply never created a process by which wrongly convicted people can be exonerated and released. One must be pardoned by a governor, and Gov. Mike Parson appears not to see why innocent Black men ought to be released from jail. As Parson said of Strickland, he was convicted “by a jury of his peers.” So what if the prosecutors manipulated the photo lineup, bribed another prisoner to snitch, and withheld exculpatory evidence from the defense and jury? So what if other people have confessed to the crimes? What if the prosecutors’ entire case has been found to be lies? Parson doesn’t see the problem. 

And it probably doesn’t help Mr. Johnson that the Republicans in Jefferson City hate Kimberly Gardner with a white-hot passion. Among other things, they blame her, and not their stupid NRA-approved gun un-regulations, for rampant gun violence in St. Louis. They also blame her for being a Black woman. She also was instrumental in prying Gov. Eric Greitens out of office, although the Republicans in Jefferson City don’t like Greitens, either, so I don’t know why they care about that.

This March the Missouri Supreme Court denied an appeal from Mr. Johnson, who was convicted of murder in 1995.

The state’s highest court upheld that decision this week on procedural grounds, saying that Gardner lacked the ability under state law to file a motion for a new trial so long after Johnson’s original conviction. All seven of the court’s justices agreed with the conclusion, which did not address any of Johnson’s innocence claims.

There’s a statute of limitations on innocence? It gets dumber. I have learned that according to current Missouri case law, “actual innocence” is not a sufficient reason to release a prisoner found to have been wrongly convicted unless the prisoner is on death row.

I’ll repeat that. “Actual innocence” is not a sufficient reason to release a prisoner found to be innocent unless the prisoner is on death row.

Not being a lawyer I may be misinterpreting things, but here is the relevant case cited in the Post-Dispatch. Missouri Court of Appeals, Western District. IN RE: Rodney L. Lincoln, Petitioner, v. Jay Cassady, Superintendent, Jefferson City Correctional Center, Respondent. WD 79854 Decided: October 11, 2016

In this case, Rodney Lincoln had filed a petition for writ of habeas corpus requesting the vacation of his 1983 convictions of two counts of first-degree assault and of manslaughter. Lincoln spent 36 years in prison. You can read the background of his case here.  By six years or so after his conviction the evidence had fallen apart, but the Midwest Innocence Project kept taking cases to court to get his conviction voided. And in 2016, the Missouri Court of Appeals, Western District, declared —

Because the Missouri Supreme Court has not recognized a freestanding claim of actual innocence in cases where the death penalty has not been imposed, we are not at liberty to expand Missouri habeas jurisprudence to permit consideration of the claim in this case. Accordingly, Relator’s habeas petition is denied.

So, if you’re not on death row, you can’t get your wrongful conviction overturned? In 2018 Lincoln, who is White, was set free by Gov. Eric Greitens. One wonders if he’d still be in jail if he were Black. But Lincoln received no compensation whatsoever from the state for the 36 years he was kept imprisoned.

This state makes me crazy.

Lamar Johnson

26 thoughts on “When “Actual Innocence” Can’t Get You Out of Jail

  1. To quote from a Supreme Court dissent by Antonin Scalia (Davis v Georgia 1989)…

    "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent."


    It was a 7 – 2 decision. Needless to say, Clarence Thomas concurred with Scalia’s dissent.

  2. One of the core propositions of conservatism is that the deterrent effect of criminal punishment — emphatically including capital punishment — does not depend, at all, upon applying it to the right person.  A system that fails to punish the guilty becomes ridiculous and a system that punishes the innocent becomes odious; American "justice" is based upon both.

    (If I have merely paraphrased you again, I shall, in the words of Lewis Carroll, softly and suddenly vanish away.  If you were only thinking these things, and taking them as read, you should be glad that I have set my name to them, so that you need not.)

    • The legislature actually did pass a bill that would allow prosecutors to simply take the case to a court and ask that the conviction be voided. It’s been sitting on the governor’s desk for weeks.

      • I did not know that.

        I'd ask what's wrong with Parson, but I already know the answer to that.

  3. I blame this on CRT!

    No, not "Critical Race Theory."

    But, "Conservative Racist Thinking."

