TABLE OF CONTENTS
I.Introduction……………………………………………………………………2
II.Recantations…………………………………………………………………...4
A.Randall Ferguson………………………………………………………….5
B.Terry Russell………………………………………………………………7
C.Jerry Poe…………………………………………………………………..8
III.Evidence of Innocence……………………………………………………….10
A. Evidence refuting Amrine’s involvement in a conspiracy to murder Barber………………………………………………………………………...10
B.Amrine’s location during the murder…………………………………….12
C.Evidence implicating Russell…………………………………………….14
IV.Julian Ossman: A History of Incompetence…………………………………16
A.Eric Clemmons…………………………………………………………...17
B.Emmett Nave……………………………………………………………..18
C.Richard Zeitvogel………………………………………………………...19
D.Martsay Bolder…………………………………………………………...20
E.The Case of Joseph Amrine: The Incompetence Continues……..………20
V.Failure of the Judicial System………………………………………………..24
A.False testimony and the Presumption of Guilt…………………………...24
B.Petition of Writ for Habeas Corpus – Failure of the Federal Courts……..26
1.The Schlup Test requires a review of all the evidence when considering a claim of actual innocence…………………………26
2.The district court and the Eighth Circuit misapplied the Schlup Test to Amrine by barring Amrine’s exculpatory evidence on procedural grounds……………………………………………….27
3.Reasonover v. Washington criticizes the Eighth Circuit’s decision in Amrine………………………………………………………...28
4.The court system’s inconsistent credibility assessments of the witnesses are unjust and violate the principles of Schlup………..29
5.The district court’s inconsistent application of the Schlup Test violated Amrine’s constitutionally protected rights……………...31
VI.State v. Burrell, an Analogous Case…………………………………………32
VII.Conclusion…………………………………………………………………...36
I.Introduction
The courts have decided that they will not halt the execution of Joseph Amrine even though there is currently no evidence to uphold his conviction.Amrine was convicted of the killing of Gary Barber on the testimony of three convicts, without a shred of physical evidence.All three have now recanted their testimony. The sole question remaining is whether the State of Missouri will execute Joseph Amrine, when if his trial were held today, the State would have no physical evidence or witness testimony
The ACLU and Christian Legal Society chapters of the University of Missouri-Columbia School of Law oppose the execution of Joseph Amrine.We advocate that our justice system provide everyone with the right to a fair trial, as granted by our Constitution.We are convinced that an incompetent public defender from an indigent defense system that the Missouri Supreme Court found to be inadequate,[1] coupled with false jailhouse testimony, deprived Amrine of a fair trial.Simply, we believe that the State of Missouri has not administered justice in this case.
We are not asking for Governor Holden to indict the entire death penalty procedure in Missouri.With this petition, we are merely asking that he look at all of the evidence available in Amrine’s case.After considering all of the evidence, it should be clear to the Governor that Joseph Amrine should not die for a murder he did not commit.Human beings operate our justice system and people do make mistakes.The facts of this case demonstrate that a mistake was made.It is now up to the Governor to prevent the gravest mistake of all—the execution of an innocent man.
Recent national developments establish that human mistakes have been made by the justice system.On April 8th, 2002, Ray Krone was the 100th innocent person convicted of capitol murder to walk free from prison since 1973.Thirteen men have been released from death row by our neighboring state Illinois, prompting Republican Governor George H. Ryan to order a moratorium placed upon the death penalty.Furthermore, Governor Ryan appointed a bipartisan commission to assess the death penalty.The commission unanimously agreed that reform of the capitol punishment system is required, and a majority of the commission favored abolishing the death penalty altogether.[2]These latest events further prove our contention that human mistakes are made everywhere in our criminal system, just as a mistake was made in the case of Joseph Amrine.
Recognizing that human error does occur, every state and the federal government have given the chief executive the power to grant pardons and clemency.In Herrera v. Collins, the United States Supreme Court declared in the majority opinion written by Chief Justice William Rehnquist that, “It is an unalterable fact that our judicial system, like the human beings that administer it, is fallible.But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.”[3]The courts have determined that the evidence exonerating Amrine is procedurally barred from halting his execution even though the Eighth Circuit found that, “If credited, the recantations by all three witnesses who implicated Amrine in the murder do more than suggest that he is actually innocent.” The Court also commented “The strength of Amrine’s showing at this point raises the real possibility that his case may be an example of the ‘extremely rare’ scenario for which the actual innocence exception is intended.”[4]Governor Holden, on the other hand, is not bound by technicalities and court procedures.He must answer only to his own conscience and to God in reaching the final life and death decision that is before him now.
II.Recantations
There was no physical evidence presented at trial connecting Joseph Amrine to the crime, because no physical evidence exists.The state relied upon the eyewitness testimony of three Missouri State Penitentiary inmates, one of whom almost certainly committed the murder himself.Primarily based upon their testimony, a jury convicted Amrine of murder.He was convicted despite the testimony of six witnesses who said he was playing poker on the other side of the room at the time the murder occurred.The jury believed the three witnesses testifying against Amrine, even though other witnesses identified Terry Russell, one of the witnesses for the prosecution, as the true killer.However, after the trial, all three witnesses that testified against Amrine recanted their testimony, claiming they had actually lied at trial.The recantation of their trial testimony indicates that no evidence currently exists to link Joseph Amrine to the crime for which the state now asks for his execution.The witnesses that implicate Terry Russell as the true murderer, and those that testified that Amrine was playing poker at the time of the murder, have not changed their stories.The only stories that have changed are those of the prosecution’s star witnesses, the inmates that now say they lied when they blamed Amrine for the murder.
