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American Bar Association to Governor Parson, Ernest Johnson is Ineligible for the Death Penalty

Last week, the President of the American Bar Association (ABA) wrote a letter to Missouri Governor Mike Parson urging him to “avoid a possible miscarriage of justice,” and grant clemency to Ernest Johnson. Mr. Johnson is scheduled for execution on October 5th. The ABA expresses concern about a flawed process in the presentation of evidence about Mr. Johnson’s intellectual disability. The letter highlights how Missouri’s assessment for intellectual disability fails to comply with ABA recommendations that the intellectual disability determination is made before the guilt/innocence phase of trial and “certainly before” the penalty phase. But in Missouri, both parties have to consent to a pretrial hearing. Mr. Johnson made the request and the prosecution objected leaving the intellectual disability determination up to a jury during the penalty phase of a trial after he was found guilty.

The letter goes on to explain: “rather than placing the burden of disproving intellectual disability with the State, as the ABA recommends, the trial judge ordered that Mr. Johnson persuade the jury that he is intellectually disabled to take the death penalty off the table.” Additionally, the jury was instructed that it must make this finding of intellectual disability unanimously, but it was not instructed on what to do if the jury was “hung” on the ID question. And because the jury was not polled, there is no way of knowing how many jurors found Mr. Johnson to be ID. It is possible that 11 of the 12 found that he met the criteria, but with one juror as a holdout, he was nevertheless deemed eligible for execution. To avoid these sorts of problems, where one juror’s vote can be sufficient to render a capital defendant eligible for the death penalty, the jury should have been instructed to find unanimously that Mr. Johnson is not intellectually disabled.

The letter also makes note of the troubling fact that an affidavit from a juror at Mr. Johnson’s 2006 trial suggests that the jury did not understand how to answer the question of intellectual disability in the first instance. The affidavit goes on to explain that the juror held the mistaken belief that the defense had to prove Mr. Johnson “did not know right from wrong” in order to show he has an intellectual disability. This suggests that the jury did not know how to answer the question of intellectual disability and was not assessing intellectual disability according to the constitutionally required standards.

Mr. Johnson has continued to press the issue that he is categorically ineligible for the death penalty in light of clinical assessments. He has amassed nearly three decades of evidence in support of the claim including IQ scores with proof of early-onset, and evidence of his adaptive deficits. The fact that a jury did not find Mr. Johnson to be intellectually disabled, yet numerous medical professionals and clinicians have concluded he meets all the clinical criteria for a diagnosis of intellectual disability, highlights the need for Governor Parson to call a Board of Inquiry to determine the IDD claim. The letter concludes, “where there is meaningful evidence that a capital prisoner may be intellectually disabled …. there need to be additional steps taken to prevent a possible unconstitutional execution and protect the integrity of the justice system.”

Missourians for Alternatives to the Death Penalty is a statewide organization working to repeal the death penalty in Missouri by educating and informing fellow citizens and legislators about the costs and consequences of capital punishment.


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