Missouri

Missouri

Missouri Supreme Court Grants New Sentencing Trial to Man Who Was Sentenced to Death Despite 11 Jurors' Votes for Life

The Missouri Supreme Court has ordered a new sentencing trial for Marvin D. Rice (pictured), a former sheriff’s deputy whose trial judge sentenced him to death despite the votes of 11 of his 12 jurors to sentence him to life. On April 2, 2019, the court vacated the death sentence imposed by St. Charles County Judge Kelly Wayne Parker in 2017 under the state’s controversial “hung jury” sentencing provision. Under that law, the trial judge has authority to independently evaluate the evidence and determine the sentence to be imposed whenever the jury vote for life or death is not unanimous. Rice, a former Dent County deputy sheriff and state correctional officer, was charged with murdering his ex-girlfriend, Annette Durham, during a custody dispute over their son and killing her boyfriend, Steven Strotkamp. The jury convicted Rice of capital murder for killing Durham but was deemed hung when a single juror held out for death. It convicted him of second-degree murder in Strotkamp’s death and agreed to a life sentence for that murder. Parker disregarded the jury’s vote and imposed the death penalty for Durham’s murder.

No state in the United States authorizes a judge to override a jury's recommendation of a life sentence and all three states that previously permitted the practice ended it in the past three years. Missouri law, however, considers a non-unanimous vote a nullity rather than a recommendation, entrusting the sentencing decision to the judge. Rice challenged the constitutionality of the statute under the U.S. Supreme Court’s January 2016 ruling in Hurst v. Florida that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Rice also argued that the prosecutor’s repeated comments about his decision not to testify at trial violated the Fifth Amendment, which bars the use of a defendant’s silence against him. The Missouri court granted a new sentencing trial on the Fifth Amendment issue, avoiding having to decide the constitutionality of the state statute.

No jury has sentenced anyone to death in Missouri since 2013. However, since that time, Missouri judges have sentenced two defendants to death under the hung jury provision. In addition to Dent, a trial judge sentenced Craig Wood to death in 2018 after his jury split 10-2 in favor of a death sentence. As in Dent’s case, Wood’s lawyers have argued that allowing a judge to impose a death sentence when a jury does not reach a unanimous sentencing decision is unconstitutional. In 2016, the Florida Supreme Court and the Delaware Supreme Court struck down provisions in their death-penalty laws permitting judges to impose death sentences based upon non-unanimous jury recommendations for death. Alabama still permits that practice if ten or more jurors have voted for death.

Badly Divided Supreme Court Denies Execution Challenge by Prisoner With Rare Disease

In a divisive 5-4 decision that exposed rancor and deep rifts among the justices, the U.S. Supreme Court has given Missouri the go-ahead to execute a prisoner whose blood-filled tumors in his head, neck, and mouth could burst if the state carries out his execution by its chosen method. Russell Bucklew (pictured), who suffers from the rare medical condition, cavernous hemangioma, had argued that Missouri’s lethal injection procedures would subject him to unnecessarily torturous and excruciating pain caused by the combination of suffocation and drowning in his own blood. Writing for the Court majority, Justice Neil Gorsuch rejected Bucklew’s claim, saying that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” he wrote, “does not guarantee a prisoner a painless death.” Gorsuch said a death-row prisoner could not prove superadded pain without proposing an available alternative execution method and that Bucklew had failed to do so. The four dissenters sharply criticized the decision for ignoring evidence that Bucklew would be subjected to excruciating pain, for creating impossible burdens on prisoners to avoid a torturous execution, and for sacrificing constitutional values for expediency in death penalty cases.

In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.

Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”

In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in [2015], there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

Missouri Supreme Court Hears Case on ‘Hung Jury’ Death Sentences

The Missouri Supreme Court may soon rule on the constitutionality of the state’s practice of having the trial judge determine whether a capital defendant should live or die if the sentencing jury is unable to reach a unanimous verdict. Death-row prisoner Marvin Rice (pictured) was sentenced to death by the trial judge in August 2017, even though 11 of the 12 jurors in his case voted for a life sentence. His appeal, which the state court heard on January 23, 2019, argues that the portion of Missouri’s death-penalty statute that gives the trial judge exclusive sentencing authority in the event of a hung sentencing jury violates his “constitutionally protected rights to due process, a trial by jury, and to a unanimous jury verdict.”

