Missouri's Death Row Cases
by Larry M. May1
This article is based on a study of all death row cases in Missouri as of September 2002. Serious structural problems with the administration of the death penalty in Missouri are identified. Some defendants defended themselves and effectively offered no defense. And some defendants were the victims of severe prosecutorial misconduct. Other defendants were merely accomplices, not those who killed. Most significantly, in a number of cases only circumstantial evidence was the basis of conviction, and in other cases new evidence has surfaced that casts considerable doubt on the conviction. All of this has led to a frustrating situation for defendants, their lawyers, and the judges of Missouri's Supreme Court. The author calls for a commission to study these problems.
Missouri is a state with a better-than-average capital punishment system. Unlike Texas, or even New York, Missouri provides free public defenders for each capital murder case and for appeals all the way to the state Supreme Court. And the public defender system has a special office (actually divided into three regional branches across the state) dealing exclusively with capital cases. The lawyers in this Capital Defense Unit handle only three or four cases at a time, with often a year or more to prepare a case, and are generally recognized as some of the best defense litigators in a reasonably well-funded public defender system.
In addition, while local prosecutors decide which case should be a death penalty case, once this decision is made the state attorney general's office provides assistance from its well-heeled core of prosecutors, known as the "death squad," who specialize in capital cases as well. Finally, the Supreme Court of Missouri is not unrepresentative of the cross section of the demographic pattern of the state, containing liberals and conservatives, as well as a mix of races and ethnicities.
All of this makes Missouri a good test case for determining whether the death penalty is working in America. If it isn't working here in Missouri, then it surely is not working in Texas, Oklahoma, and Illinois, states that have not committed the resources or built up a prosecutorial and defense bar that is so highly specialized in death penalty litigation. Yet, there are very serious structural problems with the administration of the death penalty in Missouri. There is rampant prosecutorial misconduct. Too many defendants represent themselves, or are inadequately represented. And in too many cases, death row inmates merely had circumstantial evidence against them or were merely accomplices to murder.
There are currently 67 men (and no women) on death row in Missouri. I began this study with 68 death row cases, but one person has been executed during the interval. After examining each of these cases, there appear to be serious problems with the administration of the death penalty in Missouri, a state that prides itself in not having anyone on death row who does not deserve to be there. Indeed, the governor's top aids said as much when recently asked why they were not willing to follow their neighbor state of Illinois in declaring a death penalty moratorium and commission to study the death penalty.2 What follows is a brief in behalf of such a moratorium in Missouri, despite what the governor's staff thinks. But given the national debate on the death penalty, this article is also about the prospects of there being a fair administration of capital punishment in America.
All of what follows is based on the opinions of the Supreme Court of Missouri as it reviewed each of the 67 death row cases, ultimately rejecting the defendants' appeals. In each case, the Court begins by stating that it is reviewing the record in the light most favorable to the prosecution, as mandated by Missouri statute. That Court understands its mandate quite literally. In State v.Rousan,3 the Court explained its standard of review as follows:
Evidence and all reasonable inferences therefrom that support a finding of guilt are considered as true. Conversely, the evidence and any inferences to be drawn therefrom that do not support such a finding are ignored.
By sticking to the accounts of these capital cases drawn from this appellate record, which considered the facts in the light most favorable to the prosecution, an attempt is made to offset the reasonable objection that I may simply be retelling the stories of these death row cases from the standpoint of one biased against the death penalty. I do think there are moral problems with the death penalty. But I am guided more by the shock expressed by many, including members of the Supreme Court of Missouri, about the flaws in our death penalty system.
I. When a Defendant Defends Himself
Of the 67 men on Missouri's death row, several defended themselves at trial. In all these cases, public defenders tried to talk the defendants out of this strategy. In all these cases the judge allowed the defendants to represent themselves. Two immediately pleaded guilty, and were sentenced to death by the judge. In a third case, State v. Franklin,4 the defendant asked for a jury trial, but then said little at his trial and attempted to abandon all future appeals.5 It is not surprising that their appellate cases proceeded quickly, with points on appeal largely dismissed because no foundation for the points was raised by objections at trial by these defendants. I will later return to this important issue of basis of appeal. Suffice it here to say that the prosecutors seemingly tried their best to be restrained but were still clearly adversarial, whereas the defendants either disengaged or actively aided the prosecution, as when one defendant told the jury in closing argument that if the jurors didn't vote for death he would come and get them.
