Reginald Clemons formally filed for clemency on Friday, June 12, petitioning Gov. Jay Nixon to take a fresh look at the facts of his case, “unencumbered by the procedural rules” that govern appellate courts, and commute his death sentence.
“With the full support of Reggie’s family, friends, clergy, and others from around the state and the country, we respectfully request that you exercise an historic act of grace, prevent a miscarriage of justice, and spare Reggie’s life,” his attorneys at Simpson Thacher & Bartlett and Husch Blackwell Sanders urged Nixon.
Clemons’ attorneys have long claimed that his catastrophically incompetent defense counsel in his 1993 jury trial made the appeals process very difficult, because so much crucial evidence was not admitted and so many critical objections were not entered into the record.
It is important that a governor considering a clemency petition can look at all of the facts in hindsight, not just those permitted by appellate procedure.
“The procedural protections that the legislature and the courts afford to a person accused of a capital offense strengthen the legitimacy of the system of justice by striving to ensure that only the most serious offenses are punished by death, that only the indisputably guilty are executed, and that similar cases are punished with equal severity. Those protections have failed Reggie, but you have the ability to remedy that failure,” his lawyers urged Nixon.
“As governor, you can view this case from a vantage point unencumbered by the procedural rules that have prevented the courts from addressing the infirmities of Reggie’s death sentence. Considering from that vantage point the astonishingly unfair trial in this case, a commutation of Reggie’s death sentence is warranted.”
In a 26-page petition, these are the crucial facts submitted to the governor’s consideration:
• Clemons was 19 at the time of the crime and had no criminal record of any kind.
• In spite of documented evidence of police brutality that resulted in a coerced statement, which he immediately recanted once out of their custody, Clemons never confessed to murder.
• The prosecutor stated at Clemons’ trial that one of his co-defendants caused the victims’ deaths, while a different co-defendant organized the crime. There was no evidence that Clemons was a primary actor at any stage.
• The record included only weak, equivocal evidence to support the essential element that Clemons “deliberated” and therefore committed a death-eligible offense. The maximum sentence under Missouri law for felony murder is life in prison without parole.
• There were numerous errors during the trial, including ineffective assistance of counsel and prosecutorial misconduct, which cast substantial doubt on the jury’s death sentence. The prosecutor was also held in criminal contempt and fined for his misconduct during the penalty phase.
• The co-defendant whom the State claimed actually caused the victims’ deaths is currently serving a life sentence. Courts in Missouri and elsewhere have found death sentences to be disproportionate where a more culpable co-defendant received a life sentence.
• Two federal judges have found that errors in the selection of the jury rendered the death sentence unfair and unconstitutional. Clemons’ appeal was not considered on the merits by the Court of Appeals for the 8th Circuit because that argument had been procedurally defaulted: his incompetent trial counsel had not raised it.
• A member of the jury at Clemons’ trial has submitted an affidavit stating that if she had known these and other facts, she would not have voted for the death penalty.
Clemons was scheduled to die by lethal injection on June 17, 2009, when he had a federal appeal pending in the U.S. Court of Appeals for the 8th Circuit.
The federal court has since granted an indefinite stay of execution as it rules on the appeal, which concerns the ability of the Missouri Department of Corrections to administer the lethal injection protocol in a way that does not violate the constitutional protection against cruel and unusual punishment.
The Missouri Attorney General’s Office has indicated it would not contest the stay but rather allow the federal court time to make its ruling.
When his execution date was scheduled in mid-May, The American asked Clemons what he would say to Nixon if provided the opportunity to address him directly. Clemons said, “Our system of justice is too imperfect to take what you can’t give back.”
In the clemency petition, Clemons’ lawyers requested meetings with the governor for themselves and for Clemons personally. Clemons’ mother and stepfather, Vera Thomas and Bishop Reynolds Thomas, met recently with senior members of Nixon’s staff and hand-delivered a letter to Nixon.
A spokesperson for Nixon did not respond to a request for an interview or statement regarding the clemency petition, but had previously said Nixon would consider all of the facts and make an impartial decision once he did receive a clemency petition.
Precedents for clemency
Clemons’ attorneys provided Nixon with an extensive list of examples where other governors had granted clemency in similar cases:
• 1n 1980, Florida Governor Bob Graham commuted the sentences of Darrell Edwin Hoy and Richard Henry Gibson, citing the lack of proportionality between their sentences and that of the equally or more culpable co-defendant who was the triggerman in the murder.
• In 1981, Graham commuted the death sentence of Michael Salvatore, again citing the disparity between his sentence and those of two others involved in the crime.
• In 1998, Georgia Governor Joe Harris commuted Freddie Davis’ death sentence in 1998 as disproportionate to the life sentence given his equally or more culpable co-defendant.
• In 1999, North Carolina Governor Jim Hunt commuted the death sentence of Wendell Flowers because he had doubts about the extent of Flowers’ involvement in the crime.
• In 2004, Indiana Governor Joe Kernan commuted the death sentence of Darnell Williams because Williams’ co-defendant received a life sentence. As Kernan explained, “Clemency is an appropriate method to adjust sentences of persons involved in the same crime to obtain a just result based on relative culpability.”
• In 2007, Texas Governor Rick Perry granted clemency to Kenneth Foster Jr. Foster had served as the getaway driver during an evening of robberies, and was sentenced to die for a murder that took place at the end of that evening despite the fact that the victim was shot by a co-defendant and Foster was in the car when the shooting occurred.
Clemons’ lawyers urged Nixon, “The grant of clemency in the above circumstances underscores that the death penalty – the State’s most severe punishment – should not be extended to accomplice liability cases involving a young man with no prior criminal record.”
The news of Clemons’ filing was initially reported last Friday on stlamerican.com, which has regular updates on the Clemons’ case and other local and national news.
