Excoriating prosecutors for deliberately withholding evidence, a court of appeals has ordered a new trial for Michael Johnson, better known as Tiger Mandingo, who was convicted last year for "recklessly" infecting a person with HIV and exposing or attempting to expose four others to the virus.
The Eastern District Court of Appeals of Missouri ruled on Tuesday that the prosecution rendered Johnson’s trial “fundamentally unfair” when it withheld, until the last minute, recordings of phone conversations Johnson had made from prison.
Johnson is currently serving a 30.5 year sentence and is one of the most highly publicized targets of America’s controversial HIV laws, which make it a crime for HIV-positive people to have sex without first disclosing that they have the virus. BuzzFeed News has written extensively about Johnson’s arrest and trial.
Many prosecutors defend HIV laws as offering just punishment for behavior that can help transmit the virus. But AIDS advocates contend the laws are outdated and harsh. If decades-long sentences ever were appropriate, they say, they aren’t anymore, given the tremendous medical advances in HIV care. Many epidemiologists and AIDS advocates say the laws — which single out HIV — can actually fuel the epidemic by making people afraid to get tested and treated, and by fostering the dangerous belief that only the HIV-positive person is responsible for preventing transmission of the virus.
When Johnson was arrested in 2013, he was a star wrestler at Lindenwood University, where he was also one of the only black students. His trial, held in the nearly all-white town of St. Charles, Missouri, featured a combination of race and sex that was as highly charged as the name he used online and while performing in drag balls: Tiger Mandingo. Prosecutors asked would-be jurors if being gay was a “choice,” and evidence presented to the court included graphic descriptions of Johnson’s “huge” penis — and even images of it.
The trial turned on whether Johnson had told his partners — most of whom were white — that he was HIV-positive. They all said he didn’t, but he insisted that he did. In one of the prison phone recordings, however, Johnson said he was only “pretty sure” he had let his partners know. That statement was crucial, the appeals court noted, because it was “the only evidence in the record of Johnson stating to anyone that he was not certain about whether he disclosed his HIV status to his sexual partners.”
After he was found guilty, Johnson appealed on two grounds: that his trial was unfair because those recordings had been effectively withheld from the defense until the morning the trial began, and that his long sentence was so disproportionate to the crime that it violated the constitutional ban on cruel and unusual punishments.
The appeals court made no ruling on whether the punishment fit the crime. But on the first point, the court was withering, lambasting the prosecution for engaging in “a trial-by-ambush strategy.”
About a year and a half before the trial, Johnson’s attorneys had requested that the prosecution hand over any “written or recorded statement” Johnson had made. Prosecutors are required to comply with such requests, and failing to do so is a serious violation of prosecutorial ethics.
But, the appeals court noted, the prosecution delivered the “tapes at defense counsel’s office on the Friday before the trial while the office was closed for a state holiday.” So Johnson’s attorneys received the voluminous recordings — totaling 24 hours of taped calls — the morning of the trial’s opening day, denying Johnson “a decent opportunity to prepare his case in advance of trial,” the court ruled.
That was no accident, the court found; instead, prosecutors “intentionally withheld the recordings from the defense to gain a strategic advantage.” The court quoted an unnamed prosecutor saying, “If we disclose them 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 conversation, shut up. So we don't disclose them until towards the end.” Transcripts of the trial obtained by BuzzFeed News reveal the speaker to be Assistant District Attorney Peter Groenweghe, the lead prosecutor on the case.
Because the prosecution had “purposely withheld the recordings,” the court found that “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.”
The court decided to “reverse the judgment of the trial court” and send the case back for a new trial.
A spokesperson for the prosecutor did not respond to requests for comment. According to Johnson’s attorney, public defender Samuel Buffaloe, prosecutors can ask the appeals court to reconsider its decision to order a new trial. If the appeals court denies that request or reaffirms its ruling, prosecutors can appeal to the state’s supreme court. If Tuesday’s ruling stands, Buffaloe said, “Mr. Johnson will be put back in his position before his trial took place,” where he would have the opportunity to be tried from scratch or to pursue a plea bargain.
But for Johnson, nothing will change immediately. According to his lawyer, he will remain in prison until a decision is made if, and when, to have a new trial. Any possibility of a hearing about whether he can be released on bond will wait until that time.
As BuzzFeed News previously reported, Johnson has been in and out of solitary confinement — or “administrative segregation,” as the jail called it — for much of the time in the three years since he was first arrested. One of his closest advocates is Meredith Rowan, with whom Johnson had one of the recorded phone conversations at the heart of the new ruling. Rowan feels “cautiously optimistic,” but said she has been unable to see Johnson in person since he was transferred from the St. Charles County Jail into the Missouri state prison system more than a year ago.
Tony Rothert, legal director for the ACLU of Missouri, which filed an friend-of-the-court brief on Johnson's behalf, was “thrilled” at the news. Still, he is concerned that if the “case returned for a new trial, the problem remains that the prosecution is built on inflaming public fears about those individuals with HIV, gay people, and black men.”
He added, “Based on what we currently know about HIV and what treatment and prevention methods are available, Missouri's criminalization of sex is irrational and serves no purpose but to further stigmatize persons living with HIV.”
And what does Johnson himself think of this news?
Perhaps nothing. As of this writing, neither Rowen nor Akil Patterson, Johnson’s other closest advocate, had spoken to him. Even Johnson’s attorney hadn’t talked to his client yet — meaning Johnson himself may not yet know that he could get another day in court.
This post has been expanded to include more information from the court's ruling as well as context about Johnson's case and the nation's HIV laws.
Steven W. Thrasher was named Journalist of the Year 2012 by the National Lesbian and Gay Journalists Association. His work has appeared in the New York Times, the Village Voice, Rolling Stone and Newsweek.
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