MOSE YOUNG, Plaintiff v. DEE JOYCE HAYES, Circuit Attorney for the City of St. Louis In her individual and official capacity ALFRED D. LUEBBERS, Potosi Correctional Center In his individual and official capacity Defendants.

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No. __________

Plaintiff Mose Young respectfully submits this memorandum of law in support of his Complaint.

Mr. Young seeks to enjoin defendant Hayes from threatening the livelihood of Mr. Young's critical witness, and to enjoin defendant Luebbers from executing Mr. Young while this litigation is pending. Hayes has ordered Jane Geiler, an Assistant Circuit Attorney, not to provide truthful information to the Board of Probation and Parole, for use in Mr. Young's application for executive clemency, and has threatened to fire Ms. Geiler if she provides the statement. Though Ms. Geiler originally agreed to provide a statement to the Board of Probation and Parole, she decided to remain silent - rather than risk her career - after Hayes made her threats.

In considering Mr. Young's request, this Court must weigh: (1) the threat of irreparable harm to Mr. Young; (2) the likelihood that Mr. Young will succeed on the merits; (3) the balance between the harm to Mr. Young if the injunction is denied, and the harm to the defendant if the injunction is granted; and (4) the public interest. Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981)(en banc); Entergy, Arkansas, Inc. v. State of Nebraska, ___ F.3d ___, 2000 WL 37116 (8th Cir. April 12, 2000). As the Court of Appeals has stressed, these factors are not a rigid formula, and "the basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Bandag, Inc. v. Jack's Tire & Oil, Inc., 190 F.3d 924, 926 (8th Cir. 1999), quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959). As demonstrated below, each of these factors weighs heavily in favor of the requested relief.

In addition, to preserve this Court's jurisdiction, Mr. Young moves for a stay of his imminent execution, now scheduled for July 12, 2000. This request is necessary only because defendant's threats have made it impossible for Mr. Young to prepare and file a meaningful clemency request.

Defendant Hayes, the elected Circuit Attorney for the City of St. Louis, has threatened to fire Mr. Young's critical witness if that witness cooperates by telling the truth to the Missouri Board of Probation and Parole and Missouri Governor Mel Carnahan. Because this witness recently underwent major surgery, she cannot risk the loss of her medical benefits. Rather than risk the end or her career, and the threat to her health, this witness has decided she cannot cooperate further. Without her statement, Mr.

Young cannot mount a meaningful clemency effort, and the Board of Probation and Parole will find themselves in the unenviable position of deciding Mr. Young's fate without this critical information. To remedy this, Mr. Young has brought suit, seeking a preliminary injunction and a stay of his imminent execution.

Since early 1985, Jane Geiler has been a prosecutor with the Office of the Circuit Attorney for the City of St. Louis, the same office that prosecuted Mr. Young. Prior to becoming a prosecutor, Ms. Geiler headed the Office of the Special Defender. Mr. Jack Walsh was a part-time attorney with that office when he represented Mr. Young. On June 23, 2000, undersigned counsel interviewed Ms. Geiler, who spoke from her home. See Complaint Exhibit 1, Notes from June 23, 2000 Conversation with Jane Geiler. Often choking back tears, Ms. Geiler described Mr. Walsh's utter and abysmal failures throughout the case, beginning with an unmitigated failure to prepare. Mr. Walsh inherited the case virtually at the last minute, and tried the case immediately after defending a major rape trial, which followed immediately on the heels of another murder trial. Immediately after Mr. Young's trial, Mr. Walsh was forced to try yet another capital case. By the time this last trial started, Mr. Walsh was coughing up blood.

Operating under these conditions, Ms. Geiler recalls that Mr. Walsh - who never even visited the scene of the crime in Mr. Young's case - made no attempt to investigate or prepare prior to trial. But perhaps most importantly, in a trial for a man's life, Ms. Geiler remembers that Mr. Walsh had given no thought, let alone prepared for, the punishment phase. Indeed, Ms. Geiler vividly remembers the night, during trial, when Mr. Walsh came to her home, well past midnight. During this bizarre meeting, it was Ms. Geiler who developed the punishment phase instructions to the jury, and attempted to

force-feed Mr. Walsh the arguments he could use to beg for his client's life. In the trial for Mr. Young's life, Mr. Walsh did virtually nothing.

