BEFORE THE GOVERNOR OF THE STATE OF MISSOURI
THE HONORABLE MATTHEW BLUNT

In the matter of TIMOTHY JOHNSTON
Execution scheduled for August 31, 2005

APPLICATION FOR A STAY, A REPREIVE FROM, OR A COMMUTATION OF A SENTENCE OF DEATH

Introduction

Timothy Johnston is a 44 year old Caucasian male who is incarcerated at Eastern Area Reception Diagnostic and Correctional Center in Bonne Terre, Missouri awaiting execution. He is scheduled to be executed at 12:01 a.m. on August 31, 2005. All legal appeals previously filed have been denied, or are pending uncertain review.

Summary and History of Proceedings

On July 26, 1991, Timothy Johnston was convicted of first-degree murder and sentenced to death for the killing of his wife, Nancy Johnston. Timothy was denied post-conviction relief by The Honorable Michael B. Calvin, Circuit Judge on September 30, 1996, following the evidentiary hearing. The Missouri Supreme Court affirmed Tim’s conviction of first-degree murder, his resulting death sentence and the denial of his post-conviction relief in a consolidated appeal on November 25, 1997.

Timothy then filed a Petition for Writ of Habeas Corpus to the United States District Court for the Eastern District of Missouri on August 14, 1998. This Petition for Writ of Habeas Corpus was denied by the District Court on November 2, 2000. A timely appeal to the United States Court of Appeals for the Eighth Circuit was denied 2 to 1 on May 1, 2002. A Petition for Rehearing and Rehearing en banc was denied on July 8, 2002 with Judge McMillian voting to grant a rehearing en banc.

On August 16, 2004, Tim filed in the United States District Court for the Eastern District of Missouri a §1983 lawsuit challenging Missouri’s specific method of execution as being cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution.

Johnston v. Crawford, et al. Cause No. 4:04CV1075DJS is currently pending in the United States District Court before The Honorable United States District Court Judge Donald J. Stohr. Judge Stohr has made significant rulings in the case in favor of Mr. Johnston. Among these rulings is Judge Stohr’s order of June 13, 2005 denying Defendant’s Motion to Dismiss. Judge Stohr’s order stated that Tim’s claims were not frivolous and if proven true, merited relief. This lawsuit has been active in the District Court since its filing. Discovery is ongoing and the case has been assigned a Track 3 Complex Case. On August 1, 2005, the parties, as directed by the Court, filed a Proposed Joint Scheduling Plan mapping out the progress of the case with a suggested trial date of June 26, 2006.

Circumstances Surrounding the Homicide

Tim was convicted of first-degree murder and sentenced to death for killing his wife, Nancy Johnston. The victim’s death resulted from a brutal beating administered by Tim following a day/night of heavy drinking. The incident was precipitated by an argument between the two that erupted earlier at a bar causing Tim to return home.

The situation escalated when Tim heard a car start outside his home, saw Nancy in the car attempting to leave, and proceeded to jump on the hood of the car as she attempted to drive away. Tim succeeded in stopping the car, at which point he pulled his wife into the street and began to beat her.

He eventually put Nancy back in the car and drove away as the police arrived on the scene. Upon arriving home, Tim pulled his wife out of the car and continued his assault. He eventually pulled her inside the home where she stopped breathing. At that point, Tim called the police.

The paramedics declared Nancy Johnston dead at the scene. An autopsy found extensive, blunt-trauma injuries over much of her upper body, numerous internal injuries, and concluded that Nancy’s death resulted from the “collapse of the support structure around the lungs, rendering those organs unable to function.”

Basis for Commutation of Sentence

With due respect and a deep sincerity, undersigned counsel submit the followings justifications for a stay or commutation of Timothy’s sentence:

1. The balance of equities require that the Governor stay Tim’s execution pending the federal court’s resolution of his §1983 federal lawsuit challenging Missouri’s specific method of execution as cruel and unusual punishment. Tim’s execution on August 31, 2005, will prevent him from showing that the specific method of execution by which Missouri intends to execute him constitutes cruel and unusual punishment and will cause him immediate and irreparable harm by subjecting him to a painful and protracted death in violation of the Eighth and Fourteenth Amendment of the United States Constitution.