At the time of the offense, Rice – a former deputy sheriff and disabled Army veteran – was suffering from a major depressive disorder that had been worsened by the effects of a pituitary gland tumor. Court documents indicated that he had been diagnosed with 12 various medical and psychiatric conditions for which he had been taking 17 different medications. Eleven jurors were persuaded by this and other mitigating evidence that Rice’s life should be spared, but a single hold-out juror for death hung the jury. Trial judge Kelly Wayne Parker then disregarded the jury’s vote and sentenced Rice to death.

Rice’s appeal also challenges the constitutionality of Missouri’s capital punishment statute on the grounds that virtually any homicide now qualifies as a capital offense. This, he argues, violates the constitutional requirement that the death penalty be limited to a narrow class of the worst-of-the-worst killings. He also seeks a new trial based upon police and prosecutorial misconduct in his case. Police, he says, unconstitutionally continued to interrogate him while he was hospitalized for gunshot wounds sustained during his arrest, even after he had said he did not want to answer their questions. He also argues that the prosecutor repeatedly violated his constitutional right to remain silent, improperly commenting on both his decision not to testify at trial and his refusal to answer police questions after having been given his Miranda warnings. Rice’s lawyer, Craig Johnston told the state justices: “This court has repeatedly held that where an objection is made and overruled as happened here, a direct reference to the defendant’s failure to testify will invariably result in a new trial.”

Only Missouri and Indiana allow a judge to impose a death sentence following a jury deadlock in the sentencing phase of a capital trial. Alabama also allows a judge to impose a death sentence following a non-unanimous jury sentencing vote, but only if at least ten jurors vote for death. No jury in Missouri has imposed a death sentence since 2013, but judges sentenced Rice and Craig Wood to death after juries could not reach a unanimous sentencing decision. Wood was sentenced to death in 2018 after his jury voted 10-2 for a death sentence. The U.S. Supreme Court has not addressed the constitutionality of Missouri’s hung jury sentencing practice. However, in 2016, the Court struck down Florida’s death sentencing statute saying its provision requiring the judge, rather than a jury, to find facts necessary to impose a death sentence violated the Sixth Amendment right to a jury trial.

Execution Secrecy Takes a Hit in Court Proceedings in Indiana, Missouri

The execution process in Indiana and Missouri may become more transparent as a result of public-access lawsuits filed in the two states. In Indiana, a Marion County trial judge ruled on November 30, 2018 that the state must release pre-2017 records concerning the drugs obtained by the state for executions and the companies that produced them. Three days earlier, the ACLU of Missouri announced the settlement of a lawsuit filed on behalf of investigative journalist Chris McDaniel that ensured that the Missouri Department of Corrections could no longer retaliate against reporters or news outlets by excluding them from witnessing executions.

The Indiana ruling came in a public records suit brought by a lawyer, A. Katherine Toomey, in which Circuit Court Judge Sheryl Lynch had previously ordered the state to disclose documents on the details of Indiana’s execution protocol. To evade compliance with the court’s 2016 order, at 2 a.m. on the final day of the 2017 legislative session, the legislature inserted a two-page secrecy provision into the state 175-page budget bill. That provision exempted the records Toomey had sought from public disclosure. David Dickmeyer, arguing on behalf of the state, told Judge Lynch that the new law constituted a “special circumstance” requiring the court to change her prior ruling. The secrecy provision was necessary, he asserted, because releasing the records would subject the state’s drug supplier to “public shaming, public protests, hate mail and lawsuits.” Judge Lynch disagreed, writing, "The General Assembly may not change the result of [the public records] litigation. While other requests may be precluded by the Statute, blocking Toomey’s request after this Court had already ordered the Department to produce the documents violates ... Indiana’s Constitution.”

