The St Louis County prosecutor pursued a death sentence for Kevin Johnson before calling for a retrial due to the “unconstitutional racial bias” in the case. But Missouri executed him anyway — killing a black man without even a semblance of due process.

Kevin Johnson was executed in late November 2022 for the 2005 murder of police sergeant William McEntee. (Missourians for Alternatives to the Death Penalty)

Kevin Johnson should have lived to see the New Year. He might have, if the St Louis County prosecutor — the same office that had pursued the death sentence for Johnson — had filed its motion to vacate his conviction even days earlier.

It was August 24, 2022, when Kevin Johnson learned that he had ninety-seven more days to live. The Missouri Supreme Court had just issued his warrant of execution, scheduled for November 29, 2022. That day, Johnson wrote in his journal, “My future seemed clear now that there was no more maybes and what ifs. . . . The sun was hitting my face hard and I enjoyed every moment of it as I wondered if this would be my last time being able to feel it.”

Kevin Johnson was pronounced dead at 7:40 p.m. on November 29, 2022. He was executed by the state of Missouri for the 2005 murder of police sergeant William McEntee.

That night marked the tragic end of a yearslong campaign to overturn Johnson’s death sentence. Johnson’s final words, emailed to his former elementary school principal, read, “Although my fight is over, the fight for this cause is never dying. Continue to stand up to racism. Continue to change the narrative.” The efforts to prevent Johnson’s execution did not rely on appeals to innocence: Johnson testified during his trial and admitted to the crime. Nevertheless, St Louis activists collected petitions with over forty thousand signatures, made hundreds of calls to the governor’s office, and held dozens of rallies across the state.

But it wasn’t only activists working to stop Johnson’s execution. The St Louis County prosecutor’s office — the same office that secured the conviction — had reopened Johnson’s case for investigation and found substantial evidence of “unconstitutional racial bias” throughout the trial.

Two weeks before the scheduled execution, Special Prosecutor E. E. Keenan, acting on behalf of the prosecutor’s office, submitted a detailed fifty-four-page motion to vacate Johnson’s conviction.

That motion was filed on November 15, 2022, pursuant to a newly passed Missouri law that empowers prosecutors to reopen cases where there is evidence of constitutional error.

Under the law, if a prosecutor files such a motion, the circuit court is required to hold a hearing to review the evidence and make findings of fact.

However, because the motion to vacate Johnson’s conviction was filed at the last minute, instead of holding that statutorily mandated hearing, the Missouri courts prioritized scheduling concerns over Johnson’s life. This meant executing him without ever considering the new evidence brought forth by the prosecutor’s office. The court’s reasoning was purely procedural: there was simply not enough time to schedule a hearing before the execution.

It was infamous county prosecutor Bob McCulloch who originally sought the death penalty for Johnson. But it was McCulloch’s successor, progressive prosecutor Wesley Bell, who attempted to reverse the conviction. In the weeks leading up to Johnson’s execution, the St Louis County prosecutor faced off against the Missouri attorney general in a legal battle over the constitutionality of Johnson’s conviction. In a bizarre matchup, it was essentially city prosecutor vs. state prosecutor, with Johnson’s life hanging in the balance. In the end, the efforts from Bell’s office were too little, too late.

The court’s reasoning was purely procedural: there was simply not enough time to schedule a hearing before the execution.

On the day of Johnson’s execution, his defense attorney submitted a final application for an emergency stay of execution to the US Supreme Court. Johnson’s attorney argued that Missouri was “poised to execute Kevin Johnson, not for his crimes, but because he is black and his victim was white.”

Later that evening, only half an hour before Johnson’s execution, in a 7–2 split decision, the US Supreme Court declined Johnson’s application for an emergency stay of execution.

The day after the execution, the newest Supreme Court justice, Ketanji Brown Jackson, published a stinging written dissent in which she was joined by Sonia Sotomayor. Jackson wrote that the execution should have been stayed because the Missouri Supreme Court’s interpretation of state law was “so fundamentally flawed, and so at odds with basic due process principles,” that it constituted a violation of the Fourteenth Amendment.

Bob McCulloch

In 2005, when the shooting took place, Bob McCulloch was the St Louis County prosecutor. McCulloch was an old-school “hang ’em high” prosecutor who would later make international headlines in 2014 when he declined to prosecute Ferguson police officer Darren Wilson for the murder of black teen Michael Brown.

Both of McCulloch’s parents worked for the St Louis Police Department, and as a child he dreamed of becoming a cop himself. McCulloch’s father was a St Louis Metropolitan Police officer who was allegedly shot and killed by a black man, Eddie Steve Glenn. Glenn was convicted and sentenced to death for the shooting. However, his sentence was later reduced to life in prison when the Supreme Court ruled capital punishment unconstitutional in 1972.

