CHLP Deputy Director Mayo Schreiber recently authored an article on Michael Johnson's case for the March edition of the Psychology and AIDS Exchange newsletter from the American Psychological Association. This issue is dedicated to exploring the issue of criminalization of HIV exposure and transmission, and highlights the APA’s commitment to decriminalizing HIV.
An update on the prosecution, conviction and appeal of Michael Johnson
By Mayo Schreiber Jr.
Like many other college students in the United States, Michael Johnson, a black man in his early twenties, had consensual sexual intercourse with several similarly aged partners. Unlike nearly all other college students also exploring their sexuality, after a criminal trial he was sentenced to 30 years in prison for this activity. See State of Missouri v. Michael L. Johnson, Case No. 1311-CR05915-01 (Criminal Court for the 11th Judicial Circuit, St. Charles County, Missouri). This is one of the harshest sentences imposed in the United States for a first-time offender of a HIV exposure/transmission statute. This article explores how and why a promising, hardworking, young man’s life could be so shattered by a trial court decision in America in 2015, and offers factual support for the APA’s “Resolution Opposing HIV Criminalization,” while providing an update on the case.
Johnson, born in 1991, is the youngest of five children of a single mother who worked long hours and struggled financially to support her children. He grew up in Indianapolis. As a child and adolescent, Johnson excelled in sports and was determined to do well in school despite the challenges of dyslexia and a learning disability.1 Johnson graduated from high school in Indianapolis in 2010.2 That year he won the Indiana State High School Wrestling Individual Championship for his weight class and was named Indiana’s Athlete of the Year.3 Johnson earned his associate degree in the spring of 2012 from Lincoln College, and was accepted at and attended Lindenwood University in St. Charles, Missouri. He was a star athlete on the university’s wrestling team. In the sentencing memorandum submitted by his attorney, his high school coach described him as “respectful and obedient,” a team member who “would help clean mats, set up for meets and help other team members get ready for competition.” One of his professors noted that, despite his learning disabilities, he was “eager to succeed” and was “prompt, attentive and hard working.”4
Johnson was arrested in October 2013 on charges that he had violated Missouri’s criminal HIV transmission/exposure statute. He did not have a criminal record.5 The pertinent sections of the statute state that it is unlawful for any individual knowingly infected with HIV to act in a reckless manner6 by exposing another person to HIV without the knowledge and consent of that person to be exposed to HIV through contact with semen in the course of oral or anal sexual intercourse Mo. Rev. Stat. §191.677. A violation of the statute resulting in HIV exposure is a class B felony; if HIV transmission has occurred, it is a class A felony Mo. Rev. Stat. §191.677(2). Use of a condom during sexual activity is not a defense to the charges Mo. Rev. Stat. §191.677(4).
The Missouri statute was originally passed in 1988, at a time when infection meant debilitating symptoms and rapid decline ending in death for many people with the disease. This was a time of “near hysteria about the disease in certain quarters.” The statute has been revised on two occasions, 1997 and 2002, becoming more severe and irrational.7 This may reflect continuing public ignorance (and presumed fear) about the disease.8
Nevertheless, as is well known by scientists and the medical establishment, now and in 2013, while incurable (like human papillomavirus or herpes), HIV is a treatable and manageable disease, and a 20 year-old with HIV who is on antiretroviral medication living in the United States has a life expectancy into his or her early 70’s, a life expectancy that approaches that of 20 year-old without HIV in the general population.
Johnson was charged with three counts of recklessly exposing another person to HIV without consent and three counts of attempting to recklessly expose another person to HIV without consent.9 The charges resulted from consensual sexual activity with six young men, several of them students at Lindenwood University. Johnson met four of the men on social “hook-up” apps, Grindr and Jack’d. At trial, the complainants testified that Johnson had not advised them he was HIV positive; Johnson testified that he had advised them. There was no evidence at trial that Johnson intended to transmit HIV to his sexual partners.
