IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI ex rel.,

ERIC SCHMITT,

Relator,

v.

THE HONORABLE KEVIN 

HARRELL, CIRCUIT JUDGE OF 

JACKSON COUNTY,

Respondent.

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WD84772

FILED: September 7, 2021

Original Proceeding on Petition for Writ of Prohibition

Before Writ Division: Thomas N. Chapman, P.J., and

Alok Ahuja and W. Douglas Thomson, JJ.

On September 1, 2021, Missouri Attorney General Eric Schmitt filed an 

Emergency Petition for Writ of Prohibition in this Court, naming Judge Kevin 

Harrell of the Circuit Court of Jackson County as Respondent. The Attorney 

General’s petition asked this Court to prohibit Respondent from holding an 

evidentiary hearing on the morning of September 2 on the motion of the Jackson 

County Prosecutor to vacate the murder convictions of Kevin Strickland.

This Court entered an order on the afternoon of September 1, which directed 

Respondent to vacate the notice of the September 2 hearing, and consider the 

motions filed by the Attorney General to continue the hearing and for other relief. 

As permitted by Supreme Court Rule 84.24(k), this Court did not issue a formal 

opinion on September 1 due to the exigent circumstances. We now issue this 

opinion to explain the basis for the writ relief we granted on September 1.
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Factual Background

On March 2, 1979, Kevin Strickland was indicted in the Circuit Court of 

Jackson County for three counts of murder based on the shooting deaths of three 

individuals in Kansas City on April 25, 1978. Case No. 16CR79000361. Following a 

four-day trial, a jury found Strickland guilty of one count of capital murder, and two 

counts of second-degree murder. On June 29, 1979, the circuit court sentenced 

Strickland to life imprisonment without possibility of parole for fifty years for 

capital murder, and to ten years’ imprisonment for each of the second-degree 

murder convictions. The sentences were ordered to run concurrently.

Strickland has been continuously incarcerated since his convictions in 1979.

At its most recent legislative session, the Missouri General Assembly enacted 

§ 547.031, RSMo. See S.B. 53 & 60, 101st Gen. Assembly, 1st Reg. Session (2021). 

Section 547.031.1 permits a prosecuting or circuit attorney to “file a motion to 

vacate or set aside the judgment [of conviction] at any time if he or she has 

information that the convicted person may be innocent or may have been 

erroneously convicted.”

Section 547.031, RSMo became effective on Saturday, August 28, 2021. On 

the same day, the elected Prosecutor of Jackson County, Jean Peters Baker, filed a 

Motion to Set Aside Strickland’s murder convictions under the statute. The 

Prosecutor’s Motion alleged that Strickland’s convictions were based on a single 

eyewitness’ mistaken identification, which the witness had subsequently recanted. 

The Prosecutor’s Motion to Set Aside was docketed in Strickland’s original criminal 

case.

The Attorney General’s writ petition alleges that his office received notice of 

the Prosecutor’s Motion on Monday, August 30. On the same day, the Attorney 

General filed two motions in the circuit court: a motion to transfer the Prosecutor’s 

Motion to a new civil case; and a motion to recuse all judges of the 16th Judicial 
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Circuit from presiding over the Prosecutor’s Motion, based on comments concerning 

Strickland’s innocence attributed to the court’s Presiding Judge. 

Also on August 30, the Circuit Court set the Prosecutor’s Motion for hearing 

three days later: on Thursday, September 2, 2021, at 8:30 a.m. The Court advised 

counsel that it would announce its ruling on the Motion at 10:30 a.m. on Friday, 

September 3.

On August 31, 2021, the Attorney General filed a third motion, to continue 

the September 2, 2021 hearing. The continuance motion alleged that the circuit 

court had set the Prosecutor’s Motion for hearing before the Attorney General had 

received notice of the filing of the Motion. The Attorney General contended that his 

office required additional time to prepare for the hearing, including to investigate, 

conduct discovery, and subpoena witnesses.

Also on August 31, the Jackson County Prosecutor filed a Motion to Strike 

the Attorney General’s filings, contending that the Attorney General was not a 

party to the proceeding, and therefore had no right to file motions with the court. 

The circuit court granted the Motion to Strike on the same day. The court 

concluded that § 547.031.2, RSMo only “gives the Attorney General the right to 

appear, question witnesses, and make arguments in a hearing on a motion to vacate 

or set aside the judgment,” but that “[t]he statute does not confer on the Attorney 

General the right to file any motions or any rights outside of the hearing.” Based on 

the court’s order granting the Motion to Strike, the court refused to consider the 

Attorney General’s motion for a continuance of the September 2, 2021 hearing.

Having failed to obtain relief from the circuit court, the Attorney General 

filed his Emergency Petition for Writ of Prohibition in this Court on September 1. 

We granted partial relief in an order entered on the afternoon of September 1. We 

ordered: that the circuit court vacate its notice of hearing for September 2; that the 
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court vacate its order striking the Attorney General’s motions, and address those 

motions on the merits; and that the court reset the Prosecutor’s Motion for hearing

at a time which would permit all participants a reasonable opportunity to prepare, 

considering Strickland’s substantial interest in a prompt disposition, and the 

participants’ familiarity with the relevant factual and legal issues based on their 

involvement in prior litigation.

Discussion

This Court has the authority to issue and determine original 

remedial writs. Mo. Const. art. V, sec. 4.1. A writ of prohibition may 

issue to: (1) “prevent the usurpation of judicial power when a lower 

court lacks authority or jurisdiction;” (2) “remedy an excess of 

authority, jurisdiction or abuse of discretion where the lower court 

lacks the power to act as intended;” or when (3) “a party may suffer 

irreparable harm if relief is not granted.” 