Much of what is wrong with the system of prosecuting capital cases in Missouri can be seen in the fourth of the cases involving a defendant who defended himself, the case of State v. Armentrout.6 Here is a summary of some of what occurred at trial, admittedly edited, but nonetheless taken directly from the Supreme Court of Missouri opinion that is supposed to view the evidence in a light most favorable to the prosecution. In March of 1995, Charles Armentrout and an associate were accused of killing Armentrout's grandmother, Inez Notter, in a botched robbery of her house inspired by their need for money for drugs. The prosecution's story, seemingly believed by the jury, was that Armentrout "and a friend, Rick Lacy, went to Mrs. Notter's house." "Acting together, they beat [her] to death with a . . . baseball bat." Her wounds indicated that she tried to stave off the attacks, but that ultimately she succumbed to the sheer force of the violence directed against her, where it appeared that someone had stomped on the entire left side of her body, fracturing her jaw and eight ribs. Armentrout was later arrested when he was found in possession of forged checks from his grandmother's account.7
The evidence against Armentrout appeared to be very strong. Bloodstains that were consistent with his grandmother's DNA profile were found in Armentrout's bedroom8 and there was DNA – possibly Armentrout's – under the fingernails of his grandmother.9 Most significantly of all, Armentrout made a videotaped statement in which he admitted that he and Lacy tried to knock his grandmother unconscious and to steal her checkbook, thereby admitting that he and Lacy had indeed beaten Mrs. Notter. He said he returned to his grandmother's house the next day to clean up the blood, and then tried to cash the forged checks he had stolen from her.10
But two things give one pause about this evidence. First, the DNA evidence from the fingernail scrapings was not preserved, so the defense's analysts could not test the scrapings to establish whether it was Armentrout or Lacy that attacked Mrs. Notter.11Second, in Armentrout's confession he said he did not intend to kill his grandmother and that it was Lacy who actually struck her with the baseball bat. Yet, because Armentrout defended himself, the significance of potentially exonerating comments in the confession was not driven home to the jury. Indeed, Armentrout did not "present any guilt-phase evidence."12
A good defense lawyer would certainly have made much of these two problems with the evidence. But Armentrout decided to defend himself. While conducting his defense, he was forced to remain in his prison uniform with hands and legs shackled. Everywhere Armentrout went, he was closely followed by deputies. The Supreme Court of Missouri says that this was regrettable but, since Armentrout did not object, it was forced to review the matter according to the standard of determining whether manifest injustice has occurred.13 Indeed, in considering other issues on appeal, the Supreme Court of Missouri says over and over that since no objections were raised at trial, the defense now must show that manifest injustice resulted. As is well recognized, this standard is so difficult to meet that appellate courts must give trial courts very wide discretion.
Armentrout did not offer any guilt-phase evidence and rarely said anything at all in his own defense.14 Nor did he try to convince the jury that the true killer was Lacy, and left the jury to consider only the story offered by the prosecution. Armentrout was not even provided with copies of the depositions taken by the prosecution until two weeks before the trial – normally such material is in the hands of defense lawyers months in advance.15 He did not preserve any of the obvious objections to the state's case for later appeal, or provide the jury with a counter adversarial presentation in comparison with which they could determine whether the prosecution had carried its burden of proof.
Reading the accounts of the trial of the Armentrout or Franklin cases, even in the light most favorable to the prosecution, is like seeing criminal justice in a fun house mirror – distorted out of all recognizable shape. The right side, the side of the prosecution, is much larger than normal; whereas the left side, the side of the defense, is so much smaller than normal that it virtually disappears altogether. Did Armentrout murder his grandmother? I have no idea. But I would suggest that the jury had no idea either. And the appellate courts, as is almost always true, refused to reconsider the guilt or innocence of the defendant, assuming that the trial must have been fair since no one objected. Yet, in the fun house mirror version of justice that occurs when defendants defend themselves there is little reason to think that an adversarial trial procedure will produce a fair result.
