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 man 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 violated court discovery rules by ambushing Johnson at trial with selective excerpts from recordings of telephone conversations he had in jail, thus depriving him of a fair trial.
The St. Charles County prosecutor now has to decide whether to retry Williams, who was convicted in May 2015 for events that occurred in 2013.
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 on social media. That student, who testified at the trial that Johnson had not disclosed he was HIV-positive, experienced symptoms a few weeks later, went to a hospital emergency room, and was diagnosed with gonorrhea and HIV. After a follow-up HIV test, doctors informed the student that his HIV infection was recent. The student testified he had been abstinent for a year before having sex with Johnson, 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 he was HIV-positive. When the student noticed that Johnson’s social networking profiles continued to not disclose that he was HIV-positive, he 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 his status.
In his jury trial, Johnson admitted when he learned of his HIV diagnosis, so the critical issue was whether he had disclosed to his sexual partners. Johnson testified he had informed each of them before engaging in sex, except for one man he had sex with before learning of his infection.
Prosecutors impeached Johnson’s testimony by playing excerpts from the jail telephone recordings, in which Johnson 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 trial lawyer had objected to the introduction of these edited recordings, which were only revealed to her the morning the trial opened, May 11, 2015. The prosecutor claimed that the information had been sent to the defense lawyer’s office the previous Friday, a state holiday when her office was closed. Eighteen months before, the defense, following court rules, had requested discovery of “any written or recorded statements and the substance of any oral statements made by the defendant” relevant to the charges against him. The prosecutor is obligated to respond within 10 days and supplement its response with any new relevant information it acquires. That duty extends to include any information that might be obtained through reasonable inquiry.
The 24 hours of recordings of Johnson’s phone calls included two calls from as far back as October 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 played games to avoid defense counsel learning of them until the morning the trial started by sending them over on a Friday holiday before a weekend. Defense counsel objected, but the trial judge overruled, stating the defense had a few days in possession of the recordings before they were offered in evidence and so was not prejudiced.
The jury convicted Johnson on every count except the charge involving the man he had sex with prior to learning he was positive. In addition to the 30-year sentence for infecting one other student, he received 14 years for recklessly exposing another person, and five and a half 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 US Constitution’s Eighth Amendment ban on cruel and unusual punishment.
Because the appeals court agreed with his first issue, it did not rule on the Eighth Amendment claim – the one of greater substantive concern regarding cases of this type.
The state candidly admitted 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.
“If we disclose to the defense they’ll tell their client,” the state explained. “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.”
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 – 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, Dowd pointing to prior Missouri court rulings directly addressing that point. The relevant knowledge, the appeals court held, would be that the prosecution has the recordings and plans to use them at trial.
“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,” Dowd wrote. “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… 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.”
Dowd wrote 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. As a result, 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.”
The trial judge abused his discretion in letting 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 only 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’s possible that Johnson will seek to strike a plea bargain for a shorter sentence.
In the meantime, this case, which has attracted nationwide 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 HIV transmission since the law was passed in 1988. HIV-positive people who adhere to their treatment regimens should be uninfectious, and negative partners using PrEP should be protected against infection. Infection by a positive person who does not disclose their status, however, is likely to remain a contentious issue in any debates over reforming current criminal statutes.