Ferguson has been very outspoken and diligent in his claim that he was forced to lie at trial.Following Amrine’s trial, Ferguson’s conscience eventually caught up with him, and he recanted his testimony.[5]He was not even in the recreation room at the time the murder occurred, having left the room to use the washroom.When he returned, Barber was already dead.
The question we are faced with is why would Randall Ferguson lie about events he actually had no knowledge of.Shortly after Ferguson returned to the recreation room, Sergeant George Brooks, an investigator in the state prison system, questioned him about Barber’s murder, and informed Ferguson that he was a suspect.In an initial interrogation, Brooks took advantage of his knowledge that other inmates forced Ferguson to participate in homosexual acts.He offered to take Ferguson out of the prison and protect him from these inmates if he would change his story, and implicate Amrine as the murderer.At first, Ferguson refused.However, it did not take long for Ferguson, living under the constant threat of rape, to reconsider the investigator’s offer.
Brooks and Richard Lee, an investigator with the Cole County prosecutor’s office, waged a campaign of intimidation and coercion to gain Ferguson’s complicity in the prosecution of Amrine.They promised Ferguson that he would stay in the Cole County Jail until the next parole hearing, that they would write a letter to the parole board, and that he would get a radio and television for his personal use while incarcerated.Also, a weapons charge for which Ferguson could have possibly received additional time in prison was dropped in exchange for his testimony.The investigators threatened Ferguson that they would charge him with Barber’s murder if he didn’t cooperate with their investigation.Given Ferguson’s circumstances at the prison, this was understandably an unbearable risk he was not willing to face.
In addition, the investigators physically assaulted Ferguson by choking him and throwing him against a wall.To further intimidate Ferguson into compliance, the investigators threatened to spread the word that he was a snitch.In the penitentiary system, inmates kill snitches.
Under the pressure of the investigators’ threats and promises of protection, Ferguson finally succumbed to the investigators’ requests.With the help of investigators, he created a story.He made up the conversations regarding Amrine’s plan to kill Barber to fill in the gaps in his fictional version of Barber’s murder.
Ferguson now says that anything he said implicating Joseph Amrine was definitely not true, because he does not know who killed Barber.In the years after Amrine’s trial, Ferguson has continually attempted to set the record straight, through communications with lawyers, public officials, and therapists.Ferguson believes that if he had not lied, the jury would not have convicted Amrine, and therefore Amrine deserves a new trial.Ferguson desperately needs to see the greatest injustice he ever committed rectified.The videotaped deposition of Ferguson, in which Ferguson exhibits intense and serious emotional pain, may be the most persuasive evidence of his sincerity.
Ferguson has had an extremely difficult time living with himself, knowing that his lies are going to kill Joseph Amrine.He would rather die than see Amrine receive the death penalty, and has tried to kill himself several times.At one point Ferguson was prepared to confess to Barber’s murder in the hopes of getting attention, so that someone would listen to his story, and realize his testimony had been a lie.
David Knefelkamp, a certified forensic and clinical polygraph examiner, examined the validity of Ferguson’s recantations.In his opinion Ferguson was truthful when responding “no” to the following relevant questions:
1.When you testified that on October 15, 1985 you saw Joseph Amrine stab Gary Barber, were you truthful?
2.On October 15, 1985 did you see Joseph Amrine stab Gary Barber?
3.On October 15, 1985, when Gary Barber was stabbed, were you present in the rec room?
Ferguson should be believed when he swears that he lied at Amrine’s trial because he now has no reason to lie.Ferguson is currently a free man.
After the trial Russell recanted his testimony, stating that any statements he made implicating Joseph Amrine in Barber’s murder were false, and in fact, most of his testimony was false.As Russell now admits, he was not in the recreation room at the time of the stabbing.He claims that prior to the murder he left the recreation room, and he did not return until after Barber was already stabbed.However, Officer John Noble and an inmate identified Russell as the man that was running away from Barber after he was stabbed, indicating that Russell was the true perpetrator.Based on the identification by Nobel and the inmate, Russell was the initial suspect in the murder, and was taken into custody by investigators for questioning.
Initially, Russell told Brooks and other investigators that he did not want to testify, claiming that he did not know anything.However, the investigators threatened Russell just as they had done with Ferguson, and told him that if he did not testify, they would charge him with Barber’s murder.At that time, Russell only had sixty days left in prison, and was understandably looking forward to going home.Russell feared that if he were accused of murder, he would undoubtedly remain in prison.His strong desire to leave prison, coupled with the threat of being charged with murder, persuaded Russell to testify that Amrine stabbed Barber.The threat of being charged for the death of Barber was perhaps even more effective against Russell because the charge was almost certainly correct.
