Two U.S. Supreme Court justices said the Missouri Supreme Court turned a state law “on its head” in its decision to proceed with the execution of Kevin Johnson.
Johnson, 37, was executed Tuesday evening for the 2005 killing of Kirkwood Police Department Sgt. William McEntee.
Oral arguments to stay the execution were presented Monday before the Missouri Supreme Court, and revolved around a state law that went into effect last year allowing prosecutors to intervene in cases where they believe a wrongful or erroneous conviction has occurred.
Though Johnson’s guilt was never in question, special prosecutor E.E. Keenan said that the prosecution during Johnson’s trials was “infected” by racial bias. The execution should be halted, Keenan said, so those allegations can be fully investigated and presented in a court hearing.
The 2021 law says the court “shall order a hearing and shall issue findings of fact and conclusions of law on all issues presented.”
Keenan told the Missouri Supreme Court that “The legislature passed a crystal clear statute that provides a process for convictions to be reviewed on the motion of a prosecutor,” and added that going forward with the execution would effectively nullify the statute.
According to the group Missourians for Alternatives to the Death Penalty, this was the first case in which a prosecutor has intervened to stop an execution in the state.
Keenan told the Missouri Supreme Court that former St. Louis County prosecutor Robert McCulloch — whose father was killed in the line of duty — sought the death penalty in four out of five cases involving a police officer death during his career. All four of those defendants were Black. The fifth was white and Keenan alleged that defendant’s conduct “was more aggravated.”
In court documents, Keenan also said McCulloch intentionally eliminated Black jurors during Johnson’s second trial.
McCulloch did not cooperate with Keenan’s investigation and was not interviewed.
The Missouri Attorney General’s Office argued against a delay in the execution.
The Missouri Supreme Court denied a stay of execution late Monday night.
The case was taken to the U.S. Supreme Court Tuesday.
Johnson’s execution was scheduled for 6 p.m. In a split decision, the high court issued an order around 6:40 p.m. denying a stay of execution.
Johnson was pronounced dead at 7:40 p.m.
U.S. Supreme Court Justices Ketanji Brown Jackson and Sonia Sotomayor dissented.
In a four-page opinion issued Wednesday, Jackson wrote that the Missouri Supreme Court skipped over the second step of holding a hearing and “flouted the plain language of a statute.” The state court’s conclusion that evidence would not have held up during a hearing “transgressed core procedural due process principles.”
Jackson said the Missouri Supreme Court’s reading of the state statute was “so fundamentally flawed” that it “amounted to a Fourteenth Amendment violation.”