But Ms. Geiler does not blame Mr. Walsh. To this day, Ms. Geiler describes Mr. Walsh as her hero, but a tragic hero, who failed miserably and collapsed under the weight of an oppressive system. To understand Mr. Walsh's abysmal failure, Ms. Geiler believed it was also necessary to comprehend the equally abject conditions under which her office operated. The Office of the Special Defender was not overworked, it was overwhelmed. Even in the most serious cases, attorneys litigated without the time, resources, and support essential to their clients' defense. In many cases, Ms. Geiler explained, the attorneys working in her office were veritable walking violations of the right to effective assistance of counsel. When asked specifically whether she thought that appellation applied to Mr. Walsh's defense of Mr. Young, Ms. Geiler said without hesitation that it did. When asked specifically whether Mr. Young received a fair trial, Ms. Geiler said, again without hesitation, that he did not. Her office was a classic example of institutional ineffectiveness, and Mr. Young's defense was the shining illustration.

Shortly after Mr. Young's trial, Ms. Geiler joined the Office of the St. Louis Circuit Attorney. In the third part of our conversation, Ms. Geiler described the loathsome and nearly universal practice of the prosecutors in that office to use their peremptory challenges to remove Blacks from criminal juries. In 1986, the Supreme Court in Batson v. Kentucky limited a prosecutor's ability to use his peremptory challenges to remove people of color. But, Ms. Geiler explained - speaking slowly and emphasizing her words - prior to that decision, prosecutors in her office "always,

always" used their strikes against Blacks. Blacks, she said, were not viewed as individuals, but as a group - just as they viewed members of certain professions, or people with advanced degrees. People in these groups were considered presumptively hostile to the prosecution. As a result, she said, "you didn't have to be a racist to use all your strikes against Blacks, you just had to be a good prosecutor who wanted to win." The prosecutor in Mr. Young's case used all nine of his strikes against Blacks - some of whom he removed without so much as asking a question. Ms. Geiler found this fact completely unsurprising, since the prosecutors in her office practiced racial profiling long before the term had been coined.

Counsel then explained that there was much more information he needed, and asked Ms. Geiler if she would provide a taped statement for use in Mr. Young's clemency application. She agreed, and asked that the meeting be scheduled at the office of Richard Sindel. We scheduled a further meeting for Monday, June 26, 2000, at Mr. Sindel's office. Later that day, counsel received a voice message from Ms. Geiler. See Complaint Exhibit 2, Copy of Tape of Message Left By Jane Geiler on Counsel's Voicemail, Along with Affidavit of Counsel. In that message, Ms. Geiler said she had recently left a meeting with her "boss." In that meeting, her boss - whom she later identified as the elected Circuit Attorney for the City of St. Louis - forbade her from cooperating with me, and made it clear that, if she did, she would have to leave the office. In her message, Ms. Geiler asked counsel to call her that weekend.

Counsel called the next morning, June 24, 2000. I was appalled by the threat to Ms. Geiler's career, and asked whether she believed the threat was serious. Ms. Geiler said, "There was no ambiguity. She told me if I give you a statement, I will lose my job."

Again choking back tears, Ms. Geiler explained that she simply could not afford to lose her job. She explained that she and her husband had both recently experienced major medical problems. In Ms. Geiler's case, she had recently completed major surgery. (Counsel has moved to file this pleading, and the Complaint, under seal. Should that Motion be denied, this document will be available to the public. For that reason, and in fairness to Ms. Geiler, counsel has chosen not to describe further Ms. Geiler's medical condition, although he can elaborate for the Court if requested). Because of her condition, Ms. Geiler explained that she needed the insurance that came with her position, and could not do anything that would jeopardize her job. She emphasized that what she had said in our previous conversation was true, but that she could not, and would not, cooperate further.

"Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered." 11 Wright & Miller, Federal Practice and Procedure: Civil § 2948. When the alleged deprivation of a constitutionally protected right is involved, no further showing of irreparable injury is required. Deerfield Med. Center v. City of Deerfield, 661 F.2d 328, 338 (5th Cir. 1981) (determination that the constitutional right to privacy was either threatened or in fact being impaired "mandates a finding of irreparable injury").

Mr. Young's execution is set for July 12, 2000. If this injunction is not granted, Mr. Young will be executed before he has had an opportunity either to pursue relief in this action, or to pursue executive clemency, as guaranteed by Missouri law. For this reason, his injury will undoubtedly be irreparable. See Vitek v. Jones, 445 U.S. 480, 486 (1979)(while prisoner "under threat" of being transferred to a mental hospital in the future, his challenge to procedures governing transfer was not moot).

