Opposition Brief — Johnny Johnson, Petitioner v. David Vandergriff, Warden
Supreme Court briefJul 21, 2023
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No. 23-5147
________________________________________
In the Supreme Court of the United States
________________________
JOHNNY JOHNSON, PETITIONER
v.
PAUL BLAIR, RESPONDENT
________________________
On Petition for a Writ of Certiorari
to the Supreme Court of Missouri
________________________________________
RESPONDENT’S APPENDIX TO BRIEF IN OPPOSITION
VOLUME ONE
________________________________________
Table of Contents
Volume 1
Petition for Writ of Habeas Corpus............................................................................. A1
Suggestions in Opposition to Petition for Writ of Habeas Corpus .......................... A46
Reply in Support of Petition for Habeas Corpus ...................................................... A71
Volume 2
Trial Transcript ......................................................................................................... A92
i
IN THE SUPREME COURT OF MISSOURI
State of Missouri ex rel.
JOHNNY A. JOHNSON,
Petitioner,
v.
DAVID VANDERGRIFF,
Superintendent,
Potosi Correctional Center,
Respondent.
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No. ___________________
THIS IS A CAPITAL CASE
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PETITION FOR WRIT OF HABEAS CORPUS
Comes now Johnny A. Johnson, by and through undersigned counsel, and
petitions this Court, under Rule 91, for a Writ of Habeas Corpus granting him relief
from his conviction and death sentence.
INTRODUCTION
Petitioner Johnny A. Johnson is an inmate housed in Potosi Correctional
Center in Mineral Point, Missouri. Respondent David Vandergriff is the Warden of
Potosi Correctional Center. For the reasons explained below, newly discovered
evidence regarding the State’s expert witnesses, which calls into question their
credibility, was suppressed by the prosecution at the time of trial and by the Attorney
General when appearing before this Court. Because this evidence was concealed
from Mr. Johnson by the prosecution and was only recently discovered by Mr.
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SC100023
on the claims contained in this petition.
In 2005, Mr. Johnson was convicted of first-degree murder and other charges
involving the July 26, 2002 murder of Casey Williamson and was sentenced to death.
At trial, the only disputed issue before the jury was whether at the time of the offense
Mr. Johnson deliberated as required for first-degree murder, or whether, due to his
well-documented severe mental illness, a reasonable doubt existed as to whether he
formed the requisite mental state for first-degree murder. Mr. Johnson presented a
trial defense that he was not guilty of first-degree murder because, due to his
schizophrenia and active auditory command hallucinations, a reasonable doubt
existed as to whether he formed the required mental state to commit first-degree
murder. The defense asserted that the jury instead should convict him of seconddegree murder.
Prior to trial, the court appointed two psychologists, Stephen Becker and
Byron English, 1 to evaluate Mr. Johnson, first to determine his competency to stand
trial and again when his attorneys indicated they might present a defense of not guilty
by reason of insanity (“NGRI”). His attorneys ultimately did not pursue an NGRI
defense; instead they presented a diminished capacity defense. The testimony of Dr.
Mr. Johnson does not refer to the State’s experts as “Dr.” because neither Becker
nor English have a valid Missouri license to practice psychology. Both lost their
licenses for reasons suppressed from Mr. Johnson.
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Johnson’s counsel, Mr. Johnson previously has not sought relief in any state court
Johnson and determined that he was responding to command hallucinations when
the offense was committed. After Dr. Dean’s testimony, the State called English to
counteract the defense case and the expert testimony upon which it relied.
English had not conducted the two court-ordered evaluations of Mr. Johnson
unrelated to the diminished capacity defense. Rather, the evaluations had been
conducted by Becker under English’s supervision. English’s pretrial deposition
disclosed that Becker had done the psychological testing and evaluation of Mr.
Johnson in both instances and had written both reports. English only reviewed those
materials. English and Becker did not dispute that Mr. Johnson suffered from a form
of schizophrenia and experienced hallucinations. However, English disputed Mr.
Johnson’s defense and testified that Mr. Johnson could and did deliberate at the time
of the offense. State v. Johnson, 207 S.W.3d 24, 34 (Mo. banc 2006) (noting that
the only disputed issue at trial was whether Mr. Johnson deliberated as required for
first-degree murder and that the State’s expert rebutted this defense).
Later, in state post-conviction proceedings before Judge Mark Seigel, who
had also presided over Mr. Johnson’s trial, the defense presented additional expert
witnesses. Dr. Pablo Stewart and Dr. Craig Beaver disputed English and Becker’s
claims regarding the nature of Mr. Johnson’s hallucinations and their effect on his
commission of the offense. Crediting the evaluations conducted by Becker and
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Delany Dean, a psychologist, supported this defense. Dr. Dean evaluated Mr.
appeal from the state post-conviction proceedings, this Court also deferred to the
evaluations and reports by Becker and English’s testimony based on those
evaluations in affirming the denial of Mr. Johnson’s post-conviction motion.
Johnson v. State, 388 S.W.3d 159, 164 (Mo. banc 2012).
Newly discovered evidence reveals that, due to illegal and unethical conduct
of both expert witnesses the State, the jury, Judge Seigel, and this Court relied on,
the State of Missouri stripped both English and Becker of their professional licenses.
The State revoked Becker’s license due to a series of DWI convictions, at least one
of which took place before Mr. Johnson’s trial and was not disclosed to his trial
attorneys. English was forced to relinquish his license for (1) misusing state
resources by conducting unsanctioned pre-surgical evaluations of co-workers while
at work and (2) sexually harassing a co-worker over a period of years.
The only disputed issue in Mr. Johnson’s case dealt with his mental state at
the time of the offense. The basis for the State’s position on that question rested on
the evaluations, reports, and testimony of Becker and English. Given that level of
importance, the prosecution’s withholding of critical impeachment information
regarding its mental health experts deprived Mr. Johnson of due process and a fair
trial and rendered his conviction and death sentence invalid. On proof of his
allegations that a Brady violation occurred, Mr. Johnson is entitled to a new trial,
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English’s testimony, Judge Seigel denied Mr. Johnson’s post-conviction motion. On
invaded his case thus far. Therefore, this Court should order a new trial or in the
alternative a new post-conviction proceeding based on the evidence Mr. Johnson has
uncovered. To the extent that additional factual development is necessary for a
proper resolution of this claim, this Court should appoint a special master and order
an evidentiary hearing to assess the evidence in support of Mr. Johnson’s Brady
claim and his claim that he was deprived of a fair and meaningful post-conviction
process by the judge’s simultaneous role in his case and the criminal case of the
State’s expert, Becker.
JURISDICTIONAL STATEMENT
This Court has original jurisdiction over this petition because it involves a
prisoner under a sentence of death. Rule 91.02(b). “Habeas corpus is the last judicial
inquiry into the validity of a criminal conviction and serves as ‘a bulwark against
convictions that violate fundamental fairness.’” State ex rel. Amrine v. Roper, 102
S.W.3d 541, 545 (Mo. banc 2003) (quoting Engle v. Isaac, 456 U.S. 107, 126
(1982)). Habeas relief may issue when the prisoner’s conviction or sentence violates
the constitution or laws of Missouri or the United States. State ex rel. Nixon v.
Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).
This Court may grant habeas relief on claims that were not asserted on direct
appeal or in post-conviction proceedings pursuant to Rule 29.15 if the petitioner
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sentencing, or post-conviction proceeding free of the corruption of the process that
Jaynes, 63 S.W.3d at 215; State ex rel. Engel v. Dormire, 304 S.W.3d 120, 125 (Mo.
banc 2010).
“Cause” exists when “there is a factor at issue external to the defense or
beyond its responsibilities” that caused the delayed revelation of the claim. Engel,
304 S.W.3d at 125. A petitioner must establish that the grounds for relief were not
known to him during his direct appeal or post-conviction case. Id. at 126. In the
context of a Brady claim resting on new evidence unknown to the petitioner during
his direct appeal or post-conviction case, “prejudice is identical to” that necessary to
warrant relief under Brady. Id. Similarly, where a judicial appearance of impropriety
claim rests on new evidence previously unknown to the petitioner, the prejudice
standard is identical that necessary to warrant relief under the appearance of
impropriety standard. See id.; Anderson v. State, 402 S.W.3d 86, 92 (Mo. banc 2013)
(explaining that the prejudice “burden does not require a movant to prove that the
motion court was actually biased or prejudiced but rather that a reasonable person
would have factual grounds to find an appearance of impropriety and doubt the
impartiality of the court.”).
As shown below, Mr. Johnson raises a Brady claim involving impeachment
evidence regarding the State’s mental health experts, which was not disclosed to Mr.
Johnson during his trial, direct appeal, post-conviction, or federal habeas
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demonstrates a manifest injustice, cause and prejudice, or a jurisdictional defect.
court proceedings, and because the post-conviction court did not disclose it during
Mr. Johnson’s post-conviction proceedings, it was unknown to Mr. Johnson, and
Mr. Johnson’s inability to raise this claim previously arises from reasons “external
to the defense.” Furthermore, in light of the importance of the experts’ conclusions
to the State’s theory and Mr. Johnson’s defense, Mr. Johnson readily meets the
Brady prejudice standard.
The State’s suppression of the impeachment evidence regarding Becker also
prevented Mr. Johnson from raising potentially meritorious claims in postconviction and deprived him of a fair and meaningful post-conviction process. The
post-conviction judge’s simultaneous role in Becker’s criminal case, which took
place during Mr. Johnson’s Rule 29.15 proceedings, and the judge’s reliance on
Becker’s credibility and conclusions without disclosure to Mr. Johnson of Becker’s
criminal convictions, created an appearance of impropriety. Because Becker’s
criminal convictions were never disclosed to Mr. Johnson, he had no prior
opportunity to challenge the fairness of his post-conviction process and, in light of
the post-conviction court’s heavy reliance on the State’s experts in denying Mr.
Johnson relief, he meets the prejudice standard with regard to that claim.
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proceedings. Because the prosecution did not disclose at any point during any prior
A. Trial and Post-Conviction Facts
This Court previously recognized the only disputed guilt-phase question
before the jury was whether Mr. Johnson formed the requisite mental state for firstdegree murder. See Johnson, 207 S.W.3d at 34. Mr. Johnson’s defense asserted
that, due to his severe mental illness and the auditory command hallucinations he
was experiencing at the time of the offense, a reasonable doubt existed as to whether
he coolly deliberated as required for first-degree murder and he was therefore guilty
of second-degree murder instead. The prosecution agreed Mr. Johnson’s mental
state was the sole disputed issue. In so doing, the State relied exclusively on the
conclusions of Becker and English to assert Mr. Johnson did form the required
mental state to commit first-degree murder.
Before trial, on October 1, 2002, defense counsel filed a motion for discovery
requesting “[t]he criminal records and any list or summary reflecting criminal
records of all persons the State intends to call as witnesses at a hearing or trial.” Ex.
1 [First Discovery Motion], p. 2. On October 8, 2004, Mr. Johnson’s trial counsel
filed a motion for arrest and conviction records of the State’s anticipated witnesses
and a motion for disclosure of impeachment information regarding the State’s
anticipated witnesses. Ex. 2 [Motion for Arrest and Conviction Reports], pp. 1-2;
Ex. 3 [Motion for Disclosure of Impeaching Information], pp. 1-3. The motions
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STATEMENT OF THE CASE
anticipated witnesses. Ex. 2, pp. 1-2; Ex. 3, pp. 1-3; Ex. 4 [Kerry Affidavit], p. 2;
Ex. 5 [Beimbiek Affidavit], p. 2. The court denied the defense request for arrest
records but granted the motion as to conviction records. 12/10/2004 Hrg. Tr. 31-33.
The court also denied, with leave to renew, the request for impeachment information
such as personnel records, explaining that it would entertain the motion later if
specific allegations arose warranting the disclosure of such records. 12/10/2004
Hrg. Tr. 35-38. Nevertheless, the prosecution failed to disclose any conviction or
personnel records related to Becker or English. Indeed, the prosecution did not turn
over any impeachment information to defense counsel related to either of the two
expert witnesses. Ex. 4, p. 2; Ex. 5, p. 3.
At trial, the defense presented Dr. Delany Dean, a psychologist who evaluated
Mr. Johnson over the course of four visits. Dr. Dean, consistent with English and
Becker, found Mr. Johnson to be suffering from a form of schizophrenia. Mr.
Johnson’s longstanding schizophrenia produced active command hallucinations.
Mr. Johnson experienced those at the time of the crime, and thus, Dr. Dean
concluded that he did not coolly deliberate when he committed the offense. Tr. 1579,
1636-37.
Pretrial, the State had endorsed both Becker and English as witnesses. Ex. 20
[State’s Endorsement of Witnesses], p. 4. After the defense rested, the prosecutor
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specifically requested arrest, charging, and conviction records of the State’s
explanation as to why it chose not to call Becker, who had primarily conducted the
evaluations and written the reports. Tr. 1793. English had admitted at his prior
deposition that Becker was the one who interviewed and evaluated Mr. Johnson,
reviewed the majority of the records, and wrote the reports.
Ex. 6 [English
Deposition], p. 11-12, 17, 22. At trial, however, English testified he and Becker
“collaborated totally.” Tr. 1806. English opined that Mr. Johnson did deliberate,
refuting his diminished capacity defense. Tr. 1843-45. Thus, the State was able to
avoid any possible cross-examination of Becker about his first DWI.2
The jury convicted Mr. Johnson of first-degree murder. After the trial was
over, a juror approached the defense attorneys and explained that he believed Mr.
Johnson suffered from a mental illness, but he believed the State’s experts’
conclusions regarding Mr. Johnson’s hallucinations being caused by prior drug use
and about his culpability in the case. Ex. 4, p. 3. Another juror spoke to a
documentarian in November 2016 and explained that he felt the defense expert’s
conclusion about Mr. Johnson’s auditory hallucinations “was offset by the
prosecution’s expert witnesses,” leading the jury to conclude that he “planned it out”
While bad faith is not a component of the Brady standard, the State’s failure to
also call Becker certainly creates an inference of knowledge of the DWI.
2
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announced he was only calling English to testify in rebuttal. The State offered no
Juror Interview, “The Worst Crime”].
During Mr. Johnson’s state post-conviction proceedings pursuant to Rule
29.15, as part of the obligation to raise all potentially meritorious constitutional
issues that provided a basis for attacking Mr. Johnson’s conviction and sentence, the
defense again filed a request for discovery, including any prior criminal convictions
of any person the State intended to call or called as witnesses at a hearing or trial.
Ex. 9 [Movant’s Request for Production], p. 2-3; Ex. 10 [Lundt Affidavit], p. 1; Ex.
11 [Hamilton Affidavit], p. 1. Again, the prosecution did not turn over any criminal
or other impeachment information related to either Becker or English. Ex. 10, p. 2;
Ex. 11, p. 1.
The post-conviction hearing in Mr. Johnson’s case was before Judge Seigel.
It began on November 30, 2009, and continued through December 2, 2009. The
remainder of the hearing took place on July 23, 2010. Judge Seigel issued his
decision denying Mr. Johnson post-conviction relief on April 5, 2011. In so doing,
Judge Seigel relied heavily on the evaluations and reports by Becker and on
English’s testimony regarding those evaluations, emphasizing the credentials of both
psychologists. The court dismissed the conclusions of the post-conviction defense
expert, Dr. Pablo Stewart, who found that English and Becker’s claims related to
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and coolly deliberated as required for first-degree murder. Ex. 8 [November 2016
illness were erroneous. Ex. 12 [Rule 29.15 Denial], pp. 2, 11-13, 19-20, 32-34.
B. Newly Discovered Evidence
In the course of investigating Mr. Johnson’s case, counsel discovered in early
2023 that Becker and English both faced professional discipline and lost their
licenses to practice psychology due to their histories of misconduct and criminal
behavior. Counsel further learned that Becker’s criminal behavior started at least as
early as 1999, but as mentioned above, Becker’s 1999 convictions were never
disclosed to trial counsel despite trial counsel’s specific pretrial request for such
information.3 Ex. 13 [Franklin County Records], p. 1; see also Ex. 15 [St. Louis
County Records], p. 14. Becker now has at least six additional DWI convictions,
including at least three felonies. Ex. 14 [St. Francois County Records], pp. 6-7; Ex.
15, p. 14; Ex. 16 [Butler County Records], p. 1. The State Administrative Hearing
Commission held a hearing in March 2012—almost exactly six months before oral
argument in this Court on Mr. Johnson’s appeal from his Rule 29.15 denial—at
which the Committee of Psychologists was represented by the Attorney General’s
Office. Ex. 18 [State Comm. of Psychologists v. Becker, Case No. 12-0407 PS (May
3
It is not clear from the records how many 1999 cases Becker had or what their
ultimate dispositions were, but subsequent prosecutions list a 1999 DWI conviction.
Case.net lists a 1999 conviction for failure to dim lights.
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Mr. Johnson’s hallucinations being caused by his drug use rather than his mental
professional license. Ex. 18, p. 3.
English was investigated by the Department of Mental Health and the
Missouri State Committee of Psychologists and was found to have misused State
resources by conducting pre-surgical mental health evaluations at work for
colleagues who were seeking gastric bypass surgery, which was outside his expertise
and not part of his job duties. Ex. 19 [English Settlement Agreement], p. 4. He also
was found to have sexually harassed a coworker over a period of about two years.
Ex. 19, p. 4. After the Department of Mental Health and the Committee of
Psychologists found the allegations against him to be substantiated, English entered
into a settlement agreement with the Committee in 2018 in which he agreed to
relinquish his professional license. Ex. 19, p. 7.
The State has failed to disclose any of this important impeachment
information to Mr. Johnson’s counsel at every stage of litigation throughout this
case. The State’s suppression violated due process and prevented the jury from
considering the impeaching information as part of their credibility assessment of the
State’s experts; it deprived Mr. Johnson of his due process right to a fair postconviction proceeding in light of Judge Seigel’s involvement in Becker’s criminal
case; and it has precluded Mr. Johnson from raising this claim in prior stages of
litigation. Even before this Court, the Attorney General asked this Court to credit
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3, 2013)], p. 3. In May 2013, as a result of that hearing, Becker was stripped of his
simultaneously seeking to take Becker’s license in another forum.
1. Becker’s Many DWI Convictions
Despite trial counsel’s specific request for impeaching information
concerning the State’s witnesses and the State’s pre-trial assurances that it would
disclose prior convictions, the State never provided any information related to
Becker’s 1999 convictions. Moreover, at no point during Mr. Johnson’s Rule 29.15
proceedings did the prosecution disclose that, in addition to Becker’s undisclosed
1999 convictions, the St. Louis County Prosecutor’s Office—the same office that
prosecuted Mr. Johnson at trial and in post-conviction—was prosecuting Becker for
felony DWI as a persistent offender. Ex. 15, p. 14. Neither the prosecution nor
Judge Seigel ever acknowledged that Becker’s St. Louis County felony DWI case
was before Judge Seigel himself and took place while Mr. Johnson’s post-conviction
proceedings were ongoing. Ex. 10, pp. 3-4; Ex. 11, p. 2. Becker pleaded guilty to
felony DWI as a persistent offender on April 1, 2010—after Mr. Johnson’s postconviction hearing began but before it was concluded—and Judge Seigel
sentenced Becker to four years in prison, concurrent with his prison sentence in yet
another felony DWI case in Butler County. Ex. 15, pp. 3, 6-7; Ex. 16, p. 1.
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Becker’s testimony over that of a non-persistently impaired defense expert, while
County, Becker had at least three other DWI convictions by the time of the hearing
on the Rule 29.15 motion.
Jurisdiction
Charge
Date of Crime
Date of
Conviction
St. Francois
DWI
County
St. Francois
November 21,
2005
DWI
June 23, 2007
County
St. Francois
June 8, 2006
November 13,
2007
DWI
August 1, 2007
July 11, 2008
County
Ex. 14, pp. 6-7.
On top of the above malfeasance and at the time of the Rule 29.15 hearing,
Becker faced at least three pending cases. One, charging him as a persistent
offender, was before Judge Seigel, demonstrating that both Judge Seigel and the
prosecutor’s office knew of Becker’s prior DWI convictions. Ex. 15, p. 3.
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In addition to the 1999 convictions and the 2009 felony DWI case in St. Louis
Charge
Date of Crime
Date of
Conviction
St. Louis County
(Judge Seigel)
Felony DWI/
September 28,
persistent offender 2008
April 1, 2010 (4
years)
St. Francois
County
Felony DWI/
chronic offender
October 9, 2008
August 4, 2010 (5
years)
Butler County
Felony DWI/
October 19, 2008
persistent offender
April 13, 2010 (4
years)
Ex. 14, pp. 6-7; Ex. 15, p. 3; Ex. 16, p. 1.
While the three felony cases were pending in Missouri, Becker was arrested
for another DWI on May 21, 2009, in Navajo County, Arizona and was later indicted
for felony DWI in that case for driving with a blood alcohol content of over .20%
and with a suspended or revoked license.4
Ex. 17 [Navajo County, Arizona
Records], pp. 4-5. He was extradited to Missouri from Arizona on a fugitive warrant
to face the three pending felony cases in June 2009. Ex. 17.
Like the trial and post-conviction prosecutor and post-conviction court, the
Attorney General also was aware of the impeaching information about Becker. The
records of Becker’s St. Louis County and St. Francois County felony cases reveal
that they were both provided to the Attorney General’s Office, likely in connection
4
The Arizona case was dismissed without prejudice in 2014. Ex. 17, p. 6.
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Jurisdiction
against him. Ex. 14, p. 3; Ex. 15, p. 4. The St. Louis County Clerk transferred the
certified record of that case to the Attorney General’s Office on July 14, 2010, and
the St. Francois County Clerk sent the certified record of that case to the Attorney
General’s Office on February 22, 2012. Ex. 14, p. 3; Ex. 15, p. 4. One month later,
the Missouri State Committee of Psychologists, represented by Assistant Attorney
General Ronald Smith, held a hearing to determine whether to revoke Becker’s
professional license because of Becker’s numerous DWI convictions. Ex. 18, pp. 12, 9-11. Becker’s license was revoked by the Committee on May 3, 2013. Ex. 18,
pp. 3-4.
While the Committee, represented by the Attorney General’s Office, was
pursuing professional discipline against Becker, that office simultaneously relied on
Becker’s evaluations and conclusions about Mr. Johnson’s mental state to defend
his conviction and death sentence before this Court in a brief filed four short months
after seeking to revoke Becker’s license. See Response, Case 13-CV-00278-HEA,
at 14-15.5 And although counsel was appointed in early 2013 to represent Mr.
5
In that brief, the Attorney General specifically argued against the credibility of a defense
expert on the basis of licensure. See Response, Case 13-CV-00278-HEA, p. 88 n. 10.
Notably omitted is any reference to the Attorney General seeking to revoke the license of
their key expert. Undersigned counsel listened to the post-conviction argument to this
Court. At no point during oral argument did the Attorney General disclose their pursuit of
Becker’s license.
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with the Missouri State Committee of Psychologists’ professional discipline case
has either the St. Louis County Prosecutor’s Office or the Attorney General’s Office
disclosed to Mr. Johnson’s counsel Becker’s lengthy criminal record, including his
pre-trial convictions, or the fact that he was stripped of his professional license by
the State of Missouri.6
2.
English’s Misconduct
The State also never disclosed to Mr. Johnson’s counsel at any point that
Byron English, its other expert witness and the individual the State called to testify—
even though Becker had primarily conducted the evaluations—was investigated for
various types of professional misconduct.
Like Becker, English also faced
professional discipline by the Missouri State Committee of Psychologists, and he
ultimately agreed to relinquish his license to practice psychology. Ex. 19, p. 7.
In December 2017, while Mr. Johnson’s federal habeas petition was pending,
the Committee began an investigation into English’s conduct while employed at the
Southeast Missouri Mental Health Center. The Center had received reports that
English had been sexually harassing a secretary there for about two years, and that
he had misused State resources by conducting personal psychological evaluations at
work for colleagues who wanted to undergo gastric bypass surgery—even though he
The St. Louis County Prosecutor’s Office recently has permitted counsel to review its
files upon counsel’s request.
6
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Johnson in federal habeas proceedings, at no point between then and the present time
was using State resources to complete them. Ex. 19, pp. 2-5. English wrote letters
to his coworkers’ surgeons claiming to have evaluated them, but he was unaware of
the guidelines providers were to follow in conducting such evaluations, which were
not part of his job duties.
Ex. 19, p. 3.
His evaluations consisted only of
administering a personality test (the MMPI) and interviewing his colleagues “to see
if there was ‘any symptomology present’” and he “didn’t have to go any farther than
that.” Ex. 19, p. 3. He had his secretary at Southeast Missouri Mental Health Center
type the reports he sent to his colleagues’ surgeons. Ex. 19, p. 3. In addition to the
misuse of state resources, English had made inappropriate sexual comments to a
female coworker, had touched her in a way that made her uncomfortable, and gave
her unwanted gifts. Ex. 19, p. 4. He sent her inappropriate emails and left sexually
harassing messages on transcription tapes, as well as the suggestive comments he
made in person. Ex. 19, p. 4.
The Committee’s investigation revealed that the Department of Mental Health
had already conducted its own investigation and found the allegations against
English substantiated. Ex. 19, p. 4. In September 2018, the Committee determined
there was cause to discipline English and it entered into a settlement agreement with
him in which he agreed to relinquish his professional license in lieu of discipline.
Ex. 19, p. 6-7.
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had never done pre-surgical evaluations as part of his psychological practice—and
Despite the serious credibility concerns surrounding both Becker and English,
the State has continually relied on their findings and conclusions about Mr.
Johnson’s mental state at the time of the crime. Moreover, the State has repeatedly
urged this Court as well as the federal courts that have reviewed Mr. Johnson’s
conviction and death sentence to do the same. However, the State has done so
without ever disclosing to Mr. Johnson’s counsel or this Court the important
impeachment information related to Becker and English.
Because of this continued failure to disclose, Mr. Johnson has never been able
to present his Brady or judicial appearance of impropriety claims to any prior court.
Furthermore, as to the claims Mr. Johnson was able to raise despite the State’s
suppression, the suppression has prevented this Court and others from evaluating
Mr. Johnson’s history of hallucinations and his capacity for cool deliberation at the
time of the offense in their full context, one that includes the dubious credibility of
the State’s experts’ conclusions.
REASONS THE WRIT SHOULD BE GRANTED
Claim I:
Mr. Johnson’s conviction was secured in violation of his right to
due process of law because the State, contrary to its obligations
under Brady and Rule 25.03, failed to disclose important
impeachment information concerning its experts’ conclusions
regarding the only disputed issue in the case.
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3. The State’s Reliance on Disgraced Experts
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). “Impeachment
evidence . . . falls within the Brady rule.” United States v. Bagley, 473 U.S. 667,
676 (1985).
Accordingly, this Court has recognized that “[p]rosecutors must
disclose, even without a request, exculpatory evidence, including evidence that may
be used to impeach a government witness.” State v. Robinson, 835 S.W.2d 303, 306
(Mo. banc 1992) (citing Bagley, 473 U.S. at 674-77; Brady, 373 U.S. at 86-89; Mo.
Sup. Ct. R. 25.03(A)(9)). This duty rests, in part, on the unique role of prosecutors
in the criminal justice system. Indeed, this Court has recognized that a prosecutor is
“the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it shall win
a case, but that justice shall be done.” Engel, 304 S.W.3d at 127-28 (internal
quotations omitted); Banks v. Dretke, 540 U.S. 668, 696 (2004) (“We have several
times underscored the special role played by the American prosecutor in the search
for truth in criminal trials.”) (internal quotations omitted); see also Robinson, 835
S.W.2d at 306 (citing Bagley, 473 U.S. at 675 & n.6).
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In Brady v. Maryland, the Supreme Court held that “the suppression by the
favorable to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,
281-82 (1999). Under Brady, “[e]vidence qualifies as material when there is any
reasonable likelihood it could have affected the judgment of the jury.” Wearry v.
Cain, 577 U.S. 385, 392 (2016) (internal quotations omitted). A petitioner “need
not show that he ‘more likely than not’ would have been acquitted had the new
evidence been admitted.” Id. (citing Smith v. Cain, 565 U.S. 73, 75 (2012)). Rather,
“[h]e must show only that the new evidence is sufficient to ‘undermine confidence’
in the verdict.” Id. As this Court has explained, “[t]he question is not whether the
defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial . . . resulting in a verdict
worthy of confidence.” State ex rel. Koster v. Green, 388 S.W.3d 603, 608 (Mo.
banc 2012) (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Like the due process requirements of the Brady line of cases, Missouri Rule
25.03 requires the prosecution, upon written request of defendant's counsel, to
disclose exculpatory evidence to the accused prior to trial. This rule “imposes an
affirmative requirement of diligence and good faith on the state to locate records not
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A Brady violation has three components: “The evidence at issue must be
personnel.” Merriweather v. State, 294 S.W.3d 52, 55 (Mo. banc 2009).
Even when the suppressed evidence does not come to light until after the
conclusion of a defendant’s federal habeas corpus proceedings, the defendant may
pursue a state habeas action asserting a Brady claim. Engel, 304 S.W.3d at 124-25.
In Engel, the petitioner did not learn of the suppressed evidence until after the
conclusion of his federal habeas proceedings and “nearly 26 years after the alleged
crimes for which he was convicted.” Id. If the defendant can establish that (1) the
grounds for relief were not known to him during his direct appeal or post-conviction
proceedings and (2) the suppression of the evidence prejudiced him, then he is
entitled to vacatur of his conviction(s). Id. at 126.
A. The State Suppressed the Impeachment Evidence from Mr. Johnson,
Precluding His Knowledge of the Grounds for Relief During his Direct
Appeal or Post-Conviction Proceedings
As explained above, the prosecutor had a duty to disclose impeaching
information even without a request, and despite the motions filed by trial and postconviction counsel requesting that the State disclose any prior convictions or
impeachment information regarding its witnesses, the State did not provide to any
of Mr. Johnson’s current or former attorneys such information related to English or
Becker. Remaining mum when impeachment evidence exists violated the State’s
constitutional and statutory duties.
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only in its own possession or control but in the control of other government
victim’s out-of-state conviction was an issue of “fundamental fairness” violating
both Rule 25.03 and the defendant’s due process rights. Merriweather, 294 S.W.3d
at 55. Likewise, in this case, the State’s failure to disclose Becker’s criminal
conviction before trial deprived Mr. Johnson of a meaningful opportunity to
challenge the credibility of the State’s experts, which was of the utmost importance
in light of the main issue in the case—Mr. Johnson’s mental state at the time of the
crime. Although English ultimately testified for the State, it was Becker who
primarily interviewed Mr. Johnson, conducted the evaluation, wrote the reports,
reviewed the records, and reached an opinion. Ex. 6, pp. 10-12, 17, 22; Ex. 7 [Becker
Deposition], p. 7. English “collaborated” with Becker, reviewed the reports, and
gave feedback on Becker’s conclusions. Ex. 6, p. 12; Ex. 7, p. 7.
Both experts were endorsed by the State as potential witnesses, and it was not
until the State called English to the stand that Mr. Johnson’s attorneys knew it would
be he, and not Becker, who would ultimately testify. Ex. 5, pp. 3-4; Ex. 20, p. 4.
Although the prosecution provided information regarding the prior convictions of
other witnesses it had endorsed, it never provided any such information with regard
to Becker or English, including the fact that Becker had been convicted of at least
one criminal offense in 1999. Ex. 4, pp. 2-3; Ex. 5, pp. 3-5. The State’s decision
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In Merriweather, this Court held that the prosecution’s failure to disclose the
and an attempt to insulate their rebuttal witness from attack on cross-examination.
Had Mr. Johnson’s trial attorneys known about Becker’s convictions, they
would have used the information to cast doubt on the credibility of English and
Becker and their conclusions as to Mr. Johnson’s mental state at the time of the
offense. Ex. 4, p. 3; Ex. 5, p. 5. Trial counsel attempted to employ this strategy in
cross-examining English by questioning him about discarding his notes and the lack
of experience both he and Becker had with diminished capacity, as well as in the
defense closing arguments where counsel again highlighted those deficiencies. Tr.
1869-70, 1874-75, 1935-36. But had they been equipped with the much more
significant impeachment information that was withheld regarding Becker’s criminal
history, their strategy of discrediting the State’s experts would have been
considerably more effective. See Engel, 304 S.W.3d at 128 (“In determining
whether the suppressed impeachment evidence was material, the reviewing court
must evaluate not only the ways that the witness was impeached, but also the ways
that he was not impeached that would have been available had the Brady claim
evidence been disclosed.”) (internal citations and brackets omitted).
Trial counsel also could have called into question the State’s choice to call
English to testify rather than Becker, especially given that Becker was the one who
primarily conducted the evaluations and wrote the reports. Even if Becker’s only
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not to also call Becker certainly creates an inference of knowledge about the DWI
known to look more deeply into that case since that would have been a “red flag”
suggesting that the case originated as something more serious—and it was. Ex. 4,
p. 2. Because the withheld information would have allowed trial counsel to call into
question the credibility of the State’s experts, it was impeachment evidence that was
required to be disclosed under Brady and its progeny.7 Bagley, 473 U.S. at 676
(“Impeachment evidence, . . . as well as exculpatory evidence, falls within the Brady
rule”); Strickler, 527 U.S. at 280; Engel, 304 S.W.3d at 126.
Seriously compounding this Brady violation, during post-conviction, the
prosecution also suppressed the fact that, while Mr. Johnson’s Rule 29.15
proceedings were pending, their office was simultaneously prosecuting Becker for
felony DWI as a persistent offender after he had accrued at least three other DWI
convictions on top of the 1999 case. Ex. 15, p. 14. Post-conviction counsel’s motion
for discovery included a request for criminal information regarding the State’s
witnesses, including trial witnesses, but counsel did not receive any such information
in response. Ex. 10, pp. 1-2; Ex. 11, p. 1. Becker’s plea and sentencing hearing was
held on April 1, 2010, sandwiched in the middle of Mr. Johnson’s post-conviction
The State’s use of a peremptory strike to dismiss a prospective juror with prior
DWI convictions further demonstrates the impeaching nature of such criminal
history. Tr. 751-53, 766. If, in the State’s estimation, an individual is not qualified
to serve as a juror with a DWI history, one cannot credibly premise a first-degree
murder conviction and death sentence on a similarly impaired expert’s opinion.
7
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1999 conviction was for failure to dim lights, Mr. Johnson’s attorneys would have
informed counsel that Judge Seigel had sentenced Becker to four years in prison for
a felony at the same time that Judge Seigel was relying on Becker’s evaluations of
Mr. Johnson to deny him relief in his Rule 29.15 proceedings. Ex. 10, pp. 3-5.
This important impeachment information was never turned over to Mr.
Johnson’s attorneys at any stage. A review of the trial and post-conviction files from
the Missouri State Public Defender’s Office reveals no mention at all of Becker’s
criminal cases. In interviews with trial counsel, they each affirmed that they were
never informed of any impeachment information related to Becker or English,
including Becker’s 1999 convictions. Ex. 4, p. 2; Ex. 5, p. 5. Post-conviction
counsel likewise was never provided Becker’s 1999 convictions or the numerous
subsequent DWI cases in which he was arrested and convicted, including the St.
Louis County case. Ex. 10, pp. 2, 4; Ex. 11, pp. 2-3.
If counsel had learned of this impeachment information during the postconviction proceedings, not only would they have been able to cast doubt on the
credibility of the State’s trial experts during the post-conviction hearing, but they
also would have had the opportunity to raise a Brady claim due to the State’s
suppression of the information before trial. Ex. 10, p. 4; Ex. 11, p. 3. And had postconviction counsel been informed of Becker’s pending case before Judge Seigel at
that very same time, counsel could have moved to recuse Judge Seigel and argued
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proceedings. Ex. 15, p. 4. Yet neither the prosecutor’s office nor Judge Seigel
while also presiding over his criminal case created an appearance of impropriety.
Ex. 10, pp. 4-5. See, e.g., Anderson, 402 S.W.3d at 94 (finding in a post-conviction
case that recusal is required when a reasonable person would have factual grounds
to find an appearance of impropriety).
Moreover, despite its ongoing obligations to turn over such information, the
State never disclosed to any of Mr. Johnson’s attorneys the professional disciplinary
actions taken by the State Committee of Psychologists against both Becker and
English, which resulted in both men being stripped of their professional licenses.
Ex. 4, pp. 2-3; Ex. 5, p. 5; Ex. 10, p. 3; Ex. 11, p. 2. This violation is particularly
notable in light of the fact that the Attorney General’s Office represented the State
Committee of Psychologists in taking such disciplinary action against Becker, and
was likely involved in the case against English as well.8 Ex. 18, p. 2. The records
of Becker’s St. Francois County and St. Louis County felony convictions reveal that
the Attorney General’s Office was aware and in possession of Becker’s criminal
history information and was provided with his criminal records in 2010 and 2012.
Ex. 14, p. 3; Ex. 15, p. 5. English’s settlement agreement shows that the State
It is not entirely clear from the records whether the Attorney General’s Office was
directly involved in the disciplinary action against English because the parties in his case
waived a hearing and entered into a settlement agreement. Ex. 19, p. 1.
8
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that the post-conviction court’s reliance on Becker’s evaluations and conclusions
Office, was aware of at least some of English’s misconduct by 2017, if not before.
Ex. 19, p. 2.
Yet simultaneously, the Attorney General’s Office was urging this Court and
the Federal District Court to uphold Mr. Johnson’s conviction and death sentence,
relying in part on the testimony of the two State’s experts, despite the fact that it
knew or should have known of their credibility issues, and without disclosing that
important information to Mr. Johnson’s counsel.9 The Supreme Court of California
recently held that a state Attorney General has an obligation to comply with Brady
in a case with similar circumstances. In re Jasmine Jenkins, No. S267391, at 25-26
(Cal. Mar. 27, 2023). There, the defendant was not informed that the victim and a
key prosecution witness had a prior juvenile conviction. In state habeas proceedings,
the California Supreme Court affirmed that the State’s duty under Brady to disclose
9
Only through independent investigation, including a review of the local prosecutor
file, has Mr. Johnson’s counsel become aware of the State’s violation of its
obligations under Brady and Rule 25.03 and of the underlying impeachment
information that has been withheld from the defense. Having made this discovery
in February 2023, counsel has only been able to discover a sliver of the existing
impeachment information about Becker and English. Mr. Johnson’s legal team has
been continually requesting and reviewing records and speaking with witnesses
about these matters, but still likely has not uncovered all the relevant information.
For this reason, Mr. Johnson is also filing a request for discovery before this Court
and requesting to fully litigate this issue before a special master in an evidentiary
hearing.
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Committee of Psychologists, a state agency represented by the Attorney General’s
context:
[W]here a habeas corpus petitioner claims not to have
received a fair trial because a trial prosecutor failed to
disclose material evidence in violation of Brady—and
where the Attorney General has knowledge of, or is in
actual or constructive possession of, evidence that the trial
prosecutor suppressed in violation of Brady—the Attorney
General has a constitutional duty under Brady to disclose
the evidence.
Jenkins, No. S267391 at 25-26; see also Banks, 540 U.S. at 696 (“A rule . . .
declaring ‘prosecutor may hide, defendant must seek’ is not tenable in a system
constitutionally bound to accord defendants due process”) (quoting Bracy v.
Gramley, 520 U.S. 899, 909 (1997). This ruling is entirely consistent with this
Court’s jurisprudence.
Under all these circumstances, Mr. Johnson has demonstrated cause for his
inability to raise this Brady claim on direct appeal or post-conviction, since it is
based on information suppressed by the State. Engel, 304 S.W.3d at 126 (claims
“rest on a collection of new evidence . . . unknown or unavailable when [petitioner]
previously sought relief”).
1. The State also Violated its Obligations Under Rule 25.03
Rule 25.03 imposes an affirmative duty on the prosecution to seek out and
disclose criminal information that is in the control of other governmental entities,
not just information that is actually known by the prosecutor. In Merriweather, this
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impeachment information extends beyond trial to the postconviction and habeas
information when it failed to obtain criminal conviction information from Illinois,
even though it was from out of state. Merriweather, 294 S.W.3d at 55-56. Because
Missouri officials had access to the Illinois records through the NCIC database, they
had a duty to discover and disclose that information to the defense.
Here, the majority of Becker’s DWI cases were prosecuted in Missouri, and
one case was prosecuted by the very same office that prosecuted Mr. Johnson, in
front of the very same judge. While Becker’s cases were from a number of different
counties, Missouri officials clearly knew of them because Becker was charged as a
persistent—and later a chronic—offender due to the number of prior convictions he
had, which were listed in the Felony Complaints and Informations filed by the
prosecution. Ex. 14, pp. 6-7; Ex. 15, p. 14. Even Becker’s Arizona arrest was
undoubtedly within the Missouri officials’ knowledge, including the St. Louis
County Prosecutor’s Office, as Becker was extradited back to Missouri on a fugitive
warrant upon his arrest in Arizona for a separate felony DWI committed there. Ex.
17.
Finally, the Attorney General had knowledge of, or was in actual or
constructive possession of, evidence that the trial and post-conviction prosecutor
suppressed in violation of Brady. But the Attorney General took no corrective action
before this Court.
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Court found that the prosecution violated its duty to disclose impeachment
Becker’s criminal information to Mr. Johnson’s counsel, the State also failed to
abide by its duties under Rule 25.03 to diligently seek out and disclose such
information to the defense.
B. The Suppression of Important Impeachment Information Prejudiced Mr.
Johnson
The only disputed question at trial was whether Mr. Johnson formed the
required mental state to commit first-degree murder, or whether he was instead
guilty of second-degree murder due to his severe mental illness and related auditory
hallucinations. The opinions of the mental health experts involved in assessing Mr.
Johnson before trial were paramount in this case, and their credibility was therefore
a key issue. All parties and this Court agreed and acknowledged the seminal nature
of this dispute.
In Merriweather, this Court faced a similar circumstance and explained that
where the case “hinged on which witness—[the victim] or Merriweather—the jury
chose to believe,” and thus the victim’s prior Illinois conviction was important
impeachment information relevant to the jury’s determination of her credibility. 294
S.W.3d at 57; see also Wearry, 577 U.S. at 392-93 (2016) (finding prejudice due to
the suppression of impeaching evidence when the State’s case was “built on the jury
crediting [the State’s witness’s] account rather than [the defense account.]”).
Likewise, in Mr. Johnson’s case, the jury’s determination hinged on whether to
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Thus, in addition to violating its Brady obligations by failing to disclose
that he did not coolly deliberate because of the command hallucinations he was
experiencing as a result of his schizophrenia; or the State’s experts, Becker and
English, who concluded that Mr. Johnson’s hallucinations were caused by his prior
drug use and not his schizophrenia and that he formed the required intent for firstdegree murder.
It was clear from the very beginning of the trial that both the State and the
defense considered Mr. Johnson’s mental state and the expert witnesses’ conclusions
in that regard to be the main question before the jury. In voir dire, the prosecutor
asked prospective jurors whether they would be able to consider mental healthrelated evidence and emphasized that the jury was to determine the credibility of all
the witnesses, including the psychologists and “mental health people” who would be
called to testify. Tr. 562-63, 603-04, 674, 678, 683, 737, 756. He asked one
prospective juror whether he would be able to listen to the mental health experts and
assess their backgrounds, training, and experience “and decide if you believe them”
and whether they have any bias or prejudice “regarding what their test results may
be.” Tr. 737.
In opening statements, defense counsel explained to the jury that “[t]he
question you as jurors will have to answer is whether what [Mr. Johnson] did was
murder in the first degree, whether he coolly reflected on his actions, whether Johnny
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believe the defense witness, Dr. Dean, whose evaluation of Mr. Johnson concluded
concluded her opening by explaining the defense case: “We’ll ask you to find Johnny
Johnson guilty but to find him guilty of the crime he committed and that is murder
in the second degree,” based on the evaluation and conclusion of Dr. Dean. Tr. 819.
The State made clear at the end of the guilt phase trial that the question of Mr.
Johnson’s mental state, and the experts’ conclusions in that regard, was the main
issue for the jury to consider. In his closing argument, the prosecutor told the jury,
“The key in this case, of course, and what you’ve heard an awful lot about, is
distinguishing the elements between murder first degree and murder second degree.”
Tr. 1910 (emphasis added). He went on to note the difference: “that the defendant
did so after deliberation, which means cool reflection upon the matter for any length
of time no matter how brief.” Tr. 1910. The prosecutor later again explained that
the difference between first- and second-degree murder is “the distinguishing
characteristics of cool reflection, the deliberation,” and said the jury did not need to
consider second-degree murder if it believed there was “deliberation involved in this
case.” Tr. 1912. Later, after explaining the other charges, the prosecutor again
stated, “Now, we’re talking solely about deliberation.” Tr. 1916. In concluding his
initial closing argument, the prosecutor argued that “everything he did is
deliberation. . . . We’re talking about the process of cool reflection, not necessarily
the emotional status or state of the individual involved.” Tr. 1921-22.
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Johnson was capable of coolly reflecting on his actions.” Tr. 803. Counsel
explaining, “What the issue is, is he able to coolly reflect.” Tr. 1946. He also
emphasized the importance of considering the credibility of the witnesses, including
expert witnesses, asking whether the jury believed Dr. Dean, the defense expert, and
stating that “one of the few honest things she told you, she was completely honest
when she told you, she knows if you get him out of the deliberation, he’s out of the
death penalty range” and “if you knock out cool reflection, you knock out
deliberation, you knock out death.” Tr. 1947-48. After noting that the jury should
consider the criminal convictions of one of the State’s witnesses, the prosecutor
urged the jury to “consider the interest, bias and prejudice” of Dr. Dean and “her
anti-death penalty stance, her hundred and seventy-five bucks an hour, her cooking
of her report.” Tr. 1906-07. In fact, the prosecutor accused Dr. Dean of “cooking”
her report six times in his rebuttal argument, further illustrating the importance of
the jury’s determination of the experts’ credibility. Tr. 1907, 1947-48, 1956. The
prosecutor reiterated that the question before the jury was whether Mr. Johnson’s
mental illness “prevent[ed] him from deliberating, did it prevent him from coolly
reflecting on the matter before he did it.” Tr. 1955-56.
Defense counsel’s closing argument also reflected the importance of the
question of Mr. Johnson’s mental state and the conclusions of the experts in that
regard: “It all boils down to this: Was this act an intentional act but an act done
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In his rebuttal argument, the prosecutor again summed up the case by
and murder in the second degree.” Tr. 1939. She went on to conclude that Mr.
Johnson’s “mental illness, his hallucinations, his delusions, his disorganized speech,
his disorganized behavior prevented him from coolly reflecting,” and “[t]he voices
prevented Johnny from coolly reflecting. He did not coolly reflect. He could not
coolly reflect.” Tr. 1940-41. She attempted to cast doubt on English’s credibility by
reminding the jury that he had destroyed his notes, had never before found that
someone was unable to coolly reflect, and was not experienced in determining
whether a defendant suffered from diminished capacity. Tr. 1935-36. Had defense
counsel known about the even more serious credibility issues surrounding Becker
and English, her argument would have been considerably more effective.
The jurors themselves recognized that the question before them was whether
to believe the defense expert or the State’s experts with regard to Mr. Johnson’s
mental state, as evidenced by the feedback trial counsel received from the juror who
approached them after trial to say that although he believed Mr. Johnson was
mentally ill, he believed the conclusions reached by the State’s experts with regard
to Mr. Johnson’s mental state and the cause of his actions. Ex. 4, p. 3. Another juror
spoke to a documentarian in November 2016 and explained that the case was
“unique, I think, in the fact that [Mr. Johnson] admitted his guilt. He admitted he
did it. So that really wasn’t on the table. It was just the cool deliberation of
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without cool reflection. . . . That’s the difference between murder in the first degree
centered around “[m]aking sure everybody was on the same page as far as the first
degree murder.” Ex. 8, p. 3. Even in the penalty phase, the jurors were swayed by
the impression that Mr. Johnson “planned it out.” Ex. 8, p. 5. With regard to the
expert testimony in the case, the juror explained that the defense expert’s conclusion
about Mr. Johnson’s auditory hallucinations “was offset by the prosecution’s expert
witnesses.” Ex. 8, p. 6.
The question of Mr. Johnson’s mental state and the credibility of the experts
was central on appeal, in post-conviction, and in federal habeas proceedings as well.
On direct appeal, this Court detailed English’s testimony “that Johnson was capable
of deliberation and any hallucinations that he may have had were due to
methamphetamine intoxication, not psychosis.” Johnson, 207 S.W.3d at 34. The
Court also acknowledged that Mr. Johnson’s “true defense” was diminished capacity
and, in discussing whether the death sentence was appropriate, held that “the jury
rejected Johnson’s mental illness defenses.” Id. at 43, 51.
In his opinion rejecting Mr. Johnson’s Rule 29.15 motion, Judge Seigel noted
that the trial expert witnesses generally agreed that Mr. Johnson had schizophrenia
or schizoaffective disorder, and that they only disagreed “as to the effect on his
mental state.” Ex. 12, p. 19. Judge Seigel emphasized Becker and English’s
credentials and experience, weighing heavily their professional qualifications and
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premeditation to determine the first degree charge.” Ex. 8, p. 3. The deliberations
conduct.” Ex. 12, p. 13. Of course, Judge Seigel utterly failed to reconcile this with
Becker’s multiple DWIs and the four-years in prison to which Judge Seigel
sentenced Becker, concurrent to the prison sentences on his other persistent and
chronic offender charges.
In contrast to this favorable view of English and Becker, whom he had just
sentenced to four years in prison, Judge Seigel was highly critical of the defense
experts who testified in post-conviction, dismissing their conclusions as less
reasonable than those of Dr. Dean to the extent that her “diagnosis was consistent
with that of Becker, English,” and other mental health professionals who had
evaluated Mr. Johnson prior to the offense. Ex. 12, p. 34. On appeal, this Court
concluded that “the jury was apprised fully of [Mr. Johnson’s] mental condition.”
Johnson, 388 S.W.3d at 167.
In federal habeas proceedings, the federal court recognized that “the point of
[Dr. Dean’s] testimony was that Petitioner could not deliberate which was a function
of his mental illness rather than drug use” and that English’s testimony rebutted that
defense. Johnson v. Steele, 2020 WL 978039, at *28 (E.D. Mo. Feb. 28, 2020). The
court cited approvingly the post-conviction court’s reliance on Becker and English’s
conclusions and denied Mr. Johnson relief. Id. at *26-28.
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conclusions that Mr. Johnson’s “mental illness did not diminish or excuse his
and rejected Mr. Johnson’s mental health defense at trial, the jury in fact was
deprived of the opportunity to adequately assess the question of Mr. Johnson’s
mental state and the credibility of the experts who evaluated his mental health
because of the State’s failure to disclose important impeachment information about
its experts. Had the jury been aware of the credibility issues surrounding both of the
State’s expert witnesses regarding Mr. Johnson’s diminished capacity defense, it
would have cast Mr. Johnson’s defense and the testimony of the experts in that
regard in a different light—one more favorable to Mr. Johnson. See Banks, 540 U.S
at 701-702 (finding suppressed impeachment information relevant to the reliability
of the jury’s verdict); Engel, 304 S.W.3d at 128 (“In determining whether the
suppressed impeachment evidence was material, the reviewing court must evaluate
not only the ways that the witness was impeached, but also the ways that he was not
impeached that would have been available had the Brady claim evidence been
disclosed.”) (internal citations and brackets omitted).
The fact that the jury was unaware of this important impeachment
information—when it assessed the experts’ credibility and considered the diverging
conclusions of the State’s and defense experts on the question of Mr. Johnson’s
mental state—renders its verdict on the primary issue in the case unworthy of
confidence. Kyles, 514 U.S. at 434 (the question regarding materiality is whether,
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Contrary to the findings by each of these Courts that the jury fully assessed
understood as a trial resulting in a verdict worthy of confidence”); Wearry, 577
U.S.at 392-93 (findingin a witness credibility case that the newly revealed evidence
undermined confidence in the defendant’s conviction); Koster, 388 S.W.3d at 632
(“the undisclosed evidence would have allowed defense counsel to greatly undercut
the credibility” of a witness whose testimony involved “a critical issue in the jury’s
assessment”); Engel, 304 S.W.3d at 128 (nondisclosure of impeachment evidence
caused the verdict to be “not worthy of confidence”). Under the circumstances of
the case, the State’s suppression of impeachment information about its two trial
experts prejudiced Mr. Johnson and deprived him of his due process right to a fair
trial.
Claim II:
Mr. Johnson was deprived of his right to a fair and meaningful
post-conviction process by the post-conviction judge’s
simultaneous role in Mr. Johnson’s case and the felony case
involving the State’s expert, and by the judge’s continued reliance
on the expert without disclosing his criminal record to Mr.
Johnson.
In addition to being deprived of due process at trial, Mr. Johnson was also
deprived of his right to a fair and meaningful post-conviction process. See Case v.
Nebraska, 381 U.S. 336, 346 (1965) (Brennan, J., concurring) (discussing the need
for fair and meaningful state post-conviction proceedings). Neither the State nor
Judge Seigel disclosed to Mr. Johnson’s post-conviction counsel that Becker’s 2009
St. Louis County felony DWI case was before Judge Seigel himself, nor that it took
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in the absence of the suppressed evidence, the defendant “received a fair trial,
having the information before him that Becker had been convicted of enough DWIs
to be charged with a felony as a persistent offender in the St. Louis County case,
Judge Seigel still relied on Becker’s evaluations and reports in denying Mr.
Johnson’s Rule 29.15 motion. And because of the State’s suppression of Becker’s
criminal history information, Mr. Johnson never had the chance in post-conviction
to challenge Becker’s credibility or seek Judge Seigel’s recusal due to his
involvement in both cases. This, on top of the State’s failure to comply with its
Brady obligations and its responsibility pursuant to Rule 25.03, further deprived Mr.
Johnson of his right to due process.
Due process requires a fair post-conviction hearing with an unbiased judge.
See Case, 381 U.S. at 346 (Brennan, J., concurring); Anderson, 402 S.W.3d at 91
(“a judge shall recuse himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned”); see also Thomas v. State, 808 S.W.2d
364, 367 (Mo. banc 1991) (“due process concerns permit any litigant to remove a
biased judge,” including in proceedings pursuant to Rule 29.15). The test for
whether a judge must recuse him- or herself is “whether a reasonable person would
have factual grounds to find an appearance of impropriety and doubt the impartiality
of the court.” Anderson, 402 S.W.3d at 93 (quoting State v. Smulls, 935 S.W.2d 9,
17 (Mo. banc 1996)); see also Aetna Life Co. v. Lavoie, 475 U.S. 813, 825 (1986)
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place in the middle of Mr. Johnson’s post-conviction proceedings. Yet despite
appearance of justice”). The benefit of any doubt is accorded to the litigant, and the
defendant’s burden is only to show that there was an appearance of impropriety, not
that the judge was actually unfair. Anderson, 402 S.W.3d at 93; Smulls, 935 S.W.2d
at 26-27.
Here, a reasonable person would have factual grounds to find an appearance
of impropriety and doubt the impartiality of the court. Judge Seigel presided over
Becker’s St. Louis County felony DWI case while at the same time presiding over
Mr. Johnson’s post-conviction proceedings, at which Becker’s credibility and
conclusions were essential factors. While the responsibility to disclose Becker’s
criminal history rested with the State, the judge’s failure to inform Mr. Johnson that
one of the State’s key experts in the case had an ongoing felony case and enough
prior DWI convictions to render him a persistent offender creates an appearance of
impropriety. Had the judge informed Mr. Johnson’s post-conviction counsel of
Becker’s case, counsel would have been able to raise a Brady issue for the State’s
failure to disclose the 1999 conviction and could also have moved to recuse Judge
Seigel in light of his role in both cases. But by failing to disclose the information
about Becker and continuing to rely on Becker’s conclusions and credibility in
denying Mr. Johnson’s Rule 29.15 motion, Judge Seigel deprived him of an
opportunity to raise potentially meritorious claims in post-conviction and of a fair
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(holding that due process required judge’s recusal because “justice must satisfy the
concurring); Anderson, 402 S.W.3d at 91; Smulls, 935 S.W.2d at 17; Thomas, 808
S.W.2d at 367.
Like his Brady claim, Mr. Johnson was precluded from raising this claim at
prior stages of litigation by factors external to him, as the State never disclosed
Becker’s ongoing St. Louis County felony DWI case and the fact that Judge Seigel
presided over that case while also presiding over Mr. Johnson’s Rule 29.15
proceedings. Nor did the State disclose any of Becker’s other criminal convictions.
Thus, for the same reasons Mr. Johnson has met the requirement to show cause for
his inability to raise his Brady claim at prior stages, he also has met his burden to
show cause for not raising his claim regarding the fairness of his post-conviction
process at prior stages. See Engel, 304 S.W.3d at 125-26.
In light of the importance of Becker’s evaluations and conclusions to the
State’s case against Mr. Johnson, and Judge Seigel’s heavy reliance on Becker and
English’s credibility in denying Mr. Johnson post-conviction relief, as demonstrated
above, Mr. Johnson has met his burden of showing that he was prejudiced by both
the State’s suppression of the impeachment information and by Judge Seigel’s
failure to disclose that information while continuing to rely on Becker’s credibility
in Mr. Johnson’s post-conviction proceedings. Engel, 304 S.W.3d at 128; Anderson,
402 S.W.3d at 93.
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and meaningful post-conviction proceeding. Case, 381 U.S. at 346 (Brennan, J.,
this Court.
The Attorney General had knowledge of, and was in actual or
constructive possession of, evidence that the trial and post-conviction prosecutor
suppressed in violation of Brady. But the Attorney General took no corrective action
before this Court. Proceedings before this Court must not lose their integrity by the
State’s failure to disclose evidence. See Jenkins, No. S267391 at 25-26; see also
Banks, 540 U.S. at 696 (“A rule . . . declaring ‘prosecutor may hide, defendant must
seek’ is not tenable in a system constitutionally bound to accord defendants due
process.”) (citing Bracy, 520 U.S. at 909).
CONCLUSION
WHEREFORE, for all the foregoing reasons, Petitioner Johnny A. Johnson
respectfully requests that this Court, after examining the evidence and the applicable
law, issue a writ of habeas corpus vacating his conviction and death sentence and
grant him a new trial. In the alternative, Petitioner requests that the Court appoint a
Special Master to take evidence of the claim raised here and grant such other and
further relief as the Court deems fair, just, and equitable under the circumstances.
Petitioner further requests that this Court deny the State’s motion to set the execution
date in State v. Johnson, SC86689 (Mo.) in order for his Brady and judicial
appearance of impropriety claims to be fully and properly adjudicated.
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Finally, the Attorney General has trampled upon the decorum and integrity of
/s/ Kent E. Gipson
KENT E. GIPSON, #34524
Law Office of Kent Gipson, LLC
121 E. Gregory Blvd.
Kansas City, MO 64114
816-363-4400 • Fax 816-363-4300
kent.gipson@kentgipsonlaw.com
/s/ Laurence E. Komp
LAURENCE E. KOMP, #40446
Federal Public Defender
Western District of Missouri
818 Grand Avenue, Suite 300
Kansas City, MO 64106
816-471-8282
Laurence_Komp@fd.org
COUNSEL FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of March 2023, the foregoing was filed
via the Case.net system and was sent via email to Gregory Goodwin at
gregory.goodwin@ago.mo.gov.
/s/ Kent E. Gipson
Counsel for Petitioner
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Respectfully Submitted,
STATE EX REL. JOHNNY JOHNSON,
Petitioner,
v.
DAVID VANDERGRIFF,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. SC100023
Suggestions in Opposition to Petition for Habeas Corpus
Johnny Johnson kidnapped six-year-old Casey Williamson, took her to a
pit in the old glass factory in St. Louis County, and attempted to forcibly rape
her. When she resisted, Johnson beat her with a brick and then crushed her
skull with a boulder. Johnson v. State, 388 S.W.3d 159, 162 (Mo. 2012). Now,
Johnson has petitioned for habeas corpus relief alleging due process violations.
Johnson’s claims are meritless. Johnson’s first claim is centered on the
State’s non-disclosure of a 1999 suspended imposition of sentence and an
infraction received by non-testifying expert. Because the expert did not testify,
and because infractions cannot be used for impeachment, there was no due
process violation. The remainder of the first claim involves non-disclosure of
events that happened entirely after trial. Due process does not require the
State to see into the future to disclose information that does not exist at the
time of trial.
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IN THE SUPREME COURT OF MISSOURI
the State did not disclose that the same judge was presiding over his postconviction relief hearing and the criminal prosecution of a non-testifying
expert. But Johnson identifies no provision of law that required such a
disclosure, and Johnson fails to identify any appearance of impropriety that
could result from a judge knowing that a non-testifying State’s expert has
criminal charges stemming from events that occurred after trial.
Johnson’s meritless claims do not warrant further judicial proceedings.
The writ should be denied.
Summary of the Case
On a Thursday evening in July 2002, six-year-old Cassandra “Casey”
Williamson, her mother and father, and some family friends in the
neighborhood were having a cookout when they saw Johnny Johnson walking
down the street. Tr. 821, 871–72. 1 Casey’s mother had known Johnson since
Johnson was three years old, and Johnson had done nothing that caused
Casey’s mother to suspect that Johnson was suffering from mental illness. Tr.
869–70. While at the picnic, Casey’s mother and others spoke with Johnson,
and none of Johnson’s conduct suggested that he was mentally ill. Tr. 869–70.
Casey’s mother had a “nice conversation” with Johnson where there was no
1 The transcript is Respondent’s Exhibit B, and Respondent cites it as Tr. ____.
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Johnson’s second claim is that his due process rights were violated when
ended up spending the night on a couch in Casey’s father’s house. Tr. 827.
On Friday morning, Casey’s father’s alarm clock woke up Casey and her
father. Tr. 826. Casey’s father went downstairs to get ready before finding
Casey something to eat, and Casey’s father saw Johnson on the couch. Tr. 827.
After spending 15 minutes in the bathroom getting ready, Casey’s father came
out and started looking for Casey. Tr. 827–28. Casey and Johnson were gone.
Tr. 828.
That Friday morning, a neighbor saw Johnson carrying a little girl on
his back while walking across a parking lot. Tr. 936–37. At about the same
time, a motorist also saw a man—later identified as Johnson—carrying a little
girl—later identified as Casey—on his back. Tr. 951, 953, 956–57. Johnson was
smiling. Tr. 951. Johnson took Casey to an abandoned glass factory. 2 In the
glass factory, after dropping down into a pit, Johnson asked Casey if she
wanted to see his penis. Tr. 1290. Even though Casey said no, Johnson pulled
down his shorts and exposed his penis. Tr. 1291, 1377–78. Johnson then asked
Casey to pull down her panties so he could see her vagina. Tr. 1378. When she
2 The glass factory was an abandoned, torn down factory surrounded by
a wooded area with trails that was a popular place for teenagers and children
to play. Tr. 834, 969–70, 972–73. The factory itself consisted of “the foundation,
a few tunnels, a few like ground structures. . . .” Tr. 970.
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sign Johnson was mentally ill, unstable, or seeing things. Tr. 860–63. Johnson
to the ground. Tr. 1379.
Johnson then got on top of Casey, pinned her to the ground with his
chest, and rubbed his penis on her leg to try to get an erection. Tr. 1379. Casey
fought back, scratching Johnson’s chest. Tr. 1379. Johnson got up and
abandoned his attempts to rape Casey, choosing to murder her instead. Tr.
1379. Johnson grabbed a brick and hit Casey in the head at least six times. Tr.
1379, 1432–35. Casey ran around the pit, leaving a trail of blood. Tr. 1136–37,
1156–59, 1195–98, 1228–30. After more blows from Johnson, Casey could not
run so she tried to crawl away. Tr. 1291. Johnson continued to strike Casey
with the brick, eventually fracturing her skull. Tr. 1291. Because Casey would
not stop moving, Johnson lifted a “rather large boulder” over his head and
brought it down on Casey’s head and neck, breaking her skull. Tr. 1291, 1424–
25, 1430). Johnson wiped blood off Casey’s face with her underwear, threw
them in another opening in the wall, and started burying the victim with rocks,
leaves, and other debris in the pit. Tr. 1054–55, 1116–17, 1136, 1140, 1291–92,
1380. Johnson then climbed out of the pit, went back through the tunnel, and
headed down to the nearby Meramec River to wash the victim’s blood and other
trace evidence from his body. Tr. 1291–92, 1380. A construction worker saw
Johnson, shirtless, walking up from the bottom of a boat ramp on the Meramec
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said no, Johnson grabbed Casey’s underwear, tearing it off her and forcing her
970–71.
That morning, officers found Johnson near Casey’s home and asked
Johnson if he would speak with them. Tr. 1014–15. Johnson agreed. Tr. 1015.
Johnson spontaneously stated that he “wouldn’t hurt little kids” because he
“had one of his own.” Tr. 1015. Johnson told officers that he had been
swimming in the river that morning, but he denied going to the glass factory.
Tr. 1016. The officer found this odd because traveling through the glass factory
was the most direct route for Johnson to get to the river. Tr. 1017. Johnson
eventually confessed his crimes to the officers over the course of multiple
interviews on the same day.
Meanwhile, a searcher found Casey’s foot underneath a pile of rocks
inside a five-foot-deep concrete chamber that was only accessible by crawling
through a tunnel. Tr. 1054–57. There was “a piece of concrete that probably
weighed a hundred pounds right up where [Casey’s] head would be.” Tr. 1057.
At trial, Johnson called eight witnesses at trial designed to present a
defense that Johnson could not deliberate because of his alleged mental illness.
Tr. 1446–1793. In rebuttal, the State called Dr. English to testify that
Johnson’s mental illness did not prohibit him from deliberating. Tr. 1797–
1783. The jury convicted Johnson. During the sentencing phase, the State
presented victim impact evidence and evidence of Johnson’s convictions for
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River that same Friday morning with a hateful look on his face. Tr. 962, 966,
second-degree burglary, felony and misdemeanor stealing, property damage,
and “indecent act.” Tr. 1986–2032. Johnson called seventeen witnesses to
present evidence of Johnson’s personal and family history and evidence of
Johnson’s alleged mental health issues. Tr. 2033–2265. The jury found all
three of the submitted statutory aggravating circumstances: that the murder
was outrageously wanton and vile, that the murder was committed while
committing the offense of kidnapping, and that the murder was committed
while committing the offense of attempted forcible rape. The jury, through its
verdict, also found that the mitigating circumstances did not outweigh the
aggravating circumstances and that Johnson was not deserving of mercy.
After his conviction, Johnson brought a direct appeal, which this Court
denied. State v. Johnson, 207 S.W.3d 24 (Mo. 2006). The United States
Supreme Court denied certiorari review. Johnson v. Missouri, 550 U.S. 971
(2007). Johnson then sought post-conviction relief, which the motion court
denied. This Court affirmed the denial of post-conviction relief. Johnson, 388
S.W.3d at 159. Then Johnson petitioned for federal habeas relief, which the
district court denied without issuing a certificate of appealability. Johnson
requested a certificate of appealability from the Eighth Circuit, which was
denied. Johnson sought certiorari review by the United States Supreme Court,
which was denied. Johnson v. Blair, 143 S. Ct. 430 (Nov. 14, 2022).
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seven criminal offenses and two ordinance violations, including convictions for
Dr. English and Dr. Becker were endorsed by the State to be witnesses
at Johnson’s trial. The State presented testimony from Dr. English during
rebuttal. The State never presented testimony from Dr. Becker. Johnson
alleges that the State violated due process when it did not disclose Dr. Becker’s
1999 suspended imposition of sentence for driving while intoxicated and his
1999 ticket for failure to dim headlights. Rule 25.03 did not require disclosure
of either, and the rule of Brady v. Maryland, 373 U.S. 83 (1963) only applies to
information that is exculpatory or that could impeach witnesses who testify at
trial. Johnson also alleges the State violated his due process rights by not
disclosing Dr. English’s misconduct that occurred in 2015 before Johnson’s
2005 trial. Johnson cites no case that requires the State to produce
impeachment material that does not exist at the time of trial. There is none.
