The Missouri Eastern District Court of Appeals has reversed the jury conviction of Michael L. Johnson, an HIV-positive African-American man, on felony charges of recklessly infecting another with HIV and exposing others to HIV, for which he was sentenced to 30 years in prison. The appeals court found in a December 20 ruling that the prosecution had violated court discovery rules by ambushing Johnson at trial with selective excerpts from recordings of telephone conversations he had in jail, thus depriving Johnson of a fair trial. The St. Charles County prosecutor now has to decide whether to retry Johnson, who was convicted in May 2015 for events that occurred in 2013. State of Missouri v. Johnson, No. ED103217.
Johnson, a championship high school wrestler from Indianapolis, moved to St. Charles, Missouri, in 2012 to attend Lindenwood University, where he had had been recruited for the wrestling team. On January 7, 2013, he went to the student clinic complaining of perianal warts and seeking STD testing. He tested positive for gonorrhea and HIV.
A few weeks later, Johnson had unprotected oral and anal sex with another Lindenwood student whom he had met through social media. That student testified at the trial that Johnson had not disclosed he was HIV-positive. The student experienced symptoms a few weeks later, went to a hospital emergency room, and was diagnosed with gonorrhea and HIV. A follow-up HIV test led doctors to inform the student that his HIV infection was recent. The student testified that before having sex with Johnson he had not had sex with anyone else for a year, so Johnson was the only person who could have infected him.
The student contacted Johnson and they met in Johnson’s dorm room, where the student told Johnson he was HIV-positive, and they had sex again. The student maintains that Johnson still did not disclose that he was HIV positive. When the student noticed that Johnson was still using social networking and “dating internet applications” but was not mentioning in his profile that he was HIV-positive, the student contacted the St. Charles Police Department, whose investigation turned up five other people who had sex with Johnson, all of whom claimed Johnson had not disclosed to them that he was HIV positive.
In the subsequent jury trial, Johnson admitted that he learned of his HIV diagnosis on January 7, 2013, so the critical issue at trial was whether he disclosed his HIV status to his sexual partners. Johnson testified that he had informed each of them before engaging in sex, except for one man with whom he had sex only in November 2012, before he learned of his infection. Prosecutors impeached Johnson’s testimony by playing excerpts from the jail telephone recordings, in which Johnson had stated that he was worried that people would not want to be his friend if they learned about his HIV status, that he was “pretty sure” he had disclosed his HIV status to his sexual partners, and that he was “unsure” about how to tell people about his status. This summary in the court’s opinion of the prejudicial statements extracted from more than 24 hours of telephone calls does not indicate who the other parties were on the calls, and whether all three statements came from the same call.
Johnson’s lawyer had objected to the introduction of these edited recordings, which were only revealed to her the Monday morning of the trial, May 11, 2015. The prosecutor claimed that the information had been sent to the lawyer’s office the previous Friday, but that was a holiday and the law office was closed. A year and a half earlier, on November 26, 2013, the defense had filed a request for discovery as authorized by court rules, asking for “any written or recorded statements and the substance of any oral statements made by the defendant” that was relevant to the charges against him. The court rule says that such requests shall be answered within ten days after the prosecutor receives the request, and imposes an ongoing duty on the prosecutor to supplement its response if it acquires new relevant information, and the disclosure duty extends beyond information known to the prosecutor to include any information that might be obtained through reasonable inquiry.
It is, of course, common practice that jails record prisoner calls and that prosecutors can get access to the recordings. In this case, there were more than 24 hours of recordings of Johnson’s phone calls made while he was in jail, two calls from as far back as October 17, 2013, just weeks before the defense filed its discovery request, and one call from just a few days before the request. Yet the state waited a year and a half to turn this information over, and even then playing games to avoid defense counsel learning of them until the morning of the trial by sending them over on a holiday before a weekend. Defense counsel objected, but the trial judge reserved ruling on the objection, since the evidence would not be presented until later in the trial, and then the judge overruled the objection, stating that the defense had a few days in possession of the recordings and so was not prejudiced.
The jury convicted Johnson on every count except the charge involving the man with whom he had sex in November 2012 – an instance of classic overcharging by the prosecution, since Johnson did not know he was HIV positive at the time. He was sentenced to 30 years for infecting the other student, 14 years for recklessly exposing another person, and 5-1/2 years on each of three charges of “attempting” to expose other people, with the sentences to run concurrently.
Johnson raised two issues on appeal. First, he challenged the fairness of his trial because of the state’s “ambush” tactics with the recording. Second, he claimed that the prison sentence was “grossly disproportionate” to the offenses, in violation of the 8th Amendment ban on cruel and unusual punishment. Because the appeals court agreed with his first issue, it did not rule on the 8th Amendment claim.
