Court asked to overturn man's death sentence a third time

JEFFERSON CITY, Mo. -- A man convicted of a 1994 triple murder at a Columbia convenience store wants the state Supreme Court to overturn his sentence for a third time because of claims he is mentally retarded.

Whether the Supreme Court grants his request could depend on whether the judges decide it was Earnest Lee Johnson's burden to prove he was retarded or whether it was the prosecutors' burden to prove he was not.

Arguments Wednesday before the state's highest court focused on that subtle distinction in how jurors are instructed to weigh the evidence in death penalty cases.

"The burden of proof is a huge deal in this case," Judge Michael Wolff said during the arguments.

A 2001 Missouri law prohibits the death penalty, and instead requires life imprisonment without parole, for people convicted of first-degree murder when jurors find "by a preponderance of the evidence" that the person is mentally retarded.

Jurors last year decided there was not a preponderance of evidence that Johnson was mentally retarded and recommended Johnson should be executed. Two previous death sentences in the case had been overturned.

Prosecutor's burden

Johnson's attorney, Elizabeth Unger Carlyle of Columbia, argued Wednesday that the state law should not apply. Instead, she said it should have been the prosecutors' burden to prove beyond a reasonable doubt that Johnson was not mentally retarded.

Carlyle cited a 2002 decision in an Arizona case, in which the U.S. Supreme Court ruled the Constitution requires jurors to find "beyond a reasonable doubt" that legal factors exist to warrant the death penalty.

Johnson's attorney argued that same standard should apply for prosecutors to prove someone is not mentally retarded.

But assistant attorney general Even Buchheim said Carlyle's reasoning was wrong. He said the state's burden of overcoming "reasonable doubt" applies only to factors that would increase a punishment.

But a determination of mental retardation can only decrease the possible punishment and so is appropriately determined by the state law placing the "preponderance of evidence" burden on the defendant, he said. Ten other states' courts have made similar rulings, Buchheim said.

Wolff said during questioning the attorneys that the burden of proof could be a life or death matter.

Jurors weighing the facts could decide a defendant had not shown by a preponderance of the evidence that he was mentally retarded, Wolff said. And yet if asked to decide the issue by a different standard, those same jurors might look at those same facts and say the state had not proven beyond a reasonable doubt that the defendant was not mentally retarded, he said.

Johnson, now 47, was convicted in 1995 of bludgeoning to death three Casey's General Store employees -- Mary Bratcher, 45; Fred Jones, 58; and Mabel Scruggs, 57 -- during a Feb. 12, 1994, robbery. In a taped interview with a mental health worker that was played for jurors, Johnson said he went to rob the store to get money to buy more cocaine.

Johnson's first death sentence was overturned by the Missouri Supreme Court in 1998 because his attorneys had not offered testimony about his drug addiction and abusive and unstable childhood.

After jurors again imposed the death sentence in 1999, the state Supreme Court initially upheld it in 2000. But then the court overturned the sentence in 2003, following a 2002 U.S. Supreme Court ruling that it is unconstitutionally cruel to execute a retarded person. Whether Johnson was retarded played a large role in his third sentencing hearing.

Carlyle contends Johnson should have been declared mentally retarded by a judge, without ever having to submit the issue to jurors. But Buchheim questioned the credibility of the evidence that Johnson was retarded.