The Missouri litigation challenged the state’s procedure for designating execution witnesses, which granted the director of the Department of Corrections sole discretion to select media witnesses. McDaniel—who as a reporter for St. Louis Public Radio and then BuzzFeed News had exposed questionable conduct by the Missouri Department of Corrections and reported that the state’s previously secret drug supplier had committed more than 1,800 health and safety violations—had applied to be a media witness for 17 executions. The corrections department ignored the applications and provided no reason for refusing to select McDaniel as a witness. In announcing the settlement, the ACLU of Missouri, which represented McDaniel, said: “The government cannot give or deny access to a reporter based on government officials’ feelings about an individual’s reporting.” Under the settlement, media witnesses will now include reporters designated by the Associated Press, the Missouri Broadcaster’s Association, and the Missouri Press Association, along with a fourth reporter from a local agency. “Executing inmates is the most serious power state governments have,” said McDaniel. “And the public has a right to know the details of how the government is using that power.”

An op-ed by Los Angeles Times opinion writer Scott Martelle took issue with the secrecy surrounding recent U.S. executions. “Secrecy advocates argue that the drugmakers must remain in the shadows to keep opponents of the death penalty from protesting them,” wrote Martelle. “In other words, if the states can’t conduct the people’s business in secret, the people might rise in opposition to the business the state is conducting. So much for open governments and public accountability.” The op-ed cited McDaniel’s investigation of the safety violations committed by the compounding pharmacy that produces Texas’s lethal-injection drugs and DPIC’s report on secrecy, Behind the Curtain: Secrecy and the Death Penalty in the United States. “Remember, executions are conducted in the name of the people, who have a right to know how the state performs the abominable act. This retreat into secrecy is an act of shame, not openness,” Martelle wrote.

Supreme Court Hears Argument in Missouri Lethal-Injection Case

The U.S. Supreme Court heard oral argument on November 6, 2018 in Bucklew v. Precythe on whether the use of lethal injection to execute a Missouri prisoner with a rare medical condition would cause him unnecessary and excruciating pain and suffering and whether he was constitutionally required to provide the state with a different way for it to kill him. Media reports suggested that the Court was sharply divided on the issue with newly appointed Justice Brett Kavanaugh likely to provide the deciding vote. 

Russell Bucklew (pictured) suffers from cavernous hemangioma, a rare disorder that has caused blood-filled tumors to form, primarily in his head, neck, and mouth. Doctors have said that an execution by lethal injection could cause those tumors to rupture, causing him excruciating pain as he dies from suffocation and drowning in his own blood. Justice Kavanaugh, in his first question in his first death-penalty case since joining the Court, asked Missouri Solicitor General D. John Sauer, "Are you saying even if the method creates gruesome and brutal pain you can still do it because there’s no alternative?" When Kavanaugh pressed Sauer for a direct answer, Missouri's solicitor said yes, so long as the state did not "attempt to deliberately inflict pain for the sake of pain." 

Bucklew challenged the requirement, announced in the Court's 2015 lethal-injection decision in Glossip v. Gross, that prisoners who are challenging the cruelty of a state's execution method must offer an alternative method of execution that is reasonably available to the state. Nonetheless, to comply with the requirement, Bucklew proposed asphyxiation by nitrogen gas. Chief Justice John Roberts seemed skeptical of that proposal, asking "how can it be a reasonable alternative if it's never been used before? ... Things can go wrong regardless of the method of execution. It seems to me that if you have a method that no state has ever used, that that danger is magnified." Justice Sonia Sotomayor, who has raised serious concerns about lethal injection in past cases, questioned the legitimacy of the Court's requirement that prisoners who challenge execution methods must present an alternative method. “I don’t actually know where in the Eighth Amendment and its history the court made up this alternative remedy idea,” she said, “because the Constitution certainly doesn’t prohibit cruel and unusual punishment unless we can’t kill you at all.”

