Ernest Johnson And The State Of The Death Penalty | Crooked Media
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October 06, 2021
Ernest Johnson And The State Of The Death Penalty

In This Episode

  • Ernest Johnson was executed in Missouri, yesterday. Johnson had been on death row for over 25 years after being convicted of the 1994 murder of three people. However, pleas for clemency from his supporters, including Pope Francis, intensified recently, saying Johnson’s intellectual disabilities made the execution unconstitutional and immoral.
  • The FDA’s advisory committee will be considering more booster shots, next week, as well as Pfizer vaccines for young children. Also, the drug company Merck said that its pill to treat COVID-19 reduced the risk of hospitalization among high risk people by 50 percent in a clinical trial.
  • And in headlines: a report found the French Catholic Church abused more than 200,000 minors over the last 70 years, Facebook whistleblower Frances Haugen testified before the Senate, and a Russian film crew arrived at the International Space Station to make history.


Show Notes





Gideon Resnick: It’s Wednesday, October 6th. I’m Gideon Resnick


Josie Duffy Rice: And I’m Josie Duffy Rice, and this is What A Day, where we have grown a lot since Pitchfork gave us a ‘less than zero’ review back in 2007.


Gideon Resnick: Yeah, Pitchfork, you might want to revisit that one. We deserve at least a positive number.


Josie Duffy Rice: But honestly, we’d settle for just like a flat zero.


Gideon Resnick: Yeah, no decimals. On today’s show, we preview the future of COVID vaccine boosters, which make an update as soon as next week. Plus, the Facebook whistleblower testified before Congress yesterday.


Josie Duffy Rice: But first, we need to tell you about the tragic death of Ernest Johnson. He was executed in Missouri yesterday just after 6 p.m. local time. Johnson had been on death row for over 25 years after being convicted of the 1994 murder of three convenience store employees. In the past few weeks, pleas for clemency for Johnson intensified. At least two of Missouri’s Congressmembers, Emmanuel Cleaver and Cori Bush, asked Governor Mike Parsons to spare Johnson’s life. With Bush calling it a crime against humanity. Last week, the Pope also asked the Governor to stop Johnson’s execution, due to quote, “the simple fact of Mr. Johnson’s humanity and the sacredness of all human life.”


Gideon Resnick: Yeah, that would make sense, right, and this case in particular was extremely controversial, so can you tell us a little bit about the background here?


Josie Duffy Rice: Yeah, absolutely. So Johnson’s attorneys argue that his execution was not only immoral but unconstitutional given his intellectual disability. In 2002, seven years after Johnson’s death sentence, the U.S. Supreme Court ruled in Atkins v. Virginia that the execution of people with intellectual disability was unconstitutional. Recently, his attorney said he quote “meets all statutory and clinical definitions” of intellectual disability. He scored between 67 and 77 in IQ tests throughout his life, starting when he was a child. Johnson had been diagnosed with Fetal Alcohol Syndrome, which is associated with impaired intellectual functioning. And more recently, in 2008, Johnson had a brain tumor removed and lost around 20% of his brain tissue.


Gideon Resnick: And despite all of this information, that just didn’t impact anyone hearing all that?


Josie Duffy Rice: Yeah, unfortunately, no, I mean, though, Johnson’s attorneys argued for 20 years that he had a disability, neither a jury nor courts nor the governor were persuaded. In May, the Missouri Supreme Court wrote that his subsequent recollections of the crime quote “illustrated Johnson’s ability to plan, strategize and problem solve.” Late yesterday, the U.S. Supreme Court also denied Johnson’s application for a stay of execution, with zero of the nine justices dissenting.


Gideon Resnick: Jeez.


Josie Duffy Rice: Yeah.


Gideon Resnick: And beyond intellectual disability, what does Johnson’s case actually tell us about the death penalty more broadly in America today?


Josie Duffy Rice: Yeah, so this is another thing that makes Johnson’s case so concerning, in the past few years, both death sentences and executions have declined drastically. So over the 1990s, back when Johnson was convicted, Missouri sentenced more than 80 people to death in that decade. Since 2010, only five people in the state have gotten the death penalty. And that pattern is the same across the country. In fact, 1994 had 311 death sentences nationwide. That’s the second highest since the death penalty was reinstated in the mid-1970s. Meanwhile, last year, only 18 people total were sentenced to die across the country. So it’s quite possible that if he had committed the same crime today, Johnson wouldn’t even end up on death row, much less actually be executed. There is usually a very long gap between someone receiving the death penalty and someone actually being executed. And while that gap is often necessary—I mean, exonerations can take years, the appeals process takes years, etc.—it also means that people are getting executed today, even though they were sentenced in the much harsher and very different time. And speaking of exonerations, since 1973, 186 people who were sentenced to death have been exonerated. It’s a remarkable number and yet another sign that the death penalty is rife with serious issues.


