The Missouri Supreme Court is scheduled to hear an emergency request on Nov. 28 to delay an imminent execution in a test of a new law that allows prosecutors to reverse their own wrongfully obtained convictions.
Kevin Johnson Jr. is set to be executed during the 24-hour period beginning at 6 p.m. Nov. 29. But a special prosecutor recently appointed to Johnson’s case argues that “racist prosecution techniques infected” his original trial for killing a police officer.
E.E. Keenan of Keenan & Bhatia in Kansas City, who is serving as a special prosecutor in the case, argues that state law requires the circuit court to hold a hearing and assess the evidence. But on Nov. 19, St. Louis County Circuit Judge Mary Elizabeth Ott said there was no time to hold such a hearing and denied the motion to vacate Johnson’s conviction.
Last year, state lawmakers passed a bill that created a formal mechanism for prosecutors to ask courts to vacate wrongful convictions. In a filing with the Supreme Court, Keenan argued that executing Johnson now “effectively repeals a statute the Legislature passed and the Governor signed without the attendant democratic processes.”
“In its current, and unusual, procedural posture, this case sits at the intersection of the powers and duties of the executive, judicial and legislative branches,” he wrote.
Johnson was sentenced to death for the 2005 shooting death of Sgt. William McEntee in Kirkwood. According to court documents, officers had been looking for Johnson on a probation violation when Johnson’s 12-year-old brother had a seizure and later died. Johnson claimed the police had been too busy searching for him to save his brother’s life and fatally shot McEntee later that day.
Johnson’s attorneys allege that his conviction was tainted by racially discriminatory practices they attribute to the former prosecuting attorney, Robert McCulloch — whom the current prosecutor, Wesley Bell, ousted in 2018. McCulloch, who was in office for 28 years, has denied those claims.
Bell’s Conviction and Incident Review Unit reviewed the allegations but ultimately bowed out because one of Johnson’s trial attorneys is now employed in the prosecutor’s office, creating a conflict. Keenan was named to the case on Oct. 12, nearly two months after the Supreme Court had scheduled Johnson’s execution.
Keenan said he had only a month to “review a case file spanning some 31,744 pages, reach out to witnesses, conduct legal research, and make follow-up document requests that led to 12 more boxes of files.” He alleges that McCulloch pursued the death penalty against four Black defendants accused of killing police officers but not against a lone white defendant charged with a similar crime.
He also alleges that Johnson’s trial was tainted by violations of the U.S. Supreme Court’s ruling in Batson v. Kentucky. Keenan said a newly discovered memo indicates that the prosecution team exercised fewer than their allotted nine peremptory challenges during voir dire in Johnson’s case, “in the hope that the trial court might eliminate Black jurors ranked high in the strike pool without those strikes counting against the prosecution.”
Johnson has separately asked the court to halt the execution. Shawn Nolan, an attorney for Johnson, said in a press release that “civilized countries don’t execute people based on the color of their skin.”
“All we need is a court willing to hear this case,” he wrote. “Any rational court would put a stop to this execution and that is what we are expecting the Missouri Supreme Court to do.”
As of press time on Wednesday, the Missouri Attorney General’s Office had not formally responded to the Supreme Court motion. But it has previously argued that staying the execution to allow for the review would violate the separation of powers.
“Any delay for that reason would violate the central tenant of our democratic system,” assistant attorneys general Andrew J. Crane and Gregory M. Goodwin wrote in a filing earlier this year.
The case is State v. Johnson, SC99873.
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