Missouri The surprising reality behind state's death sentences Most capital cases originated more than 15 years ago

By Allyssa D. Dudley

The Daily Record Newswire

ST. LOUIS, MO - A string of executions over the past year belies a surprising reality: Missouri has sentenced few people to death in the past decade.

The state has executed nine men since November, and another is scheduled to be put to death Sept. 10. Each month, the flurry of court activity and media coverage indicate the death penalty is alive and well in the state. The reality, though? The original cases are 15 to 20 years old.

Execution in Missouri was at its zenith in the 1990s. The high point since executions resumed in 1989 was 1997, when Missouri prosecutors requested the death penalty in 63 cases. According to a Missouri Lawyers Weekly analysis, prosecutors asked for the death penalty an average of 39 times per year during that decade, and it was granted an average of six times per year.

Using data provided by the capital division of the public defenders' office, Missouri Lawyers Weekly analyzed trends in 671 capital cases since Missouri resumed use of the death penalty in 1989. There were 22 cases handled by private attorneys, rather than public defenders, that were not included in the data.

Only five people have been sentenced to death in Missouri since 2010, and only 11 in the past decade, compared to 56 in the decade prior. Since 2000, prosecutors have requested the death penalty on average 14 times per year, with the sentence actually doled out less than twice per year on average.

Missouri is nowhere near abolishing the death penalty. The legislature, the executive offices and the judiciary are all staunch supporters. And yet, in practice, Missouri has stepped away from capital punishment.

There is no singular reason for the downturn in those numbers. Rather, prosecutors and other attorneys who deal with capital cases say a combination of policy and personal actions led to what essentially has amounted to Missouri's latest death penalty moratorium. Those factors include shifts in public opinion, cost and a lower murder rate overall.

To be sure, there's no guarantee the trend line of fewer death sentences will continue. Thus far in 2014, Missouri prosecutors already had requested the death penalty 11 times. Karen Kraft, director of the Missouri State Public Defender's Capital Division, said it's possible this year could mark the start of an upward shift.

"A number of incoming cases are being certified," she said.

Weighing the costs

Prosecutors have the option of taking the death penalty off the table, and they do so 60 percent of the time in eligible cases, according to "Place Matters," a 2009 academic study about Missouri prosecutorial decision-making based on data spanning from 1997 to 2001. They also can seek assistance from the state attorney general, at times turning over the case entirely.

Prosecutors often turn the cases over or opt to not request the death penalty because of the burden of a capital case, Kraft said.

"The death penalty is expensive to defend and expensive to prosecute. Some counties don't want to incur that cost," she said.

The cases can drain the financial resources of a prosecutor's office, and they carry the burden of time as well, creating incentive for prosecutors to be judicious in their requests.

Compared with "a regular drug case, a standard murder case is five to eight times as much work, and a capital case is seven to nine times as much work as a murder case," Stoddard County Prosecutor Russell Oliver said.

Oliver is working on his second capital case since taking office, prosecuting Matthew Cook. There are 52 people endorsed for deposition, which Oliver said costs about $5,000. The jury will be sequestered for about a week, costing another $10,000. He estimates the cost of the case to be, conservatively, $20,000.

"My office handles anywhere from 650 to 900 cases a year. Our total budget is $175,000. This is a huge expense," Oliver said.

In Dent County, Prosecuting Attorney Andrew Curley estimated the death-certified case of Marvin Rice, a former sheriff's deputy accused of fatally shooting his ex-wife and her boyfriend in 2011, will cost his office a similar amount.

"There is not a way to truly budget for a capital case." -Andrew Curley, Dent County prosecuting attorney

"There is not a way to truly budget for a capital case. We have to go hat in hand to the commissioners," he said.

However, their cost at the trial level is a fraction of the cost of the entirety of a capital case. The state takes the cost of the case post-trial conviction, and sometimes before that. Smaller, poorer counties will often hand a capital case off to the attorney general's office, said John William Simon, a constitutional litigation attorney in St. Louis who practices and advises on capital cases. The attorney general's office also can enter a case by request of the governor, or if there is a potential conflict, the court can request the attorney general become involved.

The attorney general's office does not keep specific cost records for capital cases.

No specific numbers were available for the total cost of an execution in Missouri, although state Sen. Joseph Keaveny, D-St. Louis, has proposed an audit. In Kansas, a 2003 legislative audit found that the estimated cost of a death penalty case was 70 percent more than a non-death-penalty case, according to a 2014 study by the Kansas Judicial Council. The median cost of an execution was $1.26 million, while a case ending in a life sentence without parole, through the end of incarceration, cost the state $740,000, the audit found.

An emotional burden

Quintin O'Dell, now 24, was an Eagle Scout from Platte County. In December 2011, he was drinking with a co-worker and flew into a rage, slashing the woman with a razor. Evidence suggested he also sexually assaulted her. The young woman survived, and O'Dell was arrested.

While making his statement on the assault, O'Dell confessed to an unrelated incident - the earlier murder of Alissa Faye Shippert. Shippert had been found with a hatchet in her skull in the Platte Falls Conservation Area.

"It was clearly a death-eligible case, and I had no compunction requesting it," Platte County Prosecutor Eric Zahnd said. It is at the prosecutor's discretion whether to seek the death penalty in a qualifying first-degree murder case.

What gave Zahnd pause was Shippert's family. Zahnd told them that while there was a good chance O'Dell would be put to death, it might take a while. Ultimately, after consulting with the family and the defense attorney, Zahnd opted to honor their wishes and take a guilty plea from O'Dell in exchange for a sentence of life without parole.

"It was not the family's decision, it was mine. But it is important to consider the family when you make that choice," Zahnd said.