2. Tim’s execution would constitute manifest injustice because all the evidence now available shows that Tim suffered from organic brain damage at the time of the offense that impaired his mental capacity and rendered him incapable of deliberation, and essential element of first-degree murder.

3. Tim’s execution would be a random and arbitrary imposition of the death penalty in that Willie Simmons, a Missouri prisoner formerly under sentence of death, received relief from a panel of the United States Court of Appeals for the Eighth Circuit on his claim for ineffective assistance of counsel for failing to present mitigation evidence while Mr. Johnston, whose case involved the identical issue and a set of materially indistinguishable facts was denied relief by a different panel of the same court.

4. Tim’s sentence of death is excessive given the strength of the evidence, in that all of the evidence no available shows that Tim suffered organic brain damage at the time of the offense that impaired his mental capacity and rendered him incapable of deliberation.

Standard of Review

Article IV, §7 of the Missouri Constitution grants the Governor the “power to grant reprieves, commutations, stays and pardons, after conviction…upon such conditions and with such limitation as he may deem proper.” He is not restricted by strict rules of evidence, and is free to consider a wide range of legal and equitable factors in the exercise of his clemency powers. He may consider any aspect of the case, including claims which the courts have declined to review for procedural reasons. Governor Blunt is also free to expand the relevant case law and apply his own interpretation to grant relief if he so desires.

Timothy Johnston, by and through undersigned counsel, and with earnest support of numerous individuals and for the meritorious reasons stated above, respectfully requests that Governor Blunt, pursuant to the powers granted him by Article IV, § 7 of the Missouri Constitution, grant him executive clemency and commute his sentence from death to life imprisonment with the possibility of parole. Alternatively, Timothy requests that Governor Blunt grant a reprieve, staying his execution, and convene a board of inquiry pursuant to § 552.070 RSMo 2000, to gather information bearing upon whether his sentence of death should be commuted.

Specific Challenge to Missouri’s Protocol of Execution

Tim has alleged in his lawsuit that his executioners intend to execute him with unreliable and arbitrary drugs, administered by inadequately trained personnel, using inappropriate equipment and arbitrary methods to cause him a painful and protracted death. Although there has been limited discovery in the lawsuit, investigation to date reveals Missouri’s current lethal injection procedures in that the three chemical sequence method used by inadequately trained personnel creates an unjustifiable likelihood that during his execution, Tim will be conscious of pain and chemically induced suffocation and heart attack but incapable of demonstrating the consequences due to chemically induced paralysis.

Since August 16, 2004, Tim has been litigating an action brought under 42 U.S.C. § 1983 as to whether Missouri’s current method of lethal execution violates the Eighth Amendment ban on cruel and unusual punishment. More specifically, Tim alleges in his suit that the three chemical sequence and the method of their use by inadequately trained personnel creates an unjustifiable likelihood that during his execution, he will be conscious of pain of chemically induced suffocation and heart attack, but incapable of demonstrating the consequences due to chemically induced paralysis. Tim’s §1983 suit has been active in the United States District Court since August 16, 2004. Discovery is ongoing, the case is on a normal path of a Track 3 Complex Case. On August 1, 2005, the parties filed a Joint Proposed Scheduling Plan setting out various discovery deadlines and suggesting a potential trial date of June 26, 2006.

By proceeding with the execution on August 31, 2005, he will not have an opportunity to litigate his § 1983 action. This is extremely unfair giving the fact that Tim’s suit has been on file for approximately a year and that the District Court has sided with him in numerous pretrial rulings, including denying a multifaceted motion filed by the Defendants; wherein the District Court stated Tim’s suit is not frivolous and, if the allegations are proven, is deserving of relief.

Facts in Support of Tim’s Claim

The Missouri execution protocol is a three chemical sequence involving sodium pentothal (thiopental), pancuronium bromide, and potassium chloride. The procedure is designed to work as follows: the thiopental, an ultra-short acting barbiturate, will render the prisoner unconscious, the pancuronium bromide will stop his lungs, and the potassium chloride will stop his heart. The humane aspect of this procedure will necessarily fail if the thiopental - whatever the dosage - is not properly delivered to the prisoner. Neither the pancuronium bromide nor the potassium chloride has anesthetic or sedative properties while both will cause the prisoner to suffer excruciating pain.

