EVALUATING FAIRNESS AND ACCURACY IN STATE DEATH PENALTY SYSTEMS: The Missouri Death Penalty Assessment Report An Analysis of Missouri’s Death Penalty Laws, Procedures, and Practices “A system that takes life must first give justice.” John J. Curtin, Jr., Former ABA President March 2012, updated April 2012 AMERICAN BAR ASSOCIATION EVALUATING FAIRNESS AND ACCURACY IN STATE DEATH PENALTY SYSTEMS: The Missouri Death Penalty Assessment Report An Analysis of Missouri’s Death Penalty Laws, Procedures, and Practices “A system that takes life must first give justice.” John J. Curtin, Jr., Former ABA President March 2012, updated April 2012 AMERICAN BAR ASSOCIATION The materials contained herein represent the assessment solely of the ABA Death Penalty Moratorium Implementation Project and the Missouri Death Penalty Assessment Team and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. These materials and any forms or agreements herein are intended for educational and informational purposes only. This document has been produced with the financial assistance of the European Union. The contents of this report are the sole responsibility of the American Bar Association and can under no circumstances be regarded as reflecting the position of the European Union. Significant portions of the research were performed on Westlaw courtesy of West Group. Copyright 2012, American Bar Association ACKNOWLEDGMENTS The American Bar Association Death Penalty Moratorium Implementation Project (the Project) is pleased to present this publication, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Missouri Death Penalty Assessment Report. The Project expresses its great appreciation to all those who helped to develop, draft, and produce the Missouri Assessment Report. The efforts of the Project and the Missouri Death Penalty Assessment Team were aided by many Missouri prosecutors, defenders, judges, and academics, as well as the staff at The Missouri Bar, who shared information and assisted in the examination of Missouri’s capital punishment system. Particular thanks must be given to Mark Pickett, Ryan Kent, Paula Shapiro, and Sarah Turberville, the Project’s staff attorneys who spent countless hours researching, writing, editing, and compiling this Report. In addition, we would like to thank the American Bar Association Section of Individual Rights and Responsibilities for its substantive, administrative, and financial contributions. In particular, we would like to thank Section Director Tanya Terrell, Program Assistant Katherine Incantalupo, and Administrator Jaime Campbell for their ongoing support of the Project. We also would like to recognize former project staff attorneys Kirstin Ramsay and Rachel Bays for their contributions. Thanks also must go to Neil Diskin, Christopher “Kip” Hale, Liat Krawczyk, Maanasa Reddy, Armin Tadayon, and Emma Yackso for assisting in the final production of the Report. We also would like to thank the Project’s law clerks and interns who contributed to this Report, including Ty Andrews, Denise Childress, Sarina Cox, Justine Guyer, Elizabeth Iannuzzi, Mackenzie Phillips, Sarah Quereshi, Jay Ramasubramanyam, Jennifer Tytel, Joshua Walker, and Christine Waring. Finally, in this publication the Project and the Assessment Team have attempted to note as accurately as possible information relevant to the Missouri death penalty. The Project would appreciate notification of any factual errors or omissions in this Report so that they may be corrected in any future reprints. MEMBERS OF THE MISSOURI DEATH PENALTY ASSESSMENT TEAM Professor Paul Litton, Co-Chair, is an Associate Professor of Law at the University of Missouri School of Law at Columbia. Professor Litton’s research primarily focuses on moral philosophy and criminal law theory (especially free will and responsibility theory), and bioethics. He teaches criminal law, death penalty law, jurisprudence, and bioethics. Before joining the University of Missouri faculty in 2006, he was law clerk to Chief Justice Deborah T. Poritz of the New Jersey Supreme Court, serving a second term as the Court’s death penalty law clerk. In 2009, Prof. Litton received the Shook Hardy & Bacon Excellence in Research Award at the Law School. He received his B.A. and J.D. from the University of Pennsylvania. Professor Stephen C. Thaman, Co-Chair, is the Co-Director of the Center for International and Comparative Law at Saint Louis University School of Law. He worked for 12 years as an assistant public defender in Alameda County, CA, after which he accepted a Fulbright Senior Professor Award at the Institute of Criminal Law and Procedure at the Free University of Berlin. He was also awarded a research fellowship at the Max Planck Institute for Comparative and International Criminal Law in Freiburg, Germany. His present scholarship focuses on a comparative analysis of exclusionary rules, jury systems in Asia, Latin America and Europe, and a comparative perspective on the use of plea bargaining and other alternative methods deciding criminal cases. He received his B.A. and J.D. from the University of California at Berkeley. Douglas A. Copeland is in the private practice of law with the St. Louis firm Copeland Thompson Farris, PC. His areas of practice include corporate law, estate planning, probate and trust administration, education law and real estate. Mr. Copeland has served as president of The Missouri Bar, as well as a member of its Board of Governors and chair of its Young Lawyers Section, as president of the St. Louis County Bar Association and as chair of the Council of School Attorneys of the Missouri School Board Association. Mr. Copeland also served as chair of The Missouri Bar’s Public Defender Task Force, and currently serves as chair of the Missouri State Public Defender Commission and as a member of the House of Delegates of the American Bar Association. He received his B.S. from the University of Missouri at Columbia and his J.D. from St. Louis University School of Law. Dee Joyce-Hayes is General Counsel for The Bi-State Development Agency of the Missouri-Illinois Metropolitan District, d/b/a Metro. Ms. Joyce-Hayes was the first woman elected Circuit Attorney for the City of Saint Louis and served in that position from 1993 to 2001. She was also an adjunct professor at the Washington University School of Law, Chief Executive Officer of the Family and Community Trust, and an attorney in the Litigation Practice Group at Sonnenschein Nath & Rosenthal LLP. She received her B.A. from The College of William and Mary and her J.D. from Saint Louis