ST. LOUIS — The Missouri Supreme Court on Monday overuled a motion to vacate the death sentence of Kevin Johnson.
The court's 5-2 decision means that Johnson, 37, will die by injection at 6 p.m. Tuesday for killing Kirkwood police Sgt. William McEntee in 2005 unless the U.S. Supreme Court intervenes.
"We are incredibly disheartened by the Missouri Supreme Court’s denial of a stay for Mr. Johnson and the court’s complete disregard for the law in this case," said Johnson's attorney, Shawn Nolan. "We will immediately appeal to the Supreme Court ... and we are confident that the court will stop Mr. Johnson’s execution so that justice can prevail.”
Also on Monday, Missouri Gov. Mike Parson announced that he will not grant clemency.
The state Supreme Court convened an emergency hearing Monday to consider special prosecutor E.E. Keenan's motion to vacate the death sentence. In October, St. Louis Circuit Judge Mary Elizabeth Ott appointed Keenan to investigate racial bias claims. His motion earlier this month stated that race played a “decisive factor” in the death sentence.
Still, Ott declined to intervene, prompting the hearing before the Missouri Supreme Court.
“The evidence was clear that there was racial discrimination infecting this prosecution,” Keenan told the justices.
Assistant Attorney General Andrew Crane responded that there was no reason the execution shouldn't proceed.
“It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and that a fair jury determined he deserves the death penalty,” Crane said.
Keenan said former St. Louis County Prosecutor Bob McCulloch’s office handled five cases involving the deaths of police officers during his 28 years in office. McCulloch sought the death penalty in the four cases involving Black defendants, but did not seek death in the one case where the defendant was white, he said.
McCulloch does not have a listed phone number and could not be reached for comment.
"Both claims the special prosecutor brings now are largely just re-packaged versions of claims Johnson has brought (and seen rejected) many times before. Nothing in the special prosecutor’s motion materially changes these claims or offers any greater likelihood of success than those claims have had in the past," the court wrote in its opinion.
The U.S. Supreme Court turned down a stay request last week. Meanwhile, Parson minced no words in announcing his decision to let the execution proceed.
“The violent murder of any citizen, let alone a Missouri law enforcement officer, should be met only with the fullest punishment state law allows,” Parson, a Republican and a former county sheriff, said in a statement. “Through Mr. Johnson’s own heinous actions, he stole the life of Sergeant McEntee and left a family grieving, a wife widowed, and children fatherless. Clemency will not be granted.”
Johnson’s lawyers have cited racism concerns previously. An earlier court petition stated that if not for racial comments by two white jurors at his trial, Johnson could have been convicted of second- instead of first-degree murder and spared the death penalty.
McEntee, a 43-year-old husband, and father of three, was among the officers sent to Johnson’s home on July 5, 2005, to serve a warrant for his arrest. Johnson was on probation for assaulting his girlfriend, and police believed he had violated probation.
Johnson saw officers arrive and awoke his 12-year-old brother, Joseph “Bam Bam” Long, who ran to a house next door. Once there, the boy, who suffered from a congenital heart defect, collapsed and began having a seizure.
Johnson testified at trial that McEntee kept his mother from entering the house to aid his brother, who died a short time later at a hospital.
Later that evening, McEntee returned to the neighborhood to check on unrelated reports of fireworks being shot off. A court filing from the Missouri attorney general’s office said McEntee was in his car questioning three children when Johnson shot him through the open passenger-side window, striking the officer’s leg, head and torso. A teenage bystander also was struck and wounded. Johnson then got into the car and took McEntee’s gun.
The court filing said Johnson walked down the street and told his mother that McEntee “let my brother die” and “needs to see what it feels like to die.” Though she told him, “That’s not true,” Johnson returned to the shooting scene and found McEntee alive, on his knees near the patrol car. Johnson shot McEntee in the back and in the head, killing him.
Johnson’s lawyers also have asked the courts to intervene for other reasons, including a history of mental illness and his age — 19 — at the time of the crime. Courts have increasingly moved away from sentencing teen offenders to death since the Supreme Court in 2005 banned the execution of offenders who were younger than 18 at the time of their crime.
Johnson’s 19-year-old daughter, Khorry Ramey, had sought to witness the execution, but a state law prohibits anyone under 21 from observing the process. Courts have declined to step in on Ramey’s behalf.
“It doesn’t benefit this state. It doesn’t benefit our society to kill Kevin Johnson,” said the Rev. Darryl Gray, who is Johnson's spiritual adviser.
Gray was one of dozens of death penality opponents who demonstrated outside the Missouri State Capitol on Monday.
“Kevin has struggled with his faith, and one thing he worked through was that fractured faith is better than no faith at all. And I think that is what’s getting him through this,”said Gray.
The execution would be the 17th in the U.S. this year and the first of three in the coming months in Missouri. The state plans to execute convicted killers Scott McLaughlin and Leonard Taylor on Jan. 3 and Feb. 7, respectively.
5 On Your Side's Robert Townsend contributed to this report.