PETITION
FOR CLEMENCY
TO THE HONORABLE BOB HOLDEN
GOVERNOR OF THE STATE OF MISSOURI
IN RE: PAUL KREUTZER
Sentenced to be Executed on April 10, 2002
Capital punishment . . . fails to live up
to our deep conviction that all
human life is sacred . . .. The antidote to violence is love, not more
violence . . .. We are asking whether we can teach that killing is wrong
by killing those who have been convicted of killing others . . .. We
cannot overcome crime by simply executing
criminals, nor can we
restore the lives of the innocent by
ending the lives of those convicted
of their murders. The death penalty offers the tragic illusion that we
can defend life by taking
life.
U.S. Catholic Bishops, November 15, 2000
On September 2nd, 1992, Paul Kreutzer, then age 20,
murdered thirty-six year old Louise Hemphill at her home in Pike County near
Louisiana, Missouri. Paul lived only a
quarter of a mile from the Hemphill’s home and had once met Mrs. Hemphill when
he went to look at a house that the Hemphill’s were selling. The murder of Louise Hemphill was a
particularly brutal homicide, involving the victim having been sexually
assaulted, stabbed with a knife, hit with a baseball bat, and, finally,
strangled with a belt. She was later
found by her children when they came home from school.
Paul Kreutzer did not deny that he had
committed the murder when his case went to trial some eighteen (18) months
later. His defense was only that the
murder had not been with deliberation, cool reflection upon the matter, but was
instead a spontaneous, impulsive act arising out of anger and deep-seated
mental illness. He was diagnosed as
suffering from a sexual identity disorder, a schizoid personality, borderline
personality disorder, identity disorder of childhood, and post-traumatic stress
syndrome. Even the State’s
psychologist, Dr. Richard Gowdy, Ph.D., testified at trial that he believed
Paul had an unspecified sexual disorder.
The jury, however, was not persuaded by this testimony. They convicted Paul and sentenced him to
death. Now, in his final hours, Paul
Kreutzer asks the Governor to assess the personal hell that has been his
childhood and his abusive background and afford Paul the one commodity that has
to date been missing from his experience – some understanding, compassion, and
mercy. We ask Governor Holden to spare
his life.
Paul Wayne Kreutzer had a broken nose when he
was adopted by Donald and Ruth Kreutzer in 1975. He was three years old.
He had been born into a family of drug and alcohol abuse, and was
physically abused before he could walk or talk, so adoption certainly seemed
like a good idea. Instead, the life
Paul would experience with his adoptive parents would be every bit as bad, if
not worse, than any childhood he would have experienced with his natural
parents.
Doctor and Mrs. Kreutzer adopted not only Paul, but his twin
brother, Patrick, and his younger sister, Melissa. The family initially lived in Arkansas, but moved to a small farm
in Pike County, Missouri when Paul was still very young. The Kreutzers were very strict parents who
eventually scorned the public school system in favor of home schooling for
their children. They were isolated on
their little farm and had little interaction with the local community.
Mrs. Kreutzer had a quick temper and exhibited it regularly on her
hyperactive stepson, Paul. To
punish their adoptive son, the Kreutzers would put pliers on Paul’s fingers and
put him in a large wooden box for long periods of time. Paul was frequently hit with items from fly
swatters to wooden boards, and the withholding of food was a common
punishment. Although Paul was enuretic
(bed-wetting), and eventually needed surgery to correct the problem, Mrs.
Kreutzer punished his bed-wetting by making him drink his own urine. On at least one occasion, Mrs. Kreutzer
undressed all of the children, made them look at their body parts, and then forced
them to spit on themselves.
For his part, Mr. Kreutzer, Paul’s adoptive father, was away from
home so long the children believed him to be in prison. When he was home, he and Paul lived together
in a trailer, apart from the main house, where there was neither running water
nor heat. Paul had a bath only twice a
month.
When only in kindergarten, Paul was exposed to pornographic
photographs by a schoolmate’s mother.
His own brother, and other relatives, schooled him in deviant sexual
behavior, leading to a sexual obsession with his sister that developed when he
was only a young boy. His mother’s
prescription for Paul’s preoccupation with his sister was to instruct her son
to have sex with the family’s cows. When
Paul did in fact have sex with the cows, he was punished by being chained to his
bed each night with a heavy dog chain.
Paul ran away from this abuse when he was 14 or 15, becoming
classified by the Division of Family Services as an abused or neglected
child. He would have a history of
learning disabilities and deficient academic skills, with IQ testing indicating
borderline intelligence.