Gideon Resnick: Yeah. And meanwhile, public opinion seems to be recognizing this to a degree as well, right? The public opinion on the death penalty has declined significantly, whereas 80% supported it. In 1994, only 55% were in favor of it in 2020. That is according to polls by Gallup. So Josie, should we actually expect, then, that our lawmakers or our courts are going to abolish the death penalty in the near future?


Josie Duffy Rice: Unfortunately, Gideon, that’s very unlikely, at least on a federal level. It’s quite difficult to imagine that a majority in Congress would support that, given that there’s still some public support for the death penalty, although there’s less now than ever. And it’s virtually impossible to imagine a 6-3 conservative Supreme Court choosing to end the death penalty any time soon. As we mentioned in the show yesterday, they will theoretically have the opportunity to do so in the future, but it’s very unlikely that it actually happens. So for now, the way the death penalty is being abolished is kind of state-by-state, and more specifically, county-by-county. Twenty three states, along with D.C., have abolished the death penalty, and another 13 states haven’t executed a single person in over 10 years. And even in the states that have executed someone, a very small minority of counties are responsible, and that really comes down to the local prosecutor. So a report by the Death Penalty Information Center from 2013 found that just 2% of U.S. counties account for a significant majority of executions across the country. And today, that number is likely even lower.


Gideon Resnick: Yeah, that’s an insane statistic.


Josie Duffy Rice: Yeah, it’s crazy. So the good news is that, slowly, less and less people are being executed. But the concern is just how arbitrary it is as a punishment, right? So you could commit a crime and I could commit a crime, you know, the exact same crime right over county lines, and depending on where we live, one of us could live and one of us could die for the exact same crime, right? It’s an extremely arbitrary way to decide who deserves to live and who doesn’t. So if you want to help end the death penalty, especially if you live in a state where it is still legal, please reach out to your state legislators, and even more importantly, your local prosecutor, and support local organizations fighting to end capital punishment. And as for the death of Ernest Johnson, will link to a story in our show notes so you could know more about who he was and about his case.


Gideon Resnick: Yeah, definitely. Take the time to read that. So it’s been a little while since we dove into the state of the pandemic in the U.S., so we are going to do that today as well. And there is some good here. Broadly at the moment, national cases are coming down in a sustained way from the most recent massive surge that was driven by the Delta variant. Hospitalizations as well are also down, so both of those are very encouraging signs.


Josie Duffy Rice: Yeah, they really are. But Gideon it remains to be seen whether this is more of an ebb and flow, or if, as former FDA Commissioner Scott Gottlieb has said in interviews, that this may be the last major surge the country sees. Here he is talking to Reuters:


[clip of Scott Gottlieb] Obviously, different parts of the world are going to be grappling with this on different timetables. But I think in the United States, this Delta wave is probably the last major surge of SARS-CoV-2 infection that we have in U.S., barring something unexpected happening with the virus. By unexpected, I mean, getting a new variant that pierces the immunity that we’ve acquired from either vaccination or from prior infection.


Josie Duffy Rice: And we’re coming up on some very important hearings that could help determine where the country goes from here. So can you walk us through a little bit of the rundown?


Gideon Resnick: Yeah, this is a busy month ahead. So late next week, October 14th and 15th, the FDA’s advisory committee is apparently going to consider three important vaccine related issues. One is data on a potential second Johnson & Johnson shot. The other is data on a potential third Moderna shot. And lastly, a presentation from the National Institutes of Health on the question of mixing and matching the three vaccines currently in use in the U.S., which a lot of people have already begun to do already. Just yesterday, J&J formally sought the FDA’s authorization for a second shot for people who had received their first and only dose of its vaccine. That comes after Moderna and Pfizer had as well. And so the company has said that while the protection from its vaccine does not wane over time, it found that a second shot administered about two months after the first one boosted efficacy to 94% against moderate to severe disease. Johnson & Johnson also submitted evidence showing that a second dose that was given six months after the first significantly boosted a person’s antibody levels.