Missouri has set execution dates for Bucklew twice, but both dates were stayed as a result of legal challenges to the execution method. Public health experts and the Association for Accessible Medicines (AAM)—a professional association representing generic and biosimilar drug manufacturers and distributors—filed amicus briefs in Bucklew's case, calling the planned use of "essential medicines" in executions "medically irresponsible," and warning of public health risks caused by states' efforts to obtain lethal-injection drugs.

In First Post-Ferguson Election for St. Louis County Prosecutor, Death-Penalty Opponent Unseats Long-Time Incumbent

In an election viewed as a referendum on racial justice and criminal justice reform, death-penalty opponent Wesley Bell (pictured, left) soundly defeated seven-term incumbent, Robert McCulloch (pictured, right) for the Democratic nomination for St. Louis County Prosecuting Attorney. With no Republican opposition in the general election, Bell, a Ferguson, Missouri, city council member, is expected to become the county's first African-American chief prosecutor. The election was the first time McCulloch—who had a substantially larger campaign purse and was heavily favored to win—had faced the voters since the Ferguson protests and his failure to indict a white police officer for the murder of unarmed black teenager, Michael Brown. Bell, a former public defender and prosecutor who called for ending cash bail for nonviolent offenses, ending mass incarceration, and eliminating use of the death penalty, was endorsed by numerous activist organizations promoting criminal justice reform, including Democracy for America, The Color of Change, and The Real Justice PAC. Surprising the political establishment, Bell won easily, receiving 57% of the vote. McCullouch—the county's Prosecuting Attorney since 1991—was known as a highly aggressive prosecutor with close ties to the police and who disproportionately sought death sentences. Community activists and civil rights groups were galvanized in opposition to McCulloch after he failed to indict Officer Darren Wilson for Brown's murder, prosecuted Ferguson protesters, and advocated for the execution of death-row prisoner Marcellus Williams despite DNA evidence revealing that another man's DNA—and not Williams'—was on the murder weapon. A July 2015 study found that the county's death-penalty practices contributed significantly to stark racial and geographic disparities in the application of capital punishment in Missouri. The study found that a person convicted of homicide in St. Louis County is three times more likely to be executed than if he or she were convicted elsewhere in the state and 13 times more likely to be executed than a person convicted in neighboring St. Louis City. Courts also have repeatedly found that the county's prosecutors discriminatorily struck African Americans from jury service because of their race. St. Louis County ranks among the 2% of U.S. counties that have produced a majority of all death sentences in the U.S. since the 1970s, and it has executed more prisoners than all but eight other counties in the country during that period. Bell's campaign website says "capital punishment is expensive, ineffective at deterrence, and is also racially biased. ... [D]ecades of data and information determine that Capital Punishment is not a deterrent for violent crime. Exercising his discretion as Prosecuting Attorney, [Bell] will never seek the death sentence."

Missouri Federal Appeals Court: Journalist's Execution Witness Lawsuit May Proceed