Pancuronium bromide is a neuromuscular blocking agent which has the effect of paralyzing all voluntary motions but does not effect sensation, consciousness, or the ability to feel pain and suffocation. Pancuronium bromide renders a person completely paralyzed so that no voluntary movement of any kind can be achieved. Pancuronium bromide will paralyze the muscles that will enable an individual to breath, and will cause a person to slowly suffocate. Due to it’s blocking effect, pancuronium bromide will prevent the prisoner from expressing that he was conscious and suffering. In fact, the 2000 report of the American Veterinary Medical Association opines that the combination of a barbiturate with a neuromuscular blocking agent is not an acceptable euthanasia agent.

The intravenous administration of the third drug in Missouri’s chemical sequence, concentrated potassium chloride, is extremely painful absent proper anesthetic sedation. It activates the sensory nerve endings in the veins as it travels to the heart, causing an excruciating burning sensation. There are many possible alternative drugs that are equally effective in causing cardiac arrest but do not cause such pain. The administration of potassium chloride will activate the nerve endings of his veins causing intense pain as it travels to his heart will cause him a massive and painful heart attack.

Missouri’s Use of the Femoral Vein to Gain IV Access is Unnecessary and Painful

Beginning with the procedure used to gain intravenous access, the methods employed by Missouri to implement it’s three chemical sequence do not contain proper safeguards to insure that the prisoner is properly anesthetized prior to the administration of pancuronium bromide and potassium chloride first. The drugs will be administered intravenously through an IV started in his femoral vein using a device called a triple lumen catheter. Insertion of this device in his femoral vein is a sophisticated surgical procedure which will cause Tim unnecessary pain and suffering and will, in and of itself, violate his right to be free from cruel and unusual punishment.

As detailed in the affidavit of Jonathan I. Groner, M.D., a board-certified general surgeon who is the Trauma Medical Director of Children’s Hospital in Columbus, Ohio and a Clinical Associate Professor of Surgery at the Ohio State University College of Medicine and Public Health, the insertion of femoral central lines to gain IV access can be extremely painful. Specifically, the technique “involves inserting a large needle directed to an anatomic landmark in order to puncture the vein. Once the vein is punctures, a wire is passed into the vein, then a scalpel is used to make a small incision where the guidewire enters the skin, then the catheter is passed over the guidewire and into the vein.” The executioners’ use of a triple lumen catheter exacerbates matters.

Triple lumen catheters are highly sophisticated metal devices and has three separate channels, approximately 15 cm longer than a standard peripheral IV. According to Dr. Groner, the use of a femoral central lumen catheter creates a substantial risk of inflicting severe and unnecessary pain and suffering. The femoral vein lies close in proximity to the femoral artery and femoral nerve. Even if local anesthesia is used in the skin at the puncture site, accidental puncture of the artery and/or accidental puncture of the femoral nerve would be excruciatingly painful. The same will hold true “if the needle passes through the vein and strikes the bones in the pelvis which lie below the vein.” In paragraph 16 of his affidavit, Dr. Groner lists numerous complications involved in obtaining IV access through the femoral vein. Said complications include “severe pain; hemorrhage/hematoma at the catheter site; unrecognized arterial catheter placement; catheter tip malposition, in which case the catheter tip lies outside the vein; air embolism resulting in sudden death; hemorrhage into the abdomen; and femoral arterial inclusions, causing severe leg pain; and perforation of the heart by the medical guidewire used in the catheter insertion procedure.” Two of the above-described complications - unrecognized arterial catheter placement and catheter tip malposition - make Missouri’s lethal injection process exceedingly painful because the drugs would flow down the leg instead of the heart and brain, and be absorbed slowly, causing a slow, tortuous death.

