Day: October 18, 2012

MISSOURI – Supreme Court must commute death sentence – Reginald Clemons

October 17, 2012

At the new evidentiary hearing for Missouri death row inmate Reginald Clemons held September 17-20 in St. Louis, Judge Michael Manners reluctantly accepted into evidence an affidavit by David Keys submitted by Clemons’ trial counsel. Keys is an expert on proportionality in the death sentence in Missouri, so was in effect offering a new legal opinion, rather than new evidence, which Manners had been ordered to find for the Missouri Supreme Court. “I feel the Missouri Supreme Court doesn’t need my advice on the law or the advice of Mr. Keys,” Judge Manners drily noted. “Proportionality is a question of law. The Supreme Court will give it the weight it wants to give it.”

We urge the Missouri Supreme Court to give Keys’ expert testimony a critical mass of weight. Keys’ statistical analysis of death sentence data shows that the 1993 jury that sentenced Clemons to death overlooked established racial bias in death sentencing, as well as four mitigating factors: Clemons’ youth at the time of the murders (he was 19) and the facts that he was a first-time offender, had no weapon and did not know the victims, Julie Kerry and Robin Kerry.

Based on his analysis of 591 Missouri first-degree homicide cases, an African-American offender (like Clemons) charged with the first-degree murder of a white victim (like the Kerry sisters) has a 37 percent chance of receiving the death penalty. By contrast, a white offender who killed a white victim will receive the death penalty 32.6 percent of the time, and a black-on-black murderer has a 23.8 percent chance of being sentenced to death. The variable of race should have no bearing on whether the state executes a murderer, and this established racial bias is sufficient grounds for commuting Clemons’ death sentence (and, indeed, for abolishing the death sentence).

Putting aside race, Clemons’ death sentence was disproportionate because the jury did not weigh any of the mitigating factors that data show convince jurors to forego the death penalty. Keys notes, “Out of all of the capital murder cases that I analyzed in Missouri in the 30 years from 1978 to 2008, other than Mr. Clemons, there is no case where a jury has imposed the death penalty when all four factors are present.” Further, Clemons was convicted as an accomplice. Were Clemons to be executed, Keys testified, he would be only the second defendant nationwide and the first in Missouri to receive a death sentence who was accused as an accomplice and had no prior criminal record.

It should make the Supreme Court uneasy to precede with an unprecedented execution in a case as flawed as the Clemons case. We believe the evidence is clear that Clemonsconfession (to rape, which is not a capital offence) was coerced and scripted in part. Prosecutor Nels Moss admitted on the witness stand at Clemons’ hearing to revising a police report about the murders when he was not present for the interrogation reported, and he withheld from Clemons’ 1993 trial counsel the evidence that he tampered with the police report. Moss’ star witness, Thomas Cummins, perjured himself when he claimed that he was forced to jump from the Chain of Rocks Bridge after the murders; Cummins was uninjured and his hair was even dry not long after he allegedly plummeted 90 feet to the Mississippi River. This fabrication was the basis of Moss’ closing statement in the jury trial and continues to be regurgitated as fact by the court that must now decide on Clemons’ fate.

The investigation and prosecution of Clemons were simply too flawed to proceed with an execution of a 19-year-old first-time offender convicted as an accomplice in racially disparate murders with no weapon where he did not know the victims. Whatever Reginald Clemons did on the Chain of Rocks Bridge on April 4, 1991, by no means should the State of Missouri have his blood on our hands. The court must commute his death sentence.

CALIFORNIA – Kill the death penalty

October 18, 2012

In 1978, a man named Ron Briggs ran the campaign for Proposition 7, which proposed to expand California’s death penalty law to make it among the toughest in the country. Briggs was the son of John Briggs, a Republican state senator who strongly supported the measure. It was written by Donald J. Heller, a former prosecutor. The Briggs Initiative, as it was called, passed resoundingly.

Since then Ron Briggs and Heller have had a change of heart. Today they are campaigning vigorously on behalf of Proposition 34, the SAFE California initiative that would end the death penalty and replace it with mandatory life without parole.

Their goal with Proposition 7, Briggs has written, was to broaden the murder categories eligible for the death penalty and “give prosecutors better tools for meting out just punishments” and warn “all California evildoers that the state would deliver swift and final justice.”

They now realize, however, that it didn’t work. There were 300 people on death row in 1978; today there are more than 720. Only 13 death row prisoners have been executed since their measure passed—far more have died of natural causes—and the state has spent $4 billion trying to enforce capital punishment. Eliminating it could save $183 million annually.

Opponents of Proposition 34 argue that it forgoes justice in order to save money. But where’s the justice? As Briggs writes, it’s “a nightmarish system that coddles murderers and enriches lawyers.” Meanwhile, the families of victims suffer because they’re forced over and over to face the alleged murderer in a series of mandated appeals that, because of a shortage of judges and public defenders, can take decades to exhaust.

Opponents of Proposition 34 also argue that the death penalty deters crime, but study after study shows that’s simply not true. States without the death penalty have murder rates similar to, and sometimes lower than, those of states with capital punishment.

In addition, the death penalty is applied in a biased manner. Proportionally, blacks are sentenced to death far more often than whites, especially when the victim is white.

