Before the Governor
Of the State of Missouri
The Honorable Bob Holden
In the Matter of:
John Clayton Smith.
Execution Scheduled for
October 29, 2003
Petition for a Commutation of, or Reprieve From
Sentences of Death
John Clayton Smith is incarcerated at the Potosi Correctional Center in
Mineral Point, Missouri awaiting execution. He is scheduled to be
executed at 12:01 a.m. on October 29, 2003. All appeals previously filed
have been denied or dismissed, and Mr. Smith has given up, opting not to
seek further review.
Undersigned counsel, with the earnest support of numerous attorneys, 1
and for the meritorious reasons stated below, respectfully requests that
Governor Holden exercise the powers granted him by Article IV, §7 of the
Missouri Constitution and grant John executive clemency and commute
his sentences from death to life imprisonment without the possibility of
parole. Alternatively, counsel requests that Governor Holden grant a
reprieve, staying John’s execution, and convene a board of inquiry
pursuant to §552.070, RSMo 2000, to gather information bearing upon
whether John’s death sentences should be commuted.
1
See letters separately filed by facsimile.
Interest of Undersigned Counsel
While I was employed by the State Public Defender, I represented John in
his direct appeal to the Missouri Supreme Court. State v. Smith, 32 S.W.3d
532 (Mo.banc 2000). John and I had a good rapport during my
representation. He has not, however, asked that I prepare this petition.
Indeed, as more fully discussed below, John has given up on attorneys, the
justice system and his life. I, however, have not given up on his life or our
justice system. Because John’s execution would undermine the integrity of
our State’s justice system and the fidelity of its legal profession, I present
this petition to the Honorable Bob Holden, Governor of Missouri.
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Why Governor Holden Should Commute
John Clayton Smith’s Death Sentence
[Clemency] in our days is not a private act of grace from an individual
happening to possess power. It is a part of the Constitutional scheme.
When granted it is the determination of the ultimate authority that the
public welfare will be better served by inflicting less than what the judgment fixed.
Biddle v. Perovich, 274 U.S. 480, 486 (1927) (emphasis added).
The Decision to Seek his Death Came from John’s “Erstwhile Defender”
John twice entrusted his life and liberty to Jules DeCoster, hiring him as his
defense attorney in 1981 and 1983. In 1997, when John killed Brandie Kearnes
and Wayne Hoewing, Prosecutor DeCoster betrayed John. Prosecutor DeCoster
decided that his former client should die. In making that decision, Prosecutor
DeCoster relied on information he had learned while representing John fourteen
years earlier. Then, he took it one step further and used information from both
criminal matters to tell the jury why John should die.
Now, John has given up. He does not trust attorneys. For almost three years, he
has refused to see his attorneys. He loathes attorneys. And why shouldn’t he?
He finds himself at death’s door having been invited there by his former defense
attorney. The relationship began in 1981, sixteen years before the crimes which
brought John his death sentence.
On March 29, 1981, John went to Ziegler Hall at Culver-Stockton College to
find his girlfriend, Muriam Daniels. Finding her, he put his fist through
her car window and pulled her from the car. Police responded, but Ms.
Daniels2 refused to sign a complaint, and the officer left. The next day,
police responded to Wood Hall and found Ms. Daniels inside John’s car.
She was crying, but she was not “trying to get away very hard.” John said
that he “was going to get her tonight” and that “no cop was going to stop
him.” A few days later, a warrant was issued “for John Smith’s arrest for
violation of probation." Upon arriving in jail, John received work release,
In 1981, Muriam’s surname was “Wilson,” however, she testified using her married
name – Daniels, and counsel will use it for clarity
2
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but, on April 28, 1981, the State moved to revoke that privilege because of
John’s continued misconduct with Ms. Daniels. To fight this revocation,
John retained Mr. DeCoster.
In 1983, when charged with felony stealing, John turned again to Mr.
DeCoster. Mr. DeCoster investigated the State’s case as well as John’s
background before negotiating a plea agreement with the prosecutor.
After accepting John’s plea, the court ordered a Pre-sentence Investigation
report from Probation and Parole. A month after receiving the PSI, Mr.
DeCoster appeared with John for sentencing.
Their attorney-client relationship raises an “irrefutable presumption” that John and
Mr. DeCoster had confidential communications. Arkansas v. Dean Foods Products
Co., 605 F.2d 380, 384 (8th Cir. 1979) (emphasis added). “Indeed, a counselor at
law is enjoined to probe deeply for all the facts, favorable and unfavorable, before
counseling a particular course for his client.” Id. at 385 (emphasis added). To
accomplish this, attorneys must have their clients’ “fullest confidence.” People v.
Curry, 272 N.E.2d 669, 672 (Ill.App.4 Dist. 1971).
For 14 years, Mr. DeCoster guarded John’s confidences. Then, in July, 1997, John
killed Brandie Kearnes and Wayne Hoewing, and, as the Lewis County
Prosecutor, Mr. DeCoster faced a professional quagmire.
The prosecutor is the first line of decision-making on this point, and
without his affirmative decision, no death penalty is possible. The
determination of whether to seek the death penalty is based not just on the
facts of the crime, the law, and the circumstances of the defendant's life
that are matters of public record. It is in essence a judgment on the over-all
character of the defendant, who happens in this case to have been the prosecutor's
former client.
Smith, 32 S.W.3d at 559 (Wolff, J., dissenting) (emphasis added). In that solitary
moment, John’s confidences required the greatest protection. Conflicts are
suspect not because of the observable effects they have, but because of the subtle
ones. Holloway v. Arkansas, 435 U.S. 475, 489-490 (1978). Conflicts are conflicts
because of their impact on decisions that an attorney must make -- e.g., Prosecutor
DeCoster's decision to seek his former client's execution.