State ex rel. Woodco, Inc. v. Phillips, 603 S.W.3d 873, 875 (Mo. 2020) (quoting State 

ex rel. Strauser v. Martinez, 416 S.W.3d 798, 801 (Mo. 2014)).

As noted above, § 547.031.1, RSMo permits a prosecuting or circuit attorney 

to file a motion to set aside a criminal conviction “if he or she has information that 

the convicted person may be innocent or may have been erroneously convicted.” 

The statute also specifies that, if such a motion is filed, “[t]he attorney general shall 

be given notice of hearing of such a motion by the circuit clerk and shall be 

permitted to appear, question witnesses, and make arguments in a hearing of such 

a motion.” § 547.031.2, RSMo. In striking the Attorney General’s motions in this 

case, the circuit court held that “[t]he statute does not confer on the Attorney 

General the right to file any motions or any rights outside of the hearing” itself. We 

disagree.

Section 547.031.2 expressly grants the Attorney General the right to 

participate in the hearing on the Prosecutor’s Motion. A common-sense reading of 

the statute requires that the Attorney General be permitted to file motions relating 
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to his ability to meaningfully participate in that hearing. 

The purpose of statutory construction is to determine the intent of the 

legislature. In arriving at that intention, the objectives of the act are 

to be considered, and the construction must be reasonable and logical 

and give meaning to the statutes. 

State ex rel. Rhodes v. Crouch, 621 S.W.2d 47, 49 (Mo. 1981) (citations omitted). 

In Rhodes, the Missouri Supreme Court held that rural electric cooperatives 

had authority to enter private property to conduct surveys incident to the exercise 

of their statutory power of eminent domain. Id. at 48-49. The Court reached this 

result even though the relevant statutes did not expressly give cooperatives a right 

to conduct pre-condemnation surveys, but granted that right to other entities. Id. 

The Court reasoned that, “[i]n this context, it would make little sense that the 

legislature would grant the power of eminent domain to an entity and at the same 

time deny the entity the means required to use the grant.” Id. at 49.

The same is true here. It would make little sense to permit the Attorney 

General to appear and participate in the hearing on the Prosecutor’s Motion to Set 

Aside Strickland’s convictions, yet deny the Attorney General the right to file 

motions which relate to the manner in which that hearing will be conducted (e.g., on 

what schedule, and before what decisionmaker). Moreover, because § 547.031.2, 

RSMo grants the Attorney General the explicit authority to “appear” and “make 

arguments” at the hearing, the Attorney General would presumably be entitled to 

register objections to the manner in which the hearing is being conducted at the 

hearing itself. We fail to see why the Attorney General should be denied the right to 

file such motions before the hearing commences. Finally, the literal reading of the 

statute espoused by the Prosecutor would lead to absurd results. While § 547.031 

may be silent concerning the Attorney General’s right to file pre-hearing motions, 

the statute also gives no one the explicit authority to call witnesses at the 

evidentiary hearing. And, although the statute expressly authorizes the Attorney 
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General to “question witnesses,” it does not by its terms give this right to the 

prosecuting or circuit attorney who filed the motion. The legislature plainly 

contemplated that the participants in the evidentiary hearing would be entitled to 

call witnesses, and that the prosecuting attorney, like the Attorney General, would 

have the authority to examine those witnesses. In like measure, we believe it 

necessarily follows that the Attorney General has the right to file motions relating 

to the conduct of the evidentiary hearing in which he is statutorily authorized to 

participate, and to have those motions decided on their merits. Our September 1 

order accordingly directed the circuit court to decide the Attorney General’s pending 

motions.

In our order, we also concluded that the circuit court had erred by setting the 

hearing on the Prosecutor’s Motion for September 2, 2021, on only three business 

days’ notice. Our order noted that § 547.031.3, RSMo requires that, in ruling on the 

Prosecutor’s motion, “the court shall take into consideration the evidence presented 

at the original trial or plea; the evidence presented at any direct appeal or postconviction proceedings, including state or federal habeas actions; and the 

information and evidence presented at the hearing on the motion.” Our order 

stated:

This Court appreciates the significant public interests involved 

in this proceeding, and the Circuit Court’s efforts to resolve this 

proceeding swiftly. Nevertheless, in order to permit the Attorney 

General to meaningfully participate in the hearing, he must be given 

notice sufficient to allow his office a reasonable opportunity to prepare 

for the hearing, given the extensiveness of the relevant record, and the 

complexity and gravity of the issues involved. Scheduling a merits 

hearing on three days’ notice, on a motion to vacate a conviction of 

multiple murders, fails to give the Attorney General a meaningful 

opportunity to prepare for, and participate in, the hearing.

We directed the court to consult with the participants, and to reset the 

matter for hearing at a time which would provide all participants a reasonable 
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opportunity to prepare. We advised the circuit court that, in resetting the hearing, 

it should consider Strickland’s substantial interest in a prompt resolution, and the 

extent to which the participants were already familiar with the relevant factual and 

legal issues due to their involvement in prior related litigation or otherwise.

Section 547.031.2, RSMo expressly requires the circuit clerk to notify the 

Attorney General of any hearing on a prosecutor’s motion to set aside a criminal 

conviction. It has long been recognized that the purpose of such notice “is to apprise 

the affected individual of, and permit adequate preparation for, an impending 

‘hearing.’” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14 (1978) 

(emphasis added; footnote omitted). While the circuit court should seek to resolve 

motions filed under § 547.031, RSMo as promptly as possible, the court must also 

permit all hearing participants sufficient time to prepare.

Alok Ahuja, Judge

All concur.