Missouri Executes Kevin Johnson Despite Special Prosecutor’s Call to Vacate Death Sentence

Despite a court-appoint­ed spe­cial prosecutor’s request to vacate his death sen­tence, Missouri exe­cut­ed death-row pris­on­er Kevin Johnson (pic­tured, with daugh­ter Khorry Ramey, left, and new­born grand­son) on November 29, 2022. The exe­cu­tion moved for­ward after the Missouri Supreme Court and the U.S. Supreme Court denied stays of exe­cu­tion fol­low­ing oral argu­ment in the Missouri high court less than 36 hours before the sched­uled exe­cu­tion. Missouri Governor Mike Parson announced dur­ing the court’s hear­ing that he would not grant clemen­cy in the case.

St. Louis Circuit Judge Mary Elizabeth Ott appoint­ed E.E. Keenan as spe­cial pros­e­cu­tor on October 12. Keenan’s inves­ti­ga­tion found that Prosecuting Attorney Robert McCulloch sought death sen­tence for Black defen­dants charged with killing police offi­cers but didn’t seek the equiv­a­lent for a white defen­dant, Trenton Foster, charged with the same crime. The inves­ti­ga­tion also uncov­ered a memo indi­cat­ing that McCulloch’s team struck Black jurors ​“deliberate[ly]” dur­ing Johnson’s sec­ond tri­al. Johnson’s first tri­al had result­ed in a hung jury. Keenan con­clud­ed that, ​“These facts and oth­ers leave no seri­ous doubt that Mr. McCulloch’s office dis­crim­i­nat­ed,” and, in a November 15 motion, he urged the court to vacate Johnson’s death sen­tence so a ​“law­ful tri­al and sen­tence may proceed.” 

Ott denied Keenan’s motion on November 16 and in a lat­er order on November 19 cit­ed the time con­straints pre­vent­ing par­ties from appro­pri­ate­ly prepar­ing for a hear­ing and the court from ​“thought­ful­ly consider[ing]” the facts. Ott wrote that it was ​“inex­plic­a­ble” that these claims were brought for­ward only 14 days pri­or to Johnson’s exe­cu­tion date and found it ​“dis­con­cert­ing” that the St. Louis County Prosecutor’s office request­ed the court appoint a spe­cial pros­e­cu­tor only a month ear­li­er in October. On November 21, Keenan filed a motion with the Missouri Supreme Court, which set oral argu­ments regard­ing the stay of exe­cu­tion for November 28, one day before Johnson’s exe­cu­tion date. ​“There is no ben­e­fit to the pub­lic in rush­ing this exe­cu­tion for­ward tomor­row,” Keenan told the court. ​“What stay­ing this exe­cu­tion will do is allow the legal process to pro­ceed and, what­ev­er the out­come is, it will ensure the pub­lic can have con­fi­dence that if we have a process or the death penal­ty that is car­ried out equi­tably and in a way the pub­lic can have confidence in.”

Originally, Johnson’s team request­ed the St. Louis County Prosecutor’s Conviction and Incident Review Unit (CIRU) eval­u­ate his case in December 2021; how­ev­er, a con­flict of inter­est with­in CIRU required the appoint­ment of a spe­cial pros­e­cu­tor, result­ing in delays. In July 2022, Attorney General Eric Schmitt’s office filed a motion to set an exe­cu­tion date. In response, Chief of CIRU, Jessica Hathaway, wrote to the court that ​“a pre­lim­i­nary inves­ti­ga­tion” regard­ing Johnson’s alle­ga­tions of racial bias had been under­way, the CIRU ​“believes fur­ther inves­ti­ga­tion may be war­rant­ed,” and they were ​“attempt­ing to locate a spe­cial pros­e­cu­tor.” Although Hathaway request­ed the Missouri Supreme Court post­pone set­ting an exe­cu­tion date, Johnson’s exe­cu­tion was sched­uled in August for November 29.

“I want to say that I have great remorse for shoot­ing and killing that police offi­cer,” said Johnson in an inter­view with Truthout. He explained that he was in a ​“daze” after the death of his 12-year-old broth­er, who suf­fered from a seizure dur­ing a police search and was lat­er pro­nounced dead at the hos­pi­tal. During this ​“daze,” he wan­dered for about 30 min­utes and shot Kirkwood Police Sargent William McEntee, who arrived on the scene with EMTs and wasn’t involved in the raid. ​“I think my biggest mis­take in life was just even car­ry­ing a gun. Because when you car­ry a gun, you cre­ate oppor­tu­ni­ties to use it and most of the time you don’t need to use it,” added Johnson. 

In an inter­view with St. Louis Public Radio, Johnson admits that he doesn’t ​“even know why the shoot­ing hap­pened. I still to this day think about it.”

Johnson, now 37, has request­ed that his daugh­ter, Khorry Ramey, who is 19, be present at the exe­cu­tion; how­ev­er, Missouri state law bars those under 21 from wit­ness­ing an exe­cu­tion. Ramey said in a state­ment, ​“If my father were dying in the hos­pi­tal, I would sit by his bed hold­ing his hand and pray­ing for him until his death, both as a source of sup­port for him, and as a sup­port for me as a nec­es­sary part of my griev­ing process and for my peace of mind.”

The ACLU has filed an emer­gency motion on behalf of Ramey, argu­ing that the Missouri statute vio­lates both the 14^th amend­ment of equal pro­tec­tion under the law by dis­crim­i­nat­ing based on age and the 1^st amend­ment right of free­dom of association.

Corene Kendrick, a lawyer for Ramey and Deputy Director for the ACLU National Prison Project, said in a state­ment, ​“The Missouri law bar­ring Ms. Ramey from attend­ing her father’s exe­cu­tion is illog­i­cal and irra­tional. If the State of Missouri thinks that her father’s actions when he was 19 make him mature enough to war­rant exe­cu­tion, then a 19-year-old should be mature enough to wit­ness that exe­cu­tion. There is no dig­ni­ty when a state kills its res­i­dents. The State of Missouri can refrain from need­less­ly inflict­ing even more pro­found and griev­ous pain on Ms. Ramey — a lov­ing daugh­ter with a sim­ple wish to be with and say good­bye to her only liv­ing par­ent when the state takes him away from her.”

In a rare dis­sent issued the day after Johnson’s exe­cu­tion, U.S. Supreme Court Justice Ketanji Brown Jackson wrote that the Missouri Supreme Court ​“flout­ed the plain lan­guage” of the state law that required an evi­den­tiary hear­ing when a pros­e­cu­tor seeks to vacate a con­vic­tion based upon evi­dence ​“demon­strat­ing a ​‘con­sti­tu­tion­al error at the orig­i­nal tri­al … that under­mines the con­fi­dence in the judg­ment.’” Missouri’s exe­cu­tion of Johnson, Jackson wrote, ​“irrev­o­ca­bly moot­ed our con­sid­er­a­tion of his due process claim, and Missouri would have suf­fered no dis­cernible harm if a stay had issued, as a State has no legit­i­mate inter­est in car­ry­ing out an exe­cu­tion con­trary to [its laws] or due process.” As a result, ​“new evi­dence relat­ing to the tri­al prosecutor’s racial­ly biased prac­tices and racial­ly insen­si­tive remarks … will not be con­sid­ered on the mer­its by any court, much less the one that was sup­posed to base its con­clu­sions about the valid­i­ty of Johnson’s con­vic­tion on all such evi­dence, per the statutory mandate.”

[UPDATED to include the out­comes of the pro­ceed­ings in the Missouri and U.S. Supreme Courts and Johnson’s subsequent execution.]