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The State must act to ensure an intellectually disabled man is not executed

(Jefferson City) -- On Monday, June 21st, attorneys filed a rule 91 asking the Missouri Supreme Court to withhold setting an execution date for Ernest Johnson and remand his case to a special master to determine if Ernest has an intellectual disability (ID). (Petition Attached)

In 2006, Ernest Johnson was sentenced to death for the third time after a jury found that he had not proved that he had an intellectual disability. The presentation of evidence of Mr. Johnson’s ID was rife with error and was far from a science-based clinical approach. Two state experts refuted the ID claim, and one was a test administrator who accused Ernest of malingering, even though he earned the exact same score on the exact same test administered by the defense. These ‘experts’ were never called to testify and were never cross-examined by the defense. Instead, prosecutors encouraged the jury to ignore science and rely on racial stereotypes and stereotypes about people with ID. For example, prosecutors argued Ernest couldn’t be disabled because “he has street smarts,” they relied on prison behavior - he’s got a tv, he’s got cable, plays cards, rec four or five times a day, and they argued the diagnosis was just “something they are using to get him out of appropriate punishment.”

Monday’s filing asks for a new trial to present additional evidence strengthening the ID claim and relying on scientific and medical texts and experts in the field. Included in the additional evidence is an affidavit from Cindy Malone, a mitigation specialist on Ernest Johnson’s State Post Conviction Relief case in 2008. Malone asserts that on November 4, 2015, the day of Ernest’s last set execution date, Ernest called her frequently. The US Supreme Court stayed Ernest’s execution sometime after 6 pm. The next day, on November 5, Ernest called her around 9 AM, asking if he “could go to sleep now.” He did not understand the execution was called off. Malone’s affidavit is one of 24 attachments to the petition filed on Monday.

It was unconstitutional to require Mr. Johnson to prove his intellectual disability unanimously. Atkins v. Virginia requires the State to prove Mr. Johnson is not disabled and not the other way around. Johnson asserts that he has not had an opportunity for a fair and reliable determination of his intellectual disability and asks for a new trial where the jury is properly instructed on intellectual disability. A pending Amicus Brief from retired Missouri Judges and Harvard Law School’s Fair Trial Class supports this claim. It asks the Court to reverse Johnson’s death sentence and rewrite Missouri Approved Instructions to include the constitutionally required unanimous finding that a defendant is not intellectually disabled. “Allowing a single juror to control whether to impose death on a person with an ID is the exact definition of arbitrariness in the application of the death penalty,” said MADP State Director Elyse Max.

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