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Ernest Johnson Attorneys File for rehearing based on Revised DSM-5

Ernest Lee Johnson is a man with intellectual disability, yet the State of Missouri plans to execute him anyway. If allowed to proceed, his execution will violate the Eighth Amendment to the Constitution and twenty years of U.S. Supreme Court precedent. Although the process by which the Missouri trial jury determined that Mr. Johnson is eligible for execution is fundamentally flawed, as pointed out by former judges on the Missouri Supreme Court and the American Bar Association, the courts have been unwilling to provide him a new forum to present his claims. As Mr. Johnson’s October 5, 2021 execution date rapidly approaches, his attorneys have asked the Missouri Supreme Court to reconsider the lack of reliance on clinical standards set forth by the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5), and Intellectual Disability: Definition, Diagnosis, Classification, and Systems of Supports (12th ed. 2021). If not reconsidered, Mr. Johnson will be unconstitutionally executed.

There are three diagnostic criteria for assessing intellectual disability: 1) evidence of sub-average intellectual functioning; 2) deficits in adaptive behavior; and 3) onset of deficits prior to the age of eighteen. Mr. Johnson’s IQ scores over five decades consistently show that he is a person with sub-average intellectual functioning. The IQ scores are also consistent with academic achievement tests conducted in his childhood. As one teacher recalled, as a teenager, Mr. Johnson could not draw a straight line with a ruler. Unfortunately, Mr. Johnson never received academic or social services help. Mr. Johnson, an African-American man born into poverty in Steele, Missouri, was the product of a segregated school system, which—when finally integrated—denied his teachers’ request to have him tested for special education and academic supports to allow Mr. Johnson to succeed.

Mr. Johnson is convicted of a 1994 triple homicide conducted during a botched armed robbery, which Mr. Johnson committed while under the influence of and severely addicted to crack-cocaine. In their most recent filing, Mr. Johnson’s lawyers dispute Missouri’s reliance on the facts of the crime as evidence that he is not a person of intellectual disability. Clinical guidelines and the United States Supreme Court have rejected precisely this approach. Indeed, if persons with intellectual disability were unable to plan to commit capital offenses, there would be no need for the long line of Supreme Court cases governing the exclusion of persons with intellectual disability from the death penalty.

Every expert applying clinical criteria to evaluate Mr. Johnson has found Mr. Johnson satisfies the three diagnostic criteria for intellectual disability. And although absent from the Missouri statute for determining intellectual disability in capital cases, the Missouri Supreme Court held that Mr. Johnson must prove a causal connection between his intellectual functioning deficits and his adaptive deficits. Requiring such a causal connection is a misunderstanding of the science around intellectual disability diagnoses and increases the likelihood of a wrongful execution. Indeed, the wording in the DSM-V giving rise to this confusion will be removed in the newest version of the manual, specifically considering its problematic application and potential for misunderstanding. Mr. Johnson’s attorneys filed with the Missouri Supreme Court a letter from the Chair of the DSM Steering Committee to assist the Court in correcting this error.

Numerous experts, including one in the last year, have evaluated Mr. Johnson over the course of his life and found that he is a person with intellectual disability. Mr. Johnson attended a segregated special education school where rigorous academic evaluation or support were not available. Nevertheless, teachers testified at trial about intellectual deficits that were already obvious when Mr. Johnson was a child. Despite all this evidence, Missouri is adamant about executing Mr. Johnson and crediting the flawed jury determination that he is eligible for execution.

If the Missouri Supreme Court does not allow Mr. Johnson a new forum to present evidence of intellectual disability governed by modern diagnostic standards, the State will execute an intellectually disabled person in violation of the Constitution.

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