Ernest Johnson was convicted of three counts of first degree murder in the 1994 deaths of Mary Bratcher, Fred Jones, and Mabel Scruggs, who were killed in the convenience store where they worked. Mr. Johnson received three death sentences, which were vacated on direct appeal. After a second penalty phase trial, Mr. Johnson was again sentenced to death and those sentences were affirmed on direct appeal in 2000. In postconviction proceedings, Mr. Johnson argued that defense counsel was deficient for failing to present evidence of his mental retardation. The Supreme Court of Missouri again vacated his sentences and remanded for a new penalty phase hearing.

Atkins: Because neither the Atkins decision nor the Missouri legislature’s enactment of a statute prohibiting the death penalty for mentally retarded individuals were in effect at the time of Johnson’s trial, the Court treated Johnson’s claim as an argument that his death sentence exceeded the maximum authorized by law in light of his mental incapacity, in violation of the Missouri and federal constitutions. 102 S.W.3d at 537.

As required by Atkins, the Court looked to Missouri’s definition of mental retardation, defined in Missouri statute Section 565.030.6 as: “a condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with continual extensive related deficits and limitation in two or more adaptive behaviors such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which conditions are manifested and documented before eighteen years of age.” 102 S.W.3d at 540 (citing Mo. Stat. Section 565.030.6). Even though the statute was only meant to apply to crimes committed after August 28, 2001,the Missouri Supreme Court held, in light of Atkins, that a defendant that can prove mental retardation by a preponderance of the evidence, as set out in section 565.030.6, shall not be subject to the death penalty.

At trial, the defense had presented testimony from a neuropsychologist who concluded that Johnson suffered from mild brain damage as a result of childhood head injuries and drug abuse and had a full-scale IQ of 84. But defense counsel did not present the testimony of Dr. Bernard, another psychologist with extensive experience in mental retardation, who evaluated Johnson and reviewed childhood records and testified at a deposition that Johnson’s low IQ—between 67-76 accounting for a 10-point spread—and history of deficits in adaptive skills reflected mild mental retardation. Of particular significance to Dr. Bernard was Johnson’s 14-point decrease in IQ from third to sixth grade, as well as his developmental delays, poor social skills, and deficient self-care skills. 102 S.W.3d at 538-539. The Court concluded that Johnson had shown that ample evidence was available, but not offered, “establishing that his mental capacity is questionable'' and putting him within Missouri’s definition of mental retardation.  Moreover, “the jury instructions treated mental retardation as a mere mitigating circumstance—not the outright bar to punishment dictated by Atkins.” 541. The court remanded the case for a new penalty hearing. 102 S.W.3d at 537.

Ernest Johnson was ultimately resentenced to death and executed on October 5, 2021.