MISCARRIAGES OF JUSTICE

Released January 16, 2001

Missourians to Abolish the Death Penalty

Introduction:

With the Furman v. Georgia decision in 1972, the Supreme Court halted executions in the United States primarily because of evidence of arbitrariness and racial injustice. With Gregg v. Georgia in 1976 the Supreme Court gave approval to the states to carry out capital punishment on the premise that it would be administered with fairness and justice. Since the re-instatement of the death penalty in Missouri forty-six individuals have been executed. Examination of these cases reveals that Missouri s death penalty is not meeting the standards expected by Gregg v. Georgia.

The basis of our research comes from clemency applications submitted to the Governor by civic and religious leaders as well as attorneys for the individuals facing execution. The executive clemency process exists to correct "miscarriages of justice" that may occur during the judicial process. Clemency applications typically include the legal/procedural issues of the case as well as mitigating factors in the person s background that exhibit the need for mercy.

While Missouri governors have used the power of executive clemency on rare occasions to halt executions, our research indicates systemic flaws in the way death penalty cases are tried and appealed. Poor legal representation, racism and disproportionality in sentencing are common problems. The safeguards in the system are not preventing these miscarriages of justice.

Our research indicates:

* Individuals have been executed who have credible claims of actual innocence based on witness testimony or evidence.

* Individuals have been executed when their co-defendants received lesser sentences, especially if the co-defendants cooperated with law enforcement or the prosecution.

* Individuals have been executed who have reduced mental capacity.

* Individuals have been executed when there were serious problems with the legal procedures used to convict and sentence them.

* An individual was executed who committed the crime while a juvenile.

While Missouri officials, such as the Governor and the Attorney General, maintain that Missouri has been cautious and careful in administering the death penalty, there is increasing evidence to the contrary. We believe the systemic problems detected in this report substantiate the need for a statewide moratorium on executions in our state.

There is growing momentum in our country to support a moratorium on executions. Governor George Ryan of Illinois imposed a moratorium in his state in January, 2000 because that state's death penalty system was so flawed. State legislatures in Nebraska and New Hampshire have also passed moratorium bills, although the governors in both states vetoed the proposals. Nationwide, hundreds of local governments and organizations have supported measures calling for a moratorium on executions. Residents of Missouri recognize the need to halt executions in our state. According to a 1999 statewide survey conducted by the Center for Social Sciences and Public Policy Research of Southwest Missouri State University, 56 percent of the respondents supported a three-year delay of scheduled executions to investigate sentencing practices.

Today approximately 80 individuals live under the sentence of death in Missouri. Unless Missouri is willing to institute a moratorium on executions, miscarriages of justice will likely continue in our state.

Individuals with Credible Claims of Actual Innocence

Based on Witnesses or Evidence

Gerald Smith (Executed 1/18/90)

Gerald Smith received the death sentence for the 1980 murder of Karen Roberts in St. Louis. In a sworn affidavit in 1988, Timothy Smith, brother of Gerald, identified another brother, Eugene, as the person who actually killed Ms. Roberts. Timothy s story was supported independently by other individuals and was more in line with the physical evidence of the case. Over the years Gerald, who had a history of psychological disorders and suicide attempts, told two different stories of the murder. One was consistent with Timothy s while the other was used by Gerald when heapparently wanted to end his life.

Maurice O. Byrd (Executed 8/23/91)

Maurice Byrd was executed for the murders of James Wood, Carolyn Turner, Edna Ince, and Judy Cazaco in Pope s Cafeteria in Des Peres in 1980. Robbery had also been part of the crime. Four years after Byrd s trial, an unbiased eyewitness came forward identifying two other African-American men as individuals she encountered coming out of the mall near the cafeteria early on the morning of the murders. (The witness said she waited to come forward for fear of retaliation by the real killers.) She recalled one of the men was carrying a large bag. The witness had recognized Byrd as someone she had previously seen working in the mall and knew he was not one of the two men she saw at the mall that morning.

The prosecution had no eyewitnesses, but relied on pretrial statements (later recanted) made by Byrd s wife that he told her he had killed three people in Missouri. The prosecution otherwise relied on the self-interested testimony of jail cellmates who were in a position to gain advantage in their own cases by testifying against Byrd. This case also had serious issues of racial bias in that Byrd was an African-American and the victims in the case were Caucasians. He was tried and convicted by an all Caucasian jury after the state prosecution used its peremptory strikes to exclude the African-American veniremen.