Before Poe made a statement, prison investigators promised that if he cooperated with them, they would transfer him out of state, and in the meantime would keep him in protective custody in the Cole County Jail.Just as the investigators threatened both Ferguson and Russell to obtain testimony against Amrine, they threatened Poe.They warned that if he did not do what they told him to, they would label him a “snitch” and put him back in the general population, in which case other inmates would likely kill him.
Poe did not actually see the murder, and therefore did not really know what happened.Poe lacked the necessary knowledge to implicate Amrine either in his statement or in his trial testimony.To compensate for his lack of knowledge, investigators Brooks and John Heymeyer helped Poe create his story.For example, the investigators told Poe that when he testified about where Barber was when he was stabbed, there would be a picture in the courtroom, so he didn’t have to worry about not having seen the murder.The investigators continually changed Poe’s testimony to ensure that it matched up with other testimony, or that it was plausible.Brooks wanted Poe to provide information about things that he had not seen, and did not know about, in order to incriminate Amrine.
The investigators threats worked again when they convinced Poe to tell them what they wanted to hear.However, Poe now admits that he was playing cards in the recreation room at the time of the murder.He heard a commotion behind him, and when he turned around he saw one inmate chasing another, but he didn’t know either of them.Then he saw Barber fall over on the floor, but did not even know that he had been stabbed until someone told him.
Randall Ferguson, Terry Russell and Jerry Poe all testified against Amrine in Barber’s murder trial.Promises and threats made by investigators motivated each to testify against Amrine.Each witness had something to gain, by implicating Amrine as the murderer.By testifying, each avoided being accused of the murder, or of being labeled a snitch and put back into the general population, where other inmates would surely kill him.Each did what they thought they needed to do for their own best interest.Since the trial, each has recanted all testimony implicating Amrine in the murder.Without the testimony of these three witnesses, there is no evidence that Amrine stabbed Barber.The only testimony that remains is testimony that places Amrine at a table playing cards at the time of the murder, and testimony implicating Terry Russell as the murderer.
At trial, Darryl Saddler denied under oath that he took part in a conversation with Valentine, Hutchison, or Joseph Amrine regarding the murder of Barber.[6]In particular, due to previous conflicts with Ferguson, Saddler stated that he would never have any conversation with Ferguson present.[7]Saddler also denied that he procured any weapon that was later passed to Hutchison.[8]
Omar Hutchison emphatically denied that he had been a part of any conversation or plot to murder Barber between Amrine, Valentine, and Saddler.[9]Hutchison denied that he had received a weapon from Saddler.Further, Hutchison did not carry any weapon into the multi-purpose room, nor did he tape any weapon to the window of the room.
Likewise, Clifford Valentine denies participating in any conversation or plan to procure a weapon with Saddler, Amrine, and Hutchison.[10]
Amrine himself testified that he had never had a conversation with Hutchison, Valentine, or Saddler.[11]In fact, of the group, Saddler was the only inmate with whom Amrine had previously associated himself.Amrine denied making any arrangements to procure a weapon, or to locate that weapon in the multi-purpose room.
With the
recantation of Ferguson’s testimony, the remaining testimony by Saddler,
Hutchison, Valentine, and Amrine clearly refutes a conspiracy to murder
Barber involving Joseph Amrine.
In Amrine’s first interview immediately following the murder, Amrine stated that he had been playing poker at the middle table with several inmates.[12]After hearing a noise, Amrine rose to see what had happened and asked a fellow inmate, James Louis, what had happened.Louis told him it had something to do with Barber.[13]A pillar and a crowd of people blocked his view, so Amrine returned to the table and the card game.At trial, Amrine testified that he had only left the table once for a moment during the recreation period to borrow tobacco from inmate Gary Riley.[14]Amrine stated that he spent the rest of the time standing beside the poker table with his foot on a stool.[15]
Six trial witnesses corroborated Joseph Amrine’s alibi.Three of them were sitting with Amrine at a poker table in the multi-purpose room.Inmate James McChan, who was at the middle poker table, testified that Amrine was playing poker with the group and never left the area of the table.McChan identified some of the other poker players as John Ball, Cornelius Dodson, and Rocky Jordan.Inmate John Ball verified that Amrine was at the poker table with him that day, playing cards with Cornelius Dodson, Rocky Jordan, Carl Hines and James McChan.Inmate Cornelius Dodson, who was at the card table that day until the incident occurred, also testified that Amrine was at the poker table “when the commotion started.”[16]Dodson confirmed that Amrine was playing poker with the group, which included Rocky Jordan, John Ball, and Carl Hines.
Also, there are other inmates, who were not at the table, who confirmed that Amrine could not have committed the murder because he was playing poker at the time.Brian Strothers placed Amrine at the poker table at the time of the stabbing, having been there since Strothers’ arrival in the room.[17]Strothers also identified Cornelius Dodson and John Ball as poker players that day.James Louis testified that Amrine was sitting at the poker table in a seat by the wall, sitting with John Ball.Omar Hutchison also confirmed that Amrine was at the poker table, close to where he was standing.
Kevin Dean-Bey, an additional witness who was at the courtroom during the trial, but never called by the defense attorney, later testified at the habeas corpus hearing.He insisted in the hearing that he had seen Amrine playing poker at the middle table.