The U.S. Court of Appeals for the Eighth Circuit ruled on July 27, 2018 that Christopher S. McDaniel (pictured), an investigative reporter for BuzzFeed News, may proceed with his lawsuit challenging the Missouri Department of Corrections's policy for selecting execution witnesses. McDaniel, who has written numerous articles exposing irregularities in Missouri's execution procedures, applied to the Director of the Department of Corrections in 2014 to witness executions in Missouri, stating in his witness application that he wanted to observe executions "[t]o ensure that this solemn task is carried out constitutionally." The Department has never responded to McDaniel's application and he has not been permitted to witness any of the 17 executions carried out in the state since then. The lawsuit, filed on McDaniel's behalf by the American Civil Liberties Union of Missouri, alleges that neither McDaniel nor any other person whose witness application "expressed a desire to ensure that execution[s] were carried ou[t] properly and constitutionally" has been accepted as a witness, and that McDaniel also had been rejected as a witness because he has written articles critical of Missouri's administration of its death penalty. Working first for St. Louis Public Radio and laterw for BuzzFeed News, McDaniel's reporting revealed that Missouri had obtained lethal-injection drugs for executions carried out in 2013 and 2014 from an unlicensed out-of-state compounding pharmacy that committed nearly 1,900 violations of pharmacy regulations before it was sold and its assets auctioned off to help repay defaulted loans. In February 2018, he reported that the compounding pharmacy to which Missouri then switched to carry out 17 executions between 2014-2017 had been deemed "high risk" by the Food and Drug Administration because of the company's hazardous pharmaceutical practices. McDaniel reported that the state had paid the company—which was alleged to have engaged in illegal practices, Medicare fraud, and numerous manufacturing improprieties—more than $135,000 for execution drugs. The court wrote that "McDaniel’s allegations support a plausible claim that an applicant’s viewpoint is a factor used by the Director when considering whom to invite as a witness." Though the state argued that McDaniel did not have standing to file suit, the court found "McDaniel’s allegations that the Director’s policies provide an opportunity to exclude McDaniel based on his viewpoint and that the Director has excluded McDaniel and all applicants sharing his particular viewpoint are sufficient to give him standing to press the claim."

Public Health Experts, Generic-Pharmaceuticals Association Warn Lethal-Injection Policies Put Public Health at Risk

State lethal-injection practices may have collateral consequences that place public health at risk, according to briefs filed in the U.S. Supreme Court on July 23, 2018 by public health experts and an association representing generic drug manufacturers. In amicus (or friend-of-the-court) briefs filed in connection with a challenge brought by death-row prisoner Russell Bucklew (pictured) to Missouri's use of lethal injection, the Association for Accessible Medicines (AAM)—a professional association representing generic and biosimilar drug manufacturers and distributors—and eighteen pharmacy, medicine, and health policy experts warn that questionable state practices in obtaining and hoarding drugs for use in executions undermine law enforcement efforts to combat black markets in controlled substances and jeopardize the availability of some medicines for their intended therapeutic use. The AAM, which takes no position on the death penalty or the specific issues in Bucklew's case, told the court that its membership "strongly oppose the use of their medicines ... to carry out executions." The Association wrote: "Like doctors and other medical professionals, many drug manufacturers (including the members of AAM) recognize that they have an ethical obligation to ensure that their products are used only to heal, not to harm. Yet despite many manufacturers’ best efforts, drugs that are essential to the healthcare system—including some that are in short supply—have been diverted to state prison systems for use in capital punishment. AAM and its members cannot support such misuse of their products." The AAM brief stressed that their products are developed and tested for particular approved medical uses, but in executions, "powerful injectable drugs such as sedatives and barbiturates are being used at untested levels for an untested purpose, often without adequate physician supervision." The AAM called "the off-label use of these prescription drugs" in executions "medically irresponsible." Further, they wrote, some of the drugs used in executions that "are considered 'essential medicines' by the World Health Organization ... are in short supply," but have been diverted from medical use by death-penalty states. Citing a 2017 study by The Guardian, the AAM said "four states had stockpiled enough of these drugs to treat 11,257 patients—if the drugs were used as intended for medical treatment rather than in executions." Eighteen public health experts filed a brief in support of Bucklew's lethal injection challenge. The portion of that brief addressing public health issues warned that "States have created serious public health risks in their efforts to conduct lethal injections" and that continued improper practices "could lead to a public health crisis." The health experts argue that states have violated federal law by importing unapproved drugs for use in executions, obtained compounded drugs of questionable quality from unlicensed and secret pharmacies, breached supply chain controls and misled healthcare providers to obtain drugs for executions, and employed secrecy laws to "hide potentially illegal and unsafe conduct from scrutiny." These practices, they say, circumvent and undermine the country's "carefully and extensively regulated [medical] supply chain .... The result is twofold: it undermines federal laws that protect the public health, and it circumvents pharmaceutical companies’ ability to ensure the safety and effectiveness of drugs in the supply chain." 

Pages