There is no apparent reason for establishing IV access through a femoral vein and using a triple lumen catheter to deliver the drugs. Access can be gained by the insertion of the standard peripheral IV. According to Dr. Groner, a peripheral IV is the preferred procedure unless “the patient has absolutely no visible veins; the patient is in shock and the peripheral veins are collapsed or inaccessible; or the patient needs venous pressure monitoring during an operation.” Femoral line insertions are dangerous and uncomfortable procedures to be performed only in dire situations and in a rare case where there are absolutely no veins for the standard peripheral IV. The use a femoral central line and the insertion of a triple lumen central catheter at said site will subject Tim to unnecessary pain and suffering in violation of his Eighth Amendment rights.

Missouri’s Protocol Does Not Provide for any Monitoring of IV Site

Under Missouri’s execution protocol, the executioners are in an adjacent room during the execution. While they can see the prisoner, they can’t see the IV site. Most likely, the IV site is hidden by the prisoner’s pants. As a result, the executioners have no way of knowing whether or not the IV is leaking or whether there are any developing complications at the IV site. A leaking or malfunctioning IV which fails to properly dispense the thiopental creates a reasonable likelihood that the prisoner will conscious during the painful administration of pancuronium bromide and potassium chloride.

Missouri’s Protocol Does Not Provide Any Monitoring of the Level of Anesthesia

Whenever a medical professional uses a barbiturate with a neuromuscular blocking agent, such as pancuronium bromide, it is essential that a qualified medical person monitor anesthetic depth prior to the administration of the blocking agent. The reason for this is that the blocker places a chemical veil over the individual, paralyzing him and making it impossible for a witness to make a meaningful determination as to whether or not the execution is being conducted without the infliction of pain.

Missouri’s current lethal injection protocol contains no provision for the monitoring of a prisoner’s level of anesthesia prior to the administration of pancuronium bromide. Because of the paralyzing effect of pancuronium bromide, the prisoner’s anesthetic depth cannot be verified by the eye alone. Necessary monitoring equipment, such as an EKG and blood pressure cuff, would have to be present and used under the supervision of an individual trained to assess anesthetic depth in order to be effective. The failure of the defendants to verify “anesthetic depth prior to the administration of pancuronium bromide and later prior the administration of potassium chloride constitutes an unacceptable risk that the inmate will be conscious during the execution, and will experience excruciating torments of conscious paralysis and intravenous concentrated potassium chloride.

The Qualifications of Involved Corrections Personnel is Highly Suspect

The qualification and training of the corrections personnel involved in the execution process is critical to insure that the prisoner’s execution is within the confines of the Eighth Amendment. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculation.

According to Larry Crawford, the Director of the Missouri Department of Corrections in charge of executions, the drugs used for execution are prepared and mixed by a physician and a nurse approximately one hour before the execution. The great majority of nurses are not trained in the use and preparation of ultra-short acting barbiturates such as thiopental. This class if drugs is traditionally used only by nurses who have significant experience in intensive care units and by nurse anesthetists.

The scant information disclosed by the defendants about the qualifications, training, and experience of the nurse and doctor involved in the execution process is insufficient to insure that they are qualified to work with the chemicals used in the lethal injection process. Further investigation is necessary regarding their training, credentials, and experience to see if, in fact, they are properly qualified to work with anesthetizing drugs.

According to Larry Crawford’s answers to plaintiff’s interrogatories, the last three corrections employees who acted as executioners had degrees, respectively, in mathematics, criminal justice administration, and a masters in criminal justice with an undergraduate in management. Although Tim has learned through interrogatories that a doctor provides direction to the executioners during the execution process, Tim has not been told the nature of said directions.

The information about the doctor is just as vague as the information given about the executioners. Other than where he graduated from college, attended medical school, and completed is residency, all Tim knows is that he is a board-certified surgeon. Tim was not told what type of surgery the doctor is certified to perform. In addition, Tim has not been provided with any information regarding the doctor’s experience in the placement of femoral central lines. According to Dr. Groner, placement of a femoral venous central line and the insertion of a triple lumen venous catheter is a sophisticated operation that is performed by specialists and that many surgeons would not know how to do this procedure.

Given the affidavits of Drs. Heath and Groner, and Missouri’s current lethal injection procedure, specifically, it’s unnecessary and painful use of the femoral vein to gain IV access, the failure of corrections personnel to monitor the level of anesthesia prior to the administration of pancuronium bromide and potassium chloride, their failure to monitor the IV site, and the total lack of medical training or qualifications of the executioners, a reasonable probability exists that Tim will prevail on the merits of this case. At the very least, Tim has raised serious, substantial, and difficult questions which call for a more deliberate and extensive investigation. Tim should be allowed to avail himself of the normal avenues of discovery normally available to a § 1983 plaintiff who raises a justiciable claim, and allowed to prosecute his case.

