Prosecutors Said Another Man Was the Shooter. Oklahoma Might Execute Emmanuel Littlejohn Anyway.

Shortly before 11:30 a.m. on Aug. 7, Emmanuel Littlejohn appeared on a screen wearing red prison scrubs over a white long-sleeve shirt. Still wearing handcuffs, he raised his right wrist.  He stated his full name and the prisoner number he had been assigned by the Oklahoma Department of Corrections more than three decades earlier.  

For more than two hours, Littlejohn had watched a video feed of the clemency hearing to determine whether the state would recommend the governor call off his Sept. 26 execution. Sitting before the state’s Pardon and Parole Board, attorneys for the state had already described, in detail, the murder that landed the 52-year-old  on death row. The lawyers attacked his character and accused him of a violent rape—charges that prosecutors had previously dropped against him. The victim’s family members talked about the lingering impact of their loved one’s death decades after he’d been killed.  

Now, Littlejohn was allotted 20 minutes to speak.

“I want to speak to the Meers family. I have caused y’all so much hurt, and I’m sorry,” he said, alternating between looking down at a paper and up at the camera. “I know that you have heard from a variety of people who think I deserve to die. They don’t know me. They were not there. I know that I didn’t kill Mr. Meers. I’ve admitted to my part: I committed a robbery that had devastating consequences. But I repeat, I did not kill Mr. Meers.”

He spoke for just three and a half minutes. A few minutes later, the board issued a 3–2 recommendation that Oklahoma Gov. Kevin Stitt spare Littlejohn’s life. But in the seven weeks since the clemency hearing, Stitt has offered little indication of whether he will save Littlejohn’s life.

In 1992, Littlejohn and Glenn Bethany robbed the Root-N-Scoot convenience store in Oklahoma City. During the robbery, one of the men shot and killed store owner Kenneth Meers with a single bullet. The physical evidence in the case was inconclusive. Oklahoma’s felony murder law, which holds defendants responsible for death that occurs during a violent felony, allowed both men to be charged with murder. At Bethany’s 1993 trial, the prosecutor argued that Bethany had fired that shot. He was convicted of robbery with a firearm and first-degree murder. The next year, the same prosecutor told the jury that Littlejohn, not Bethany, pulled the trigger. He, too, was convicted of robbery with a firearm and first-degree murder. The jury found Littlejohn had acted with malice, a harsher determination that was not made in Bethany’s case. 

Only Littlejohn was sentenced to death.

Since 1994, the year Littlejohn was convicted of homicide, 133 people on death row have been exonerated. Many others have maintained their innocence until the moment they are executed. During that time, public support for capital punishment has dropped from an all-time high of 80 percent to 53 percent. Prosecutors now seek the death penalty far less frequently. That drop in support, opinion polls show, is fueled by concerns that capital punishment is not being adjudicated fairly. 

Experts warn that cases like Littlejohn’s—in which prosecutors presented two different versions of events in two different trials—undermine public faith in American criminal courts.

“It’s just a nonsensical idea that we could convict multiple people of the same crime, and here, of course, we’re considering executing someone for a crime someone else has been convicted of committing—it’s just craziness,” Robin Maher, the executive director of the Death Penalty Information Center (DPIC), told The Appeal. Littlejohn’s is “a great example of a case that would never be turned to death today.”

When then-Oklahoma County District Attorney Robert Macy argued his first capital murder case in 1981, Littlejohn was just nine years old. Macy won, condemning Clifford Henry Bowen to death despite 12 witnesses testifying that he had been 300 miles away and in another state during the three homicides in question. At trial, Macy argued that Bowen could have taken a private jet from Texas to Oklahoma City in time to commit the crimes. But he offered no evidence for this theory. Bowen’s lawyers found out in 1983 that the prosecutor had withheld evidence implicating a South Carolina police lieutenant who was suspected of being a hitman, and Bowen’s conviction and sentence were thrown out three years later. The case rose to the U.S. Supreme Court, which ordered Bowen released on bond after five years on death row. 

After the SCOTUS order, Bowen’s lead attorney said the conviction and sentence were “probably the greatest miscarriage of justice in Oklahoma history.”

Between 1980 and 2001, Macy sent 54 people to death row, making him the deadliest DA in the United States. Three people convicted in Oklahoma County, including Bowen, were later exonerated. Prosecutorial misconduct was found in one-third of Macy’s successful death penalty cases, and judges regularly accused him and his staff of Constitutional violations. In 2002, a federal appeals court wrote that Macy’s “persistent misconduct” had “without doubt harmed the reputation of Oklahoma’s criminal justice system and left the unenviable legacy of an indelibly tarnished legal career.”