In contrast to the conflicting and recanted testimony of Poe, Ferguson, and Russell, the testimony of numerous defense witnesses provides a cohesive and credible alibi for Joseph Amrine on the day of the murder.Joseph Amrine, playing poker at a table in another area of the room, could not have murdered Gary Barber that day.
In contrast, Russell was not wearing a red bandana that day.In addition, despite similar general characteristics, the men are discernible by anyone who already knew either or both of the two men.Most of the witnesses personally knew Amrine or Russell and would have been able to differentiate between the two.It is not reasonable that a witness would confuse a man wearing a red bandana with another wearing no head covering, especially if that witness knew either of the men.
The testimony of the only state eyewitness who has not recanted, Officer John Noble, has always contradicted the testimony of the other three state witnesses. Having witnessed the chase following the stabbing, Noble described the assailant as “approximately five foot nine, five foot ten, medium build, about one hundred and fifty pounds, say.His hair was kind of flat.”[19]Noble did not mention a red bandana.Noble would not have been able to see, nor identify, Amrine’s braided hair under a red bandana.Despite the prosecution’s attempt to diminish this testimony, the assailant described by Officer John Noble could not have been Joseph Amrine.
Officer John Noble in fact testified that the assailant was Terry Russell.With the only key to the door of the multi-purpose room, Officer Noble had sole control over the ingress and egress of inmates.While Noble testified that he did allow Russell to leave the room once to use the restroom, Noble stated that Russell had returned by the time of the murder.[20]Once any incident occurred in the high security area, procedure required that no inmate was allowed to enter or leave.Noble testified that the only people allowed through the door following the event were other correctional officers and inmates who brought the stretcher and carried Barber to the hospital.After the stretcher had carried Barber away, Officer Noble pointed Russell out to Officer Bowers as the inmate he had seen Barber chasing.Bowers, who already knew Russell, immediately took Russell from the room.John Noble has always maintained that he saw Barber chasing Russell.
Four other witnesses at trial and at the subsequent hearings corroborated Officer Noble’s testimony.James Louis was in the multi-purpose room that day.While Louis did not witness the stabbing, he did witness the chase.He stated at trial, “I know Barber was chasing Russell from the back of the room.”[21]
Likewise, inmate James Steven McChan testified that Barber “was chasing a guy named Tat-Tat.”[22]Tat-tat was Russell’s nickname.Brian Strothers, a fellow inmate, also testified that he saw Barber chasing Terry Russell.Once Barber collapsed, Strothers stated that he watched Russell continue running as Barber said to him “you ain’t going to get away with this.”[23]Sadly, Barber may have been wrong.
Following the trial, other witnesses have come forward with additional testimony.Inmate Kevin Dean-Bey testified that he had witnessed Russell stab Barber and the subsequent chase.[24]Inmate Edward Epps stated that he had witnessed the murder but would not name the murderer from fear of retaliation in prison.However, Epps did state that Amrine was not the person whom he saw kill Barber.
Five witnesses implicated Terry Russell as the murderer of Gary Barber.The testimony of four witnesses and a state correctional official cast more than a reasonable doubt upon the guilty verdict of Joseph Amrine.
Perhaps one of the most common sense practices in defending a capital case would be to ask potential jurors if they would automatically be inclined to favor the death penalty upon a finding of guilt.However, Julian Ossman failed to do so.When representing a client that the prosecution seeks to have put to death, he failed to ask potential jurors during voir dire if they would automatically be inclined to indulge the prosecutor’s request to give his client death.As noted by the District Court for the Western District of Missouri,[27] the failure to ask such an important question has been raised as an issue that arguably violated the due process rights of the defendant in at least one other case.[28]
In addition, there were allegations that Julian Ossman consumed alcohol during the trial.Ossman disputed that he had drank during the trial, but conceded in a deposition taken concerning the matter that he has had a problem with alcohol.[29]The excerpt of the deposition does not discuss how long he has had a problem with alcohol or if he ever received treatment for the condition.Eric Clemmons’ trial was held in 1987, while Joseph Amrine’s trial was held in 1986.It is unclear if the time frame in which he defended Amrine fell into the time in which he “had a problem with alcohol.”
At his retrial, the jury took only three hours to find Eric Clemmons not guilty of all charges.[30]
B.Emmett Nave
Julian Ossman also represented Emmett Nave as trial counsel in his capital murder case in 199?.Nave was convicted, sentenced to death, and later executed in 1996.Julian Ossman declined the trial court’s offer to sever the capital murder count from the counts involving his other crimes.Had Ossman accepted that offer, Nave could have barred his wife from testifying under the spousal immunity statute that existed in Missouri at that time.[31] This decision handed the state direct evidence of premeditation, an element that must be proven to successfully convict for capital murder.