Mr. Johnston’s execution constitutes a manifest injustice in that all of the evidence now available shows that Mr. Johnston suffered from organic brain damage at the time of the offense that impaired his mental capacity and rendered him incapable of deliberation, an essential element of first-degree murder.

Missouri recognizes a freestanding claim of actual innocence in capital cases. “[T]he continued imprisonment and eventual execution of an innocent person is a manifest injustice.” While the typical claim of innocence involves the situation where the state has convicted the wrong person, “one is also actually innocent if the state has the right person but that person is not guilty of the crime with which he is charged.”

In the context of first-degree murder, a person who is unable to deliberate is actually innocent because he is incapable of satisfying an essential element of the crime. All of the evidence now available shows that Mr. Johnston was unable to deliberate at the time of the offense.

Mr. Johnston was convicted of first-degree murder in that the jury found that he knowingly caused the death of his wife, Nancy Johnston, and that he acted with deliberation in doing so. Under Missouri law, the element of deliberation differentiates murder in the first-degree from conventional murder in the second-degree.

The facts surrounding the homicide were as follows: Tim and Nancy Johnston spent the early part of the evening at a bar. An argument erupted causing Tim to leave and go home. While home by himself, Tim went into a rage. He shot up and destroyed parts of the furniture and other property contained in the house.

During the course of his tirade, he heard a car engine starting. He raced outside to find Nancy behind the wheel of the car attempting to leave. He jumped on the hood of the car and held on as she drove away. He succeeded in stopping the car on Broadway Avenue in the City of St. Louis.

At that point, he pulled Nancy out of the car and began to beat her in the street. He continued to beat her despite the pleas of the neighbors telling him to stop. He eventually put Nancy back in the car and drove away as the police arrived at the scene. Upon arriving at their home, Tim pulled Nancy outside of the car and began to beat her again. He eventually pulled her inside the home where she stopped breathing. At that point, he called the police.

The defense at trial was that Mr. Johnston was not guilty of murder first-degree, but instead guilty of a lesser degree of homicide. Mr. Johnston contended that his actions in beating his wife were impulsive rather than deliberate.

Although there was available psychiatric evidence that Mr. Johnston was unable to deliberate because of head injuries, alcohol dependence, and either an organic or personality disorder, defense counsel chose not to present said evidence in the guilt phase of the trial.

New evidence obtained through brain mapping shows organic brain damage

During the 29.15 proceedings, post-conviction counsel hired Dr. Darcy Dysart, a doctor specializing in neurology and psychiatry, to conduct neurological testing on Mr. Johnston. In June of 1993, he did a series of tests and procedures collectively called brain electroactivity mapping (BEAM). A BEAM test evaluates the function of the brain by looking at electrical activity in different parts of the brain to determine how each area is functioning.

The data from electrical recordings of different parts of a person’s brain is collected, run through a computer, and compared with data previously obtained from thousands of other people with no medical, neurological, psychological, or psychiatric problems. These numbers are then equated to different colors which are displayed in a topographical display of the brain. These colored drawings are called brain maps.

The first test performed on Tim was a standard EEG which measures the electroactivity generated by the brain. Tim’s EEG detected abnormalities in the frontal and temporal portions of his brain. The frontal lobe controls the ability to think rationally while the temporal lobe controls emotional processing - depression and anger. Dr. Dysart concluded from the EEG that Mr. Johnston had an organic brain disorder.

Dr. Dysart also performed a quantitative EEG. Said test uses a computer to pick up subtle abnormalities not visible to the naked eye. These results are then compared to a data base of people of similar age with no medical, psychological, or psychiatric problems. Mr. Johnston’s quantitative EEG showed that the frontal and temporal areas of his brain were out of sync and not working together.