Josie Duffy Rice: Yeah, I mean, that’s great news, and there might be some movement on a vaccine approved for young children too, right? Fingers crossed,


Gideon Resnick: Right. Finally, this seems to be actually imminent, more so than not imminent. So on October 26, the same FDA advisory committee is expected to talk about Pfizer’s data on vaccine trials with 5 to 11 year olds, which could then pave the way for them to be authorized pretty quickly thereafter.


Josie Duffy Rice: Yeah, that would be excellent. I have a four-year old and I am just waiting for the moment I can get him the vaccine. So aside from shots, there are some COVID-19 treatments on the table as well. So what’s the latest there?


Gideon Resnick: Yeah, so yesterday, AstraZeneca said that it was looking for an emergency use authorization from the FDA of an antibody treatment that they have to prevent COVID-19. It would reportedly be intended largely for people who have compromised immune systems and who might not be getting enough protection from the vaccines alone. And if it is authorized, it appears to be the first in the U.S. that would be a preventive treatment like this. The other kinds of things that we often hear about, the Regeneron’s of the world, are for after a person has been infected.


Josie Duffy Rice: And finally, there is a pill to treat COVID-19 in the works. Is that right? What do we know about that?


Gideon Resnick: Yeah, so the drug company Merck said that its pill to treat COVID-19 reduced the risk of hospitalization among high-risk people by about 50% in a clinical trial. So very good data there. And it would be the first pill to treat COVID-19 in the U.S., meaning the promise of reaching more people than those current antibody treatments. Now there are lots of questions about it’s still, such as is it only going to be prescribed to unvaccinated patients? What will supply and costs and availability end up looking like? And a whole lot more. We can link to a few stories that explore that in our show notes. More on the pandemic vaccines and treatments soon, but that is the latest for now.


Josie Duffy Rice: It’s Wednesday, WAD squad, and today we’re doing a segment called WAD Recommends, where we share an under-the-radar news story, movie, book, or even a funny T-shirt that caught our attention.


[deep voice] WAD Recommends!


Josie Duffy Rice: I could honestly just have a playlist of our little soundbites. They’re just so good. So Gideon, you read a story yesterday that you wanted to talk about. Apparently, it’s remarkable that I haven’t heard of it. Please tell me everything.


Gideon Resnick: So it’s a nonfiction story that’s called Bad Art Friend. It was written by Robert Kolker for the New York Times Magazine. It is about a fiction writer named Dawn who donated her kidney to a stranger in 2015, which admittedly a very generous thing to do. I think we can all agree.


Josie Duffy Rice: Yeah, that seems nice.


Gideon Resnick: She goes on to make a pretty big deal about it on Facebook, including inviting people to her one year quote unquote “kidneyversary,” creating a private group to share posts about it—that group also happens to include members of a writing community that she was a part of, had been a part of. And at one point, all this is happening, and she’s noticing that her fellow fiction writers are not really interacting with her kidney post. There’s not a lot of, you know, this is great or we love this story. Whatever, whatever. Are you losing interest? Are you getting more interested? Are you concerned? What’s your vibe right now?


Josie Duffy Rice: No, I’m so interested.


Gideon Resnick: OK, so she was alarmed. She reaches out to one. It’s a writer named Sonya, a pretty comparatively well-known writer. I think that that’s established. And she sent an email that included the line quote, “I think you’re aware that I donated my kidney this summer, right?” Like the story describes the conversations with them getting kind of more intense. And eventually, she finds out that Sonia had written a story about a white woman who donated her kidney to an Asian-American woman that she did not know. The donor in this story is portrayed as really, like, quite an oblivious narcissist.


Josie Duffy Rice: Oh no.


Gideon Resnick: And, yeah, the story included a very near copy of a letter that Dawn wrote to her kidney recipient and posted on Facebook.


Josie Duffy Rice: Nooooo. OK. Oh, my gosh.


Gideon Resnick: Uh-Huh. You, you have, you have some sense of where this is going, OK. So the story by Sonya, which is called quote unquote “The Kindest” became successful, and that sends Dawn on this warpath. In 2017, when this story got this prize at a Boston book festival that would have gotten 30,000 copies distributed for free in the city—it was a big deal—Dawn contacts the festival organizers and the Boston Globe to say that this story included plagiarized material.


Josie Duffy Rice: What!?


Gideon Resnick: And long story short, yeah, she successfully got the Boston Prize part of this canceled.


