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.

(Lexi Churchill, Missouri Supreme Court case could chal­lenge death penal­ty law, St. Louis Post-Dispatch, January 23, 2019; Jason Taylor, Missouri Supreme Court to con­sid­er cap­i­tal pun­ish­ment case and whether state’s death penal­ty is uncon­sti­tu­tion­al, Missouri​.net, January 22, 2019; Joseph C. Welling, Guest col­umn: Missouri’s death penal­ty jury dead­lock pro­vi­sion is uncon­sti­tu­tion­al, St. Louis Post-Dispatch, January 16, 2019.) See Sentencing and Arbitrariness.

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