My point here, and elsewhere, is not to establish that Charles Armentrout or Joseph Franklin are not guilty, but rather to show that the structural flaws in the death penalty administration make it highly likely that Missouri will execute the innocent. When defendants are allowed to defend themselves in highly adversarial proceedings, against our state's most seasoned prosecutors whose very careers hang on whether they can get convictions in death cases, the deck is so clearly stacked against the defendants that there is no hope that the adversarial system will more likely than not reach the truth of the matter. Adversarial justice requires two equally competent lawyers duking it out. When only one adversary is competent, as an adversary, then the system literally breaks down, and there is little that can be done later to fix it. The question that is asked is whether the defendant is competent to assist his counsel. When there is no counsel, the question should be whether the defendant is competent to be an adversary against the state's top prosecutors. It is unclear that most lawyers would ever meet this standard, let alone the non-lawyers who stand accused of capital murder.
Of course there is a very serious problem here in that it appears that the only remedy is to deny defendants the right to defend themselves. This was one of the things that rankled Armentrout as he continued to insist that he was being pressured not to exercise his right to defend himself.16 But there are other ways than denying defendants this right that will get us out of this predicament. One possibility is to require true adjunct counsel. While the defendant gets to present evidence as he sees fit, adjunct counsel would be allowed to make objections to the prosecutor's offer of evidence. In this way, objections to the prosecution's case, which almost always turn on highly technical matters of the law of evidence, will be preserved for appellate review despite the lack of knowledge of evidence rules, and hence the lack of objections, on the part of defendants who defend themselves. Without some such remedy, the current system of death penalty administration is hopelessly flawed in cases where defendants defend themselves.
II. When Prosecutors Break the Rules
Another way that the judicial system can break down in capital cases is when there are two true adversaries but when one of them bends or breaks the rules. The most startling thing in these 67 death row cases is the enormous amount of prosecutorial misconduct that one finds throughout. This is not merely my opinion. Trial judges and the Supreme Court of Missouri have criticized, chastised, and even fined these prosecutors for their sometimes brazen attempts to secure death penalty verdicts at any cost. The Supreme Court of Missouri is forced to go to great lengths to explain the behavior of the prosecutors. For instance, in State v. Bucklew,17 the prosecutor introduced into evidence a child's artwork that was splattered with blood. The Supreme Court of Missouri says that this was proper since the artwork was introduced to show where the victim was at the time of the killing.18 The prejudicial effect of this evidence is manifest, but since the issue was not preserved at trial, the Supreme Court of Missouri seems content to defer to the trial judge who saw the evidence presented first hand.
What one finds, time and again, is that prosecutors compare defendants to such notorious individuals as John Wayne Gacy, Ted Bundy, Charles Manson, and even Adolph Hitler. In one case, State v. Johnston,19 the prosecutor described the defendant as an animal. The Supreme Court of Missouri said that this was not a basis for reversal since the characterization of the defendant "is supported by evidence."20In another instance of prosecutorial misconduct in this same case, the Supreme Court acknowledges that the trial court erred in overruling defense counsel's objection to the prosecutor's "ill-considered words," but sees no evidence that the jury relied on it.21 Finally, also in the Johnson case, in closing argument the prosecutor said: "There sits Satan. There sits the embodiment of evil." In the trial, an objection was made, and the trial judge sustained the objection with the instruction for the jury to disregard the prosecutor's remark.22 But surely this did not cure the error, and couldn't. Once the jury has heard the prosecutor's intentionally inflammatory remark, it could not simply disregard the remark.
In State v. Clemons,23 a statement by one of the few prosecutors named in these cases compares the defendant, Reginald Clemons, to both Charles Manson and John Wayne Gacy. An objection is made and sustained by the trial judge. In closing arguments, the prosecutor again makes the same comparisons. This time the judge expresses outrage and, in a separate proceeding, the court found the prosecutor guilty of criminal contempt for his deliberate violation of the court's order and fined him $500. The Supreme Court of Missouri says that the trial court's remedy was sufficient to cure the error.24 But how does a subsequent fine cure the possible harm to this defendant during trial? Once a jury twice hears such inflammatory rhetoric, prosecutors know that it will stick in the jurors' heads. And since prosecutors also know from experience that fines, not reversals, are what they normally risk, there is little incentive for them not to engage in similar tactics again, as we see from the record where the prosecutor used this comparison in other capital cases (concerning the other defendants in the Chain of Rocks case).
