Case No.

SC99873

In the Supreme Court of Missouri

STATE OF MISSOURI
Plaintiff,

v.

KEVIN JOHNSON,
Defendant.

SPECIAL PROSECUTOR’S MOTION FOR STAY OF

EXECUTION AND SUGGESTIONS IN SUPPORT

Edward (E.E.) Keenan

JR Montgomery
KEENAN & BHATIA, LLC
4600 Madison Ave., Ste. 810
Kansas City, MO 64112
(816) 809-2100
ee@keenanfirm.com
jr.montgomery@keenanfirm.com

Special Prosecutor for Plaintiff

State of Missouri
 INTRODUCTION

This Court issued an execution warrant for defendant Kevin Johnson for

November 29, 2022. The Special Prosecutor has determined that racist

prosecution techniques infected Mr. Johnson’s conviction and death sentence.

Unless this Court stays the execution, the result in this case will forever have

this cloud over it. This Court should stay the execution so that the Special

Prosecutor may pursue the Legislatively-conferred right to appeal the Circuit

Court’s summary denial of the motion to vacate.

At the time it appointed a Special Prosecutor, the Circuit Court knew of

the pending November 29, 2022 execution date. The Special Prosecutor faced

a high task: review a case file spanning some 31,744 pages, reach out to

witnesses, conduct legal research, and make follow-up document requests that

led to 12 more boxes of files. The Special Prosecutor reviewed all this evidence.

Having determined that the facts compelled action, the Special Prosecutor filed

an extensive motion to vacate on November 15, 2022.

The Circuit Court - in direct contravention of RSMo § 547.031’s language

- denied it summarily the next morning.

Section 547.031 grants prosecutors a clear mandate: to file a motion to

vacate an illegal judgment, to see that motion through an evidentiary hearing,

and to appeal if the Circuit Court denies relief. See RSMo § 547.031. This

mandate will prove pointless if the execution moves forward.

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 I. SUMMARY

This Court has issued an execution warrant for defendant Kevin Johnson

for November 29, 2022. The Special Prosecutor has determined that

purposeful racial discrimination infected Mr. Johnson’s conviction and death

sentence, and filed a motion to vacate the judgment. But the Circuit Court has

determined there was insufficient time to conduct the required hearing, and to

issue findings of fact and conclusions of law, and denied the motion. Unless

this Court stays the execution, the claims of racial discrimination will never be

heard, and the result will forever have this cloud over it. This Court should

stay the execution.

At the time it appointed a Special Prosecutor, the Circuit Court knew of

the pending November 29, 2022 execution date. The Special Prosecutor faced

a high task: review a case file spanning some 31,744 pages, reach out to

witnesses, conduct legal research, and make follow-up document requests that

led to 12 more boxes of files, all in a month. Having determined that the facts

compelled action, the Special Prosecutor filed an extensive motion to vacate on

November 15, 2022.

The Circuit Court - citing RSMo § 547.031’s requirement for a hearing,

and findings of fact and conclusion of law – has recognized that, short of a stay,

it is impossible to comply with the Legislature’s dictates. Order and

Judgement, November 19, 2022, at 4.

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 Section 547.031 grants prosecutors a clear mandate: to file a motion to

vacate an illegal judgment, to see that motion through an evidentiary hearing,

and to appeal if the Circuit Court denies relief. See RSMo § 547.031.

The Special Prosecutor has acted with lightning speed in pursuing this

case. But, as the Circuit Court recognized, the scant time left is both a

physically and legally impossible timeframe in which to do this legal duty.

Preparing for the hearing will, at the very least, require noticing and

taking the depositions of two of the trial prosecutors, Robert McCulloch and

Patrick Monahan, because both have outright refused to talk with the Special

Prosecutor. (Ex. 3, Bradford Aff.) The Special Prosecutor even asked Mr.

McCulloch if he could spare five minutes for a phone call. (Ex. 4, McCulloch

Corr.) Under RSMo § 547.031, the Attorney General has the right to intervene

and prepare for the hearing; due process would likewise require that Mr.

Johnson have time to prepare, as his rights are at stake. And if the Circuit

Court does not grant the motion to vacate, the Legislature has conferred on the

Prosecutor an absolute right to appeal. See id. To put it mildly, it is not

realistic for this all to happen in the remaining time available.

The State meets the standards for a stay. The State has a strong

likelihood of success on the merits. Procedurally, as the Circuit Court

recognized, there is insufficient time to conduct the required hearing, as an

expedited hearing would be unfair to the Attorney General. Order and

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Judgement, November 19, 2022, at 4. Substantively, the evidence proves that

racial considerations motivated the decision-making in Mr. Johnson’s case.

The balance of equities overwhelmingly favors a stay. Executing Kevin

Johnson on November 29, 2022 will effectively decide the merits of the Section

547.031 motion and its appeal without the due process that the state

legislature and the Constitution guarantee. Section 547.031 - passed by the

current Legislature and signed by the current Governor - provides for a

hearing, findings of fact and conclusions of law, and a right to appeal. See

RSMo § 547.031.

The State would suffer irreparable injury because it will not be able to

vindicate its right to seek review of the judgment under Section 547.031, a

process that includes a hearing and a right to appeal.

A stay serves the public interest. Our constitutional systems depends on

democratic processes and separation of powers. Section 547.031 is a duly-

enacted law. Its procedural mandates are not options, they are obligations.

