Fittingly, for a prosecutor who was very sluggish in producing evidence to defense lawyers in the original 1993 Reginald Clemons trial, Nels Moss was very slow to appear on the witness stand on Monday at his old stomping ground, the St. Louis Circuit Court.
Josh Levine, lead attorney for Clemons in the evidentiary hearing ordered by the Missouri Supreme Court, called Moss to the stand, but Judge Michael Manners was forced to call a lengthy recess before a sheriff could produce the witness. Moss then remained on the stand most of the afternoon.
At issue were two pieces of evidence in the Clemons case that Moss failed to produce to defense lawyers in his 1993 jury trial in St. Louis: a draft police report that Moss annotated by hand (mostly instructing police to omit information damaging to Moss’ star witness, Thomas Cummins) and a forensic report on the corpse of the only victim retrieved from the Mississippi River in the 1991 Chain of Rocks Bridge Case.
The draft police report dated May 6, 1991 contains testimony from Cummins and experts who visited the crime scene the night of the apparent murders of Robin Kerry and Julie Kerry on April 4, 1991. Though by May 6, 1991 Cummins no longer was considered a suspect, the draft report is full of damaging evidence gathered when Cummins was the only suspect.
Cummins became a suspect when he was interviewed on the crime scene the night of the incident because he made a major claim that did not seem to be true. He claimed that the attackers who had raped and killed his cousins had forced him to jump off the Chain of Rocks Bridge. The problem was, as the original draft police report noted, Cummins’ hair was clean, dry and parted and he had sustained no injuries. He was taken into police custody and confessed that he made a sexual pass at Julie Kerry, which she rejected, and then accidentally pushed her off the bridge during the ensuing argument. He then “must have blacked out” and wasn’t sure if Robin Kerry jumped in after her sister or if he pushed her off the bridge too.
Cummins later recanted this confession and claimed it was coerced by police. He provided police with a lead that led to the arrest of Clemons and his co-defendants, Marlin Gray, Antonio Richardson and Daniel Winfrey.
Cummins’ claim that he jumped off the bridge and tried to save his cousins in the swirling river – which crime scene investigators thought was so preposterous they took him into custody, assuming he was telling a lie to conceal his involvement in a crime – was used by Moss melodramatically at trial to portray his star witness as a hero. The Missouri Supreme Court’s most recent rejection of a Clemons appeal recites this fantasy of Cummins’ as fact.
Moss to cops: ‘Omit’
Moss repeatedly wrote “omit” on the margins of the May 6, 1991 draft police report of Cummins’ interrogation, apparently ordering the detective sergeant preparing the final report to omit evidence that would be damaging to the person who was by then Cummins’ “star witness,” as Levine noted in court. In fact, the final police report prepared on May 31, 1991 and introduced in Clemons’ trial did make many of the changes ordered by Moss.
In the May 6 draft report, police claimed, “Thomas stated the truth was he tried to have sex with Julie, however she refused.” Moss ordered the report revised to state that it was detectives who suggested to Cummins that his intentions were sexual. “D. suggested he tried to have sex, etc.,” Moss noted (and he testified on the stand that the notes were his). Indeed, the final police report introduced as evidence at trial has the police planting in Cummins’ mind the suggestion that he wanted to have sex with his cousin, but “in his mind the overt act was not sexual.” In the final May 31 police report, Cummins went to hug his cousin and she fell off the bridge; whereas in the May 6 draft report that jurors never saw, Cummins made a sexual pass at her and then pushed her off the bridge when her rejection led to an argument.
Due to Moss’ revisions to the draft police report, his star witness went from a confessed murderer to a confessed hugger.
The May 31, 1991 police report was introduced as evidence at trial; the May 6 draft police report with Moss’ annotations was withheld, though defense lawyers repeatedly asked Clemons for “all exculpatory evidence,” all evidence likely to help the defense case, and specifically asked for the annotated May 6 draft report in a pre-trial motion.
Levin quoted from Moss speaking at that pre-trial hearing, saying untruthfully, “Look at the (final) police report. It’s in there. Nothing was edited. Nothing was omitted.”
As Levine argued, the annotated May 6 draft police report that was withheld from trial was crucial evidence showing that the prosecution’s “star witness” was an unreliable witness who kept changing his story and had a motive for an assault (a rejected incestuous sexual advance). Levine said it also showed that the prosecutor was willing to tamper with evidence to improve his case.
Levin said the trial jury was denied clear documentary evidence that “the prosecutor tried to fabricate evidence and keep it from the defense.”
Judge Manners takes note
The withheld annotated May 6 draft police report clearly got Judge Manners’ attention.
Levine first called to the witness stand Jeanene Moenckmeier, one of Clemons’ original trial attorneys, to discuss the withheld draft police report. At one point Manners interrupted the testimony to address Moenckmeier directly, “Did you have a copy of the May 6 report?”
She said, “No.”
Judge Manners asked, “Was the May 6 report introduced in court?”
She said, “No."
‘Somebody wasn’t telling the truth’
Moss said he asked police to omit some of Cummins’ statements from his police interrogation because Moss “doubted such statements had been made.”
Levin responded, “In your experience, was it routine for St. Louis police to put things in reports that are not accurate?” Moss said no.
Levin said, “Somebody wasn’t telling the truth, either Thomas Cummins or the police.”
Of course, other than Cummins, the state’s most damaging witnesses in the Clemons trial were the St. Louis police.
Cummins’ claim of police brutality – which the City of St. Louis settled for $150,000 after Clemons was sentenced to death – mirror Clemons’ own claim of police brutality, filed right after he was discharged from the hospital, where Judge Michael David ordered him to be sent after his interrogation.
Levine pressed Moss on the details of Cummins’ claim of police brutality, knowing it would strengthen his client’s claim. If Clemons’ claim of police brutality is accepted as fact, then his confession was involuntary and should have been inadmissible in court and he is entitled to a new trial.
Moss was evasive about Cummins’ claim of being beaten by police.
Levine said, “Either the police hit him 10 times in the head, or not. Somebody was lying under oath. Either the detectives or your star witness perjured themselves.”