The state of Missouri plans to execute Kevin Johnson on Tuesday, November 29, for a crime he committed when he was 19 years old. It wants to do so even though his defense lawyer and a special prosecutor, who was appointed in October by a Missouri trial judge to review the Johnson case, agree that unconstitutional racial bias played a crucial role in the handling of his case.
Such agreement is quite unusual in the intensely adversarial world of capital litigation where prosecutors and defense lawyers seldom see eye-to-eye on almost anything.
On Monday, the Missouri Supreme Court will listen to oral arguments in which both sides will ask that Johnson’s execution be postponed until a trial court can hold a hearing on the allegations about racism.
It will have to confront a question that continues to plague America’s death penalty system: is finality and getting on with the business of state killing more important than preventing a manifest injustice?
As Kevin Johnson’s lawyer, Shawn Nolan, notes, “Civilized countries don’t execute people based on the color of their skin, but that is what the State of Missouri is about to do. We have a special prosecutor, who is prepared to argue in court that everything about this prosecution reeked of racism. All we need is a court willing to hear this case.”
Nolan is right that “Any rational court would put a stop to this execution.” That is what the Missouri Supreme Court should do.
The special prosecutor, Edward Keenan, acting under a 2021 Missouri law authorizing him to file a motion to vacate a judgment “at any time” if he has information that a convicted person may have been “erroneously convicted,” agrees with Nolan. His agreement constitutes the state’s own confession of error.
As Keenan put it in his motion asking the state supreme court to vacate the judgment in Johnson’s case, the evidence “clearly and convincingly shows that improper racial factors played a substantial role throughout the process—in the prosecutor’s selection of defendants for first degree prosecution, the decision to seek a death sentence, and in the selection of jurors ultimately tasked with determining guilt and sentence.”
Keenan is urging the court to act under a state law requiring that judgments should be set aside when judges find “constitutional error at the original trial of plea that undermines the confidence in the judgment.”
Neither the special prosecutor nor the defense contends that Johnson is innocent of the crime for which he was sentenced to death.
The facts of that crime are undeniably tragic.
According to The Missouri Independent, “On the evening of July 5, 2005, police officer William McEntee and others entered a family residence to serve a warrant. During the search, Johnson’s 12-year old brother, Joseph Long, suffered a seizure and collapsed…. Johnson watched the officers ignore his brother’s obvious medical distress, stepping over his limp body several times but never getting him help. Officers even prevented Long’s mother from entering the house to help.” As a result, Joseph died.
Two hours later, “McEntee came back to Johnson’s neighborhood responding to a report of fireworks. A chance encounter with Johnson ensued. Emotionally distraught and overwhelmed, Johnson said, ‘you killed my brother,’ before shooting officer McEntee multiple times.”
But even guilty people have rights in this country, including the right to equal treatment under the law.
From the start of his case, Johnson was denied that right.
Despite the extenuating circumstances surrounding Officer McEntee’s death, the St. Louis County prosecutor’s office charged Johnson with first degree murder instead of some lesser offense and sought the death penalty.
The special prosecutor’s motion notes that during the tenure of Robert McCulloch, who was St. Louis County’s prosecuting attorney at the time of Johnson’s arrest, five people were charged in cases where a police officer was killed. Four of the defendants, including Johnson, were Black, and one was White.
McCulloch sought the death penalty against all of the Black defendants but not the White one, even though the latter had bragged on social media about his desire to shoot police officers.
In other evidence of racial disparity, McCulloch invited the White defendant’s lawyer to submit any evidence as to why McCulloch should not ask for the death penalty in advance of his charging decision. He issued no such invitation to any of the lawyers of the Black defendants.
Johnson was tried twice for first-degree murder in the McEntee killing. The first trial ended in a mistrial when jurors could not agree on whether he should be convicted of second-degree or first-degree murder.
In advance of that trial, the prosecutors developed a strategy to get around the requirements of the United States Supreme Court’s 1986 Batson v Kentucky decision. In Batson, the Court found that prosecution attempts to exclude Black jurors from serving in death penalty cases were unconstitutional.
Following that strategy, McCulloch’s office decided not to use all their peremptory challenges in the hope that the trial judge would eliminate Black jurors without those jury strikes counting against the prosecution. But the trial judge did not go along with their plan, and the jury in Johnson’s first trial was composed of six Whites and six Blacks.
But McCulloch’s efforts to exclude Black jurors from sitting on the jury in Johnson’s case did not end there. Before Johnson’s second trial, prosecutors again worked on ways to eliminate Black jurors. This time they succeeded in reducing the number of Black jurors; only three were seated.
Tellingly, the special prosecutor, not just the defense, has presented these facts to the state supreme court for its consideration.
Racial discrimination of the kind documented in Johnson’s case was not just a problem when the St. Louis prosecutor dealt with people who killed police officers. Professor Frank Baumgartner, a renowned death penalty expert, studied more than four hundred death-eligible cases handled by McCulloch’s office.
The results are disturbing but not surprising.
Baumgartner found substantial race-of-victim effects at every stage of the capital prosecution process during McCulloch’s time in office. The death penalty was used at a rate 3-4 times higher when the victim was White than in cases with Black victims. And Baumgartner reports that the race-of-victim effects could not be attributed to any “legitimate case characteristics.”
The problem of racial bias is not limited to one prosecutor or one jurisdiction in Missouri.
Since 1976, the state has put 92 people to death. An earlier study by Baumgartner found that from 1976 to 2014, over 81% of the people executed in Missouri were convicted of killing Whites even though they made up less than 40% of all murder victims in the state.
As Baumgartner explained, “Homicides involving White victims are seven times more likely to result in an execution than those involving Black victims.”
Such discrimination is a shameful and well-documented part of the death penalty system wherever capital punishment has been used in this country.
But, even when there is compelling evidence of racial prejudice in capital cases, courts, including the United States Supreme Court, have often been impatient and hostile to late-stage appeals like the one the Missouri Supreme Court will hear in Johnson’s case.
Thus it is not surprising that the U.S. Supreme Court refused to intervene on his behalf last week. And Missouri’s Republican Governor Mike Parson has promised that in Johnson’s case “everything will go on forward as scheduled.”
It is now up to the Missouri Supreme Court to defend the Constitution. It should do what both Johnson’s defense lawyer and the state’s special prosecutor are asking it to do and halt his execution so that the issues they have raised can be thoroughly vetted.
As his defense lawyer puts it, that court must stop “one arm of the state (the executive)…. (from) rushing to execute… (Johnson) in order to prevent another arm of the state (the special prosecutor) from having its findings of racial bias and discrimination heard in court.”
If the execution goes forward as planned because the state supreme court fails to act, that court will come perilously close to acquiescing in a lynching.