Kevin Johnson, who is on death row for the murder of Kirkwood police officer William McEntee, will be executed tomorrow as planned. The Missouri Supreme Court ruled Monday not to delay the execution.
The court’s majority decision comes just hours after a last-ditch effort to save Johnson’s life. On Monday, barely more than 24 hours before Johnson was scheduled to be executed, the court heard oral arguments on whether Johnson’s execution should be delayed to consider claims that racial bias played a part in his prosecution.
The court considered two motions to delay Johnson’s execution, one filed by a court-appointed special prosecutor and another by Johnson’s lawyers. Two weeks ago, special prosecutor E.E. Keenan moved to vacate Johnson’s execution after an extensive investigation led Keenan to believe Johnson’s conviction and judgment were influenced by racial bias.
Johnson had gone through numerous appeals, however. And Supreme Court justices on Monday wrote that nothing the special prosecutor wrote altered claims previously made in court.
“No, there is simply nothing here that Johnson has not raised (and this court has not rejected) before and, even if there were, Johnson offers no basis for raising any new or re-packaged versions of these oft-rejected claims at this late date,” the court’s majority opinion reads.
Monday's hearing was Johnson’s last opportunity for a reprieve. Almost immediately after the Supreme Court’s hearing ended Monday, Governor Mike Parson told the press he would not grant Johnson clemency.
“We are incredibly disheartened by the Missouri Supreme Court’s denial of a stay for Mr. Johnson and the court’s complete disregard for the law in this case,” Shawn Nolan, one of Johnson’s lawyers, said.
Nolan said he and his team will "immediately" appeal to the U.S. Supreme Court.
Whether Johnson’s execution should be delayed rested on interpretation of a new state statute. The statute took effect last August and provides prosecutors an avenue to intervene in cases they believe ended in wrongful convictions. Johnson’s is the first death penalty case in which the statute was in use.
The Supreme Court was weighing whether Johnson’s execution should be delayed so a hearing could be held to discuss Keenan’s investigation. Keenan and Johnson’s lawyers believe Missouri law required a hearing. The state Attorney General’s office does not.
The statute states: “Upon the filing of a motion to vacate or set aside the judgment, the court shall order a hearing and shall issue findings of fact and conclusions of law on all issues presented.”
In her dissent, Breckenridge said a stay of execution would be the only way to afford Keenan the “mandatory” process required by statute.
“The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution,” Breckenridge wrote.
In their majority opinion not to delay Johnson’s execution, state Supreme Court judges wrote that even if Keenan were granted the hearing he requested, the grounds he set forth in his motion to vacate fell short of demonstrating constitutional error.
“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 reads.
Less than 24 hours after Keenan first filed a motion to vacate Johnson's sentence, a St. Louis Circuit Court judge denied the motion. Judge Mary Elizabeth Ott ruled there was not enough time for all parties to properly prepare for a hearing before Johnson’s execution.
“We all can understand the position the circuit court was in,” Keenan told Supreme Court judges Monday. But the law is “crystal clear,” he added, and Johnson's execution should not be carried out before the hearing.
Assistant Attorney General Andrew Crane argued the statute doesn’t require a hearing, saying the court should allow the execution to continue as scheduled.
“The fact of the matter is that cases can be pending while an execution proceeds,” Crane said.
When he was 19, Johnson shot and killed William McEntee, a husband and father of three. Johnson believed McEntee played a part in his brother’s death just two hours before.
A predominantly white jury convicted Johnson of first-degree murder and sentenced him to death in his second trial in 2007. A hung jury in Johnson’s first trial favored a lesser conviction.
“It's a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved the death penalty,” Crane said. “And the rest of what we're talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”
After his investigation, Keenan came to several conclusions as to why Johnson’s conviction and judgment were unconstitutional, including that the office of then-prosecuting attorney Bob McCulloch schemed to exclude jurors of color in Johnson’s second trial.
Keenan said he discovered an “incriminating memo” written between Johnson's first and second trials. In the memo — which instructed others not to copy it — McCulloch’s office had strategized ways to make backdoor strikes of Black jurors. Striking jurors on the basis of race (or religion or gender) is illegal.
Regardless, the state Supreme Court ruled Monday night that it was the jury, not McCulloch, who found Johnson guilty of murder.
“Nothing in the special prosecutor’s motion succeeds in casting any doubt over the fact that Johnson was judged by a constitutionally fair jury and that this jury fairly and independently fulfilled its constitutional role,” the court wrote in its opinion.
Keenan also pointed to how McCulloch treated white and Black defendants differently, despite committing similar crimes. He singled out Trenton Forster, who killed Officer Blake Snyder in 2016 and wrote on social media of his intent to harm police.
McCulloch not only refused to pursue capital punishment for Forster, Keenan accused, he also asked Forster’s counsel in a letter to give him information on why the state should not seek the death penalty. Forster was 18 at the time of his crime.
McCulloch never acknowledged any of Keenan’s attempts to contact him, which included knocking on his front door. A stay of execution would have allowed Keenan to depose McCulloch.
There’s still a lot that needs to be investigated in Johnson’s case, Keenan said Monday. Delaying Johnson’s execution would have allowed all the claims in Johnson’s case to be considered.
Crane argued it was all too little, too late. Johnson’s claims should’ve been brought much sooner, and had Keenan’s investigation concluded sooner (he had a little over a month to investigate several hundred pages of evidence), Johnson’s concerns could’ve been considered in a timely manner. Bringing arguments to the fore just weeks before they could be meaningfully considered is a reason to disqualify Keenan’s claims, Crane argued.
Keenan later added: “None of us wish we were here in this posture right now, but the legislature has made the marching orders clear, and the public will benefit if we have a process in which we can all have confidence.”
Johnson is a son, father, brother, uncle, grandfather, a “model inmate” and a writer. In an interview with the Riverfront Times in October, he reiterated over and over again his regret for murdering McEntee.
“I respect police officers, they need to be here,” Johnson said. “But when you hurt one of them, there’s no coming back from that.”
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