BEFORE THE GOVERNOR

OF THE STATE OF MISSOURI

THE HONORABLE BOB HOLDEN

 

In the matter of: )
)
KENNETH KENLEY, )Execution Scheduled For
)February 5, 2003
Petitioner.)
)

                                                                       

 

PETITION FOR A COMMUTATION OF, OR REPRIEVE FROM,

A SENTENCE OF DEATH

 

INTRODUCTION

 

Kenneth Kenley is a 42-year-old man who has been on death row since his 1984 conviction for the murder of a bar patron during a robbery of the bar.  Kenneth is scheduled to be executed at 12:01 a.m. on February 5, 2003.  All legal appeals previously filed have been denied, or are pending uncertain review.

 

In this petition, Kenneth Kenley respectfully requests that Governor Holden, pursuant to the powers granted him by Article IV, Section 7, of the Missouri Constitution, grant him executive clemency and commute his sentence from death to life imprisonment without the possibility of parole.  Alternatively, Mr. Kenley requests that Governor Holden grant a reprieve, staying his execution, and convening a board of inquiry pursuant to § 552.070 RSMo (2000), to gather information bearing upon whether his sentence of death should be commuted. 

 

While there are scores of reasons that could be advanced for the relief sought, related to the death penalty in general, and Mr. Kenley’s situation in particular, as Mr. Kenley’s attorneys, we wish, in this petition, to draw Governor Holden’s attention to a few critical issues which warrant the requested actions.  We wish for Governor Holden to consider Mr. Kenley’s lifelong battle with mental illness, and the utter failure of his appointed lawyers to bring these matters to the attention of the juries who decided Mr. Kenley’s case.  We wish for Governor Holden to consider an issue which caused two of the preeminent Judges in Missouri to argue in favor of the setting aside of Mr. Kenley’s death sentence; that is, the failure by the courts of Missouri to afford Mr. Kenley a full and fair hearing upon his claims of ineffective assistance of counsel against his trial attorneys.  We also wish for the Governor to consider that due to his mental illnesses, Kenneth is incompetent to be executed.  Finally, we wish for Governor Holden to consider a clear case of cruel and inhumane treatment of Mr. Kenley while he has been incarcerated at Potosi.  Specifically, because of deliberate indifference by prison administration and staff, Mr. Kenley has been made to suffer due to contracting hepatitis C, and due to the refusal by administration and staff to treat Mr. Kenley for this dreaded disease. 

 

BASES FOR COMMUTATION OF SENTENCE

 

Based on all of the foregoing reasons, Kenneth Kenley respectfully requests that Governor Holden grant him executive clemency.

 

I.          The Jury Was Never Given the Opportunity to Consider Kenneth Kenley’s Upbringing and Mental Illnesses When Considering Whether He Should be Put to Death

 

            A.            What the Jury Knew

 

The jury that sentenced Kenneth to death had only a small fraction of the available information about his upbringing and mental disabilities.  Trial counsel failed to investigate and discover crucial information about Kenneth’s life that would have served as factors mitigating against a sentence of death.  Furthermore, despite having possession of records that documented Kenneth’s traumatic upbringing and early signs of severe emotional disturbance, trial counsel introduced very little of such evidence to the jury.

 

At trial, Kenneth’s mom, Shirley Murphy, testified that Kenneth had been in Farmington State Hospital for nerves.  Ms. Murphy remembered hearing about Dr. Manion (one of Kenneth’s treating psychiatrists for a short period), but she was unable to remember any dates of his treatment or any other hospitals where he may have been treated.

 

Lois Crownover, a social worker at Poplar Bluff schools for twenty years, also testified.  The extent of her training is a bachelor’s degree in English and one year of graduate school in social work.  Ms. Crownover met Kenneth when he was 11 years old and had contact with him and his family for about four years.  She testified about Kenneth’s difficulties at home, lack of a stable family, his bedwetting problem, and her referrals of Kenneth to Farmington State Hospital and to Lutheran Hospital with Dr. Manion due to his behavioral problems at school and the family problems.

 

Defense counsel also read small portions of Mr. Kenley’s records to the jury.  From his Farmington State Hospital Records dated February and April of 1975, counsel reiterated Ms. Crownover’s testimony concerning Kenneth’s disruptive home life and the problems he had at school that resulted in his suspension.  Counsel also read that Kenneth’s testing showed “a slight degree of organic involvement” and an abnormal EEG.  The state countered this evidence by reading portions of the records that stated there was no significant evidence of organicity and no evidence of psychotic process.

 

Counsel also read a portion of Melvin Kenley’s (Kenneth’s father) 1975 records from Farmington State Hospital.  The records showed that Melvin had a violent temper, suffered from depressive neurosis, and apparently had significant organic brain damage.

 

Dr. Maria Manion, a psychiatrist who treated Kenneth for three weeks in November and December of 1975, was the only expert to testify for Mr. Kenley at trial.  Her testimony was presented by videotape.  Dr. Manion testified that Kenneth’s main complaint was difficulties getting along with others and the poor, abusive relationship he had with his father.  Kenneth received Elavil, an antidepressant, while under Dr. Manion’s care at Lutheran Hospital.  The medication was discontinued when Kenneth left Lutheran because he received none of the recommended follow-up treatment.  Kenneth was 15-years-old at the time.  Dr. Manion recommended getting Kenneth into a new school and a new home, which made him happy.  No psychological testing was done on Kenneth while he was under Dr. Manion’s care, although an EEG was done which came back as abnormal but inconclusive.  Dr. Manion had no knowledge of Kenneth’s mental status at the time of the crimes and was not trying to render any opinion of what his mental state was at the time of the crime for which Kenneth was on trial.

 

This was the extent of the information provided to the jury to aid in their life or death decision making. 

 

Unfortunately, rather than using mental health professionals to explain how Kenneth’s history led to mental illness that impacted his behavior on the night of the crime, trial counsel left the jury hanging with these numerous indicators of a child who was on the path of becoming a seriously mentally ill adult.  This left the door open for the state to come in and explain away Mr. Kenley’s behavior as nothing more than the results of his “antisocial personality disorder.”  Seizing this opportunity, the state presented the testimony of Dr. Sam Parwatikar, who had conducted a court-ordered evaluation of Kenneth in 1984 for the sole purposes of determining whether Mr. Kenley was competent to stand trial and whether he was responsible for his actions of the night of the crime.  Dr. Parwartikar’s conclusion that Kenneth suffered from antisocial personality disorder, and no mental illness, was left uncontested by trial counsel.