Executing Mr. Johnson on the current schedule effectively repeals a statute

the Legislature passed and the Governor signed without the attendant

democratic processes. Enforcement of a democratically-passed law always

serves the public interest. Further, the public interest is served by vindication

of constitutional rights, as well as the State’s and the Prosecutor’s sovereign

and individual interest in ensuring that justice be done. See MO. R. P. C. 4-3.8.

4
 This motion is not the sort of Hail Mary pass that courts often see in

death penalty cases. For one, it comes from the State. Further, the timing of

this motion is not a matter of the State’s choosing. The statute at issue only

came into being last year. The undersigned Special Prosecutor was only

appointed to this case last month, and had an ethical duty to investigate the

facts before filing a motion to vacate and seeking a stay. The Special

Prosecutor could not have responsibly moved for a stay any sooner than now.

Finally, the process here is a process specifically authorized by the law, and

the failure of the Circuit Court to follow it is plain and obvious: the court held

no hearing and issued no factual findings.

A stay will respect the separation of powers, permit a Court to assess the

newly-discovered facts on the merits, and ensure public confidence in the

outcome of this case, whatever it may be. The Court should grant the stay.

II. FACTUAL AND PROCEDURAL BACKGROUND

The police were looking for Mr. Johnson at a family residence to serve an

outstanding warrant for a probation violation resulting from a misdemeanor

assault.1 While the police were present, Mr. Johnson’s twelve-year old brother

suffered a seizure and was dying of heart failure. Mr. Johnson was observing

1 These facts come generally from State v. Johnson, 284 S.W.3d 561,
567-68 (Mo. banc 2009), as well as the case record here and in the Circuit
Court.

5
unseen from next door. Mr. Johnson would later be heard saying that the

police, including Sgt. William McEntee, were consumed with arresting him,

and blaming the death of his younger brother on police indifference to the

medical emergency.

Two hours after the seizure, Sgt. McEntee responded to a report of

fireworks in the neighborhood. Mr. Johnson approached Sgt. McEntee’s patrol

car and was heard to accuse him of killing his brother before firing several

times. Sgt. McEntee’s patrol car rolled down the street, coming to rest at a tree.

Mr. Johnson returned and fired additional shots, killing Sgt. McEntee.

After an initial trial resulted in a hung jury split 10-2 in favor of

conviction on the lower charge of second-degree murder, a new trial jury found

Mr. Johnson guilty of one count of first-degree murder, and sentenced him to

death.

On August 28, 2021, RSMo § 547.031 went into effect. Mr. Johnson

timely requested review under the statute. (See Motion for App’t of Special

Prosecutor, filed Oct. 12, 2022, available on Case.net in underlying case.) On

December 1, 2021, the St. Louis County Prosecuting Attorney’s Office received

an application from Mr. Johnson pursuant to RSMo § 547.031, asserting that

he was a victim of pervasive racial discrimination practiced by that office and

requesting investigation of his allegations. (Id.)

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 That office conducted an initial investigation into Mr. Johnson’s

application. The investigation remained incomplete because the office

determined that a conflict of interest precluded further participation, and

sought to identify a special prosecutor to handle Mr. Johnson’s case. (Id.) The

office engaged in a lengthy search for a qualified, disinterested, and available

candidate.

The State and Mr. Johnson were at all times diligent. RSMo § 547.031

authorizes the Prosecuting Attorney of the county of conviction to seek to set

aside a judgment if it finds clear and convincing evidence of a wrongful

conviction. Mr. Johnson made his initial application in December, 2021, and

amended it an April 2022, before the current execution warrant issued, citing

inter alia an ongoing but a yet to be completed study of Mr. McCulloch’s capital

decision-making and intervening law relevant to discrimination at jury

selection. Only after it determined the St. Louis County Prosecuting Attorney

could not, within the bounds of its professional and ethical responsibilities,

continue to consider Mr. Johnson’s application, did it begin the process of

seeking a Special Prosecutor. The Conviction Incident and Review Unit has

represented to the Special Prosecutor that the fact an execution warrant had

issued, and the requirement that any special prosecutor candidate not only be

competent and willing but also itself be free of any potential conflicts (including

the active representation of any client where the St Louis County Prosecuting

7
Attorney), made the task exponentially more difficult, with numerous

otherwise qualified candidates ultimately having to decline.

By October 12, 2022, the Prosecutor’s Office identified a qualified,

disinterested, and available candidate for Special Prosecutor, who was

appointed by the Circuit Court on that date. (Id.) Upon appointment the State

moved diligently in investigating Mr. Johnson’s allegations.

Given the scant few weeks since the appointment, the Special Prosecutor

(mindful of the execution warrant) has filed the Section 547.031 Motion as soon

as it was clear the standard was met and the allegations capable of proof. The

Special Prosecutor has attempted to ensure that not only Mr. Johnson’s

allegations were adequately investigated but also that the State’s interest in

the preservation of a fairly earned judgment—if indeed that had proved to be

the case—were respected. In the end, the evidence was so clear that the

Special Prosecutor had no ethical option but to move to vacate the judgment.

The Special Prosecutor filed this motion yesterday last Tuesday evening.

Concurrently with the filing of the Motion, but prior to its disposition,

the Special Prosecutor sought a stay in this Court so that the required hearing

could be conducted. This Court found the stay request by the State to be

premature, as no matter to which Special Prosecutor was party was yet

pending. Now that that there is a final Order and Judgment, and the State has

appealed, the Special Prosecutor has standing to be heard as to a stay request.