Walter J. Blair (Executed 7/21/93)

Walter Blair, an African-American, was convicted of the contract murder of Kathy Jo Allen, a Caucasian, in 1979. The case against Blair relied primarily upon the testimony of Ernest Jones, a police informant. Jones testified that Blair had told him, before and after the murder, of the plot to kill Ms. Allen. However, Jones credibility was suspect because he received immunity for any part he played in the murder. Ironically, police officers arrested Jones the day after the shooting when they learned he and his brother had pawned a ring stolen from the victim s boyfriend during the kidnapping. Officers also realized Jones had stolen the murder weapon in a burglary of his next-door neighbor s home. Furthermore, the victim s boyfriend identified Jones in a police lineup as the person who had kidnapped Ms. Allen at gunpoint before she was murdered. Two other witnesses observed a man matching Jones s description leaving the scene of the murder just after they heard shots f! ired.

Eventually, six more witnesses came forward in the months before Blair s execution, four of them reporting Jones boasted he killed Allen and helped frame Blair. Another

admitted he dropped Jones off at the victim s apartment just before the kidnapping and murder. Jones s girlfriend also stated in an affidavit that she and Jones had lied about Blair s involvement in the killing. Blair was convicted by an all-Caucasian jury in a trial in which the prosecutor, in his closing statements, called the victim "the lovely white woman" and Blair "the black man with the gun".

Larry Griffin (Executed 6/ 21/ 95)

Larry Griffin was sentenced to death for the June 26, 1980 drive-by shooting of Quintin Moss, a known drug dealer. The alleged motive for the crime was revenge for Moss killing Griffin s brother several months earlier. The prosecution s only direct evidence of Griffin s guilt was presented through the eyewitness testimony of Robert Fitzgerald, a career criminal and federally-protected witness, whose car allegedly had broken down on the corner shortly before the crime occurred.

Thirteen years later in a federal prison, Fitzgerald admitted committing perjury when he positively identified Griffin in court as the person he saw shoot Moss. Fitzgerald also testified that the police suggested to him that he pick out Griffin s photo before he did so. Also in 1993 another witness came forward with testimony supporting Griffin s innocence. Kerry Caldwell was a hit man for a drug gang that operated in St. Louis in the 1980s. In 1990 he also joined the federal witness protection program and became a prosecution witness in another case. He subsequently testified before a federal judge that he was the look-out man when three men -- other than Griffin -- killed Moss.

Roy Roberts (Executed 3/10/99)

Roy Roberts was sentenced to death for allegedly holding a prison guard, Thomas Jackson, while two other prisoners stabbed him to death during a riot in 1983 at the Moberly Training Center for Men. Serious questions remain whether Roberts had any part in the killing. A Department of Corrections (DOC) investigation of the riot, which included interviews of many guards and prisoners, identified Robert Driscoll and Rodney Carr as the inmates who attacked Jackson. No mention was made of Roberts. Soon after the stabbing, guards confiscated from Driscoll and Carr their bloody clothes. No blood was found on Roberts clothes (a remarkable occurrence if the state s version of events was accurate and Roberts held Jackson while the two men stabbed him several times in the heart and eye).

It wasn t until a few weeks after the DOC report, that one guard, Denver Halley recalled seeing Roberts holding Jackson during the riot. Roberts was convicted primarily on the testimony of Halley and two guards, one of whom had to be hypnotized before he could recall seeing Roberts holding the guard. None of the three guards identified Roberts when initially questioned. Roberts maintained he did get in a fistfight with a different guard during the riot, but insisted he was not involved in Jackson s death. Several prisoners and the guard he fought with corroborated his testimony. A few days before being executed, Roberts also passed a polygraph test in which he maintained his innocence.

Individuals who were Sentenced to Death while

Co-defendants Received Lesser Sentences,

Especially when they Cooperated with Law-enforcement

and/or Prosecutors

George Mercer (Executed 1/6/89)

George Mercer was convicted of the murder of Karen Keeton of Kansas City in 1978. A co-defendant was given a life sentence while Mercer was given the death penalty.

Leonard Laws (Executed 5/17/90)

Leonard Laws was given the death sentence for the 1980 murders of Charles and Lottie Williams of Glenco. His conviction was on the basis of accomplice liability. The undisputed evidence from trial transcript was that Laws provided the lookout and was outside the building while two others actually committed the murders. One of the other co-defendants received a fifteen year sentence in exchange for testimony. The other co-defendant was executed in 1990.