Although he has often denied that his personal life had any impact on his prosecutorial decisions, McCulloch’s career has been defined by two things: protecting St Louis police from prosecution and seeking the death penalty against as many defendants as possible. Over his twenty-eight-year career, McCulloch fought to secure twenty-three death sentences against defendants in St Louis County, the majority of whom were black. Over the same time, McCulloch famously never prosecuted a single police officer for a shooting — this despite the fact that the St Louis police are notoriously lethal.

Johnson’s Life and His Crime

Life wasn’t easy for Kevin Johnson. During his early childhood, Johnson recounts suffering neglect and routine abuse from his mother. The family lived in a garage that had been converted to a one-room shack, and Johnson’s father had been convicted of first-degree murder and was serving time in a Missouri state prison.

Johnson was six years old when his younger brother Joseph “Bam Bam” Long was born. In a video from prison, Johnson describes falling in love with Bam Bam when he held the newborn baby for the first time. Bam Bam had tubes running out of his nostrils and mouth after undergoing open-heart surgery just three days after birth. Bam Bam suffered from a congenital heart defect due to his mother’s drug use throughout the pregnancy. Holding this vulnerable baby, Johnson vowed to be there for Bam Bam in a way no one had been for him. Johnson wanted to be someone Bam Bam “could depend on through thick and thin. Somebody who would protect him at all costs.”

Despite hardships, Johnson was affable and well-liked by his peers. From a young age, his teachers and coaches took a special interest in him as a gifted athlete and an intelligent student.

Though he was transferred in and out of homes around the city, Johnson spent most of his life in Meacham Park, a poor neighborhood tucked inside Kirkwood, a larger and otherwise affluent suburb of St Louis County. Johnson’s grandmas Pat and Henrietta owned neighboring houses on Saratoga Street.

On July 5, 2005, the Kirkwood police came to the neighborhood looking for Johnson for an alleged probation violation. They were examining Johnson’s car, parked in front of the houses, when Bam Bam collapsed in the front hallway of Grandma Pat’s. He was having a seizure. Grandma Pat started yelling for the police to come quick — saying Bam Bam had collapsed. The family recounts that the police slow-walked their way up the front lawn, and when they arrived at the house, multiple officers stepped over Bam Bam’s body, which was lying facedown in the entryway, in order to continue looking for Johnson.

Johnson watched in horror from next door as officers forced all family members to leave the house. Sergeant McEntee arrived on the scene, and when Johnson’s mother, Jada, came, crying and panicked about Bam Bam, she tried to enter the house. Johnson recalls that Sergeant McEntee was rough as he restrained his mother, blocking her way and pushing her so hard she almost fell off the front porch.

McCulloch was an old-school ‘hang ’em high’ prosecutor who made international headlines when he declined to prosecute Ferguson police officer Darren Wilson.

Bam Bam was eventually taken by ambulance to the hospital where he was pronounced dead. He was twelve years old. The loss was too much for Johnson to handle. He was distraught, consumed by guilt and anger. Johnson picked up a nine-millimeter handgun and began walking the streets of Meacham Park. Johnson encountered friends in the neighborhood who heard what had happened and tried to console him over Bam Bam’s death.

Sergeant McEntee was back in Meacham Park, patrolling the neighborhood and responding to reports of fireworks. Johnson was walking down the street, passing on the passenger side of the police car, when he realized it was McEntee. According to Johnson, McEntee flashed him a smile and Johnson snapped. Reaching in the car, he fired seven bullets in under three seconds, yelling, “You killed my brother!”

The Trials

From the beginning, County Prosecutor Bob McCulloch took a personal interest in Johnson’s case. McCulloch attended the funeral for Sergeant McEntee and spoke to the crowd, recounting that his own father was a police officer who was shot and killed in the line of duty more than forty years earlier. McCulloch said nothing can describe the shock of suddenly finding out that “Dad won’t ever be coming through the door and home from work again.”

Though his role as head of the prosecutor’s office was supervisory, McCulloch made the unusual decision to handle Johnson’s case personally and sit as the lead trial prosecutor. McCulloch charged Johnson with capital murder and sought a death sentence for the teenager.

Johnson’s first trial began in April 2007 and lasted five days. Jurors were sequestered for the entire trial. After only twelve hours of deliberations, the judge declared a mistrial based on a hung jury. At the time of the mistrial, the jury was voting 10–2 in favor of the lesser charge of second-degree murder.

Johnson’s second trial began in October 2007. This time, McCulloch took a decidedly more aggressive approach, starting with jury selection. While the jury in the first trial was evenly divided with six white and six black jurors, for the second trial, McCulloch was able to secure an overwhelmingly white jury. McCulloch also ensured that the courtroom was packed with uniformed police officers. The jury deliberated for less than four hours before coming back with a guilty verdict on the charge of first-degree murder and a recommendation of death by lethal injection.

On November 29, 2022, McCulloch traveled to a state prison in Bonne Terre, Missouri, fulfilling his vow to personally witness Johnson’s execution.

