GUEST COMMENTARY: Halt Rick Clay's execution and review his case

Saturday, January 8, 2011 | 5:16 p.m. CST

Missouri is perilously close to committing a most grave miscarriage of justice — executing a person who, most likely, was wrongly convicted. State officials announced, oddly on Dec. 10 (internationally-observed as Human Rights Day), their plans to execute Rick Clay just after midnight Wednesday.

Hopefully, Gov. Jay Nixon will rise above politics, if courts don't intervene, and halt the state killing, initiating at least a thorough, independent review in the case.

Clay was convicted and sentenced to death for the fatal 1994 shooting of Randy Martindale in New Madrid, purely on the basis of flimsy circumstantial evidence and the prosecutorial misconduct by Kenny Hulshof, a former U.S. congressmen and Columbia resident, who was then assistant attorney general.

U.S. District Judge Dean Whipple ordered a new trial in 2001, citing Hulshof for: withholding evidence from Clay's trial attorneys that could have helped exonerate their client; utilizing perjured testimony; and misrepresenting a key witness's plea agreement. State officials appealed Whipple's order to a three-judge panel, which overruled it.

Judges have also criticized Hulshof for misconduct in six other murder trials, including those of two men recently exonerated — Josh Kezer and Dale Helmig. Kezer was set free in February 2009 after Cole County Judge Richard Callahan ruled him factually innocent. On Dec. 13, Helmig was freed on bond and waits to see whether prosecutors will retry him. DeKalb County Judge Warren McElwain overturned Helmig's conviction in November, writing, "There is clear and convincing evidence of (his) innocence."

Physical evidence and motive do exist in the killing of Martindale but point to others, not Clay, as being culpable. Stacy Martindale, the victim's estranged wife, tested positive for having gun residue on her hand, indicating she had fired a weapon, and she admitted to being in the bedroom when he was shot but claimed not to have fired the gun nor to see who did shoot him. She was convicted of second-degree murder, sentenced to 15 years in prison and is now free.

Prosecutors shifted their theory of who killed Martindale, depending on who was being tried. Hulshof told Clay's jury that Clay shot him, then told the judge during Stacy Martindale's trial that it could have been she who shot her husband, a tragic crime that essentially left two children parentless.

On several occasions, Stacy Martindale had asked Charles Sanders, her paramour, to help kill her husband, Sanders testified. She was the beneficiary of Randy Martindale's $100,000 life insurance policy. Sanders stated she wrote him a check for $5,000 as "a down payment," that he borrowed a .380-caliber pistol, bought bullets (the same type used in the murder) and took her out to test-fire the gun not long before the fatal shooting.

Sanders testified at both trials and, in exchange, pleaded guilty to tampering with physical evidence and was sentenced to five years' probation but no prison time. In Clay's trial, Hulshof led jurors to believe Sanders would be incarcerated for 10 years, misrepresenting the plea deal to suggest he was theoretically being held accountable for his role. Sanders later told Clay's appellate attorneys that Hulshof never led him to believe he'd be imprisoned.

Clay undoubtedly was a drug dealer who fled from police the night of the murder, he contends, because he was carrying methamphetamines. Clay was at the Martindale home the night of the murder, traveling there with Sanders and Martindale in her Chevrolet Camaro to get money so she could buy drugs from him. Clay said while he and Sanders waited in her Camaro, her husband arrived home. A short while later, she came back out and gave her car keys to Sanders. Sanders got into her car to drive, as he told Clay they were leaving. Because Randy Martindale had parked behind them, they had to pull forward through the carport and snagged a child's toy under the car.

Before a dispatcher reported the shooting, New Madrid Police Officer Claude McFerren recalled seeing a car driving toward him, with sparks flaring from its undercarriage (caused by the toy wedged underneath). He turned his vehicle around to follow the Camaro. Once he realized a police car was following them, Clay testified, he asked Sanders to let him out as he still had the drugs with him. Both men took off running in opposite directions, Clay testified.

McFerren recalled coming upon the abandoned car, with both doors open and the engine running. Prosecutors theorized Clay was driving alone, stopped the Camaro, opened both doors, climbed over the console and exited the car from the passenger side to confound authorities. His shoe matched a print found on the ground on the passenger side of the car.

Appellate attorneys for Clay later found the prosecution never informed his trial counsel of some key police interviews. "On the night of the murder," Judge Whipple stated, three people "witnessed the police chase of the red Camaro." Each told an officer that night "he or she saw the Camaro stop and the driver's side door and passenger's side door open simultaneously," suggesting two people traveled in the car.

