Page:Johnson v. Missouri, Jackson dissent.pdf/4

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As for irreparable harm, Johnson’s execution irrevocably mooted our consideration of his due process claim, and Missouri would have suffered no discernible harm if a stay had issued, as a State has no legitimate interest in carrying out an execution contrary to §547.031 or due process. Furthermore, Johnson had the better of the equities, since he diligently pursued his claims, and the last-minute nature of his motion for a stay was neither attributable to him nor due to factors within his control.

It is also noteworthy that Johnson’s prior and unsuccessful assertion of claims concerning selective prosecution and Batson v. Kentucky, 476 U. S. 79 (1986), did not preclude the invocation of §547.031 and Johnson’s corresponding federal due process claim, notwithstanding the Missouri Supreme Court’s contrary suggestion. See Order 11–12, 16, 19. If the required hearing had been held, someone might have pointed out that §547.031 itself “permits a prosecuting attorney to present all evidence relevant to such claims, regardless of whether the defendant is procedurally defaulted from raising such claims.” Id., at 8 (Breckenridge, J., dissenting). In any event, it appears that much of the evidence that could have been presented at the nonexistent hearing was evidence relating to the trial prosecutor’s racially biased practices and racially insensitive remarks. And now that evidence will not be considered on the merits by court, much less the one that was supposed to base its conclusions about the validity of Johnson’s conviction on all such evidence, per the statutory mandate.

For all of these reasons, I would have granted the stay.