At this stage, Mr. Young need only show a substantial likelihood of eventual success. Count One of his Complaint raises a claim under the Due Process Clause of the Fourteenth Amendment; Count Two relies on the Free Speech Clause of the First Amendment. He treats these claims in turn.

The Due Process Clause of the Fourteenth Amendment prohibits the Government from ordering a witness not to speak with the representatives of a criminal defendant. The law on this matter is abundantly well-settled, both in this Circuit and around the country. See, e.g., United States v. Bittner, 728 F.2d 1038, 1041-42 (8th Cir. 1984); United States v. Long, 449 F.2d 288, 295 (8th Cir. 1971)("both sides have an equal right and should have an equal opportunity to interview [witnesses]."); United States v. Gonzalez, 164 F.3d 1285, 1292 (10th Cir. 1999)(defendant has "a right to be free from

prosecution interference with a witness' freedom of choice about whether to talk to the defense."); United States v. Agostino, 132 F.3d 1183, 1191 (7th Cir. 1991)("clear showing that the government instructed the witness not to cooperate with the defendant" violates due process and requires reversal); United States ex rel. Jones v. DeRobertis, 766 F.2d 270, 273 (7th Cir. 1985)(right to due process violated "if the state artificially restricted the defendant's ability to obtain evidence" by directing witness not to speak with defense); Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981); United States v. Castillo, 615 F.2d 878, 882 (9th Cir. 1980); United States v. Walton, 602 F.2d 1176, 1179-80 (4th Cir. 1979) ("A witness is not the exclusive property of either the government or a defendant; a defendant is entitled to have access to any prospective witness...."); United States v. Tsutagawa, 500 F.2d 420, 423 (9th Cir. 1974)("A defendant has the right to formulate his defense uninhibited by government conduct that, in effect, prevents him from interviewing witnesses who may be involved...."); Gregory v. United States, 369 F.2d 185, 187-89 (D.C. Cir. 1966).

It is immaterial that Mr. Young has been convicted and sentenced, since the protections of the Due Process Clause last until his death. Indeed, "once the process moves beyond the trial court, due process constitutes the almost exclusive source of constitutionally mandated procedural rights." LaFave, Israel, & King, Criminal Procedure, §2.7(a) (2d ed. 1999). See, e.g., Blackledge v. Perry, 417 U.S. 21 (1974)(due process prohibits prosecutorial retaliation for defendant's decision to seek retrial); North Carolina v. Pearce, 395 U.S. 711 (1969)(due process prohibits judicial vindictiveness in resentencing after defendant prevailed on appeal); Douglas v. Buder, 412 U.S. 430 (1973)(due process prohibits probation revocation absent a violation of express or clearly

implied condition of probation); Black v. Romano, 471 U.S. 606 (1985)(discussing requirements imposed by due process clause on probation revocation proceedings).

Nor is it a defense that Mr. Young has exhausted his judicial remedies. The protections of the Due Process Clause apply to clemency proceedings, Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288-89 (1988)(O'Connor, J., concurring in part and concurring in the judgment)(opinion for the Court), and the Fourteenth Amendment prohibits a State from arbitrarily or vindictively denying a prisoner access to its clemency process. Id. at 289.

As Ms. Geiler tearfully recounts in her taped statement, Hayes has forbidden her from providing a statement. But for defendant's threat, Ms. Geiler would have provided a powerful statement on Mr. Young's behalf. Hayes is not privileged to make such a threat, and Mr. Young has demonstrated a substantial likelihood that he will prevail on this Count.

In no uncertain terms, defendant Hayes threatened to discharge Ms. Geiler if she told the Board of Probation and Parole and the Governor the truth about Mr. Young's case. Though Ms. Geiler had previously agreed to provide a statement, she changed her mind when Hayes threatened her livelihood.

These facts establish a straightforward violation of the First Amendment. "It is clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." Rankin v. McPherson, 483 U.S. 378, 383 (1987); Sexton v. Martin, 210 F.3d 905, 907-910 (8th Cir. 2000). As discussed below, Ms. Geiler's statement clearly addresses "a matter of public

concern," Connick v. Myers, 461 U.S. 138, 147-48 (1983), and the interest in allowing her to comment on matters of public concern far outweighs "the interest of the [public employer] in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568 (1968). Finally, as the Seventh Circuit recently recognized in a virtually identical suit, Mr. Young has third party standing to raise the First Amendment claim on Ms. Geiler's behalf. Shimer v. Washington, 100 F.3d 506 (7th Cir. 1996).1