Dr. Dysart found the abnormalities in Mr. Johnston’s brain to be consistent with, and probably the result of, his prior head injuries. The quantitative EEG confirmed the findings of the standard EEG - that Mr. Johnston had abnormalities in both the frontal and temporal areas of his brain. The abnormalities are consistent with orbital frontal syndrome, a type of organic brain syndrome.

Dr. Dysart defined orbital frontal syndrome as a cluster of symptoms characterized by “explosiveness, most characteristically, the lack of inhibition” that will happen suddenly . . . with the smallest provocation. Dr. Dysart opined that this condition would have impaired Mr. Johnston’s judgment, causing him to react suddenly rather than deliberately.

Mr. Johnston’s case was tried in 1991. The diagnostic tools available in 1991 - the standard EEG and psycho-neurological testing - came back normal and didn’t reveal any evidence of brain abnormalities. While some BEAM testing was being done in 1991, said testing was relatively new and the equipment available at time was “fairly crude.”

While a BEAM test performed in 1991 could have picked up some brain abnormalities, said tests would have not been as accurate or definitive as the test that Dr. Dysart performed on Mr. Johnston in 1993. In fact, the motion court relied on these reasons in overruling Mr. Johnston’s claim that his counsel was ineffective for failing to arrange BEAM tests in 1990 or 1991. Thus, the results of Mr. Johnston’s BEAM test qualify as newly discovered post-trial evidence.

All of the available evidence constitutes actual innocence of first-degree murder

The totality of the now available evidence, including the results of the brain mapping and the findings of Drs. Parwatikar, Yutzy and Gaskin, constitutes clear and convincing evidence that Mr. Johnston was unable to deliberate, and undermines the basis of Tim’s conviction of first-degree murder.

Dr. Sam Parwatikar, M.D., was appointed by the trial court to evaluate Mr. Johnston pursuant to the provisions of Chapter 552 RSMo. Dr. Parwatikar determined that Mr. Johnston was acting under an extreme emotional disturbance at the time of the homicide and had diminished mental capacity as a result of serious head injuries, alcohol dependence, and a borderline personality disorder.

According to Dr. Parwatikar, petitioner’s history of five head injuries, two of which were significant, caused frontal lobe damage which affected his emotional control. The alcohol, combined with the head injuries, effected Mr. Johnston’s ability to plan, deliberate, and exercise appropriate control. Dr. Parwatikar gave his opinion, based on a reasonable degree of medical or psychiatric certainty, that Mr. Johnston was unable to deliberate at the time of the offense.

Dr. Sean Yutzy evaluated Mr. Johnston for the defense in June or July of 1990. Like Dr. Parwatikar, Dr. Yutzy discovered Mr. Johnston’s history of head injuries as well as his well-documented history of alcohol addiction. Dr. Yutzy concurred with Dr. Parwatikar that Mr. Johnston was suffering from a personality disorder not otherwise specified. Dr. Yutzy believed that Mr. Johnston was under the influence of extreme emotional disturbance at the time of the offense stemming from his chaotic relationship with his wife and his excessive intoxication.

Dr. Fred Gaskin treated Mr. Johnston at Hyland Center approximately six months prior to the offense. Dr. Gaskin diagnosed Mr. Johnston as alcohol dependent. Largely as a result of Mr. Johnston’s history of head injuries, Dr. Gaskin discovered symptoms characteristic of post-trauma head syndrome and organic brain syndrome.

The one constant lacking from the above-doctors’ evaluation of Mr. Johnston was any objective findings of organic brain damage. The results of the 1993 brain mapping - that Mr. Johnston had definitive brain damage at the time of the offense - provides the missing link. When one combines the new evidence of objective brain damage with the findings of Drs. Parwatikar, Yutzy and Gaskin, it is clear that Mr. Johnston was unable to deliberate and thus, is actually innocent of first-degree murder.

This was a close case. The jury deliberated for sixteen hours on the guilt/innocence phase. The defense was that Mr. Johnston was guilty of second degree murder in that his actions were impulsive rather than deliberate. During the course of the jury’s deliberations, they sent a question to the judge asking whether they had to be unanimous on every element of the offense in order to be unanimous on that count.

The verdict director submitted the following elements to the jury: that Mr. Johnston caused the death of Nancy Johnston, and that he did so after deliberation. There was no dispute that Tim caused the death of his wife. The only element under consideration was whether or not he acted with deliberation as required by the first-degree murder instruction.