The District Court for the Western District of Missouri found Ossman to be constitutionally deficient.The Eight Circuit Court of Appeals overturned that decision, holding that seven of the ten claims of ineffective assistance of counsel raised by Emmett Nave were procedurally barred and that the decision of trial counsel not to sever the trials was a strategic decision that is not constitutionally deficient.[32]
C.Richard Zeitvogel
Julian Ossman represented Richard Zeitvogel during his capital murder trial for the 1984 murder of a fellow inmate, Gary Dew, in which Zeitvogel received the death penalty.Richard Zeitvogel claimed that he had killed Dew in self-defense after being attacked in the cell the two shared.Julian Ossman never told the jury that Zeitvogel was the key witness against Dew in Dew’s trial for assault.This is a fact that Mr. Ossman would have been keenly aware of as the former counsel for Gary Dew.[33]
During voir dire, a remark was made by a potential juror in front of the other potential jurors about her tendency to automatically believe the defendant is guilty when they are in the courtroom wearing shackles and chains.The potential juror was excused.However, the effect the remark on the other jurors present can only be speculated.The poison of the remark could have been neutralized rather easily by asking if any other jurors shared her feelings and removing any potential jurors who did.However, Julian Ossman failed to do so.The Western District Court of Appeals stated, “[b]ecause of the ease with which counsel could have dissipated any possible harm from her remark, his performance at that stage of the trial was deficient.”[34] Zeitvogel was executed in 1996.
D.Martsay Bolder
Julian Ossman represented Martsay Bolder in his capital murder trial for the murder of a fellow inmate in the Missouri State Penitentiary.Mr. Bolder was sentenced to death.The District Court for the Western District of Missouri found Julian Ossman to be constitutionally ineffective and vacated the death sentence. [35]Ossman failed to present any mitigating evidence at trial, to convince the jury to spare Bolder’s life.The District Court determined that Ossman failed to present any mitigating evidence because he was unaware that he could introduce any non-statutory mitigating evidence.His decision not to present any evidence that might spare his client’s life was not based on a lack of evidence or an understanding of the controlling law.Therefore, his error was outside the range of professional reasonable judgment.Ossman also failed to present Bolder’s age at the time of the crime as a mitigating factor, which is a factor actually listed in the statute.The Eighth Circuit Court of Appeals reversed the District Court on the grounds that the claims made by Bolder of ineffective assistance of counsel had not been properly preserved for appeal.[36]Martsay Bolder was executed January 27, 1993.
E.The Case of Joseph Amrine: The Incompetence Continues
Joseph Amrine’s case was the fifth capital murder trial Julian Ossman defended in his capacity as a public defender.Despite Ossman’s considerable experience with such cases, Joe received something far less than a competent, zealous representation.Former jurors have been very outspoken about the deficiencies in Ossman’s performance.In essence, they were presented with only the prosecutor’s side of the case.The case of Joseph Amrine was a recipe for convicting an innocent man.
Ossman failed to present, or even interview, a number of witnesses who would have significantly contributed to Amrine’s defense.Ossman did not present a witness who saw Barber’s murder and identified the murderer as Terry Russell.According to Kevin Dean-Bey, Russell had substantial motivation to testify that Joe Amrine was the killer.Kevin Dean-Bey was present when Barber was killed and describes how Terry Russell killed him.Why was this testimony excluded at trial?Julian Ossman never called Dean-Bey as a witness or even talked to him, even though he was on a list of potential witnesses given to Ossman by Amrine.[37]
Kevin Dean-Bey is not the only person who believes Terry Russell sacrificed Joe to save himself.Russell Gross, who served as the jury foreman also believes that Terry Russell got away with murder by laying the blame on Joe.Gross came to this conclusion after being exposed to all the evidence, evidence that Joe’s attorney failed to present effectively.[38] Mr. Gross explained that Ossman never gave them a reason at trial to suspect that Terry Russell might be the true murderer.He further explained that the possibility was never discussed during jury deliberations.The jury was never given any reason to believe that Terry Russell was a potential suspect.They were given no one to blame other than Joe Amrine.
Larry Hilderbrand, a member of the jury that convicted Joe, pointed to Julian Ossman’s deficient performance as a primary reason the jury chose to convict Joe Amrine stating, “the defense gave us nothing to work with.”[39]Mr. Hilderbrand noticed the lack of preparedness on the part of the defense, giving him the impression that Ossman was meeting defense witnesses for the first time while he elicited their testimony at trial.The testimony was unclear and confusing, and made defense witnesses appear to be contradicting each other.Mr. Hilderbrand recalled Ossman’s use of a crudely drawn diagram that was presented to witnesses to explain Mr. Amrine’s defense that he was playing a poker game at the time of the murder.The former juror thought that the diagram may have been drawn by one of the witnesses and then referred to by the others. However, the perspective was off and the scale was incorrect, possibly confusing the witnesses.Any credibility given to Joe’s alibi was lost.
Mr. Hilderbrand also does not recall that Russell was ever a suspect and was also unimpressed with the defense’s inability to elicit a clarification of Officer Noble’s testimony.Even though Officer Noble implicated Terry Russell as the actual killer, Ossman failed to make clear that Noble testified that he had seen Barber chase Russell, not Amrine.[40]
Holding true to form, Julian Ossman did not call a single witness other than Joe himself to testify during the sentencing phase.It is not clear if at this time Mr. Ossman made this decision based on knowledge of the statute, or a lack thereof, as he did in the case of Martsay Bolder a few years before.[41]As noted below, there were several people who would have been willing to speak on Joe’s behalf and ask the jury to spare his life.These people did not have an opportunity to speak out for Joe until his post-conviction hearing.