Emmitt Foster (Executed 5/3/95)

Co-defendant Michael Phillips received a life sentence plus two 30-year sentences for the 1983 killing of Travis Walker and the related assault of DeAnn Keys in North St. Louis. Emmitt Foster was sentenced to death although there was evidence to support his claim of innocence. The prosecution withheld exculpatory evidence of the investigation report and there was no physical evidence to link Foster to the scene of the crime. The only eyewitness (Keys) sustained four gunshot wounds to the back of the head prior to the identification of her assailants. From all evidence she was shot in an area of the apartment which would have precluded her from seeing the second assailant.

This evidence would have presented reasonable doubt as to the guilt of Foster but was not heard by the jury. Ineffective assistance of counsel resulted in Foster receiving a death sentence for the murder.

Robert Anthony Murray (Executed 7/26/95)

Both Anthony Murray and his older brother, William, were involved in the robbery that took place in the apartment prior to the murders of Jeffrey Jackson and Craig Stewart in 1985. Conflicting court testimony of the two women victims who escaped made it difficult to determine who actually did the shooting. However, there were many other witnesses who could have testified that William was the shooter. Yet, William received a life sentence while Anthony received a death sentence. William later confessed to being the killer. Ineffective assistance of counsel resulted in Anthony s wrongful execution.

Doyle Williams (Executed 4/10/96)

Kerry Brummett drowned, while handcuffed, in 1981 in the Missouri River in Clay County after running from Doyle Williams and John Morgan. Both Williams and Morgan had earlier assaulted Brummett and had weapons that they could have used to shoot the victim had they wished. Morgan testified that neither he nor Williams forced the victim into the water or pushed him under. After the victim ran into the river, Williams dove into the water to look for him. Williams received the death penalty; Morgan received a lesser sentence.

Eric Schneider (Executed 1/29/97)

Eric Schneider was one of three men convicted in the robbery and killings of Richard Schwendemann and Ronald Thompson in their home in 1985. One of the co-defendants who participated in the stabbings was sentenced to three consecutive life sentences. Another defendant, who cooperated with police in the investigation, was sentenced to 30 years in prison.

Milton Griffin-El (Executed 3/25/98)

Milton Griffin-El was convicted of the killings of Loretta Trotter and Jerome Redden in 1986 during an apartment robbery that involved five men. The jury that convicted Griffin-El sentenced him to life imprisonment for the murder of Trotter, but could not decide on the penalty for the murder of Redden. The sentencing decision passed to the trial judge who sentenced him to death for the murder of Redden. The co-defendant, who was identified by all involved as the instigator of the crime and who also participated in the stabbing, received a life sentence.

Roy Ramsey (Executed 4/14/99)

Ramsey received the death sentence, while his brother Billy got a 25-year sentence in exchange for testifying against Roy in the robbery/murders of Garnett and Betty Ledford in Grandview in 1988. The prosecutor made inflammatory closing statements, calling Roy Rambo 14 times. Billy, who is the likely killer, was eligible for parole last year.

Bruce Kilgore (Executed 6/16/99)

Both Bruce Kilgore and his co-defendant, Willie Luckett, were convicted in separate trials of the stabbing death of Marilyn Wilkins in St. Louis in 1986. Only Luckett had motive to kill the victim. Kilgore did not know the victim. On the day before the murder, Luckett s employers fired him because the victim reported that he was stealing food from the restaurant where they worked together.

During the opening statements of Kilgore s trial, the prosecutor did not state it was Kilgore who stabbed the victim. In fact, the guilt phase jury instructions identified Luckett as the person who stabbed the victim. During the penalty phase, the state s theory changed when Luckett s girlfriend shocked everyone in the courtroom and declared for her first time that Kilgore admitted stabbing the victim. Previously, Luckett s girlfriend had given statements to the police and other authorities, but it was only when she testified before Kilgore s jury that she stated Kilgore told her he had killed the victim. Just prior to her testimony, Luckett s girlfriend received probation for her role in the victim s death, and her

testimony greatly benefited Luckett by shifting responsibility to Kilgore. Only Kilgore received the death penalty despite his credible claim that it was Luckett who actually killed the victim.

Robert Walls (Executed 6/30/99)

There were two other co-defendants in this case who were also convicted for the 1985 murder of Fred Harmon in his home in St. Louis. Like Robert Walls, Terry Wilson and Tommy Thomas had also walked away from the halfway house, had prior records and participated in the murder. Yet only Walls received the death sentence for the crime. Walls s trial was constitutionally unfair due to the ineffective assistance of counsel he received, and more importantly due to the prosecutor s misconduct in withholding exculpatory evidence from the defense. The other defendants received life and life without parole sentences. Wilson had a parole hearing date in 2000.