By the time Littlejohn sat before one of Macy’s DAs to be tried for murder, he had endured a tumultuous childhood and adolescence. His mother, who was only 15 when Littlejohn was born, was addicted to drugs. 

“Growing up, he often lived with his paternal grandmother, Augustine, who ran a ‘good time house’ of gambling, prostitution, and drug use out of the home to help make ends meet, and his father, who was chronically ill with polio,” Littlejohn’s lawyers wrote in his clemency packet. “Manuel’s father was volatile and exposed his son to violence early on, once drawing a gun on him when he was only a child.” 

When Littlejohn was 15, he learned to hotwire cars and began stealing them. Just weeks after his release from a juvenile facility for these thefts, he conducted an armed robbery. Shortly after he was let out of prison for that crime, he and Bethany held up the Root-n-Scoot.

At trial, a prosecutor argued that “the testimony of the people inside the store [was] the only person who ever had a gun that night was Emmanuel Antonio Littlejohn.” The jury decided this was true, leading to the harsher conviction of murder with malice. But the jury had not been told that the same prosecutor had argued a contradictory theory in Bethany’s case. During that trial, the prosecutor said that neighbors had seen the taller of the two men pointing a gun into the store. That would implicate Bethany, who was also six years older than Littlejohn. The county attorney also stated that, because Littlejohn was smaller than Bethany, the older man was likely in control of the situation. 

“It’s outrageous if you look at it. I mean, they use the exact same argument against both men when it was an impossibility,” Emma Rolls, whose federal defender office has represented Littlejohn, said. “It’s necessarily contradictory.”

At the August clemency hearing, an attorney from the state said that prosecutors had argued that Bethany merely “could have” been the shooter. A district court had previously agreed with this description, writing in a 2010 opinion denying Littlejohn’s request for habeas corpus that “the prosecutor made no outright assertions that Bethany was the shooter.”

In an email to The Appeal, the state attorney general’s office reaffirmed its desire to kill Littlejohn.

“The Oklahoma Attorney General’s Office stands squarely in support of Emmanuel Littlejohn’s execution, a punishment that caps years of careful appellate review and the evenhanded verdicts of two separate juries,” a spokesperson wrote. “Not only is Littlejohn’s sentence the legally correct outcome, it will also mark the delivery of final justice for the memory of Kenny Meers, a hardworking Oklahoman who suffered a horrific end for the sake of a few hundred dollars.” 

Attorneys who work on death penalty cases told The Appeal that it’s unclear how many people have been sentenced to death after prosecutors argued inconsistent theories at trial. But a 2017 investigation from The Marshall Project found more than four dozen cases in which defense attorneys across the country said that prosecutors had given contradictory theories about who committed a crime. Twenty-nine defendants in such cases were sentenced to death. 

The Supreme Court has not stated that inconsistent prosecutorial theories violate the U.S. Constitution. The court has said little about how to handle such cases. In 2005, the justices considered whether John David Stumpf had had his rights violated when entering a guilty plea in Ohio for aggravated murder, which meant he would be eligible for the death penalty. When his accomplice was later tried, the prosecutor presented new evidence that implicated Stumpf’s the other man in the fatal shooting. The U.S. Supreme Court, however, dodged ruling on whether the prosecution had violated Stumpf’s rights by arguing that two different people committed the killing, though some justices hinted it could have been a due process violation. The nation’s highest court instead kicked that question back to the Sixth Circuit Court of Appeals.

In 2011, the appeals court rebuked the state’s prosecutors and ordered that Stumpf receive a re-sentencing hearing.

“We cannot allow the prosecution to play so fast and loose with the facts and with its theories,” two of the three judges on the panel wrote in a decision that found the defendant’s due process right had been violated by the “duplicity” of the state. “To allow a prosecutor to advance irreconcilable theories without adequate explanation undermines confidence in the fairness and reliability of the trial and the punishment imposed and thus infringes upon the petitioner’s right to due process.”

After considering the evidence further, the court issued an en banc ruling two years later determining that Stumpf’s rights had not been violated because “all of the available evidence was at all times presented to all of the courts involved.” 

Without SCOTUS guidance, appeals courts have not established a solid precedent that holds contradictory prosecutions violate defendants’ rights. In an email, the DPIC’s Maher told The Appeal that other courts have found that contradictory prosecutions violate the 14th Amendment. More commonly, though, challenges to these contradictory prosecutorial arguments have fallen short. 

