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.

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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.

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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

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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.

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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 o