Will Agreement on Fairness Between the Defense and a Special Prosecutor in a Missouri Capital Case Be Enough to Stay an Execution

On Tuesday, November 29, the state of Missouri intends to put Kevin Johnson to death for a crime he committed when he was just 19 years old. It desires to do this despite the fact that both Johnson’s defense attorney and the special prosecutor who was chosen by a Missouri trial judge in October to evaluate the Johnson case concur that the conduct of his case was significantly influenced by illegal racial bias.

Such cooperation is exceedingly uncommon in the fiercely competitive world of capital cases, where prosecutors and defense attorneys hardly ever agree on anything. Both sides will seek that Johnson’s execution is put off until a trial court can hold a hearing on the claims of racism in oral arguments before the Missouri Supreme Court on Monday.

It will have to face a dilemma that continues to beset the death penalty system in America: Is the pursuit of state killing with finality and expediency more essential than averting blatant injustice? Civilized nations don’t execute people based on the color of their skin, but that is what the State of Missouri is going to do, according to Shawn Nolan, Kevin Johnson’s attorney.

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Our special prosecutor is prepared to argue in court that racism permeated every aspect of this case. All we need is a judge who will take up this case. The statement by Nolan that “Any sane court would put an end to this execution” is true. The Missouri Supreme Court ought to take that action.

According to a Missouri statute passed in 2021 that allows the special prosecutor, Edward Keenan, to file a motion to annul a judgment “at any time” if he has information suggesting that a person condemned may have been “erroneously convicted,” Nolan agrees. His acceptance amounts to the state’s own admission of a mistake.

According to Keenan, the evidence “clearly and convincingly shows that improper racial factors played a substantial role throughout the process—in the prosecutor’s selection of defendants for first-degree prosecution, the decision to seek a death sentence, and in the selection of jurors ultimately tasked with determining guilt and sentence,” as he put it in his motion asking the state supreme court to vacate the judgment in Johnson’s case.

In accordance with state law, Keenan is pleading with the court to set aside decisions where judges discover “constitutional error at the first trial of plea that undermines the faith in the verdict.” Johnson’s defense and the special prosecutor both reject the idea that he’s not guilty of the crime for which he was given the death penalty.

Unquestionably terrible are the details of that crime. In order to execute a warrant, police officer William McEntee and others went to a family’s home on the evening of July 5, 2005, according to The Missouri Independent. Joseph Long, Johnson’s 12-year-old brother, had a seizure and passed out during the search.

Johnson saw the officers walk repeatedly over his brother’s motionless body and neglect his evident medical discomfort without ever bringing him treatment. Even Long’s mother was prohibited from entering the residence to lend a hand to the police. Therefore, Joseph passed away.

McEntee returned to Johnson’s area in response to a complaint of fireworks two hours later. This led to an accidental encounter with Johnson. Johnson, who was visibly upset and distressed, yelled, “You killed my brother,” before shooting officer McEntee many times.

However, even those who have broken the law have rights in this nation, including the right to fair treatment. Johnson had that privilege denied to him from the beginning of his case. The St. Louis County prosecutor’s office charged Johnson with first-degree murder rather than a lesser punishment and sought the death penalty despite the mitigating circumstances surrounding Officer McEntee’s death.

Five persons were charged in incidents involving the death of a police officer while Robert McCulloch was the prosecuting attorney for St. Louis County at the time of Johnson’s arrest, according to the special prosecutor’s request. Johnson was one of the five accused, and the other three were all Black.

Even though the White defendant had boasted on social media that he wanted to shoot police officers, McCulloch only sought the death sentence against the Black defendants. In addition, McCulloch invited the White defendant’s attorney to provide any evidence that would support McCulloch’s choice not to seek the death penalty prior to making a charging decision. He did not extend this invitation to any of the Black defendants’ attorneys.

For the McEntee killing, Johnson faced two first-degree murder trials. When the jury could not decide whether to convict him of first-degree or second-degree murder, the first trial ended in a mistrial. Before that trial, the prosecution devised a plan to circumvent the demands of the Batson v. Kentucky ruling from the US Supreme Court in 1986. In Batson, the Court determined that efforts made by the prosecution to bar Black jurors from serving in cases involving the death penalty were unconstitutional.

With that plan in mind, McCulloch’s office chose not to use all of their peremptory challenges in the hopes that the trial judge would appoint no Black jurors, preventing those jury strikes from being used against the prosecution. The trial judge, however, did not agree with their strategy, and the jury for Johnson’s initial trial was made up of six White and six Black people.

However, McCulloch continued to make efforts to exclude Black people from serving on the jury in Johnson’s case. In preparation for Johnson’s second trial, the prosecution once more looked for ways to exclude Black jurors.