I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening. A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court’s denial of the application for a stay. Here is how it begins and a key paragraph within:
We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty. Now, one day later, I write to explain my vote to grant his stay request. For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay. I also believe that the equities weighed in Johnson’s favor….
In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures. But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion. In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.
Prior related posts: