Opposition Brief — Johnny Johnson, Petitioner v. David Vandergriff, Warden

Supreme Court briefJul 21, 2023

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No. 23-5147

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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

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RESPONDENT’S APPENDIX TO BRIEF IN OPPOSITION

VOLUME ONE

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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.

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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

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Opposition Brief — Johnny Johnson, Petitioner v. David Vandergriff, Warden | Frix