    And THAT latter one's the CRT that RepubliKKKLANS/KKKonsevarives want to keep having be taught K-12.


  4. I don't compare my experience to Strickland, Johnson or Dunn but being the defendant in a criminal case can be quite an education. The criminal justice system has little to do with justice – it's a game played by rules where the rules aren't the means to enforce a fair contest. The rules exist for the rules. Justice, if it happens, is an occasional by-product. 

    Cosby is the perfect example. A prior agreement not to prosecute superseded his conviction. Guilt or innocence had nothing to do with his release – only the rule. 

    If you note that that's not what the framers intended, you'd be right. The preamble says right near the front, "establish justice" and nowhere in the Constitution is "law and order" mentioned.

    I had to skip a trial that I wanted because the defense was gagged and the jury would have never known that they were wearing blinders. There's a quote by Alexander Hamilton that will get a lawyer thrown in jail for contempt of court if he attempts to speak it in court. In it he describes jury nullification, which is legal and proper for a jury but they can't know they have the power and option to acquit when the charges are unjust. And the defense can't tell the jury what they can do. And the judge will bald-faced lie and tell them they "must" convict if A, B, and C requirements are met by the prosecution. 

    I had to plea bargain my way out because a fair trial was not possible according to two lawyers representing me whom I trust personally and professionally. It would have been a legal trial according to the rules. In many instances, the legal system has adopted rules to ensure the verdict against the defendant regardless of the facts. And most Americans have no idea. (Minorities do – it's not racism alone that causes the prosecution to exclude people of color. They know and will vote their conscience, not the orders of the judge.)



    • I'm sorry about your experience. However, a jury has no right to nullify the law. That's why they're sworn to follow the law, even if they might disagree with it. And that oath means  something. A power is not a right, and a jury is not a mini-legislature charged with judging the wisdom of a law.



      • Jury Nullification is a real thing. Has been for a long time. Alexander Hamilton said jurors should acquit even against the instructions of the judge, ”if [in] exercising their judgment with discretion and honesty, they have a clear conviction that the charge of the court is wrong.” 

        "A clear conviction that the charge of the court is wrong" covers a lot of ground. Look at the case of  Aron Schwartz who committed suicide when the feds were piling on charges for a victimless 'crime' that he committed  as a  political statement. 

        "Jury Nullification" doesn't take the law off the books for other cases. For that case ONLY based on the jury's reasoning, despite the fact that the law was broken, the jury sets the law aside. (Example in TX – State jury nullified the law on possession of marijuana because the defendant had glaucoma. TX law didn't have an exemption – the jury wrote an exemption.) But in federal court, if the defense lawyer tells the jury they can set aside the law, he can be charged with contempt and thrown in jail for 90 days with no trial. 

        Don't believe nullification is real? Here's the text of the appeal court that upheld the decision in Dougherty that upheld the decision to prohibit amy mention of nullification in any way, and the judge's refusal to so inform the jury. NOTE THAT IT AFFIRMS NULLIFICATION!

        The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a "necessary counter to casehardened judges and arbitrary prosecutors," does not establish as an imperative that the jury must be informed by the judge of that power. On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions.

        So JS, like most jurors, you believe yoou have to follow the judge's instructions. You're absolutley sure they are the trustworthy final authority on the law. It can vary from one judge to another but judges can and WILL lie to juries about the standard they must apply in deliberations. The defense is NOT aallowed to alert the jury to the fact they are making a life-and-death decision on incomplete and false information.

        The US Constitution requires a jury trial in all criminal cases. WHY?  The US courts under judges appointed by the King  tended to decide cases to please the king. They took it away from the 'system' and put the verdict in the hands of 12 persons selected at random. The founders never imagined a system evolving that allowed the judge to gag the defense and put blinders on the jury.

        For "criminals" trying to change the system, often through civil disobedience, special exemptions in the law allow prosecutorial standards DESIGNED to ensure the jury is unaware of exculpatory facts.

        • I have no desire to hijack this thread, but a response is warranted.

          I practiced criminal law for 30 years, four of them as a state judge. I have prosecuted and defended criminal cases. I have studied and written on jury nullification. None of your arguments are new, nor are they particularly persuasive.

