Missouri killed a man on Tuesday despite competency questions

Two appeals court judges — an Obama and a Trump appointee — halted Missouri's scheduled execution of Johnny Johnson. Then the full court stepped in. [Update: Johnson was executed.]

Over the weekend, the full U.S. Court of Appeals for the Eighth Circuit took an unusual step — overruling a three-judge panel of its own court that had ordered a stay of execution in Johnny Johnson’s capital case out of Missouri.

Missouri wants to kill Johnson on Tuesday, over the objection of Johnson’s lawyers that he is incompetent and cannot constitutionally be executed at this time. The U.S. Supreme Court has ruled repeatedly that a person cannot be executed if they lack an understanding of the reason for their pending execution.

As Judge Jane Kelly, an Obama appointee who supported the stay of execution, described the case, the question is in large part over a dispute between “a thorough psychiatric report” presented by Johnson’s lawyers that details his incompetency and “a one-and-a-half-page affidavit from … the ‘Institutional Chief of Mental Health’ at the prison where Johnson is incarcerated“ that concludes otherwise.

Although Missouri courts rejected Johnson’s competency claim, the Eighth Circuit panel, including Kelly, had granted the stay of execution so Johnson’s lawyers could fully argue his federal court claim that those Missouri courts had not sufficiently considered his competency claim.

The full Eighth Circuit, however, revisited the panel’s decision at Missouri’s urging and disagreed, denying the stay of execution and dismissing Johnson’s appeal on a 7-3 vote — meaning that, absent other action, Missouri will be able to execute Johnson on Tuesday.

Judge Raymond Gruender, a George W. Bush appointee, wrote on behalf of the seven judges supporting the en banc court’s decision that “[n]o reasonable jurist could find that clear and convincing evidence” counters the Missouri Supreme Court’s ruling — despite the fact that two of his colleagues had ordered briefing on that question.

As Kelly wrote for the three judges dissenting from the en banc court’s action, “[T]he Supreme Court of Missouri concluded that Johnson failed to make the requisite ‘threshold showing’ of incompetency based on observations from a prison mental-health counselor that are largely irrelevant under the governing legal standard for competency in this context.”

Johnson’s lawyers have taken the case to the U.S. Supreme Court, asking the justices to consider both Johnson’s competency claim — and the authority of the appeals court to handle Johnson’s case as they did.

[Update, 11:00 p.m. Aug. 1: The U.S. Supreme Court — over the dissent of Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson — allowed the execution of Johnny Johnson to proceed. Missouri carried out the execution. According to the Associated Press, authorities said that Johnson was pronounced dead at 6:33 p.m. CDT. His was the 16th execution in the United States this year and fourth this year in Missouri.]

The three-judge panel of the Eighth Circuit had ruled 2-1 in favor of the stay of execution on July 25, with Kelly and Judge Ralph Erickson, a Trump appointee, siding with Johnson. Judge L. Steven Grasz, another Trump appointee, sided with Missouri. The brief ruling simply set a schedule for Johnson to raise his appeal. Obviously, as part of that appeal in a capital case, the panel granted Johnson a stay of execution so that he would not be killed by Missouri while his appeal was pending.

Missouri asked the full court to review the matter, and seven Republican appointees, including Grasz, took up that request — overruling the panel’s decision in a Saturday decision from the court sitting en banc. (Kelly remains the only Democratic appointee on the Eighth Circuit, which covers a wide swath of the Midwest: North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri, and Arkansas. Kelly has been the only Democratic appointee on the court for more than five years now.)

Both Kelly and Erickson authored dissents. Kelly was joined in her dissenting opinion by Erickson and Chief Judge Lavenski Smith, a George H.W. Bush appointee. Erickson was joined by Kelly. Gruender, as noted, wrote an opinion concurring in the en banc court’s decision “to address the points raised by the dissenting judges.“ All of the judges denying the stay of execution were either George W. Bush or Trump appointees. (The longest serving judge on the court, Judge James Loken, did not participate in the case. He gave no reason for his non-participation.)

In Erickson’s dissent, he wrote that “the process afforded Johnson fails to meet the minimum procedural due process requirements under the Constitution.” While state courts certainly have “elasticity” in implementing the U.S. Supreme Court’s rules for establishing competency, Erickson continued:

I believe the Constitution requires more than a fiat declaration that one piece of paper is more credible than another. This is not a case where a hearing was held someplace, by someone, and evidence was presented and developed from which the finder of fact or a reviewing court can make rational determinations. Rather, we are confronted with competing evidence in the form of an expert opinion and its supporting documents and testing, and an affidavit and prison medical records. No one has ever been asked to explain his or her opinions or observations. No trier of fact has ever had the chance to dig into the underlying reasons for the opinions. Instead, this process required the ultimate finder of fact to make credibility determinations by weighing competing pieces of paper. While the Constitution does not require a full trial, it seems to me that it does require something more than what happened here.

As Kelly put it in one footnote, “At a minimum, reasonable jurists could, and in fact do, debate the issue.“

In his concurrence responding to the dissenting judges, Gruender pushed back on that repeatedly, arguing that “reasonable jurists could not debate whether the state court’s determination—that [Johnson’s expert]’s report lacks credibility when viewed in light of the state’s evidence—was unreasonable.”

While the dissenting judges questioned the weight given to the affidavit from the state’s witness as contrasted with Johnson’s expert, Gruender’s focus — in what essentially serves as a majority opinion for the full circuit — was on whether there was, citing prior U.S. Supreme Court habeas corpus cases, an absolutely clear and overwhelming error by the state court. As he wrote:

It is not enough for us to conclude we would have reached a different conclusion in the first instance. … Rather, the state court’s decision must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”

The case is now at the U.S. Supreme Court, where the six-justice conservative majority has not been receptive to death penalty stay requests. Justice Brett Kavanaugh has the application for a stay of execution before him in the case.

It, as well as another petition, likely will be referred to the whole court for determination. [A third application was filed in connection with Johnson’s case on Monday.] Decisions on the requests are likely to come before the execution is scheduled to begin, which is 6 p.m. CT Aug. 1.

[Correction: This story has been corrected to note Chief Judge Lavenski Smith’s dissenting vote and incorporates that dissenting vote throughout the story. The story initially misstated his vote.]