It is clear beyond peradventure that Ms. Geiler's statement - for use by a state agency investigating the propriety of executing a Missouri inmate, and concerning illegalities in the inmate's prosecution and defense - is a matter of grave public concern. In analogous circumstances, courts around the country have recognized that statements on far less pressing matters occupy "the highest rung of hierarchy of First Amendment values." Barnard v. Jackson County, Mo., 43 F.3d 1218, 1225 (8th Cir.), cert. denied, 516 U.S. 808 (1995)(collecting cases). See, e.g., Buzek v. County of Saunders, 972 F.2d 992, 995 (8th Cir. 1992)(letter written voluntarily by police officer on defendant's behalf

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1 The fact that Ms. Geiler elected to remain silent, rather than to speak and lose her job, does not affect justiciability. See Steffel v. Thompson, 415 U.S. 452, 458-59 (1974)(petitioner who elects to remain silent, rather than to speak and risk prosecution, may still challenge statute under First Amendment; "it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights."); cf. also Rutan v. Republican Party of Illinois, 497 U.S. 62, 64 (1990)("the First Amendment forbids government officials to discharge or threaten to discharge public employees for not being supporters of the political party in power....")(emphasis added).

at sentencing was a matter of public concern; "The proper sentencing of a criminal defendant is clearly a matter of public concern. This public concern is not diminished because the speaker is a law enforcement officer."); Green v. Philadelphia Housing Authority, 105 F.3d 882 (3d Cir.), cert. denied, 118 S.Ct. 64 (1997)(police officer's voluntary appearance for defendant at bail hearing was matter of public concern); Kincade v. City of Blue Springs, 64 F.3d 389, 396 (8th Cir. 1995)(employee's speech "touches upon a matter of public concern when it is a 'matter of political, social, or other concern to the community' at large"), quoting Connick, 461 U.S. at 146; Brockell v. Norton, 732 F.2d 664, 668 (8th Cir. 1984) (allegation that a police officer improperly had a copy of certification questions prior to taking test was a matter of public concern; "the public has a vital interest in the integrity of those commissioned to enforce the law."); O'Donnell v. Yanchulis, 875 F.2d 1059, 1061 (3d Cir. 1989)("allegations of corrupt practices by government officials are of the utmost public concern.")

It seems hardly credible for the defendant to argue that a prosecutor's truthful statement about matters that took place nearly twenty years earlier, under the tenure of a different chief prosecutor, would wreak havoc with the morale and efficient operation of the office today. This Court, however, need not undertake that inquiry, since the matter can be resolved in Mr. Young's favor on another ground. By statute, statements given to the Board of Probation and Parole are privileged and confidential. RSMo 549.500 provides as follows:

All documents prepared or obtained in the discharge of official duties by any member or employee of the board of probation and parole shall be privileged and shall not be disclosed directly or indirectly to anyone other than members of the board and other authorized employees of the department [of corrections]....

For that reason, if defendant Hayes had allowed Ms. Geiler to make her statement, no one in her office, or in the media, or within the general public, could have learned what she said. Indeed, no one could have known a statement even existed. Under these circumstances, defendant cannot suggest Ms. Geiler's statement would have damaged the smooth operation of the Office of the Circuit Attorney.

Mr. Young has standing to assert this claim because he satisfies both the constitutional and prudential requirements for federal jurisdiction. Under Article III, Mr. Young must show: (1) an actual or threatened injury; (2) fairly traceable to the challenged conduct; (3) that is likely to be redressed by a favorable ruling. See, e.g., Powers v. Ohio, 499 U.S. 400, 409-412 (1991). The prudential concerns are not required by the

Constitution, but exist to assure that litigants have a "sufficiently concrete interest" in the litigation to justify federal involvement. Id. (criminal defendants have third party standing to assert the interests of minority jurors improperly removed by the state both because of the practical difficulties in expecting jurors to litigate the matter themselves, and because a defendant's stake in the outcome of the proceeding assures they will litigate the claim aggressively).

In considering whether Mr. Young has standing to proceed, the Court should follow the lead of the Seventh Circuit, which recently addressed a nearly identical claim. In Shimer v Washington, 100 F.3d 506 (7th Cir. 1996), an inmate incarcerated on death row in Illinois brought a §1983 action, challenging the unwritten practice of the Illinois Department of Corrections prohibiting guards from writing letters to the Illinois Prisoner Review Board on an inmate's behalf. Id. at 507. Shimer, who indicated in his pro se complaint that, but for the policy, several guards would have written letters on his behalf, claimed the practice violated the guards' First Amendment rights to freedom of speech. The district court granted summary judgment for the defendants, concluding Shimer lacked third party standing to sue on the guards' behalf. Id.

