IN THE CIRCUIT COURT OF ST. LOUIS CITY
STATE OF MISSOURI
STATE OF MISSOURI,
Plaintiff,
vs.
LAMAR JOHNSON,
Defendant.

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Case No. 22941-03706A-01

RESPONSE TO COURT ORDER
Introduction
This Court has no jurisdiction over the Circuit Attorney’s improper,
untimely motion for a new trial. The Attorney General represents the State’s
interests at the Court’s request and on his own authority. Missouri law
requires the Court to deny the motion for new trial.
Lamar Johnson was found guilty of first-degree murder and armed
criminal action on July 11, 1995. This Court entered a judgment of conviction
and sentenced Johnson to life imprisonment without the possibility of parole
and a consecutive life sentence. In the twenty-four years since then, state and
federal courts have reviewed Johnson’s convictions and sentences in two other
motions for a new trial, a motion for post-conviction relief, a consolidated
appeal, on federal habeas review, federal habeas appeal, and in three state

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 habeas actions.1 In those cases, Johnson raised almost all of the same claims
he presents in his latest motion for new trial. Each court to review Johnson’s
claims has found that he failed to prove his innocence or any error that would
justify reversing his convictions.
Johnson and the Circuit Attorney’s Office now ask this Court to act
outside its authority and overturn the jury’s verdict, decades after it became
final. In 1996, Johnson made a similar untimely request, asking this Court to
grant him a new trial based on new evidence of his innocence. This Court found
that it had no jurisdiction to grant Johnson’s late new-trial motion. Twentythree years have not changed the fact that this Court has no power to hear
Johnson’s motion or to grant a new trial in this case.
Argument
I.

The Circuit Attorney does not have the power to file a motion
for new trial, and this Court does not have jurisdiction to
consider the motion.
This Court exhausted its jurisdiction over this case when it imposed

sentence and entered its judgment on September 25, 1995. State ex rel. Mertens

State v. Johnson, 989 S.W.2d 238, no. 69212 (Mo. App. E.D. 1999)
(consolidated appeal); Johnson v. McCondichie, no. 4:00-CV-408 (E.D.Mo. Mar.
24, 2003) (federal habeas); Johnson v. Dwyer, no. 04-2265 (8th Cir. Sept. 30,
2004) (federal habeas appeal) cert. denied, 541 U.S. 907 (2004); Johnson v.
Dwyer, Mississippi County no. 04CV746835 (state habeas); Johnson v. Dwyer,
no. SD26759 (Mo. App. S.D. 2005) (state habeas-court of appeals); State ex rel.
Johnson v. Dwyer, no. SC86666 (Mo. 2005) (state habeas-supreme court).
1

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 v. Brown, 198 S.W.3d 616, 618 (Mo. 2006); State v. Larson, 79 S.W.3d 891, 893
(Mo. 2002). After imposing sentence, this Court has no power to take any
further action unless “expressly provided by statute or rule.” Id.; State ex rel.
Fite v. Johnson, 530 S.W.3d 508, 510 (Mo. 2017); State ex rel. Simmons v.
White, 866 S.W.2d 443, 445 (Mo. 1993).
This Court can hear motions for a new trial “[o]n application of the
defendant made within fifteen days after the verdict.” Mo. Sup. Ct. R. 29.11
(emphasis added). When a defendant files a timely new-trial motion, this Court
can grant a new trial “to all or any of the defendants.” Mo. Sup. Ct. R. 29.11
(emphasis added); State v. Williams, 504 S.W.3d 194, 196–97 (Mo. App. W.D.
2016). In requesting a new trial on behalf of the State, the Circuit Attorney’s
motion raises procedural, constitutional, and ethical concerns. Rule 29.11 does
not allow the State to file a motion for new trial.2 Nor should it—double
jeopardy principles prohibit the State from requesting or ordering a new trial
for the defendant after jeopardy has attached. U.S. v. Alvarez–Moreno, 657
F.3d 896 (9th Cir. 2011). And the State cannot ethically represent Johnson and

