The Missouri
Appeals Court has reversed the conviction of college studen Michael
Johnson, whose HIV non-disclosure conviction helped galvanize the
anti-criminalization movement last year. Although Johnson won't
immediately go free — he was remanded pending a new trial — the decision is
still being hailed by activists fighting HIV criminalization.
"This is a
happy note of justice to close out a year of political and cultural discourse
that has all too often exacerbated, been indifferent to, or cruelly celebrated
injustice, “ says Sean Strub, founder of The Sero Project, the
organization that co-sponsors the HIV is Not a Crime training conferences, which teach
activists how to help overturn outdated laws targeting those with HIV.
In 2015,
Johnson, a former college wrestler, was charged with "recklessly infecting
another with HIV” and four counts of “recklessly risking infection of
another with HIV.”
Johnson’s
lawyer’s opening words to the jury were apparently, “You have to consider my client guilty
until proven otherwise.” The judge reportedly corrected the public defender by
saying, "I believe you meant to say 'innocent.'"
In a trial
marked by racism, homophobia, and ignorance of medical science,
prosecutors alleged that Johnson knowingly exposed his sexual partners to
HIV by failing to disclose his status.
Their claim was
accepted in part because, as Steven Thrasher wrote on Buzzfeed, “prosecutors
have in their possession what they consider a smoking gun: On Jan. 7, 2013,
Johnson signed a form like this one from the state of Missouri,
acknowledging that he had been diagnosed with HIV.”
After a speedy
five-day trial, the jury only deliberated a few hours before finding Johnson
guilty on all counts. Given a total sentence of 60 years, the judge
decreed that the two 30 year sentences could be served concurrently.
The lengthy
sentences reflected that under Missouri law, HIV transmission is a Class A
felony along with murder, forcible rape of a child under 12, and first-degree
kidnapping.
Appealing the
conviction, Johnson's lawyers offered several arguments for why the decision
should be overturned, including the fact that the state prosecutors withheld
tapes of phone conversations that Johnson had in prison, conversations the
state didn't reveal it was going to use until days before the trial. The appeal
also argued that Johnson's sentence was unconstitutional given what he was
charged with (this argument is based on the fact that HIV is no longer a death
sentence and therefor transmission of the virus should not be viewed as
equivalent to murder).
The Missouri
Court of Appeals today agreed that the prosecution not only failed to
comply with Johnson's discovery request, “the State’s violation of Rule 25.03
was knowing and intentional and was part of a trial-by-ambush strategy that
this Court does not condone and the Rule 25.03 was specifically designed to
avoid.”
Those tapes
turned out to be critical to the trial. In them, Johnson says he was only
"pretty sure" he'd disclosed his status, acknowledged his hesitance
to disclose, and expressed concerns he could have transmitted HIV to others.
"The
court's reversal is based on the prosecutor's misconduct," explains Strub,
"which raises questions concerning other possible improprieties in
Michael's trial. The prosecutor clearly wasn't playing by the rules, and as a
result, Michael Johnson, his friends and family, people living with HIV, and
justice suffered."
In determining
that the prosecution deliberately held the inflamatory evidence, the Appeals
Court wrote, "we find that the trial court abused its discretion by
admitting the excerpted recordings of the phone calls Johnson made while in
Jail. Johnson’s first point is granted, and we reverse and remand for a new
trial."
However, the
Appeals Court declined to consider the second argument, noting, "we do not
consider Johnson’s second point on appeal, which relates solely to the
constitutionality of Johnson’s punishment for an offense for which he must now
be retried.”
In other words,
by overturning his conviction Johnson sort of goes back to being presumed
innocent, and the constitutionality of his sentencing is rendered mute.
In avoiding the
question regarding sentencing, the Court actually leaves the constitutionality
of the sentence unanswered, but also open for future appeals of similar
sentences.
James M. Dowd,
the presiding judge concluded, “For the reasons stated above, we reverse
the judgment of the trial court and remand for a new trial.
"This is
far from over," Strub acknowledges. "But if the state chooses to
retry him, which may be likely, Sero and many other community efforts will do
our best to mobilize every resource available in Michael's defense. A lot of
people care about Michael Johnson. And their advocacy, concern, and love has no
doubt been meaningful to Michael, his mother, and his family and friends, but
also a significant factor in bringing attention and legal resources to bear on
his behalf."
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