Missouri Plans to Execute Prisoner Whose Death Sentence Was Reversed Three Times and Reinstated on a Technicality

Carman Deck (pic­tured) has been sen­tenced to death three times. Each of those death sen­tences were over­turned — once by the U.S. Supreme Court — as a result of prej­u­di­cial con­sti­tu­tion­al vio­la­tions in his tri­als. Nonetheless, he faces exe­cu­tion in Missouri on May 3, 2022 because a pro­ce­dur­al tech­ni­cal­i­ty over­turned his third grant of relief, block­ing him from pre­sent­ing his claim that crit­i­cal mit­i­gat­ing evi­dence call­ing for a sen­tence less than death had become unavail­able due to the long delays between his first, sec­ond, and third trials.

On April 1, 2022, Deck’s lawyers filed a peti­tion for writ of cer­tio­rari in the U.S. Supreme Court seek­ing review of his case. On April 12, 2022, he filed an appli­ca­tion to stay his exe­cu­tion to per­mit that review to take place. Both issues are ful­ly briefed and, as of April 29, remained pend­ing before the Court. The stay appli­ca­tion asserts that the con­sti­tu­tion­al right to a speedy tri­al applies to the penal­ty phase of cap­i­tal tri­al. It argues that “[a] state should not be allowed to repeat­ed­ly attempt to obtain a death sen­tence, bun­gle the process, and then claim vic­to­ry when no one is left to show up for the defen­dant at the mit­i­ga­tion phase.” Deck’s peti­tion seek­ing review of his case calls the sit­u­a­tion ​“an egre­gious exam­ple of what hap­pens when the state repeat­ed­ly vio­lates the rights of a cap­i­tal defen­dant. The state’s ear­li­er fail­ures direct­ly pre­vent­ed Mr. Deck from pre­sent­ing a com­pelling mit­i­ga­tion case at his third resentencing.”

Deck was con­vict­ed and first sen­tenced to death in Missouri in 1998. The Missouri Supreme Court over­turned his death sen­tence in 2002, find­ing that his tri­al lawyer had sub­mit­ted a prej­u­di­cial­ly defi­cient jury instruc­tion on mit­i­gat­ing evi­dence. The instruc­tions failed to explain to the jury what evi­dence it could con­sid­er as grounds to spare Deck’s life and failed to inform jurors that they did not need to unan­i­mous­ly agree that a mit­i­gat­ing cir­cum­stance was present before they could indi­vid­u­al­ly take that evi­dence into con­sid­er­a­tion in their sentencing decision. 

The United States Supreme Court over­turned Deck’s sec­ond death sen­tence, imposed in 2003, find­ing that the tri­al court had vio­lat­ed his right to due process by requir­ing him to appear before the jury shack­led with leg irons, hand­cuffs, and a bel­ly chain. In his opin­ion for the Court, which received the sup­port of sev­en jus­tices, Justice Stephen Breyer wrote: ​“The appear­ance of the offend­er dur­ing the penal­ty phase in shack­les … almost inevitably implies to a jury, as a mat­ter of com­mon sense, that court author­i­ties con­sid­er the offend­er a dan­ger to the com­mu­ni­ty .… And it there­by inevitably under­mines the jury’s abil­i­ty to weigh accu­rate­ly all rel­e­vant con­sid­er­a­tions — con­sid­er­a­tions that are often unquan­tifi­able and elu­sive — when it deter­mines whether a defen­dant deserves death.”

Deck was resen­tenced to death for a third time in a sen­tenc­ing hear­ing in November 2008. In the two inter­ven­ing decades since his first tri­al, a num­ber of impor­tant mit­i­ga­tion wit­ness­es had died or could no longer be locat­ed. That death sen­tence was over­turned by the U.S. District Court for the Eastern District of Missouri in April 2017. In her opin­ion grant­i­ng relief, Judge Catherine Perry wrote that because of the long delays between Deck’s first, sec­ond, and third tri­als, ​“sub­stan­tial” mit­i­gat­ing evi­dence that had been avail­able in his first and sec­ond tri­als was no longer avail­able to the defense. The result, Judge Perry said, was a third death-sen­tenc­ing pro­ceed­ing that was ​“fun­da­men­tal­ly unfair.” ​“Deck’s inabil­i­ty to present mit­i­ga­tion evi­dence,” she wrote, ​“pre­vent­ed the jury from ade­quate­ly con­sid­er­ing com­pas­sion­ate or mit­i­gat­ing fac­tors that might have warranted mercy.”

On appeal, a three-judge pan­el of the U.S. Court of Appeals for the Eighth Circuit reversed Perry’s rul­ing on a tech­ni­cal­i­ty, hold­ing that Deck’s claim was pro­ce­du­ral­ly default­ed because his post-con­vic­tion lawyer had failed to raise the issue in state court. It fur­ther ruled that because the law on the issue had not been set­tled at the time of Deck’s resen­tenc­ing, post-con­vic­tion counsel’s fail­ure to raise the issue was not inef­fec­tive and Deck there­fore could not estab­lish grounds to excuse the procedural default.

Advocates in Missouri have pushed for Governor Mike Parson to grant clemen­cy to Deck. ​“I would want [Governor Parson] to know that there are con­sti­tu­tion­al impli­ca­tions in mov­ing for­ward with the death sen­tence in this case, and mov­ing for­ward with the death penal­ty in Missouri in gen­er­al,” said Luz Maria Henriquez, the exec­u­tive direc­tor for ACLU Missouri. 

“This puni­tive, pre­med­i­tat­ed deci­sion on death is not in line with our faith,” said Nimrod Chapel, Jr., the board chair for Missourians for Alternatives to the Death Penalty. ​“It does­n’t meet our moral core. And when we look at it legal­ly, it doesn’t make sense.” Republican and Democratic leg­is­la­tors spoke at a ral­ly urg­ing clemen­cy for Deck, call­ing the death penal­ty a bipartisan issue.