University School of Law. Honorable Nanette K. Laughrey is a judge for the U.S. District Court for the Western District of Missouri and for the U.S. District Court for the Eastern District of Missouri. She was nominated by President Clinton in 1995 to a seat vacated by Joseph Stevens, Jr. and confirmed by the U.S. Senate in 1996. Prior to joining the bench, Judge Laughrey served as an Assistant State Attorney General of Missouri; a municipal judge for the City of Columbia; a professor at the University of Missouri School of Law; and a Deputy State Attorney General of Missouri. Judge Laughrey received her B.A. from the University of California at Los Angeles and her J.D. from the University of Missouri School of Law. Honorable Stephen N. Limbaugh, Jr. is a judge for the U.S. District Court for the Eastern District of Missouri, having been confirmed by the U.S. Senate in 2008. From 1992 to 2008, he served as a Justice on the Supreme Court of Missouri, and from 2001 to 2003 as Chief Justice. He served as Prosecuting Attorney of Cape Girardeau, Missouri for one term before returning to private practice. Beginning in 1987, he served as a judge for the 32nd Judicial Circuit until his appointment to the Supreme Court of Missouri in 1992. He received his B.A. and J.D. from Southern Methodist University. Honorable Harold L. Lowenstein is a former Missouri Court of Appeals, Western District judge. He is currently Of Counsel to the firm Armstrong Teasdale LLP in their Litigation Practice Group. Judge Lowenstein served nine years as a state representative for a Kansas City House District, and as an assistant Missouri Attorney General before becoming a member of the judiciary. He has served on every level of the Missouri court system. Judge Lowenstein received his B.A. and J.D. from the University of Missouri at Columbia. Professor Rodney J. Uphoff is the Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law. He teaches trial practice, professional responsibility, criminal procedure, and criminal litigation skills. Before joining the University of Missouri faculty in 2001, Prof. Uphoff taught at the University of Oklahoma College of Law, where he served as a professor and director of clinical legal education and ran a criminal defense clinic for 10 years. From 1984 to 1988, he directed a criminal clinic at the University of Wisconsin Law School. Before becoming a law professor, Uphoff was a public defender, including service as the chief staff attorney of the Milwaukee Office of the Wisconsin State Public Defender. He received his B.A. and J.D. from the University of Wisconsin. TABLE OF CONTENTS EXECUTIVE SUMMARY...........................................................................................................................i CHAPTER ONE: AN OVERVIEW OF MISSOURI’S DEATH PENALTY SYSTEM........................1 I. DEMOGRAPHICS OF MISSOURI’S DEATH ROW..............................................................................1 II. THE STATUTORY EVOLUTION OF MISSOURI’S DEATH PENALTY SCHEME....................................3 III. THE PROGRESSION OF A MISSOURI DEATH PENALTY CASE FROM ARREST TO EXECUTION......12 CHAPTER TWO: COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER TYPES OF EVIDENCE.............................................................................................................................33 INTRODUCTION TO THE ISSUE...................................................................................................................33 I. FACTUAL DISCUSSION................................................................................................................35 II. ANALYSIS..................................................................................................................................42 CHAPTER THREE: LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS...57 INTRODUCTION TO THE ISSUE...................................................................................................................57 I. FACTUAL DISCUSSION................................................................................................................60 II. ANALYSIS..................................................................................................................................71 CHAPTER FOUR: CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES..............97 INTRODUCTION TO THE ISSUE...................................................................................................................97 I. FACTUAL DISCUSSION................................................................................................................99 II. ANALYSIS................................................................................................................................113 CHAPTER FIVE: PROSECUTORIAL PROFESSIONALISM..........................................................131 INTRODUCTION TO THE ISSUE.................................................................................................................131 I. FACTUAL DISCUSSION..............................................................................................................132 II. ANALYSIS................................................................................................................................140 CHAPTER SIX: DEFENSE SERVICES...............................................................................................167 INTRODUCTION TO THE ISSUE.................................................................................................................167 I. FACTUAL DISCUSSION..............................................................................................................168 II. ANALYSIS................................................................................................................................184 CHAPTER SEVEN: THE DIRECT APPEAL PROCESS...................................................................223 INTRODUCTION TO THE ISSUE.................................................................................................................223 I. FACTUAL DISCUSSION..............................................................................................................225 II. ANALYSIS................................................................................................................................232 CHAPTER EIGHT: STATE POST-CONVICTION PROCEEDINGS..............................................235 INTRODUCTION TO THE ISSUE.................................................................................................................235 