MISSOURI – Supreme Court must commute death sentence – Reginald Clemons

October 17, 2012 http://www.stlamerican.com

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.

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