8
RSMo § 547.031 (4) (“The prosecuting attorney or circuit attorney shall have

the authority and right to file and maintain an appeal of the denial or disposal

of such a motion.”) The stay request is properly ancillary to the right to

“maintain” an appeal as conferred by the statute. Without such a stay, the

Special Prosecutor’s appeal will become moot.

The Circuit Court denied it Wednesday morning in a summary order.

The Special Prosecutor then sought a stay in this Court. On Thursday, this

Court denied a stay “on the ground that there are no matters pending before

this Court at the present time to which [the special prosecutor] is a proper

party or representative.” (Order, Nov. 17. 2022, Case No. SC89168, on

Casenet.)

On Friday, the Special Prosecutor, Attorney General, and Mr. Johnson’s

counsel held a teleconference with the Circuit Court. The Circuit Court

explained its reasons for the summary denial. Both the Special Prosecutor and

Mr. Johnson filed motions to amend the judgment or for a new trial later that

day, and the Special Prosecutor filed a notice of appeal. On Saturday morning,

the Circuit Court issued an amended judgment, denying the motions for new

trial or to amend.

The Circuit Court, Presiding Judge Mary Elizabeth Ott, who carefully

reviewed the pleadings below, concurs that a hearing is necessary, and thus,

at least implicitly, that a stay is warranted:

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 This Court recognizes that §547.031 RsMo. (2021) requires a
hearing, and is also aware of the requirement that sufficient time
for all parties to prepare and present evidence at such hearing is
essential to its proper function

***

Of course, the Court will, in light of the exigent circumstances

present in this case, continue to give it the highest priority that
must always be given to cases involving the penalty of death.
However, the question is not simply can a hearing be conducted
but rather can the date of the hearing afford the parties adequate
time to prepare and present the evidence, and the Court adequate
time to thoughtfully consider the evidence admitted at hearing,
keeping in mind the important public interests at issue.

Order and Judgment, November 19, 2022, at 3, 4.

The Special Prosecutor is now a proper party in a pending appeal. See

RSMo 547.031 (“The prosecuting attorney or circuit attorney shall have the

authority and right to file and maintain an appeal of the denial or disposal of

such a motion.”)

III. DISCUSSION

This Court should stay the November 29th execution date because the

State demonstrates that it is likely to succeed on the appeal of the Motion to

Vacate. Irreparable harm would result absent a stay. These factors outweigh

any prospect of harm caused to others if a reasonable amount of time is granted

to afford a full and fair adjudication of the § 547.031 motion. As shown further

below, the public interest cannot be served by proceeding with the scheduled

execution date.

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 A. Standards Governing Stays of Execution.

The Supreme Court of Missouri has adopted the federal four-factor test

for considering whether to issue a stay: “(1) the likelihood that the party

seeking the stay will prevail on the merits; (2) the likelihood that the moving

party will be irreparably harmed absent a stay; (3) the prospect that others

will be harmed if the court grants the stay; and (4) the public interest in

granting the stay.” State ex rel. Dir. of Revenue v. Gabbert, 925 S.W.2d 838,

839-40 (Mo. banc 1996) (quoting Ohio ex rel. Celebrezze v. Nuclear Regulatory

Comm., 812 F.2d 288, 290 (6th Cir. 1987)).

A motion to stay should be granted when the moving party has shown

“that the probability of success on the merits and irreparable harm decidedly

outweigh any potential harm to the other party or to the public interest if a

stay is issued.” Id. at 840 (citing Celebrezze, 812 F.2d at 290). The balance of

these four factors “cannot be accomplished with mathematical precision,” so

“the equitable nature of the proceedings mandates that the court’s approach

be flexible.” Id. (internal citations omitted).

B. The State has Demonstrated the Likelihood of Success on

the Merits.

The Special Prosecutor’s investigation and review of available evidence

has revealed key facts showing that racial bias infects Mr. Johnson’s conviction

and death sentence. (See Motion to Vacate and Exhibits), attached here.)

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 1. Procedural Error.

The State shows a strong probability of success on the merits of its appeal

based on procedural error alone. Section 547.031 is crystal clear. Due to the

importance of the statutory language, the Special Prosecutor quotes it in full

here, with key phrases bolded:

1. A prosecuting or circuit attorney, in the jurisdiction in

which a person was convicted of an offense, may file a motion to
vacate or set aside the judgment at any time if he or she has
information that the convicted person may be innocent or may
have been erroneously convicted. The circuit court in which the
person was convicted shall have jurisdiction and authority to
consider, hear, and decide the motion.

2. Upon the filing of a motion to vacate or set aside the

judgment, the court shall order a hearing and shall issue
findings of fact and conclusions of law on all issues
presented. The attorney general shall be given notice of hearing
of such a motion by the circuit clerk and shall be permitted to
appear, question witnesses, and make arguments in a hearing of
such a motion.

3. The court shall grant the motion of the prosecuting or circuit

attorney to vacate or set aside the judgment where the court finds
that there is clear and convincing evidence of actual innocence or
constitutional error at the original trial or plea that undermines
the confidence in the judgment. In considering the motion, the
court shall take into consideration the evidence presented at the
original trial or plea; the evidence presented at any direct appeal
or post-conviction proceedings, including state or federal habeas
actions; and the information and evidence presented at the hearing
on the motion.