In the case of State v. Hall,25 the prosecutor began his closing argument by starting to tell the jury a story. He said, "When I was a young boy, I had a puppy and his name was Beauregard. He was about this long."26 Hall's attorney objected but was overruled. Since Hall did not object again, the following highly inflammatory story is, according to the Supreme Court of Missouri, reviewable only for plain error according to the manifest injustice standard, a much more difficult standard to meet than if there had been further objections. Here is the rest of the story the prosecutor told to the jury, without subsequent objections:
Beauregard came from an animal shelter, and he was a wonderful animal. He would follow you everywhere. He would stay on a little leash. He would come and he would wag his tail when you got home, pant and jump on you, and I found out Beauregard had distemper, a disease that affects him, and the vet called me, I had to look up a veterinarian. The veterinarian seemed like he was ten feet tall, and the veterinarian said Beauregard had distemper. He will suffer brain damage. He may live through this, but he will never be the same. The right thing to do is have him put to sleep, and as a young child, I was – it was a tremendous decision, but there was only one right thing to do. You are faced with the tremendous decision, but there is only one right thing to do, and that man, this crime deserves the death penalty.27
Immediately after quoting this story in full, the Supreme Court of Missouri says: "This Court rebukes the prosecutor's shameless ploy to tug at the heart strings of the jurors with a story about himself . . . comparing and contrasting the decision to end the life of a child's beloved pet with the decision to sentence to death a repeat offender the jury had just convicted for murder in the first degree."
28 Yet, the Court, even in so blatant an attempt to get the jury to decide on the basis of emotion rather than reason, does not reverse the verdict since it says that it fails to see that the prosecutor's actions showed manifest injustice.
29
Let me mention one more case from the dozens that involved serious prosecutorial misconduct. This is a case,
State v. Storey,
30 where the system worked in my opinion, in that serious prosecutorial misconduct resulted in a reversal of the penalty phase verdict and a remand for a new penalty phase hearing. But as we will see, the Court only did so in the face of four classic examples of prosecutorial misconduct, all in the same closing argument. Here is a summary:
1) "Arguing Facts Outside the Record"
Prosecutor said: "This case is about the most brutal slaying in the history of this county." Yet the prosecutor offered no evidence to establish this conclusion, seemingly establishing himself as an expert witness.31
2) "Personalization to the Jury"
Prosecutor said: "Try to put yourself in Jill Frey's [the victim's] place . . . to have your head yanked back by its hair and to feel the blade of that knife slicing through your flesh." This comment clearly was meant to inflame the emotions of the jury.32
3) The Jury's Killing the Defendant is Justified.
Prosecutor said: "Would he [the victim's husband] be justified in taking the Defendant's life? Yes. Without question." This seemingly encouraged vigilante justice.33
4) "Weighing Value of Lives"
Prosecutor said: "The right of the innocent completely outweighs the right of the guilty not to die, and, so, it comes down to one basic thing. Whose life is more important to you? Whose life has more value? The Defendant's or Jill Lynn Frey's?" This comparison is an unfair attempt to appeal to the emotions of the jury.34
In the end, though, the Court in this case only reversed because Storey's appellate lawyer claimed that the lack of objection to this outrageous behavior was manifest ineffective assistance of counsel, and hence violated the constitutional rights of the defendant. Hence, the Court was not reviewing for plain error but for deprivation of constitutional rights.
Nonetheless, there is a very unusual and very strong dissent in this case. The dissenting judge argues that it is a mistake to second-guess the trial judge, especially concerning closing arguments in penalty phase hearings.35 Perhaps unwittingly, this dissenting judge puts his finger on one of the crucial problems with the administration of the death penalty in Missouri when he says: "I do not believe that jurors are so ignorant that they forget that the prosecutor is advocating a position or that they are so easily swayed by rhetoric that they abandoned their duty to weigh the evidence carefully. . . ."36 If this were true, then the various rules against personalization and emotion-mongering would seemingly be unnecessary. But these important safeguards against injustice, even as they continue to exist on the books, seem not to be appreciated by all of the members of the Supreme Court of Missouri.
The dissenting judge in the Storey case then cites Aristotle to buttress his argument. He quotes: "Choice is either intelligence motivated by desire or desire operating through thought."37 This is meant to illustrate the longstanding idea that emotion and reason can cohabit. Appeals to emotion do not rule out rational reflection. Indeed, according to this dissenting judge, logic is brought to bear on our emotional responses and either validates them or invalidates them. Perhaps this is correct, but the jurors must be given room to apply reason. In the case of the story about the puppy, apparently there was not a dry eye in the jury. Since these shenanigans by the prosecutor occur in closing argument, they occur just before the jury is sent off to reach its verdict. When several hours later they return a guilty verdict, it seems likely that there was not enough time for the emotions stirred by the prosecution to be offset by the normal and slow-paced sense of reason.
