The Missouri Supreme Court on Monday will hold oral arguments on whether a death row inmate’s execution should be postponed — just one day before the man is scheduled to die.
A special prosecutor appointed to investigate Kevin Johnson’s case found racial bias “infected” Johnson’s conviction and sentence. Yesterday, he and Johnson asked the court to delay Johnson’s execution so his findings could be considered in court.
The state Supreme Court set an “expedited briefing schedule” to hold oral arguments regarding the prosecutor’s motion to stay Johnson’s execution. The arguments will be held Monday afternoon, November 28. Johnson’s execution was previously scheduled for Tuesday, November 29.
The special prosecutor, Edward “E.E.” Keenan, filed a motion November 15 to vacate Johnson’s judgment after concluding that then-St. Louis County 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. He also alleged McCulloch’s team made a “deliberate” attempt to strike Black jurors from the pool in Johnson’s case.
Keenan was using a new state statute that has faced opposition from the attorney general’s office each time a prosecutor has tried to use it. The statute allows a prosecutor to file a motion to vacate or set aside a judgment if they have information that the convicted person “may be innocent or erroneously convicted.”
The statue requires a hearing to be held, which St. Louis County Presiding Judge Mary Elizabeth Ott acknowledged in her denial of Keenan’s motion to set aside Johnson’s judgment.
However, Ott wrote in a November 19 order: “There is neither sufficient time between now and the date currently set for the execution of Mr. Johnson for a reasonable and adequate opportunity for the parties to prepare and present evidence, to conduct discovery, to subpoena witnesses, nor for the court to thoughtfully consider the evidence at such hearing and to prepare appropriate findings of fact and conclusions of law.”
Johnson had requested that the St. Louis County Prosecutor’s Conviction and Incident Review Unit review his conviction and judgment last December. But one of Johnson’s former trial attorneys works in the prosecutor’s office, so the unit could not perform the investigation themselves.
Ott appointed a special prosecutor to handle the investigation in October. In her order filed on Saturday, Ott wrote that the county prosecutor’s office did not request a special prosecutor to be appointed in light of the conflict of interest until that month.
The office’s Conviction and Incident Review Unit did, however, alert the Missouri Supreme Court of their conflict of interest in a letter on July 11, after the attorney general’s office filed a motion to set Johnson’s execution date.
Jessica Hathaway, chief of the unit, requested the court refrain from scheduling Johnson’s execution. The court did so anyway in August.
In a statement yesterday, Johnson’s lawyers wrote Johnson has no control over delays caused by the prosecutors, saying that for the delay to cost Johnson his life would defy “any sense of justice.”
“Any rational court would put a stop to this execution, and that is what we are expecting the Missouri Supreme Court to do,” attorney Shawn Nolan says.
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