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 4. The prosecuting attorney or circuit attorney shall
have the authority and right to file and maintain an appeal
of the denial or disposal of such a motion. The attorney
general may file a motion to intervene and, in addition to such
motion, file a motion to dismiss the motion to vacate or to set aside
the judgment in any appeal filed by the prosecuting or circuit
attorney.

RSMo § 547.031.

The Circuit Court felt itself in a difficult position with an execution date

pending. As it recognized, it cannot on its own stay a mandate of this Court.

But this Court can always stay its own orders. That is now possible because

this matter is before this Court.

The Circuit Court was mistaken in denying the motion due to timing.

The statute expressly states “A prosecuting or circuit attorney . . . may file a

motion to vacate or set aside the judgment at any time if he or she has

information that the convicted person may be innocent or may have been

erroneously convicted.” RSMo § 547.031.1 (emphasis added). The Special

Prosecutor had an ethical duty to investigate the allegations at issue before

filing a motion to vacate. He did so as soon as humanly possible once he had

“information that the convicted person” had been “erroneously convicted.” See

id. The Legislature could have set time limits on when a motion can be filed,

but it did not.

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 “Statutory analysis requires ascertaining the intent of the legislature, as

expressed in the words of the statute.” Utility Service Co. v. Dep’t of Lab. &

Indus. Rels., 331 S.W.3d 654, 658 (Mo. banc 2011). “Statutory language is given

its plain and ordinary meaning.” Id.

The Legislature said “at any time.” That language is plain and

unambiguous. But even if a court were to graft in an exception for what looked

like strategic delay, that is not this case. The undersigned prosecutor

commenced an investigation immediately once receiving an appointment, and

after reviewing troves of evidence, got a comprehensive motion on file in one

month. To the extent the circuit court attempted to cast blame on the St. Louis

County Prosecutor’s Office, that lacks basis in fact: as the Court itself

recognized in the order of appointment, that office determined it lacked the

power to act due to a conflict of interest. The actions of a conflicted office

cannot be counted against the motion once an unconflicted prosecutor timely

filed it.

The statute says the Circuit Court “shall order a hearing and shall issue

findings of fact and conclusions of law on all issues presented.” RSMo §

547.031.2 (emphasis added). “The word ‘shall’ generally prescribes a

mandatory duty.” Gross v. Parson, 624 S.W.3d 877, 889 (Mo. banc 2021).

14
The Circuit Court did not do any of these things. It did not order a hearing: it

summarily denied the motion. It did not issue findings of fact or conclusions

of law. And it did not address “all issues presented.”

“The failure to follow [a] mandatory procedure and make the required

determinations is reversible error.” Crumbaker v. Zadow, 151 S.W.3d 94, 98

(Mo. App. E.D. 2004) (citing similar “shall” language requiring a hearing and

determination on joinder issues).

2. Substantive Error.

The question before the Court is whether this appeal is likely to succeed.

On procedural error alone, it is. And this suffices for the likelihood of success

prong of stay analysis. But if the Court were to look beyond that to the

underlying merits of the motion to vacate, these also demonstrate a likelihood

of ultimate success if this Court were to reverse and remand for the required

hearing and findings.

The Special Prosecutor found clear and convincing evidence of racial bias

by the trial prosecutor. Contrary to the Circuit Court’s comment in its recent

order, these are not claims that have been rejected by prior courts. The claims

here rely on previously-unavailable evidence and changes in the law. These

changed circumstances now enable the prosecutor to prove a constitutional

violation. And regardless, the entire point of Section 547.031 is to allow a

prosecutor to reopen previously adjudicated cases where justice requires it.

15
 As this Court has held, proof of discrimination “often depend[s] on

inferences rather than on direct evidence,” because those who discriminate are

“shrewd enough not to leave a trail of direct evidence.” Cox

v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 116 (Mo. banc 2015)

(citation omitted). Analysis “generally must rely on circumstantial evidence.”

Id. “There will seldom be eyewitness testimony as to the [decisionmaker]'s

mental processes.” Id. The key facts showing discrimination and the need for

a full hearing include:

● The-Prosecuting Attorney Robert P. (“Bob”) prosecuted five police-

officer killings during his tenure. Mr. McCulloch pursued the death penalty

against four Black defendants but not against the one White defendant,

Trenton Forster. Forster’s conduct was more aggravated. He had bragged on

social media about wanting to kill police officers (“I want fuck the police carved

into my grave”), and stated that he planned “to go pull my .9 on a cop.” State

v. Forster, 616 S.W.3d 436, 440 (Mo. App. E.D. 2020).

● In the White-defendant police-killing case, Mr. McCulloch’s office

issued a written invitation to defense counsel to submit mitigating evidence

that might convince the prosecutor’s office not to seek death. (Ex. 6.) His office

granted the defense nearly a year to provide arguments against death, and Mr.

McCulloch ultimately decided not to seek death against this White defendant,

without giving any specific explanation why. (Ex. 6, Corr. with Forster

16
Counsel.)

● By contrast, Mr. McCulloch never issued a mitigation-invitation to

Mr. Johnson or any of the other three Black defendants accused of killing police

officers. (Ex. 3, Bradford Aff.)

● Work product from the prosecution team shows the prosecutors’

strategy to evade Batson by exercising fewer than their allotted nine

peremptory challenges, in the hope that the trial court might eliminate Black

jurors ranked high in the strike pool without those strikes counting against

the prosecution. (Ex. 7, Work Product Memorandum re: Johnson Jury

Selection.)

