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.