WHAT OTHERS SAY: Report cites failings in applying death penalty in Missouri

The Columbia Missourian
Thursday, March 8, 2012

When Gov. Jay Nixon spared the life of killer Richard Clay last January, he, perhaps unwittingly, highlighted a key shortcoming in how the death penalty is applied in Missouri.

Mr. Nixon decided that Mr. Clay shouldn't die for the 1994 murder-for-hire of Randy Martindale in Missouri's Bootheel, but he didn't say why.

At the time of Mr. Nixon's decision, a panel of distinguished Missouri legal scholars already was one year into an exhaustive study into whether the state's application of death penalty statutes complies with the American Bar Association's protocols to ensure fairness and accuracy.

That report, which was released last week, found numerous, serious problems with how the death penalty is applied in Missouri. Among the findings is that the last step in the process, whether or not the governor offers some form of clemency, is not transparent.

The report, by a bipartisan panel of lawyers, judges, prosecutors and law professors, is more than 400 pages of detailed analysis of how Missouri applies the death penalty. The many problems support the arguments of death penalty opponents, including this editorial page, to put a stop to the practice of capital punishment for men and women who might not have been guilty or might have been convicted of lesser crimes.

Among the key findings:

• Missouri's evidence rules are inadequate to maintain a high enough standard of collection, sharing and preservation of evidence, including DNA, to guarantee that potentially innocent death row inmates can take advantage of technological advances.

• A lack of stringent protocol on witness identification leads to a potential for false testimony, and the lack of videotaping of that critical part of the investigation taints the process.

• The underfunded public defender system — 49th in the country — limits the effectiveness of counsel, particularly when Missouri's otherwise strong capital unit of the public defender office doesn't get involved until very late in the process, when prosecutors decide whether to seek the death penalty.

• Too many aggravating circumstances — 17 of them, many vague — that make the application of the death penalty by prosecutors arbitrary. In Missouri, virtually any murder case could qualify for the death penalty.

• No active system of policing prosecutorial misconduct, which recently has been cited in several high-profile Missouri cases, including in the exoneration of Joshua Kezer.

Most of these shortcomings, and others, have been cited by supporters of convicted killer Reggie Clemons, the man convicted of killing the Kerry sisters on the Chain of Rocks bridge in 1991. Mr. Clemons' case is under court review. At some point, his case is likely to go to Mr. Nixon, who could, with a stroke of the pen and no public process, spare his life or send him to his death.

While Missouri's ABA report doesn't call for a moratorium on the death penalty, as similar reports have in several other states, it makes strong arguments that the state's death penalty system is unjust. This is of particular importance in a state with the fourth-highest rate of executions per death sentence in the country, and the fifth-highest rate of executions per capita.

"We don't have enough gatekeepers for the weakest cases," said St. Louis University law professor Stephen Thaman, a co-chair of the assessment team that included federal judge Stephen Limbaugh Jr.

Implementing the ABA report's numerous recommendations is a tall task. Some changes could be made by the court. Others, such as improving evidence standards, increasing public defender funding and creating more accountability for prosecutors will be difficult, if not impossible, in Missouri's current political climate.

But Mr. Nixon alone could make one move that would bring honor and justice to the legal profession he loves without jeopardizing his standing as a fierce death penalty proponent. He can commit to a transparent clemency process for as long as he is governor. It's not good enough to spare one life while condemning another if the public doesn't know the reasoning behind either decision.

Every man or woman on death row deserves a public airing of his or her case. Every decision regarding the state's immense power to decide life or death deserves a transparent process so that, at the very least, there can be public confidence that the ultimate punishment is applied fairly and accurately to the most heinous killers.

That is not the case in Missouri today.