Innocent Appeal. Missourians for Alternatives to the Death Penalty started this petition to Governor Michael L. Parson
The state of Missouri is set to kill an intellectually disabled man. Please help us call upon Governor Parson to grant clemency for Ernest Lee Johnson.
Ernest Lee Johnson was convicted of three counts of first-degree murder in the 1994 deaths of Mary Bratcher, Mable Scruggs, and Fred Jones, three employees of a Casey’s convenience store in Columbia, MO. In the past 26 years of appeals, courts have upheld his conviction but overturned the death sentences and granted new penalty phases due to errors in presentation of evidence about Johnson’s intellectual/developmental disability (I/DD). In 2002 The U.S. Supreme Court decided Atkins v. Virginia, holding that the 8th Amendment prohibits the execution of people with I/DD. The Supreme Court left to the states how to define I/DD in regards to eligibility for a death sentence. Missouri utilizes a three-part test to determine whether someone is intellectually disabled. A person must establish they have significantly sub-average intelligence, continual and extensive related deficits in two or more adaptive functions, and the onset of the intellectual disability prior to the age of 18. Ernest Johnson objectively meets all three categories.
Ernest Johnson’s full-scale IQ tests reveal him to have sub-average intellectual functioning. Intellectual functioning is measured using a full-scale IQ test administered by a trained test administrator. A person with I/DD will have an IQ of less than 70 to 75. In contrast, a person of “average intelligence” will test at 100 on the same scale. Ernest was tested throughout his life and those tests revealed his sub-average intelligence. For instance, In 1972, at the age of 12, Ernest scored a 63. In 2003 and again in 2004, he scored a 67 when tested by the defense and State experts in advance of trial. These results were all well within the range of sub-average intelligence required by Missouri law. Testing of Johnson’s IQ over more than 40 years establishes deficits in intellectual functioning that meet the standards set forth in Atkins and proves the onset of the I/DD was prior to age 18. Two experts, Dr. Keys and Dr. Smith also agreed “he had limitations in four of the nine adaptive behaviors that are identified under Missouri’s definition [of I/DD]… communication, home living, social skills, and functional academics.”
The evidence Ernest’s counsel presented through the testimony of doctors, combined with the historical data, established that he met the statutory definition of I/DD. But in 2006, during his third penalty phase, jurors decided to recommend Ernest be sentenced to death by lethal injection. His current attorney, Jeremy Weis, argued the jury was given instructions including a clinical definition of intellectual disability but no guidance on how to apply the clinical definition to the facts. He said that hampered their ability to consider his condition, resulting in a verdict inconsistent with the evidence presented. He told the Missouri Times, “If you don’t understand what an adaptive function is, there’s no definition that the court gave them. If you don’t understand what it means to have onset before the age of 18 and whether it’s documented before the age of 18, the court didn’t give any guidance on that. They didn’t talk about IQ scores, and what IQ score would qualify, what IQ score wouldn’t, the margin of error – things like that,” said Weis. Instead of leaving the determination to jurors, who are laypeople without clinical or scientific expertise, Weis argued for then Gov. Nixon to establish a special committee of experts to look at the evidence of Johnson’s I/DD. Instead, the US Supreme Court issued a stay to stop the execution pending the outcome of one of his appeals which center on claims that the state’s execution drug pentobarbital could violate the 8th Amendment and cause Johnson to experience violent seizures.
In addition to an I/DD Ernest had a brain tumor and in 2008 part of his brain was removed during surgery to remove the tumor. Scar tissue from the removal could cause him painful seizures after he is injected with pentobarbital, a seizure-inducing medication. Johnson’s execution was halted in 2015 when a U.S. Supreme Court ruling asked a lower court to review his case. His case has since gone up and down the court system.
During these appeals, Johnson challenged the constitutionality of lethal injection under the 8th Amendment. Mr. Johnson is seeking to hold the State of Missouri to the protections afforded by the 8th Amendment should they proceed with his execution. Mr. Johnson seeks an execution protocol that would be humane and consistent with Missouri law. The State, though, continues to push for Mr. Johnson’s execution using a method that will likely result in a cruel and painful death even though other methods of execution are readily available. Mr. Johnson’s case remains stayed by the U.S. Supreme Court while he argues the merits of his 8th Amendment claim in the federal courts. Even as attorneys for Johnson prepare their appeal for SCOTUS, Eric Schmitt, Missouri’s Attorney General has requested an execution date from the Missouri Supreme Court even though the U.S. Supreme Court’s stay remains in effect. We are hopeful the Missouri Supreme Court will not set an execution date while his case remains on appeal in the federal courts. While we wait for the Supreme Court to rule, Governor Parson has the powers to intervene granting Ernest Johnson clemency by amending his sentence to life imprisonment without the possibility of parole.
Today we ask you to sign this petition asking Governor Parson to prevent Missouri from engaging in torture. We ask Governor Parson to use his executive powers to grant clemency to Ernest Johnson and stop the execution of an intellectually disabled man.