 

B.            The Full Picture

 

A thorough review of the records trial counsel had, further records that were gathered post-trial, and the results of adequate psychological testing reveal a much darker picture than the jury could have even imagined based on what they heard.  From the moment of his birth, Kenneth’s chances of ever having a life that even remotely resembled “normal” were severely compromised.  Kenneth was born in 1960, eight months after the marriage of his mother and father.  Kenneth’s mother, Shirley Murphy, was 16-years-old when Kenneth was born.  She has a fourth grade education.  Kenneth’s father, Melvin Kenley, is ten years older than Shirley.  In marrying at such an early age, Shirley hoped to find some much needed financial stability and support from Melvin.  Unfortunately, Melvin possesses an IQ of approximately 60, also has a fourth grade education, has a history of mental illness himself, and uses violence as his sole means of problem solving.

 

Kenneth’s birth was problematic.  The doctor attempted a forceps delivery, and eventually performed a c-section.  Kenneth’s neurological deficits may be related, in part, to the failed forceps delivery. 

 

When Kenneth was 5-years-old, his mother abandoned the family.  She left Kenneth and his younger sister with their father, thinking that he could provide better financial support for them.  This rationale is puzzling, as during the marriage it was Shirley that worked while her husband stayed at home.  The motivating force behind the break-up of the marriage was Melvin’s abusive behavior towards his wife.  After Shirley left, Kenneth did not see her again until his hospitalization at Lutheran Medical Center at the age of fifteen.  Kenneth was very angry at his father for never contacting his mother to arrange visitation.  Shortly after his mother left, Kenneth began to wet the bed.  This continued until approximately age fifteen.  Kenneth’s father would punish him for this act by whipping him, and wiping his face with the soiled sheets. 

 

At age eleven, Kenneth was referred to the Poplar Bluff Regional Diagnostic Clinic for a psychological evaluation and intelligence testing.  The referral was due to Kenneth’s angry outbursts, holding his breath, trances similar to petit mal seizures, and hysterical sicknesses.  Kenneth was found to be in the normal intelligence range. 

 

In the sixth grade, at age thirteen, Lois Crownover wrote a referral on Kenneth to the Farmington State Hospital Outpatient Clinic.  The referral was a result of Kenneth’s extremely aggressive temper and inability to get along with anyone.  Kenneth was extremely angry at his mother, whom he hadn’t seen in years.  Kenneth’s father claimed that he did not miss his mother, and that he never asked for her.  Kenneth’s elderly grandmother, who Kenneth and his father lived with, had trouble disciplining Kenneth.  Melvin Kenley used force to discipline his son.  Melvin did not believe Kenneth was his biological son due to the timing of his birth and his birth weight.  Ms. Crownover’s referral recommended that Kenneth be placed at Boy’s Town.  She noted, however, that she believed any out-of-home placement would be met with resistance.

 

Approximately four months after this referral, in January 1974, Kenneth was again referred to the outpatient clinic at Farmington State Hospital.  Again, the primary reason for the referral was Kenneth’s disturbed behavior at school.  The referral sought an assessment for appropriate school placement.  The doctor at Farmington felt Kenneth was emotionally immature but not a danger to other students.  The doctor opined that Kenneth seemed motivated to attempt to do better.  He increased Kenneth’s medication.

 

By December of 1974, Kenneth was out of school.  While in school, Kenneth had problems with shouting obscenities at school authorities, becoming irrational and throwing tantrums, and lapsing into periods of sobbing hysterical tears.  Throughout the next year or so, Kenneth was in and out of school.  He attended Faith Tabernacle School for a time.  A doctor at Farmington State Hospital stated that Kenneth required homebound schooling due to his difficulties with his peers and other management problems at school.  The doctor diagnosed Kenneth with Unsocialized Aggressive Reaction of Adolescence. 

 

In April of 1975, Kenneth was referred to the juvenile court because he was absent 48 ½ days out of a 130 day school year at Poplar Bluff Junior High.  By August of that year, he was back in Farmington, unable to function at school.  The hospital increased Kenneth’s doses of Mellaril and Dilantan and Kenneth made a remarkable adjustment, demonstrating no bad behavior.  At his discharge, Kenneth was prescribed 1 ½ Dilantan twice a day and 25 mg of Mellaril three times a day. 

 

Kenneth was in the care of Dr. Maria Manion at Lutheran Medical Center from November 24-December 16, 1975.  His family situation, as always, was inadequate.  This hospitalization resulted from Melvin Kenley threatening to kill his mother and Kenneth with a gun.  Melvin was taken to Farmington State Hospital following this episode.  Upon discharge, Kenneth was diagnosed with Adjustment Reaction of Adolescence With Poor Family Functioning.

 

By early 1976, Kenneth was living alone in a trailer and receiving a small amount of social security.  Butler County Division of Family Services considered Kenneth physically and mentally ill.  He was no longer enrolled in school.  He spent time at Farmington State Hospital again in June of 1977 and was treated with Dilantan and Mellaril.  He was discharged into his mother’s care, and diagnosed with Unsocialized Aggressive Reaction of Adolescence.

 

At the age of seventeen, Kenneth served in the Army from November 1-December 6, 1977.  Near the beginning of his basic combat training, Kenneth became acutely suicidal and cut his wrist.  It was determined that his psychiatric difficulty made him unsuitable for military service.  Kenneth was discharged General Under Honorable Conditions.

 

In September 1979, Kenneth was treated at Doctor’s Hospital for an apparent drug overdose.  He was found passed out at a local restaurant.  Blood tests showed alcohol in his system.  The next month, he was charged with the armed robbery of a gas station.  Kenneth wore a stocking over his head and entered the gas station with a friend, who carried a gun and pointed it at the clerk.  He was sentenced to four years in the Missouri Department of Corrections for his part in the robbery.  This sentence was completed on October 20, 1983.  Just over 2 months later, Kenneth committed the crime for which he now faces execution.

