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Missouri kills Kevin Johnson, despite pending claims that racism underlies his death sentence
UPDATE: The Missouri Supreme Court, on a 5-2 vote, rejected the request from both a special prosecutor and Johnson for a stay of execution. The U.S. Supreme Court denied a stay as well.
Missouri wants to kill Kevin Johnson on Tuesday.
Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.
Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.
“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.
[UPDATE, 11:05 p.m. ET Monday: The Missouri Supreme Court rejected the special prosecutor and Johnson’s request for a stay of execution on a 5-2 vote.
UPDATE, 11:15 p.m. ET Monday: Johnson’s lawyers announced that they will be seeking U.S. Supreme Court review.
UPDATE, 10:15 a.m. ET Tuesday: Johnson’s lawyers seek a stay of execution from the U.S. Supreme Court.
UPDATE, 7:35 p.m. ET Tuesday: The U.S. Supreme Court denied Johnson’s request for a stay of execution.
UPDATE, 10:00 p.m. ET Tuesday: Missouri executed Kevin Johnson.
UPDATE, 6:15 p.m. ET Wednesday: Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, issued a written dissent explaining why they would have granted a stay of execution to Kevin Johnson.]
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The comment from Crane hearkened back to an earlier period in Missouri executions when the state did, in fact, execute a man — another Black man — while an appeal was pending at the U.S. Supreme Court back in 2014.
Crane was correct, legally speaking, that a state can proceed with an execution once a death warrant is active so long as there is no stay of execution or other order halting the execution from proceeding. The U.S. Supreme Court tries to resolve all applications before that point, but, regardless, most of the remaining states that carry out executions do wait on pending applications to be resolved by the high court before proceeding. (The Supreme Court has addressed one, Alabama, that does not do so by way of Justice Clarence Thomas issuing a temporary, administrative stay of execution as the circuit justice hearing cases out of Alabama so that the execution does not proceed while the justices consider requests for a stay of execution.)
All of which is to say that while Crane was legally correct, he was not describing what happens in reality in America even where states carry out executions. The last execution that I can recall taking place while an application was pending was Alfredo Prieto’s execution in Virginia in 2015. Virginia got rid of the death penalty altogether last year.
Which brings us back to Kevin Johnson, sentenced to death for the murder of a police officer, William McEntee, in 2005.
Missouri lawmakers put in place this new law in 2021 to address innocence and other troubling convictions. E.E. Keenan, the special prosecutor appointed to look into questions about Johnson’s prosecution, found such problems in Johnson’s case. Namely, allegedly racist motivations and decisions by the trial prosecution team.
Under the 2021 law, a hearing “shall” be held on Keenan’s motion to vacate the conviction and sentence. It wasn’t — because the circuit judge hearing Keenan’s motion found there wouldn’t be enough time before Johnson’s scheduled execution to properly handle the hearing.
On Monday, Keenan and Johnson’s lawyers were at Missouri Supreme Court seeking a stay of execution so the statutory process can be carried out.
“That cannot happen if the state is allowed to kill Kevin Johnson tomorrow,” Joseph Luby, Johnson’s lawyer, told the court. “What we are looking for today is some process … a full and fair determination of this motion.”
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Missouri Supreme Court Judge Patricia Breckenridge asked Crane, arguing for the AG’s Office, if it would be constitutional error if racial bias was a motive for the trial prosecutor’s decision to seek the death penalty in Johnson’s case.
Although Crane went back and forth on the question, Breckenridge pressed him and he eventually said no, claiming that “any error” in the charging decision in Johnson’s case — even if motivated by racism — was “cured” — meaning the conviction and sentence could stand — by the fact that he was convicted and sentenced by a jury of those charges in a sentence that was upheld on appeal by the state supreme court.
Johnson “must prove it wasn’t fair” that he got the death penalty, Crane told the court.
Judge Mary Russell, meanwhile, pressed Crane on the questions about the circuit judge’s decision not to hold a hearing on Keenan’s motion.
Initially, she asked Crane whether the AG’s Office was taking the position that there’s no need to have a hearing under that new law because the AG’s Office believes the special prosecutor’s claims lack merit.
He said yes, adding that the hearing question is “irrelevant,” in his view, to the stay of execution request — prompting the statement that the execution could proceed while a claim is pending.
Russell, though, pushed back, asking whether the “shall” language in the 2021 law creates any “problem” for the AG’s Office’s argument.
“The prosecutor could bring a colorable claim that that was error,” Crane said — a seemingly significant admission — although he later tried to walk it back somewhat by stating, without providing explanation, that “courts are always entitled to not hold a hearing” if they know a motion will fail.
In rebuttal, Keenan, the special prosecutor, urged the court to issue a stay of execution.
“This is about a process,” he said. “The legislature has made the marching orders clear.”
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