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Special Prosecutor files Motion To Vacate Kevin Johnson’s Death Sentence Due to Racist Prosecution

ST. LOUIS, Missouri – On Tuesday night, Special Prosecutor E.E. Keenan appointed by Wesley Bell to review death row inmate Kevin Johnson’s case, filed a motion to vacate Johnson’s death Sentence. On Wednesday morning, only several hours after the motion was filed, the Circuit Court of St. Louis County denied the motion to vacate in a two line order. Kevin Johnson’s execution date is set for November 29, 2022.

In its motion to vacate, the State argued that at every stage of the capital prosecution overseen by former Saint Louis County Prosecuting Attorney Robert McCulloch, race played a decisive factor. The Special Prosecutor concluded that as a result, the State’s prosecution violated the Equal Protection clause. The Special Prosecutor’s findings should come as no surprise to those who have watched Saint Louis closely – earlier this year, prominent death penalty researcher Dr. Frank Baumgartner released a damning report on then-Prosecuting Attorney McCulloch’s capital charging and sentencing practices.

Of the five police-killing cases that occurred during his tenure in office, McCulloch sought the death penalty for four Black defendants and declined to seek it against the one white defendant, Trenton Forster, who was charged with killing a police officer. In that case, McCulloch’s office sent a written invitation to defense counsel to submit mitigating evidence and granted the defense nearly a year to prepare their arguments against the death sentence. However, in the cases with Black defendants, McCulloch never issued an invitation to submit mitigating evidence that might convince him not seek death. The St. Louis County Prosecutor’s Office had no written policy or procedure for deciding which cases warranted seeking a death sentence, those decisions were left solely to McCulloch’s discretion.

Michelle Smith, Co-Director at Missourians for Alternatives to the Death Penalty said, "Racism is expressed in the wielding of power held by those over social institutions. The way Kevin Johnson was treated and spoken about as compared to Trenton Forster, a white man who killed a police officer was treated, is a glaring example of the wielding of this power by Bob McCulloch. Kevin's abuse, neglect and mental illness were disregarded while Trenton's mental illness and history of abuse were adequate mitigation to keep him from facing the Death Penalty.

If capital punishment cannot be applied sans bias, prejudice, and underlying political motives, then this should not be a power that Prosecutors get to wield, because racism is indeed an embedded force in the court and carceral systems."

According to the motion to vacate, the Special Prosecutor attempted to contact McCulloch several times during his investigation into the case during the past month. McCulloch refused to even acknowledge any attempts at contact “all while giving a two-hour news media interview.”

The Special Prosecutor’s investigation also revealed that no one on Mr. Johnson’s prosecution team could justify their actions to pursue death for cases with Black defendants and not in a case with a white defendant, and argues that “[t]he Court can and should draw a credibility inference from the trial team’s refusal to give any real explanation of their decision.” The Special Prosecutor also argued that Mr. Johnson’s prosecutors “intentionally discriminated against Black jurors,” based on his discovery of a prosecution memo that revealed an intent to impermissibly strike jurors based on race. McCulloch and his team’s racial discrimination against jurors only highlights the pervasive racism underlying the entirety of Mr. Johnson’s trial.

Nimrod Chapel, Jr., President of the Missouri State Conference of the NAACP said:

“We all recognize the inherent injustice that is the death penalty and what it does particularly to people of color and poor people. It’s one thing to punish someone, and another thing to take their life away. Looking at the inherent bias in our criminal justice system, we must stop the execution of Kevin Johnson and abolish the death penalty, there is no reason for it at this time.”

Mr. Johnson’s case involves serious claims for which, but for racism, he would not have received a death sentence. It also contains all the hallmarks of a broken death penalty system, as Mr. Johnson, just 19 at the time of the offense, experienced serious neglect and both physical and sexual abuse as a child.

These incredibly disturbing allegations leveled by the Special Prosecutor deserve to

be heard in court.

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