 

Kenneth has been on death row since his 1984 conviction for the murder of Ronnie Felts.  Throughout his incarceration he has been treated with psychotropic and other medications for his mental illnesses.  Medical records show Sinequan, Mellaril, Amitriptyline, Elavil, Trazadone, Xanax, Capoten, Verapamil, and BuSpar are frequently used medications.  There are also several references to the positive effects of the medication on Mr. Kenley’s behavior.  The psychologist notes that Kenneth “was considerably calmer after receiving his medication,” and that “the medication allowed him great reduction in his ‘up tight’ feelings.”  Another reference states that the medications allow him to “relax.”  It was also noted at one time that an increase in his

medication “reduced his dysphoria and improved his mood.”[1]

 

No psychological testing to determine Mr. Kenley’s mental status was conducted until 1995.  At this time, counsel representing Kenneth in his postconviction relief proceedings under Missouri Supreme Court Rule 29.15 recognized that Kenneth was laboring under severe mental impairments.  Counsel enlisted the expert assistance of Dr. Robert Smith, a clinical psychologist; Dr. Stephen Peterson, a psychiatrist; and Dr. Dennis Cowen, a neuropsychologist.  These three experts conducted testing that is generally used and accepted in the scientific community, as well as clinical interviews of Mr. Kenley.   

 

                        1.            Dr. Robert Smith

 

Dr. Robert Smith, a clinical psychologist, was asked to do a psychological chemical assessment of Kenneth and determine if there was any diagnosis.  In addition to conducting a diagnostic interview, Dr. Smith reviewed over 1500 pages of records on Kenneth, including:

 

School records, Lutheran Medical Center Records, military records, Farmington State Hospital Records, prison medical records, presentence investigation, Dr. Parwatikar’s report, Department of Corrections record, affidavits of family members, depositions of Gregory R. Dunn, Ray Pogue, Donald Roper, Judy Robart, and Paul Delo (prison officials), Dr. Dennis Cowan’s report, Kr. Dorsey Dysart’s report, social worker Maria Clark’s report, and mental health records of father Melvin Kenley.

 

One of Dr. Smith’s diagnoses of Kenneth was Borderline Personality Disorder.  Kenneth exhibited all of the factors that cause Borderline Personality Disorder:

 

·        Childhood abuse, neglect, abandonment

·        Dysfunctional family and home environment

·        Failure to develop appropriate coping mechanisms

·        Substance abuse by the individual or a family member

·        Lack of interpersonal attachments

 

Dr. Smith felt that the impact of the abuse Kenneth suffered was so severe that it was on the extreme end of the continuum.

 

For the psychological chemical dependency assessment, Dr. Smith reviewed Kenneth’s records, met with Kenneth, and conducted the Michigan Alcoholism Screening Test and the Drug Abuse Screening Test.  On the Michigan Alcohol Screening Test the cutoff score for showing a problem is 5.  Kenneth’s score was 23.  On the Drug Abuse Screening Test the cutoff score for showing a problem is 5.  Kenneth’s score was 19.

 

Dr. Smith diagnosed Kenneth with Alcohol Dependence, Sedative Dependence, and Cocaine Dependence.  Kenneth displayed the following symptoms of substance abuse:

 

·        Increased tolerance for the drug;

·        Diminished effect of the drug on the user;

·        Larger amount of drugs taken for a longer period of time;

·        Lots of time spent getting, using, and recovering from the drug; and

·        Important activities given up for the drug.

 

The majority of Kenneth’s offenses and outbursts occur when he is using drugs or alcohol.

 

The Alcohol Dependence diagnosis was based on Kenneth’s family history records, prison records, and his interview/testing of Kenneth.  The family history records are particularly important because children with a family history of alcohol abuse are five times more likely to be abusers.  Though alcohol abuse is ultimately a “choice,” some people enter the world more disposed to become alcoholics than others.  Psychological studies have found that genetic attributes explain about sixty percent of the variance of risk for an alcohol use disorder.[2]  Psychologists call the genetically influenced characteristic common to alcoholics “neuronal and behavioral inhibition.”[3]  Since neuronal and behavioral inhibition is commonly found in the personality profiles of people with personality disorders,[4] it should not be surprising that sufferers of personality disorders are over-represented in the alcoholic population and vice versa.[5]  Unfortunately, Dr. Smith was never able to relate such conclusions that could have been drawn from his testing to the jury, as counsel failed to investigate this relationship between Kenneth’s mental illnesses.

 

Sedative dependence is the abuse of sedatives, oftentimes prescribed, that mimic alcohol.  A review of Kenneth’s Farmington State Hospital records show that he had unlimited access to valium.  In fact, had trial counsel investigated, they would have discovered that Kenneth told his aunt, Emma Oldham, “they’ve got me so drugged up I can hardly walk” when she visited him at Farmington.  At one point, Kenneth began mixing alcohol with valium, which has a multiplying effect.

 

The Cocaine Dependence diagnosis is based on Kenneth’s history, the testing and the prison records.  Kenneth was using cocaine daily, and his use progressed from snorting to intravenous use.  The significance of this diagnosis is that cocaine interferes with the ability to concentrate, focus, and make appropriate decisions and judgments.  Kenneth reported to Dr. Smith that he used cocaine the day before the crimes.  The combination of cocaine and sedatives will produce confusion, disorientation, and difficulty functioning.

 

Dr. Smith concluded that the Borderline Personality Disorder, along with Kenneth’s drug abuse dependencies, was present at the time of the crimes and interfered with Kenneth’s behaviors on January 3, 1984.  The doctor found that at the time of the offenses, Kenneth “was not fully aware of his actions, was not reflecting upon clearly what he was doing, and that there was a diminished capacity regarding his ability to process what was occurring.”

 

Furthermore, Dr. Smith was able to explain why Kenneth did not suffer from Antisocial Personality Disorder.  Two major characteristics separate Kenneth from the Antisocial person.  First, a person with Antisocial Personality Disorder will make a very favorable first impression by being charming and manipulative.  However, the Antisocial does not want any ongoing attachment with others, but is merely using people for his own gain.  Kenneth’s history contradicts this diagnosis.  Kenneth attempts to form ongoing relationships and interactions and to get attention from other people.