“Some rulings have acknowledged that such prosecutor behavior could be a due process issue but held that the prosecutor’s actions did not prejudice the defendant because the jury would have convicted him anyway,” Maher wrote.

Littlejohn’s trial was also plagued by a series of other legal issues. His attorneys, for example, admitted their client’s guilt before the jury was even selected. His defense only called one witness during the proceeding’s guilt phase. 

That witness, Littlejohn’s mother, wonders if she could have saved her son. 

“If I’d been the black woman that had a little bit of money, my son wouldn’t be on death row,” Ceily Mason told The Appeal, noting that she has not touched drugs since the day Littlejohn was sentenced to death. “I didn’t have the kind of money to get a good lawyer. And so Emmanuel got what he got.”

At his first trial, Littlejohn was sentenced to death based on three aggravating factors: previous violent felony convictions; that he posed an “ongoing threat” to society; and that he had knowingly created great risk of death to more than one person. His lawyers appealed to the Oklahoma Court of Criminal Appeals, which overturned his death sentence, finding that there was little basis for two of the three aggravating factors. 

At his 2000 resentencing trial, the jury sent the judge a note asking whether it was “possible to change the verdict of life without parole to with parole after our verdict and without another jury verdict?” Littlejohn’s lawyers argued in their clemency packet that this question indicated the jury was confused about sentencing protocols and concerned that Littlejohn could go free if given life without parole. The judge declined to answer the inquiry. The jury once again sentenced Littlejohn to death.

Multiple jurors have now said they did not understand the sentencing guidelines. In a sworn affidavit, one juror from the 1994 trial wrote that she decided to sentence Littlejohn to death because she “felt the alternative was that he would get loose” if given another punishment. A juror from the 2000 resentencing hearing said that, in retrospect, she “would not vote for death.” 

This shift in attitude aligns with waning public support for the death penalty. In the decades since Littlejohn’s conviction, researchers have achieved a greater understanding of how childhood trauma can influence brain development. And prosecutors other than Macy may not have even considered seeking the death penalty. 

“In the last fifteen years, no one has been sentenced to death for a robbery-murder involving similar facts to this case,” Littlejohn’s lawyers wrote to the pardon and parole board.

Last year, Littlejohn had a stroke that left him largely confined to a wheelchair. He also has a neurological disease that impacts his mobility. But the state still argues Littlejohn is dangerous. 

“We are here today because Emmanuel Littlejohn senselessly murdered Kenny Meers 32 years ago, and that murder was preceded by many years of violent and criminal behavior,” a lawyer from the attorney general’s office said at the August clemency hearing. “Today, we will demonstrate that Littlejohn is undeserving of executive clemency, not only because of his brutal murder of Kenny, but also because of his violent nature and continued lack of remorse.” 

The state leaned heavily on acts Littlejohn committed when he was younger. But Littlejohn’s lawyers said he hasn’t had a violent offense in 20 years. 

“Second chances work for some people, but Littlejohn isn’t one of them,” the state argued. “The time for his punishment has arrived.”

Since Gov. Stitt took office in 2019 the board has voted to spare the lives of three other men. Stitt only commuted the sentence of one person, Julius Jones. The governor issued his decision four hours before Jones’ scheduled execution. Last year, Stitt waited until after Phillip Hancock’s execution was scheduled to begin to deny clemency.

“Governor Stitt has met with those involved in the case, including family members, prosecutors, victims, and the defense,” a spokesperson said in an emailed statement to The Appeal. “The Governor has not reached a decision in this case yet, and he continues to prayerfully and carefully considers the facts, evidence, and recommendations from the Pardon and Parole Board.”

Littlejohn’s loved ones say he’s spent his time trapped with his thoughts in a medical room due to his declining health.

“He is in a like white room, you know, with no television, nothing like that, and he’s got his pad,” Jeff Hood, Littlejohn’s spiritual advisor, told The Appeal, adding that Littlejohn said a nurse only came by once a day to check on him. “He’s basically looking at the ceiling most of the time contemplating his own mortality.”

That time has been excruciating for Littlejohn’s family, as well. During that time, Mason and other family members have watched her son grow up behind bars. Every week, the family drives from Wichita, Kansas, to see Littlejohn at the Oklahoma State Penitentiary. Littlejohn now has three grandchildren.

Much of their time has been spent praying. 

“For them to kill my son is ridiculous,” Mason told The Appeal. “I believe in justice, too. What I don’t believe in is vengeance. And that’s what this is. This is vengeance. It scares me to death that they might kill my son for something that he did not even do.”