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December 1, 2022

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

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:

December 1, 2022 at 10:47 AM | Permalink


The long-winded, abstruse procedural fancy dance without a word about substantive guilt, the victim, or the victim's family. But I'll give the Justice credit: She's doing the rote party-line job she was selected to do.

Posted by: Bill Otis | Dec 4, 2022 6:11:45 PM

Avoiding the individual merits in this case, I think the dissent from Justice Jackson misinterprets what the Missouri Supreme Court was saying.

The statute in question does give the prosecutor (or, in this case, the special prosecutor) the right to a hearing. However, nothing in the statute mandates a stay of execution. The Missouri Supreme Court held that, in determining whether to grant a stay based solely on the filing of the motion, the traditional test for a stay would apply. That is no different from the test that would be applied if this was a habeas petition in federal court.

The issue for a stay is not whether the petition states a potentially valid claim for relief which would merit a hearing. It's whether the petition states a substantial enough claim that the party seeking the stay is likely to prevail on the merits. That standard requires the court facing the stay request to do a preliminary assessment of the merits of the claim which is not (on paper) a final decision on the merits. Here, that preliminary review led the Missouri Supreme Court to conclude that the claims were not likely to succeed, and thus no stay was warranted.

To the extent that Judge Jackson thinks that the underlying claims in the motion had merit and that the Missouri Supreme Court incorrectly analyzed the federal claims under the current law governing those claims (or that the law that applies to the merits of the claims should be revised) that is a valid critique of the Missouri Supreme Court decision. But that is not the critique that Justice Jackson makes.

Instead, Justice Jackson claims that compliance with the stay standard created by the U.S. Supreme Court is a due process violation because the state law entitles the defendant to a hearing. Again, if Justice Jackson believes that the stay standard is wrong, that is a valid critique.

But the attempt to convert the right to a hearing on the merits under state law into a due process violation seems a stretch. It does not seem to be a violation of the plain language of the statute to interpret it as giving the defendant and prosecutor right to a hearing on the merits if there was sufficient time for a hearing, but also holding that, in this case, the claim is not one that warrants delaying the execution to allow the hearing to take place. (So far, there have been four petitions filed under this statute to the best of my knowledge. The quickest hearing was just under three months and this petition was filed two weeks before the scheduled execution.) I just do not see anything in the plain language of the statute which creates an automatic right to a stay of execution if a prosecutor seeks to set aside a death sentence under the statute. If the General Assembly wanted an automatic stay of executions, it could have included that in the statute.

There are some other cases -- both criminal and civil -- on this term's docket involving whether the Supreme Court should use the U.S. Constitution to hold that state courts are erroneously interpreting state laws. Generally speaking, that seems like a bad idea -- which the U.S. Supreme Court has generally avoided -- especially as the U.S. Supreme Court will not actually follow through and actually hear the thousands of cases that will raise such a claim.

Posted by: tmm | Dec 5, 2022 11:59:59 AM

I don’t think Justice Jackson misinterpreted any part of the Mo SC opinion. In fact, she explained very clearly how the Mo SC circumvented RSM0 (547.031) The legislators enacted this law due to a post conviction gap by allowing motion courts to hear cases “on the merits” free of any procedural bars that may have prevented the merits of his case from being heard in Rule 91 and other proceedings that the Mo SC was so proud of in the past. The truth of the matter is the Mo SC rushed to execute a man that was about to have his death sentence overturned by a “lower” court and they did not like that! Period! They claimed he wouldn’t succeed on the merits even if they ordered them to have an evidentiary hearing and a findings of fact and conclusions of law written on all issues presented. Guess we will never know the answer to that now huh!

The truth is an innocent man has already succeeded on the merits in the motion court just like this statue requires and Missouri refuses to enforce that ruling because of it was before this “gap” in post conviction review was enacted and the court “supposedly” lacked jurisdiction.
Bottom line….How does it make Missouri look when the SC denies inmates for years and years and then a lower court overturn’s their conviction?? It makes them look inept and trust me they don’t like that! free-kenmiddleton.com

Posted by: Cliff Middleton | Dec 7, 2022 11:01:13 PM

"The long-winded, abstruse procedural fancy dance without a word about substantive guilt, the victim, or the victim's family. But I'll give the Justice credit: She's doing the rote party-line job she was selected to do."


Posted by: federalist | Dec 9, 2022 12:40:56 PM

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