During Amrine’s post-conviction hearing, a member of the prison staff, Bob Faith, and members of Joe’s family spoke on his behalf.Mr. Faith taught the diploma equivalency class that Joe attended.He testified Joe was non-violent and well adjusted and that he had been very surprised when Joe was accused of Barber’s murder.[42]In addition, the testimony of his family would have humanized Joe to the jury and shown that his life did have value and should be spared.Ossman did not present any of these witnesses to the jury during the phase of the trial where they decided whether Joe should be killed or allowed to live out his life behind bars.The Eighth Circuit agreed with the District Court that Amrine’s counsel would be constitutionally ineffective on this ground, a finding that would have reversed Amrine’s conviction.However, the Eighth Circuit did not overturn the sentence because Amrine could not show that he had been prejudiced by Ossman’s deficient performance.[43]Basically, the court concluded that the jury would likely have sentenced him to death anyway.
The judicial system has failed Joe.This miscarriage of justice leaves him with no recourse in the court system, and his appeals have been exhausted.Many of Amrine’s claims of ineffective assistance of counsel were procedurally barred.They were automatically dismissed without ever being heard or decided on the merits.[44]The claims that were heard were put to a standard of which very few defendants could ever meet, whether their claims have merit or not.To further tip the scales, there is a strong presumption that the trial counsel’s conduct falls within the wide range of professionally reasonable assistance.In addition, to prove ineffective assistance of counsel Amrine would have to show that he would have been found not guilty if not for Ossman’s ineffective assistance.[45]This is an impossible standard to meet when the testimony of three convicts, who would later admit that they had lied, would still uphold your conviction.Because of the convicts’ perjured testimonies and Ossman’s ineffective legal counsel, Amrine should be granted clemency by Governor Holden.
A.False Testimony and the
Presumption of Guilt
False testimony from inmates Ferguson, Russell, and Poe established an overwhelming presumption of guilt that undermined the success of Amrine’s appeals.At trial, Amrine had no means to refute false witness testimony that put him on death row, despite the testimony of Officer Noble, who stated that Barber chased Terry Russel, and the six prison inmates who testified on Amrine’s behalf.
The American system of justice derives its legitimacy from the fact that we believe our courts produce a majority of fair and efficient decisions.Consequently, our courts grant substantial deference to the fact-finding of trial courts and juries, and we feel sufficiently confident in establishing a presumption of guilt against a convicted defendant.[47]
Appellate review and constitutional habeas corpus protections ensure that errors in the judicial system are legally and equitably corrected.However, since no human institution is perfect,[48] these safeguards have not protected Joe from being wrongfully convicted.
In Amrine’s first appeal to the Missouri Supreme Court, Judge Rendlen stated that “[the] defendant [did] not challenge the sufficiency of the evidence to support his conviction . . ..”[49]At the time, Joe did not have enough evidence to base his appeal on actual innocence.Because the recantations and other exculpatory evidence became available over a period of time, each denial of relief reinforced the presumption against Amrine and perpetuated a stigma of judicial skepticism that Amrine’s petition for a writ of habeas corpus was less of a review on the merits than a mere attempt to keep Joe alive—an abuse of the writ.[50]
Amrine had the burden of overcoming a strong presumption of guilt because of the false testimony against him at trial.His appeals to the Missouri Supreme Court were unsuccessful without the exculpatory evidence to prove his innocence.As the truth emerged in the form of recantations, Joe’s final hope was to prove his innocence by invoking his Constitutional right to due process in the form of a writ of habeas corpus.
In Schlup, the United States Supreme Court established the standard for evaluating an actual innocence claim stating that, “[t]he habeas court must make its determination concerning the petitioner’s innocence ‘in light of all the evidence’ . . . .”[53]Additionally, the court stated:
The
district court is not bound by the rules of admissibility that would govern
at trial.Instead, the emphasis
on “actual innocence” allows the reviewing tribunal also to consider
the probative force of relevant evidence that was either excluded or unavailable
at trial . . . .[54]
Therefore, a Schlup review may consider a “broader array of evidence” than was considered at trial.[55]
Under Schlup,
the habeas court is instructed to grant a writ of habeas corpus if, after
considering all the evidence, the petitioner shows “that it [was] more
likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.”[56]
The habeas court prejudiced Amrine when it denied a comprehensive review of his exculpatory evidence.A review of all the evidence was necessary to allow Amrine to prove his innocence in light of the strong presumption of guilt against him.
The district court denied Amrine’s petition reasoning that “[d]espite the new evidence of witnesses Russell and Ferguson recanting their testimony, the testimony of Jerry Poe against petitioner remains unchanged.”[57]After Poe’s recantation, the Eighth Circuit applied the Schlup Test, remanding Amrine for rehearing to determine whether the evidence was “new and reliable.”[58]The court further stated “a remand will simply allow consideration of all the possibly relevant evidence at one time as required by Schlup.”[59]
At remand, however, the Supreme Court’s broad interpretation of the Schlup Test was abandoned and a narrower new evidence test from Smith v. Armontrout was adopted.[60] The Smith rule states that “evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence.”[61]
In Reasonover, Judge Hamilton criticizes the Smith standard as applied to the Schlup claim in Amrine:
Reliance
on Smith to define “new evidence” in a Schlup claim is inappropriate
because the actual innocence exception does permit a habeas court to
review the merits of a constitutional claim, notwithstanding that
the claim is abusive, successive, or otherwise procedurally barred.[65]
The effect of the Smith rule in Amrine was to bar the admissibility of new evidence on procedural grounds.The courts in Schlup and Reasonover would have admitted this new evidence for consideration.Judge Hamilton elaborates his criticism in the following hypothetical:
The
following hypothetical illustrates the Court’s point: A habeas petitioner
presents a claim of ineffective assistance of counsel which is procedurally
barred.The petitioner is unable
to establish cause and prejudice.The
petitioner presents compelling evidence of actual innocence, but all the
evidence was available at the time of trial and could have been discovered
in the exercise of due diligence.Further,
petitioner presents evidence that the available evidence was not utilized
because of trial counsel’s lack of diligence.
