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‘Adverse negative inference’ and Reginald Clemons

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Posted: Thursday, September 27, 2012 12:30 am | Updated: 10:01 am, Thu Sep 27, 2012.

If Reginald Clemons never gets another day in court to defend himself against the charges that he raped Robin Kerry and Julie Kerry on April 4, 1991 and was an accomplice to their murders, then he will likely spend the rest of his life reflecting on his cross-examination last Wednesday during the evidentiary hearing ordered by the Missouri Supreme Court.

Clemons’ pro bono counsel from New York called Clemons to the stand Wednesday morning. But Clemons’ testimony during the hearing, presided over by Judge Michael Manners, the Special Master appointed to the case, had been a subject of debate since before the hearing was called to order.

On Monday morning, before Judge Manners asked for opening arguments, he took up “a preliminary matter”: the state’s motion to compel Clemons to answer some questions he was posed during his deposition that he declined to answer on grounds that his answer could incriminate him. Otherwise known as “pleading the 5th,” as in the 5th Amendment to the U.S. Constitution, this right protects defendants in criminal proceedings from helping the state convict them through their own testimony.

But in this hearing, Clemons was not a defendant in a criminal proceeding. He was a convicted murderer with a death sentence (and a rape charge that the state has not yet prosecuted). He was the petitioner in a civil proceeding, which was a hearing to gather new evidence to assist the Missouri Supreme Court in ruling on a writ of habeas corpus filed by Clemons’ counsel. Clemons’ writ claims that new evidence compels the court to throw out his conviction and order a new trial; or if the conviction is upheld, to vacate the death penalty because it is not proportional in his case owing to his youth at the time of the crime (19), his lack of a prior criminal record, and the fact that he was convicted as an accomplice.

Steven Hawke, who led the state’s trial team for the Missouri Attorney General but did not interview witnesses, argued the preliminary matter before Judge Manners. He pointed out that the state deposed Clemons on August 3, 2012, at which time Clemons declined to answer a number of questions by pleading the 5th. Hawke said it was problematic to have Clemons declining to answer questions on the grounds it might incriminate him “when it’s his contention that he is probably actually innocent.”

Before any new evidence was introduced or any witnesses called, Judge Manners entertained the consequences of a man who has been granted a hearing to prove his innocence yet is declining to answer questions about the crimes on the grounds that his answers could incriminate him. As Hawke argued to Judge Manners, Clemons “runs the risk of having an adverse negative inference drawn” if he pleads the 5th while arguing for his innocence in a proceeding he initiated.

Judge Manners took the motion to compel Clemons’ testimony under advisement Monday morning. When he ordered the hearing recessed all of Tuesday to work out some points of law (with Clemons next on the witness list), it was assumed the motion to compel and the issue of Clemons’ taking the 5th were discussed in chambers. Clemons was allowed to take the stand on Wednesday, without being compelled to answer all the questions the state had posed him during his deposition, but Judge Manners seemed to have ruled with the state on the point most essential to their case: namely, that the court should draw “adverse negative inferences” from Clemons’ pleading the 5th on the facts of the crimes.

 

32 pleas to the 5th

By the time the state was finished with Clemons’ cross-examination, he had pled the 5th 32 times in response to questions about the crimes posed to him by Assistant Attorney General Susan Boresi. His first plea of the 5th came early in the cross-examination, after Boresi had established that Clemons was on good terms with his codefendants Marlin Gray, Antonio Richardson and Daniel Winfrey at the times they were interrogated about the crimes in 1991. “Yet all three implicated you in the rapes and murders of Robin and Julie Kerry, isn’t that right?” Boresi asked Clemons, to which he responded, “Under advise of counsel, I will plead the 5th Amendment.”

Clemons then pled the 5th 31 more times during a long string of questions posed by Boresi after she played Clemons’ audiotaped confession to raping Robin Kerry (he never confessed to raping Julie Kerry or murdering either of the young women). Clemons claims St. Louis Metropolitan Police detectives Chris Pappas and Joseph Brauer coerced and scripted his confession; testifying to their role in the interrogation, which would make the confession inadmissible in court if accepted as true, was why Clemons was asked to take the stand by his counsel.

By pleading the 5th on so many questions, Clemons claimed that testifying about a wide range of actions would incriminate him: who took off the victims’ clothes, who guarded the victims’ cousin Thomas Cummins during the rapes, who told the victims not to fight back, whether Clemons raped both victims or just one, who took the victims to the manhole on the Chain of Rocks Bridge, whether Gray and Winfrey left the bridge before the girls were pushed off it, and more.

The only question Clemons answered in this exchange was when asked whether he agreed with one of his codefendants when that person said they should leave no witnesses to the rapes. Clemons answered Boresi, “No.”