 

Secondly, with the antisocial, there is typically no explanation for the antisocial behavior.  In Kenneth’s case, the behaviors that could be classified as antisocial are directly related to the abuse by his father, the abandonment of his mother, and his drug abuse, making a diagnosis of antisocial personality disorder inappropriate.

 

                                      2.                   Dr. Stephen Peterson

 

Dr. Stephen Peterson, a psychiatrist, supported Dr. Smith’s conclusions.  Dr. Peterson reviewed the 1500 plus pages of records that Dr. Smith had reviewed and conducted 9 ½ hours of interviews with Kenneth.  In addition to borderline personality disorder, Dr. Peterson diagnosed Kenneth with major depressive disorder, recurrent and severe; and dementia, not otherwise specified; along with other disorders that will be discussed later.

 

Dr. Peterson found Kenneth’s borderline personality disorder to be severe and identified the same causation for the disorder that Dr. Smith had found.  Dr. Peterson found the disorder to be modified by antisocial features, but explained that Kenneth did not suffer from antisocial personality disorder.  He believed the antisocial personality diagnosis to be inappropriate because Kenneth’s personality was formed by the victimization he suffered through verbal and physical abuse in his family and the chaos in his home, which resulted in a fragmentary personality, not the well-organized, volitional personality found in antisocials.

 

Major depressive disorder is defined as having more than one depressive episode.  To reach this diagnosis, Dr. Peterson relied on Kenneth’s symptoms in 1995 and the documented depression episodes Kenneth suffered at the ages of 10, 11, 13, 14, 17, 24, 28, and 31-34.

 

Dementia is a psychiatric condition where a person’s brain does not function as well as it used to function.  Dr. Peterson pointed to numerous things throughout Kenneth’s life that contributed to or evidenced his dementia, including: beatings by his father, car accidents, rage attacks, drug and alcohol abuse, verbal performance mismatch on his IQ test, abnormal EEG and other expert’s evidence of brain damage, Dr. Parwatikar’s evaluation, and seizure or absence episodes.

 

In addition, Dr. Peterson agreed with Dr. Smith’s assessment in that he diagnosed Kenneth with polysubstance abuse.  Polysubstance abuse is defined in the Diagnostic and Statistical Manual as being dependent to or showing addictive behaviors to more than three different classes of drugs. 

 

Dr. Peterson relied on Kenneth’s history and records to determine that he had severe alcohol dependency, severe depressant dependency (including valium), marijuana dependency, and psycho-stimulant abuse (including cocaine and methamphetamines).  He stated that Kenneth’s addictions have a substantial impact on his behaviors.

 

Dr. Peterson concluded that Kenneth’s substance abuse, in connection with the other disorders Dr. Peterson found, deprived him of his normal anger control.  Dr. Peterson concluded that on the night of the crimes Kenneth was aware of his actions but was unable to control them and was deprived of his ability to refrain from those actions and to conform his behavior to the requirements of the law.

 

                                      3.                   Dr. Dennis Cowan

 

Dr. Dennis Cowan, a neuropsychologist, reviewed Kenneth’s complete records.  He was able to develop a hypothesis that Kenneth was suffering frontal lobe brain damage based on the information contained in the records.  Dr. Cowan reviewed the over 1500 pages of records compiled by state appellate counsel and performed neuropsychological testing on Kenneth.  Upon finding brain damage and cerebral dysfunction, Dr. Cowan also recommended that Kenneth get a MRI or brain mapping.[6]

 

Dr. Cowan’s conclusions are based on his review of the records and the following neuropsychological tests, which were given to Kenneth for the first time by Dr. Cowan: Halstead-Reitan, WAIS-R, Wechsler Memory Scale, Memory Assessment Scale, and the Wisconsin Card Sorting Test.  In coming to his conclusions, Dr. Cowan used four different sets of norms so that he could have the broadest interpretation of the testing data.  After looking at each of these norms, he concluded that Kenneth’s brain functioning was damaged at the mild degree of impairment.  The doctor also concluded that Kenneth’s impairment occurred early in his life and that his drug and alcohol abuse would have worsened that early impairment.  Finally, he concluded that the impairment most likely contributed to Kenneth’s crime because he was most likely manifesting the neurocognitive impairments at the time of the offenses.

 

Dr. Cowan’s conclusions are consistent with the closed head injury diagnosis made by Dr. Peterson under Axis III of the Diagnostic and Statistical Manual, which reflects medical illnesses or physical problems that impact on the psychiatric diagnoses.  In Kenneth’s case, the closed head injury impacts on the dementia diagnosis Dr. Peterson made that was previously discussed.

 

In addition to considering Dr. Cowan’s report, Dr. Peterson supported this diagnosis with the abnormal brain mapping found by Dr. Dysart, the abnormal EEGs, the impact of the drug and alcohol abuse, dissociative episodes, car accidents, and the childhood beatings Kenneth suffered.  Dr. Peterson concluded that “the current neuropsychologic being, mental status and psychological assessments all coalesce together to show that Mr. Kenley has multiple areas of deficit in his functioning of his brain.”

 

C.        Clemency Should be Granted Because of the Likelihood of a Different Result    Had the Jury Heard the Full Story of Kenneth’s Life Prior to Imposing Their Sentence

 

To the sentencing jury, Kenneth Kenley was portrayed as a troubled child from a troubled home who had some contact with the mental health system.  Obviously, this describes many children who don’t then grow up to commit capital murder.  As the above evidence shows, a step-by-step look at Kenneth’s life reveals a child who never had a chance from the day he was born.  Trial counsel’s failure to present the jury with this detailed picture of Mr. Kenley not surprisingly resulted in a verdict that reflected little understanding of what led Kenneth to commit this crime. 