The residents of St. Charles County, where the trial was held, are overwhelmingly white and have the reputation of being very conservative.10 At one point, while questioning potential jurors, the prosecutor commented “the wages of sin is death.”11
During the trial, the prosecutor subtly endorsed aspects of homophobia, fear of contagion of both a “gay” disease to heterosexuals and all residents of the county. He told the jury in his summation that he intentionally included prospective jurors who considered “gay sex is a sin,”12 and he offered personal support for this view: “[t]hey have a lifestyle that I don’t understand, that many of us don’t understand.”13 At the conclusion of his summation, he told the jury: “[a]nd if you think you can take consolation by the fact that someone isn’t gay, think again. One of the men he had sex with didn’t want to come forward because he didn’t want to tell his wife. We’re all in this together. That’s why this is a crime. That’s why our legislature decided to make it a crime.”14 He also stated: “there is an entire county that was put at risk by his activity and that is exactly why our legislature has made this illegal.”15
The case was heard over five days16 and the jury deliberated for slightly more than two hours and found Johnson guilty of five of the six counts.17 According to testimony at trial, only one of the men in those five counts tested positive for HIV after the dates they testified they had sex with Johnson.18 Defendant’s medical expert testified that it would be difficult, if not impossible to say with certainty that Johnson gave that complainant HIV.19 After finding Johnson guilty of five of the six counts, the jury recommended sentences of 30 years in prison for Count I, five-and-a-half years for Counts III, IV, and V, and 14 years in prison for Count VI.20 The trial court imposed the jury’s recommended sentence and ordered that they run concurrently for 30 years.21
In comparison, a conviction for other class A felonies, like the one for which Johnson was convicted, include murder in the first degree, Mo. Rev. Stat. §565.020, and infanticide, §565.300.2. Class B felonies in Missouri include, for example, robbery in the second degree, §569.030; and arson, §565.040.2. The disparities between the criminal activity in these statutes and that for which Johnson was convicted are enormous.
Johnson’s trial counsel filed a motion for acquittal or in the alternative a motion for a new trial, which was denied on July 13, 2015.22 Trial counsel filed a notice of appeal on July 17, 2015.23 Johnson’s appellant’s brief in the Missouri Court of Appeals, Eastern District, was filed by his appellate counsel on April 21, 2016, raising three arguments, two procedural and one that he received a disproportionate sentence in violation of the Eighth Amendment. The State’s opposing brief was filed on Aug. 15, 2016.24
There was significant media coverage of Johnson’s conviction in a number of thoughtful articles and op-ed pieces on the case.25 In response to the prosecution, trial and conviction, The Center for HIV Law and Policy, a national resource and advocacy organization working to advance the rights of people affected by HIV, spearheaded the drafting and filing of a friend-of-the-court brief in support of Johnson.26 Twenty-two social justice, LGBT, HIV, medical and social service organizations and one individual, representing a broad cross-section of local and national perspectives, signed onto the brief,27 arguing that Missouri’s unjust criminal HIV exposure and transmission statute should be invalidated and Johnson’s conviction and sentence voided. Four arguments were made in the amicus brief: (1) the statue violates the Constitutional Guarantee of Equal Protection, (2) the statute violates the right to privacy of personal medical information, (3) the statute violates prohibitions against discrimination on the basis of disability; and (4) the statute violates Mr. Johnson’s Eighth Amendment right against Cruel and Unusual, Disproportionate Sentencing.
In an opinion filed on Dec. 20, 2016, the Missouri Court of Appeals reversed the judgment of the trial court and remanded for a new trial.28 The court found that the trial court abused its discretion on Johnson’s first point of appeal, and did not reach the constitutional and federal disability arguments raised in Johnson’s second point and in the amicus brief. The court based its decision on the finding that the state’s disclosure of jailhouse telephone recordings on the first day of trial rendered his trail fundamentally unfair, as it was “knowing and intentional and was part of a trial-by-ambush strategy.”