Capital cases can languish in the courts for years. The 40 men on Missouri's death row have been there for an average of 15 years each. Walter Storey is the most senior execution-eligible inmate, having been on death row since 1991.

The toll on the victim's family can be a deterrent when considering whether to pursue the death penalty, Curley said. With his prosecution of Rice in Dent County, he said, he has had multiple discussions with the victims' family members about the process and the emotional burden. A family member asked whether Rice would be executed before she dies.

"You have to prepare them for what is going to happen," Curley said.

Curley opted to keep Rice's case qualified, but not without deliberation.

"The truth of the matter is that by asking for the death penalty, you've killed a person. You have to put your head on your pillow at night and know you have elected to take someone's life," Curley said.

Out of the public eye

The financial cost, workload and lengthy trial timeline are in part the result of a steady stream of court challenges to the practice of execution.

In June 2006, Missouri halted executions to make way for changes in execution protocol. U.S. District Judge Fernando Gaitan said the state's lethal injection procedure involved unnecessary risk of unconstitutional pain and suffering.

There already had been a steady decline in prosecutorial requests for the death penalty as of 2006, down from 63 in 1997 to 18 that year. A further drop followed the moratorium: Prosecutors sought the death penalty 14 times in 2007 and, with few exceptions, juries stopped giving out the punishment.

In February 2009, the Missouri Supreme Court upheld the constitutionality of the state's lethal injection procedures. The halt was lifted with the execution of Dennis Skillicorn in May 2009.

During the break in capital punishment, the practice was out of the public eye, and Kraft said that might be why there was an additional drop in prosecutorial requests.

"There was a good length of time with no executions, and prosecutors did not want to mention it," Kraft said.

Public approval for the death penalty reached its peak in 1994, according to a Gallop poll, when the nation had an 80 percent approval rate. Since then, there has been a steady decrease, with the percent approval in the low 60s for the past five years.

Although these numbers are not specific to Missouri, the 25 percent decline in nationwide public approval correlates with a 23 percent downturn in the state's prosecutorial requests for capital punishment.

A more limited pool

Another change seen over the past quarter-century has been in the murder rate.

Statistics from the FBI's uniform crime report show that since 1989, there has been a small dip in the total number of criminal murders in Missouri. From the peak period in the early 1990s, though, the drop is more significant - although not enough to account for the much larger decline in death penalty sentences. In addition, the percentage of those murders in which the death penalty is sought dropped from 8 percent in the early 1990s to an average of 3 percent over the past four years.

"It makes perfect sense to me that we are not assigning the death penalty. It is just not coming up as much," St. Louis County prosecuting attorney Bob McCulloch said.

McCulloch has been prosecuting attorney in one of Missouri's most murderous counties for over 20 years. He said he thinks an overall downturn in the murder rate has correlated with the drop in death sentences being requested. "Fewer cases qualify," he said.

To qualify for the death penalty, a murder has to fall within the first-degree definition, be committed after deliberation and have at least one aggravating circumstance. Missouri has 17 statutory aggravating circumstances that, if met, allow a case to qualify for the death penalty. Those include the murder of a public official, peace officer or criminal witness, or committing a "wantonly vile" murder.

In addition to there being fewer cases to prosecute, court action has limited the class of people who are eligible to receive the death penalty in the first place.

In 2001, Missouri lawmakers passed SB267, which eliminated capital punishment as a penalty for first-degree murder defendants who were mentally challenged. This was a year after the continued decline of prosecutorial requests for the death penalty began.

The U.S. Supreme Court ruled in Atkins v. Virginia that a mentally challenged person might have had the faculties to commit a crime but does not have the moral culpability that characterizes the most serious adult conduct. After that 2002 ruling, there was an additional drop in prosecutorial requests for the death penalty in Missouri, from 22 in 2002 to 17 in 2003. The numbers have not rebounded.

Prosecutors can still request capital punishment, but it can then be determined that although the person was competent to commit the crime, they may not be competent to stand trial. Oliver requested the death penalty in the case of Allen McCoy, charged in the 2010 stabbing death of Aubrey Finch, but he ultimately withdrew the request because of McCoy's mental state.

"He was competent at the time he committed the crime, but he did not have the awareness to understand the process or help with his defense," Oliver said.

Prisoners can also claim that they are not competent to be executed. In Ford v. Wainwright, U.S. Supreme Court Justice Lewis Powell wrote, "the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it."

Similar to the decision in Atkins was Roper v. Simmons. Missouri had not executed a minor, or even made the attempt to, since resuming executions in 1989. But then in 1993 Christopher Simmons broke into Shirley Crook's home, bound her with leather straps and cables and threw her off a bridge. Crook drowned, and Simmons, 17 at the time, was arrested the next day.

He was sentenced to death in June 1994 at age 18. Simmons appealed his death sentence to the U.S. Supreme Court, which ruled in 2005 that it violated the 8th and 14th amendments to execute someone for crimes committed as a minor.

While courts have ruled that the death penalty is unconstitutional for specific groups, there have also been challenges to the constitutionality of the execution process itself. Those challenges keep the practice of capital punishment in the public eye and may play a role in shaping public opinion.

Before 2006, Missouri followed an unwritten three-drug protocol, a sequence of sodium pentothal, pancuronium bromide and potassium chloride. After the protocol was written, it remained the same.

The state since has moved to a single large dose of pentobarbital. Missouri first used pentobarbital from a compounding pharmacy in the November execution of Joseph Franklin. It has since been used in a single large dose in nine executions.

The existing challenges to the death penalty do not address the use of pentobarbital, but the change in execution protocol does not seem to have alleviated prosecutors' hesitation in asking for the death penalty.

"We can't go back to the days where we hand out ad hoc death sentences," said Oliver

Published: Thu, Aug 21, 2014

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