August 17, 2015
A medical examination done Friday on a death row inmate convicted in a 1994 Columbia triple murder is expected to determine whether a benign brain tumor will cause complications with the state’s lethal injection protocol, according to federal court documents.
Ernest Lee Johnson has been in prison since June 1995, and a noncancerous tumor was discovered in his brain years later. Doctors removed part of the tumor in 2008, and the last scan of Johnson’s brain, in 2011, showed the remaining tumor wasn’t growing, according to a motion filed in June by one of his attorneys, Kansas City-based Jeremy Weis. The motion requested funding to hire physician Joel Zivot, assistant professor of anesthesiology and surgery at Emory University’s School of Medicine and the medical director of the cardio-thoracic intensive care unit at Emory University Hospital, to examine and evaluate Johnson.
Chief Judge Greg Kays of the Western District of Missouri in late June approved $7,200 for Zivot to review Johnson’s medical records and perform another scan of the condemned man’s brain, as well as to pay for travel time, consultation with attorneys and help in drafting an affidavit. Zivot will “render an expert medical opinion as to how Mr. Johnson will respond to the lethal injection drugs and whether he will respond differently than other Missouri inmates due to his unique medical condition,” Weis wrote.
Weis and Johnson’s other attorney, William Gaddy, did not respond to messages seeking comment. Michael Spillane, a Missouri assistant attorney general, is representing Troy Steele, the warden of Potosi Correctional Center, where Johnson is being held, who is named as the defendant in the case. Nanci Gonder, spokeswoman for the attorney general’s office, said the examination was conducted on Friday and that Spillane is waiting to obtain a copy of Zivot’s findings. Johnson’s next court date has not been set.
The most recent federal litigation continues a flurry of post-conviction proceedings for Johnson. Johnson was convicted in 1995 of the Feb. 12, 1994, murders of Fred Jones, 58, Mary Bratcher, 46, and Mable Scruggs, 57. His death sentence was twice overturned, in 1999 and 2003. The Missouri Supreme Court in 2008 affirmed a 2006 Pettis County jury’s decision to put Johnson back on death row, despite arguments from his attorneys that his IQ was in the 60s, far below the average of 100. Attorneys had previously gotten the sentence reversed because of Johnson’s mental retardation. The state’s highest court in 2008 had ruled his representation hadn’t successfully proven Johnson’s mental handicap.
As Jones, Bratcher and Scruggs closed a Casey’s General Store on Ballenger Lane, Johnson came in armed with a handgun and robbed the cash register before bludgeoning the victims to death with a hammer and flat-head screwdriver.
Johnson’s case went to the Eighth U.S. Circuit Court of Appeals in early 2013. A three-judge panel in December that year denied his application for appeal, and the U.S. Supreme Court in October 2014 denied a petition to hear the case. Nothing has been filed in the pending U.S. District Court case since Kays approved Zivot’s examination on June 22.