 

As a child, Kenneth Kenley was raised by a teenage mother with a fourth grade education.  This mother left the child care responsibilities to Kenneth’s mentally retarded, mentally ill, violent father.  These disabilities were heightened by the fact that the father suffers from a severe speech impediment that makes him difficult to understand.  From the ages of 5 to 15 Kenneth was in the exclusive care of this man, his elderly grandmother and/or mental institutions.  Kenneth has been medicated for his mental illnesses since at least the age of 13.  Upon his discharge from the mental facilities, Kenneth’s family was unable and unwilling to provide the follow-up care he needed.  Several recommendations that Kenneth be removed from the home went ignored. 

 

The reality is that Kenneth Kenley was a severely mentally ill child who grew up alone, with no role models, no parent figures, and no guidance.  Instead, he lived under the threat of violence, including death threats, from his father.  Due to either a lack of interest or ability to follow up, the social services systems completely failed Kenneth. Considering his mental illnesses and lack of any training as to appropriate social skills and work ethic, it is highly unlikely that Kenneth could have held any kind of regular job as he entered adulthood.  Under these circumstances, it can hardly come as a surprise that once he was old enough that he was forced to support himself, Kenneth resorted to violence – the only thing he knew – to secure such support.  Had the jury been presented this evidence, there is a real likelihood that instead of agreeing with the prosecutor’s assessment that Kenneth was nothing more than a “juvenile delinquent,” they would have, for the first time in Kenneth’s life, found sympathy and spared his life.  Continuing the inexcusable trend, trial counsel again failed Kenneth by not presenting any compelling reason for the jury to return a life sentence.  Now, only Governor Holden’s intervention can right this wrong.         

 

D.        Trial Counsel’s Ineffectiveness for Failure to Present This Vast Amount of Evidence Never Received Appellate Review, Thereby Denying Mr. Kenley Due Process and Requiring the Governor’s Intervention

 

Counsel and Mr. Kenley are aware that Governor Holden puts great faith in the court processes of this State to cure errors such as ineffective assistance of counsel.  However, again drawing “the short straw” in life, Mr. Kenley was denied the appellate review that he was entitled to in his case.  In Missouri, Supreme Court Rule 29.15 provides a postconviction remedy for errors such as ineffective assistance of counsel.  The proceedings under this rule must comply with the due process requirements of the Fourteenth Amendment.  See Evitts v. Lucey, 469 U.S. 387, 401 (1985); Easter v. Endell, 37 F.3d 1343, 1345 (8th Cir. 1994).  Such requirements were not met in Mr. Kenley’s 29.15 proceedings.  Although such proceedings are usually handled by the trial judge, in this case the proceedings were transferred to a different circuit court judge than the judge that presided at trial.  Only a detailed recitation of the 29.15 proceedings can illustrate the fact that trial counsel’s ineffectiveness was never given real consideration by the motion court.

 

                        1.            The Motion Court’s Findings

 

At the April 2, 1996 conclusion of the evidentiary hearing on Kenneth’s motion for postconviction relief the motion court informed the parties that he would render a ruling in writing and furnish it to the parties.  At some point the state asked if the parties should furnish proposed findings of facts and conclusions of law and the court indicated that was not necessary.  On April 8, 1996 the court issued its four page Findings of Fact and Conclusions of Law.  The actual conclusions consisted of less than one page:

 

Clearly, counsel made certain choices at trial.  Under the law of Strickland, this court is unable to find a constitutional inadequacy in Movant’s defense at trial.

 

Movant presented the testimony of two psychologists and a psychiatrist at this hearing.  The thrust of their testimony was that Kenneth Kenley came from a dysfunctional family and had a difficult childhood.  Such is hardly a defense to an intentional murder.

 

One of the two defense counsel testified.  She obviously was very distressed that her client had received the death penalty.  However, her testimony failed to show that there was inadequate performance of counsel.

 

A brief mention of the facts of the offense indicated Mr. Kenley took a gun into a bar and killed a man who looked at him because he was afraid the man would be able to identify him.  It is difficult to imagine a more cold blooded, needless act.

 

The motion of the Movant and all parts thereof is denied.

 

                        2.            The Assistant Attorney General’s Findings

 

On April 22, 1996, the assistant attorney general wrote the judge a letter suggesting that his conclusions were not detailed enough to hold up to higher court scrutiny.  Along with this letter, the assistant attorney general included what she referred to as “proposed” Findings of Facts and Conclusions of Law for the court to sign.  Significantly, this 29-page document did not contain the word “proposed” but rather was entitled “Findings of Fact and Conclusions of Law” and had a place at the end for the court’s signature.

 

On April 26, 1996, four days after the attorney general had put her findings in the mail; the motion court signed the findings verbatim without any notice or opportunity to be heard given to Kenneth’s counsel.  The motion court’s actions in signing off on the attorney general’s findings violated Kenneth’s Due Process rights to notice and an opportunity to be heard.  Courts have consistently disapproved of this practice of signing ghost-written orders.  See e.g., United States v. El Paso Natural Gas Co., 376 U.S. 651, 656 (1964); United States v. Marine Bancorporation, 418 U.S. 602, 615 (1974).

 

3.            The Motion Court Clearly Did Not Understand the Issues it Was Charged with Resolving

 

The independent findings of the motion court show that the court did not understand the issues it was faced with at the evidentiary hearing.  The court’s conclusion that coming from a dysfunctional family and having a difficult childhood is not a defense to intentional murder completely misses the point.  At the trial Kenneth had already been found guilty of intentional murder, the issue for the motion court was whether he received effective assistance of counsel on the question of the appropriate punishment.  At no point in the postconviction motion or during the two days of testimony at the evidentiary hearing did anyone claim trial counsel should have mounted a defense to intentional murder, which was obviously never an issue.

 

A review of the experts’ testimony at the evidentiary hearing shows that it went much further than to say Kenneth had a bad childhood.  Furthermore, the experts’ testimony as to Kenneth’s childhood and every other aspect of Kenneth they uncovered is exactly the kind of evidence commonly used in mitigation.  The motion court, however, fails to even touch on the issue of whether this testimony raises a reasonable probability of a different result at trial had it been presented in mitigation.

 

Finally, even in the brief conclusions the motion court draws, he misstates the facts of the case.  The trial transcript reveals no support for the court’s finding that Kenneth shot the victim to avoid identification.  To the contrary, dozens of other eventual identification witnesses were not harmed, and their testimony shows that Kenneth shot the victim because he wasn’t moving fast enough and Kenneth wanted to prove he meant business.