David Leisure (Executed 9/1/99)

There were two other co-defendants convicted for the 1980 car bombing that killed James Michaels in St. Louis. Paul Leisure and Anthony Leisure, cousins of David, who planned the bombing were also convicted in separate trials, yet neither received the death penalty. Instead, each was sentenced to life imprisonment without possibility of parole for 50 years. The federal pre-sentence investigation report ranked the cousins as first and second in culpability. It ranked David third. David had an IQ in the low seventies at the time of his trial. Fred Prater, the admitted maker of the bomb, received no prison sentence in exchange for being a chief prosecutorial witness.

David Leisure was represented by a collections attorney who used a law student as his conduit of information to and from David and whose thinking he relied on for strategy. It was not until February 1999 that it was learned that this law student had been laboring under the adverse psychological effects of untreated chemical dependency during Leisure s trial.

Individuals who had Reduced Mental Capacity

George Gilmore (Executed 8/31/90)

George Gilmore was sentenced to death for the1979-80 murders of four elderly people, Mary Luella Watters, Woodrow Elliott, and Clarence and Lottie Williams. Gilmore grew up in a very deprived and abusive home in which both parents were alcoholic. While in school Gilmore attended a program for mentally retarded students who were educable. Records show he had a Benet IQ score of 65. (IQ refers to a person s level of intelligence as measured by a particular intelligence test. Mental health experts consider a valid IQ score of 75 or less to be one of the indicators of mental retardation.) Gilmore also suffered two significant head injuries in 1973 and 1980.

Ricky Lee Grubbs (executed 10/21/92)

Ricky Lee Grubbs was convicted of killing Jerry Thornton in 1984. Psychological testing throughout his childhood, found Grubbs had I.Q. scores in the low 70 s. He received failing

grades all his life and was placed in special education classes for two years. A psychiatric evaluation indicated Grubbs had low mental function and that he was not able to think through the consequences of his actions. Also, his intoxication at the time of the crime diminished his conscious control which, combined with his low mental function, rendered Grubbs incapable of forming the necessary intent to deliberate.

Frank Guinan (Executed 10/6/93)

Frank Guinan was given the death sentence for murdering fellow inmate John McBroom at the prison in Jefferson City in 1982. Psychological testing in 1990 and 1991 found that Guinan did not have the ability to deliberate at the time of the homicide. Testing concluded he had mild to moderate brain damage that prevented him from thinking logically or clearly in any kind of stressful situation He can act, but can t think. Guinan had a history of attempted suicide and had taken extensive psychotropic medications in prison.

Guinan's trial attorney offered no mitigating evidence during the penalty phase of his trial. The jury also never had the opportunity to consider evidence from four eyewitnesses who saw the stabbing of McBroom and would have testified that another inmate wielded the knife. Moreover, at least one of these eyewitnesses had sworn that he was intimidated by prison officials into not testifying to what he actually saw. Other witnesses not called at the trial would testify that it was common knowledge among inmates and corrections officials at the Missouri State Penitentiary that Richard Zeitvogel, rather than Guinan, had killed McBroom.

Anthony J. LaRette (Executed 11/29/95)

Anthony LaRette was given the death sentence for the murder of Mary Fleming of St. Louis in 1980. Records show that no less than eight institutions over 30 years diagnosed and treated LaRette for Temporal Lobe Epilepsy. This condition resulted in him having seizures that caused him to go into a rage, foam at the mouth, involuntarily urinate, rip off his clothes and black out. Upon waking, LaRette would have no memory of his actions. At various times in his life these seizures occurred between one-three times a week, some lasting as long as 40 minutes. At least one doctor reported that his assaults on women were probably committed during these black-out periods. It was difficult to find medication to treat LaRette because of other medical conditions he had. None of this information was presented to the jury.

Robert O Neal (Executed 12/6/95)

Robert O Neal was convicted of killing fellow inmate Arthur Dade in the Missouri State Penitentiary in 1984. Although testing was recommended at the time of the trial for brain dysfunction, O Neal did not receive a complete psychiatric evaluation until 1993. This evaluation revealed classic symptoms associated with an organically-based attention-deficit disorder; a traumatic brain injury as a teenager, work exposure to toxic substances that could have resulted in significant intellectual deterioration and a long history of alcohol and substance abuse.

