Through his attorney, Cornealious "Mike" Anderson III filed a petition yesterday asking Governor Jay Nixon to grant him clemency or commute his prison sentence of thirteen years. Anderson is asking for relief given the fact that a clerical error prevented the state of Missouri from incarcerating him for a burglary he was convicted of back in 2000. He was finally arrested this past July (Riverfront Times broke the story in September 2013).
"My client is a beloved father of 4 beautiful young children, a husband to a devoted wife, and a well-respected small business man in St. Louis," writes Anderson's lawyer, Patrick Michael Megaro. "In the past 13 years, he has committed himself to being a productive and valuable member of society, and has proven that not only is he no danger to the community, but is a pillar of the community."
Megaro also filed an answer to Attorney General Chris Koster yesterday, harshly rebutting the AG's claim that Anderson is responsible for his situation. We spoke with Megaro to better understand Anderson's chances of receiving credit for time served or parole. The answers, like everything in this case, are complicated.
If you're unfamiliar with the saga, check out some of our previous coverage to get up to speed:
-- Original feature story -- Cornealious "Mike" Anderson: An Epilogue to the RFT Story Featured On This American Life -- Petition Asks MO Attorney General Chris Koster to Release Cornealious "Mike" Anderson
Executive clemency is the clearest path Anderson has to going home, and it may also be the longest shot. Nixon has only used this power once. By contrast, governors in other states commute sentences by the hundreds.
The other attempt Anderson is making is a writ of habeas corpus, filed against the warden of the Southeast Correctional Center where he's presently incarcerated. The warden is represented by the state, i.e. Koster. Megaro is arguing that incarcerating Anderson now is cruel and unusual punishment, and that when the state forgot about him, they forfeited their right to hold him under due process. On Monday Koster responded, saying that Anderson is at fault for not reporting himself and the judge should deny his release. Megaro filed his response to that late yesterday.
"The conditions of the bond imposed no duty whatsoever upon Petitioner other than to return to court when ordered to do so, and stay out of trouble. He fully satisfied the conditions of his bond," Megaro writes. "The record conclusively establishes by incontrovertible documentary evidence that Cornealious Michael Anderson III never hid the fact he was out on bail."
Megaro says that he spoke to Koster before the AG filed his response on Monday urging that Anderson not be released. Megaro says he believes Koster is taking this position "grudgingly."
"I got the distinct impression that as a human being he does not believe Mike should be in prison. That being said, he has a job to do," says Megaro. "He has a duty as a lawyer to do what his client wants him to do. You have to advocate positions you may not personally agree with."
Megaro says they also discussed the door Koster seems to have propped open for Anderson to be eligible for parole. In his response on Monday, Koster wrote that potentially, Anderson could sue the director of the corrections system asking that his 11.5 years free be counted as "time served" because he was out erroneously. If that happened, he'd be up for parole immediately. Initially, this seemed like hopeful news.
"It's not a legally viable option. I looked into the case law," says Megaro. "He was not erroneously released, he was properly released...everyone is trying to make a square peg fit into a round hole."
In his filing, Megaro counters that the judge could achieve the "functional equivalent" of what Koster is suggesting by granting the writ of habeas corpus -- but under the condition that Anderson get credit for 11.5 years as time served. He could not simply go home. After that, his fate would be up to the powerful and independent parole board.
Asked for response to Megaro's latest filing, Koster's spokesman sent Daily RFT this statement:
My goal is to suggest a way for the court to appropriately balance the seriousness of Mr. Anderson's crime with the clerical error made by the criminal justice system, alongside Mr. Anderson's conduct since his commission of the crime. All three factors deserve recognition in resolving this difficult situation. -- AG Koster
Then again, Megaro points out, now that the petition for clemency is filed, Nixon could simply commute the sentence.
"That may be the face-saving measure," he says. "All I have to do is convince the governor."
Read Megaro's full response below and beneath that the petition for clemency (with personal information and names of references redacted):