Kevin Johnson in Missouri filed an application for a stay of his execution this week on due process grounds. On Tuesday, the Supreme Court released an unsigned order rejecting his application to appeal his execution. Johnson’s execution proceeded, and he was killed later that day.
Kevin Johnson was executed by way of lethal injection after being convicted for the shooting death of Police Sargeant William McEntee when Johnson was 19.
In part, Johnson’s attorneys argued that both his first murder trial and ultimately his sentencing were tainted by two jury members who showed open racist bias against him.
Supreme Court Justices Ketanji Brown Jackson and Sonia Sotomayor, who both said they would have granted Johnson’s stay and halted his execution, released a formal dissent on Wednesday describing their reasoning.
Jackson and Sotomayor argued that Johnson’s claim on violations of his constitutional right to due process could have succeeded. Jackson laid out how Missouri’s state procedure is supposed to be carried out in regards to conviction integrity.
Jackson pointed to a prosecutor’s ability to set aside a judgment or order if they “[have] information that a convicted person . . . may have been erroneously convicted” which Jackson notes had been filed in this case.
The second conviction integrity procedure would be a hearing based on a prosecutor’s filling, an opportunity Johnson’s attorneys said he was denied.
Lastly, Jackson says the court would then be able to properly withdraw a judgment based on any substantial evidence violating constitutional rights and procedures.
“In my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay,” Jackson wrote.
Jackson added that if the courts had followed proper procedure, prosecutors could have presented “new evidence relating to the trial prosecutor’s racially biased practices and racially insensitive remarks.”
This comes after Johnson’s Tuesday petition to appeal his execution presented this question: “did Johnson’s retrial before a second jury that convicted him of first degree murder and sentenced him to death remedy the constitutional violation from the first trial, at which two racist jurors prevented a unanimous verdict on a lesser offense?”