The prosecution failed to disclose that one of its lead witnesses, Officer Maylee, had a prior criminal record. Disclosure of that information certainly would have substantially reduced, if not destroyed Maylee's credibility at trial.

Jeffrey Paul Sloan (Executed 2/21/96)

Jeffrey Sloan admitted to killing his father Paul, his mother Judith, and his brothers Tim and Jason in December 1985. The jury never heard significant mitigating factors (helping to explain his behavior) including substantial physical and emotional abuse that was perpetrated upon Jeff by his father. Neighbors, although alarmed by the abuse, declined to alert authorities. Psychiatric evaluations indicated significant cognitive deficiencies that were the result of a learning disability and/or profound head trauma. Psychological testing endorsed a possible diagnosis of paranoid schizophrenia and clear evidence of thought disordered thinking. Sloan s attorney was disbarred shortly after Jeff s trial, having himself been convicted of laundering drug money.

Glennon Paul Sweet (Executed 4/22/98)

Glennon Sweet was convicted of killing highway patrol trooper Russell Harper in 1987 outside of Springfield. Sweet had a history of mental problems and head injuries. Sweet s mother drank regularly when she was pregnant with him and he displayed many symptoms of Fetal Alcohol Syndrome. During elementary school years he displayed signs of attention deficit hyperactivity disorder and a learning disability that went untreated. Testing indicated that neurological impairments may have been linked to several head injuries including a cerebral concussion caused by a car accident. Serious questions remain concerning police investigation practices used in the case. Sweet's attorney failed to develop a variety of leads to create reasonable doubt in the jurors.

Richard Oxford (Executed 8/21/96)

Richard Oxford was convicted for the double murder of Harold and Melba Wampler, a rural Jasper County couple in 1986. According to psychiatric evaluations Oxford demonstrated behavioral and intellectual abnormalities beginning at an early age and increasing in severity as he matured. At ten years of age he was sniffing airplane glue and was found "blue" from the use. He was referred for psychiatric treatment at eleven years of age and from that time on, he was institutionalized in juvenile treatment centers or incarcerated for the majority of the time.

Samuel L. McDonald (Executed 9/24/97)

Samuel McDonald was convicted of killing Robert Jordan, an off-duty St. Louis police officer in 1981 in the course of a robbery. Through the failure of his trial counsel, the jurors did not know that psychiatric evaluations revealed that McDonald had a full complement of symptoms related to Post-traumatic Stress Disorder (PTSD) including frequent flashbacks of memories from his tour of duty as a machine gunner during the Vietnam War. McDonald recalled being traumatized by many war experiences, including one documented night battle in which more than 75-percent of the soldiers in his company were killed. He spent five terrifying days stuck behind enemy lines unsure whether he d be captured or killed. This disorder caused McDonald to have a diminished capacity to deliberate and choose his behavior.

Reginald Powell (Executed 2/25/98)

Reginald Powell was barely 18 years old when he killed Freddie Miller and Lee Miller in St. Louis after they apparently had attacked him. Powell, who had a history of drug and alcohol abuse, had been found to have an IQ of 65 and had been previously placed in a public school special education program. Testing also indicated that Powell was severely impaired by an Auditory Selective Attention Disorder.

Powell s trial was hampered by the fact that his inexperienced trial attorney had an affair with him and did not represent his interests effectively. A competent lawyer would have recommended accepting the state s offer to plead guilty in return for a life sentence. Powell s attorney was devastated by his conviction. By not informing her client of his fundamental right to testify, Powell's attorney adversely affected the fairness of the trial. Even without hearing from Powell, the jury could not agree on a death sentence, so it was the trial judge alone who made the sentencing decision.

David Leisure ( Executed 9/1/99)

David Leisure (highlighted on p. 7) had two IQ tests performed on him in 1987 with scores of 70 and 74 which put him in the range of mental retardation. Psychological evaluations of David in 1994 concluded that there was strong basis to suspect that Leisure has suffered brain damage or brain disease.

James Hampton (Executed 3/22/00)

James Hampton had been incarcerated most of his life and had attempted suicide on more than one occasion. In 1992 Hampton killed Frances Keaton in rural Callaway County and fled to New Jersey. In the process of being arrested there for another homicide, Hampton attempted suicide by shooting himself in the head. Consequently, a significant portion of his left frontal lobe was removed. As a result he suffered from seizures and memory loss. Evaluation by a neurologist revealed the frontal lobe injury affected his judgment and resulted in severe paranoia that rose to the level of delusion. Hampton refused to continue the appeals that were available to him and expressed a wish to be executed.

