Note: This article is republished with the permission of the St. Louis Post-Dispatch and is copyrighted (2003) by the St. Louis Post-Dispatch
State's Argument Is a Stretch, Even for Death Penalty Backer
By Bill McClellan
Post-Dispatch
02/09/2003
Those of us who support the death penalty were taken aback when an attorney for the state of Missouri argued that the state Supreme Court ought to disregard evidence that a condemned man might be innocent.
Say what?
It sounds too ridiculous to be true, but assistant attorney general Frank Jung told the judges that they ought to ignore evidence that Joseph Amrine might not have done the murder for which he is supposed to be executed. He was sentenced to death for the murder of another inmate in 1985 at the Missouri Penitentiary in Jefferson City. The evidence against him consisted of the testimony of three other inmates. All three have since recanted.
Jung told the Supreme Court on Tuesday that lower courts have already reviewed these recantations and have given them no credence. It is now the state's position, Jung said, that the Supreme Court should restrict itself to constitutional issues.
It is entirely possible, I suppose, to be constitutionally correct and factually wrong. And in those cases, death penalty supporters are apparently being asked to take satisfaction in doing the wrong thing. That's a lot to ask of us.
We have a tough enough time as it is. The other side is always arguing that the death penalty is unfair because it's meted out in such a capricious manner. We can't refute that. Sometimes the state seeks the death penalty for first-degree murder, and sometimes it doesn't. There is no formula.
The other side says it's the guys with the bad lawyers who get the death penalty. That's generally true, sometimes spectacularly so. Reggie Powell, borderline retarded, had sex with his lawyer in the holding cell behind the courtroom. They had their tryst shortly before the penalty phase of his trial. How's that for judgment? I remember what she told me: I didn't want to let Reggie down. Well, she did. He was executed in 1998.
David Leisure was executed in 1999. Of all the fellows involved in the mob war between the Leisures and the Michaelses, David was far from the most culpable. He was certainly the dumbest. He did what he was told.
But at least he did the crime for which he was charged. He crawled under James Michaels' car, and planted a bomb. Powell was guilty, too. Stoned out of his gourd on PCP, he beat and stomped two intoxicated friends. Robbery was his apparent motive. He got $3 and a pack of cigarettes.
But at least he did it. That gives us something to defend.
We've been on the defensive ever since George Ryan commuted all the death sentences in Illinois. I thought that was an awful thing to do. Because the system in Illinois seemed mistake-prone, it made sense, I thought, to have hearings for all the death row inmates. In cases where there was some doubt, then commutations would make sense. When you're talking about locking up people guilty beyond a reasonable doubt is a fine standard. But you want no doubt when you're going to execute them.
I understand that prison murders come with their own special problems. It means little to threaten a fellow with prison when he's already there. Also, prisons are populated with some very tough people. You've got to keep control. So the death penalty is common for prison murders.
Often, though, you've got a witness problem. Your case might rest on the testimony of other inmates, and many of them have their own angles to play.
In Amrine's case, the state is arguing that the inmates' recantations mean little because the inmates aren't trustworthy. They may have recanted because they don't want to be known as snitches, the states says.
But if you can't believe their recantations, how can you believe their testimony? Truth is, you can't, and that bothers those of us who support the death penalty. Most of us are reluctant supporters. We're not enthusiastic about state-sanctioned killings, and we certainly want to draw the line somewhere. Innocence seems like a pretty good place to do it.