Clay was caught the next day hiding in a tributary of the Mississippi River. Besides running from authorities, the prosecution's main evidence was a bullet matching the make and caliber used to shoot Martindale, found about 150 yards from Clay's tracks.

At least 138 death row inmates in the U.S. have been exonerated since 1973, all found to have been wrongly convicted, including three men in Missouri. Several innocent people, no doubt, have been executed. I pray Missouri doesn't add another person to that tragic group. I cannot swear Clay is innocent, but a cloudy whirlwind — not just a shadow — of doubt obscures certainty of his guilt.

Gov. Jay Nixon would wisely serve Missourians by staying Rick Clay's execution and ordering an independent review of the case. Please contact Gov. Nixon today at 573-751-3222. Urge him to take such cautious actions.

The public is additionally welcome to attend a Vigil for Life on Wednesday night from 5 to 6 p.m. in front of the Boone County Courthouse on Walnut Street in Columbia to remember Randy Martindale, all murder victims and their grieving loved ones, and to show support for Richard Clay and his anxious relatives and friends.

Even if Clay is guilty (and I really don't think he is), the Fellowship of Reconciliation believes he, like all people, retain an inherent human right to life. Our global society, individually and through governments, ideally should evolve to cease being active agents for death and strive to kill no more. Repealing Missouri's death penalty would provide world citizens an inspiring example.

For more information, call 573-449-4585.

Jeff Stack is coordinator of the Mid-Missouri Fellowship of Reconciliation.

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BILL HAYES January 8, 2011 | 10:06 p.m.

I would like to suggest that anyone who believes the totality of the comments by Mr. Stack needs to read the decision of the UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT 367 F.3d 993 . Especially read the parts quoted from the trial transcript about the Sanders "deal" and who knew what and when.

After you have done that you might just want to look into the factual information about the 138 "exonerated" death row inmates.

Last but not least, Mr. Stack needs to tell us all about the "Several innocent people, no doubt, have been executed". Please tell us all where any of them have been found not guilty.

(Report Comment)
John Schultz January 8, 2011 | 10:58 p.m.

Bill, you might want to check out this case:

Cameron Todd Willingham was executed for starting a fire that killed his children, except the forensics used to "prove" there was an intentionally-set fire are no longer proven by science. The government in Texas is trying to bury this case but it will be in front of a review panel again in January.

I don't know about the numbers that Jeff Stack uses, but there were 17 people on death row that were proven innocence by DNA analysis:

(Report Comment)
BILL HAYES January 9, 2011 | 6:13 a.m.

First, I am very familiar with the Willingham case. No court has proven or indicated him innocent. Some "experts" have indicated that the opinions expressed by Beyler in his report are in error and are incomplete. Beyler spent most of his time in his report expressing how great he is and not really on the facts of the case just one small part of it.

Willingham was more worried about his car and dart board than he was about his kids.

You might fine the following interesting.

Next, my issue with Stack on the numbers is not about the 17+, it is about his implied figure of 138. This is a gross exaggeration of implied innocence. In most of those cases, so many years have passed that the prosecutors could not put the case back together again for a possible re-trial. In one of the cases that was originally listed the killer is now back on death row and another is pending trial.

(Report Comment)
Ricky Gurley January 9, 2011 | 10:07 a.m.

John Schultz,

No need in arguing with this guy.... You can't convince a person of anything that would rather kill someone and apologize for it than save that person's life.

The guy is just ignorant..

One of the reasons I post this is that if DNA evidence has exonerated just 1 person that was on death row; that should be enough to make a reasonable and rational person have some serious doubts about putting a person to death without 100 percent certainty that they are guilty; since that penalty can not be reversed. Let alone it be 17 people....

Of course Mr. Hayes probably can't see the logic in that; ergo he is ignorant in these matters....

Ricky Gurley.

(Report Comment)
John Schultz January 9, 2011 | 10:30 a.m.

Amen Rick, that's why if we give government the awesome power to put a citizen to death, we'd better have ironclad proof of their guilt. Kraig Kahler? String him up from a tall tree.

(Report Comment)
David Clark January 9, 2011 | 8:26 p.m.

I am so disturbed by this whole mess. You know, Ricky Clay only had one trial. Most people think that death row inmates get plenty of chances to get their story out, but it just doesn’t work that way.

The state appointed an Assistant Attorney General, Kenny Hulshof, to aid the prosecution of Richard Clay. Hulshof told Clay’s jury that the state of Missouri had proof beyond reasonable doubt that Clay was in fact the gunman that shot Randy Martindale. The jury believed Hulshof, convicted Clay and recommended the death penalty.

