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organization that co-sponsors the HIV is Not a Crime training conferences, which teach activists how to help overturn outdated laws targeting those with HIV.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."