Despite resistance from the state in which he is incarcerated, former college student and star athlete Michael Johnson may soon have another chance at justice.
An Exciting Development -- and a Possible Setback
On Dec. 20, 2016 -- in what Todd Heywood, writing for TheBody.com, called "a stunning reversal" -- Missouri's Eastern District Court of Appeals ordered that Johnson receive a new trial. Johnson, a young black gay man living with HIV, is currently in his fourth year behind bars under Missouri's harsh and outdated HIV criminalization laws. Johnson is currently 25 years old.
The court arrived at its decision based on the state's failure to introduce more than 24 hours of Johnson's recorded phone conversations from jail into evidence until it was far too late for his legal team to mount an appropriate defense. The state's violation was deemed to be "knowing and intentional," the presiding judge wrote in a scathing discussion of the prosecution's actions, "and was part of a trial-by-ambush strategy that this Court does not condone."
Members of the HIV anti-criminalization advocacy community were quick to respond to the news.
[Tweet by Barb Cardell, a leader in the successful effort to modernize Colorado's HIV-specific law.]
[Tweets by Mathew Rodriguez, who has written extensively on HIV criminalization for TheBody.com and Mic.com.]
Robert Suttle, assistant director of the SERO Project, was himself prosecuted under Louisiana's HIV criminalization statute. Hearing the news of the trial reversal, he expressed solidarity with Johnson and approval of the appeals court's decision.
"The prosecutor's blatant intent to withhold evidence just to get a conviction is an egregious abuse of power," Suttle stated in an email conversation with TheBody.com, "and clear proof that, if accused, a defendant living with HIV cannot trust their state criminal justice system to provide a fair hearing."
The website FreeMichaelJohnson.org is maintained by the Bay Area-based trans and queer direct-action group Gay Shame. The site asserts that the group is "in communication with Michael, organizing for his freedom."
"Michael Johnson's case is a reflection of anti-blackness within the state's violent criminalization of HIV-positive black gay men," said "Mary" (Gay Shame's moniker when speaking publicly) in a statement shared with TheBody.com. "With this new trial, we continue to demand his immediate release to live autonomously and within a community of care, access to better resources and stability."
The late introduction of evidence was one of two points detailed in Johnson's original appeal. The second point asserted that Johnson's 30.5-year sentence for having consensual sex in an era in which HIV is a treatable, manageable condition, is cruel and unusual punishment and violates the U.S. Constitution. That point was discussed at length in a 2016 friend-of-the-court brief filed by 22 leading HIV, LGBTQ and medical advocacy groups. The court did not touch on this second point in its decision.
[Tweets by Charles Stephens, director of the Counter Narrative Project.]
Within weeks of the reversal, attorneys for the state of Missouri contested the appeals court's decision. The state's motion requested that Johnson's appeal either be reconsidered (by a larger panel of judges) or reheard (by the same small panel that made the favorable decision), which could happen within weeks, or that it be transferred to the highest court in the state, the Missouri Supreme Court, which could take months. According to Mayo Schreiber of the Center for HIV Law and Policy (CHLP), speaking on a recent webinar updating community members on Johnson's case, the timeline is entirely up to the court. A newly updated fact sheet by CHLP details key dates in Johnson's case from his arrest to last week's motion.
An Unfair Trial
Johnson was originally convicted in July 2015 on four counts of HIV exposure and one count of HIV transmission, which is a class A felony in Missouri.
Journalist Steven Thrasher has written extensively on Johnson's case for BuzzFeed News. "His trial, held in the nearly all-white town of St. Charles, Missouri, featured a combination of race and sex that was … highly charged," Thrasher wrote following the December decision. He recounted prosecutors asking whether would-be jurors thought being gay was a choice; graphic descriptions and images of Johnson's penis were admitted as evidence.
"Other than Michael, I was the only person living with HIV who was in the courtroom the entire trial through jury selection and sentencing," Aaron Laxton, a St. Louis-based activist and blogger, told TheBody.com. "Michael did not have a jury of his peers."
"No one can argue [Johnson's alleged actions] are as severe as murder, warranting a class A felony," said Ashley Quinn, a staff member of the Missouri HIV Justice Coalition (MOHIVJC), which works to change Missouri's stigmatizing HIV criminal laws, in an email to TheBody.com. For reference, the maximum sentence for voluntary manslaughter in Missouri is 15 years -- less than half of Johnson's sentence.
Regarding Johnson's case, Quinn concluded: "Mercy must prevail."
Hope, Advocacy and Next Steps
Akil Patterson of Athlete Ally has "become true friends and brothers" with Johnson while advocating on his behalf. Shortly after the news of the reversal, Patterson spoke to TheBody.com of his excitement at the prospect of a new trial:
Hopefully this time we can get it moved out of St. Charles County where it's been tainted, and it can be moved into another jurisdiction with another judge, maybe in St. Louis, and we might have some more diversity -- and maybe there might be somebody in that audience that is living with HIV or that is LGBTQ or is more sympathetic to … the plight of anybody dealing with these outdated laws.
Patterson also expressed anger at an already unjust incarceration system: Johnson's bail was set at $100,000, cash only; he was unable to pay and spent the almost two years before his trial in jail.
"It's time for not only LGBT but also black and other organizations to step up and say, 'This is why we need justice reform in this country,'" Patterson said; "We are treating the poor as if they are automatically criminals."
The Counter Narrative Project (CNP), helmed by Charles Stephens, has been pivotal in informing and mobilizing intersectional communities, especially black gay men, in solidarity with Johnson since before his trial. Advocates on the recent webinar expressed interest in setting up a legal defense fund for Johnson; those who are interested in collaborating on that, or in getting more information as the fund is coordinated, are urged to contact Stephens.
"I also hope that this becomes an opportunity for the HIV justice movement to strengthen our efforts and build a more powerful coalition to work toward his freedom," Stephens told TheBody.com.
The fund is particularly urgent since Johnson's family cannot afford a private attorney's steep fees, noted CHLP's Schreiber. "It is possible that Michael will need an attorney in place and up to speed on his case as soon as next month, if the case goes back to the trial court," Schreiber told TheBody.com following the webinar.
Community members, and especially Missouri residents, should email Ashley Quinn to get involved in supporting Johnson's case. MOHIVJC has also provided resources for this effort, including whom to contact to send a letter to Johnson directly.
Sharing Michael Johnson's Reaction and Spirit
FreeMichaelJohnson.org features a letter from Johnson to his supporters -- a rare opportunity to hear from a person so often spoken and written about.
"I spoke to him just a few hours after the news broke," Patterson shared; "Michael sounded like he had a smile on his face from ear to ear."
On the community webinar, attendees were eager to hear news of how Johnson is holding up and how he feels now that he may get another day in court. Stephens shared that he'd received a letter from Johnson.
Schreiber also speaks with Johnson frequently on the phone; he shared on the webinar that Johnson was "ecstatic" about the recent decision.
"[Michael is] a very optimistic person," Schreiber said; "He is upset about what has happened to him and other people targeted by these laws, but he has a fine spirit."