The problem arises most graphically when defense lawyers, often not saints either, play by the rules and do not follow prosecutors in shamelessly appealing to the emotions of the jury. And here is what a truly adversarial proceeding would require – that for each instance of prosecutorial misconduct there was an equally egregious example of defense misconduct. But then, what would we be left with but dueling similes by lawyers trying to get the last emotional nettle into the jury so that in the early stages of deliberation the verdict might go their way before the members of the jury come to their senses. Without equal and opposite emotion dueling, it is too likely that juries will not make the right choice, to return to Aristotle's important insight.
Of course, the more reasonable remedy to this problem is to have serious sanctions applied against prosecutors who cross over the line. Consider an analogy with the "exclusionary rule" that disallows from trial any evidence that the police obtain by illegal means. Like this rule, we should have verdicts disallowed when there is serious prosecutorial misconduct. And appellate courts should go out of their way, as is done only rarely now, to name the offending prosecutor in their opinions. Few prosecutors are truly shameless, and there are serious ways to shame them or at least to penalize them concerning something they truly care about, their conviction rates. What Missouri needs are very serious sanctions against prosecutors who refuse to play by the rules, comparable to those against police who illegally obtain evidence. Five hundred dollar fines simply miss the mark.
III. When Accomplices Are Sentenced to Death
I next turn to an area that may not initially seem as clear-cut as the previous ones, namely cases where mere accomplices, that is those who did not actually do the killing, are sentenced to death. There are various men on Missouri's death row who were not the shooters (or stabbers or pushers), but merely the accomplices of those who actually did the killing. In effect, these men have been sentenced to death because someone else committed murder. Put this way, perhaps too simply, it is an odd result. We reserve the death penalty for the most heinous of criminals. In fact, the death penalty today is mainly restricted not just to murderers but to those murderers whose acts of murder are aggravated, such as those who torture their victims before killing them. Cases of those who engage in simple murder do not warrant the death penalty. So why do we also sentence to death those who did not even do the killing, and in some instances who were not even at the scene of the crime? What puts them on the same level as the aggravated killers who seemingly deserve the ultimate punishment?
One answer is that when two or more people enter into a common plan that has as its inevitable result that someone will be killed, then each of the participants in the plan should be equally guilty. This particular argument makes the most sense in the moral rather than in the legal domain. Those who engage in risky enterprises are equally morally blameworthy because the attitudes and dispositions of these people are all the same. It is only the good luck of some and the bad luck of others that one and not the other of them actually causes harm. In terms of their intentions, and their characters, all are equally blameworthy even if none of them causes harm at all.38 But this is not the way the law typically operates. We do not hold people to the same level of legal guilt based solely on similarity of faulty intention and character. Rather, it is the one who actually causes harm who is typically singled out for legal guilt and punishment, and the one who does not cause harm, while morally reviled, is not normally punished at all, or at most very lightly.
In so-called accomplice liability, the normal paradigm of distinguishing between legal guilt and moral blameworthiness is overturned. Both the shooter and the non-shooter who participates in some less serious fashion, the harm causer and the one who did not cause harm directly, are treated the same, namely, subject to the death penalty in Missouri. Let us consider the infamous Chain of Rocks killings in St. Louis.39 Twenty-year-old Julie Kerry and her sister, 19-year-old Robin, went to an abandoned bridge with their cousin. On the bridge they encountered four males, Antonio Richardson (then 16 years of age), Reginald Clemons, Marlin Gray, and Daniel Winfrey (then 15 years of age). These four males decide to rape and "hurt" the women. They took turns sexually assaulting the women, and then one of them, perhaps Clemons, pushed the two women off the bridge to their deaths in the river below. The male cousin of the Kerry sisters jumped before he could be pushed and survived the fall to become the state's star witness. According to his testimony, at the time of the murders, Gray was not even at the scene. Winfrey was probably also not present. Richardson was present, but perhaps did not push the women into the river. Clemons had no previous criminal record, and there was no evidence offered that he deliberated; and Richardson was both underage and borderline mentally retarded. Nonetheless, Clemons, Gray and Richardson were charged with capital murder, convicted, and sentenced to death.40 All are currently on death row. Yet, in all probability, Gray and Richardson are on death row even though at least one of them did not kill the Kerry sisters. If this is justified at all, it is justified on the theory of accomplice liability.