Under
the Eighth Circuit’s definition of new evidence, the petitioner’s Schlup
claim must fail, notwithstanding the compelling evidence of actual innocence.Under
Amrine, the evidence presented by the petitioner is not “new,” and
therefore may not be considered by the habeas court.(cite
omitted).The petitioner’s claim
would be procedurally barred, and the habeas court would be precluded from
ruling on the petitioner’s ineffective assistance at counsel claim.
In
contrast, under Schlup, the evidence presented by the petitioner
is “new” because it was “not presented at trial.”(cite
omitted).Assuming that the new
evidence is reliable and sufficient to sustain the petitioner’s burden
under Schlup, the habeas court must consider the merits of the petitioner’s
ineffective assistance of counsel claim because failure to do so would
result in a “fundamental miscarriage of justice.”(cite
omitted).[66]
This is just such a case when injustice results from applying the Smith rule to a Schlup actual innocence case.The injustice is clear—the new evidence rule acts as a procedural bar to a compelling claim of actual innocence.
Because Ferguson’s and Russell’s recantations were barred using the Smith rule, Amrine was denied the ability to seek protection and review under the Constitution—an opportunity he would have received in other courts.
Finally, the courts have inconsistently assessed the credibility of witnesses Russell, Ferguson and Poe by accepting the trial testimony of all three witnesses, and then rejecting their recantations as incredible.Ultimately, the district court’s determination of Poe’s incredibility barred any further habeas corpus review of Amrine’s claims.
In Amrine v. Bowersox[67], the court rejected Poe’s testimony based on Poe’s unsubstantiated claim that he had written letters to the Missouri Supreme Court in an attempt to exonerate Amrine.[68]The reasoning behind this credibility assessment seems trite in comparison to the weight of the exculpatory evidence.Whether or not Poe wrote letters to the Missouri Supreme Court has a tenuous relationship, if any, to the credibility of his recantation.
Although the district court had been granted
the power to “[make] its own credibility determination”[69]
of the witnesses’ testimony, such a determination, without consideration
of all the evidence, violates Schlup.[70]It
is plausible, if not probable, that the credibility of the Russell and
Ferguson recantations would have a significant impact upon the credibility
of the Poe recantation.Tom
Brown, the prosecuting attorney that convicted Amrine, admitted, “without
[either Russell, Ferguson, or Poe] then I think we would not have had a
case.”[71]
As required by Schlup, recantations from all three of the prosecution’s star witnesses casts the trial court decision into doubt and, more likely than not, would prevent the reasonable juror from upholding Amrine’s conviction beyond a reasonable doubt.
5.The district court’s inconsistent application of the Schlup Test violated Amrine’s constitutionally protected rights
If
heard before the Reasonover court, Amrine’s case would have undergone
a comprehensive review of all the evidence, as well as a review of Amrine’s
constitutional claims.Amrine
and Reasonover, both habeas corpus proceedings that originated in
Missouri federal district court, represent two conflicting tests to establish
an actual innocence gateway within the same jurisdiction.Both
tests, however, remain valid law.[72]That
a petitioner may use one version of Schlup to exonerate himself,
while another petitioner similarly situated must use a narrower version,
cannot comport with notions of justice.This
inconsistency is unacceptable when a man’s life hangs in the balance.
Given
the circumstances surrounding the Amrine case, the Governor should not
rely on the existing Amrine decisions.Procedurally
and legally, the judicial system failed to protect Amrine’s constitutional
rights, including the right to a fair trial.Investigatorial
misconduct, perjured testimony, ineffective assistance at counsel, and
an inconsistent, if not improper, application of the Schlup Test
created and perpetuated a presumption of guilt against Amrine that even
the truth could not overcome.
However,
if Amrine had been, or is now, given the opportunity in one comprehensive
hearing to present evidence that Russell, Ferguson, and Poe all recanted
their testimony, Amrine would have proven that no reasonable juror could
have upheld his conviction.Without
the consideration of all the evidence as required by Schlup, Amrine
was procedurally barred from meeting his burden of proof.Under
these circumstances, it cannot be said that the judicial system has done
justice with respect to the life of Joe Amrine.
VI. State v. Burrell, an Analogous Case
Joseph Amrine should be granted clemency because there is no physical evidence or witness testimony to uphold his conviction.Courts have thrown out similar convictions for lack of physical evidence and suspect witness testimony used at trial.