Josie Duffy Rice: That’s crazy. That’s really wild.


Gideon Resnick: Yeah. Whether or not this actually constitutes plagiarism is being decided by courts. There’s also a lawsuit by Sonya against Dawn that alleges defamation.


Josie Duffy Rice: Oh my God.


Gideon Resnick: The two of them—yeah, there’s like a real like escalation of like claims and financial compensation that they’re looking for. There’s a lot more to it. I truly, it’s long, like it took me like a long time. But did I make you want to read this story?


Josie Duffy Rice: I’m literally going to read this story the minute we stopped recording, AND I am really feeling like this is a great example of Streisand theory, where Dawn is telling everybody that she’s, like, she’s making it very clear she’s the protagonist in the story. Or like whatever, the narcissist, where like, if you had just kept your mouth shut, nobody really had to know it was you. It’s pretty intense. I’m very excited to read it. I’m going to read it. I’m so ashamed that I missed an internet trend. I haven’t missed one since, like 2008. So maybe this is the most I’ve have been of line, but I’m very excited to read it. Thank you, Gideon. That was WAD Recommends.


[deep voice] WAD Recommends!


Josie Duffy Rice: We’ll be back after some ads.


[ad break]


Gideon Resnick: Let’s wrap up with some headlines.


[sung] Headlines.


[sung] An independent commission found a disturbing history of systemic pedophilia in the French Catholic Church, according to a pretty horrific report it released yesterday. It says as many as 3,000 priests and other church workers had abused hundreds of thousands of children over the last seven years. Since the abuse spanned such a long period of time, the Independent Commission on Sexual Abuse in the Church said its team had only identified a small percentage of the victims. However, through academic research and other sources, they concluded the number of abused minors since 1950 could be upwards of 330,000. The commission leader said quote, “The church failed to see, it failed to hear, and failed to pick up on the weak signals. It failed to take the rigorous measures that were needed.” This report is one of many revelations about crimes that priests and high-ranking cardinals had committed for far too long without being detected. Pope Francis released a statement saying he hopes the French church can find a path of redemption after light has been shed on this quote, “appalling reality.”


Gideon Resnick: Yeah, wow. We are only halfway through Mark Zuckerberg’s terrible, horrible, no-good, very bad week. We’ll see what the rest of it holds. But yesterday, former Facebook employee and whistleblower Francis Haugan testified before a Senate Commerce Subcommittee telling lawmakers about the dangers of Facebook’s products following her explosive interview with CBS’s 60 Minutes last Sunday. Now, among other things, Haugan testified that the social media giant knows that its platforms, such as Instagram, can hurt younger users, especially teenage girls, but is doing nothing about it.


[clip of Frances Haugen] But I’m here today because I believe Facebook’s products harm children, stoke division, and weaken our democracy. The company’s leadership knows how to make Facebook and Instagram safer, but won’t make the necessary changes because they have put their astronomical profits before people. Congressional action is needed. They won’t solve this crisis without your help.


Gideon Resnick: Following the hearing, Facebook issued a statement trying to discredit its former employee. Haugen’s fiery testimony came a day after Facebook’s six-hour long global outage on Monday. And on that outage, Facebook blames a quote, “error of our own making” and says routine maintenance on one of the company’s data centers led to a system failure.


Josie Duffy Rice: Here’s the latest on the pipeline leak in Southern California that has caused over 120,000 of crude oil to spill out into the ocean this weekend. Sounds just fine. Coast Guard divers determined that the pipeline was displaced by about 100 feet along the ocean floor. The CEO of Amplify Energy, the company that operates the pipeline, said it was quote, “pulled like a bow string,” which is a reminder that ecological disasters are at the end of the day, an opportunity to try out fun new phrases. Officials have said they’re investigating whether a ship’s anchor caused the leak, but as of yesterday, there was no confirmation either way. Amplify Energy has a history of violations through its subsidiary Beta Operating company—they’ve been cited by federal regulators 125 times.


Gideon Resnick: It’s never like a clean track record with any of these.


Josie Duffy Rice: Never, it’s never their first offense. You know, it’s never a small mistake.


