By Rebecca Rivas
The execution of Johnson, who was convicted in 2007 of killing a police officer, will be carried out during the 24-hour period beginning at 6 p.m. Tuesday barring an extraordinary intervention.
(Photo- The Missouri Supreme Court building in Jefferson City- photo courtesy of FLICKR/David Shane, licensed under CC BY 2.0).
The Supreme Court held an expedited hearing Monday for oral arguments for two motions to stay Johnson’s execution, in order for a circuit judge to hold a hearing on alleged constitutional violations in his original trial.
In a 5-2 decision issued just before 10 p.m., the court ruled that the issues raised by Johnson’s attorneys had been considered in past appeals.
“This court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be,” the ruling, which is not signed, stated.
A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.
Once the motions are filed, judges are required by law to hold hearings to review the evidence.
While the majority opinion was not signed, Judge Patricia Breckenridge wrote in a dissent that the new law was unambiguous in requiring a hearing at the circuit court level, which was denied.
And Breckenridge wrote that special prosecutor Edward Keenan, who is seeking the hearing, has shown a likelihood of proving racial bias in the original decision to seek the death penalty.
“I would find that, on this claim, the special prosecutor has shown a probability that he will succeed in establishing a constitutional error that undermines confidence in the judgment,” Breckenridge wrote.
Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction, filed one of the two motions considered Monday.
“All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the court.
Missouri Gov. Mike Parson issued a statement just after the hearing concluded, saying he will not grant clemency because Johnson’s case has been reviewed by both state and federal courts.
“The violent murder of any citizen, let alone a Missouri law enforcement officer, should be met only with the fullest punishment state law allows,” Parson stated.
During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.
State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.
On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.
Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”
State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”
Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.
“The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing. “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”
A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.
The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.
“It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office. “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”
The court majority agreed.
“Here, there is nothing in the special prosecutor’s motion to vacate Johnson’s conviction showing directly that any charging decision with respect to Johnson was motivated by racial animus,” the opinion states.
When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005. The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder. However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.
Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.
Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court. Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.
However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”
On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.
Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.
Of the five police-officer killings McCulloch prosecuted during his tenure, Keenan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.
Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.
Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.
Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.
“The fact of the matter is that cases can be pending while an execution proceeds,” Crane said. “And the prosecutor, even if he had the right to bring a motion — which I don’t think anyone disputes here — that doesn’t entitle him to a stay of execution. A stay of execution is an extraordinary remedy.”
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