The amicus brief cites State ex rel. Norwood v. Drumm, 691 S.W.2d 238
(Mo. 1985) as establishing that the prosecuting attorney may move for a new
trial. That portion of Norwood was dicta. Norwood holds that the prosecutor
does not have discretion to dismiss charges after the jury renders a verdict,
and stresses that judicial rules provide a check on the prosecutor’s discretion .
Norwood, 691 S.W.2d at 241.
2

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 file pleadings on his behalf. Mo. R. Pro. Cond. 4–1.7.3 Missouri law does not
“expressly provide” this Court with authority to consider the Circuit Attorney’s
new-trial motion, so this Court does not have jurisdiction to consider it. State
ex rel. Fite, 530 S.W.3d at 510.
Even if the Circuit Attorney could seek a new trial under Rule 29.11, this
Court cannot consider a motion filed outside the rule’s time limits. The Circuit
Attorney filed the motion for a new trial on July 19, 2019—8,758 days out of
time. This Court already found it was without jurisdiction to decide another
untimely motion for new trial that Johnson filed in 1996. Citing State v.
Turnbough, 604 S.W.2d 742, 746 (Mo. App. E.D. 1980). This Court reached the
correct decision then, and should reach the same decision now. The Circuit
Attorney’s untimely motion is “a nullity,” and this Court has no power to hear
the motion or to grant the relief it requests. Id.; State v. Young, 943 S.W.2d
794, 799 (Mo. App. W.D. 1997).
Johnson and the Circuit Attorney ask this Court to make an exception
because they allege that newly discovered evidence would show Johnson is
innocent of his crimes. Missouri courts have roundly rejected such an
exception. State v. Terry, 304 S.W.3d 105, 108–109 (Mo. 2010); Williams, 504

See also American Bar Association, Criminal Justice Standards for the
Prosecution Function, 3.17(b) (2018) (“The prosecutor should not represent a
defendant in criminal proceedings in the prosecutor’s jurisdiction.”).
3

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 S.W.3d at 196–97; Turnbough, 604 S.W.2d at 746. There is “no authority” that
would allow a motion for new trial to be filed outside the time limits in Rule
29.11, even where the motion alleges newly discovered evidence. Turnbough,
604 S.W.2d at 746. Once the time limits under Rule 29.11 have expired,
“Missouri rules have no provision for the granting of a new trial based on newly
discovered evidence.” Terry, 304 S.W.3d at 109. “An untimely motion for new
trial is not an appropriate means to introduce new evidence.” Williams, 504
S.W.3d at 197 (citations omitted).
The Circuit Attorney argues that this Court should grant a new trial
after conducting independent plain error review, citing State v. Mooney, 670
S.W.2d 510 (Mo. App. E.D. 1984) and State v. Williams, 673 S.W.2d 847 (Mo
App. E.D. 1984). But Mooney and Williams were cases in which the Missouri
Court of Appeals conducted plain error review on direct appeal and remanded
the cases to the trial court for consideration of new evidence. The Missouri
Supreme Court has expressly held that trial courts have no jurisdiction to
conduct independent plain error review after sentencing. State ex rel. Zahnd v.
Van Amburg, 533 S.W.3d 227, 230 (Mo. 2017). Any action this Court takes to
review Johnson’s convictions for plain error would be “a nullity and void.” Id.
(citations omitted).
The amicus brief argues that the time limits in Rule 29.11(b) are not
jurisdictional and that the Circuit Attorney can waive them. Amicus Brief at
5

