By David M. Greenwald
St. Louis, MO – Despite a finding by a special prosecutor that racism was a “decisive factor” in Kevin Johnson’s death sentence and that it should be vacated, he was executed this week in Missouri.
A special prosecutor 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.
Johnson was just 19 when he committed his crime, and according to Shawn Nolan, his attorney, he “has always accepted responsibility for what he did and has repeatedly asked for the forgiveness of Sgt. McEntee’s family.”
But the Governor of Missouri saw it differently.
“You got a guy who went over there, cold blooded killed a police officer by two shots in the head after he shot him multiple times,” Governor Parson said. “It’s a pretty vicious crime. Sometimes you have to answer the consequences to that.”
In a statement on Tuesday, Nolan said, “Tonight, the State of Missouri killed Kevin Johnson, an amazing father to his daughter Khorry, and a completely rehabilitated man.”
He said, “Make no mistake about it, Missouri capitally prosecuted, sentenced to death and killed Kevin because he is Black.”
Nolan noted, “Although the current prosecutor appointed by the court found that Kevin’s death sentence was the product of blatant racism by the St. Louis County DA’s Office, the Governor and the Supreme Court of Missouri extinguished the special prosecutor’s pursuit of racial justice and allowed Kevin to be executed anyway. The law is supposed to punish people for what they do, not who they are. Yet Missouri killed Kevin because of the color of skin. Shame on all of them.”
Justice Jackson of the US Supreme Court, joined by Justice Sotomayor in dissenting against the majority’s denial of a hearing, argued, “The Missouri Supreme Court turned this straightforward procedural statute on its head.”
Jackson writes, “While acknowledging that there was no motion hearing in Johnson’s case, the court assumed away that violation of the statute’s procedural requirements and denied the motion to stay on the grounds that there was insufficient evidence to support the motion to vacate.”
It reasoned that “[e]ven assuming that it was error for the circuit court to overrule the Special Prosecutor’s motion to vacate Johnson’s conviction without the hearing and express findings of fact and conclusions of law,” Johnson was not entitled to a stay because the motion to vacate fell “short of the showing required by section547.031.3, i.e., that there be ‘clear and convincing evidence’ demonstrating a ‘constitutional error at the original trial . . . that undermines the confidence in the judgment.’ ”
Jackson writes, “In short, a State cannot provide a process for post-conviction review… and then arbitrarily refuse to follow the prescribed procedures.” But, she argued, that is what happened in this case.
Jackson called this reading of the statute “fundamentally flawed” and “at odds with the basic due process principles” that “Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.031 motion amounted to a Fourteenth Amendment violation.”