A tremendous injustice may still occur in Missouri, if the Supreme Court of Missouri does not order an evidentiary hearing on Monday, November 28. Currently, the state of Missouri intends to execute Kevin Johnson on November 29th. A jury sentenced Johnson, a Black teenager, to death in 2008, for the shooting of an officer. But, the Prosecutor assigned to the case filed a motion to vacate Johnson’s conviction, citing evidence that former St. Louis Prosecutor Bob McCulloch “broke the law” by making prosecutorial decisions based on race in Kevin Johnson’s case and other Black defendants’ cases– an unsurprising finding to those of us who followed that administration closely. The Circuit Court denied the Prosecutor’s motion almost immediately, stating that there was insufficient time to review the allegations and hold a hearing as the law requires in the time remaining before the execution date. Would killing Johnson by the state’s arbitrary deadline be more important to the Circuit Court than addressing the racism that led to his death sentence?
Bob McCulloch’s unabashed statements about the value of Black Missourians’ lives and his prosecutorial record leave no doubt that Kevin Johnson was sentenced to die because he is a Black man convicted of killing a white police officer. Mr. Johnson’s race was not incidental or irrelevant.
The Judge’s order ignored Prosecutor Keenan’s finding that “as a practical matter, Mr. McCulloch employed two separate processes for the death determination in police officer killings: one for a White defendant, and another for Black defendants.” Out of the five police-officer killings McCulloch prosecuted, he pursued death against four Black defendants but not the one white defendant, Trenton Forster. He did this even though Forster had posted on social media about wanting to kill police officers, said he would kill “every single” Black person in the city, and attempted to kill a second officer. And, despite similar histories of mental illness and family trauma, McCulloch gave Forster a special opportunity to submit mitigating evidence to dissuade McCulloch from seeking death that he did not extend to Kevin Johnson or any of the three other Black defendants. McCulloch affirmatively sought out reasons not to pursue death for Trenton Forster.
The Judge also overlooked new evidence that McCulloch’s office illegally discriminated against Black jurors. In a criminal trial, the prosecutor and the defense each have an opportunity to remove a certain number of people from the pool of potential jurors without explanation. A prosecutor may not, however, strike potential jurors based on race. In Kevin Johnson’s first trial, the Court thwarted McCulloch’s attempt to do just that. Sniffing out McCulloch’s scheme, the Court explained that it would not allow the “arbitrary elimination of” Black jurors. McCulloch responded that the Court’s “silly” and “bizarre” decision “penalized” the prosecution. Read that again. McCulloch said on the record that by blocking his attempt to keep Black people off of Mr. Johnson’s jury and impanel an all-white jury, the Court had “penalized” him. Also supporting Keenan’s finding of discrimination against Black jurors is McCulloch’s unconvincing explanations for removing a Black juror with a background similar to seated white jurors during Mr. Johnson’s retrial.
On their own, these revelations about Kevin Johnson’s trial should have halted his execution, but there is even more evidence that racism pervaded all of McCulloch’s death penalty prosecutions. The Prosecutor’s motion to halt the execution comes only a month after Dr. Frank Baumgartner issued a report on McCulloch’s use of the presence of a white victim as an illegal “aggravating factor,” or a factor that makes the crime more egregious and dramatically increases the likelihood of a death sentence. In a review of McCulloch’s death cases, Baumgartner found that even after accounting for different circumstances in the case, cases with white victims were 3 to 4 times more likely than Black-victim cases to result in a death sentence. McCulloch was more likely (1) to charge someone with first-degree murder and (2) to seek the death penalty in cases with white victims.
It is undeniable that racism infected Kevin Johnson’s conviction and death sentence and likely all of the death cases McCulloch prosecuted. It is not, however, surprising. McCulloch has not hidden his disdain for young, Black people. He once publicly described them as a problem he “had to deal with.” McCulloch’s bizarre decisions to protect Ferguson police officer Darren Wilson led to a grand jury declining to indict Wilson for killing Black teen Michael Brown in 2014. Years earlier, he refused to prosecute officers for killing two unarmed Black men, later referring to the victims as “bums.”
Bob McCulloch’s unabashed statements about the value of Black Missourians’ lives and his prosecutorial record leave no doubt that Kevin Johnson was sentenced to die because he is a Black man convicted of killing a white police officer. Mr. Johnson’s race was not incidental or irrelevant; it was a key factor in Bob McCulloch’s handling of the case. The St. Louis County Circuit Court would not intervene because of it, but the Missouri Supreme Court will take this into consideration on Monday. Failure to stay Mr. Johnson’s execution so the prosecutor’s uncontested findings of racial bias can be heard in court will result in another unjust state-assisted murder of a Black man. The credibility of our legal system cannot survive yet another tragedy.