Finally, there’s the matter of innocence. DNA testing has exonerated more than 2,000 prisoners, including many on death row. It’s a virtual certainty that some innocent people have been executed. Death is a punishment that cannot be reversed.

For all of these reasons, it’s time to abolish the death penalty in California. Vote yes on Proposition 34.



October 18, 2012 

Anthony Haynes, 33, would be the 11th inmate executed this year in Texas and the 33rd in the United States, according to the Death Penalty Information Center. The execution is scheduled for after 6 p.m. (2300 GMT) in Huntsville.

Haynes fired a shot from his truck at a Jeep Cherokee carrying off-duty Houston police officer Kent Kincaid and his wife, Nancy, according to an account of the case from the Texas attorney general’s office.

The officer got out of his Jeep and approached Haynes‘ truck, telling him that he was a police officer and asking to see his driver’s license, the account said.

Nancy Kincaid said during Haynes’ trial that her husband was reaching for his badge when the driver shot him in the head, according to a Houston Chronicle account at the time.

“(The driver) pulled his hand up and I saw the flash and I heard the pop,” Nancy Kincaid testified. “That was the end. He then went down.”

Kent Kincaid was declared brain-dead at the hospital.

That same night, Haynes had committed several armed robberies, Texas officials say.

“I’m not a vicious psychopath who goes around wanting to take people’s lives,” Haynes told the Houston Chronicle in a 2001 death row interview. “There was no intent to kill a cop. He did not ID himself until a second before I shot him.”

Haynes has appealed to the U.S. Supreme Court, raising questions about whether his trial lawyers were effective.

These two men were both 19 when they were sentenced to death

Anthony Cardell Haynes

Anthony Haynes claimed he didn’t know that Kent Kincaid was a Houston police sergeant when he shot him in the head back in 1998. Kincaid was off-duty and driving his personal vehicle when Haynes drove by; something cracked Kincaid’s windshield, and he reportedly thought Haynes had thrown something at him. He followed Haynes, and when the 19-year-old stopped his car, Kincaid approached him. Kincaid said he was a police officer, but Haynes later said he didn’t know whether to believe him. When Kincaid reached behind his back, presumably for a badge, Haynes pulled out a .25-caliber gun and shot him.

Anthony Haynes

Anthony Haynes

Haynes blamed the tragedy in part on drugs and falling in with a bad crowd of people who reportedly made a game out of shooting at the windshields of passing cars and then robbing the drivers after they stopped. As it happened, the crack in Kincaid’s windshield was made by a bullet. Jurors in Haynes’ case deliberated for three days before sentencing the teen to death.

That sentence was overturned, however, after the 5th U.S. Circuit Court of Appeals agreed with Haynes’ defense that an unusual jury-selection setup in Haynes’ case had denied his right to equal protection under law. Indeed, two different judges presided over Haynes’ jury selection; one heard prosecutors interview individual jurors, and a second heard the lawyers’ arguments for striking from service the potential jurors. As it turned out, the state used its power to strike all but one of the black potential jurors, arguing that it was not their race that excluded them (which would be illegal), but their “demeanor.” But Haynes’ appeal attorney argued that the judge who allowed those strikes had not actually witnessed the jurors’ questioning and thus could not actually have seen whether their demeanor would be a basis on which to have them struck. The U.S. Supreme Court ultimately disagreed with the 5th Circuit, ruling that there was no rule that would require a judge to “personally observe” the juror questioning when deciding whether a juror is lawfully struck from service.

Haynes is scheduled for execution today, Oct. 18. STAYED

Bobby Lee Hines



Bobby Lee Hines was also just 19 when he was sentenced to death for the robbery and strangling of 26-year-old Michelle Haupt in her Dallas apartment. Now, 20 years later, he’s scheduled to die for that crime on Oct. 24. But his attorney, Lydia Brandt, argues that Hines’ execution should, once again, be stayed while the courts consider whether his lawyers have done enough to save his life.

Hines was convicted of the 1991 murder of Haupt, who was stabbed repeatedly with an ice pick and strangled with a cord inside her apartment. Hines had been staying next door with the apartment complex’s maintenance man. Police found items from Haupt’s apartment, including packs of cigarettes and a bowl of pennies, under a couch where Hines had been sleeping.

Hines’ first date with death was stayed in 2003, while the courts considered a claim that he was mentally retarded and thus ineligible for execution. Although Hines had a diagnosed learning disability and was considered emotionally disturbed, the courts ruled that he didn’t meet the criteria for relief. His execution date was reset for June 2012, but was stayed again so that further DNA testing could be performed. The DNA evidence confirmed Hines’ guilt and once again his execution was back on.

Now, Brandt is again seeking a stay, arguing that Hines’ case has been plagued by ineffective assistance of counsel. Brandt’s latest appeal, filed Oct. 10 with the Court of Criminal Appeals, argues that none of Hines’ defense attorneys ever investigated his background for mitigating evidence that could have swayed a jury to sentence him to life in prison. Hines had a “nightmarish” childhood that featured chronic abuse by his racist, alcoholic father, and later by foster parents, and was profoundly affected by his mother’s decision to abandon him as a young child. But the jury never heard anything of Hines’ troubled background. The question now before the CCA is whether the prior counsel’s failings can create an avenue for reconsidering Hines’ punishment. Brandt believes it should: “Fundamental rules of equity will not suffer a right to be without a remedy,” reads the appeal