Individuals who had Serious Problems with the Legal

Procedures used in Conviction and Sentencing

Winfred Stokes (Executed 5/11/90)

Winfred Stokes was convicted of the stabbing murder of Pamela Benda of University City in 1978. He was also charged with the murder of an elderly woman in 1977. As part of a plea agreement Stokes was to plea guilty to second degree murder in both cases in exchange for 50 year sentences to run concurrently. Unfortunately an incorrect statement about him in the local paper resulted in his refusal to accept the plea agreement and he was subsequently convicted of capital murder and given the death sentence.

Other legal issues raised included that Stokes was African-American, the victim was a Caucasian female, and Stokes was convicted by an all-Caucasian jury. The judge also refused to allow the jury to consider that as recent as three weeks prior to the murder, the victim had sought police protection from her boyfriend because of death threats and

repeatedly-inflicted physical violence. The boyfriend had a more substantial motive than Stokes yet the jury was not allowed to consider this relevant evidence.

Martsay Bolder (Executed 1/27/93)

Early in 1979, Theron King was assigned as Mr. Bolder s cellmate. King was twenty years older than Bolder and he used his age and experience to taunt and harass Bolder. Eventually the harassment became too much for Bolder. In March of that year, Bolder stabbed Theron King. Evidence obtained indicated that King died of an infection caused by hospital staff six weeks after the stabbing when they removed fluid from King s chest by passing a hypodermic needle through the location of his abdominal wound. Bolder requested the governor to convene a hearing to determine whether using the wound area for this procedure constituted malpractice.

In his dissenting opinion, Robert E. Seiler of the Missouri Supreme Court in State v. Bolder stated: If the murder in the present case had occurred in a tavern or on a parking lot or elsewhere outside the prison walls by someone not in confinement, there would have been no reasonable likelihood, in my opinion, of the prosecutor being able to obtain a capital murder conviction, much less the death penalty. It would work out as a second degree murder case.

Robert Sidebottom (Executed 11/15/95)

Robert Sidebottom was convicted of killing his 74-year-old grandmother, Mae Sidebottom. No legal counsel was available to file a habeas corpus petition in federal court. The cutoff of federal funds resulted in the abrupt closing of the Capital Punishment Resource Center which had provided legal counsel to Sidebottom for six years.

Thomas Battle (Executed 8/7/96)

Always asserting his innocence of the murder of Birdie Johnson in 1980, Thomas Battle admitted to intending to commit burglary when he entered her house with two accomplices. But Battle insisted he fled when the victim woke and made a noise. Much substantial and credible evidence of innocence was not presented to the jury because Battle s attorney had never tried a capital case. Two witnesses implicated Elroy Preston, a man who committed other murdered others and who had confessed to murdering Johnson. The evidence was never considered by appellate courts due to procedural barriers.

Richard Zeitvogel (Executed 12/11/96)

Richard Zeitvogel was sentenced to death for the killing of fellow inmate Gary Dew in a Jefferson City prison in 1983. Zietvogel was a witness to an attempted murder in the basement of the prison chapel. He helped prison officials solve the crime by identifying Dew as one of the attackers. Dew s attorney, Julian Ossman, told Dew who identified him. While awaiting sentending, despite Dew s threats of retaliation against Zeitvogel for snitching on him, Dew and Zeitvogel were placed in the same cell. After Dew s death when Zeitvogel was charged with capital murder, Julian Ossman, the same attorney who represented Dew, was appointed to represent Zeitvogel. At the very least this scenario represented a conflict of interest on the part of the trial counsel which may have impacted his actions. Ossman failed to adequately present evidence of self-defense to the jury or evidence that the chapel incident led to Dew's death.

Ralph Feltrop (Executed 8/6/97)

Ralph Feltrop maintained that he killed his live-in girlfriend Barbara Ann Roam in self-defense in 1987. The victim s known propensity for physically attacking her boyfriends, and Feltrop s passive personality and unusual psychological background, all suggested he indeed acted in self-defense. Feltrop s attorney failed to present any of this information to the jury.

Donald Reese (Executed 8/13/97)

Reese received the death sentence for the murders of Chris Griffith and James Watson at a rifle range in 1988. His conviction and sentence were based on a coerced inculpatory statement that was written by a sheriff for Reese to sign. Substantial information that should have been presented at trial that Reese was clinically depressed and probably suicidal at the time of the involuntary statement. In addition, there were no fingerprints or other unique physical evidence connecting him to the crimes, Many leads were developed during the investigation that should have led law enforcement to other suspects. Reese received inadequate representation by counsel at trial. The procedural restrictions placed upon the federal courts prevented meaningful review of his constitutional claims.