3 Johnson’s petition neglects to mention the testimony of Dr. Rabun. Dr.
Rabun, Johnson’s expert witness at trial, testified that a person with mental
illness could take “a young child from a house, walk[] that child over a mile
into a very secluded area where no one can hear that child if that child were to
scream, and carry the child for a major part of that way, [take] that child into
a very secluded and isolated area within a very secluded and isolated area and
attempt[] to rape that child and beat that child with a brick and rock” unrelated
to and unaffected by their mental illness. Tr. 1482–83. When Dr. Rabun
evaluated Johnson months before the murder, Dr. Rabun determined Johnson
had the ability to “deliberate” and to “coolly reflect[] on something he was about
to do.” Tr. 1513–14.
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Summary of the Petition 3
conviction relief court presided over both the post-conviction relief action and
a criminal prosecution of Dr. Becker for events that occurred after Johnson’s
trial. But Johnson cites no cases that require such disclosure, and a reasonable
person with knowledge of all the facts and circumstances would not find an
appearance of impropriety.
Neither of Johnson’s claims have merit. Johnson is not entitled to relief.
I.
Johnson’s claims are procedurally defaulted.
State habeas is not a forum for duplicative and unending challenges to
the finality of a conviction. State ex rel. Strong v. Griffith, 462 S.W.3d 732, 734
(Mo. 2015). A claim is procedurally defaulted when the defendant could have
raised the claims at trial, on direct appeal, or during post-conviction relief, but
failed to do so for reasons internal to the defense. Id. Portions of Johnson’s first
claim are procedurally defaulted, and his entire second claim is procedurally
defaulted because those arguments are based on information that was publicly
available to Johnson on Missouri Case.net and from the Committee on
Professional Registration, including its website.
Johnson contends that he can avoid the procedural default of his claims
because he can pass through the cause and prejudice gateway. Pet. 6. Johnson
is wrong for two reasons. First, Johnson’s claims are not meritorious, as set
forth below, so he cannot meet the prejudice standard.
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Finally, Johnson alleges there was a due process violation when the post-
errors at his trial created possibility of prejudice, but that they ‘worked to his
actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.’” In re: Lincoln v. Cassady, 517 S.W.3d 11, 17 (Mo.
App. 2016). None of the non-disclosed information would have been admissible
at trial: Dr. Becker did not testify, and Dr. English did not commit the
misconduct until after trial, direct appeal, post-conviction review, and postconviction relief appeal were complete. Johnson has not, and cannot, show how
the State’s failure to disclose inadmissible evidence rendered his trial unfair.
Likewise, Johnson has not, and cannot, show how his trial was unfair when
the State did not disclose evidence of things that happened after trial. And
finally, Johnson never pleads that his post-conviction relief hearing would have
resulted in a different outcome if it had been assigned to a different judge. Pet.
40–44. Johnson’s failure to plead that fact means he cannot show prejudice on
claim two.
Because he cannot satisfy cause and prejudice, his claims are
procedurally defaulted and he is not entitled to relief.
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And second, Johnson cannot meet his burden to show “not merely that
Johnson’s due process rights were not violated by any failure to
disclose Dr. Becker’s 1999 suspended imposition of sentence or
his infraction.
In his first claim for relief, Johnson alleges “the prosecution failed to
disclose any conviction or personnel records related to Becker or English.
Indeed, the prosecution did not turn over any impeachment information to
defense counsel related to either of the two expert witnesses.” Pet. 9. Johnson
admits that Dr. Becker did not testify at trial. Pet. 10.
A.
There was no Brady violation.
The due process rights announced by Brady are rights designed to ensure
the defendant receives a fair trial. Id. at 87. Brady, therefore, protects trial
rights. Id.; District Attorney’s Office for Third Jud. Dist. v. Osborne, 557 U.S.
52, 69 (2009). That is why, for instance, disclosure during trial does not violate
Brady. See State v. Salter, 250 S.W.3d 705, 714 (Mo. 2008).
Brady is “violated when the prosecutor suppresses evidence that is
favorable to the defendant and material to either guilt or punishment.” Salter,
250 S.W.3d at 714 (citing Anderson v. State, 196 S.W.3d 28, 36 (Mo. 2006)).
“Evidence is material only when there is a reasonable probability that the
result of the proceeding would have been different if the evidence had been
disclosed to the defense.” Id. at 714. Brady extends to impeachment material.
State v. Moore, 411 S.W.3d 848, 854 (Mo. App. 2013). But where a person does
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II.
250 S.W.3d at 713; see also § 491.050.
When determining whether there has been a Brady violation, the
defendant must establish three things: (1) the State failed to disclose evidence
that is favorable to the accused because it is either exculpatory or impeaching;
(2) the State suppressed the evidence, either intentionally or inadvertently;
and (3) the undisclosed evidence was prejudicial. Moore, 411 S.W.3d at 854.
Johnson’s claim fails because he cannot prove prejudice from the State’s
non-disclosure of Dr. Becker’s 1999 SIS. Under Brady, prejudice means that,
if the suppressed evidence had been disclosed to the defense, then there is a
reasonable probability that the outcome would have been different. State ex
rel. Clemons v. Larkins, 475 S.W.3d 60, 78 (Mo. 2015). Johnson has conceded
that “the only disputed question at trial was whether Mr. Johnson formed the
required mental state to commit first-degree murder . . . .” Pet. 32.
Johnson cannot establish prejudice for at least three reasons. First,
because Dr. Becker did not testify, his 1999 SIS was not admissible evidence,
and therefore it could not have changed the outcome of the proceeding. Second,
Dr. Becker’s infraction was not admissible impeachment evidence even if he
had testified. And third, even if the fact that Dr. Becker received an SIS in
1999 was introduced at trial, there was overwhelming evidence that Johnson
deliberated before murdering his victim.
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not testify, they cannot be impeached with their criminal convictions. Salter,
Dr. Becker’s SIS and infraction were not admissible
evidence because Dr. Becker did not testify.
Not all undisclosed information is Brady material; Brady only applies to
admissible evidence. Furguson v. State, 325 S.W.3d 400, 413 (Mo. App. 2010)
(citing Wood v. Bartholomew, 516 U.S. 1, 6 (1995)) (“When the undisclosed
material in question is inadmissible at trial, a Brady violation cannot occur in
light of the fact that the material in question could have had no direct effect on
the outcome of trial . . . .”).
Dr. Becker’s 1999 SIS for driving while intoxicated is not independently
admissible. Under Missouri law, “findings of guilty may be proved to affect [a
witness’] credibility in a criminal case.” 4 § 491.050. But Dr. Becker did not
testify. Johnson has offered no other rationale under which Dr. Becker’s SIS
could be admissible. That ends the inquiry; Johnson’s claim must fail.
Furguson, 325 S.W.3d at 413; Wood, 516 U.S. at 6.
2.
Dr. Becker’s infraction was not admissible evidence
because an infraction cannot be used for impeachment.
This Court has held that § 491.050 “applies only to criminal convictions,
i.e., convictions of misdemeanors or felonies, not violations of municipal
ordinances.” State v. Nathan, 404 S.W.3d 253, 262 (Mo. 2013). Dr. Becker’s
4 Dr. Becker entered a plea under North Carolina v. Alford, 400 U.S. 25
(1970). Resp. Ex. A, p. 5 (“I believe myself to be innocent, but I am aware of a
very strong preponderance of evidence which could be used against me at trial,
and I freely and voluntarily choose to plead guilty now.”).
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1.
it is an infraction. Pet. Ex. 13; see also § 307.070.2. Under state law at the time
of Johnson’s trial (and now), an infraction is not “a crime and conviction of an
infraction shall not give rise to any disability or legal disadvantage based on
conviction of a crime.” § 556.021 (1979).
Under Nathan, § 491.050 and § 556.021, Dr. Becker’s infraction for
failing to dim headlights is not admissible. Its non-disclosure was, therefore,
not a Brady violation. 5 Furguson, 325 S.W.3d at 413; Wood, 516 U.S. at 6.
3.
There was overwhelming evidence of deliberation.
Even if Dr. Becker’s SIS were admissible—which it was not—then
Johnson would still not be entitled to relief because admission of Dr. Becker’s
SIS does not create a reasonable probability of a different result given the
overwhelming evidence of deliberation. 6 Deliberation, as relevant here, is a
moment of cool reflection for any length of time, no matter how brief. Tisius v.
State, 183 S.W.3d 207, 213 n.1 (Mo. 2006) (citing § 565.002(3)). When reviewing
Because they are not crimes, infractions are not entered into the
MULES database for convictions, and Becker’s 1999 infraction is no exception.
Pet. Ex. 13, p. 3 (“OCN#: Not Required”).
6 In his petition, Johnson relies on what he claims is a post-trial
interview with a juror. Pet. 11 (citing Pet. Ex. 8). The exhibit is a type written
document with no authentication, and is, therefore, not admissible. Even if the
document were authenticated, statements from a juror are not admissible to
impeach a verdict. Williams v. Daus, 114 S.W.3d 351 364 (Mo. App. 2003) (S.D.
en banc). Respondent requests that the Court strike the exhibit.
5
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infraction for failing to dim headlights is not a misdemeanor or felony because
prejudice, this Court merely looks for evidence of deliberation in the record. Id.
at 217. It does not engage in a comparative analysis of the evidence in the
context of first-degree and second-degree murder. Johnson, 599 S.W.3d at 229
(citing Tisius, 183 S.W.3d at 217).
In this case, evidence of deliberation comes from Johnson’s confession,
from the multiple injuries Johnson inflicted on Williamson, from Johnson’s
flight from the crime scene and his refusal to call for medical assistance, and
from Johnson’s efforts to hide the body. State v. Cole, 71 S.W.3d 163, 169 (Mo.
2002) (“deliberation may be proved from the circumstances surrounding the
crime.”).
Johnson at first lied to the police before confessing to the crime. See, e.g.,
Tr. 1248. Initial lies to the police are evidence of deliberation. State v. Strong,
142 S.W.3d 702, 178 (Mo. 2004). Moreover, as this Court found on direct
appeal, Johnson eventually admitted to the police that Johnson “intended to
take Casey for the purpose of having sex with her and then kill her. He
admitted to taking Casey to an isolated location, burying her body, and
attempting to wash evidence from his body.” Johnson, 207 S.W.3d at 43.
Johnson’s confession included statements that he struck Casey with a brick,
dazed her, then struck her with a brick a second time, and then crushed her
with a boulder. Tr. 1291. Johnson’s statements that he dazed Casey and then
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evidence of deliberation to determine whether the defendant can prove
opportunity to break off the attack, and that Johnson continued to attack
Casey after she no longer resisted. This Court has found that those pieces of
evidence are “sufficient evidence” of deliberation “beyond a reasonable doubt.”
State v. Cole, 71 S.W.3d 163, 169 (Mo. 2002).
The medical testimony supports Johnson’s confession. Dr. Graham, the
medical examiner, testified that six-year-old Casey Williamson had “several
injuries.” Tr. 1412–13. On the left side of Casey’s head, there were “little tears
and a large tear, with fragmented bones. Tr. 1416. In some instances, the skull
was “fragmented and actually pushed inward.” Tr. 1425. When Dr. Graham
performed the autopsy, he observed multiple, independent blows to the back
and the front left side of Casey’s skull. Tr. 1429–30. Dr. Graham determined
that there were “at least six separate impacts” to Casey’s head. Tr. 1432. Three
of those injuries caused scalp fractures. Tr. 1435.
There were also injuries on the right side of Casey’s head including
scrapes and tears, some of which were consistent with Casey being struck by a
brick like State’s Exhibit 72. Tr. 1417–18. There were also “separate clusters
of injuries” on the back of Casey’s head. Tr. 1419. Casey also had injuries to
her forearm, which “probably happened after she died.” Tr. 1420. Other postmortem injuries included scrapes on Casey’s thigh. Tr. 1421. There was also a
v-shaped injury on Casey’s back, which was consistent with a broken brick or
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continued the attack before switching weapons shows that he had an
caused by either Casey falling down on top of the rock, or an adult body
pressing down on top of Casey while she was on top of the rock. Tr. 1423. If a
defendant inflicts multiple injuries on the victim, then that is evidence of
deliberation. Johnson, 599 S.W.3d at 229.
After he murdered Casey, Johnson fled the crime scene and did not call
for medical assistance. Instead, he went to the river to wash Casey’s blood off
his legs. Tr. 1291–92. Flight from the crime scene and the refusal to call for
medical assistance are evidence of deliberation. Johnson, 599 S.W.3d at 229;
State v. Carter, 600 S.W.3d 309, 312 (Mo. App. 2020) (refusal to call for medical
assistance is evidence of deliberation).
And finally, Johnson attempted to hide Williamson’s body while it was
still in the pit. Johnson admitted to the police that he covered the body with
dirt, sticks, and leaves to conceal the body. Tr. 1291. The person who discovered
Williamson’s body did so only because he saw a foot sticking out from a “pile of
rocks stacked up, leaves, trash throughout that area.” Tr. 1116–17. Johnson’s
efforts to conceal Williamson’s body is evidence of deliberation. State v. Ellison,
980 S.W.2d 97, 102 (Mo. App. 1998).
In sum, there was overwhelming evidence of deliberation. Johnson lied
to the police initially, then confessed that he took Casey to the pit to rape and
kill her. Johnson inflicted multiple blows with multiple weapons. Johnson
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rock. Tr. 1422. Dr. Graham testified that the V-shaped injury could have been
concealed the body. Johnson fled from the scene, washed blood off his legs, and
refused to call for medical assistance.
Against this strong evidence of deliberation, Johnson offers a weak
argument: that the question of deliberation was resolved by dueling experts.
Pet. 32. As demonstrated above, that is not true. Further, even the opinions of
Johnson’s experts provided evidence that Johnson deliberated. Dr. Rabun,
Johnson’s expert witness at trial, testified that a person with mental illness
could take “a young child from a house, walk[] that child over a mile into a very
secluded area where no one can hear that child if that child were to scream,
and carry the child for a major part of that way, [take] that child into a very
secluded and isolated area within a very secluded and isolated area and
attempt[] to rape that child and beat that child with a brick and rock” unrelated
to and unaffected by their mental illness. Tr. 1482–83. When Dr. Rabun
evaluated Johnson months before the murder, Dr. Rabun determined Johnson
had the ability to “deliberate” and to “coolly reflect[] on something he was about
to do.” Tr. 1513–14.
The State’s case was based on facts—not competing experts. In closing
argument, the State never even mentioned its rebuttal expert, Dr. English. Tr.
1902–1922. Instead, the State offered this:
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continued his attack even after he dazed Casey and had time to stop. Johnson
Tr. 1921–22. Johnson’s efforts to impeach Dr. English with Dr. Becker’s 1999
SIS for driving while intoxicated would not have created a reasonable
probability that the outcome would have been different. Therefore, Johnson
cannot prove prejudice, and his Brady claim fails.
B.
There was no Rule 25.03 violation.
As an alternative theory, Johnson argues that the State violated the
discovery rules by failing to disclose Dr. Becker’s 1999 SIS and his infraction
for failing to dim headlights. Pet. 30–32. But Missouri law is clear that Rule
25.03 does not require the State to produce an SIS to a defendant because an
SIS is not a conviction under Missouri law. See, e.g., Moore, 411 S.W.3d at 853.
Likewise, Rule 25.03 does not require the State to disclose an infraction
because the rule, by its terms applies only to “criminal convictions, i.e.,
convictions of misdemeanors or felonies. . . .” See Nathan, 404 S.W.3d at 262.
True, the Nathan Court was considering municipal ordinance violations. Id.
But under state law at the time of Johnson’s trial, an infraction did “not
constitute a crime and conviction of an infraction shall not give rise to any
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I want you to keep in mind all of that, where he went from there,
everything that he did, the adjustments that he made in the plan,
all of that, every bit of it is deliberation, every blow that he struck
against her in that pet, it’s deliberation, everything he did is
deliberation. You don’t have to – even Dr. Dean, Dr. Delaney Dean
told you, it doesn’t mean you sit down and calmly reflect upon
things. We’re talking about the process of cool reflection, not
necessarily the emotional status or state of the individual involved.
(1979). So neither municipal ordinance violations nor infractions are
“convictions of misdemeanors or felonies.” Nathan, 404 S.W.3d at 262.
There was, therefore, no requirement under Rule 25.03 for the State to
disclose either Dr. Becker’s SIS or his ticket for failure to dim his headlights.
III.
Events that occur after trial cannot be the basis for a Brady
claim.
A.
Brady protects the right to a fair trial.
Johnson implausibly suggests that the Due Process Clause imposes on
the State an obligation to disclose impeachment material after his conviction.