 

In light of these findings, it is impossible to conclude that in the 1 or 2 days the motion court had the attorney general’s findings before he signed them that he made a considered judgment that he was in agreement with each of the detailed findings put forth by the attorney general.  The attorney general’s findings contain facts not supported by the record that are impossible for her to know.  For example, her findings assert that “the Court has reviewed the 1600+ pages of material that Movant has submitted.”  The last eleven pages of the findings are devoted to drawing conclusions on issues that did not receive one word of mention in the court’s findings.  

 

4.            The Motion Court’s Findings Were Inconsistent With the Assistant Attorney General’s Findings

 

The notion that the attorney general’s findings are the independent judgment of the motion court is further undermined by the fact that the two findings are inconsistent.  The motion court specifically comments on the testimony of the defense experts in his findings.  If the court had found these experts to be incredible, surely he would have dismissed their testimony as such in his findings.  Instead, he seems to find the testimony credible but irrelevant to the issue of guilt (which was actually not an issue).

 

In contrast, the attorney general’s findings state that each defense expert was not a credible witness.  The attorney general even goes so far as to find Dr. Parwatikar’s testimony to be credible and cites his testimony as one basis for discrediting Dr. Smith and Dr. Peterson.  It is unlikely that the court could have reached this conclusion since Dr. Parwatikar did not testify at the evidentiary hearing[7] and the court makes no mention of anything in the doctor’s report or trial testimony when discussing the expert witnesses in his findings.

 

The motion court’s conclusion that the “thrust” of the defense experts’ testimony “was that Kenneth Kenley came from a dysfunctional family and had a difficult childhood” also conflicts with the attorney general’s findings.  In contrast, the attorney general spends over four pages detailing the psychological diagnoses and conclusions the defense experts relied on, most of which have nothing to do with Kenneth’s difficult family life or childhood.

 

                        5.            The Missouri Supreme Court’s Review

 

The Missouri Supreme Court found that the issue of the motion court improperly signing off on the attorney general’s findings of fact and conclusions of law that contradicted its own findings was not preserved for appellate review.  State v. Kenley, 952 S.W.2d 250, 260 (Mo. banc 1997).  The court rationalized that because Mr. Kenley’s counsel did not present proposed findings and conclusions in response to the attorney general’s proposals, he failed to raise the claim of error at the earliest opportunity, thereby waiving appellate review.  The problem with this logic, of course, is that the motion court signed the “proposed” findings of the attorney general four days after they were put in the mail.  It was therefore impossible for defense counsel to have received the attorney general’s findings, drafted her own, and mailed them to be received by the court before he signed the state’s findings.  Furthermore, due to the court’s specific direction that he did not want the parties to submit findings, it is unreasonable to expect that defense counsel would have submitted findings without prompting from the court.

 

Judge Stith accurately characterizes the findings in her opinion concurring in part and dissenting in part in the Missouri Supreme Court, “because the circumstances surrounding the adoption of the State’s proposed findings raise not just colorable, but substantial, doubt as to the independence of the judgment exercised by the motion court, we should reverse and remand for independent findings of fact and conclusions of law.”  State v. Kenley, 952 S.W.2d 250, 285 (Mo. banc 1997).  Unfortunately this didn’t happen and the motion court’s actions were allowed to stand.

 

                        6.            Federal Court Review

 

Counsel for Mr. Kenley raised this issue in his Petition for Writ of Habeas Corpus filed in the Eastern District of Missouri.  Chief Judge Jean C. Hamilton granted relief on the claim, finding that Mr. Kenley’s due process rights had been violated by the motion court’s actions.  Judge Hamilton ordered a rehearing of the postconviction issues by the motion court.  See Kenley v. Bowersox, 4:98CV48(JCH), (E.D. Mo. July 26, 1999).  On appellate review initiated by the attorney general, the Eighth Circuit Court of Appeals reversed the district court’s grant of relief.  Like the Missouri Supreme Court, the Eighth Circuit relied on procedural grounds to deny relief on the issue, holding that “violations of due process during state post-conviction proceedings are not remediable by federal habeas corpus.”  Kenley v. Bowersox, 228 F.3d 934, 939 (2000).

 

Despite the procedural hurdles, two judges during the appellate process (Judge Stith in the Missouri Supreme Court and Judge Hamilton in the Eastern District Court) recognized the injustice of the review Mr. Kenley received on this issue.  The expert testimony of the three doctors was presented for the first time to the motion court judge, who had no understanding of the issues or the testimony, as reflected by his findings.  The issue of trial counsel’s ineffectiveness was not some matter of collateral or technical appellate review.  Instead, it went to the very heart of Mr. Kenley’s sentence.  Had trial counsel presented the evidence unearthed by postconviction counsel, Mr. Kenley’s sentence would have likely been different.  Tragically, no appellate court adequately considered this fact.  The court that did have the opportunity to personally hear the testimony and other evidence presented at the Rule 29.15 postconviction hearing woefully mishandled its obligations in determining whether relief was warranted.  For this reason, Mr. Kenley now turns to Governor Holden, his last avenue for relief.  Surely it is exactly these types of situations – where the court system has failed the condemned man – that the statute and the Constitution contemplated when granting to the Governor the final opportunity to prevent an injustice.  Such injustice here can only be corrected by Governor Holden’s grant of clemency, or in the least, appointment of a board of inquiry.

 

II.            Deliberate Indifference Causing Mr. Kenley to Contract, and not be Treated for, Hepatitis C

 

In making his decision, we also ask that Governor Holden consider the cruel and inhuman manner in which Mr. Kenley has been treated at the Potosi Correctional Center.

 

Mr. Kenley has contracted hepatitis C disease while housed at Potosi.

 

Counsel are confident that the Governor is aware that hepatitis C is a serious medical condition.  Certainly, the courts have so found.  See Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001).  Hepatitis C is a viral infection spread from one person to another due to direct exposure to infected blood or blood products, usually on needles or sharp objects.  Risk factors do not include sexual contact, but do include tattooing and sharing of toothbrushes, nail files and nail clippers.  For information in this regard, please see www.hepatitisinnovations.com. 

