Federal cap­i­tal defen­dants are dis­pro­por­tion­ate­ly sen­tenced to death in Missouri com­pared to oth­er states, with 14.5% of the 62 pris­on­ers cur­rent­ly on fed­er­al death row hav­ing been pros­e­cut­ed in Missouri’s fed­er­al dis­trict courts. By con­trast, a DPIC analy­sis of FBI Uniform Crime Reporting Statistics shows that Missouri account­ed for only 2.26% of mur­ders in the United States between 1988, when the cur­rent fed­er­al death penal­ty statute was adopt­ed, and 2012. Not sur­pris­ing­ly, an arti­cle in The Guardian by David Rose reports that, since the 1990s, the chances that a defen­dant will be sen­tenced to death in a Missouri fed­er­al court are sig­nif­i­cant­ly greater than in oth­er fed­er­al juris­dic­tions. Rose sug­gests that the ques­tion­able per­for­mance of defense coun­sel and repeat­ed fail­ures to inves­ti­gate and present mit­i­gat­ing evi­dence relat­ing to the back­grounds and life his­to­ries of Missouri fed­er­al cap­i­tal defen­dants has sig­nif­i­cant­ly con­tributed to that dis­par­i­ty. Though fed­er­al fund­ing for defense attor­neys is more gen­er­ous than state fund­ing, Rose says the fed­er­al death penal­ty sys­tem shows evi­dence of the same fail­ures in rep­re­sen­ta­tion that so often appear in state death penal­ty cas­es. Four of the nine pris­on­ers sen­tenced to death in Missouri were rep­re­sent­ed by the same lawyer, Frederick Duchardt. In the three cas­es of Duchardt’s clients that have reached the appeals stage, all three raised claims of inef­fec­tive assis­tance of coun­sel. In each case, Duchardt failed to employ a mit­i­ga­tion spe­cial­ist, in vio­la­tion of American Bar Association guide­lines. Mitigation spe­cial­ists inves­ti­gate a clien­t’s back­ground to find evi­dence that may con­vince a jury to impose a sen­tence less than death. Duchardt’s clients all suf­fered seri­ous abuse dur­ing their child­hoods. One had an IQ of 68, plac­ing him on the thresh­old of intel­lec­tu­al dis­abil­i­ty. Another had been diag­nosed with psy­chosis, bipo­lar dis­or­der, and post-trau­mat­ic stress dis­or­der. None of these issues were pre­sent­ed to the jury, a deci­sion Duchardt lat­er claimed was ​“strate­gic,” but which his clien­t’s appeal attor­neys argue was a result of fail­ure to pre­pare or inves­ti­gate. Professor Sean O’Brien of the University of Missouri Law School, described the appoint­ment of coun­sel for indi­gent defen­dants as a ​“lot­tery,” say­ing, ​“Many defen­dants lose that lot­tery, and they get a lawyer more wor­ried more about pleas­ing the court and the pros­e­cu­tor than about fight­ing for the client. Those are the ones who die. When one lawyer pro­duces near­ly half the fed­er­al death sen­tences in a state, there’s a problem.”

(D. Rose, ​“Death row: the lay­w­er who keeps los­ing,” The Guardian, November 24, 2016; Death Penalty Information Center, ​“Murders in Missouri As a Percentage of All Murders in the United States, 1988 – 2012,” December 1, 2016.) See Representation and Federal Death Penalty.

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