But the United States Supreme Court rejected that argument in Osborne, 557
U.S. at 68. In that case, the Court held Brady confers no right or obligation
after trial, writing, “A criminal defendant proved guilty after a fair trial does
not have the same liberty interests as a free man. At trial, the defendant is
presumed innocent and may demand that the government prove its case
beyond reasonable doubt.” Id. at 68–69. “But ‘[o]nce a defendant has been
afforded a fair trial and convicted of the offense for which he was charged, the
presumption of innocence disappears.’” Id. at 69 (quoting Herrera v. Collins,
506 U.S. 390, 399 (1993)). “Given a valid conviction, the criminal defendant
has been constitutionally deprived of his liberty.” Id. at 69 (quoting Connecticut
Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)). The Court noted that
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disability or legal disadvantage based on conviction of a crime.” § 556.021
convicted. Brady announced a trial right and a trial obligation concerned with
the fairness of the trial and nothing more. See Kyles v. Whitley, 514 U.S. 419,
434 (1995).
B.
This Court has held that the State does not violate Brady
when it does not disclose events that happen after trial.
Johnson implies that Brady requires disclosure of events that occur after
conviction. Pet. 23. But this Court has been clear: “Brady, however, only
applies in situations where the defense discovers information after trial that
had been known to the prosecution at trial. Salter, 250 S.W.3d at 714 (citing
State v. Myers, 997 S.W.2d 26, 33 (Mo. App. 1999) (emphasis added)). Johnson
does not acknowledge Salter, and instead cites State ex rel. Engel v. Dormire,
304 S.W.3d 120, 126 (Mo. 2010). Pet. 23. But Engel does not help Johnson
because Engel also holds that the non-disclosed facts must have existed at trial
for an obligation to attach under Brady. Engel, 304 S.W.3d at 127. In Engel,
the Court found there was a deal between the State’s investigators and a
witness before and during trial. Id. The deal was not disclosed to the defense.
Id. After trial, documents concerning the deal were created. Id. The Court
found that Brady required disclosing information about the deal because the
deal existed before trial, even though the documents memorializing the deal
were created after trial. Id.
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“Brady is the wrong framework” for a court to apply after a defendant has been
Because Dr. English’s misconduct and Dr. Becker’s post1999 driving while intoxicated offenses occurred after trial,
there was no obligation to disclose them.
Engel, by its own terms, does not support Johnson’s claim. In this case,
Johnson’s trial took place in 2005. Dr. English’s 2015 misconduct was not
discovered until a 2017 investigation. Pet. Ex. 19, p. 5. That is years after
Johnson’s conviction, unlike the deal in Engel. Engel, 304 S.W.3d at 127. The
same is true for Dr. Becker’s post-1999 driving while intoxicated offenses. 7 Pet.
Ex. 14; 15; 16. As this Court has held, “Brady, however, only applies in
situations where the defense discovers information after trial that had been
known to the prosecution at trial. Salter, 250 S.W.3d at 714 (citing Myers, 997
S.W.2d at 33 (emphasis added)). Johnson cannot allege that the State knew of
Dr. English’s future misconduct or Dr. Becker’s future driving while
intoxicated years before they took place. Johnson’s complaints about Dr.
English’s misconduct and Dr. Becker’s post-trial offenses fail to state a basis
for relief under Brady.
IV.
There is no due process right to knowledge that the postconviction relief court is presiding over a criminal prosecution
of a non-testifying witness.
In his final claim for relief, Johnson asserts that his due process rights
were violated when the post-conviction relief court presided over his post-
7 As discussed supra, Brady does not apply to Dr. English’s convictions
because he did not testify at trial.
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C.
Becker, who did not testify at Johnson’s trial. Pet. 40–44. Johnson identifies
no case law to support his broad claim. Instead, he relies on a concurring
opinion in Case v. Nebraska, 381 U.S. 336 (1965); the Court’s opinion in Aetna
Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986); and this Court’s opinions in Thomas
v. State, 808 S.W.2d 364 (Mo. 1991); Anderson v. State, 402 S.W.3d 86 (Mo.
2013), and State v. Smulls, 935 S.W.2d 9 (Mo. 1996). Pet. 40–44. None of these
opinions help Johnson.
In Case v. Nebraska, Justice Brennan’s concurrence—joined by no other
justices—explained his view that states should provide “fair and just
procedures” so that state court prisoners could minimize their use of federal
habeas corpus review. Id. at 344.
In Aetna Life Ins. Co., this Court merely reaffirmed that the constitution
prohibited a judge from presiding over a case in which the judge had “a direct,
personal, substantial, pecuniary interest in reaching a conclusion against” a
party. Aetna Life Ins. Co., 475 U.S. at 822–825. Johnson has never alleged that
the post-conviction relief court had a “direct, personal, substantial, pecuniary
interest in reaching a conclusion against” him.
In Anderson v. State, 402 S.W.3d 86 (Mo. 2013), this Court held that a
judge must recuse when “a reasonable person would have factual grounds to
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conviction relief proceeding while also presiding over the prosecution of Dr.
at 91 (quoting Smulls, 935 S.W.2d at 17).
The only “factual grounds” that Johnson can identify is that the judge
presided over Johnson’s post-conviction relief hearing and that Dr. Becker’s
pending driving while intoxicated was concurrently pending before the judge.
Pet. 42. Johnson then argues for a per se rule, where disqualification is
required every time the same judge presides over a pending criminal matter
involving a person who did not testify while presiding over a pending postconviction relief case. That per se rule is not only unworkable, it says nothing
about why a reasonable person with knowledge of all the facts and
circumstances would have a reason to doubt the judge’s fairness. In fact, it
seems the opposite would be true. Dr. Becker was on the State’s side of the
case, not Johnson’s, so pending criminal charges against Dr. Becker could not
hurt Johnson’s arguments.
In addition, Johnson’s argument that the post-conviction relief court
relied heavily on Dr. Becker’s “credibility and conclusions” is misplaced. The
post-conviction relief court consistently referred to the information provided by
Drs. Dean, English, Becker, and Rabun. See, e.g., Pet. Ex. 12 at 4. And this
Court did the same on post-conviction relief appeal: it referred to all four
doctors collectively. Johnson v. State, 388 S.W.3d 159, 164 (Mo. 2012) (“The
motion court further summarized the extensive trial testimony and reports
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find an appearance of impropriety and doubt the impartiality of the court.” Id.
testified that he believed that Johnson could deliberate seven months before
the crime, when Dr. Rabun examined Johnson. Pet. Ex. 12 at 8. When the postconviction relief court referred to the work performed by Dr. Becker, it always
referred to Dr. English’s involvement as well. See, e.g., Pet. Ex. 12 at 13, 19–
20.
A reasonable person with knowledge of all the facts and circumstances
would not find any appearance of impropriety. Johnson never articulates what
gives rise to the appearance of impropriety. Pet. 40–44. Nor can he. What
Johnson is complaining about is that one of the non-testifying experts who was
adverse to his position was being prosecuted in front of the same judge that
presided over the post-conviction relief court. Johnson’s claim amounts to an
argument that a criminal defendant cannot receive a fair hearing when the
judge presiding over the hearing is also presiding over a criminal prosecution
of an expert associated with the State. That argument does not merit relief.
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filed by Drs. Dean, English, Becker, and Rabun.”). And in fact, Dr. Rabun
The Court should deny the writ without further judicial proceedings, and
the Court should grant the motion to set an execution date filed in State v.
Johnson, SC86689. 8
Respectfully submitted,
ANDREW BAILEY
Attorney General
/s/ Gregory M. Goodwin
Gregory M. Goodwin
Assistant Attorney General
Missouri Bar #65929
P.O. Box 899
Jefferson City, MO 65102
(573) 751-7017
Attorneys for Respondent
Certificate of Service
I certify that I filed this document using the Missouri Case Net electronic
filing system on April 10, 2023. All other parties will receive electronic service.
/s/ Gregory M. Goodwin
Assistant Attorney General
8 In his petition, Johnson asserts that he is “filing a request for discovery
before this Court . . . .” Pet. 29 n. 9. To date, Johnson has filed no such request.
Any such request should be denied.
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Conclusion
State of Missouri ex rel.
JOHNNY A. JOHNSON
Petitioner,
v.
DAVID VANDERGRIFF, Warden,
Potosi Correctional Center,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
No. SC100023
THIS IS A CAPITAL CASE
REPLY SUGGESTIONS IN SUPPORT OF
PETITION FOR HABEAS CORPUS
There can be no dispute that a terrible tragedy occurred when Casey Williamson
lost her life. The State’s recounting of those facts does not detract from the evidence that
this tragedy occurred while Mr. Johnson was in the throes of a struggle with mental
illness. Rather, it highlights the need for an accurate consideration the role mental illness
played.
All parties throughout all the proceedings agree that the mental health evidence is
the critical piece of the puzzle related to the why or how this could have happened. The
parties also agree that impeachment evidence must be disclosed. The dispute is why the
prosecution and the Attorney General never turned it over.
Petitioner Johnny A. Johnson’s state habeas action raises two claims based on
newly discovered impeachment evidence regarding the State’s expert witnesses, Stephen
Becker and Byron English, that the State failed to disclose to Mr. Johnson at any point
during Mr. Johnson’s capital case. The first is a Brady claim. The second is the
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IN THE SUPREME COURT OF MISSOURI
the impeaching information due to his role in Becker’s persistent DWI case and the
judge’s simultaneous reliance on Becker in Mr. Johnson’s post-conviction proceedings
despite knowing that the impeaching evidence had not been disclosed to Mr. Johnson.
In his Suggestions in Opposition to Mr. Johnson’s habeas, the Attorney General
ignores and distorts Mr. Johnson’s arguments in an effort to distract from the State’s—
and the Attorney General’s—failure to comply with its duties under Brady. Contrary to
the Attorney General’s contentions, however, the State was required to disclose Becker’s
1999 DWI pursuant to the trial court’s order, having endorsed Becker as an expert
witness before and during trial, relying on his expertise, evaluations, and reports to fuel
English’s testimony. The local prosecutor’s office attempted to skirt, and now the
Attorney General is attempting to minimize, its Brady obligations by claiming Becker
was not a witness because of a last-minute decision not to put Becker on the stand. But
the State may not evade its constitutional duties by such manipulations of the trial
proceedings. The Attorney General also attempts to inflate the materiality standard of
Brady and diminish the importance of the sole question at trial, Mr. Johnson’s ability to
coolly deliberate. However, the record belies the Attorney General’s attempt to rewrite
the narrative and demonstrates the centrality of the State’s expert opinions to the case.
Rather than acknowledge the State’s—and its own—ongoing obligation under
Brady, the Attorney General mischaracterizes Mr. Johnson’s claim as one that relies on
the State to see into the future and disclose impeachment behavior that occurred after
trial. But Mr. Johnson makes no such argument. Rather, he argues, consistent with
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appearance of judicial impropriety created by the post-conviction judge’s awareness of
the impeachment evidence Mr. Johnson has now begun to uncover was in the State’s
possession before and during trial, direct appeal, post-conviction, and federal habeas
proceedings, the State had numerous opportunities to disclose it to Mr. Johnson but never
did.
Finally, the Attorney General attempts to distract from the fact that the local
prosecutor’s office, the post-conviction court, and the Attorney General’s Office itself
suppressed impeachment evidence while at the same time relying on the opinions,
testimony, and reports of the two disgraced experts to maintain Mr. Johnson’s conviction
and death sentence before this Court and the federal habeas court. In addition to the
State’s dereliction of its duties under Brady and the Constitution, the post-conviction
judge had firsthand knowledge of Becker’s criminal history but still relied on his
conclusions and credibility in denying Mr. Johnson post-conviction relief, without
disclosing or requiring the State to disclose the suppressed information. This created the
appearance of judicial impropriety and cast doubt on Judge Seigel’s impartiality.
Mr. Johnson now timely files his suggestions in reply of his habeas petition.
I.
The State’s suppression of Becker’s 1999 DWI violated Mr. Johnson’s right
to due process under Brady v. Maryland
A.
Becker’s 1999 DWI was impeachment information the State was required
to disclose under Brady
In contending that the State’s failure to disclose Becker’s 1999 DWI did not
violate Brady because Becker did not testify, the Attorney General ignores Mr. Johnson’s
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relevant law, that the State’s duty to disclose extends throughout the litigation. Because
conducted the evaluations of Mr. Johnson and wrote the reports, and English relied on
Becker’s evaluations and reports in his testimony. Thus, evidence impeaching Becker’s
credibility also could have been used to impeach English’s credibility. Furthermore, the
State endorsed both English and Becker as witnesses—and it therefore had a duty to
disclose impeachment information, including Becker’s DWI, regarding both endorsed
witnesses. The fact that the State decided to call only English to rebut the defense expert,
Dr. Dean, does not mean that it no longer had a duty to disclose impeaching information.
By calling only English—who relied on Becker—the State thereby bolstered its rebuttal
case with the imprimatur of two expert witnesses, and because the State did not disclose
the impeaching information, neither expert was subject to impeachment with the nondisclosed evidence. See Bullcoming v. New Mexico, 564 U.S. 647 (2011).
Contrary to the Attorney General’s arguments, the State may not evade its duties
under Brady by having an alternate witness testify about evaluations primarily conducted
by someone else. English’s testimony was based on the evaluations and reports Becker
conducted and wrote, so Becker’s credibility was relevant and material despite the State’s
last-minute decision not to call him to testify. The State’s Brady violation is not
somehow negated by its manipulation of the trial proceedings to avoid scrutiny of
Becker, the psychologist who was primarily responsible for developing the information
about which English testified. See, e.g., Ferguson v. Dormire, 413 S.W.3d 40, 69 (Mo.
Ct. App. 2013) (the State cannot avoid its duty of disclosure of evidence favorable to the
defense and pertaining to an endorsed witness).
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key point: although English testified at trial, Becker was the psychologist who actually
Response that there can be no prejudice because four different experts were relied upon,
including Becker. Sugg. in Opp. at 23. Nothing could more demonstrate the fallacious
and circular nature of his argument: Becker did not testify so there was no prejudice, and
there can be no prejudice because the trial court and other courts relied upon Becker. The
fact that the trial court (and jury) and other courts relied on Becker—in combination with
the fact that the central defense was disputed by Becker—shows that the suppression of
the impeaching information was material.
The Attorney General also attempts to distract from the suppression of Becker’s
1999 DWI by arguing that the infraction listed as failing to dim headlights could not have
been used as impeachment. Sugg. in Opp. at 12-13.1 But Mr. Johnson does not argue
that he should have been able to use an infraction for impeachment purposes. It is the
1999 DWI—a misdemeanor offense—which was valid impeachment evidence that was
required to be disclosed under Brady. State v. Moore, 411 S.W.3d 848, 854 (Mo. App.
2013); see also State v. Lynch, 679 S.W.2d 858, 861 (Mo. banc 1984) (“Thus, a
suspended imposition of sentence now carries with it the stain of certain undesirable
attributes of a conviction, such as use for . . . impeachment . . . .”) (abrogated on other
grounds); State v. Urban, 798 S.W.2d 507, 514 (Mo. App. W.D. 1990) (impeachment of
a witness with an SIS is permissible) (overruled on other grounds); R.S.Mo. § 491.050
Mr. Johnson refers to the Attorney General’s Suggestions in Opposition to his Petition
for Habeas Corpus as “Sugg. in Opp. at __” and to the Attorney General’s Response to
his Motion for Leave to file a Reply as “Resp. to Mtn. at __”.
1
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The Attorney General argues against himself when he later contends in his
criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and
findings of guilty may be proved to affect his credibility in a criminal case.”).
Impeachment evidence includes criminal convictions of the State’s witnesses as well as
any prior pleas of guilty, pleas of nolo contendere, and findings of guilty—including an
SIS. Impeachment inquiry regarding an SIS is permissible even though the witness has
not been convicted of a crime. Lynch, 679 S.W.2d at 861.
In his response to Mr. Johnson’s motion for leave to file a reply, the Attorney
General cites Moore, 411 S.W.3d at 853, to suggest that the State did not have a
responsibility to disclose an SIS to the defense. Resp. to Mtn. at 2. But the Moore court
held that the State did have a duty to disclose the witness’s SIS to the defense under
Brady, even though it was not required to do so under Missouri’s discovery rules. 411
S.W.3d at 854 (“the State was . . . constitutionally obligated, pursuant to Brady, to search,
find and disclose” the witness’s SIS).2
The Attorney General’s reliance on Ferguson v. State, 325 S.W.3d 400, 413 (Mo.
App. 2010), is also misplaced. In that case, the court held the “newly discovered
Mr. Johnson’s access to criminal information, such as the records of Becker’s 1999
DWI, is far more limited than that of the Attorney General’s Office. Resp. Mot. for
Leave to File Under Seal and Mot. for Protective Order; Resp. Ex. A. Although Mr.
Johnson requested Becker’s 1999 records from Franklin County, he received only a
printout of the information available on Case.net, which does not include the DWI or the
fact that Becker received an SIS. Contrast Pet. Ex. 13 [Franklin County Records] with
Resp. Ex. A. Even at this stage, Mr. Johnson cannot fully understand and accurately
plead the facts regarding his Brady claim without discovery, as he contends in the Motion
for Discovery filed concurrently with this reply.
