UPDATE: Missouri has too many grounds for death penalty

Thursday, March 1, 2012 | 4:55 p.m. CST

JEFFERSON CITY — Missouri has too many reasons for which prosecutors can pursue the death penalty against murder suspects and needs to do a better job of preserving forensic evidence such as DNA samples, according to a report released Thursday.

The report is the result of a two-year study sponsored by The American Bar Association that was conducted by a panel of law professors, private-sector attorneys and federal judges nominated to the bench by Republican and Democratic presidents.

The study notes Missouri has 17 "aggravating circumstances" that give prosecutors wide discretion by which they can argue to jurors that someone should be sentenced to death. One justification, for example, is that the murder was "wantonly vile." The result is that the circumstances "are so broadly drafted as to qualify virtually any intentional homicide as a death penalty case," the report says.

The report recommends narrowing the law so only the most serious murder cases are eligible for the death penalty.

"If we're going to have a death penalty, we need to do it right — it needs to be fair, it needs to be consistent," said Douglas Copeland, a St. Louis attorney who was part of the eight-person study panel.

The American Bar Association applied for a grant from the European Union, which opposes the death penalty, to help finance its study in Missouri and other states. But the EU had no influence over the study, said Sarah Turberville, director of the Bar Association's Death Penalty Moratorium Implementation Project.

Paring back Missouri's grounds for the death penalty would require legislative approval. The suggestion was praised by Cat Kelly, director of the Missouri State Public Defender System, who said prosecutors in some places pursue the death penalty more often than others because of the wide discretion.

Platte County Prosecutor Eric Zahnd, the president-elect of the Missouri Association of Prosecuting Attorneys, rejected the assertion that almost any murder can qualify for the death penalty. In more than nine years in office, Zahnd said he has yet to pursue the death penalty in any of the roughly 15 murder cases he's handled.

The report also said Missouri should do a better job of preserving biological evidence in death penalty cases for as long as the inmate remains behind bars. In some cases, biological evidence that does not lead to a conviction has been destroyed, leaving the inmate with little opportunity to pursue new tests if technology advances. Missouri also needs to boost funding for crime labs, study members said.

"Crime labs in many places, including Missouri, have large backlogs," said panel member Rodney Uphoff, a law professor at MU. "Sometimes evidence doesn't get collected properly, analyzed properly. And that's an issue not only that can lead to the conviction of the wrong person, but it limits the ability of the system to go after people who really have committed crimes."

Missouri law currently allows prisoners to seek DNA testing to try to prove their innocence, but only of materials secured at the time they were charged. The report recommends the law be changed to allow DNA testing of newly discovered evidence or of old evidence when testing procedures have improved.

The report is not entirely critical of Missouri's death penalty system. It praises the state for having a state-run public defender's system, crime labs that are accredited and for maintaining an independent judiciary. Judges on Missouri's appellate courts and urban trial courts are appointed by the governor after being nominated by special panels while circuit judges in other areas run under partisan labels.

Among other findings, the report says Missouri should increase training for law enforcement officers in handling eye-witness identification and establish a state entity to investigate misconduct by prosecutors and defense attorneys. It recommends Missouri ban the death penalty for people with dementia, traumatic brain injuries or mental illnesses that significantly impair their ability to act rationally or appreciate the consequences of their actions.

Although Missouri has curtailed the number of executions carried out in recent years, it ranks fifth nationally in executions since the U.S. Supreme Court reinstated capital punishment in 1976.

Missouri's panelists never discussed a moratorium on executions, preferring to focus on recommendations that might gain support from public officials, Copeland said. Bills proposing death penalty moratoriums have been filed in the state legislature for years without gaining any traction.

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