The jury’s determination of the deliberation element was the key to the case. All of the evidence, including the new evidence, clearly and convincingly tips the scales in favor of Mr. Johnston’s innocence on the basis that he was unable to deliberate at the time of the offense.

Mr. Johnston’s Execution Would Be Random and Arbitrary in Light of Simmons v. Luebbers

The Eighth Amendment of the United States Constitution prohibits the random and arbitrary imposition of the death penalty. One of its purposes is to ensure that similarly situated defendants are treated equally under the law.

It follows from the above-cited principle that the execution of a particular defendant would violate the law where a panel of an appellant court decides a case differently than another panel has on a set of materially indistinguishable facts, Tim Johnston and Willie Simmons, a Missouri prisoner formerly under a sentence of death, raised identical ineffective assistance of counsel claims to the United States Court of Appeals for the Eighth Circuit.

Both of these claims involved a set of materially indistinguishable facts, and centered around trial counsel’s failure to present mitigating evidence during the penalty phase of their respective trials. As the direct result of the composition of the panel of judges randomly selected to hear their cases, Mr. Simmons received relief while Mr. Johnston did not.

Tim consistently claimed throughout the state and federal proceedings that he was denied his Sixth Amendment right to the effective assistance of counsel when trial counsel failed to present available mitigating evidence, specifically, the testimony of Drs. Sam Parwatikar, Sean Yutzy, and Fred Gaskin, during the penalty phase of his trial.

Those doctors would have provided a credible explanation for Tim’s history of violent behavior. Although trial counsel was aware of these potential witnesses and their mitigating testimony, he inexplicably failed to call any of them to testify during the penalty phase.

The Eighth Circuit denied relief holding that the record supported the Missouri Supreme Court’s conclusion that Tim’s attorney’s decision not to call these witnesses was reasonable trial strategy. The panel opined that the state court decision was neither contrary to nor involved an unreasonable application of Strickland v. Washington.

Judge Heaney wrote a vigorous dissent on this issue. While conceding that petitioner’s counsel made a tactical decision not to introduce testimony from Drs. Parwatikar, Yutzy or Gaskin, Judge Heaney opined that “the relevant question, however, is not only whether counsel’s choices were strategic, but whether they were reasonable.”

Judge Heaney found the reasons given by counsel for not presenting said evidence - that there were apparent inconsistencies between the reports of Drs. Parwatikar and Yutzy; that their medical reports contained information about other criminal acts committed by Tim; that the reports concluded that Tim was able to appreciate the nature and wrongfulness of his actions; and that Dr. Gaskin’s conclusions were suspect because they were based solely on information obtained from Tim - to be objectionably unreasonable.

While recognizing that there may have been inconsistencies in the factual versions of the offense related to Drs. Parwatikar and Yutzy, Judge Heaney realized that these inconsistencies did not extend to the history of head injuries, borderline personality disorder and/or alcohol abuse.

That history is well documented by independent sources, and forms the basis for relevant mitigating evidence - that Tim suffered from post-traumatic head syndrome or organic brain syndrome and that his condition provided a credible explanation for his impulsive violent behavior.

With respect to Dr. Gaskin, Judge Heaney recognized that Tim’s history of head injuries and alcoholism was well documented by independent sources. He found the fact that Dr. Gaskin himself failed to document the history did not compromise the reliability of his report.

In addition, Judge Heaney found that the evidence of Tim’s extensive violent history was already before the jury, and opined that additional evidence would not have made any difference. The jury was fully aware that Tim fought with and threatened police on a number of occasions, once pointing a shotgun at authorities when they arrived to investigate; that Tim fought and threatened an ex-girlfriend and her brother; that he damaged a motorcycle and a car belonging to his brother; and that he allegedly threatened to kill his wife.

Judge Heaney observed that the evidence elicited during the trial portrayed petitioner in an extremely negative manner. He was referred to by the state in closing argument as a “murderous animal”, “the embodiment of evil,” and “Satan.” As succinctly stated by Judge Heaney:

The jury was fully aware that Johnston was a man with a violent past. What the jury lacked was a credible and available explanation for his violent behavior. The testimony of Drs. Parwatikar, Yutzy and Gaskin would have provided such a credible explanation.

