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 Rice, a tri­al judge sen­tenced Craig Wood to death in 2018 after his jury split 10 – 2 in favor of a death sen­tence. As in Rice’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.

(Brian Hauswirth, Missouri Supreme Court issues rul­ing in Marvin Rice death penal­ty case, Missourinet, April 3, 2019; Jack Suntrup, Missouri sher­if­f’s deputy con­vict­ed of dou­ble mur­der will have anoth­er day in court, St. Louis Post-Dispatch, Apr. 2, 2019.) Read the Missouri Supreme Court’s deci­sion in State v. Rice, No. SC96737 (Mo. Apr. 2, 2019). See Sentencing and Prosecutorial Misconduct.

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