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 for each of the three convictions. The Missouri Supreme Court overturned the circuit court’s denial of sentencing relief in Rule 29.15 proceedings and ordered a new penalty phase trial.
Ineffective Assistance of Counsel, Penalty Phase. In Rule 29.15 proceedings, Johnson argued that his trial counsel were ineffective for failing to present the testimony of a forensic psychiatrist who had examined Johnson pre-trial. Prior to trial, Dr. Sam Parwatikar, a licensed psychiatrist with an emphasis in forensic psychiatry, examined Johnson for any sign of mental disease, defect, or disorder. Dr. Parwatikar concluded that Johnson did not suffer from mental disease or defect, but did suffer from a mental disorder precipitated by excessive cocaine intake called “cocaine intoxication delirium,” which caused changes in mood, personality, and judgment. Leading up to trial, Dr. Parwatikar unsuccessfully attempted several times to speak with counsel. Unable to reach counsel, Dr. Parwatikar reported his findings to a paralegal in counsel’s office and offered to testify on Johnson’s behalf. Although counsel had scheduled Dr. Parwatikar as a defense witness, at the 29.15 hearing she testified that she never contacted Dr. Parwatikar before the guilt phase began because of her high workload on two other capital cases. Counsel (Jan Zembles) testified that she instructed her co-counsel, (Nancy McKerrow), to move for continuance, but that motion was denied. Through several more communication mishaps, Johnson went without the testimony of Dr. Parwatikar during the penalty phase. Zembles told the motion court that she should have asked for a continuance saying, “I cannot imagine why I didn’t just ask for a brief continuance or a recess or something to try and get a hold of the man, but I didn’t.” State v. Johnson, 968 S.W.2d 686, 698 (Mo. 1998). At trial, Zembles presented the testimony of an expert who had never evaluated Johnson and could not testify to his mental state at the time of the crime.
The Missouri Supreme Court concluded that Dr. Parwatikar’s testimony “was the cornerstone of Zembles's penalty phase strategy,” and by failing to present that testimony, counsel was not acting in accordance with a reasonable trial strategy and counsel’s performance fell below an objective standard of reasonableness. The court held that Johnson was prejudiced by counsel’s failures because Dr. Parwatikar’s testimony would have altered the jury’s deliberations such that there was a reasonable probability that the jury would have voted unanimously for a sentence of life without the possibility of parole. 968 S.W.2d at 702. The court reversed the denial of post-conviction relief, vacated all three sentences of death, and remanded for a new penalty phase trial.