The decision to seek the death penalty in the case of the "non-pushers" seems like a bad idea to me. I agree that accomplices should be punished, but I fail to see why they deserve to be punished as much as the perpetrators of the harm in question. Again, the death sentence, if justified at all, should be reserved for the most serious of killers. Only one of these males was the killer of the Kerry sisters. The other three were accomplices with different levels of involvement in the events on the bridge. And in this case, the way that they were accomplices did not facilitate the murder of the Kerry sisters in any straightforward way, especially for Gray, who simply had walked off the bridge on his own, seemingly not willing to aid in the killing of the Kerry sisters.41
In these Chain of Rocks killings, there is also a serious question about the ages and mental status of these males. The prosecutor convinces the jury that they were all equally guilty, as if they had planned the event and convinced others to perpetrate it for them.42 But in this case, it is hard to get this theory to fit the facts. Perhaps ring-leaders should be punished severely for planning horrible crimes. But the only evidence of who was the ring-leader is that Gray declared that he wanted to hurt someone.43 Since sexual violence is then what he participated in, there is little reason to think that this comment initiates a plan to murder the Kerry sisters that all of the others participated in, or even contemplated as a likely result of what they were doing on the bridge. This seems especially true of Gray, who was not present on the bridge when the killings occurred.44
So, what is the remedy needed here? In my opinion, we should cease the practice of executing those who were merely accomplices. Those who are mere accomplices should not be subjected to the same severe punishment as those who actually engage in aggravated murder. And we should not allow prosecutors to "prove" aggravation against accomplices by citing aggravating actions by the actual perpetrators. This would be consistent with the general dictum that the punishment should fit the crime, here understood in terms of what was actually done. If we do not believe that even all murderers are deserving of the death penalty, then we can hardly justify the execution of those who were not killers at all. Even if deterrence would be accomplished, and no evidence of this is cited, these executions would not be justified on the current understanding of who can justifiably be executed. Accomplices, like the mentally retarded, simply do not deserve to be executed because they are not responsible for causing egregious consequences.
IV. When the Evidence is Unclear
There are several cases of men on death row in Missouri where the only evidence against them is circumstantial. In cases of this sort, there is a high likelihood that those who are on death row do not deserve to be there. There is also a notorious case, perhaps the most likely to be actually innocent, of Joseph Amrine who was convicted of killing another inmate on the basis of testimony of two other inmates.45 Those inmates have recanted their testimony. So to with the cases of purely circumstantial evidence we should add Amrine's case. Circumstantial evidence is generally defined negatively: not physical evidence like fingerprints or DNA evidence, and also not confessions or the testimony of eye-witnesses. When there is only circumstantial evidence, the "existence of principal facts is only inferred from circumstances."46
The problem with circumstantial evidence is that it merely tends to show that someone is likely to have committed the crime, and yet the standard is supposed to be that guilt is established beyond a reasonable doubt. In many cases where there is only circumstantial evidence, reasonable doubt has not been eliminated. And in capital cases, it seems reasonable to say that we want to be even more certain than normal that the person really did commit the crime for which we will now execute him, since after he is executed there will be no possibility of correcting for mistaken convictions. Indeed, in Cathleen Burnett's recent study of those who have already been executed in Missouri,47 evidence sometimes surfaces years after execution that might have lead to exonerations.
For a pure case of circumstantial evidence that is likely to be disproved years from now, consider the case of State v. Simmons.48 Simmons was accused of killing his girlfriend. He had no good alibi at the time, and initially he lied to the police about even knowing her, eventually admitting that he was in her apartment the day she was killed. He is found with pawn tickets for items of jewelry previously in her possession.49 And that seems to be the sum total of evidence that was proven in trial and on which the capital murder conviction was based.
It is certainly possible that Simmons did this killing. But there is quite a lot of room for doubt. Did his girlfriend give him this jewelry to pawn for her, or did he take it from her after her death. Did he find her at home alive or dead? Why did he lie to the police? Was he merely scared or truly trying to hide his guilt? I have no answers to these questions. But there also were no conclusive answers given at the trial. Without answers to these questions, has reasonable doubt of Simmons' guilt been eliminated? I remain very worried about this case. It seems this is a case the truth of which we are unlikely to know for many more years. If Simmons is executed, it will be too late for us ever to know what really happened.