          First, you have a very warped view of how criminal trials are conducted. The basic rule is that judges judge the law, and juries judge the facts. They are instructed on the law and then apply the facts they find to the law as given them by the judge in reaching their verdict. The instructions given by judges have been painstakingly created by committees (usually under the supervision of the state supreme court) to reflect the state of the law as it is. I have instructed many juries. Judges don't "wing it", and the instructions given by one court are identical to the instructions given by every other court in the jurisdiction. Instructions also are often challenged on appeal, and if found deficient, and misleading as to the law, the case is reversed.

          Reference to quotations by Alexander Hamilton are inapposite. Hamilton practiced at a time when there was virtually no federal statutory criminal law at all, and state law tended to be made up as they went along. Trial practice was VERY different in Hamilton's time.

          It is not the proper function of a jury to decide the wisdom of statutory and procedural law. The legislature that drafted and passed the criminal laws had experts, and research, and precedent to guide them. They had a Supreme Court to set the limits of what laws and procedures pass  constitutional muster. A lay jury has none of that.

          I  wold also caution that people have been prosecuted, successfully, for  jury tampering when they have engaged in proselytizing to jurors about nullification.  


    • Re: the Cosby verdict… I hate it. I really hate it. And, it was probably the right call.

      See, Cosby heard that he wouldn't be prosecuted, and, for that reason, gave a deposition without simply refusing to answer questions, based on the fifth amendment. It sounds like that deposition played a significant role in bringing him to (criminal) trial.

      Now, it's true: there wasn't an explicit agreement that he wouldn't be prosecuted, but it's also true that only a complete moron, getting the world's worst legal advice, would admit to criminal behavior in a sworn statement, rather than invoke the fifth amendment – unless they did so, knowing that they wouldn't be prosecuted.

      Since the prosecutor said there'd be no prosecution, and, in fact, suggested a civil case was better, we can reasonably guess that was basically telling Cosby "tell the truth in the civil case and shame the devil (and yourself, you dirty SOB); and don't think I won't hit you with perjury charges if I find you lied in the civil case."

      There are some technicalities that might have allowed the conviction to stand, but, god damn it all, this is one where you have to give the devil himself the full protections of the law, not for the devil's sake, but for the sake of, well, *everyone*. You can't let a prosecutor sucker someone into giving a confession under oath, and then use that confession – that would make a mockery of the fifth amendments protections.

      (Have I said I hate this situation? Good. Have I said I hate it, enough to demonstrate how much I really hate it? No, but face it, no need to repeat "I hate it" a billion times. )

  5. It's also the case that if you are a perfect idiot but want an exciting career as a homicide detective, Missouri is your land of opportunity. The case of Pamela Hupp has been headline news here for the past few years, and today it's in the Washington Post. The husband of murder victim Betsy Faria was charged and convicted of her murder even though there was absolutely no forensic evidence and he had solid alibis showing he was somewhere else when his wife died. Hupp, on the other hand, had both motive and opportunity, yet somehow the detectives couldn't bring themselves to investigate her.  Hupp might have gotten away with it except that she murdered somebody else, which finally raised suspicions. 

  6. What rhetoric, legal or otherwise, would justify keeping an innocent person in jail?  None that a competent judicial system would tolerate I would contend.

    A competent judicial system should be able to admit to, and learn from, it's errors.  That is, of course, if the judicial system deserves it's name and  it's root word of just.  It is, in too many places, and many of it's actions not that at all, but rather a power and status system.  Yes many work for our Federal, State, and Local, units of power and status.  On rare occasion, these units might happen to provide a little token justice. Not nearly as much as TV shows would suggest they do, it seems. 

    In reality, you get what might be better portrayed as a humorless version of the Keystone Kops.  Yes cops spelled with a K, gets one about a third of the way to understanding what is really going on. 


  7. And the answer seems to be that Missouri simply never created a process by which wrongly convicted people can be exonerated and released. One must be pardoned by a governor, and Gov. Mike Parson appears not to see why innocent Black men ought to be released from jail. As Parson said of Strickland, he was convicted “by a jury of his peers.”

    This is why I often say that Republicans don't value, or cherish, freedom – they simply demand it for themselves.

