Lawyers for Missouri death row inmate Reginald Clemons and the State of Missouri began to make their respective cases this week before Judge Michael Manners, the Special Master appointed in the Clemons case by the Missouri Supreme Court on June 12, 2009.
Clemons’ lead attorney Josh Levine argued that new evidence should compel the court to throw out Clemons’ conviction and order a new trial. Levine also argued that Clemons’ verdict of death was disproportionate and “almost unprecedented” given Clemons’ youth at the time of the incident (19), his lack of any previous criminal record and the fact that he was charged as an accomplice.
Missouri Assistant Attorney General Susan Boresi argued that all of the petitioner’s allegedly “new” evidence has been previously litigated in Clemons’ original 1993 jury trial or one of his subsequent appeals. She said that the only genuinely new evidence that will be presented in the Special Master’s evidentiary hearing is a new DNA profile built from old evidence that only strengthens the state’s case against Clemons and his original co-defendants.
Judge Manners appeared alert and fair-minded from the bench, raising pertinent questions with attorneys and witnesses and asking for input from adversarial counsel whenever considering an objection. He pointedly reminded Clemons’ counsel that their client is the petitioner in a civil action, not a defendant in a criminal trial, and as such the burden of proof is theirs.
The petitioner’s counsel called witnesses first, clearly with the prime objective of showing that prosecutor Nels Moss tampered with a police report and withheld evidence.
Levine called Jeanene Moenckmeier, one of Clemons’ original trial attorneys, to relate how she was not provided a copy of a draft police report that Moss annotated so she could introduce it into evidence. Moss’ handwritten notes directed police to remove from the report information that was damaging to Thomas Cummins, who had moved from sole suspect in the murders of Julie Kerry and Robin Kerry (his cousins) to what Levine described as the prosecution’s “star witness.”
Moenckmeier, now general counsel for a dietary supplement company in Los Angeles, was cross-examined sharply by Boresi. Under cross-examination, Moenckmeier testified that Moss did allow her to see the annotated police report and describe its contents into a dictaphone, and when Moss did not provide a copy of the document as requested she filed a pre-trial motion to compel him to provide it. She said there is no ruling on the record for this pre-trial motion.
Levine quoted Moss’ statements in that 1993 pre-trial hearing when he had Moss on the stand for most of Monday afternoon. In 1993 Moss told the court that “nothing was edited, nothing was omitted” as a result of his notes on the police report, but this was not true. Levine introduced into evidence the draft police report that Moss annotated and the final police report introduced at trial, and there are dramatic differences. All of Moss’ changes make Cummins – the police’s first suspect turned prosecution’s star witness – look less guilty and more credible.
Moss said under oath that he asked the police to omit from their report only statements they attributed to Cummins in his interrogation that Moss did not think were true.
Levine responded, “In your experience, was it routine for St. Louis police to put things in reports that are not accurate?”
Moss said no.
Levine said, “Somebody wasn’t telling the truth, either Thomas Cummins or the police.”
Judge Manners was ordered by the Missouri Supreme Court to conduct an evidentiary hearing regarding Clemons’ writ of habeas corpus challenging his 1993 conviction for the murders of Robin Kerry and Julie Kerry.
Clemons was convicted of murdering both girls as an accomplice and sentenced to death. He confessed to raping one of the girls, not to murder, and claims his confession was coerced through beatings by police. Judge Michael David ordered Clemons sent to the hospital when he was seen by the court following his police interrogation, and Clemons filed a police brutality report once he was let out of the hospital. But the trial judge, Edward Peek, permitted his involuntary confession to be used as evidence against him.
Thomas Cummins also claimed that his confession – to murdering both girls by pushing them off the bridge after one sister refused his sexual advance – was coerced, making claims virtually identical to Clemons’ claims. Judge Manners pointed out to the state from the bench on Monday that one detective, Chris Pappas, interrogated both Clemons and Cummins.
Cummins received a $150,000 settlement from the City of St. Louis for his police brutality claim – after Clemons had been sentenced to death. That settlement, Levine argued, also constitutes new evidence that was not heard by Clemons’ trial jury and which merits a new trial.
Watch for continuing daily coverage of the Clemons hearing on stlamerican.com.
