The execution of Kevin Johnson will go forward on Tuesday after the Missouri Supreme Court denied a motion brought by a special prosecutor.
The court was split 5 to 2 with Justices Patricia Breckenridge and George Draper dissenting.
A motion to stay was filed Nov. 21, alleging Johnson’s trial was “infected” by racist prosecution techniques.
In the 19-page majority opinion, the court said the two claims brought by special prosecutor Edward Keenan “are largely just re-packaged versions of claims Johnson has brought (and seen rejected) many times before.”
The justices wrote that Keenan failed to show Johnson’s prosecution was directly motivated by racial animus and failed to show that a constitutional error undermined the conviction. Even if the execution was halted, the court concluded and a hearing on the two claims was held, “the Special Prosecutor has no likelihood of succeeding.”
Johnson, 37, was convicted in the 2005 killing of Sgt. William McEntee, a police officer in Kirkwood, Missouri.
Johnson’s first trial ended in a hung jury, according to court documents.
A second jury found him guilty of first-degree murder and sentenced him to death.
Though his case is under review by the St. Louis County Prosecutor’s Office, the Missouri Supreme Court in August set Johnson’s execution date for Nov. 29.
In correspondences with The Star, Johnson has expressed remorse.
“I hate myself for July 5, 2005,” he wrote in a Nov. 1 email. Early Monday, he wrote that he was “unconditionally sorry for my actions.”
At the request of the prosecutor’s office, the special prosecutor was appointed in Johnson’s case.
Keenan reviewed more than 31,000 pages, spoke to witnesses and reviewed evidence.
A motion to vacate filed by Keenan Nov. 15 was denied in the Circuit Court of St. Louis County.
Oral arguments in the motion to stay were presented Monday afternoon before Missouri’s Supreme Court. According to the group Missourians for Alternatives to the Death Penalty, this is the first case a prosecutor has intervened to stop an execution in the state.
Keenan told the justices that former 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.
Andrew Crane, assistant attorney general, said “there is no reason” to stay the execution and doing so would be harmful. He also claimed the arguments laid out by Keenan would fail during future hearings, and that the jurors were qualified and unbiased.
In the Supreme Court’s opinion, the justices said McCulloch did not use all of the available preemptory strikes to reject potential jurors. They also wrote that a study presented by the special prosecutor claiming racial bias by McCulloch “could have been conducted years earlier, and neither the Special Prosecutor nor Johnson offers any excuse.”
In Breckenridge’s dissenting opinion, she writes that examples of racial bias presented by the special prosecutor have “shown a probability that he will succeed in establishing a constitutional error.” She also concludes that potential jurors were treated differently based on race.
“The threat of irreparable harm absent a stay is obvious,” Breckenridge wrote.
Gov. Mike Parson said in a news release sent Monday afternoon that he planned to carry out the sentence.
Execution is scheduled for 6 p.m. Tuesday.