Although Dr. Patricia Fleming, a noted
Wyoming psychologist, testified about petitioner’s horrific childhood, and the
mental disease it caused in Paul, the court told the jury, both orally and in writing,
to disregard this compelling evidence, the very basis for the diagnosis of
mental illness that rendered Paul unable to deliberate, unable to coolly
reflect on the killing of Louise Hemphill, and, consequently, not guilty of
first degree murder.
Immediately before Dr. Fleming testified, the trial court
instructed the jury as follows:
THE
COURT: Ladies and gentlemen of the jury
the Court will now read to you an oral instruction of the law.
The next witness to testify is Dr. Patricia
Fleming. She will testify concerning
the mental condition of the defendant at the time of the alleged offense. In the course of her testimony, Dr. Fleming
may testify to statements and information that were received by her during or
in connection with her inquiry into the mental condition of the defendant.
In that connection, the Court instructs you
that under no circumstances should you consider that testimony as evidence that
the defendant did or did not commit the acts charged against him.
(Tr. 1792-93). MAI-CR3d.300.20
At the close of all the
evidence, the court read Instruction No. 8, over petitioner’s objection:
You will recall that certain doctors
testified to statements that they said were made to them and information that
they said had been received by them during or in connection with their inquiry
into the mental condition of the defendant.
In
that connection, the Court instructs you that under no circumstances should you
consider that testimony as evidence that the defendant did or did not commit
the acts charged against him.
MSI-CR3d 306.04 (L.F. 423)
Although
possibly appropriate in cases wherein mental disease or defect is perhaps one
of many defenses, including “I didn’t do this crime,” these instructions are
the antithesis of the law in a diminished capacity defense, where only the
mental element of the crime is in issue.
See State v. Anderson, 515 S.W.2d 534, 539-540 (Mo. Banc
1974) (recognizing the “diminished capacity” defense as valid). These two instructions provide a one-two
punch to any diminished capacity defense by telling jurors that “under no
circumstances should you consider” the underlying information that is the very
basis for the doctor’s opinion that this defendant lacks the required mental
state for this crime! Nonetheless, the
Missouri Supreme Court found this instruction properly informed the jury that
the doctors’ testimony could be used by them in determining whether the
defendant committed the act of murder in the first degree.
III.
HIS LAWYERS DROP THE BALL
There were
several powerful legal claims raised in Paul Kreutzer’s federal habeas petition
which were denied by the District Court in Kansas City, yet accepted for
appellate review by the Eighth Circuit Court of Appeals in St. Louis. Those issues included:
1.
Whether
the trial court had unconstitutionally limited the jury selection questioning
in Paul’s trial;
2.
Whether
one venireman, a Mr. Sartain, was improperly removed from the jury after
indicating he could and would be able to serve, and to vote for the death
penalty if appropriate, but did not want to be the foreman who would sign the
death verdict form; and
3.
Whether
Division of Family Services records which documented the horribly abusive and
neglected childhood of Paul Kreutzer were wrongfully kept out of evidence and
from consideration by the jury.
The Eighth Circuit never
reached these issues, however, because Paul’s lawyers, including the author of
this clemency petition, filed Paul’s federal habeas petition two weeks too
late. How that happened is worthy of
brief discussion.
PETITION FOR WRIT OF CERTIORARI
Neither of
Paul’s counsel had ever handled a federal habeas proceeding of any kind before,
must less a capital habeas case, when appointed by the District Court to
represent Paul. On December 29, 1997,
more than two weeks before the Petition was due, counsel filed with the
District Court a Motion to Extend Time Within Which to File Initial Petition
For Writ of Habeas Corpus. The motion
requested an additional thirty (30) days and relied upon 28 U.S.C. § 2263
(b)(3) as authority for the request. On
December 31, 1997, the State of Missouri quickly filed a response, contending
among other objections, that “If 28 U.S.C. § 2263 applies, a showing of good
cause is required to receive and extension.
See 28 U.S.C. § 2263 (b)(3).
Petitioner has not made such a showing.” The State later filed an additional supplemental response,
concisely stating its position that 28 U.S.C. § 2244 (d) set a one-year statute
of limitations for federal habeas petitions, “regardless of whether the 180 day
statute also applies.”
The District
Court disagreed with the State’s position and found that, if the opt-in
provisions of the Anti-Terrorism and Effective Death Penalty Act applied in
this case, then Mr. Kreutzer’s motion for extension was timely, that the motion
demonstrated sufficient good case, and that it would be granted. The Court also found the statute of
limitations set forth in 28 U.S.C. § 2244 (d)(1) determined the due-date of the
petition to be January 17, 1998, but since Mr. Kreutzer had filed his Motion to
Extend Time well before the expiration of the statute of limitations, Fed. R.
Civ. P. 6(b) would allow the court to extend the time for filing until January
27, 1998, the date the Petition was filed.