● A stay is further required to permit compulsory process through

depositions or at a hearing because the entire trial prosecution team has

declined to cooperate with the Special Prosecutor. Mr. McCulloch has refused

to even acknowledge correspondence from the Special Prosecutor asking him

about the case, despite his extensive statements to the news media about this

and other cases. (Ex. 3, Bradford Aff.; Ex. 4, McCulloch Corr.)

● Former Assistant Prosecutor Sheila Whirley, who participated in

Mr. Johnson’s trial, when questioned about why the State pursued death,

would only state that she is reluctant to reveal “family secrets,” and said the

death decision was Robert McCulloch’s. (Ex. 3, Bradford Aff.)

● Mr. McCulloch’s office maintained no record of guidelines,

17
practices, or procedures on whether to seek the death penalty. (Ex. 2, Alton

Aff.) This contradicts Mr. McCulloch’s own statements that he “disputes

claims of bias” in the death penalty because of “the process and procedure that

is employed by prosecutors in making the determination of whether or not to

seek death.” (Ex. 8, McCulloch Death Penalty Statements.)

● A comprehensive and rigorous statistical study of 408 St. Louis

County death-eligible homicide prosecutions during Mr. McCulloch’s tenure as

prosecuting attorney, shows that he largely reserved the death penalty for

defendants whose victims were White when deciding whether to charge first

degree murder and to seek the death. (Ex. 10, Baumgartner Report.)

● Later statements by Mr. McCulloch to other prosecutors show a

particular animosity towards young Black males like Mr. Johnson, viewing

them as a population that “we had to deal with,” and portraying them as

stereotypical criminals. (Ex. 1, Hummel Aff.)

i. The State is Likely to Succeed on the Equal

Protection Claim.

Mr. McCulloch’s race-consciousness is inescapably evident. Of five such

cases he sought death only against the four Black defendants, finding death

was “not appropriate” for the sole White defendant. Following an exhaustive

review of the facts of the five cases, and a comprehensive search for internal

standards, guidelines, and contemporaneous memoranda reflecting the

18
decisions, there is simply no discernable legitimate case characteristics that

can plausibly explain the disparate treatment.

Missouri courts have consistently looked to the treatment of other

similarly-situated parties to infer racial animus or other illicit bias. See, e.g.,

McGhee v. Schreiber Foods, Inc., 502 S.W.3d 658, 667-68 (Mo. App. W.D. 2016)

(“[I]nstances of disparate treatment, that is, when the employee has been

treated differently from other employees, can support a claim of

discrimination[.]”) Comparators “[n]eed not be identical in every conceivable

way. . . . So long as the distinctions between the [defendant] and the proposed

comparators are not so significant that they render the comparison effectively

useless, the similarly-situated requirement is satisfied.”)

The appended motion demonstrates, at length, that the five defendants

are similarly situated: they committed similarly aggravated crimes, and they

have similarly mitigating backgrounds and psychological impairments.

Despite those similarities, it was only the White defendant whose attorneys

were invited to dissuade the prosecution from seeking death, and it was only

the White defendant for whom Mr. McCulloch decided that the death penalty

would be inappropriate.

The evidence shows that race was a pervasive factor throughout Mr.

McCulloch’s capital decision-making; he reserved the most severe penalty

19
largely for defendants whose victims were White. In Dr. Frank Baumgartner’s

comprehensive study, he found:

Black victim cases have a 4.0 percent chance of leading to a death

sentence; White-victim cases see a 14.1 percent chance. The ratio
of these two rates is 3.5. White-victim cases are 3.5 times as likely
to lead to a death sentence than Black victim cases.

Ex. 10, Baumgartner, Frank, Homicides, Capital Prosecutions, and Death

Sentences in St. Louis County, Missouri, 1990-2021, Report (Sept. 20, 2022) at

8-9. He further concluded, “The effects are particularly pronounced at two

decision-points attributable solely to the prosecutor, the decision to charge the

case as a first-degree murder and the decision to give notice of intention to seek

death.” Id. at 23-24. “These effects persist after the introduction of controls for

aggravating and mitigating factors, meaning that these disparities cannot be

explained by legitimate case characteristics.” Id. Dr. Baumgartner’s thorough

analysis supports an inference of discrimination. Statistical evidence is

“relevant in conjunction with all other evidence in determining intentional

discrimination.” Cox v. First Nat. Bank, 792 F.3d 936, 941 (8th Cir. 2015)

(citation omitted).

In a Section 547.031 proceeding, the Prosecutor is the voice of the State.

The State confesses error: race was a substantial factor in Mr. McCulloch’s

exercise of discretion in the capital prosecution of Kevin Johnson.

Notwithstanding the prodigious and unassailable evidence that discrimination

20
was operative in this case, this confession alone makes success on the merits

likely.

ii. The State is Likely to Succeed on the Batson

claim.

At jury selection, the primary panel of 30 comprised 24 Whites and six

Blacks. Thus, the prosecution had an opportunity to strike 24 Whites and

struck one for a strike rate of 4%. The prosecution had the opportunity to

strike six Blacks and struck three for a strike rate of 50%. Including the eight

additional venirepersons comprising the alternate pool, the prosecution had

the opportunity to strike 30 Whites and struck two (7%). It had the opportunity

to strike eight Blacks and struck four (50%).