 p. 21 (citing State v. Henderson, 468 S.W.3d 422, 425 (Mo. App. 2015)). The
amicus brief does not acknowledge the Missouri Supreme Court’s holding in
Zahnd v. Van Amburg, which squarely forecloses the dicta about Rule 29.11’s
time limits in Henderson. Because this Court exhausted its jurisdiction when
it sentenced Johnson, it cannot take any action unless specifically allowed by
statute or rule. Zahnd, 533 S.W.3d at 230. The only action this Court can take
on the Circuit Attorney’s motion is to “exercise its inherent power to dismiss
the motion for lack of jurisdiction.” Id. (cleaned up). This Court must follow
Zahnd.
The amicus brief also cites dicta from State v. Terry, discussing dicta
from State v. Coffman, 647 S.W.2d 849 (Mo. App. W.D. 1983), which suggested
that a trial court could grant a motion for new trial filed outside the time limits
in extraordinary circumstances. No Missouri court has held that a trial court
has the power to consider an untimely motion for new trial.
In fact, neither Johnson nor the Circuit Attorney cites any case that
upheld a trial court’s decision to vacate or amend a final sentence without
express statutory authorization. And for good reason—Missouri’s appellate
courts have routinely rejected circuit courts’ attempts to amend or vacate
criminal sentences in multiple contexts. Circuit courts do not have authority
to amend final sentences to be concurrent instead of consecutive. State ex rel.
Scroggins v. Kellogg, 311 S.W.3d 293 (Mo. App. W.D. 2010). They cannot grant
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 credit toward an already final sentence for time spent on probation. State ex
rel. Scroggins v. Kellogg, 335 S.W.3d 38 (Mo. App. W.D. 2011). Circuit courts
cannot remedy an allegedly illegal final sentence by allowing a defendant to
withdraw his guilty plea. State ex rel. Fite, 530 S.W.3d at 510. Nor can they
overturn a final criminal sentence based on perceived manifest injustice. State
ex rel. Zahnd, 533 S.W.3d at 230. And circuit courts have no power to hear
untimely new-trial motions. Terry, 304 S.W.3d at 108–109; Williams, 504
S.W.3d at 196–97; Turnbough, 604 S.W.2d at 746.
The Circuit Attorney is correct that the State has an ethical duty to
disclose new evidence that could aid Johnson so that he can challenge his
conviction through legally available procedures. But the State cannot dispense
with rules and laws designed to protect society and crime victims from the
“chaos of review unlimited in time, scope, or expense.” State ex rel. Zahnd, 533
S.W.3d at 230. “Both the State and the victims of crime have an important
interest in the timely enforcement of a sentence” and that interest cannot be
set aside in favor of unending, unauthorized, and repetitive challenges to a
final conviction. Bucklew v. Precythe, 139 S.Ct. 1112, 1133 (2019); see also State
ex rel. Strong v. Griffith, 462 S.W.3d 732–33 (Mo. 2015).
Missouri and the federal government have “established a procedural
system that provides timely review of criminal convictions.” State ex rel.
Simmons, 866 S.W.2d at 446. Using those procedures, Johnson has already
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 presented numerous claims for relief including claims of trial court error,
ineffective assistance of counsel, new evidence of actual innocence, and
allegations that the prosecution used false testimony to convict him. Nearly all
of the evidence Johnson cites has already been considered and rejected during
earlier review.
Johnson has litigated post-trial motions and post-conviction review in
this Court. He has had the benefit of appellate review before the Missouri
Court of Appeals and had the opportunity to press his claims for federal habeas
relief before a federal district court, the United States Court of Appeals, and
the United States Supreme Court. Johnson has sought state habeas review in
the Mississippi County Circuit Court, the Missouri Court of Appeals, and the
Missouri Supreme Court. If Johnson has new, cognizable claims, he should
follow the proper procedures and raise them before courts that have the power
to hear them. But this Court cannot ignore the law and grant Johnson the
untimely and unauthorized review he seeks.

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 II.