This issue did
not thereafter arise until the last two minutes of oral argument before the
Eighth Circuit Court of Appeals, the parties having neither briefed the
timeliness of the Petition, nor having raised it by motion before that
Court. Only when the Eighth Circuit
issued its ruling disallowing the District Court’s filing extension and
dismissing Paul’s Petition did the magnitude of the problem become evident to
counsel.
“Dismissal of a
first federal habeas petition is a particularly serious matter, for that
dismissal denies the petitioner the protections of the Great Writ entirely,
risking injury to an important interest in human liberty.” Lonchar v. Thomas, 116 S. Ct. 1293,
1299 (1996). To dismiss the habeas
petition of a death row inmate who files his petitioner two weeks past
the deadline is, as far as counsel can determine, unprecedented. Although equitable tolling has been denied
to extend statues of limitations in many circumstances, counsel has been unable
to discover a circuit court opinion which, strictly to enforce a time bar,
denied a condemned man an opportunity to have his claims heard, at least in a
first habeas petition. See, i.e.,
Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998) (Fifth Circuit
allows equitable tolling to extend for over one year the filing of a death row
inmate’s habeas petition in Texas.).
The Fifth
Circuit Court of Appeals, at least, has allowed a thirty day extension granted
by the District Court under 28 U.S.C. § 2263 to extend the one year statute of
limitations imposed by 28 U.S.C. § 2244(d), the identical situation present in
appellant’s case. See, Hill
v. Johnson, 210 F.3d 481, 482-484 (5th Cir. 2000). Although not specifically addressed in Hill,
the Fifth Circuit implicitly recognizes that which the Ninth Circuit has
explicitly discussed in Calderon v. United States District Court, 163
F.3d 530 (9th Cir. 1998), that in death penalty cases the
consequences of a district court’s erroneous extension of the one year statute
of limitations in 28 U.S.C. § 2244(d)(1) weigh heavily in favor of the condemned
inmate seeking to have his first petition considered by the Court. (District
Court had extended § 2244(d)(1)’s one year deadline almost six months,
equitably tolling the statute’s period due to petitioner having had to change
counsel during the preparation of the habeas petition.).
Although Mr.
Kreutzer’s counsel well may deserve punishment for their misguided effort to
extend a statute of limitations, Mr. Kreutzer himself does not. The Eighth Amendment cannot allow the death
penalty to be imposed upon an individual who, relying on counsel specifically
appointed to protect and defend his interests in the complicated process that
federal habeas law has become, innocently suffers the loss of his first and
only substantive habeas petition.
Clearly, such a result could not be “within the limits of civilized
standards.” Woodson v. North
Carolina, 428 U.S. 280, 302 (1976), quoting Trop v. Dulles,
356 U.S. 86, 101 (1958) (plurality opinion).
This truly would be cruel and unusual punishment.
IV.
CLEMENCY
Before Governor
Holden is a young man convicted of a brutal murder, now facing the imminent
prospect of being lethally injected.
Considering his childhood abuse and “punishment,” it is hardly
surprising that Paul Kreutzer would end up in prison, the seeds sown in him
long ago having produced an act such as that which brought him to this
point. The hopelessness of his
childhood would predict the course of his life, brief as it has been so far.
The Constitution
protects even, especially, the Paul Kreutzers of this country. He was entitled to a fair trial, with a fair
and impartial jury drawn from a fair cross-section of the community, and to be
represented by an attorney who would provide effective assistance of
counsel. He was entitled to due process
of law, to equal protection of the law, and to be free from the arbitrary and
capricious infliction of the ultimate punishment. He has raised substantial questions about many of these rights,
but has received no federal appellate review because of the mistake of his lawyers. In our federal courts he has been denied a
hearing, denied funds to prove his claim, denied expert assistance, and denied
even an opportunity for appellate review.
So far, he has been railroaded toward the death house as fast as the
federal courts could carry him. So far,
he has had about as much due process in the federal courts as he got at home
growing up with Mrs. Kreutzer.
It is time for
Governor Holden to finally stop the death train carrying Paul Kreutzer. Allow him to live the rest of his days
locked up in the penitentiary. That is
severe punishment. But, please, spare
his life.
Respectfully submitted,
____________________________________
Patrick J. Berrigan, Mo. #34321
Watson & Dameron, LLP
2500 Holmes
Kansas City, Missouri 64108
(816) 474-3350
(816) 221-1636 Fax
AND
____________________________________
Patrick W. Peters, Mo. #34017
Attorney at Law
405 E. 13th Street
Kansas City, Missouri 64106
(816) 221-4101
(816) 471-0086 Fax
ATTORNEYS FOR PAUL KREUTZER