Based on these disparities, a prima facie case of discrimination was

found, thus the burden shifted to the state to justify its strikes on non-racial

grounds. The focus was principally on the strike of Debra Cottman, a Black

woman. Cottman testified that she was a “visiting foster parent” at the Annie

Malone children’s home. Trial Tr. 1010. Cottman did not know anyone from

Annie Malone that was associated with the case, including Kevin Johnson.

Trial Tr. 1011. Similarly, Mr. Johnson himself had little contact with that

agency. The record shows he had stayed there for one week as a child, through

placement by the DFS. Trial Tr. 1003-04, 1051, 2112-13, 2270.

21
 Nevertheless, Mr. McCulloch said, “I don’t want anyone associated with

Annie Malone.” This Court found this explanation was not pretextual to be

sufficient to satisfy Batson, notwithstanding that Mr. McCulloch had accepted

a White juror with comparable experience at a similar agency. It further

declined to consider as one factor multiple other instances of discrimination at

jury selection practiced by Mr. McCulloch.

Two intervening factors compel the Special Prosecutor to revisit the

Batson claim, notwithstanding that this Court has previously addressed racial

discrimination at jury selection.2 First is a memorandum discovered in the last

few weeks composed after the racially-balanced first jury failed to reach a

verdict. (Ex. 7, Memorandum re: Johnson Jury Selection.) It sets forth

procedures for exploiting certain idiosyncrasies in the trial judge’s jury

selection procedures that would result in the elimination of Blacks from the

remaining prospective jury panel without overt State strikes.

The very existence and timing of the memo allows for the inference of

purposeful intent to subvert the rule of law in Batson in the upcoming retrial.

2 The Circuit Court, apparently referring to the Batson claim, noted

“the Motion at issue herein renew[s] arguments and claims previously raised
on behalf of Kevin Johnson,” Order and Judgment, at 4. But, as demonstrated
herein and in the Motion, the State based its conclusions not only on the trial
record, but on new factual revelations from which discriminatory intent can be
inferred, and intervening case law.

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 Second is the recent case Flowers v. Mississippi, 139 S. Ct. 2228, 2244

(2019), a case which this Court did not have the benefit of when it first decided

the Batson claim. Under Flowers, courts must take into account the

background history of a prosecutor’s office in assessing racial discrimination

claims around jury selection. See id.

On direct appeal, Mr. Johnson called the Court’s attention to previous

Batson violations from St. Louis County during the few years before his trial,

specifically, State v. McFadden, 216 S.W.3d 673 (Mo. banc 2007); State v.

McFadden, 191 S.W.3d 648 (Mo. banc 2006); State v. Hampton, 163 S.W.3d

903 (Mo. banc 2005); and State v. Hopkins, 140 S.W.3d 143 (Mo. App. E.D.

2004). This Court declined to consider the evidence as relevant, stating that

“A previous Batson violation by the same prosecutor’s office does not constitute

evidence of a Batson violation in this case, absent allegations relating to this

specific case.” State v. Johnson, 284 S.W.3d 561, 571 (Mo. banc 2009).

Intervening authority from the United States Supreme Court is directly

to the contrary: A defendant may rely on, and a court must consider, “relevant

history of the State’s peremptory strikes in past cases.” Flowers, 139 S. Ct. at

2243.

Previously unavailable law, and previously hidden facts, now make clear

that Mr. McCulloch’s proffered explanations at trial were pretextual; a Court

must reexamine Mr. McCulloch’s specious decision to strike a Black juror.

23
 D. Irreparable Harm is Certain if the Court Denies a Stay.

Absent a stay, the State’s right to pursue the § 547.031 motion would be

nullified. The State answers to the people; it has an obligation to be

conscientious and thorough. As this Court has stated:

The duty of a prosecuting officer necessarily requires that he

investigate, i.e., inquire into the matter with care and accuracy,
that in each case he examine the available evidence, the law and
the facts, and the applicability of each to the other; that his duties
further require that he intelligently weigh the chances of
successful termination of the prosecution, having always in mind
the relative importance to the county he serves of the different
prosecutions which he might initiate.

State on inf. McKittrick v. Wallach, 182 S.W.2d 313, 318–19 (Mo. 1944).

And prosecutors, when performing their duties, are authorized “to

exercise a sound discretion.” State, on Inf. McKittrick v. Wymore, 132 S.W.2d

979, 986 (Mo. 1939).

The serious time constraint imposed by the November 29th execution

date undermines the State’s performance of its duties. And the integrity of the

proceedings in the Circuit Court. Mr. Johnson’s execution is scheduled to occur

November 29, 2022. An appeal cannot be briefed, argued, and decided on that

timeframe. And if a remand occurs, the Circuit Court could not hear the

motion in time.

24
 The state and Mr. Johnson will also suffer irreparable injury if Mr.

Johnson’s execution goes forward before the courts can consider whether racial

bias tainted his conviction and sentence. See e.g., Wainwright v. Booker, 473

U.S. 935, 935 n.1 (1985) (Powell, J., concurring in decision to vacate stay of

execution) (“The third requirement – that irreparable harm will result if a stay

is not granted – is necessarily present in capital cases.”); Evans v. Bennett, 440

U.S. 1301, 1306 (1979) (Rehnquist, J.) (granting stay of execution in light of

the “obviously irreversible nature of the death penalty”); Williams v. Chrans,

50 F.3d 1358, 1360 (7th Cir. 1995) (“There can be no doubt that a defendant

facing the death penalty at the hands of the state faces irreparable injury.”)