On, Jan. 4, 2017, attorneys for the State of Missouri filed a motion asking the court to reconsider its decision. The state does not directly dispute that the disclosure was untimely, but argues that the court misapprehended the record and that a discovery violation did not occur. A decision on the motion should come from the Court of Appeals within a month.29
1 Sentencing hearing, July 13, 2015 (hereafter “SH”), at 27 in State of Missouri v. Michael L. Johnson, Case No. 1311-CR05915-01 (Criminal Court for the 11th Judicial Circuit, St. Charles County, Missouri).
2 SH at 26.
3 SH at 26-27.
4 Sentencing Submission of Defendant Michael L. Johnson in State of Missouri v. Michael L. Johnson, Case No. 1311-CR05915-01 (Criminal Court for the 11th Judicial Circuit, St. Charles County, Missouri).
5 SH at 23.
6 To prove “recklessness” under the statute, the prosecution must only prove “(1) [defendant] knew of his intention before he had sexual activity with the [victim]; and (2) [victim] was unaware that [defendant] was HIV positive . . .” State v. Wilson, 256 S.W.3d 58 (Mo. banc 2008) (citing Mo. Rev. Stat. §191.677.1(2)(a)).
7 Punishment was increased from a D felony to an A felony, and requirement of individual culpability was diminished, making it more of a “strict liability” statute. See 1988 Mo. HB 1151; 1997 Mo. SB 347; and 2002 Mo. HB 1756.
8 The Washington Post/Kaiser Family Foundation 2012 Survey of Americans on HIV/AIDS, July 2012 at 3 found that 34% of Americans had one of the following misconceptions, or did not know if, HIV could be spread from a drinking glass, a toilet seat or a swimming pool with a person with HIV. Retrieved from https://kaiserfamilyfoundation.files.wordpress.com/2013/01/8334-t.pdf (PDF, 284KB).
9 Respondent’s Brief, State of Missouri v. Michael L. Johnson, No. ED103217 (Missouri Court of Appeals Eastern District).
10 To the extent that racism, homophobia, and politics possibly were factors in the prosecution, conviction and sentence, this writer does not explore herein; other than to note the differences between the complainants, jury, prosecutor, court and defendant appear for the most part to have been very broad (of the complainants apparently two of the six were black and four were white; of the jurors, all twelve identified as heterosexual, one juror was black and eleven were white, see, e.g., A Black Body on Trial: The Conviction of HIV-Positive “Tiger Mandigo,” (Retrieved from https://www.buzzfeed.com/steventhrasher/a-black-body-on-trial-the-conviction-of-hiv-positive-tiger-m?utm_term=.ucWPleqvD#.cjmrL0AJ2) by Stephen Thrasher, Buzzfeed, November 30, 2015); moreover, as is well documented, racial disparities pervade the U.S. criminal justice system: “[r]acial minorities are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences. African-American males are six times more likely to be incarcerated than white males . . . If current trends continue, one of every three black American males born today can expect to go to prison in his lifetime . . . The source of such disparities is deeper and more systemic than explicit racial discrimination. The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and minorities.” Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System (Retrieved from http://sentencingproject.org/wp-content/uploads/2015/12/Race-and-Justice-Shadow-Report-ICCPR.pdf [PDF, 858KB]), August 2013 at 2.
Other organizations and writers have explored some of these issues in Michael Johnson’s case. In addition to the above-referenced article, see, e.g., “We Stand With Michael Johnson: HIV Is Not A Crime,” (Retrieved from http://www.preventionjustice.org/we-stand-with-michael-johnson-hiv-is-not-a-crime/) by Suraj Madoori, May 15, 2015, HIV Justice Prevention Alliance; “Organizational Sign-On Statement in Response to Michael Johnson Sentencing,” (Retrieved from http://www.thecounternarrative.org/cnpblog-archive/?offset=1443409007000) The Counter Narrative Project, July 15, 2015; “Dismantling the Clinic-to-Prison Pipeline: Race, Justice and the Rise of Intersectional HIV Leadership,” (Retrieved from http://www.thebody.com/content/78778/dismantling-the-clinic-to-prison-pipeline-race-jus.html) by Charles Stephens, Nov. 15, 2016, The Body.
