Harris County D.A. Seeks Execution of Intellectually Disabled Man, Lawyer Says

Within the last 12 months, Harris County District Attorney Kim Ogg’s office has sought execution dates for Dexter Johnson, despite evidence of his intellectual disability. Though the district court set two execution dates—both at the request of the DA’s office—federal courts have twice granted Johnson stays.  

Killing Johnson, his attorney argues, would violate the constitutional prohibition against executing people with intellectual disabilities. Ogg’s pursuit of death in Johnson’s case, advocates say, is just one example of the difference between her actions as district attorney and her rhetoric of reform on the death penalty. While Ogg has publicly opposed executing people with intellectual disabilities, her office has also defended death sentences when there are claims that the prisoner has an intellectual disability.

“The State’s repeated attempts to execute a man whose execution is forbidden by the Constitution indicate that they are driven by vengeance, rather than justice,” Johnson’s attorney, Jeremy Schepers, wrote in an email to The Appeal.

On June 18, 2006, Johnson and four others abducted Maria Aparece and Huy Ngo at gunpoint, according to state filings. Johnson sexually assaulted Aparece, and then he and a co-defendant took the victims into the woods and shot them, the state argued. In 2007, a jury convicted Johnson of the murders and sentenced him to death.

Johnson was just days past his 18th birthday at the time of the crime, barely old enough to be eligible for the death penalty. In 2005, the U.S. Supreme Court abolished death sentences for juveniles in Roper v. Simmons, holding that they were “cruel and unusual punishment.” Last month, a federal judge wrote that Roper should go further, and extend to those who were between the ages of 18 and 21 at the time of the crime. “I believe that society’s evolving standards of decency likely do not permit the execution of individuals who were under 21 at the time of their offense,” wrote Circuit Judge Jane Stranch. 

Johnson’s mental fitness further complicates the state’s decision to sentence him to die. His attorney argues he is inelgible for the death penalty because he has an intellectual disability. In Atkins v. Virginia, the 2002 landmark U.S. Supreme Court case, the Court ruled that executing intellectually disabled people violates the Eighth Amendment, but the states must determine criteria for an intellectual disability. 

Then in 2014, the Court provided additional guidance for states in Hall v. Florida. The court found that Florida’s “rigid rule”—that only those with an IQ of 70 or below were intellectually disabled—“creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” If a person’s IQ is within the margin of error, the person should be permitted to show “evidence of intellectual disability, including testimony regarding adaptive deficits,” wrote Justice Anthony Kennedy for the majority. “Intellectual disability is a condition, not a number,” he wrote. 

Throughout his childhood and adolescence, Johnson struggled to perform basic tasks, like remembering to bathe, following a bus route, and counting change.

Johnson, who is now 31, has an IQ of 70 and has been diagnosed with schizophrenia, according to his attorney. He struggles to communicate with others, uses “nonsense words,” and cannot name everyday objects, according to his attorney’s motions.

Johnson’s symptoms developed well before age 18, according to his attorney’s filings. Throughout his childhood and adolescence, which were marked by instability, violence, and abuse, Johnson struggled to perform basic tasks, like remembering to bathe, following a bus route, and counting change. On one occasion, he cashed his income tax check for $320, but was only given $32 back; his sister had to point out the error to him. He preferred to be alone as a child to avoid being bullied because he was “slow,” according to legal filings. An elementary school teacher recalled that Johnson sat with his fists clenched and cried when he got an answer wrong. 

In elementary and high school, he attended special education classes and had to repeat grades, according to his attorney’s briefs. The second time he was in ninth grade, he functioned at a sixth-grade level even though he should have been a high school junior. At 17, his family did not trust him to be home alone, his attorney wrote. After he was arrested for the murders, his sister asked if the police read him his Miranda rights. Johnson asked, “Miranda who?” according to his state application for a writ of habeas corpus, the means by which prisoners can contest their conviction or detention.

Despite Johnson’s attorney’s documentation of an intellectual disability, Ogg’s office has argued that Johnson’s impairments are not severe enough to exempt him from the death penalty. A spokesperson for the DA’s office, Michael Kolenc, emailed in response to a series of written questions from The Appeal: “When we believe an intellectual disability claim fails to meet the rigorous requirements of the DSM-5, and generally accepted scientific protocols, we will make our position known to the court.”

Ogg’s office has pushed for the death penalty on other cases involving claims of intellectual disability. Last year, her office sought a death warrant for Robert Jennings, who was convicted in 1989 of killing Houston police officer Elston Howard. Years before the murders, in 1978, a psychologist determined that Jennings had an IQ of 65 and “mild organic brain dysfunction,” but accused Jennings of exaggerating his symptoms. Randy Schaffer, one of Jennings’s appellate attorneys, told The Appeal that his intellectual disability claim and his background as a neglected child were not appropriately raised by his trial counsel or considered during sentencing. State and federal appellate courts agreed with the DA’s office that Jennings was not intellectually disabled.

“This was a great opportunity for her to act like she was tough law and order, pro-police prosecutor and she put the pedal to the medal and forced the execution,” Schaffer said of Ogg. As for being a reformer, he said Ogg is “all talk, no action.” 

Ogg attended Jennings’s execution—the first this year—on Jan. 30. “Robert Mitchell Jennings has been on death row longer than Officer Howard was alive,” Ogg said in a statement. “The time has come to end the suffering of Officer Howard’s family.”