The Circuit Court has indicated its willingness to act expeditiously,

while respecting the need to review the evidence with care:

There is no question that “Death is Different” [;] it is different from

all other punishments and in fact qualitatively different and
requires particular care in its application in every case. See
Furman v. Georgia, 408 US 238(1972), Lockett v. Ohio, 438 US 586
((1978). The procedural and temporal posture of the instant motion
places the court in an untenable position. To comply strictly with
the plain language of § 547.031 is in conflict with current Missouri
law analyzing its provisions and the appropriate administration of
Due Process of Law and Equal Protection of the law as insufficient
time remains to comply in a meaningful and appropriate manner
given the grave punishment at issue herein. This weighs heavily
upon this court.

Order and Judgement, November 19, 2022 at 5.

E. On Balance the Pursuit of Justice Outweighs any Harm

Occasioned by the Granting of a Stay.

25
 The Special Prosecutor recognizes that the surviving victims of this

tragedy have an interest in finality. But this is not a case where a death row

prisoner is bringing a last-minute motion for stay of execution as a tactical

step. The statute here became effective on August 28, 2021. He filed his

application for review under it just over two months later, on December 1,

2021. He has pursued this new avenue for relief diligently, and justice requires

that the claims be heard Once the Prosecuting Attorney’s office determined it

had a conflict, it had to first identify a willing and capable candidate to serve

as special prosecutor, a process that counsel understands took significant time.

Once appointed, counsel acted quickly.

The Circuit Court seemingly agrees that neither the Special Prosecutor

nor Mr. Johnson are to blame for the “inexplicable” failure to present the

claims sooner, singling out only the “failure of the Saint Louis County Office of

Prosecuting Attorney to recognize the conflict of interest” sooner. Order and

Judgment, November 19, 2022, at 4.

Nor can it be said such relief was previously available to Mr. Johnson.

The Special Prosecutor had unique access to documents and personnel in the

course of the investigation, access impossible for Mr. Johnson to have

benefitted from prior to the passage of RSMo § 547.031. He could not, as a

practical matter, have sought comparable relief. Indeed, the law precluded

26
such action by the prosecuting attorney. State v. (Lamar) Johnson, 617 S.W.3d

439, 444 (Mo. banc 2021).

F. A Stay Serves the Public Interest.

No public interest is more paramount than ensuring that the rule of law

be respected. The Supreme Court has admonished “that capital punishment

be imposed fairly, and with reasonable consistency, or not at all.” Eddings v.

Oklahoma, 455 U.S. 104, 112 (1982). Denial of a stay would irrevocably conflict

with a number of rights, the interest of all three branches of government, and

would deny Mr. Johnson statutory and constitutional protections.

1. Denying the State the Opportunity to Prove its

Allegations Would Offend the Doctrine of Separation of Powers.

In its current, and unusual, procedural posture, this case sits at the

intersection of the powers and duties of the executive, judicial and legislative

branches. This Court has recognized that “separation of the powers [is] vital

to our form of government … because it prevents the abuses of power that

would surely flow if power accumulated in one department.” State Auditor v.

Joint Comm. on Legislative Research, 956 S.W.2d 228, 231 (Mo. banc 1997)

(internal citation and quotation omitted). This Court observed:

There are two broad categories of acts that violate the

constitutional mandate of separation of powers. One branch may
interfere impermissibly with the other's performance of its
constitutionally assigned power. Alternatively, the doctrine of
separation of powers may be violated when one branch assumes a
power that more properly is entrusted to another.

27
State Auditor v. Joint Comm. on Legislative Research, 956 S.W.2d 228, 231

(Mo. banc 1997) (internal punctuation omitted).

Here, the Legislature authorized a prosecuting attorney to seek to

remedy an unjust judgment, and provided a procedural forum to effect its

intent. The statute requires the Circuit Court to “order a hearing” and “issue

findings of fact and conclusions of law on all issues presented.” RSMo §

547.031(2). Unfortunately, the Circuit Court is already running afoul of this

textual command by summarily denying the motion. The State is seeking to

remedy this error, and also has the absolute right to appeal. See id.

To deny the State the opportunity to give proper effect to the

Legislature’s expression of the electorate’s will, would “interfere

impermissibly” with the duty the constitution has assigned that body.

The “common law maxim … [w]here there is a right, there is a remedy

[is an] essential doctrine [and] precept of our law.” State ex inf. Ashcroft v.

Kansas City Firefighters Local No. 42, 672 S.W.2d 99, 109 (Mo. App. W.D.

1984). Here, the Legislature provided the Prosecutor the right to correct an

unjust judgment; to deny the Prosecutor the opportunity to do so would nullify

that right and impermissibly subvert the powers entrusted exclusively to the

Legislature. And by extension, since the right at issue was granted the State,

to fail to afford a reasonable opportunity to do what it is constitutionally

28
mandated to do—seek justice—would similarly diminish powers reserved for

the Executive Branch.

Finally, the statute imposes specific duties on the judiciary itself. The

court conducting the mandated hearing “shall … issue findings of fact and

conclusions of law on all issues presented.” If the Circuit Court denies the

motion, “[t]he prosecuting attorney or circuit attorney shall have the authority

and right to file and maintain an appeal.” Id. Denial of a stay would obviate

a duty—to find and state publicly the applicable facts and conclusions law and

hear an appeal on the merits—that the Legislature rightfully imposed.

