EXECUTED OCTOBER 2002 

BY FAX: 573-751-1495

October 18, 2001

Honorable Bob Holden
Office of the Governor
State Capitol
Box 720
Jefferson City, MO  65101

Re: Stephen Johns

Dear Governor Holden:

On behalf of the American Civil Liberties Union, we urge you to stay indefinitely the execution of Stephen Johns, which is currently scheduled for October 24, 2001, and commute his sentence to imprisonment for a term of years or to life imprisonment with eligibility for parole.  As described below, failures of the judicial system and ineffective assistance of counsel merit this extraordinary relief.

In 1983, a jury sentenced Mr. Johns to death as an accomplice in the robbery and killing of a gas station attendant in St. Louis.  The man with whom Mr. Johns was alleged to have participated in the crime immediately pleaded guilty to a non-capital homicide charge, and may soon be released on parole.  By contrast, Mr. Johns has maintained his innocence from the time of his arrest to the present and received the death penalty.

At Mr. Johns' trial, the court instructed the jury that it could find Mr. Johns guilty of capital murder if they find that he or the other man accused of the offense had deliberated on causing the death of the gas station attendant.  This jury instruction was unlawful at the time of Mr. Johns trial and subsequent appeal.  Despite the fact that the Missouri Supreme Court later recognized the error and overruled its decision in Mr. Johns' case, the Court failed to overturn Mr. Johns' death sentence.  

In addition, prosecutorial misconduct warrants a grant of clemency in this case.  Throughout Mr. Johns' trial, the prosecution failed to disclose to the defense that its chief witness against Mr. Johns', Mr. Albert Keener, had a financial incentive to see that he was convicted.  In fact, the police told Mr. Keener that he would not receive a reward unless Mr. Johns' was convicted.  There was no eyewitness to the shooting and Mr. Keener's testimony was crucial for the prosecution to prove that Mr. Johns' was the triggerman in the shooting.  The failure of the prosecution to disclose such impeachable evidence goes to the heart of Mr. Johns' constitutional rights to confront his accusers.  

Finally, Mr. Johns clearly suffered from ineffective assistance of counsel.  His trial attorney, who was later disbarred, never presented any mitigating evidence in the penalty phase of his trial.  A competent investigation of Mr. Johns' history would have yielded a powerful case in mitigation.  Public records would have shown that, apart from a single misdemeanor offense, Mr. Johns had no serious or violent criminal record.  Further, testimony from family members would have highlighted to the jury how Mr. Johns had taken care of his family when younger, despite the abuse he suffered at the hands of his father.  

Although the ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the Constitution, we are ever more convinced that the sentence in this case is unfair, even by existing standards, and urge you to grant clemency to Mr. Johns.

Sincerely,

Diann Rust-Tierney
ACLU Capital Punishment Project

Matt LeMieux
ACLU of Eastern Missouri 

Kara Mather
Pro Bono Counsel
Squire, Sanders & Dempsey, L.L.P.
1201 Pennsylvania Ave., N.W.
Washington, DC  20004