11 Trial Transcript (hereinafter “TT”), May 11, 2015, Vol. 1 at 71 in State of Missouri v. Michael L. Johnson, Case No. 1311-CR05915-01 (Criminal Court for the 11th Judicial Circuit, St. Charles County, Missouri).
12 TT, May 14, 2015, Vol. 4 at 707.
13 Id. at 711.
14 TT, May 15, 2015, 2015, Vol. 5 at 773.
15 TT, May 14, 2015, Vol. 4 at 707.
16 SH at 3.
17 TT, May 15, Vol. 4 at 720.
18 TT, May 12, 2015, Vol. 2 at 280, 286 and 321-22; and May 13, 2015, Vol. 3 at 364 and 403.
19 TT, May 14, 2015, Volume 4 at 549-550.
20 TT, May 15, 2015, Vol. at 782-83.
21 SH at 28-29.
22 SH at 4.
23 Docket entry in Missouri Case.net in “ED103217 — State of Missouri, RES v. Michael L. Johnson, APP,” available at: https://www.courts.mo.gov/casenet/base/welcome.do.
25 See, e.g., The Reckless Prosecution of “Tiger Mandigo,” (Retrieved from https://www.thenation.com/article/reckless-prosecution-tiger-mandingo/) by Rod McCullum in The Nation, May 29, 2015; “Michael Johnson Conviction Shows Fear Spreads Faster Than HIV,” (Retrieved from http://www.nydailynews.com/opinion/errol-louis-michael-johnson-trial-fear-faster-hiv-article-1.2227075) by Errol Louis, The New York Daily News, May 15, 2015.
26 The brief was drafted by The Center for HIV Law and Policy, the national law firm, Gibbons P.C., and The ACLU of Missouri Foundation, the latter two providing pro bono assistance. The ACLU of Missouri Foundation serves as local counsel.
27 The Amici Curiae are: AIDS Law Project of Pennsylvania, American Academy of HIV Medicine, American Civil Liberties Union of Missouri Foundation, Athlete Ally, Black AIDS Institute, Center for Constitutional Rights, Center for HIV Law and Policy, Counter Narrative Project, Jeffrey Birnbaum, MD, Empower Missouri, GLBTQ Legal Advocates & Defenders, GLMA: Health Professionals Advancing LGBT Equality, Grace, Human Rights Campaign, Missouri AIDS Task Force, National Alliance of State and Territorial AIDS Directors, National Black Justice Coalition, National Center for Lesbian Rights, National LGBTQ Task Force, One Struggle KC, Treatment Action Group, William Way LGBT Community Center and Women With A Vision.
28 Docket entry in Missouri Case.net in “ED103217 — State of Missouri, RES v. Michael L. Johnson, APP,” available at: https://www.courts.mo.gov/casenet/base/welcome.do.
29 Docket entry in Missouri Case.net in “ED103217 — State of Missouri, RES v. Michael L. Johnson, APP,” available at: https://www.courts.mo.gov/casenet/base/welcome.do.
Mayo Schreiber, Jr. is an attorney and the deputy director of the Center for HIV Law and Policy (CHLP), a national resource and advocacy organization based in New York, working to advance the rights of people affected by HIV. Before joining CHLP, he was in private practice as a federal criminal defense attorney. Previously he was a pro se law clerk at the United States Court of Appeals for the Second Circuit. He was also a monitor to the Honorable William Wayne Justice, chief judge, United States District Court, Eastern District of Texas, in Ruiz v. McCotter, a case involving confinement conditions for all prisoners incarcerated by the state of Texas. He earned his A.B. degree from Oberlin College and his J.D. from Northeastern University School of Law. He lives with his husband in New York City.