Ogg’s office is also defending the death sentence of Harlem Lewis, despite concerns about his intellectual disability, and has opposed his attorney’s efforts to hold an evidentiary hearing. Lewis, who was sent to death row in 2014 for the murders of Terry Taylor and Bellaire Police Department Corporal Jimmie Norman, has an IQ of 71, according to court filings. In the prosecutors’ proposed findings of facts, they argued that Lewis did not qualify as intellectually disabled for a number of reasons, including that he did well in school and that his IQ is in the range of borderline intellectual disability. 

“It’s not like we had a hearing and we lost,” said Ben Wolff, Lewis’s attorney and director of the Office of Capital and Forensic Writs. “It’s been dragging on. Instead of having a hearing about whether Mr. Lewis is intellectually disabled, we’ve had a lot of litigation, without even being allowed into court and given a fair chance to prove our case.”

Ogg first joined the Harris County DA’s office in 1987, serving under District Attorney Johnny Holmes, who helped establish Harris County as a national leader in death sentencing: Over the course of Holmes’s 21-year tenure, the county sent more than 200 people to death row. In the mid-1990s, as many as 15 people were sentenced to death each year in Harris County, according to the Texas Coalition to Abolish the Death Penalty. Holmes personally tried the case against Robert Jennings. 

Ogg opposed capital punishment when she began her work as an assistant district attorney, she told the Texas Observer in 2017, but later came to support it. In Holmes’s office, she prosecuted Theodore Goynes, who was sentenced to death in 1991. In 2004, a U.S. district judge ordered that Goynes, whose IQ ranges from 65 to 77, should be released from prison or resentenced because the jury that sentenced him to death was not instructed to take his intellectual disability and mental illness into account. He is currently serving a life sentence. 

I consider myself smart on crime, and I am part of the national reform movement

Harris County District Attorney Kim Ogg in the Texas Observer

From at least 2002 until 2007, Ogg served on the board of directors of the Houston-based Justice for All, a pro-death penalty victims’ advocacy group. As president of Justice for All, Dianne Clements opposed the Supreme Court decisions banning the execution of people with intellectual disabilities and juveniles. “We’re not talking about children, we’re talking about brutal murderers with no regard for human life!” Clements told Mother Jones in 2006. Asked about Ogg’s affiliation with Justice for All and Clements’s views, Kolenc, the DA office spokesperson, declined to comment.

In 2016, more than two decades after she left the DA’s office, Ogg ran for district attorney as a reform-minded candidate and won. “I consider myself smart on crime, and I am part of the national reform movement,” she told the Texas Observer during her first year in office. She still believes in the death penalty, she said, but does not think it’s a deterrent. “It’s just pure retribution,” she told the magazine.

While in office, Ogg has taken some actions in line with her campaign statements. She has opposed the execution of Bobby Moore, a death row prisoner with an IQ of about 70. (In 2017, the U.S. Supreme Court found that the Texas Court of Criminal Appeals was using “wholly nonclinical” factors to determine intellectual disability in capital cases, and stopped Moore’s execution.) She has also agreed to remove several people from death row and resentence them to life. And since her tenure began, one person has been sentenced to death in Harris County, but he was not prosecuted by Ogg’s office.

Brandon Garrett, author of “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” said these developments reflect a “remarkable change” from the Harris County of the 1990s. “Death sentencing has slowed down in Harris County really over the past 15 years,” part of a  “national pattern” of fewer death sentences, he said. 

Although death sentences and executions have slowed in Texas as a whole, the state remains an outlier in its use of capital punishment, according to an August analysis by the Death Penalty Information Center. More people have been scheduled for execution in Texas in the last five months of this year than the rest of the country combined, according to the study. 

Of the 13 who have received execution dates, eight, including Johnson, “exhibited significant mental or emotional vulnerabilities as a result of intellectual impairments/brain damage, serious mental illness, or chronic trauma,” according to the analysis. Two had strong claims of innocence, according to the report, including Innocence Project client Larry Swearingen, who was executed last month. “Lord forgive ’em,” Swearingen said in the death chamber. “They don’t know what they’re doing.”

Ogg’s office currently plans to pursue death sentences in eight cases, according to the Texas Coalition to Abolish the Death Penalty. Last month, a trial began in Harris County for Ronald Haskell, who is charged with capital murder. 

“She’s continued to seek death. It really does make it difficult to view her as a reformer if she’s filing eight new cases for execution,” said Jay Jenkins, the Harris County project attorney with the Texas Criminal Justice Coalition. “That’s not reform.” 

The district attorney’s record on capital punishment is “very mixed and perplexing,” said Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty. In many ways, she said, Ogg has limited the use of capital punishment in Harris County. “That said, it is of grave concern to me and other criminal justice reform advocates that there are currently eight cases, at least as far as we know, where she has announced her office plans to seek the death penalty,” said Houlé.

Ogg’s decision to pursue death in eight cases recently drew criticism from United Methodist pastor Susan Buchanan, a former board member of Houlé’s organization. “Prosecutors elsewhere refuse to waste precious resources demanding this morally and economically indefensible pursuit,” Buchanan wrote in the Texas Tribune. “Why is Harris County pursuing the opposite course?”

District attorneys play a critical role in slowing executions, and, ultimately, abolishing the death penalty, Houlé told The Appeal. In July, for instance, Philadelphia District Attorney Larry Krasner asked Pennsylvania’s Supreme Court to declare the state’s application of the death penalty unconstitutional, putting him at odds with the attorney general’s support of capital punishment. 

“The district attorney alone can make the decision whether or not to seek death in a case that is capitally charged,” said Houlé. “They are the linchpin of the criminal justice system.”