The Court’s inherent authority empowers the Court to seek
the Attorney General’s counsel.
Johnson, the Circuit Attorney, and the amicus brief also complain about

the court’s authority to hear argument from the Attorney General about
whether the Court has jurisdiction. Just as this Court must satisfy itself of its
own jurisdiction, this Court has inherent authority to supervise the attorneys
that appear before it under the Missouri Constitution. See, e.g., State v. Jones,
306 Mo. 437, 268 S.W. 83, 85 (1924). The court’s authority extends even to
prosecutors. Id. Although that power is not absolute, it is substantial and may
be exercised “to maintain the integrity of the judicial system.” Compare State
ex rel. Gardner v. Boyer, 561 S.W.3d 389, 397 (Mo. 2018), with State ex rel.
Horn v. Ray, 325 S.W.3d 500, 511 (Mo. App. E.D. 2010). The Gardner case
reiterates the limits on, and analysis necessary for, a circuit court’s authority
to disqualify a local prosecutor. That is not what happened here.
Here, the Court’s order directing the Attorney General to appear and
represent the State’s interests was a valid exercise of the Court’s inherent
authority. This Court did not direct the Attorney General to relieve Circuit
Attorney Gardner of her ability to appear and be heard. Nor did the Court
relieve Circuit Attorney Gardner of her ongoing obligation to disclose evidence
to Johnson. Instead, the Court directed the Attorney General to appear and to
be heard on the issue of whether the trial court had jurisdiction to consider a

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 motion for new trial filed by the prosecutor and not the defendant, where such
motion was also filed more than 8,000 days out of time. In the context of such
an unusual event, the circuit court reasonably requested the input of the
State’s chief legal officer. State v. Todd, 433 S.W.2d 550, 554 (Mo. Div. 2, 1968).
III.

The Attorney General’s authority allows him to appear and
offer his counsel to the Court.

Likewise, the Attorney General, who enjoys all of his common law powers
unless constrained by the General Assembly, has authority to appear and be
heard in this case. See, e.g., Section 27.060 RSMo. (“The attorney general . . .
may also appear and interplead, answer and defend, in any proceeding or
tribunal in which the state’s interests are involved.”) (emphasis supplied).
Under the plain language of this statute, which confirms the Attorney
General’s

longstanding

common-law

powers,

the

Attorney

General

unquestionably has the authority to appear and represent the State’s interests
in this case. In addition to Section 27.060, RSMo., there are several general
principles that inform the scope of the Attorney General’s authority.
First, the Attorney General is the “chief legal officer of the State.” Todd,
433 S.W.2d at 554. The powers of local prosecutors are “carved out of this
overriding authority, with local implications.” Id.
Second, the Attorney General does not represent the same interests as
the local prosecutor; he represents a broader interest. Dunivan v. State, 466

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 S.W.3d 514, 519 (Mo. 2015). This is true even when “the state’s interests” are
represented by “a local prosecuting attorney.” Id.
Third, the Attorney General enjoys all of his common law power, unless
the General Assembly has passed a statute for the purpose of limiting his
authority. State ex rel. Nixon v. American Tobacco Co., 34 S.W.3d 122, 136 (Mo.
2000). In American Tobacco, our Missouri Supreme Court reiterated that a
statute that grants “the same or other powers does not operate to deprive him
of those belonging to the office under the common law” unless that is the
purpose of the statute. Id. (quoting State ex rel. Barrett v. Boeckeler Lumber
Co., 302 Mo. 187, 257 S.W. 453, 456 (Mo. banc 1924)). Recently, the Missouri
Supreme Court has reaffirmed that the Attorney General’s “power to represent
the state” derives from “both statutory and common law.” Dunivan, 466 S.W.3d
at 518 (quoting Clark Oil & Refining Corp. v. Ashcroft, 639 S.W.2d 594, 596
(Mo. 1982)).
And fourth, the General Assembly and the Missouri Supreme Court have
evidenced a policy that the Attorney General should be allowed liberal
participation in court proceedings. For example, the General Assembly has
determined that the Attorney General shall receive notice and an opportunity
to be heard when anyone seeks to have an ordinance or franchise deemed
unconstitutional. Section 527.110, RSMo. The Attorney General represents the
State’s interests in appellate proceedings. Section 27.050, RSMo. (the Attorney
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 General “shall . . . have the management of and represent the state in all
appeals to which the state is a party other than misdemeanors. . .”).4 Likewise,
the General Assembly has legislated that the Attorney General should be
allowed to “appear and interplead, answer or defend, in any proceeding or
tribunal in which the state’s interests are involved.” Section 27.060, RSMo. The
Missouri Supreme Court has explained that Section 27.060 applies even in
cases where the local prosecuting attorney is participating. Dunivan, 466
S.W.3d at 519. The Missouri Supreme Court has expressed its view through
these decisions, and through its rules. For instance, the Attorney General may
file an amicus brief in any Missouri Supreme Court case as a matter of right.
Rule 84.05(f)(4).
These principles show that the Attorney General may appear and be
heard in this case, even without an order from this Court. Missouri statutes
would even permit the Attorney General to do more than merely appear.
Section 27.060. The involvement of the Circuit Attorney’s Office presents no
obstacle to the Attorney General’s ability to appear and be heard on issues that
implicate the State’s interest. Dunivan, 466 S.W.3d at 519.
Under Missouri law, this Court’s order was not necessary for the
Attorney General to appear at the status conference. But, it is the practice and