 

As virulent as is hepatitis C, an effective treatment regime has been developed and accepted by the medical community.  That treatment regime is a combination therapy with a pegylated alpha interferon, which helps boost the body’s immune system, and biavirin, an antiviral.  Put simply, the treatment acts to help the body rid itself of the viral infection.  Treatment of an individual reduces the risk that he will spread the disease to another.  Again, please see www.hepatitisinnovations.com. 

 

Spread of the disease can be effectively prevented if a series of simple steps is taken.

 

A.        identify those infected, isolate and treat them,

B.         educate the population which is not yet infected about the risk factors presented by tattooing, and sharing of toothbrushes, nail files and nail clippers,

C.        take available steps to eliminate the risk factors, such as providing sufficient toothbrushes, nail files and nail clippers to eliminate the need for sharing, identifying and punishing those who perform tattooing, searching for and seizing needles and ink used for tattooing.

 

Employees of the State of Missouri in charge at the Potosi Correctional Center reasonably knew all about hepatitis C.  Well before Kenneth ever became infected, those state employees knew that a substantial percentage of the inmate population at Potosi already was infected with the hepatitis C virus.  Further, these same employees knew how dangerous hepatitis C was, and how the spread of the disease could be prevented.  Unfortunately for Mr. Kenley, those same state employees recklessly disregarded all of that.  Particularly, those employees did not take the steps to prevent spread of the disease.

 

Meantime, Mr. Kenley received tattoos.  Employees of the Potosi Correctional Center provided for Mr. Kenley’s toothbrushes, nail files and nail clippers which had been used by other inmates.  At the time that Mr. Kenley engaged in receiving tattoos and using toothbrushes, nail files and nail clippers used by other inmates, he did not know that, by doing so, he was risking infection with hepatitis C.

 

Clearly, the employees of the State of Missouri in charge at the Potosi Correctional Center were deliberately indifferent to Mr. Kenley’s safety, and as a direct result of that deliberate indifference by State employees, Kenneth became infected with the hepatitis C virus.

 

What makes this matter even worse is that State employees and contractors have hidden Mr. Kenley’s infection from him, and have refused to treat him for the infection.

 

In the Fall of 2001, medical workers at Potosi conducted tests to ascertain for certain that Mr. Kenley indeed has the disease.  After those tests were completed, Potosi medical staff for the first time informed Mr. Kenley about his contraction of the hepatitis C virus.

 

However, upwards of three years before that, as a result of blood testing and other clinical information in their possession, Potosi medical staff reasonably would have known about Mr. Kenley’s hepatitis infection.  Despite having this base of knowledge, Potosi medical staff recklessly disregarded that information, did not inform Mr. Kenley about the infection, and did nothing to treat Mr. Kenley for the hepatitis infection.

 

After learning about his infection with hepatitis C in 2001, Mr. Kenley requested that he receive treatment for the infection.  Despite this request for treatment by Mr. Kenley, medical staff at Potosi, with full concurrence by administrators, refuse to provide treatment to Mr. Kenley.

 

As a result of his infection with hepatitis C, Mr. Kenley has suffered greatly over the last three years.  Particularly, Kenneth has persistently suffered severe stomach problems, constipation, nausea, and loss of energy.  Consequently, Mr. Kenley has suffered pain, loss of sleep, and emotional distress.

 

We assume that Governor Holden will be as shocked as we that such cruel and unusual punishment has been inflicted upon Kenneth Kenley.  We trust that Governor Holden also understands that we have found it necessary to bring an action in Federal District Court under 42 U.S.C. §1983 in an effort to redress these serious offenses against Mr. Kenley.  We ask that Governor Holden act to remedy these abuses through his clemency power, by commuting Mr. Kenley’s sentence to life imprisonment without parole.  We also ask that, as the Chief Executive of the State, Governor Holden direct that those in authority at the Potosi Correctional Center begin immediate treatment of Mr. Kenley’s hepatitis C infection as described above.  If we are unable to convince Governor Holden to commute Mr. Kenley’s sentence for these reasons, or to appoint a board of inquiry, we fervently ask that Governor Holden stay Mr. Kenley’s execution to permit the Courts to fully consider the issues raised by Mr. Kenley in connection with the wrongs which have been visited on him.

 

III.            Kenneth Kenley is Not Competent to be Executed

 

“The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane.”  Ford v. Wainwright, 477 U.S. 399, 410 (1986).  This fact is embodied in a Missouri statute, which states:

 

No person condemned to death shall be executed if as a result of mental disease or defect he lacks capacity to understand the nature and purpose of the punishment about to be imposed upon him or matters in extenuation, arguments for clemency or reasons why the sentence should not be carried out.

 

§552.060.1 RSMO (2002).

 

Where a death row inmate “ ‘appears to have a mental disease or defect excluding fitness for execution’ [, he] is afforded a hearing in state court on the question of the inmate’s competence to be executed.”  Shaw v. Armontrout, 900 F.2d 123 (8th Cir. 1990) (quoting §552.060.2-.3 RSMO).  Mr. Kenley is pursing this remedy in the Missouri Supreme Court.  However, should the courts fail to intercede, Governor Holden should appoint a board of inquiry to review the issue in light of Kenneth’s long standing history of mental illness.

 

As detailed above, Kenneth’s mental illness became obvious from the time he was a young child.  In 1996, Dr. Stephen Peterson summarized Mr. Kenley’s condition following his psychiatric assessment of Kenneth:

 

Mr. Kenley’s current severe psychological deficits and psychiatric abnormalities are chronic.  He began to manifest severe psychiatric symptoms in grade school and there was no effective intervention provided until he reached the penitentiary.  His currently well described neurologic deficits and psychiatric problems have been evidenced since early childhood.  They were greatly complicated by his extreme substance dependency.

 

Dr. Peterson concluded that Kenneth was deprived of “normal reflection, control and containment,” and that although he “was generally fully aware of his actions on [the night of the crime], he was deprived of an ability to fully refrain, reflect upon, and restrain his actions.”  Such inability appeared as early as 1971 and continued through the time of the report according to Dr. Peterson.

