Missouri’s First Execution of 2024 Scheduled for Man Whose Trial Lawyers Had Conflicts of Interest and Who Has Unprecedented Support for Clemency

Brian Dorsey (pic­tured), a Missouri death row pris­on­er sched­uled for exe­cu­tion on April 9, 2024, has gar­nered wide­spread sup­port for clemen­cy from more than 70 cor­rec­tions offi­cials, a for­mer Missouri Supreme Court Judge, mul­ti­ple jurors, Democratic and Republican state leg­is­la­tors, faith lead­ers, and his fam­i­ly mem­bers — sev­er­al of whom are relat­ed to the vic­tims, Sarah and Ben Bonnie — all of whom have called on Governor Mike Parson to com­mute his sen­tence to life in prison with­out the pos­si­bil­i­ty of parole. Noteworthy among these sup­port­ers is a group of 72 cur­rent and for­mer Missouri cor­rec­tion­al offi­cers, who sub­mit­ted and signed a let­ter ask­ing Gov. Parson to grant Mr. Dorsey clemen­cy and com­mute his death sen­tence. ​“Generally, we believe in the use of cap­i­tal pun­ish­ment,” these offi­cers wrote. ​“But we are in agree­ment that the death penal­ty is not the appro­pri­ate pun­ish­ment for Brian Dorsey.” All these offi­cers know Mr. Dorsey per­son­al­ly from their time spent work­ing at Potosi Correctional Center, where Mr. Dorsey has lived in an ​“hon­or dorm” and worked for over a decade as the staff bar­ber, ​“a posi­tion of excep­tion­al trust and respect.” The offi­cers added that “[e]very one of us believe that Brian is a good guy, some­one who has stayed out of trou­ble, nev­er got­ten him­self into any sit­u­a­tions, and been respect­ful of us and of his fel­low inmates.” Multiple cor­rec­tions offi­cers sub­mit­ted indi­vid­ual let­ters of sup­port, with one writ­ing that ​“Mr. Dorsey has accept­ed what he did and tak­en account­abil­i­ty for his crime. It is my impres­sion that he has spent his time since then try­ing to do his best by being a role mod­el to oth­er inmates and pro­vid­ing a valu­able ser­vice to staff.” 

During his 17 years in prison, Mr. Dorsey has com­mit­ted to improv­ing him­self and has remained infrac­tion-free through­out his incar­cer­a­tion. In an indi­vid­ual let­ter to Gov. Parson, one cor­rec­tions offi­cial says ​“when you spend time around Brian like I have, you can just tell that he has changed. Some inmates nev­er change, no mat­ter how many years they are in. But that’s not Brian… The Brian I have known for years could not hurt any­one. The Brian I know does not deserve to be exe­cut­ed.” Former Missouri Supreme Court Judge Michael Wolff also wrote to Gov. Parson urg­ing him to grant clemen­cy to Mr. Dorsey. Judge Wolff explained to Gov. Parson that the Court erred in uphold­ing Mr. Dorsey’s death sen­tence, with his case being one of the ​“rare cas­es where those of us who sit in judg­ment of a man con­vict­ed of cap­i­tal mur­der got it wrong.” Five of the jurors who sen­tenced Mr. Dorsey to death have also urged Gov. Parson to grant clemen­cy, with one juror plead­ing that ​“by the grace of God, I hope you will find your way to give him a life sen­tence instead of death.” Both Republican and Democratic state leg­is­la­tors have also asked Gov. Parson to com­mute Mr. Dorsey’s sentence.

On April 1, 2024, attor­neys for Mr. Dorsey filed a peti­tion for cer­tio­rari with the United States Supreme Court, ask­ing them to deter­mine whether the flat fee paid to his appoint­ed pub­lic defend­ers cre­at­ed an actu­al con­flict of inter­est that vio­lates his Sixth Amendment right to effec­tive assis­tance of coun­sel. Mr. Dorsey’s tri­al attor­neys were each paid $12,000 to defend him — regard­less of the amount of work they did. According to a 2010 report com­mis­sioned by fed­er­al courts, the aver­age time spent by defense attor­neys in cap­i­tal cas­es is 3,557 hours, which means that each of Mr. Dorsey’s attor­neys would have been paid $3.37 per hour spent on his case, if they spent the aver­age time prepar­ing a defense. Flat fee pay­ments were a com­mon prac­tice across the United States, but the Missouri Public Defender System no longer uses them in death penal­ty cas­es because of the inher­ent con­flict of inter­est that results. In 2003, the American Bar Association explic­it­ly warned against the use of flat fees in death penal­ty cas­es, stat­ing that ​“coun­sel in death penal­ty cas­es should be ful­ly com­pen­sat­ed at a rate that is com­men­su­rate with the pro­vi­sion of high-qual­i­ty legal rep­re­sen­ta­tion and reflects the extra­or­di­nary respon­si­bil­i­ties inher­ent in death penal­ty rep­re­sen­ta­tion.” The use of flat fees ulti­mate­ly ​“dis­cour­ages lawyers from doing more work than what is minimally necessary.”

Prior to his arrest in 2006, Mr. Dorsey did not have a his­to­ry of vio­lence but had suf­fered from depres­sion for many years and had sought both inpa­tient and out­pa­tient treat­ment. In efforts to alle­vi­ate the symp­toms of his depres­sion, Mr. Dorsey began drink­ing heav­i­ly and using crack cocaine. At the time of the crime, Mr. Dorsey was expe­ri­enc­ing drug-induced psy­chosis, but Mr. Dorsey’s tri­al attor­neys failed to inves­ti­gate or present any men­tal health his­to­ry. Had they hired an expert to eval­u­ate Mr. Dorsey, they could have explained to the jury that he was inca­pable of form­ing the nec­es­sary intent to com­mit first-degree mur­der. Instead, his attor­neys told him to plead guilty with­out any deal with the pros­e­cu­tion to remove the death penal­ty. The jury that sen­tenced Mr. Dorsey to death did not hear evi­dence of his sub­stance abuse dis­or­der and pre­vi­ous men­tal health history. 

In his let­ter to Gov. Parson, Judge Wolff also ref­er­ences Missouri’s for­mer flat fee sys­tem, say­ing it ​“undoubt­ed­ly influ­enced every­thing” in Mr. Dorsey’s tri­al. Sean O’Brien, a University of Missouri-Kansas City law pro­fes­sor told The Marshall Project that for lawyers paid in flat fees, ​“it can be a boost to your cash flow at the begin­ning, but it’s a drain on your cash flow if you actu­al­ly do the work.” Mary Fox, the direc­tor of the Missouri State Public Defender System also wrote a let­ter to Gov. Parson telling him that her office stopped using flat fees after Mr. Dorsey’s tri­al and rec­og­nizes that such fees ​“remove the incen­tive to do an effective job.” 

Megan Crane, an attor­ney for Mr. Dorsey told The Marshall Project that her client ​“says he wants to find a way to make people’s lives bet­ter to atone for what he’s done.” Mr. Dorsey has been placed in soli­tary con­fine­ment since the state announced his exe­cu­tion date and has been unable to con­tin­ue his work as a bar­ber. As Mr. Dorsey’s exe­cu­tion date approach­es, Ms. Crane said that he ​“has tried to man­age his expec­ta­tions” about the pos­si­bil­i­ty of clemen­cy or court inter­ven­tion. Mr. Dorsey ​“has tak­en full account­abil­i­ty since Day 1,” Ms. Crane said. ​“And the hor­ror of the fact that he could have done this — I think that is still his focus in this final week.”