Gideon Resnick: Oh my god. I’ll be thinking of “pulled like a bow string” for the rest of my life. There have been plenty of movies sent in space, but like the Apollo 11 moon landing, they were all faked on a Hollywood soundstage. That is, until now. A Russian film crew arrives at the International Space Station yesterday on a mission to shoot scenes for the first feature film made in orbit. The crew consists of a director, an actress, and a veteran cosmonaut, who presumably can help everybody tape their bagels to the craft services table so that they don’t float it away. The crew will spend 12 days shooting scenes for a movie about a surgeon who rushes to the space station to save a cosmonaut who has fallen ill. The movie is called a “Challenge” which we can’t help but interpret as a taunting reference to a tragedy in NASA’s past. I read you loud and clear, Russia, and I personally am ready for Cold War 2. I have been gearing up my entire life. The project is meant to showcase Russia’s space program, partially by once again beating the Americans. Tom Cruise has been in talks with NASA and SpaceX to make a movie on the space station, but he has no firm date yet. Though no one should be surprised if he’s up there now, having made it to space by hanging on the outside of the Russian’s rocket. In a consolation prize for Hollywood though, 90-year old William Shatner will take a ride on Jeff Bezos’s phallic Blue Origin rocket on October 12, becoming the oldest person and loudest actor to ever fly to the edge of space.


Josie Duffy Rice: That’s crazy. 90-years old and going to space. I got to say, more power to you, Shat man.


Gideon Resnick: Yeah. If you got it in you, you got it in you.


Josie Duffy Rice: Do it.


Gideon Resnick: But I don’t personally. And those are the headlines.


Josie Duffy Rice: Two more things before we go. First, we wanted to follow up with the results from the world’s most closely-followed contest about the body mass index of apex predators. Fat Bear Week concluded yesterday, with the bear called 480 Otis lumbering away with the title for the fourth time. Gideon’s pick, 32 Chunk, and Priyanka’s pick, 812 didn’t come close, but we still love them. But we also celebrate the winning bear.


Gideon Resnick: Somebody told me to look out for Otis, and I dismissed it as the, you know, the folly of the internet, but man, they were right. I messed up.


Josie Duffy Rice: You were wrong. You were wrong.


Gideon Resnick: 32 Chunk will be avenged. You heard it here first. And an even more important news than Fat Bear Week results. We also want to bid an extremely fond farewell to our audio engineer, Charlotte, [air horn blows] who is leaving us to work on other projects at Crooked that don’t require working vampiric hours. Charlotte is a founding member of the WAD team. They started with us back in 2019 and they have been a consistent advocate for including undercovered stories while also creating the sound cues that make our show fun to listen to, [drum, whoosh sound] and or easy to confuse with horns honking outside your car. [horn blows] The reason that you are listening to this is because of Charlotte. [ding] Let’s make that very, very clear.


Josie Duffy Rice: Absolutely.


Gideon Resnick: It would not happen without Charlotte. I also just want to say really quickly: they probably have more varied set of hobbies and talents than anyone on our team, making them the first person we’d all want to be stuck with if surviving an apocalyptic event.


[clip of Britney Spears] It’s Britney, bitch.


Gideon Resnick: I will share that early in the pandemic, I was given a mask and bread from Charlotte—two things that I was incapable of finding on my own. Truly just an indispensable human being. And I want to also say their love for Shrek is as pure as any love that exists in the world. [song: Somebody—] We are going to miss you deeply, Charlotte, but we know that we’ll see you soon. We love you.


Charlotte: Ah, thanks you, guys. Sneaky.


Josie Duffy Rice: Love you Charlotte.


We’ll miss you dropping knowledge,


Gideon Resnick: We’ll still talk about NBA draft picks. That’s, that’s the final word on that. That is all for today. If you like the show, make sure you subscribe, leave a review, hold on to Shatner’s rocket as it roars into space, and tell your friends to listen.


Josie Duffy Rice: And if you are into reading, and not just the results of Fat Bear Week like me, What A Day is also a nightly newsletter. Check it out and subscribe at I’m Josie Duffy Rice.


Gideon Resnick: I’m Gideon Resnick.


[together] And we’ll miss you on WAD Charlotte. [music, air horns]


Josie Duffy Rice: We will. So sad.


Gideon Resnick: But not on Slack, where we will find you.


Josie Duffy Rice: We will find you on Slack. You can’t escape us.


Gideon Resnick: It’s true. What A Day is a production of Crooked Media. It’s recorded and mixed by Charlotte Landes. Jazzi Marine is our associate producer. Our head writer is Jon Millstein, and our executive producers are Leo Duran and myself. Our theme music is by Colin Gilliard and Kashaka.