Missouri next state to have death penalty reviewed

Wednesday, September 29, 2010 | 5:32 p.m. CDT; updated 9:22 p.m. CDT, Wednesday, September 29, 2010

COLUMBIA — Every step involved in a capital punishment death in Missouri — from an accused person's arrest to their execution, and how their DNA is stored — is under review by the American Bar Association.

The review comes as part of a nationwide project prompted by concerns the death penalty was being implemented in an “arbitrary” and “haphazard” manner due to procedural flaws, according to the bar association.


Death penalty review panel

Stephen Thaman, law professor, St Louis University, School of Law

Paul Litton, law professor, MU, School of Law

Douglas Copeland, public attorney, Copeland Thompson Farris Public Corporation

Dee Joyce-Hayes, former circuit attorney, City of St Louis

Nanette Laughrey, federal judge, US District Court Western District of Missouri in Kansas City

Hal Lowenstein, retired judge, Missouri Court of Appeals

Stephen Limbaugh Jr., federal judge, US Court of Appeals for the Eastern District of Missouri

Rodney Uphoff, law professor, MU, School of Law



The 13 stages under ABA review:

  1.  Demographics of state’s death row and statutory evolution of state’s death penalty scheme; progression of a death penalty case from arrest to execution.
  2. Collection, preservation and testing of DNA and other types of evidence.
  3. Law enforcement identifications and interrogations.
  4. Crime laboratories and medical examiner offices.
  5. Prosecutorial professionalism.
  6. Defense services.
  7. The direct appeal process.
  8. State post-conviction proceedings.
  9. Clemency.
  10. Capital jury instructions.
  11. Judicial independence
  12. Racial and ethnic minorities
  13. Mental retardation, mental illness and the death penalty.

SOURCE: ABA Protocol 2010, ABA death penalty moratorium implementation project website.



Missouri is expected to resume executions in October after four years of legal uncertainty regarding the state's administration of the lethal injection method. The U.S. is also facing a shortage of one of the drugs contained within the lethal cocktail.

MU law professor Paul Litton, co-chair of an independent committee conducting the review, said the bar association created a 13-stage protocol that Missouri’s capital punishment system would be judged with, like other states.

The timing of the review and plans to resume the death penalty in Missouri are unrelated, Litton said.

The protocol was created to ensure accused people were sentenced to death under fair circumstances, Litton said. He also said there were no specific areas the review panel would be paying more attention to in Missouri.

"We're going into this analysis with no preconceptions at all," he said.

Legal issues focusing on the application of capital punishment within states stem back more than 40 years, when capital inmates first challenged the system in court, Litton said.

The U.S. Supreme Court reinstated capital punishment in 1976 after a four-year hold following litigation that argued death penalty states were executing people in an arbitrary manner.

“The Supreme Court held the way that the statutes were set up, juries were being given no guidance as to who they should sentence to death and who they should not,” Litton said. “The justices were concerned that getting the death penalty was in essence like getting struck by lightning."

The bar association will collect data and conduct interviews with relevant state bodies for each stage of its evaluation and then provide the Missouri committee with the raw data for independent review.

Missouri and Kentucky will be the ninth and 10th states reviewed under the project.

Missouri was selected because it was the fifth highest executor in the U.S., according to Stephen Hanlon, the project steering committee chair.

Hanlon, a private lawyer based in Washington, D.C., said Missouri was also selected because its statewide public defender system is a rarity among the 35 capital punishment states.

He said the bar association supported Missouri's statewide public defense model and wanted to take a closer look at it.

The Missouri review committee involves an eight-member panel co-chaired by Litton and Stephen Thaman, a law professor from St. Louis.

Litton said the committee received the first "chapter" for review— an overall summary of the state’s laws— in August.

States already reviewed include: Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania and Tennessee.

Findings from these states revealed most did not preserve evidence through the entire legal process. Most had experienced at least one serious incident of a crime lab mistake or fraud.

All states studied also had significant racial disparities within the capital system that were not being addressed.

Two of the biggest system failures discovered in almost every state, Hanlon said, were failing to provide adequate defense counsel and a lack of record-keeping.

"When you're dealing with human life, ultimately the system is going to determine who is going to live or die so it's terribly important that full and accurate records be kept," he said. "If Missouri falls short there will be some very specific recommendations put forward."

Missouri Department of Corrections spokeswoman Jacqueline Lapine said the department was confident about its procedures and staff.

The bar association review will not be evaluating the implementation of the lethal injection protocol in Missouri that has proved contentious over the past four years.

Only one man, Dennis Skillicorn, was executed in Missouri since 2005, but executions will resume with Roderick Nunley.

Litton said of the eight states already reviewed by the project, five recommended a temporary moratorium be placed on executions while systematic faults were addressed.

But, none of the states adopted this recommendation.

The findings of the Missouri review are expected to be released in April.

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