2. Denial of a Stay Would Contravene Due Process.

It is anathema to due process to elevate the interest in the expeditious

carrying out of the execution of Mr. Johnson over the interest in ensuring all

constitutional and statutory remedies be meaningfully made available.

This is an expression of the State’s interest as much as Mr. Johnson’s.

As one court has stated, “[t]he state … is entitled to due process just as much

as the petitioner [and] has an interest in its punishments being carried out in

accordance with the Constitution.” Harris v. Vasquez, 901 F.2d 724, 727 (9th

Cir. 1990) (upholding grant of stay to permit evidentiary hearing on whether

petitioner was denied competent psychiatric assistance at trial). See also

Zagorski v. Mays, 906 F.3d 414, 416 (6th Cir. 2018) (“If we do not grant a stay,

we will necessarily be deciding or rendering moot his appeal . . . . At a

29
minimum, due process requires that [the defendant] be afforded an

opportunity to present his appeal to us”).

Due process rights are further implicated when a state irrationally or

arbitrarily applies a right granted under state law. Hicks v. Oklahoma, 447

U.S. 343 (1980). If a stay were to be denied, this would necessarily be an

arbitrary result as it would render the full and fair hearing and adjudication

required under RSMo § 547.031 impossible. Such an outcome would be

particularly irrational here, as the process was commenced about nine months

prior to the issuance of the warrant, but extended into the warrant period only

because the St. Louis County Prosecuting Attorney’s Office was exercising due

diligence in ensuring Mr. Johnson’s application could be reviewed

unencumbered by a conflict of interest.

3. Discovery of Potentially Exculpatory Impeachment

Evidence has Further Due Process Implications.

The State’s review of work product and other documents not available

to Mr. Johnson has revealed evidence that undermines the credibility

determinations made in Mr. McCulloch’s favor, in particular Mr. McCulloch’s

proffered race neutral reasons for striking Black jurors. The evidence permits

the inference that that there was an office policy crafted by Mr. McCulloch to

evade the rule in Batson.

30
 The Special Prosecutor further notes that although relevant to action

under RSMo § 547.031, the undisclosed evidence could well support an

independent cause of action by Mr. Johnson. Failure to disclose these

materials and Mr. McCulloch’s false representations, should the Circuit Court

so find, implicates due process.

Events as they are unfolding almost hourly only reinforce the admonition

that a prosecutor has the duty to “inquire into the matter with care and

accuracy.” McKittrick, 182 S.W.3d at 318–19. Although the evidence

marshaled thus far amply proves by clear and convincing evidence a

constitutional violation undermining confidence in the verdict, there is likely

even more evidence of discrimination to be uncovered. Similarly, there remain

numerous, potentially illuminating witnesses to be interviewed, especially in

light of recent discoveries. Finally, there are credible accounts of Mr.

McCulloch publicly making overt and derogatory racial references. (Ex. 1,

Hummel Aff.) Mr. McCulloch refuses to speak with the Special Prosecutor,

only further undermining this process. (Ex. 4, McCulloch Corr.) Further

investigation of these and potentially similar incidents, to the extent they may

bear on the question of discriminatory intent in Mr. Johnson’s case, is

necessary.

The Legislature has passed a clear statute that sets forth a clear process.

The public has already expressed its interest through its duly-elected

31
Legislators. The protection of constitutional rights, and the importance of

public confidence in the integrity of criminal judgments, also supports a pause

to allow this appeal and any further proceedings to reach an on-the-merits

conclusion.

CONCLUSION

The State is mindful that cases such as this have reverberations beyond

the Court and parties, particularly for the victim’s family and law enforcement

colleagues. But it is the prosecutor’s duty to do justice. Further, the

Legislature has specifically conferred on the prosecutor a vehicle for pursuing

that justice - a vehicle that the other branches of government must honor. The

State, Mr. Johnson, and the Circuit Court are prepared to conduct the hearing

in an expeditious but fair manner. Justice requires that the clock be modestly

reset to permit the hearing required under RSMo § 547.031. The State requests

that the execution be stayed.

Dated: November 21, 2022 Respectfully submitted,

KEENAN & BHATIA, LLC
/s/ Edward (E.E.) Keenan
Edward (E.E.) Keenan, Mo. Bar No. 62993
Special Prosecutor for the State of Missouri
JR Montgomery, Mo. Bar No. 68281
Assistant to Special Prosecutor for the State of
Missouri
4600 Madison Ave., Suite 810
Kansas City, MO 64112
Tel: (816) 809-2100
ee@keenanfirm.com
jr@keenanfirm.com

32
 CERTIFICATE OF SERVICE

I certify service a copy of the foregoing was electronically filed on November

21, 2022 with the Court’s ECF and was also sent via electronic mail on November 21,
2022 to the following case participants:

Andrew J. Crane, Esq.

Gregory M. Goodwin, Esq.
andrew.crane@ago.mo.gov
gregory.goodwin@ago.mo.gov
Assistant Attorneys General

Rebecca E. Woodman, Esq.

Joseph W. Luby, Esq.
rewlaw@outlook.com
joseph_luby@fd.org
Attorneys for Defendant

/s/ JR Montgomery
Assistant to Special Prosecutor for the State
of Missouri

33