COLUMBIA — When the American Bar Association sought to review Missouri's death penalty laws as part of a nationwide study of capital punishment, it turned to a collection of the state's most esteemed lawyers, judges and law professors for help.
The two-year ABA study, released earlier this year, relied on detailed responses from law enforcement agencies, medical examiners, crime labs and others involved in handing down the state's ultimate legal sanction. But one group was largely and notably absent from the discussion: the prosecutors who decide whether to seek the death penalty in the first place.
Several members of the panel that worked on the study said the prosecutors' lack of cooperation hindered efforts to fully evaluate the death penalty system in a state that executed 68 people since the U.S. Supreme Court reinstated capital punishment in 1976, trailing only Texas, Virginia, Oklahoma and Florida.
ABA surveys sent to prosecutors in Kansas City, Springfield, Columbia, Cape Girardeau and St. Charles went unanswered, while the state Attorney General's Office provided limited information. Daniel White, prosecutor in Clay County in suburban Kansas City, was the only survey recipient to write back with his own thoughts but declined to participate, saying he did not want to "embolden enemies of justice."
White, who has sought the death penalty just twice in nearly 20 years, said sharing his insights would "generate a public document subsequently available to others who may not have justice as their primary mission."
"I can't quantify the soul searching, legal research, fact finding and energy expended in first, arriving at the decision to see the death penalty and second, actually going forward," White wrote. "It's not an easy decision; nor should it be."
The ABA sought details on the training and qualifications of assistant prosecutors who handle capital cases, including their caseloads. The association also asked about office budgets and salaries, number of previous and active death penalty cases, procedures for sharing discovery evidence with defense lawyers, interactions with families of victims and policies on plea bargains.
The study panel had members from Missouri, including U.S. District Court judges Nanette Laughrey and Stephen Limbaugh Jr. and Harold Lowenstein, a former state representative who spent 28 years as a judge for the Missouri Court of Appeals and is now in private practice in Kansas City. The panel also included two MU law professors and another from St. Louis University.
A 436-page report that came from the study includes recommendations that mostly would require legislative action. They include improved procedures for preserving biological evidence and a call for limits on the 17 aggravating circumstances under which prosecutors can seek death against murder suspects.
"I didn't anticipate a total lack of sharing information," said study panel member Doug Copeland, a St. Louis attorney and former Missouri Bar president. "They suggested some problems they had with going into their thought processes. I can understand that. But there's so much more information that doesn't tip their hands on anything."
St. Louis County prosecutor Bob McCulloch and former Callaway County prosecutor Bob Sterner, now an associate circuit judge, did not respond to the 40-question survey in writing but answered verbally, although it's not clear if they did so over the phone or in person.
St. Louis Circuit Attorney Jennifer Joyce's one-paragraph response to the survey referred to a collective response by the Missouri Association of Prosecuting Attorneys written by Taney County prosecutor Jeffrey Merrell, who merely cited Missouri laws on death penalty cases.
Merrell said prosecutors were concerned the ABA study was an effort to endorse a moratorium on the death penalty, which he said was the conclusion in six of 10 state ABA reviews*.
"It seemed that every jurisdiction the ABA had studied, they recommended a moratorium," he said. "Our initial feeling was this was a superficial effort to do a study and then recommend a moratorium.
"There were several questions that really did not appear to be designed to be answered in a way that was a fair representation of how decisions are made in the state of Missouri."
Panel member Paul Litton, an MU law professor, said some of the prosecutors' concerns are reasonable, especially considering that the ABA office in charge of the review is called the Death Penalty Moratorium Implementation Project.
"We did not set out and say, 'Let's go find reasons to implement a moratorium,'" Litton said. "We went into it with an open mind about everything. We didn't go into this with some sort of anti-death penalty agenda."
ABA attorney Sarah Turberville, director of the death penalty project, said Missouri prosecutors weren't alone in their reluctance. The Kentucky review team, which released its work late last year, was also rebuffed by prosecutors in that state, who decided as a group to not respond for fear their answers could jeopardize ongoing cases.
For Litton, the lack of response from Missouri prosecutors means the state is missing a chance to weigh in on ways it can further improve its death penalty system.
"There's a lot of common ground," he said. "No one wants to see the innocent punished. No one wants to see the guilty go unpunished. We all have a concern for fairness, whether you're anti-death penalty or pro-death penalty."