Andrew Six (Executed 8/20/97)

Andrew Six and his uncle, Donald Petary, were convicted of the killing of 12-year old Kathy Allen in northern Missouri in 1987. The jury that found Six guilty of first degree murder was unable to agree that he be sentenced to death. The decision whether Six should live or be put to death fell into the hands of the trial judge, E. Richard Webber, who had urged the bankrupt county to go ahead with the capital trial. Judge Webber imposed the death sentence just an hour and a half after the jury announced their impasse.

Alan Bannister (Executed 10/22/97)

Alan Bannister never denied killing Darrell Ruestman in 1982. However he consistently maintained that the shooting was the result of a struggle between the two men and not the deliberate contract killing proposed by the prosecution. Bannister confronted Ruestman because he was incorrectly led to believe that Ruestman had been responsible for two

attempts on his life (a near-fatal stabbing and a drive-by shooting). Bannister s court appointed attorney conducted little or no investigation into the facts of the case. In addition, his counsel presented no defense during either the guilt or penalty phases of trial. An investigation of the physical evidence in the 1990 s by an independent journalist and filmmaker strongly supported Bannister s story.

Kelvin Malone (Executed 1/13/99)

Kelvin Malone was convicted of the 1981 fatal shooting of William Parr, a St. Louis cab driver. Malone s trial lawyer did not seriously work on his case until about two weeks prior to the jury trial. He presented no evidence during the trial s guilt phase. Some of his mistakes include: not calling material witnesses from the scene who would have cast doubt on the prosecution s case; a total failure to prepare and address the sudden and unfair in-court identification of Malone as being a man near Parr s cab; overlooking the inconclusiveness of ballistic reports that allegedly connected Malone with Parr s death; and the potentially fatal omission of presenting true mitigating evidence during Malone s penalty phase. Malone passed a polygraph indicating he truthfully stated he did not kill the victim.

James Rodden (Executed 2/24/99)

James Rodden was convicted of the 1983 murders of his roommate Joe Bob Arnold and Lynn Cherry Trunnell, a woman he had just met in a tavern. In most cases involving multiple crimes that occurred in the same episode, the prosecution joins all of the crimes for one trial because the proof of each crime is based upon the same evidence. In this case, the prosecution inexplicably severed the two murders for two separate trials. The arbitrary nature of the death penalty is shown in that both juries, which heard the same evidence, convicted Rodden of capital murder. Yet one jury recommended life without parole and the other recommended death. The differences were that Rodden only testified about self-defense in the trial he received life without parole. The defense attorney did not call any mitigating witnesses in the second trial.

Ralph Davis (Executed 4/28/99)

Ralph Davis received the death sentence for the 1985 murder of his wife, Susan, whose body was never found. Davis was initially charged with second degree murder, a non-capital offense under Missouri law for which the maximum punishment is life with eligibility for parole after fifteen years. At the third trial setting of the case, Davis's court-appointed attorney knew that the prosecutor intended to upgrade the charge to first degree murder and seek the death penalty if the case was not disposed of as scheduled. Knowing this fact, and without consulting Davis, he nevertheless sought a continuance.

Trial counsel failed to attend the hearing on the motion, and instead sent an assistant. At the hearing, Davis opposed a continuance. The assistant tracked down the trial counsel drinking in a local tavern and implored him to withdraw the continuance request. Neither the assistant or the trial counsel told Davis of the prosecutor s plan to upgrade the charge if a continuance succeeded. Without fully advising his client of the circumstance, the attorneys squandered an opportunity to resolve the case - by plea or trial - on relatively favorable terms.

Jessie Lee Wise (Executed 5-26-99)

Jessie Lee Wise was given the death sentence for the 1988 murder of Geraldine McDonald. His case represents a multitude of problems. A combination of conflict of interest and Wise s mental health issues resulted in him defending himself at a capital murder trial. At the same time he was representing Wise, the lead attorney was running for prosecutor. Wise felt his lawyer was disregarding his input and suggestions. The trial lawyers filed a motion to have Wise declared incompetent to stand trial without his permission. They based their motion on Wise s defensive theory of the case -- which they contended was irrational -- and on a psychological examination of Wise which diagnosed him as having a delusional disorder. As a result Wise requested to act as his own attorney at trial, and was permitted to do so. The judge refused to permit Wise to present available evidence suggesting another theory of the homicide.