Four months later, Hulshof stood in front of a different jury at Stacy Martindale’s trial where he announced to the jury that the State does not know who killed Randy Martindale. He suggested that the State had evidence that pointed at Stacy being the shooter.(Page 638 of Stacy's trial transcript Kenny Hulshof explains their new theory to the court.)A: (Kenny Hulshof) The officers did everything that they could to adequately investigate this case and we are still yet unclear, the State, since we don't have an eyewitness, don't know who pulled the trigger in that bedroom, there was a glove present. The jury may talk and speculate, the jury may find that the shooter, whether it was this defendant [Stacy Martindale] or whether it was Richard Clay that the shooter wore a glove, so I mean the point is you know a gunshot residue test was taken the chemist can testify about elevated levels that would indicate that this defendant [Stacy Martindale] could have handled a gun recently(Page 639 of Stacy Martindale's trial transcript as her attorney responds to Mr. Hulshof.)A: (Mr. Green) Then for the record I want to point out that Mr. Hulshof said that she may be the shooter. I find that for the first time surprisingly that the State has is going to take the position that Stacy Martindale is the shooter when they already tried Richard Clay and their position then was that Richard Clay was the shooter of Mr. Martindale.

Richard Clay was sentenced to death because the State convinced a jury that it had proven beyond reasonable doubt that Clay shot and killed Randy Martindale. Would any jury recommend the death penalty had they been informed by the State that based on the State’s own investigation that the State does not know who actually murdered Randy Martindale? I think not.

(Report Comment)
Andrew Hansen January 10, 2011 | 9:12 a.m.

"First, I am very familiar with the Willingham case. No court has proven or indicated him innocent."
He hasn't really been proven guilty either. Doesn't that bother at least just a little bit?

(Report Comment)
BILL HAYES January 10, 2011 | 10:25 a.m.

"First, I am very familiar with the Willingham case. No court has proven or indicated him innocent."
He hasn't really been proven guilty either. Doesn't that bother at least just a little bit?

What kind of idiotic statement is that. "He hasn't really been proven guilty..." Of course he was that is why he was executed!

(Report Comment)
BILL HAYES January 10, 2011 | 10:36 a.m.

"Of course Mr. Hayes probably can't see the logic in that; ergo he is ignorant in these matters....

Ricky Gurley"

Thank you, I would rather be ignorant of somthing that being just plain stupid. What have you done with your life except to make snotty remarks?
Since you are such an "expert": How many people have been executed in the history of Missouri? Since 1972 How many have been sentenced to death in Missouri? What is the nunber of homicide victims are accounted for by the current death row inmates?

(Report Comment)
Andrew Hansen January 10, 2011 | 10:55 a.m.

"Mr Hayes...Willingham was convicted on quite dubious expert testiomony which no expect seems willing to defend. Isn't it troublesome that they could not find one independent scientist to defend the late Texas Deputy Fire Marshal Manuel Vasquez or the Corsicana arson investigator? I have no problem with the death penalty, but the Willingham case stinks to high heaven.

(Report Comment)
Ricky Gurley January 10, 2011 | 12:00 p.m.

Bill Hayes: "Thank you, I would rather be ignorant of somthing that being just plain stupid. What have you done with your life except to make snotty remarks?"

Do simple spelling errors constitute stupidity; Mr. Hayes?

Andrew Hanson,

I don't think anyone on this thread has made a post in protest of the death penalty; thus far. I think we all agree that there is a time and place for it. I think that the one simple dispute is on how sure we need to be of guilt before we institute a penalty with such finality.....

Mr. Hayes would rather "kill'em all" and then apologize for the ones that were innocent.. I think that most of us here would rather we first make sure they are guilty so we don't have to apologize later....

Ricky Gurley.

(Report Comment)
BILL HAYES January 10, 2011 | 5:19 p.m.

Hansen: Please tell us all about where I indicated "Mr. Hayes would rather "kill'em all" and then apologize for the ones that were innocent.." You are truly perverted. No where did I come close to saying anything of the kind.

Others who want to learn something about the case may wish to read the following article from the Dallas Morning News (anti-death penalty).


Did you read the comment from Beyler about arson or not arson?

(Report Comment)
Ricky Gurley January 10, 2011 | 6:18 p.m.

Mr. Hayes,

Does confusing Andrew Hansen's posts with mine qualify as stupidity; especially since I spelled his name other than how he spells it?

Or am I just misusing my time that I should be using to save the world instead of making "snotty remarks"?

Ricky Gurley.

(Report Comment)

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