 

Indeed, these disabilities persist in Kenneth today.  He is able to maintain control over his thought and actions due only to what Dr. Peterson describes as “the highly structured correctional setting combined with powerful psychiatric medication.”

 

In short, if Kenneth is competent at all today it is only because he is heavily medicated.  In Singleton v. Norris, 267 F.3d 859, 869 (8th Cir. 2001) the court condemned the practice of medicating an inmate to the point of competency just so he may be executed.  The Singleton court expressed concern that there was no way to know if petitioner would be competent on the day he was executed.  Id. at 870.  One problem, also seen in Kenneth’s case, was the inconsistent administration of medication to Mr. Singleton.  Id.  Naturally, the result was that Singleton slipped in and out of competence to be executed.  The Singleton decision was vacated on December 5, 2001 when rehearing en banc was granted.  To date, the court has not issued an opinion.  Obviously, such opinion could determine the outcome of Mr. Kenley’s claim of incompetency.

 

There is significant evidence that Kenneth is not competent even in his current condition of heavy medication.  Even the psychologist at Potosi believes Kenneth is being over medicated.  Unfortunately, the psychiatrist controls medication levels.  In his current condition, Kenneth slurs his speech, loses his train of thought, refers to people he knows well by the wrong name, repeats himself often, and occasionally drops the phone in mid conversation.  While he understands that he is to be executed, he is unable to discuss and comprehend reasons such punishment should not be carried out.  In laymen’s terms, Kenneth’s current medications have the effect of putting him in “la la land,” unable to appreciate the reality of his execution and devoid of his previous desire to fight such action.

 

Conversely, when Kenneth is not medicated, he is clearly not competent to be executed.  Unfortunately, counsel is well versed in this fact, as they have experienced times when Kenneth is either off his medications or on the wrong medications and/or dosages.  During these episodes Kenneth is severely paranoid that prison staff and inmates, as well as his own attorneys, are out to get him or working against him.  He reacts to anything that he interprets as wrong or unfair with angry uncontrollable outbursts that have no basis in logic, and at times with threats of violence.  During these periods, counsel is simply unable to communicate with Kenneth.

 

At this time, despite persistent efforts by counsel, Mr. Kenley’s medical records are unavailable.  At the first opportunity, counsel will provide the Governor specific information as to Kenneth’s medications, dosages and effects on his behavior.  As these records will reflect, Kenneth spent a great deal of his time at Potosi in SNU – the Special Needs Unit of the prison.  This Unit is designed for mentally ill inmates and, until recently, had a goal of providing treatment to such inmates.  Due to the duration and severity of Kenneth’s illness, and certainly in part to the lack of prison resources, it has not been possible to bring Kenneth into “competency.”  Therefore, in the absence of court action, Governor Holden must act to prevent what “consistently has been branded ‘savage and inhuman’,” – execution of one who has lost his sanity.  Ford, at 406 (citation omitted).

 

CONCLUSION

 

Article IV, §7 of the Missouri Constitution invests in the Governor the “power to grant reprieves, commutations and pardons, after conviction . . . upon such conditions and with such limitations as he may deem proper.”  He is not restricted by strict rules of evidence, and is free to consider a wide range of legal and equitable factors in the exercise of his clemency powers.  See Whitaker v. State, 451 S.W.2d 11, 15 (Mo. 1990).  He may consider any aspect of the case, including claims that the courts have declined to review for procedural reasons.  See Ohio Adult Parole Authority, et al. v. Woodward, 523 U.S. 272, 280-81 (1998).  Governor Holden is also free to expand the relevant case law and apply his own interpretation to grant relief if he so desires.

 

For all of the reasons stated in this petition, we implore Governor Holden to grant clemency to Kenneth Kenley and commute his sentence to life imprisonment without parole.  At the very least, we ask that the Governor exercise his power to appoint a board of inquiry to investigate and determine the factual allegations in this petition.

 

                                                                                    Respectfully Submitted,

 

 

________________________                                    ________________________

Jennifer Brewer                                                            Frederick A. Duchardt, Jr.

Missouri Bar No. 37921                                           Missouri Bar No. 28868

33 Flower Valley, #188                                         P.O. Box 349, 110 E. 6th St.

St Louis, MO 63033                                                  Kearney, MO 64060

Telephone: 314-831-5531                                     Telephone: 816-628-9095

Facsimile: 314-831-5645                                             Facsimile: 816-628-9046

 

                                                                                    Counsel for Kenneth Kenley

 

 

 


[1] Counsel for Mr. Kenley have detailed medical records only through 1995.  A request was made for the complete medical file soon after the execution date was set.  Counsel were recently informed that someone “sat on” the request, and that the records will not be in counsel’s possession before this petition is filed with the Governor.  Therefore, counsel will update the Governor as to the specific medications Mr. Kenley is receiving and the effects of such medications as soon as the information is available.  For the present time, it is worth noting that in the five years counsel have known Mr. Kenley the only outbursts or other problems have come at times when Kenneth is not receiving his medications or is not receiving appropriate levels or types of medication.

[2] See Hill, S.Y. “Biological phenotypes associated with individuals at high risk for developing alcohol-related disorders: Part 1.” Addict. Biol., 5 (2000); Prescott, C.A. and Kendler, K.S. “Genetic and environmental contributions to alcohol abuse and dependence in a population-based sample of male twins.”  American Journal of Psychiatry, 156 (1999).

[3] Schuckit, Marc A., and Tom L. Smith.  “Correlates of Unpredicted Outcomes in Sons of Alcoholics and Controls.”  Journal of Studies on Alcohol. v62, i4, p477 (July 2001).

[4] Yeager, Raymond J., Raymond DiGiuseppe, Peter John Resweber, and Russell Leaf.  “Comparison of Millon personality profiles of chronic residential substance abusers and a general outpatient population.”  Psychological Reports. v71, n1, p71(9) (August 1992).  

[5] Skinstad, Anne Helene, and Annette Swain.  “Comorbidity in a Clinical Sample of Substance Abusers.”  American Journal of Drug and Alcohol Abuse.  v27, i1, p45 (Feb 2001).

[6] Dr. Dorsey Dysart did brain mapping and some abnormality was found.

[7] The state put on no evidence at the evidentiary hearing.