I am even more worried by the Joseph Amrine and the Joseph Whitfield cases. In both cases, new evidence surfaced after trial that certainly seems to shed considerable doubt on the guilt of these individuals. In State v. Whitfield,50 two eyewitnesses came forward to say that they saw someone other than Whitfield do the shooting. And in the Amrine case, the two eyewitnesses have now revoked their testimony that had implicated Amrine as the killer of his fellow inmate.51 Why are these men still on death row? Why are the prosecutors in these cases so strongly resisting the clear likelihood that they prosecuted the wrong men? Something is wrong with a system that puts huge hurdles in the way of establishing actual innocence, especially since there is a very real possibility that those obstacles will result in people being executed before the new evidence of their innocence can be properly examined.
Here is one last brief related issue. There are several cases where judges rather than juries have imposed the death penalty. In the most egregious case, again the case of State v. Whitfield (where new evidence of exoneration was found after the trial), the jury voted 11-1 for life imprisonment.52 But the judge, acting because the jury was formally hung on penalty, imposed the sentence of death. So here we have a case that the overwhelming majority of the jurors thought should not deserve the death penalty. And then the two eyewitnesses change their testimony and implicate someone else as the killer. Yet, Whitfield is still on Missouri's death row. This is also true of Joseph Amrine. Are they actually innocent? I'd say at the moment that the better bet is that they are innocent than that they are guilty. It would be sad indeed if the better bet was also that they were more likely to be executed than not before their claims of actual innocence could be properly investigated.
Here again, there are various remedies to the systemic problem I have identified. The most plausible remedy is to have appellate courts consider claims of actual innocence. At the moment, appellate courts generally do not do so, and governors rarely feel qualified to do so. The idea is supposed to be that the trier of fact is in the best position to determine actual innocence and should not be second-guessed. But once a judge has made a verdict, it is unlikely that he or she will have the time or inclination to reopen a case, even when glaring new evidence surfaces. For this reason we should either encourage appellate courts to consider claims of actual innocence, or establish a special appellate court that thoroughly considers actual innocence, especially in cases where there was only circumstantial evidence to begin with, or where witnesses have recanted their testimony.
V. When the Judiciary is Frustrated
What should be inferred from this litany of cases where doubt, often significant doubt, about the fairness of the trial, or of the conviction and punishment, occurs? As I read through these cases, I saw the increasing level of frustration expressed by the Supreme Court of Missouri. The frustration is often expressed in the form that "we have many times carefully considered but rejected such an argument." But the frustration also seems to be based on the fact that each new case presents a host of prosecutorial misconduct that the Court must either condemn outright or try to explain away, as well as other problems with the system of criminal justice in Missouri. A similar phenomenon has been noticed in the habeas corpus appeals brought to the United States Supreme Court.53 It is simply too much to expect that high court judges can devote such a large percentage of their time to a very few death penalty cases and not become frustrated and ultimately jaded by the process.
Of course, if the time spent, no matter how frustrating, makes the death penalty administration nearly foolproof, then it would be worth it and state and federal Supreme Court judges would simply have to put up with the frustration. But, as I have tried to indicate, one possible source of such frustration is the inability to cure a system that is currently like a boat leaking from an increasing number of holes. As long as trials are adversarial in nature, there is a tendency for prosecutors, as well as defense lawyers, to bend and even break the very rules that are set up to try to make the system achieve fair results. Perhaps more ethics training will help, but I doubt it. Death cases really are different and should be treated that way. Perhaps what is needed is a completely different regimen for these cases, where prosecutors do not see death cases as "must win" cases. One possibility is to give more publicity than we currently do to those prosecutors who do not act in overly zealous ways and who have very low error rates, rather than being motivated solely by their conviction rates. I am not sure this will work either.