    If Parson loved freedom, the notion of withholding it from a deserving citizen would be too much to handle. His conscience wouldn't let him. (Well, technically, he could be so bigoted that he doesn't see a Black man as a deserving citizen, not when a kangaroo court convicted him. )

  8. Congratulations for proving my point (Casually discounting Hamilton out of hand kinda proves your arrogance.)

     "It is not the proper function of a jury to decide the wisdom of statutory and procedural law." 

    Says who? For over 150 years, a defense lawyer could tell a jury that they DO have the power (power confirmed in the appeals decision I quoted) to return a 'not guilty' verdict if the charge of the court is wrong. THEIR CHOICE, designed that way by the framers! 

    It IS proper for the jury to overrule the judiciary (though it  hurts your feelings) because a jury, made up by citizens is the HIGHEST authority in a democracy – not a lawyer in a robe.

     In cases where the state has a vested interest in silencing a disodent, that's something the jury SHOULD be allowed to consider. But the judge won't say it and neither will the prosecutor and the defense is gagged. The current status blinds the jury to relevant information. (I'm fine with the judge blocking false info or witnesses with zero expertise, but I'm talking about facts that the judge doesn't want the jury to see.)

    Under current rules, the intent of defendant is relevant ONLY if it adds to the odds of a conviction. In my case, the prosecution searched social media and private emails and selectively introduced what made me look bad. But the letter I wrote TO Congress and carried 535 copies of on the flight would NOT have been admissable. 

    I finished my book and I do talk about how a fair trial would have been impossible because the courts have restricted what a defense is allowed  to introduce in the same court the prosecutor is allowed to flagrantly lie.

    It's not my intent to sway any individual jury but I damn well want to inform as many citizens as possible that the instructions from the bench are not handed down in stone. It's the jury's moral obligation to disregard the judge and hand down a 'not guilty' verdict when, "in exercising their judgment with discretion and honesty, they have a clear conviction that the charge of the court is wrong.” 

    • You are wrong. So, so wrong. Who says so? The United States Supreme Court, in Sparf and Hansen v. United States, back in 1895.

      Ever read the Supremacy Clause? Supreme Court decisions are the supreme law of the land (along with federal law and treaties).

      However, as I said before, it really isn't right to hijack this thread because the discussion you wish to have is off point.


      • Maha, I'm a pussycat. (innocent smile)

        Seventy-five years AFTER the case you cite, which you seem to think settled the matter, the decision in the appeal (US v Dougherty) says in 1972 (not 1895), 

        "The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a "necessary counter to casehardened judges and arbitrary prosecutors," does not establish as an imperative that the jury must be informed by the judge of that power."

        "FACT" ,"WIDESPREAD EXISTENCE", "JURY'S PREROGATIVE".  The federal appeals court explicitly affirmed jury nullification seven decades after you say the Supreme Court abolished it.

        From there, the court goes into la-la land presuming, after explicitly affirming the jury's prerogative, that the jury must somehow intuit the power they have. The judge won't tell – the defense is prohibited from telling. (The basis of the appeal.) The decision authorized a gag order on a judicial fact which the court affirmed.  

        This is slimy legal trickery – I'm guessing that lawyers in robes, frustrated that juries in the Vietnam era were passing judgment on an immoral war and acquitting activists (which is what Dougherty was about.) Unable to prohibit jury nullification (which was happening in the 70s) some sleazy shyster decided gagging the defense lawyer could do the same thing. 

        Actually, this does go to the original post. The law today exists for the law, which was not the intent of the founders. It was no accident the authors of the Constitution enshrined "justice" and elevated the jury OVER the judge, which you'll find offensive if you like judges to have all the power.

        • Jury nullification may not be an official legal doctrine, but the Constitution bars double jeopardy, and states in the 7th amendment "and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."

          I'll grant you: the 7th Amendment starts with discussion of (law)suits, but the way I've heard lawyers talk about a jury decision has led me to believe that the 7th Amendment bars retrying facts tried by a jury – unless there's been something that's enough of a big deal that it's clear the jury couldn't make a good decision.

