Special Prosecutor Alleges Racial Bias Tainted Kevin Johnson’s Prosecution

Edward Keenan is seeking to vacate Johnson’s conviction just weeks before his scheduled execution

Nov 16, 2022 at 10:55 am
click to enlarge Kevin Johnson, 37, is scheduled to be executed this month for the 2005 murder of Sgt. William McEntee. He was put on death row by Bob McCulloch. - JEREMY WEIS
Kevin Johnson, 37, is scheduled to be executed this month for the 2005 murder of Sgt. William McEntee. He was put on death row by Bob McCulloch.
A special prosecutor appointed to investigate the case of a man set to be executed on Nov. 29 wants Missouri courts to vacate his conviction — and order a new trial.

The prosecutor’s motion alleges that “improper racial factors” spurred the death-penalty case against Kevin Johnson, and that he was treated differently than white defendants in similar situations.

Johnson, 37, killed Kirkwood Sgt. William McEntee in 2005. Kansas City attorney Edward “E. E.” Keenan filed a motion with the Missouri Supreme Court late Tuesday to vacate the judgment in Johnson’s case.

In a 53-page motion, Keenan wrote that he’d surveyed thousands of documents, and come to the conclusion that then-Prosecuting Attorney Bob McCulloch treated Johnson and other Black defendants accused of killing police officers differently than a white defendant, Trenton Forster, in whose case McCulloch did not seek the death penalty. Citing a previously undisclosed memo, he also alleged that McCulloch’s team made a “deliberate” attempt to strike Black jurors from the pool in Johnson’s case.

“These facts and others leave no serious doubt that Mr. McCulloch’s office discriminated,” he wrote. “The judgment must be set aside so that a lawful trial and sentence may proceed.”
Keenan in his filing cited a new Missouri statute that allows prosecuting or circuit attorneys to vacate or set aside a judgment if they believe a person had been wrongfully convicted.

The same statute allows the court to hold a hearing for the special prosecutor to present his findings. If the court finds sufficient evidence of actual innocence or constitutional error, Johnson’s death sentence could be set aside and a new trial ordered.

Neither Johnson nor his supporters contend his innocence. Rather, they argue an unfair trial, Johnson’s childhood of deprivation, and the traumatic circumstances that led to Johnson’s slaying of McEntee merit a lesser sentence.

St. Louis County Circuit Court Judge Mary Elizabeth Ott on Wednesday swiftly denied Keenan’s motion to vacate. The special prosecutor is almost certain to appeal.

Keenan started investigating Johnson’s case in October after Johnson’s legal team requested the St. Louis County Prosecuting Attorney’s Conviction and Incident Review Unit look into the case. In an application to the unit in December, Johnson’s lawyers alleged his conviction and death sentence were unfairly and unconstitutionally tainted by racial bias.
In his review of Johnson’s case, Keenan determined racial discrimination infected Johnson’s prosecution in several ways. At one point, Keenan claimed McCulloch expressed to other prosecutors an animosity toward Black males like Johnson, viewing them as a population “we had to deal with.”

Bell’s office appointed Keenan to conduct the investigation into Johnson’s case to get around a conflict of interest held by the office. One of Johnson’s original trial attorneys currently serves as first assistant trial counsel in Bell’s office. For months, the unit searched for a special prosecutor to lead Johnson’s investigation.

Johnson is one of three death-row inmates whom Attorney General Eric Schmitt in recent months has moved to proceed with execution dates. His death would be the first of the three planned executions, barring any success in Keenan’s motion to vacate or Johnson’s attempts to get clemency from Governor Mike Parson.

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This story has been updated.

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