Advocates for Missouri death row inmate Reginald Clemons believe he has a compelling case for a retrial after prosecutor Nels C. Moss inadvertently admitted to withholding crucial forensic evidence in a television interview.
On The Charles Jaco Show, Redditt Hudson of the American Civil Liberties Union of Eastern Missouri pressured Moss into admitting the State had possession of clothing retrieved from the body identified as Julie Kerry at the time of Clemons’ 1993 murder trial.
“Nobody ever asked for it,” Moss said of the clothing.
“Nobody asked for it?” Hudson challenged him.
“Had the defense asked for it, it was theirs,” Moss responded.
When Clemons was informed of this exchange, he immediately claimed that his defense counsel had in fact asked for the State to produce the clothing in a pre-trial motion to compel discovery.
On Tuesday, Hudson received a copy of that motion in the mail from Clemons, who has developed into an astute legal mind over 18 years of incarceration.
In a hastily typed motion, full of typos and misspellings, Clemons’ attorney Robert Constantinou asked for 38 pieces of discovery. Number 18 on the list is: “Any clothes recovered from alleged body of Julie Kerry.”
The motion concludes with the following note: “A copy of the foregoing was hand-delivered to Nels Moss’s office today 1/15/93.”
Moss, who still practices law in St. Louis, did not return a call to his law office from The American requesting an interview.
Hudson said he is conferring with counsel at the ACLU and with Clemons’ current attorneys in New York regarding legal options.
In the interview, Moss dismissed the clothing as useless – “what was left on her was so water-soaked that nothing could be made out” – but Hudson pointed out to The American that Moss is not a subject matter expert and the judgment was not his to make.
“That was something for a forensic scientist to determine, but because the prosecutor knowingly withheld the evidence the jury did not get to consider the results of that determination,” Hudson said.
A watch also was recovered from the body, requested by Clemons’ counsel in discovery but never produced by Moss. If produced, it would have complicated the State’s case that Clemons and his codefendants had a robbery motive.
The fact that clothing was recovered from the cadaver presented more serious problems for the State’s case against Clemons. Thomas Cummins (who initially confessed to a role in the girls’ deaths) and Daniel Winfrey (a codefendant who accepted a plea bargain) both testified that the girls were stripped naked when Antonio Richardson pushed them off the Chain of Rocks Bridge on April 4, 1991.
Moss clearly remembered that testimony in the television interview, saying of the clothes, “They were stripped from the woman.” But since he failed to produce the clothes as ordered, the jury had no opportunity to see how much clothing was actually left on the allegedly naked body.
As Hudson noted on the Jaco show, and Moss confirmed, “The coroner Michael Graham testified that there was no evidence of rape at trial.”
The absence of forensic evidence for a capital conviction has been grounds for some of Clemons’ appeals – and makes Moss’ admitted withholding of the clothing so alarming.
Local attorney Albert Watkins, who has argued beside and against Moss in criminal trials, said he thought Moss’ admitted withholding of forensic evidence in a capital case was deeply disturbing.
“By law, the role of the prosecutor is not to seek a conviction by any means necessary – it is to see that justice is done,” Watkins told The American.
Watkins’ thought Moss’ admission was grounds for a writ of habeas corpus on grounds of prosecutorial misconduct.
The U.S. Supreme Court has described the writ of habeas corpus (claiming someone is imprisoned unlawfully and should be released) as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless State action.”
Moss’ prosecutorial misconduct is one of the many reasons Clemons’ attorneys cited in formally petitioning Gov. Jay Nixon for clemency. “The prosecutor was also held in criminal contempt and fined for his misconduct during the penalty phase,” they reminded Nixon.
In the television interview, Moss became visibly unsettled when Hudson – a former police officer – began to interrogate him regarding the missing clothing.
“What happened to it?” Hudson asked.
“It happened to it,” Moss sputtered, nonsensically.
If the clothing would provide any evidence, it would pertain to the charges of rape, not murder. Clemons was charged with raping the Kerry girls but never prosecuted on those charges. He has filed motions asking that the charges be taken to court.
Though Clemons was not prosecuted for rape, Moss directed the jury to consider the rape allegations introduced in trial testimony when considering the death sentence. This use of unproven allegations as a “sentence enhancer” – even in capital cases – is legal.
Watkins’ thinks this use of rape allegations as a sentence enhancer becomes highly dubious when the prosecutor admits to withholding forensic evidence that may have cast reasonable doubt on the rape allegations.
“Lady Justice owes the criminally accused a fair hand,” Watkins said. “Society owes itself a fair Lady Justice.”
NAACP calls for clemency
Moss’ prosecutorial misconduct and the absence of physical evidence in the Clemons’ case are among the reasons the NAACP is asking Gov. Jay Nixon to appoint a Board of Inquiry and grant clemency to Clemons.
“It is wrong to put to death someone who clearly might be innocent. Our nation and our State are better than that,” said NAACP President and CEO Benjamin Todd Jealous.
“It is not only unjust for Reggie but for the families of the victims who deserve to have the real killers punished. Executing the innocent is a mistake that cannot be rectified.”
Mary Ratliff, NAACP Missouri State Conference president, also noted that “although St. Louis is more than 50 percent African-American, there were only two black people on Reggie’s jury.” Clemons’ lawyers make this same point in their formal clemency filing.
Harold Crumpton of the St. Louis City NAACP also pointed out that even after hours of alleged physical abuse by detectives, which landed Clemons in the hospital on a judge’s order, he never confessed to murder.
The Missouri State Conference of the NAACP is calling on supporters to fax (573-751-1588), send letters and emails to Nixon and to sign a clemency petition at www.justiceforreggie.com.