In State v. Burrell, Albert Burrell was convicted of the murders of William and Callie Frost.[73] The investigation of Burrell implicated Michael Graham in the killings because both men were seen together on the night of the murder.[74]Graham was found guilty in May of 1987.[75]Burrell’s ex-wife Janet came forward with information incriminating Burrell.She testified that she saw a wallet containing the driver’s license and social security cards of William Frost in Burrell’s car and that he admitted to have killed the Frosts.[76]But, in direct contradiction to Janet Burrell’s testimony, Mr. Frost’s wallet was found in the bedroom of the Frosts’ house after the murder had been committed.[77]
Olan Brantley, a convict, testified that Burrell and Graham both told him that they had killed the Frosts.[78]The Supreme Court of Louisiana found that the testimonies of these admissions were “direct evidence of the commission of a crime and cannot be considered circumstantial” and that these admissions “might have been sufficient in themselves to justify the jury’s guilty verdict.”[79]Another state witness, Amy Opal, testified that she saw Burrell and Graham on the night of the murders, with a suitcase with money, and that Graham had blood on him.[80]
Shortly after Burrell’s trial, Janet recanted her testimony, stating that she lied to get her ex-husband in trouble so she could regain custody of their son.[81]Furthermore, she stated that the sheriff’s deputies threatened to throw her into jail and take her child away forever if she changed her testimony.[82]However, when asked to repeat her recantations at a motion for a new trial, Janet refused and again stated the testimony she gave at trial.[83]
Amy Opal signed an affidavit in which she recanted her trial testimony, stating that the family of another suspect, Kenneth St. Clair influenced her testimony because they were afraid that Kenneth would be charged with the murder.[84] Olan Brantley, in return for his testimony, received lesser charges—two counts of issuing worthless checks instead of two counts of forgery.[85]The lesser charges carried a maximum sentence of two years, while the forgery charges carried a maximum of ten years.[86]In addition, his lesser charges ran concurrently with a six-year sentence that he had already received, with the result that he would not serve (and did not serve) any additional prison time for pleading guilty to the charges of issuing worthless checks.[87]
Given the lack of evidence and the suspect witness testimony, the State of Louisiana announced on December 11, 2000 that it would dismiss the murder charges against Michael Graham.[88]On December 27, 2000, the State issued its written reasons for dismissal, stating that the “cases against defendants Graham and Burrell are closely related as to be virtually identical.Therefore, the State of Louisiana has joined defendant, Burrell, in moving for a new trial.”[89]The State concluded that there was “a total lack of credible evidence linking Graham and/or Burrell to the crime,” and that it would be “a breach of ethics” for the prosecutors to proceed to trial against them.[90]Recent DNA tests have proven that blood found at the Frosts’ home did not belong to Burrell or Graham.[91]
On January 2, 2001, in Judge Cynthia Woodard’s courtroom in Farmersville, LA, the State explained why it had dismissed the charges against Burrell and Burrell prayed for a new trial.[92]Judge Woodard was concerned that she couldn’t grant a new trial because the Louisiana Code of Criminal Procedure (Criminal Code) states that a motion for a new trial based upon new and material evidence has to be filed within one year after the verdict or judgment of the court and Burrell’s motion was far beyond the one year limit.[93]However, Burrell relied upon Article 851(5) of the Criminal Code which provides that a court may grant a new trial whenever: “The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”[94]
As support for his request for a new trial, Burrell cited State v. Crockett.[95]In Crockett, the Louisiana Court of Appeals held that the one-year requirement could be waived based on newly discovered evidence to insure that justice was served.[96]Judge Woodard granted the motion and Albert Burrell was released from prison.[97]Like Burrell, Amrine’s case features no physical evidence linking him to the crime.The State of Missouri has not provided any fingerprints on the murder weapon or a blood sample to connect Amrine to the killing of Gary Barber.[98]As in Burrell, the State’s key witnesses received benefits from testifying and/or were threatened into testifying against Amrine.
Louisiana’s evidence against the now-released Albert Burrell was stronger than Missouri’s evidence against Amrine, and yet the Louisiana Court of Appeals released Burrell while Amrine awaits his execution on death row.In Burrell, Janet Burrell recanted her testimony implicating Albert Burrell in an affidavit, but when asked to repeat her recantation in court, she refused and again reverted to her trial testimony.[99]The State of Louisiana’s other main witness, Olan Brantley, never recanted his trial testimony and at a deposition in 1996, he still swore that Albert Burrell confessed the murder of the Frosts to him.[100]
By contrast, Amrine has no witnesses and no physical evidence connecting him with Gary Barber’s murder.At trial, the State relied upon the testimony of three inmates and all three have recanted their testimonies.Furthermore, Amrine has the affidavits of two additional witnesses who saw the murder of Barber and state explicitly that the murderer was not Amrine.[101]
The cases of Albert Burrell and Joe Amrine are strikingly similar.In both cases, despite a lack of physical evidence, both men were convicted by testimony from people who either had something to gain from the testimony or were coerced into testifying.Amrine’s case for clemency is even stronger because all three witnesses who testified against him at trial have recanted their testimony.In Burrell’s case, only one witness recanted her testimony, a second witness switched back to her trial testimony after recanting, and the third witness maintained the statements he made at Burrell’s trial.
There is less evidence against Amrine now than against Burrell, yet Albert Burrell has been released from prison and lives as a free