          Assuming I'm correct, and those two rights are enshrined in the constitution, jury nullification will always exist de facto. If a jury comes up with a not guilty verdict, that particular application of the law has been nullified.

          Before anyone thinks that's great and wonderful, keep in mind that Jim Crow depended on knowing crimes wouldn't be prosecuted, or, if forced, 12 white southerners would vote to acquit. (NB: I'm not saying that 12 white northerners wouldn't do the same – but there was at least a *chance* they might not.)

          Oh, if you ever hear about "federal anti-lynching laws," that was what they were all about: when a black person was murdered, and the state refused to do so much as prosecute, the feds could come in.

          Heh. I remember as a child, I stared down an adult who acted like he was going to hit me with his car, because I knew the guy might be angry at some little snot, but he knew damn well that he'd go to jail for a long time if he did anything to me. Can you imagine what it's like when you know the *exact* opposite is true?

          That said: Rolling Stone reported on some poor loser who was going to be a money bag boy at a drug buy, chickened out, and didn't show, and still went to jail for life, because of the quantity of cocaine changing hands. Unless the facts were different (and they may have been!) that's the sort of case where I think it's appropriate for jurors to consider a full jury,  not guilty, verdict.

  9. "…the sort of case where I think it's appropriate for jurors to consider a full jury,  not guilty, verdict."

    EXACTLY the point. Occasionally, maybe rarely, the jury needs to rise above the statute to deliver JUSTICE. It shouldn't happen often. Jurors should know that most of the time when they hear an argument for jury nullification, it's a hail-mary pass because the defense has nothing else.

    My point was and is – let the jury decide. It's inappropriate for the judge to narrow the field of vision for the jury. If counsel objects to the qualifications of a witness, that's legitimate. Any witnesses will be cross-examined anyway. But modern legal practice allows the judge to pick the jury (because the judge can exclude as many members of the jury pool as he/she wants.) The judge is also allowed to ask any juror in jury selection if they will swear to follow the instructions given by the judge – eliminating anyone who will exercise the power of nullification, And that's wrong.

    But the final point is the same as we're experiencing with legislatures trying to control the school curriculum and exclude unpleasant truths about American history. We need to teach in civics class that a juror can and should vote their conscience, even if it means giving the judge the middle finger. In a democracy, the voter, the juror, the citizen is the boss with enormous collective power they must exercise wisely. The catechism that many would teach is that good citizens obey. (And I'll proudly go to my grave not obeying.)

    • No. Judges do not pick the jury. This absolutely false. Totally false.

      The attorneys pick the jury. Each side has a set number of peremptory challenges, which they don't even have to justify. Only the attorneys can make peremptory challenges. The judge has no say in this, unless he/she wishes to be reversed more or less summarily (or obvious racial or other discrimination occurs). Each side has an unlimited number of challenges for cause. Th judge has no such challenges. The judge rules on challenges for cause, but he/she doesn't bring them sua sponte. And, of course, the court's ruling on challenges for cause may be the subject of appeal, and judges are often reversed on such challenges. But judges do not pick juries.

      I've read decisions from almost every state in the country, and I've never seen a jurisdiction where "the judge picks the jury". The Constitution forbids it in criminal cases.

      Please, you just don't know what you're talking about.

      And I apologize to our host for allowing this exchange to persist. This is the last reply I intend to post here, and I am sorry it got this  far.

      • Except, it's not true. From Nolo.com…

        Judges will also dismiss jurors who can't put aside their feelings and apply the law impartially—that is, without actual or implied bias.

        Guess who decides what constitutes "bias"? Yep, the lawyer in a robe who thinks he/she is royalty. So what would have happened in jury selection for my trial, the judge could have (and in my case would have) asked, "Do you swear to follow my instructions over any opinion expressed by the counsel for the prosecution or the defense?"

        If the juror says, "It depends," they will be excused. So yes, the judge DOES pick the jury and exclude anyone who expresses an awareness of nullification. 

  10. Thank you very much for writing about this topic – much needed. The link in the post references an article that is over 20 years old, but here is a link to a recent Post-Dispatch article that offers a very good overview of the Christopher Dunn case:


    Please reach out for more information on Christopher Dunn’s case if you are interested. Thank you again!

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