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Ernest Johnson cannot be legally executed

Ernest Johnson cannot be legally executed

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Tuesday evening, barring intervention from Gov. Jay Nixon or a court, Missouri will execute Ernest Johnson, a man with an IQ of 67. If allowed, Mr. Johnson’s execution will violate the Supreme Court’s ruling in 2002, Atkins v. Virginia, that the Constitution prohibits the execution of the intellectually disabled.

Johnson murdered three employees of a convenience store in Columbia in February 1994. After his initial conviction in 1995, a jury sentenced him to death. The state Supreme Court subsequently ordered a new sentencing phase. That jury also decided on death. A third sentencing proceeding was held, with a new jury, after the Atkins decision, focusing on his mental capacity. That jury, too, decided on the death penalty.

But because of his mental condition, Johnson cannot be legally executed. Prosecutors consistently have dismissed the significance of his disability and advocated for the death penalty. “To decide it’s more likely true than not that this guy is mentally retarded,” the prosecutor argued to a jury in 2005, “is an insult, an insult to these victims.”

The ethical duty of a prosecutor is to advance the ends of justice, not to rack up convictions or maximize sentencing outcomes. Prosecutors are bound by an ethical principle best summed up by a 1935 Supreme Court opinion: While the prosecutor “may strike hard blows, he is not at liberty to strike foul ones.”

Use of incendiary arguments to advocate for a man’s death — like those employed by the state throughout Johnson’s sentencing proceeding — in the face of evidence that he is not even eligible for execution, is a subversion of the criminal-justice process.

As the court reasoned in Atkins, criminal defendants like Johnson are less culpable and more exposed to unjust outcomes because of their disability. In 2014, the Supreme Court clarified that “established medical practice” and “scientific measurement” must determine whether a defendant has intellectual disability — not antiquated stereotypes or bright line IQ maximums.

At trial, testing by both the prosecution and defense revealed Johnson had an IQ of 67, which is well within the range of intellectual disability. Johnson was born with the developmental consequences of fetal alcohol syndrome. In a series of IQ tests that began at age 8 and spanned decades, he scored below the threshold for intellectual disability six times.

His scores on academic achievement tests consistently placed in him in the bottom first or second percentile in subjects like math and reading. He learned to walk and talk much later than his siblings. His brother and sister recounted how when they were growing up, he lacked basic abilities like using a knife and fork.

So how does a man with such diminished cognitive functioning face execution? Unfortunately, the facts of Johnson’s disability were clouded in court by the prosecutor’s inflammatory rhetoric. Because the prosecutor could not empirically contest the truth of Johnson’s disability, he instead resorted to offensive and incorrect arguments about the intellectually disabled to convince the jury to sentence him to death.

The prosecutor first accused Johnson of artificially depressing his scores, but in doing so relied on the opinion of a person with no formal training in administering IQ testing and no training in making clinical observations. The prosecutor then argued to the jury that because Johnson watched television and played cards and basketball, he was not “a weak, little skinny, mentally retarded kid in prison” — hardly a clinical basis for an opinion on which Johnson’s very eligibility for the death penalty depended.

After hearing this unreliable evidence and improper argument, the jury sentenced Johnson to death.

It is not too late to correct course in this case. Gov. Nixon should commute Johnson’s sentence to life without parole. The governor could also appoint a Board of Inquiry to make an independent determination regarding the severity of Johnson’s disability.

In any case, to allow this execution to go forward would be to sanction a gross injustice.

John N. Gallo served as an assistant United States Attorney in the Northern District of Illinois from 1989 to 1995. The views he expresses are his own.

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