The Seventh Circuit reversed. The court readily concluded Shimer satisfied the Article III "case or controversy" requirement, since he could prove an injury-in-fact caused by the prison's policy that would be corrected by the relief he sought - viz., a preliminary injunction. As the court explained:

Shimer alleges that prison guards would have written letters to the Prisoner Review Board, but for the policy. Without the guards' letters before them, the Board has less information about Shimer. ... Assuming that the letters would reflect that Shimer is a fit candidate for clemency, their absence at his hearing will affect him adversely. While Shimer has not shown the ultimate injury, the denial of clemency, he has shown that the policy may hinder the flow of information - a

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procedural defect which may act to his detriment. All that a plaintiff need show to establish standing to sue is a reasonable probability - not a certainty - of suffering tangible harm unless he obtains the relief he is seeking in his suit.

Id. at 508.

The court then turned to the "prudential boundaries on standing." Conceding that a litigant generally must assert his own rights and interests, see, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975), the court noted that this concern is frequently relaxed "in the area of First Amendment litigation." When the challenged law or practice has the potential to chill protected speech, creating the risk that the speech will not become part of the public discourse unless the lawsuit is allowed, the prudential concerns should yield. Id. at 508-09 (discussing Supreme Court and Seventh Circuit cases). "Our concern that a law will stifle protected speech justifies such allowance of third-party standing."

In this case, as in Shimer, the defendant has threatened a state employee with termination if she provides a confidential statement to the Board of Probation and Parole. Indeed, in several respects, the matter is considerably more serious in this case, since courts are traditionally reluctant to interfere with the internal workings of a prison. Far less deference need be given to the operation of a prosecutor's office. In addition, the guards in Shimer were in routine contact with other prisoners, including other death row inmates, which created the risk that other inmates could learn of any letter written on Shimer's behalf. This in turn could create tension on the row if, in some future case, a guard declines to write a letter. Such is clearly not the case here, since Ms. Geiler's involvement in this case portends nothing for the next inmate.

Mr. Young cannot identify any harm that would be suffered by defendants by an injunction. Whatever harm may be asserted, it is certainly outweighed by the injury Young would suffer if he were executed despite the deprivation of his federal constitutional rights.

Injunctive relief in this case advances two compelling public interests. First, the requested relief permits truthful discourse about matters of grave public concern by witnesses with first-hand knowledge. Second, the relief Mr. Young seeks will help insure that the State of Missouri makes responsible use of its awesome power to take a man's life. In the face of this, it seems implausible to suggest that equitable relief by this Court will not serve the public interest.

Mr. Young has demonstrated a substantial likelihood of success on the merits. Any alleged harm to either the defendants, the State of Missouri, or the public interest cannot outweigh the harm that Mr. Young would suffer if Hayes is allowed to persist in her threats, or the State of Missouri is allowed to execute Mr. Young, before this case can run its course. These circumstances demand the equitable intervention of this Court, and the relief requested should be granted.

Respectfully submitted,

________________________
Joseph Margulies
Minnesota Bar No. 208528
220 South Sixth Street, Suite 215
Minneapolis, Minnesota 55402
612/339-2673
fax 612/339-7851

John William Simon
Attorney at Law
200-A East High Street
Jefferson City, MO 65101

Counsel for Plaintiff

DATED: June 30, 2000

I, Joseph Margulies, declare that I am a citizen of the United States, employed in the City of Minneapolis, County of Hennepin, State of Minnesota, I am over the age of 18 years and not a party to this action or cause, my current business address is 220 South Sixth Street, Suite 215, Minneapolis, MN, 55402. I hereby certify that on July 3, 2000, a true and accurate copy of the foregoing Memorandum of Law Regarding Issues To Be Resolved At Preliminary Injunction Hearing was served on defendant Hayes by hand delivery at the below listed address:

Office of the Circuit Attorney
1320 Market Street
St. Louis, MO 63103

and on defendant Luebbers by hand delivery at the below listed address:

Potosi Correctional Center
Rte. 2, Box 2222
Mineral Point, MO 63660

and on counsel for defendant Luebbers by hand delivery at the below listed address:

Michael Spillane
Assistant Missouri Attorney General
P.O. Box 899
Jefferson City, MO 65102

___________________
Joseph Margulies