Clemons v. Luebbers
| Citation | 212 F.Supp.2d 1105 |
| Decision Date | 01 August 2002 |
| Docket Number | No. 4:97CV2344 CDP.,4:97CV2344 CDP. |
| Parties | Reginald CLEMONS, Petitioner, v. Allen LUEBBERS, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Mark G. Arnold, Husch & Eppenberger, LLC, St. Louis, MO, John J. Kenney, David Elbaum, Sharon L. Colckhausen, Nina L. Rifkind, Simpson & Thacher, New York City, for Petitioner.
Susan D. Boresi, Attorney General of Missouri, Assistant Attorney General, St. Louis, MO, Stephen D. Hawke, Attorney General of Missouri, Assistant Attorney General, Jefferson City, MO, for Michael Bowersox.
Judith A. Ronzio, St. Louis Metropolitan Police Dept., St. Louis, MO, for Bd. of Police Commissioners of City of St. Louis.
Michael Chapey, MECC, Pacific, MO, for Michael James Chapey.
Reginald Clemons seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Clemons was convicted by a jury and sentenced to death for the murders of Julie and Robin Kerry. He raises numerous claims of constitutional violations. One of the claims has merit.
Clemons is entitled to a writ of habeas corpus vacating the death penalty in this case, because six persons were unconstitutionally excluded from serving on the jury that sentenced him to death. Although these six venirepersons expressed reservations about imposing the death penalty, they were — under the standards established by the United States Supreme Court — actually qualified to serve on the jury. Their exclusion violated Clemons' rights under the Sixth and Fourteenth Amendments to the United States Constitution. I will therefore issue a writ vacating the death penalty and directing that Clemons either be sentenced to life imprisonment without parole, or that he be given a new penalty-phase trial.
On April 4, 1991, sisters Julie and Robin Kerry decided to show their cousin, Thomas Cummins, a graffiti poem they had painted on the Chain of Rocks Bridge. This bridge across the Mississippi River had been closed to traffic for several years, and had become an illicit late-night gathering place for young people. The three victims went to the bridge at approximately 11:30 that night.
A little earlier the same evening, another set of young people also decided to visit the bridge: Reginald Clemons, Antonio Richardson, Marlin Gray and Daniel Winfrey. Both groups started on the Missouri side of the bridge, but the Clemons group, having begun earlier, was returning westbound when it encountered the Kerry group, who were walking east. The groups met, conversed, and then went on their ways: the Clemons group walking west, toward the Missouri side, and the Kerry group heading east, toward the Illinois side.
After the two groups had separated, according to the testimony of Daniel Winfrey, Clemons suggested that his group rob the Kerry group. Gray responded that he felt like hurting someone, and Richardson suggested raping the Kerrys. The Clemons group then caught up with the Kerry group. Both Robin and Julie Kerry were raped, while Thomas Cummins was restrained. After the rapes, all three victims were forced through a manhole in the bridge deck to a platform below the bridge. From there, both Robin and Julie Kerry were pushed off the bridge, and Thomas Cummins was forced to jump. Cummins lived, and testified at the trials. Neither Robin nor Julie survived.
Following lengthy police interrogation, Thomas Cummins confessed to the crime, but almost immediately recanted his confession. Although Cummins was initially charged with capital murder, those charges were dropped after Clemons, Winfrey, Gray and Richardson were arrested. Cummins filed a civil suit against the City relating to his arrest, and that case was settled before trial.
Winfrey eventually pleaded guilty to two counts of second degree murder and agreed to testify against the other three in exchange for a recommended thirty-year sentence. The other three were tried separately and each was convicted and sentenced to death.
Richardson went to trial first, and was convicted, but in the penalty phase the jury could not agree on the sentence. Under Missouri law the judge then became the sentencer, and sentenced Richardson to death. Richardson's conviction and sentence were affirmed by the Missouri Supreme Court. State v. Richardson, 923 S.W.2d 301 (Mo. en banc 1996). His federal habeas petition was denied, and that denial was affirmed. Richardson v. Bowersox, 188 F.3d 973 (8th Cir.1999).