2
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(“any prior criminal convictions may be proved to affect his credibility in a civil or
therefore any potential investigative leads that could have resulted from the undisclosed
information would have been futile. Contrary to the Attorney General’s suggestion,
however, evidence need not be independently admissible in order to be valid fodder for
impeachment and required to be disclosed under Brady. See Wood v. Bartholomew, 516
U.S. 1, 5 (1995) (explaining the application of Brady depends on whether there exists a
“reasonable probability” the evidence would affect the outcome of trial); see also Dennis
v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 279 (3d Cir. 2016) (clarifying that Wood did
not create a bright line rule attaching admissibility requirement to Brady evidence).
The Attorney General does not and cannot contest that English could be
questioned regarding his reliance on Becker. Thus, if the impeachment information had
been disclosed, trial counsel could have asked pointed questions related to his awareness
of a drinking problem and possible DWIs. This could have led to questioning regarding
whether it was a reasonable standard of practice to rely on someone with the red flags of
a drinking problem.
Since the filing of the habeas petition, Mr. Johnson has secured Becker’s driving
license record. It reflects that Becker lost his license during the 1999 offense when he
refused a breathalyzer. Pet. Ex. 24 [Becker Dep’t of Revenue Record].3 Trial counsel
could have asked questions regarding the importance of developing a full factual record
3
Again, this demonstrates the need for compulsory process. Mr. Johnson has
successfully gathered evidence – but will only be able to obtain the full extent of the
evidence with compulsory process.
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evidence” on which the Brady claim was based was unreliable and incredible, and
crossed regarding his awareness of Becker’s refusal to allow the collection of evidence
for his own self-interest. To echo the prosecutor’s closing to this jury, this would have
shown how Becker “cooked” the evidence in his favor in his case.
The Attorney General errs in his cramped reading of Brady. First, English could
have been asked about Becker because English was relying on Becker’s work. Trial
counsel could have tried to demonstrate a “garbage in-, garbage-out” argument via the
reliance on a compromised, non-testifying expert. Second, if disclosed, trial counsel
could have investigated and uncovered Becker’s obstruction regarding the collection of
evidence for his own self-interest.
B.
The suppression of Becker’s 1999 DWI prejudiced Mr. Johnson
The Attorney General attempts to discount the importance of the State’s rebuttal
case. The core question at trial was Mr. Johnson’s mental state at the time of the offense,
and the State’s experts rebutted the central defense: that Mr. Johnson did not deliberate as
required for first-degree murder. In sum, the Attorney General arguments relate to a
sufficiency of the evidence test.
The materiality inquiry under Brady, however, “is not just a matter of determining
whether, after discounting the inculpatory evidence in light of the undisclosed evidence,
the remaining evidence is sufficient to support the jury’s conclusions.” Strickler v.
Greene, 527 U.S. 263, 290 (1999). Rather, the inquiry before this Court is whether the
suppressed evidence “undermine[s] confidence in the verdict.” Id. As the Supreme
Court put it in Kyles v. Whitley, “[t]he question is not whether the defendant would more
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to determine a legal question. When English would have agreed, he could then have been
absence he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.” 514 U.S. 419, 434 (1995); see also State ex rel. Koster v. Green, 388
S.W.3d 603, 608 (Mo. banc 2012) (citing Kyles). The Attorney General attempts to
heighten this inquiry by discussing “overwhelming evidence” of deliberation, but the
only psychological evidence presented at trial regarding Mr. Johnson’s mental state at the
time of the offense was the testimony and reports of the expert witnesses who evaluated
him—Becker and English for the State, and Dr. Dean for the defense.4 This Court should
resist the Attorney General’s invitation to elevate the Brady materiality inquiry into
The Attorney General claims that Dr. Rabun’s trial testimony supported the conclusions
of Becker and English, but Dr. Rabun did not evaluate Mr. Johnson after he committed
the instant offense, and he offered no opinion about whether Mr. Johnson coolly
deliberated, or had the capacity to do so, in committing the instant crime. Rather, Dr.
Rabun’s evaluation, which related to an earlier probation violation, took place in
December 2001, more than seven months before Mr. Johnson committed the instant
offense, and the purpose of that evaluation was to determine “the presence of a mental
disease or defect; capacity to proceed at trial; factors which suggest an increased risk for
harm to self or others; and, capacity to meet the conditions of probation.” Pet. Ex. 21
[Rabun Report]. Dr. Rabun did not render an opinion about Mr. Johnson’s responsibility
for his actions with regard to the probation violation. Tr. 1471. Nor did he render such
an opinion with regard to Mr. Johnson’s responsibility in the instant case. Tr. 1513. It
was only upon the prosecutor’s questioning that Dr. Rabun agreed that, hypothetically,
“There is nothing about mental disorder per se that categorially means they cannot coolly
reflect or deliberate.” Tr. 1494. While Dr. Rabun believed that, at the time he saw Mr.
Johnson in 2001, he was capable of deliberation, Dr. Rabun stated that he could not make
such an assessment with regard to the instant case “within a reasonable degree of medical
certainty because it's seven months later.” Tr. 1515. The Attorney General’s suggestion
that Dr. Rabun’s testimony “provided evidence that Johnson deliberated” or was in
accordance with the conclusions of Becker and English is therefore inaccurate and
misleading. See Sugg. in Opp. at 17. This Court should strike from the pleading this
argument.
4
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likely than not have received a different verdict with the evidence, but whether in its
clear guidance in Kyles and Strickler.5
While this Court has held that evidence such as the number of wounds inflicted or
the weapon used can give rise to an inference that a crime was committed with
deliberation depending upon the circumstances, the Court has also held that such facts
“are not conclusive on the question of deliberation.” State v. Cole, 71 S.W.3d 163, 169
(Mo. banc 2002). Nothing in the litany of evidence the Attorney General highlights
precludes a finding that, under the circumstances of Mr. Johnson’s case, due to his active
auditory hallucinations, he did not coolly deliberate when he committed the offense. In
this case, evidence regarding Mr. Johnson’s mental state at the time of the crime was
essential for determining whether he coolly deliberated or whether, as the defense
contended, he lacked the capacity to do so because of his active auditory hallucinations.
Contrary to the Attorney General’s suggestions, that evidence did indeed stem from the
conclusions of the psychologists on both sides who evaluated him.
The importance of the expert evaluations was clear from the prosecutor’s
questions about mental health evidence during voir dire; from the defense opening
statement and closing argument; from the prosecutor’s closing argument; and from the
statements of jurors after trial.6 Indeed, while the prosecutor did not mention English’s
5
While Mr. Johnson opposes the implementation of a sufficiency standard, if this Court
were to engage in such an evaluation, it should only occur after a full and meaningful
hearing before a special master.
This Court should deny the Attorney General’s request to strike the transcript of the
interview with the juror, which was prepared by the documentarian who conducted the
6
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something akin to a sufficiency of the evidence analysis, contrary to the Supreme Court’s
and called into question the credibility of the defense expert—implicitly but clearly
contrasting her alleged anti-death penalty bias and “cooking” of her report with the
credibility of the State’s experts, Becker and English. Tr. 1906-07, 1910-12, 1916, 192122, 1946, 1947-48, 1955-56.
Moreover, the fact that the State called English to testify in rebuttal at all
demonstrates the importance of the psychological evaluations and conclusions to the
State’s case. He was the only witness the State called in rebuttal, and the question
English was called to address was whether Mr. Johnson’s mental illness and auditory
hallucinations prevented him from being able to coolly deliberate at the time of the
offense. The trial court even introduced English to the jury by explaining, “Ladies and
gentlemen, the next witness to testify is Dr. Byron English. He will testify concerning
the mental condition of the defendant at the time of the alleged offense.” Tr. 1797.
English’s rebuttal testimony was the last piece of evidence heard by the jury on the
subject of Mr. Johnson’s mental state. The State possessed the advantage of recency, and
the State’s failure to disclose insulated this testimony from an available avenue of
interview, an edited version of which is publicly available in the documentary film “The
Worst Crime.” Should the Court wish, Mr. Johnson can provide the Court with the full
video-taped interview with the juror. To the extent that there is a disputed issue of fact
with respect the content of this interview, Mr. Johnson requests the opportunity for
evidentiary development before a special master.
Furthermore, Mr. Johnson does not rely on the juror’s statements to impeach the verdict,
as the Attorney General suggests, but to demonstrate the importance of the expert
opinions to the case and the deliberations, which goes to the materiality of the suppressed
impeachment information.
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name in his closing argument, he extensively discussed the question of cool deliberation
State’s position lacking and credited Mr. Johnson’s mental health evidence. Notably, the
Attorney General does not challenge the statements by Mr. Johnson’s trial and postconviction counsel regarding the importance the suppressed impeachment evidence
would have had at both the trial and post-conviction stages, or the way counsel at each
stage would have used such evidence—and the fact the State had suppressed it—in Mr.
Johnson’s case. Those undisputed accounts by Mr. Johnson’s counsel regarding the
prejudicial effect of the State’s suppression must be credited by this Court. At a
minimum, the statements by Mr. Johnson’s counsel, along with the other evidence of
materiality, establish a prima facie case that the State’s violation of its duties under Brady
prejudiced him. A special master should be appointed to examine all the evidence
regarding prejudice.
Under all the circumstances, the suppression of Becker’s 1999 DWI—critical
impeachment evidence regarding the psychologist who evaluated Mr. Johnson and wrote
the reports upon which English’s testimony was based—undermines confidence in the
jury’s verdict on the primary question before it, Mr. Johnson’s mental state at the time of
the offense.
C.
The State’s continual reliance on its disgraced experts without disclosing its
misconduct to Mr. Johnson continued to violate Mr. Johnson’s right to due
process
In arguing that the State had no duty to disclose future misconduct that had not yet
happened at the time of trial, the Attorney General ignores Mr. Johnson’s central point—
that the State, represented first by the St. Louis County Prosecutor’s Office and later by
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impeachment. If the impeachment had occurred, a reasonable juror would have found the
Court to rely on—witnesses it knew were discredited and whose opinions had gone
unchallenged due to the State’s failure to disclose impeaching evidence. In fact, it was
the Attorney General’s Office who represented the Committee in taking away Becker’s
license to practice psychology, a process that began in May 2009, even earlier than Mr.
Johnson was previously aware and before his Rule 29.15 hearing. Pet. Ex. 22 [Becker
Licensing Records], p. 1.
On May 21, 2009, the Committee referred Becker’s case to the Central
Investigations Unit after learning of warrants against him for DWI offenses, which were
reported by Becker’s former boss. Pet. Ex. 22, p. 1. On March 16, 2012, the Committee,
represented by the Attorney General’s Office, filed a complaint with the Administrative
Hearing Commission seeking disciplinary action against Becker for his numerous DWI
convictions. Pet. Ex. 22, pp. 98-102. On July 20, 2012, the Committee, by Assistant
Attorney General Ronald Smith, moved for summary judgment; after Becker responded,
contending that he had voluntarily relinquished his license years earlier, the Assistant
Attorney General filed a reply disputing Becker’s claims and casting doubt on his
credibility. Pet. Ex. 22, pp. 104-113, 116-119. On December 4, 2012, the Administrative
Hearing Commission granted the Committee’s request for summary judgment and
stripped Becker of his license. Pet. Ex. 22, pp. 129-135.
Meanwhile, Mr. Johnson filed his brief before this Court in the appeal from the
Rule 29.15 denial on March 15, 2012—the day before the Attorney General’s Office filed
its complaint against Becker. See Missouri Supreme Court Docket SC91787. On July
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the Attorney General’s Office, improperly and continually relied on—and urged this
General’s Office filed its response before this Court in Mr. Johnson’s case. See Missouri
Supreme Court Docket SC91787. Oral argument was held before this Court on
September 19, 2012.7
Thus, at the same time it was seeking to strip Becker of his license and were
questioning his credibility in one forum, the State—represented by the same Attorney
General’s Office that was seeking affirmance of Mr. Johnson’s conviction and death
sentence—was relying on his and English’s credibility in support of its arguments in Mr.
Johnson’s case before this very Court.8 However, the State knew that due to its
suppression of impeaching evidence, Mr. Johnson had not had a proper opportunity to
challenge the witnesses’ credibility.
Notably, even this Court’s description of Mr. Johnson’s trial reflects the importance of
the expert witnesses to the key issue of Mr. Johnson’s mental state: “At trial, Johnson
denied that he had deliberated killing the girl. Trial counsel argued Johnson’s diminished
capacity due to mental illness – specifically schizoaffective disorder – caused command
hallucinations. The state’s expert witness testified that Johnson was capable of
deliberation and that any hallucinations may have been caused instead by
methamphetamine.” Case Summary for September 19, 2012, Supreme Court of
Missouri,
https://www.courts.mo.gov/SUP/index.nsf/fe8feff4659e0b7b8625699f0079eddf/c4763db
796a45e3186257a3a006ac9ee?OpenDocument.
7
The Missouri Attorney General’s statement that they do not represent the State of
Missouri is nonsensical. The warden is the respondent in this case because it is a habeas
case, and he happens to be the individual holding Mr. Johnson in custody. But Mr.
Johnson’s contentions in this petition for habeas corpus are about the fairness of his trial
and his conviction, which is under the authority of the State of Missouri. The Missouri
Attorney General represents the interests of the State of Missouri, even though the
respondent in a habeas case is the warden holding Mr. Johnson in custody—and their
arguments to the contrary are specious and irrelevant.
8
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16, 2012, four days before moving for summary judgment against Becker, the Attorney
and English’s testimony even after English was investigated by the Committee and
ultimately relinquished his license due to his own misconduct. The records from the
Committee of Psychologists reveal that the Committee did not find English credible when
he appeared before the Committee in December 2017 and denied having committed
misconduct, as the Committee determined there was cause to discipline his license after
that meeting. Pet. Ex. 23 [English Licensing Records], pp. 15-41, 79-80.9 Moreover, the
reason English’s supervisor at Southeast Missouri Mental Health Center, Dr. Moll, filed a
formal complaint against him in the first place was because he was dishonest with the
Committee when instructed to self-report his misconduct. Pet. Ex. 23, p. 11. While the
misconduct on which the professional discipline against English was premised occurred
after trial, the Attorney General’s continued reliance on English’s testimony in spite of
the credibility issues it knew or should have known he had, was disingenuous at best and
violated due process.
The Attorney General here urges, in effect, that the State may argue one thing
before this Court but not disclose to this Court the problems with the evidence on which
they are relying. But the Supreme Court has resoundingly rejected this concept. Banks v.
Dretke, 540 U.S. 668, 696 (2004) (“A rule thus declaring, ‘prosecutor may hide,
9
It also bears noting that in correspondence with the Committee, English claimed he had
been a psychologist in Illinois since 1970. Pet. Ex. 23, p. 48. However, when an
investigator working with Mr. Johnson’s counsel contacted the Illinois licensing board,
they had no record of English ever being licensed in that state.
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Likewise, the Attorney General’s Office continued to rely on Becker’s evaluations
defendants due process.”). This Court should be able to “presume that public officials
have properly discharged their official duties.” Bracy v. Gramley, 520 U.S. 899, 909
(1997) (quoting United States v. Chem. Found., Inc., 272 U.S.1, 14-25 (1926)). That did
not occur at the trial or post-conviction stages of this case, and it did not happen in the
proceedings before this Court.
Importantly, the records from the Committee of Psychologists indicate that
English’s post-trial misconduct was not isolated and that he had engaged in similar sexual
harassment against at least one other co-worker 20 years earlier—before Mr. Johnson’s
trial. Pet. Ex. 23, p. 54. These allegations of English’s pretrial misconduct further reflect
the need for discovery and a hearing on Mr. Johnson’s petition for habeas corpus. The
State has access to records and materials Mr. Johnson does not have the ability to obtain,
including personnel records of former State employees. In order for this Court to fully
assess whether Mr. Johnson’s due process rights were violated by the State’s suppression
of impeachment evidence that existed before trial—including pretrial misconduct by
English—Mr. Johnson should be given the opportunity to obtain such records and present
his claims to a special master at a hearing.
In spite of having an opportunity, the Attorney General fails to even defend his
actions and arguments before this Court during the post-conviction appeal. This
constitutes a noticeable omission and should be construed as an admission that a due
process error occurred before this Court.
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defendant must seek,’ is not tenable in a system constitutionally bound to accord
Mr. Johnson has demonstrated cause and prejudice
As explained in his petition for habeas corpus and above, Mr. Johnson has met the
cause and prejudice requirements to raise his Brady claim before this Court: due to the
State’s suppression, Mr. Johnson was previously unaware of the impeachment
information regarding Becker and English, and Mr. Johnson was prejudiced by this
suppression because the credibility of the State’s experts was central to the key issue at
trial, Mr. Johnson’s mental state at the time of the offense.
The Attorney General now claims that Mr. Johnson’s arguments are based on
information that was available on Case.net and the Committee on Professional
Registration’s website, and therefore could have been raised earlier. See Sugg. in Opp. at
8. However, the correct legal standard the United States Supreme Court and this Court
employ imposes a duty to disclose impeachment information on the state, and defense
counsel does not even have to request Brady evidence to trigger the state’s duty to
disclose. Kyles, 514 U.S. at 433-34; State v. Robinson, 835 S.W.2d 303, 306 (Mo. banc
1992).