Judge Heaney opined that counsel’s decision to keep this mitigating evidence from the jury was unreasonable, and that, had said evidence been presented, there was a reasonable likelihood that he would not have been sentenced to death.

Approximately four months after its decision in Tim’s case, the Eighth Circuit issued its decision in Simmons v. Luebbers. Simmons involved the identical issue raised before the Eighth Circuit in Johnston - whether counsel’s failure to present available mitigating evidence, including mental health information, constituted ineffective assistance of counsel.

Simmons was convicted in two separate trials of two different homicides, and sentenced to death in each case. The sole mitigating evidence presented at one of the trials consisted of the testimony of Simmons’ mother, who stated that she loved her son and would continue to have a relationship with him.

The following mitigating evidence, available from mental health professionals who examined petitioner and/or reports obtained during the course of their evaluations, was not presented: that petitioner was beaten and abused both by his father and his mother; that he ran away from home at age 12 or 13, was assaulted and possibly raped in Chicago; that he grew up in an impoverished neighborhood frequented by street violence; and that he was borderline mentally retarded.

The mitigating evidence of Simmons’ background could have been presented to demonstrate that his compulsive violent reactions were the result of an abusive and traumatic childhood. Judge Heaney, writing for the court, found counsel’s performance to be constitutionally ineffective under the Strickland standard, and that the Missouri Supreme Court’s contrary decision to be an unreasonable application of Strickland.

The court held that “there was no justifiable reason to prevent the jury from learning about Simmons’ childhood experiences” and that Simmons’ attorney’s actions cannot be justified as reasonable trial strategy. Using language very similar to that employed in his dissenting opinion in petitioner’s case, Judge Heaney noted:

By the time the state was finished with its case, the jury’s perception of Simmons could not have been more unpleasant. Mitigating evidence was essential to provide some sort of explanation for Simmons’ abhorrent behavior. Despite the availability of such evidence, however, none was presented.

Simmons’ attorney’s representation was ineffective. The court went on to hold that Simmons was prejudiced by his attorney’s failure in that, had the mitigating evidence been presented, there is a reasonable probability that the result of the sentencing and proceeding would have been different.

The facts in Simmons are materially indistinguishable from those in Tim’s case. Judge Heaney’s analysis of the ineffective assistance issue mirrors that outlined in his dissenting opinion in petitioner’s case. Judge McMillian, who concurred with Judge Heaney in the Simmons case, dissented from the denial of the petition for rehearing in Tim’s case. Had Judge McMillian been on the panel assigned to Tim’s case, it is safe to assume that Tim would have received habeas relief from his death sentence. What can be more arbitrary and capricious than having one’s execution depend on the makeup of the panel randomly drawn to hear his case rather than on the uniform applicability of the law?

Mr. Johnston’s sentence of death is excessive given the strength of the evidence in that all of the evidence now available shows that Mr. Johnston suffered from organic brain damage at the time of the offense that impaired his mental capacity and rendered him incapable of deliberation.

As part of its review process in death penalty cases, the Governor should determine whether a sentence of death is warranted in light of the strength of all of the evidence, including new evidence discovered after trial. “The obvious purpose [behind this duty] is to avoid wrongful convictions and executions. The duty to do so in death penalty cases is . . . a continuing one.”

As stated in the previous section, there is now objective evidence that Mr. Johnston was suffering from organic brain damage at the time of the offense. Mr. Johnston has set out in the previous section how he believes that the new evidence clearly and convincingly shows that he is actually innocent of murder in the first-degree.

At the very least, the new evidence coupled with the psychiatric testimony available at his trial through Drs. Parwatikar, Yutzy, and Gaskin, shows that the sentence of death is excessive. As such, execution clemency should be granted and Tim’s sentence should be commuted from death to life without parole.

Respectfully Submitted,
LERTIZ, PLUNKERT & BRUNING, P.C.
By: /s/ Christopher E. McGraugh
Attorney for Timothy Johnston

State v. Johnston, 957 S.W.2d 734 (Mo. 1997) (Direct Appeal).