Ferguson and Wesley Bell

In 2014, while Johnson’s appeals were winding their way through the state and federal courts, the St Louis area was erupting in protests after Ferguson police officer Darren Wilson shot and killed eighteen-year-old Michael Brown. Bob McCulloch, the same prosecutor who sought the death penalty against black teenagers like Johnson, declined to bring charges against white police officer Darren Wilson. Johnson and other inmates watched the news closely from prison. He was particularly disturbed by the fact that Brown’s dead body had been left on the street for four hours, writing at the time, “That kid lying dead on that cold concrete ground for four hours wasn’t just Mike Brown, it was me, Bam Bam, Trayvon Martin and every other black male mistreated and neglected by a corrupt system who didn’t give two shits about us.”

On August 7, 2019, days before the fourth anniversary of Michael Brown’s murder, Wesley Bell defeated Bob McCulloch to become the new St Louis County prosecutor. Like McCulloch, Bell is the son of a police officer, but unlike McCulloch, Bell was elected on the promise of progressive reforms. Shortly after taking office, Bell formed a Conviction and Incident Review Unit (CIRU) with a mission to review officer-involved shootings, allegations of police misconduct, and claims of wrongful prosecution.

For the second trial, McCulloch was able to secure an overwhelmingly white jury.

On December 1, 2021, the CIRU received an application from Johnson, pursuant to the new Missouri law, asserting that he was a victim of pervasive racial discrimination practiced by that office and requesting an investigation.

Eleven months later, on October 12, 2022, Bell’s office requested the appointment of E. E. Keenan as a special prosecutor to handle the investigation. Once appointed, Keenan was tasked with reviewing over thirty thousand pages of documents, interviewing witnesses, and conducting legal research. Keenan moved quickly, and on November 15 he submitted a motion to vacate the judgment against Johnson, concluding that Bob McCulloch “intentionally discriminated against Black jurors in Johnson’s case” and “unconstitutional racial discrimination infected the prosecution.” Upon receiving such a motion, Missouri law requires the circuit court to hold a hearing on the matter to examine all evidence.

Despite the new evidence and the statutory mandate for a hearing, on November 19, circuit court judge Mary Elizabeth Ott published an order denying the special prosecutor’s motion. Judge Ott did not deny the motion because it lacked merit; she denied it because there was no time to schedule a hearing before the execution.

In her decision, Ott wrote, “The failure to bring these claims to this Court’s attention . . . prior to November 15, 2022, or fourteen days prior to the date set for the execution of Kevin Johnson is inexplicable. Similarly, the failure of the Saint Louis County Office of Prosecuting Attorney to recognize the conflict of interest . . . prior to October of 2022 is disconcerting.”

“Disconcerting” is putting it lightly. In one of Keenan’s court filings is a section titled “There was no Undue Delay”; there, Bell’s office attempts to explain the timeline by stating that although Johnson applied for review in December 2021, he indicated on his application that he would be supplementing it later. Johnson provided that supplemented information in April 2022. Bell’s office then claims it “promptly reviewed the revised application” and determined a month later, in May 2022, that although the application had merit, the office had a conflict of interest.

The explanation doesn’t quite hold water. After all, the conflict of interest would have been apparent from the very moment Bell’s office received Johnson’s application in December 2021. Johnson’s case was extremely high profile, widely covered by the media, and his primary defense attorney, Robert Steele, held a leadership position at the county prosecutor’s office. Such a glaring conflict of interest does not take one month to discover, much less six months.

On August 24, 2022, the Supreme Court of Missouri issued a death warrant for Johnson. He was scheduled to be executed November 29, 2022. In a journal entry the next day, Johnson wrote that his “only true hope” was the appointment of a Special Prosecutor for his case. It had been nine months since he submitted his application for review to Bell’s office. Johnson wrote, “What the freak was the hold up? I only have 96 more days to live . . . literally.”

As a self-proclaimed progressive prosecutor, it is Wesley Bell’s job not only to refrain from engaging in the same racist prosecutorial practices as McCulloch but to competently work to rectify the continuing injustices set in motion by his predecessor. Bell’s office hired many former defense attorneys, a laudatory move for progressive prosecutors. But one effect of reaching across the aisle to make hires is the predictable conflicts of interest that arise. In Johnson’s case, the delay of eleven months between that application being submitted and a special prosecutor being appointed is unacceptable.

Jacobin reached out to Bell’s office with a list of questions concerning the timeline in this case: why it took six months recognize their conflict of interest and another five months to appoint a special prosecutor. Bell’s office was unable to answer these questions.

Kevin Johnson is dead and none of his family, friends, or supporters will know what might have happened if the prosecutor’s office had filed its motion even one week earlier. As Supreme Court justice Jackson noted in her dissent, “it appears that much of the evidence that could have been presented at the nonexistent hearing was new evidence relating to the trial prosecutor’s racially biased practices and racially insensitive remarks.”

There was no justice for Kevin Johnson during his life, and there is no closure to be found in his death, only a city further wounded by state violence. Kevin Johnson was a devoted father, a skilled writer, a gifted athlete, and a cherished member of the St Louis community. May he rest in peace and in power.

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