What seems most evident to me after reviewing all of Missouri's death row cases is that there are very serious problems with the administration of the death penalty in Missouri, and that very serious thought needs to be given about how to fix the system. Indeed, I have suggested some possible solutions. But some of these problems, like trying to cure prosecutorial misconduct with the judge's admonitions that the jury disregard a prosecutor's error- ridden remarks, do not seem to be remedies at all. In any event, what we need here in Missouri is a governor's commission composed of our brightest and most creative legal minds, to try to see if the system is fixable. In the mean time Missouri should declare a moratorium on trying to use such a flawed system to determine whom it will execute. My suspicion is that many other states that still retain capital punishment would not fare any better in an investigation of their death row cases. If so, then perhaps it is time to think of a national moratorium on the death penalty in America until the system can be fixed. The outgoing chief justice of the Illinois Supreme Court recently urged that all death row inmates in Illinois have their sentences commuted because of the flaws in the administration of the death penalty in our neighbor state. I don't know whether such a drastic remedy is needed in Missouri. But the governor of Missouri needs to consider more seriously how to fix the flaws in our system of death penalty administration that are obvious to anyone who looks at the record of those who are currently on death row in our state, even the record viewed in the light most favorable to the prosecution.54
Footnotes
1 Larry May is professor of philosophy at Washington University in St. Louis. He received his B.S. from Georgetown University in 1973, his Ph.D. from the New School for Social Research in 1977, and his J.D. from Washington University in 2000. He has just completed a book on international criminal law, tentatively titled "Crime and Humanity." He has previously authored five books and edited another nine books, as well as more than 50 journal articles, primarily in ethics and philosophy of law. He is a member of The Missouri Bar and accepts pro bono criminal appeals. E-mail: larrymay@artsci.wustl.edu.
2 Conversation on May 1, 2002 with Mike Hartmann, chief of staff, and Chris Bauman, assistant legal counsel, to Governor Bob Holden.
3 961 S.W.2d 831, 841 (Mo. banc 1998).
4 969 S.W.2d 743 (Mo. banc 1998).
5 Id.
6 8 S.W.3d 99 (Mo. banc 1999).
7 Id. at 103.
8 Id. at 104.
9 Id. at 110.
10 Id. at 104.
11 Id. at 110.
12 Id. at 104.
13 Id. at 107-08. It should be noted that the Supreme Court of Missouri said that "the trial court has discretion to impose security measures necessary to maintain order and security in the courtroom. . . . In this case more security measures were necessary because Appellant was charged with a brutal murder and had escaped confinement while waiting for trial."
14 Id. at. 104.
15 Id. at 105. It should be noted that the Supreme Court of Missouri said that previous case law does not even support the requirement "of any funding whatsoever where a defendant chooses to represent himself."
16 Id. at 105-06.
17 973 S.W.2d 83 (Mo. banc 1998).
18
Id. at 93.
19 957 S.W.2d 734 (Mo. banc 1997).
20 Id. at 754.
21 Id. at 751.
22 Id. at 750.
23 946 S.W.2d 206 (Mo. banc 1997).
24 Id. at 217.
25 955 S.W.2d 198 (Mo. banc 1997).
26 Id. at 208.
27 Id.
28 Id.
29 Id. It should be noted that the Supreme Court of Missouri said: "The disturbing nature and the extensive amount of the evidence in this case, particularly Hall's detailed confession, provided a sufficient foundation for a death sentence recommendation based on reason. . . . Hall has not met his burden of proving manifest injustice."
30 901 S.W. 2d 886 (Mo. banc 1995).
31 Id. at 900.
32 Id. at 901.
33 Id.
34 Id. at 902.
35 Id. at 905.
36 Id.
37 Id.
38 See Larry May, Sharing Responsibility (Univ. of Chicago Press, 1996).
39
State v. Clemons, 946 S.W.2d 206 (Mo. banc 1997); State v. Gray, 887 S.W.2d 369 (Mo. banc 1994); and State v. Richardson, 923 S.W.2d 301 (Mo. banc 1996).
40 Id.
41 946 S.W.2d 214.
42 Id. at 229.
43 Id. at 214.
44Id.
45 State v. Amrine, 741 S.W. 2d 665 (Mo. banc 1987).
46 Black's Law Dictionary 221 (5th ed. 1979).
47 See Cathleen Burnett, Justice Denied: Clemency Appeals in Death Penalty Cases (Northeastern University Press, 2002).
48 955 S.W.2d 752 (Mo. banc 1997).
49 Id. at 758-59.
50 939 S.W.2d 361, 366 (Mo. banc 1997).
51 See St.Louis Post-Dispatch, April 23, 2002, at B6.
52939 S.W.2d 365.
53 See Edward Lazuras, Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court (Times Books, 1998).
54
I would like to thank Robert Wolfrum, Marilyn Friedman, Kathleen Clark, and Peter Joy for encouragement and helpful comments on previous drafts of this article.
JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 2 - March-April 2003