 

90 minutes to reconsider

When the state rested its cross-examination, Clemons’ counsel redirected questions to him regarding his interrogation by police, not revisiting questions about the rapes and murders. Clemons was then free to be dismissed from the witness stand. At that point, Judge Manners did two extraordinary things.

First, the judge addressed Clemons before dismissing him. He reminded Clemons of the conversation in chambers he had participated in the day before and asked him a few questions. Clemons said yes, he understood what it meant to plead the 5th, the inference the court would draw from his doing so, and that the court would “take his refusal to testify to be unfavorable.” Judge Manners then offered Clemons a chance to reconsider his answers with his counsel, and ordered a 15 minute recess when Clemons said he would appreciate that opportunity.

After the 15 minute recess, Judge Manners observed that it was nearly lunch time, so he ordered another 15-minute recess until noon, then an hour for lunch. So when Clemons next took the stand, the judge had given him an hour and a half to rethink whether he wanted to testify as to what happened on the Chain of Rocks Bridge that night and what role Clemons played in the crimes.

 

This was insanely high courtroom drama. Everyone in that courtroom who knew what was going on knew that Judge Manners was giving Reginald Clemons his chance there and then to argue his innocence.

 

29 pleas to the 5th remain

Then Clemons took the stand and answered only three of the 32 questions he had previously declined to answer. Clemons said no, he and Richardson did not tell the victims and their cousin to go one level lower on the bridge; no, he did not stand on the platform to block their escape; and no, it was not true that the victims could not escape because he was blocking their way.

When Clemons left the witness stand, he had only answered questions about the crimes pertaining narrowly to his playing a role as premeditated murderer or accomplice to premeditated (that is, first-degree) murder. Granted, Clemons has only ever been tried for first-degree murder (as an accomplice), and that is the only crime that can carry the death penalty. Clemons denied on the record that he is guilty of the only crime for which he has been tried and convicted.

But anyone expecting Clemons to clear his name for any role in the rapes and murders of Julie Kerry and Robin Kerry – as Judge Manners clearly was anticipating – was disappointed. Clemons let the murky trial record stand for most of the details of what happened on the Chain of Rocks Bridge that dark night.

  • Discuss

Welcome to the discussion.

2 comments:

  • Voter posted at 5:10 pm on Thu, Sep 27, 2012.

    Voter Posts: 17

    The suggestion that Nels Moss was an over zealous prosecutor or the STLMPD are a pack of abusive prlcks who disregard our civil rights doesn't necessarily obfuscate the fact that Reginald Clemons is a murderer. If his original trial were unfair, then this trial was almost a SNL skit of over fairness. "Do you understand, Reggie, what an Adverse Negative Inference is? Are you sure you understand? Are you triple dog darned sure you get it? Why not take the night to think it over and we'll start again tomorrow? Ok, it's tomorrow and now you've squandered your chance to set the record straight by basically telling us BY NOT TELLING US YOU DIDN"T DO IT that you did it. Let's allow you to take another 90 minutes to think about it some more, okay? Okay, you've thought about it now, so are you sure you don't want to tell us that you didn't do it, or are you sticking to your 5th amendment out after begging society to fight for you so you can prove your innocense? Okay, Reggie, one more question. Are you a compete and utter idiot? Oh, you're taking the 5th on that question to. I guess we are all the idiots for wasting all this time and money on your B.S.!!!

     
  • Kel posted at 1:27 pm on Thu, Sep 27, 2012.

    Kel Posts: 20

    So, I wonder, where is the outrage by all those who bought Reggie's baloney all these years about his innocence? Aren't you guys mad that after all the fighting to get Reggie his day in court, all the distorting of the facts, all the heartless finger pointing at one of Reggie's victims, Thomas Cummins, that he left you all high and dry? He got his chance at the plate and went down without ever taking a swing at the ball. What did he have to lose? He's already done more time for the murders than he ever would have gotten for rape, so if he just admitted to the rape and honestly told the story after all these years, his chances of ever walking free again would have been greatly increased.

    No, Reggie added to his list of victims all the folks that fought for him all these years; all the people who lied for him, or at the very least believed his lies; all the people who chose to believe in conspiracy theories over hard evidence! Despicable!

    How much money did Reggie waste? Taxpayer money, donations from strangers, money provided by amnesty international, the ACLU and the other organizations who believed his B.S., not to mention the money his poor parents wasted and all for nothing.

    Personally, I don't believe in the death penalty and think it should be abolished, but in my opinion, Reggie has done more for the pro-death penalty folks by his actions in this case than anyone else could have. Nice one, Reggie!