In Johnson’s case, the Attorney General has represented the State’s
interests on appeal and in state and federal habeas proceedings since 1995.
4

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 tradition of the Attorney General to respect court orders directing him to file
an entry of appearance and appear at proceedings. See, e.g. Skinner v. State,
(No. 1416-CV16875) (Jackson County Cir. Ct.). The Attorney General does so
even when the Attorney General believes his appointment was legally incorrect
and when he presents that argument. See, e.g., Amicus Curiae Brief, State ex
rel. Peters-Baker v. Round, (No. SC96931) (Mo.).
Although the Court has not disqualified the Circuit Attorney, that Office
may have conflicts of interest in this case. 5 Of course, the Court need not reach
that issue or the issue of which authority allows the Attorney General to
appear and give argument in this case. The Circuit Attorney’s Office did not
have the power to file its motion, and this Court does not have power to grant
the motion. Any other issues are moot.

For instance, in her motion, Circuit Attorney Gardner alleges that one of
her former assistant circuit attorneys presented false testimony and failed to
correct it. On top of that, Circuit Attorney Gardner and the Midwest Innocence
Project publicly have stated that they applied for and received a grant of
$250,000 to fund an investigator who works part time for the Circuit Attorney
and part time for the Midwest Innocence Project so that they can “share our
information with each other.” Rachel Lippmann, Federal dollars will help St.
Louis prosecutor look for wrongful convictions, Dec. 15, 2018,
available at https://news.stlpublicradio.org/post/federal-dollars-will-help -stlouis-prosecutor-look-wrongful-convictions#stream/0. Though such potential
conflicts need not exist for the Attorney General to appear and to be heard,
they constitute another reason that the Attorney General should be permitted
do so.
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 Conclusion
For these reasons, the Court should deny the Circuit Attorney’s motion
for new trial, as well as Johnson’s motion to join the Circuit Attorney’s motion
for new trial.
Respectfully submitted,
ERIC S. SCHMITT
Attorney General
/s/ Andrew J. Crane
Andrew J. Crane
Assistant Attorney General
Missouri Bar #68017
/s/ Gregory M. Goodwin
Gregory M. Goodwin
Assistant Attorney General
Missouri Bar #65929
/s/ Cristian M. Stevens
Cristian M. Stevens
Deputy Attorney General
Missouri Bar #48028
P.O. Box 899
Jefferson City, MO 65102
(573) 751-0264
(573) 751-2096 Fax
andrew.crane@ago.mo.gov
Attorneys for the State

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 CERTIFICATE OF SERVICE
I certify that I filed this document
using the Missouri case.net system
on August 15, 2019. All parties will
be served electronically.
/s/ Andrew J. Crane
ANDREW J. CRANE
Assistant Attorney General

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