Only after his trial did the prosecutor s office inadvertently discover videotapes of key evidence that it had a duty to provide the defense before trial. Wise did accept help from other lawyers at the penalty phase, but the judge would not give counsel even one day to prepare for the penalty hearing. The federal courts violated the Anti-terrorism and Effective Death Penalty Act of 1996 requiring them to appoint at least one attorney with three years of felony appeal experience to represent him in his habeas corpus appeal. The federal courts retroactively applied the statute to limit the issues he could appeal.

Bert Hunter (Executed 6/28/00)

Bert Hunter was convicted of the 1988 murders of Mildred Hodges and her son Richard in Jefferson City. Although Hunter originally pled guilty and asked to be given a death sentence, he did so at a time when he was depressed to the point of being suicidal. A few months before the Hodgeses were killed, Hunter tried to kill himself. The bullet he fired grazed his temple when he flinched in uncertainty at the last possible instant. While waiting for trial he also tried to kill himself and was placed on suicide watch. At the time of his plea the court noted inconsistencies in his statements and the autopsy report but accepted the guilty plea because that was Hunter s desire and wish . The court also questioned Hunter s mental competency and ordered an evaluation.

Within a few months before he was sentenced, Hunter asked the court to set aside his guilty plea because it was made under duress. All the doctors who examined him concluded he was self-destructive at the time of his plea. The trial judge refused to set aside the guilty plea and, instead, sentenced him to death. As a result Hunter was the first person executed in Missouri since 1976 who did not have a jury trial or the assistance of a lawyer.

Gary Roll (Executed 8/30/00)

Gary Roll never denied his part in the killings in 1992 of Randy Scheper, an alleged drug dealer, his mother, Sherry, and brother, Curtis. His trial counsel conducted no pretrial investigation and urged his client to waive his right to be tried before a jury and plead guilty, with false assurances he would receive a life sentence. It was clear his attorney was not ready for trial when he did not ask questions on voir dire, did not make an opening statement, and did not cross examine the state s first witness.

Counsel did not seek any form of mental evaluation and failed to present evidence to the judge that showed that Roll s drug addiction stemmed from a botched oral surgery by military doctors in 1974. Roll was subsequently honorably discharged with a 50 percent service disability. Two other surgeries in VA hospitals failed to alleviate the excruciating

pain. For 17 years Roll was prescribed various narcotic analgesics in hopes of finding relief. In 1992 Roll sustained a serious leg injury which added to the pain. It was then that Roll turned to street drugs to find relief. It was while under the influence of alcohol, marijuana and LSD that Roll, who had no prior history of crime, committed the killings.

George Harris (Executed 9/13/00)

George Harris was given a death sentence for killing Stanley Willoughby in the living room of a Kansas City drug house in 1989. Due largely to the incompetence of his trial counsel, Harris s story that he lawfully acted in self-defense against a violent man who was physically threatening him was never effectively told or properly presented to a jury. Trial counsel failed to obtain testimony from disinterested witnesses identified in the police report. At least one of the witnesses later indicated that the shooting was in self-defense after Willoughby pulled out his gun to shoot Harris.

James Chambers (Executed 11/15/00)

James Chambers was convicted of killing Jerry Oestricker on May 29, 1982, outside a lounge in Arnold after an argument in the bar. Both men had been drinking. The crime lacked the cool deliberation and premeditation needed for a capital sentence. A review of factually similar Missouri cases, involving tavern homicides, have all resulted in lesser sentences. The disproportionality of this case was highlighted by Judge Welliver of the Missouri Supreme Court in his dissent in State v. Chambers I am unable to see any new or additional evidence that changes the case from a barroom altercation. Under these circumstances, I cannot impose the death penalty. I would reduce the sentence, otherwise proportionality in Missouri is reduced [to being] totally meaningless.

Individual who was a Juvenile

at the Time of the Murder

Frederick Lashley (Executed 7/28/93)

Frederick Lashley was just 17 years old when he was convicted of the stabbing death of his disabled cousin and foster mother, Janie Tracy, on April 9, 1981. Lashley came from a physically abusive home. He began drinking heavily at the age of 10 and began abusing drugs at age 11. Lashley was not known to be violent toward the victim or any other family member. On the day of the murder he tried PCP (phencyclide) for the first time. PCP is known to induce psychotic behavior and can cause its user to be dangerous. The family of Ms. Tracy did not want the execution to take place.

END