Gray then went to trial, and was convicted. He was sentenced to death on October 21, 1992. His conviction and death sentence were affirmed. State v. Gray, 887 S.W.2d 369 (Mo. en banc 1994). His federal habeas petition was denied, and that denial was affirmed. Gray v. Bowersox, 281 F.3d 749 (8th Cir.2002).
Petitioner Reginald Clemons' trial began before Circuit Judge Edward M. Peek on January 25, 1993. The jury found Clemons guilty of two counts of first-degree murder, § 565.020, Mo. Rev. Stat, on February 13. The penalty phase began on February 15, and on February 18, 1993, the jury returned a verdict for the death penalty on both counts. Judge Peek later sentenced Clemons to death pursuant to the jury verdicts.
Clemons filed a motion for post-conviction relief pursuant to Missouri Rule 29.15, which he subsequently amended. Following a lengthy evidentiary hearing spanning several days in April and September of 1995, the trial court denied the 29.15 motion. On consolidated appeal, the Missouri Supreme Court affirmed the conviction and sentence and the denial of post-conviction relief. State v. Clemons, 946 S.W.2d 206 (Mo. en banc 1997).
Clemons now seeks federal habeas corpus relief in this Court pursuant to 28 U.S.C. § 2254, asserting that his conviction and sentence violate his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. I allowed discovery on some grounds, and held an evidentiary hearing on one ground. Counsel have extensively briefed all the issues.
In my orders of July 23, 1999 and August 15, 2000, which are incorporated herein by reference, I made certain rulings that dispose of some issues. In particular, I held in the July 23, 1999 order that Clemons' Brady claims were procedurally barred, but that his claims regarding prosecutorial intimidation of witness Michael Chapey were not. In the order of August 15, 2000, I ruled that the claims of prosecutorial intimidation of trial counsel during the state post-conviction relief process were not cognizable in a federal habeas proceeding, and that the state court determination that Clemons' confession was not coerced was supported by the record.
Clemons seeks habeas relief on the following grounds:
1. Petitioner is actually innocent and his execution would violate the Eighth Amendment's prohibition on cruel and unusual punishment and the Fourteenth Amendment guarantee of due process.
2. Clemons' statements were obtained after he invoked his rights to counsel and to remain silent, so their introduction against him violated his Sixth Amendment right to counsel, his Fifth Amendment privilege against self-incrimination, and his Fourteenth Amendment due process rights.
3. Clemons' statements were the product of coercion, and were therefore obtained in violation of his Fifth Amendment privilege against self-incrimination and his Fourteenth Amendment due process rights.
4. Petitioner's rights to an impartial jury under the Sixth, Eighth and Fourteenth Amendments were violated because death-qualified panel members were improperly stricken for cause.
5. Petitioner was denied an impartial jury due to extensive pretrial publicity, the court's refusal to conduct individual voir dire, and the presence in the venire of a person who assisted the prosecutor in investigations of the crimes.
6. The prosecutor engaged in extensive misconduct, resulting in a conviction obtained in violation of Clemons' due process and confrontation clause rights.
7. Petitioner was denied effective assistance of trial counsel in the investigation and preparation of his defense because:
(a) Counsel failed to conduct a proper investigation for the guilt phase, specifically
(i) counsel failed to prove that Cummins' identification of Clemons at a line up was impermissibly suggestive;
(ii) counsel failed to contact witnesses including Dr. Caldwell, Marie Hicks and Cedric Richardson, and failed to use the investigation from Internal Affairs which would have shown a pattern of police brutality in investigating the case;
(iii) counsel failed to investigate fact witnesses, including bystanders on the Illinois shore;
(iv) counsel failed to effectively impeach prosecution witnesses at trial.
(b) Counsel filed to retain expert witnesses, both for the guilt phase and for the penalty phase of trial, specifically experts on the...
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