Murderer’s sentence of death in question

A new penalty phase is expected for Ernest Lee Johnson.
Wednesday, September 3, 2003 | 12:00 a.m. CDT; updated 7:07 a.m. CDT, Friday, July 18, 2008

Despite a U.S. Supreme Court ruling that bars the execution of mentally retarded people, Boone County Prosecutor Kevin Crane will continue to seek the death penalty for Ernest Lee Johnson, convicted of murdering three people at a local Casey’s General Store in 1994.

After a hearing Tuesday in Boone County Circuit Court, Judge Gene Hamilton is expected to order a new penalty phase for Johnson later this week. The new jury, which will be the third to hear the facts of Johnson’s case, will only decide whether he should be executed.

A Boone County jury found Johnson guilty of first-degree murder for killing Mary Bratcher, Fred Jones and Mabel Scruggs using a claw hammer, a screwdriver and a gun. He was sentenced to death in 1995. On appeal, Johnson was given a new penalty phase because his attorneys failed to call an expert witness who was prepared to testify that Johnson was mentally retarded. The witness, psychologist Carole Bernard, testified in an earlier deposition that Johnson showed deficient intelligence and defective adaptive skills.

Nonetheless, in 1998, a second jury sentenced Johnson to death again, triggering another appeal to the Missouri Supreme Court.

The state high court heard arguments in Johnson’s case in January. In April, the court ruled that the state cannot execute “mentally deficient” people. The state justices cited Atkins v. Virginia, in which the U.S. Supreme Court found that executing people with diminished mental capacity constituted cruel and unusual punishment.

Although Atkins only applies to crimes committed after August 28, 2001, the Missouri Supreme Court ruled that the issue of Johnson’s possible mental retardation at the time he committed the crime deserves consideration.

In his most recent appeal, Johnson claims his previous attorneys didn’t adequately cover the issue of his mental retardation at the second trial. Johnson’s current attorneys, Timothy R. Cisar and Elizabeth Unger Carlyle, said that while the Missouri Supreme Court did not reverse Johnson’s guilty verdict, the new sentencing phase will give them a chance to argue that Johnson is mentally retarded and that other mitigating factors led him to violence.

Crane said the state’s position is that Johnson is not mentally retarded and that his death sentence should stand.

“Ernest Lee Johnson is not mentally retarded,” Crane said. “We’re seeking the death penalty because he killed three innocent people with a claw hammer.”

The jury will most likely be brought in from Pettis County, Hamilton said, and will be selected around June 2004.

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