The State candidly admitted on the record before the appeals court that it “intentionally withheld the recordings from the defense to gain a strategic advance,” wrote Presiding Judge James M. Dowd for the appellate panel. “The State explained: ‘If we disclose to the defense they’ll tell their client. And I’m not impugning anyone’s integrity, I’d do the same thing: Hey, they’re listening to your conversations, shut up. So we don’t disclose them until towards the end.”
Judge Dowd pointed out that the state’s strategy was exactly what the discovery rule was intended to avoid. “We find that this discovery violation likely resulted in Johnson’s genuine surprise at learning on the first day of trial that the State had prepared to use the untimely-disclosed recordings against him, since at no earlier point had Johnson learned that the State [that is, the prosecutors]—and not just the county jail – had the recordings in its possession, nor had he learned that the State planned to use them at trial.”
The court rejected the State’s argument that because everybody knows that their prison phone calls are being recorded, there is no fundamental unfairness in failing to disclose them before trial. Judge Dowd pointed out that there were prior Missouri court rulings directly addressing this point. It is not enough to show that the defendant knows the jail is recording the phone conversations. The relevant knowledge would be that the prosecution has the recordings and is planning to use them at trial, with an opportunity for the defense to learn what recordings were going to be used. Furthermore, the court rejected the trial judge’s conclusion that the problem was cured because a few days went by before the recordings were offered in evidence.
“Johnson was forced to make critical strategic decisions – such as whether to seek to avoid trial by pursuing a plea bargain, whether to waive his right to silence and testify, and what particular defense to raise – without being timely furnished highly prejudicial, properly-requested discovery,” wrote Dowd. “The State had more than a year and half to prepare its case with the benefit of its chosen excerpts of Johnson’s jail phone recordings but failed, in violation of Rule 25.03, to disclose to Johnson before the morning of the first day of the trial any part of the more than 24 hours of recordings. Even as an inadvertent mistake, such untimely disclosure would be suspect under Missouri law, but here the State admitted that it purposely withheld the recordings from Johnson so as not to tip off the defense counsel that her client was being recorded making incriminating statements.”
Dowd said that the “pretty sure” statement was “profoundly prejudicial” when it was used out of context to impeach Johnson’s testimony that he had disclosed his HIV status to his sexual partners. Thus, concluded Dowd, the state’s tactic had likely “prevented Johnson from preparing a meaningful defense – i.e., one that was not sabotaged by the State’s deliberate untimely disclosure of highly prejudicial evidence – and that timely disclosure of the statement would have affected the result of Johnson’s trial.”
Dowd also rejected the argument that Johnson’s counsel had enough time to deal with the recordings during the first three days of trial before Johnson’s testimony. “The solution to the State’s blatant discovery violation should not be to put the defense at an additional disadvantage by forcing the defense to spend its time during trial analyzing improperly-withheld discovery instead of preparing for the next witness, next day of trial, or the other work-intensive matters a trial lawyer must deal with,” wrote Dowd. This violation, he said, “is inexcusable, should not be repeated, and supports a finding of fundamental unfairness in this case,” calling it a “bad faith strategy” that “clearly was intended to disadvantage Johnson.” In other words, they were out to get him!
Thus, it was an abuse of discretion for the trial judge to let the State use this evidence, and the conviction was reversed and sent back to the county Circuit Court for a new trial. It is up to the prosecutor to decide whether to go forward. Since Johnson has served but a small fraction of the 30 year sentence, there may be local pressure to have a new trial. In light of the evidence, which would be admissible the second time around now that it has been disclosed, it is possible that Johnson will seek to strike a plea bargain for a shorter sentence rather than risk another trial.
In the meantime, this case, which has attracted lots of attention, shows that Missouri’s HIV-exposure law requires reconsideration, especially in light of the developments in medical treatment that have changed the calculus of risk in terms of HIV transmission and the consequences of infection from what they were when the law was passed in 1988. Laws on HIV exposure passed before these medical developments are now inadequately sensitive to evidence that people on PREP may be infected without presenting a risk of transmission, and of course the mortality and morbidity issues have changed drastically since protease inhibitors became part of the standard treatment regimen for HIV in the mid-1990s.Tags: criminal liability for HIV, exposure to HIV, HIV infection, infection with HIV, Judge James M. Dowd, Lindenwood University wrestler, Michael L. Johnson, Missouri Court of Appeals, pretrial discovery of jail phone calls, State of Missouri v. Johnson