Setting aside the Attorney General’s false premise, Becker’s 1999 DWI does not
appear on the Case.net system because it was an SIS, as revealed by the exhibit filed by
the Attorney General. See Resp. Ex. A. Nor are personnel records available on the
Committee on Professional Registration’s website. Only the State had or has access to
records about Becker’s 1999 DWI or any other SIS he may have had prior to trial, and
only the State has access to English’s and Becker’s personnel records from the
Department of Mental Health and the Southeast Missouri Mental Health Center. Under
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D.
regarding its expert witnesses, and the State has continually violated that duty throughout
every stage of Mr. Johnson’s case by failing to disclose such information.
Moreover, Mr. Johnson “cannot be faulted for failing to raise the nondisclosure of
evidence that he did not know about.” Ferguson, 413 S.W.3d at 58-59 (quoting Buck v.
State, 70 S.W.3d 440, 445 (Mo. Ct. App. 2000)). As the Supreme Court made clear in
Banks, 540 U.S. at 695, “[o]ur decisions lend no support to the notion that defendants
must scavenge for hints of undisclosed Brady material.”
Even now, Mr. Johnson does not know the full extent of the State’s nondisclosure, and based on the records he has recently been able to obtain, Mr. Johnson has
reason to believe additional impeaching information regarding Becker and English may
exist. For this reason, Mr. Johnson requests that this Court appoint a special master and
order discovery so that Mr. Johnson’s claims for relief may be fully developed and
adjudicated. See, e.g., State ex rel. Woodworth v. Denny, 396 S.W.3d 330, 333 (Mo.
banc 2013) (appointment of a special master under Rule 68.03 to take evidence and issue
findings of fact and conclusions of law in state habeas action asserting a Brady violation).
Furthermore, the Attorney General cannot explain how he can take one position
before this Court while simultaneously and adversely pursuing the revocation of Becker’s
license. None of that was public; even now, the extent of it remains uniquely in the
possession of the Attorney General and remains undisclosed.
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Brady, the State had and has a duty to disclose these and other impeachment information
Judge Seigel’s reliance on Becker’s evaluations of Mr. Johnson in spite of the
pending criminal case against him created an appearance of impropriety
Contrary to the Attorney General’s contention, Mr. Johnson does not argue for a
per se rule regarding his claim of the appearance of judicial impropriety. See Sugg. in
Opp. at 23. Rather, under the circumstances of Mr. Johnson’s specific case, Judge
Seigel’s reliance on the credibility and conclusions of Becker and English in postconviction proceedings, despite knowing of Becker’s series of DWIs and without
disclosing that information to the defense (or instructing the State to do so), created an
appearance of impropriety. Despite knowing Becker had so many DWIs that he was
being prosecuted as a persistent offender in a felony DWI case, Judge Seigel still
highlighted his and English’s credentials and endorsed their conclusions in denying the
Rule 29.15. Pet. Ex. 12, pp. 11-13.
While Judge Seigel at times referred to Becker and English collectively with Drs.
Dean and Rabun, the trial testimony and Judge Seigel’s decision make clear that Becker
and English came to a different conclusion than Dr. Dean regarding Mr. Johnson’s
mental state at the time of the offense. Pet. Ex. 12, p. 11 (“Dr. Dean determined that this
condition rendered [Mr. Johnson] incapable of deliberation in that he did not have the
capacity or ability to coolly reflect on the killing of Casey Williamson.”). The trial
testimony and Judge Seigel’s decision also make clear that Dr. Rabun offered no
conclusion whatsoever on the issue of Mr. Johnson’s ability to coolly deliberate at the
time of the offense. Pet. Ex. 12, p. 8 (“[Dr. Rabun] offered no opinion as to [Mr.
Johnson’s] responsibility or ability to deliberate at the time of the murder.”). And the
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II.
evidence impeaching Becker similarly would have been relevant to English’s credibility.
Thus, despite Judge Seigel’s tendency to list the four experts collectively at times,
the substance of the decision itself reflects his reliance on the conclusions of Becker and
English, not Drs. Dean or Rabun. That reliance on a discredited expert, especially
without disclosing Becker’s DWI history to the defense, created the appearance of
impropriety and deprived Mr. Johnson of a fair and meaningful post-conviction process.
Anderson v. State, 402 S.W.3d 86, 91, 93 (Mo. banc 2013); State v. Smulls, 935 S.W.2d
9, 17 (Mo. banc 1996); Thomas v. State, 808 S.W.2d 364, 367 (Mo. banc 1991).
The Attorney General again attempts to elevate the standard for demonstrating
prejudice, but this Court has made clear that the defendant does not bear the burden of
proving the judge was actually unfair. Smulls, 935 S.W.2d at 26 (“The standard by which
we determine the question is not whether the [] judge is actually prejudiced.”); Anderson,
402 S.W.3d at 92 (burden on defendant “does not require a movant to prove that the
motion court was actually biased or prejudiced”). Rather, the question is whether a
“reasonable person would have factual grounds to find an appearance of impropriety and
doubt the impartiality of the court.” Anderson, 402 S.W.3d at 92; Smulls, 935 S.W.2d at
26 (“the standard is whether there is an objective basis upon which a reasonable person
could base a doubt about the . . . impartiality” of the court.).
Mr. Johnson has satisfied that burden here, where Judge Seigel’s reliance on the
conclusions of a discredited expert to deny Mr. Johnson relief, without disclosure of
Becker’s criminal history, including the 1999 DWI, deprived Mr. Johnson of the
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fact that Judge Seigel consistently referred to Becker and English together shows that
Seigel—potentially meritorious claims he was precluded from raising in post-conviction.
Under these circumstances, a reasonable person would have factual grounds to find an
appearance of impropriety and doubt the impartiality of the post-conviction court.
The Attorney General seems to forget that finality is neither the legal nor ethical
polestar of his pursuit. Rather, the Attorney General is supposed to be tethered to truth
and fairness and must seek a just result. The United States Supreme Court has expressed
with fortitude again (and again) the “special role played by the American prosecutor in
the search for truth in criminal trials.” Strickler, 527 U.S. at 281; accord. Kyles, 514 U.S.
at 439-440; United States v. Bagley, 473 U.S. 667, 675 n.6 (1985); Berger v. United
States, 295 U.S. 78, 88 (1935). Courts, litigants, and juries properly anticipate that
“obligations [to refrain from improper methods to secure a conviction] . . . plainly
rest[ing] upon the prosecuting attorney, will be faithfully observed.” Berger, 295 U.S. at
88. Prosecutors’ dishonest conduct or failure to comply with their constitutional
obligations should attract no judicial approbation. See Kyles, 514 U.S. at 440 (“The
prudence of the careful prosecutor should not . . . be discouraged.”).
CONCLUSION
WHEREFORE, for all the foregoing reasons as well as those in his petition for
habeas corpus, Petitioner Johnny A. Johnson respectfully requests that this Court issue a
writ of habeas corpus vacating his conviction and death sentence and grant him a new
trial. In the alternative, Petitioner requests that the Court appoint a special master to take
evidence of the claims raised here and grant such other and further relief as the Court
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opportunity to raise his Brady claim in Judge Seigel’s court or to move to recuse Judge
this Court deny the State’s motion to set the execution date in State v. Johnson, SC86689,
in order for his Brady and judicial appearance of impropriety claims to be fully and
properly adjudicated.
Respectfully Submitted,
/s/ Kent E. Gipson
KENT E. GIPSON, #34524
Law Office of Kent Gipson, LLC
121 E. Gregory Blvd.
Kansas City, MO 64114
816-363-4400 • Fax 816-363-4300
kent.gipson@kentgipsonlaw.com
/s/ Laurence E. Komp
LAURENCE E. KOMP, #40446
Federal Public Defender
Western District of Missouri
818 Grand Avenue, Suite 300
Kansas City, MO 64106
816-471-8282
Laurence_Komp@fd.org
COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of April 2023, the foregoing was filed via the
Case.net system and was sent via email to Gregory Goodwin at
gregory.goodwin@ago.mo.gov.
/s/ Laurence E. Komp
Counsel for Appellant
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deems fair, just, and equitable under the circumstances. Petitioner further requests that
No. 23-5147
________________________________________
In the Supreme Court of the United States
________________________
JOHNNY JOHNSON, PETITIONER
v.
PAUL BLAIR, RESPONDENT
________________________
On Petition for a Writ of Certiorari
to the Supreme Court of Missouri
________________________________________
RESPONDENT’S APPENDIX TO BRIEF IN OPPOSITION
VOLUME TWO
________________________________________
Table of Contents
Volume 1
Petition for Writ of Habeas Corpus ............................................................................. A1
Suggestions in Opposition to Petition for Writ of Habeas Corpus .......................... A46
Reply in Support of Petition for Habeas Corpus ...................................................... A71
Volume 2
Trial Transcript ......................................................................................................... A92
i
1
IN THE SUPREME COURT OF THE STATE OF MISSOURI
2
JOHNNY A. JOHNSON,
3
Appellant,
4
vs.
5
STATE OF MISSOURI,
6
Respondent.
)
)
)
)
)
)
)
)
)
Appeal No. SC91787
===================================================
7
IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS
TWENTY-FIRST JUDICIAL CIRCUIT, DIVISION NUMBER THREE
Honorable Mark D. Seigel
volume I
JOHNNY A. JOHNSON,
)
8
9
)
10
Movant,
vs.
11
STATE OF MISSOURI,
)
)
Respondent.
13
)
TRANSCRIPT ON APPEAL
November 30, 2009
December 1-2, 2009
July 23, 2010
14
15
====================================================
16
For Movant:
Mr. Robert Lundt and Ms. Loyce Hamilton
Assistant Public Defenders
office of the Public Defender
1221 Locust Street -- suite 40
St. Louis, MO
63103
17
18
19
For Respondent:
Mr. Dean waldemer
Assistant Prosecuting Attorney
St. Louis County Prosecuting Attorney's Office
St. Louis county Justice center - 100 south central
St. Louis, MO 63105
20
21
22
23
25
Cause No: 2107CC-001303
)
12
24
)
)
I
l
Reported by:
Nancy A. Hazelwood, CCR #0214
official court Reporter, Division 3
Twenty-First Judicial Circuit
(314) 615-8079
A92
1
1
I N D E X
2
EVIDENCE ON BEHALF OF MOVANT
3
NOVEMBER 30, 2009
Page
4
5
PABLO STEWART, M.D.
6
Direct Examination by Mr. Lundt
7
7
8
DECEMBER 1, 2009
9
Continued Direct Examination by Mr. Lundt
161
10
Cross-Examination by Mr. waldemer
200
11
Redirect Examination by Mr. Lundt
375
12
Recross-Examination by Mr. waldemer
391
13
DECEMBER 2, 2009
14
15
PAMELA STROTHKAMP-DAPRON
16
Direct Examination by Ms. Hamilton
396
17
Cross-Examination by Mr. waldemer
445
18
Redirect Examination by Ms. Hamilton
467
19
Recross-Examination by Mr. waldemer
471
20
21
VITO BONO
22
Direct Examination by Mr. Lundt
474
23
Cross-Examination by Mr. waldemer
480
24
Redirect Examination by Mr. Lundt
486
25
Recross-Examination by Mr. waldemer
488
A93
2
1
DR. BROOKE KRAUSHAAR
2
Direct Examination by Mr. Lundt
491
3
cross-Examination by Mr. waldemer
513
4
Redirect Examination by Mr. Lundt
558
5
6
CATHERINE LUEBBERING
7
Direct Examination by Ms. Hamilton
561
8
9
LISA MCCULLOCH
10
Direct Examination by Ms. Hamilton
569
11
Cross-Examination by Mr. waldemer
574
12
Redirect Examination by Ms. Hamilton
578
13
MOVANT'S EXHIBITS
14
15
No.
Description
Received
16
1
Special school District Records
490
17
2
st. Louis county Health Records
108
pages 343-461
18
19
3
St. Louis Psychiatric
20
Rehabilitation Center Records
21
Page 482-662
22
4
25
Department of corrections
Medical Records: 663-909
23
24
71
5
99
St. John's Mercy Medical Records
910-1309
44
A94
3
1
6
Miscellaneous Medical Records:
2
Pages 1412-1441, 1525-1539
42
3
Pages 1442-1524, 1397-1411,
54' 80
4
1540-1581
87
106
5
8&9
Medical Records Dept. Of Corrections
6
10
Department of Probation & Parole
Records 2594-2615
7
8
11
135
court-ordered Psychological
9
Evaluation 2924-2950, 2951-2989
10
Dr. Stewart's cv- 3027-3047
156
11
13
Dr. Brooke Kraushaar's Evaluation
581
12
19
School Yearbook
490
13
20
cv of Dr. Brooke Kraushaar
491
14
15
16
RESPONDENT'S EXHIBITS
A
17
18
19
Ltr. Fr. Johnny Johnson to Mo. Dept.
Of corrections
B
280
Ltr. To Johnny Johnson from
Ian wallace
282
20
21
22
23
24
25
A95
4
1
JULY
23, 2010
Page
2
3
DR. CRAIG BEAVER
4
Direct Examination by Ms. Hamilton
584
5
cross-Examination by Mr. waldemer
641
6
Redirect Examination by Ms. Hamilton
717
7
Recross-Examination by Mr. waldemer
721
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A96
5
1
MOVANT'S EXHIBITS
2
No.
3
24
4
5
25
Description
Received
List prepared by Dr. Beaver
of Johnny Johnson's Hospitalizations
622
Dr. Beaver's cv
598
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A97
6
November 30, 2009
1
2
THE COURT:
This is Johnny Johnson versus the
3
State of Missouri, cause Number 2107CC-01303.
4
record reflect that petitioner -- excuse me --
5
plaintiff is not present in person however his
6
attorneys are present, that would be Mr. Robert Lundt
7
and Ms. Loyce Hamilton.
8
MR. LUNDT:
9
MS. HAMILTON:
10
THE COURT:
11
12
13
14
Let the
That's right, your Honor.
That's right.
For the State is Mr. Dean
waldemer.
It's my understanding that -- you may proceed
Mr. Lundt.
MR. LUNDT:
Your Honor, first, your Honor, I
15
would ask that the Court take judicial notice of the
16
underlying case here today, State of Missouri versus
17
Johnny A. Johnson, Cause Number 02CR-3834 and
18
additionally I would like the court to take judicial
19
notice of the appeal, supreme court Number SC86689.
20
THE COURT:
21
notice of both those matters.
22
MR. LUNDT:
23
24
25
The court will take judicial
Then movant calls Dr. Pablo
Stewart to the stand.
PABLO STEWART, M.D.
being produced and sworn, testified as follows:
A98
7
DIRECT EXAMINATION
1
2
BY MR. LUNDT:
3
Q.
All right.
Dr. Stewart --
MR. WALDEMER:
4
Judge, before we begin, if
5
there are any witnesses present in the courtroom that
6
might be called, the State would ask that they be
7
excluded from the courtroom during Dr. Stewart's
8
testimony or any other witness' testimony.
MR. LUNDT:
9
There are no witnesses 1n the
10
courtroom at this time and I will instruct them not to
11
come into the courtroom during each others testimony.
12
THE COURT:
13
MR. WALDEMER:
Thank you.
(By Mr. Lundt)
could you state your name for
14
15
Q.
Very well.
the record, sir?
16
A.
My name 1 s Dr. Pablo Stewart.
17
Q.
And how are you employed?
18
A.
I'm a psychiatrist.
19
Q.
And where are you employed?
20
A.
I'm employed by the University of california
21
at San Francisco as well as I have my own private,
22
consulting practice.
23
Q.
okay.
24
A.
I am a clinical professor in the department of
25
And what do you do for the university?
psychiatry 1n the school of medicine and in that
A99
8
1
capacity, I'm currently an assigning member of
2
psychiatric trainees and I superv1se over a given
3
period of time.
4
5
6
7
Right now I have eight psychiatric residents
who I supervise.
Q.
If I could direct your attention to Movant's
Exhibit 11 page 3027
8
THE COURT:
I'm sorry.
9
MR. LUNDT:
11, your Honor.
10
THE COURT:
okay.
11
MR. LUNDT:
Did I give you an exhibit list?
12
THE COURT:
No.
13
14
Q.
(By Mr. Lundt)
A.
Yes, it is.
16
Q.
All right.
18
19
20
21
Thank you.
Okay.
So, Movant's
Exhibit 11, page 3027 to 3047 is that your cv?
15
17
what exhibit was that?
Let's go into your education.
where did you graduate from medical school?
A.
I graduated from the university of california
1n San Francisco School of Medicine in 1982.
Q.
And prior to that you were a chemistry major;
1 s that correct?
22
A.
My undergraduate degree is in chemistry, yes.
23
Q.
And that's from the united States Naval
24
25
Academy in Annapolis?
A.
Yes.
A100
9
1
Q.
2
medicine?
3
A.
4
5
where are you currently licensed to practice
I'm licensed to practice medicine 1n the state
of california and the state of Hawaii.
Q.
And you talked about your current
6
professorship.
7
appointments?
8
A.
Do you also have previous academic
I've been at the university s1nce I completed
9
my psychiatric residency program in 1986 and I have
10
basically worked my way up the ranks starting as
11
clinical instructor into assistant professor and
12
associate professor and then now a full clinical
13
professor.
14
Q.
15
16
okay.
And how long -- I didn't get
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.