I. FACTUAL DISCUSSION..............................................................................................................237 II. ANALYSIS................................................................................................................................244 CHAPTER NINE: CLEMENCY............................................................................................................269 INTRODUCTION TO THE ISSUE.................................................................................................................269 I. FACTUAL DISCUSSION..............................................................................................................271 II. ANALYSIS................................................................................................................................275 CHAPTER TEN: CAPITAL JURY INSTRUCTIONS........................................................................291 INTRODUCTION TO THE ISSUE.................................................................................................................291 I. FACTUAL DISCUSSION..............................................................................................................292 II. ANALYSIS................................................................................................................................297 CHAPTER ELEVEN: JUDICIAL INDEPENDENCE AND VILIGANCE.......................................307 INTRODUCTION TO THE ISSUE.................................................................................................................307 I. FACTUAL DISCUSSION..............................................................................................................308 II. ANALYSIS................................................................................................................................318 CHAPTER TWELVE: RACIAL AND ETHNIC MINORITIES........................................................331 INTRODUCTION TO THE ISSUE.................................................................................................................331 I. FACTUAL DISCUSSION..............................................................................................................332 II. ANALYSIS.................................................................................................................................335 CHAPTER THIRTEEN: MENTAL RETARDATION, MENTAL ILLNESS, AND THE DEATH PENALTY.................................................................................................................................................355 INTRODUCTION TO THE ISSUE.................................................................................................................355 I. FACTUAL DISCUSSION..............................................................................................................358 II. ANALYSIS: MENTAL RETARDATION.........................................................................................373 III. ANALYSIS: MENTAL ILLNESS...................................................................................................386 APPENDIX ..................................................................................................................................................A EXECUTIVE SUMMARY I. INTRODUCTION: GENESIS OF THE ABA’S DEATH PENALTY ASSESSMENTS PROJECT Fairness and accuracy form the foundation of the American criminal justice system. As the Supreme Court of the United States has recognized, these goals are particularly important in cases in which the death penalty is sought. Our system cannot claim to provide due process or protect the innocent unless it offers a fair and accurate system for every person who faces the death penalty. Over the past thirty years, the American Bar Association (ABA) has become increasingly concerned that capital jurisdictions too often provide neither fairness nor accuracy in the administration of the death penalty. In response to this concern, on February 3, 1997, the ABA called for a nationwide suspension of executions until serious flaws in the system are identified and eliminated. The ABA urges capital jurisdictions to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed. In the fall of 2001, the ABA, through the Section of Individual Rights and Responsibilities, created the Death Penalty Moratorium Implementation Project (Project). The Project collects and monitors data on domestic and international death penalty developments; conducts analyses of governmental and judicial responses to death penalty administration issues; publishes periodic reports; encourages lawyers and bar associations to press for moratoriums and reforms in their jurisdictions; convenes conferences to discuss issues relevant to the death penalty; and encourages state government leaders to establish moratoriums, undertake detailed examinations of capital punishment laws and processes, and implement reforms. To assist the majority of capital jurisdictions that have not yet conducted comprehensive examinations of their death penalty systems, the Project began in February 2003 to examine several U.S. jurisdictions’ death penalty systems and determine the extent to which they achieve fairness and provide due process. In its first round of assessments, the Project examined the administration of the death penalty in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee and released reports on these states’ capital punishment systems from 2006 to 2007. A summary report was also published in 2007 in which the findings of the eight reports were compiled. Due in large part to the success of the state assessments produced in the eight jurisdictions described above, the Project began a second round of assessments in late 2009. In addition to this Report on Missouri, the Project released its report on Kentucky in December 2011. The Project also plans to release reports in Texas and Virginia. The assessments are not designed to replace the comprehensive state-funded studies necessary in capital jurisdictions but instead are intended to highlight individual state systems’ successes and inadequacies. Past state assessment reports have been used as blueprints for state-based study commissions on the death penalty, served as the basis for legislative and court rule changes, and generally informed decision-makers’ and the public’s understanding of the problems affecting the fairness and accuracy of their state’s death penalty system. i