Rule 4-1.9 required Mr. DeCoster to disqualify himself as the Prosecutor. Smith,
32 S.W.3d at 560 (Wolff, J., dissenting). He refused. Instead, Mr. DeCoster
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retreated and Prosecutor DeCoster advanced to commit the ultimate betrayal –
Prosecutor DeCoster called the Attorney General’s Office to help him seek his
client’s death. Prosecutor DeCoster’s team, then, set out to build a case that
practically mirrored the one Mr. DeCoster had defended in 1981.
“Too High a Cost for Society to Bear”
This unseemly conflict poses “too high a cost for society to bear.” Reaves v. State,
574 So.2d 105, 107 (Fla. 1991). As M. Corinne Corley wrote in her October 23,
2003, plea to Gov. Holden, “The duty of an attorney is the highest fiduciary duty
known to [human] kind.” (Ms. Corley’s emphasis) (attached).
It is the glory of the legal profession that its fidelity to its clients can be
depended upon; that a man may safely go to a lawyer and converse with
him upon his legal rights in litigation with absolute assurance that that
lawyer’s tongue is tied from ever discussing it.
Curry, 272 N.E.2d at 672 (emphasis added). “To the public at large, the potential
for betrayal in itself creates the appearance of evil, which in turn calls into question
the integrity of the entire judicial system.” Reaves, 574 So.2d at 107 (emphasis
added). If John faced anything but death, there would be no question about Jules
DeCoster’s ability to prosecute him. But John does face death, and death is
different. Deck v. State, 68 S.W.3d 418, 430 (Mo.banc 2002).
Death ... differs more from life imprisonment than a 100-year prison term
differs from one of only a year or two. Because of that qualitative
difference, there is a corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a specific case.
Woodson v. North Carolina, 428 U.S. 280, 305 (1977) (emphasis added).
When death is sought, the case focuses a great deal on the defendant’s
background. That focus yields an intolerable risk that “privileged information
obtained by the prosecuting attorney when he was the defendant’s counsel in the
previous case [will] work to the [defendant’s] disadvantage.” Wilkins v.
Bowersox, 933 F.Supp. 1496, 1523 (W.D. Mo. 1996), affirmed by Wilkins v. Bowersox,
145 F.3d 1006 (8th Cir. 1998); accord State v. Stenger, 760 P.2d 357 (Wa.banc 1988).
Until, now, no society has had to bear the perverse price of such disloyalty and
infidelity. Probably because death is so different from any other penalty, the
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initial betrayal that John has already suffered has only been endured by three
others: Wilkins, supra; Stenger, supra; Reaves, supra. But, condemning the
tawdry spectacle of a prosecutor seeking the death of his former client, the
reviewing courts in Wilkins, Stenger, and Reaves each reversed! John did not fare
so well. The Missouri Supreme Court affirmed his death sentences by a 5-2 vote.
Dissenting, Judge Wolff observed,
In a fundamental way, the principal opinion damages the integrity of the
legal profession. There is no dispute that the prosecutor in this case had
represented Smith in two previous criminal cases as his defense attorney.
Moreover, the prosecutor--Smith's erstwhile defender--used one of those
convictions in persuading the jury to impose the death penalty on his
former client.
Smith, 32 S.W.3d at 559 (Wolff, J., dissenting) (emphasis added).
What Might Have Been
The Missouri Supreme Court is a vastly different court today than it was when it
denied John’s direct appeal in December 2000. Two of the five judges affirming
John’s death sentences, including the opinion’s author, have resigned. Their
replacements tend to vote quite differently. What might have been had John’s
death sentences come for review a bit later than they did? Would the two new
judges have joined the dissent? To preserve its integrity, the justice system must
not hinge upon timing, but upon fairness. If John is executed, his case will stand,
not for the notion that “death is different,” but for the cliché that “timing is
everything.”
Of course, one might also ask, “What might have been had John not given up?”
Would a federal court have fixed this gross injustice? It certainly did so in
Wilkins, supra. There, a public defender represented Wilkins on a burglary
charge where the key issue was Wilkins’ mental condition. Wilkins, 933 F.Supp.
at 1521. Six years later, with Wilkins facing first degree murder, his former
attorney served as the lead prosecutor seeking his execution. Id. The Missouri
Supreme Court avoided review on procedural grounds, but the federal court
forgave the default to remedy the indisputable and intolerable error. Noting the
convergence of the key issue involved in the prior defense and the current
prosecution, the Wilkins Court concluded that Wilkins’ death sentence had to be
vacated. Id. at 1522.
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Prosecutor DeCoster’s team built a case against John that is a near duplicate of
what transpired in Wilkins.
Wilkins
John’s Case
1979 Burglary: Mental condition is the
“key issue” 933 F.Supp. at 1521.
1981 Revocation: Violence toward
women is the “key issue”
1985 Murder: Mental condition is the
“key issue” Id.
1997 Murders: “History of violence
toward women” is the “key issue”
DeCoster’s team posited that John’s “history of violence towards women” had
begun with his harassment of Ms. Daniels and ended with his murder of Ms.
Kearnes. The severe mistrust spawned by Mr. DeCoster’s betrayal of John has
led John to give up. He wants “nothing more to do with attorneys.” Under the
federal rules, John must request appointment of counsel in order for a federal
habeas corpus petition to be filed for him. He has been presented with the
means to do this and has been told that attorneys are standing ready to be
appointed for him. But, he has not signed the motion. So, the federal courts will
have no opportunity to remedy the gross injustice John, the justice system and
society has suffered.
Legal Basis for Clemency
Article IV, § 7 of the Missouri Constitution grants the Governor the “power to
grant reprieves, commutations and pardons, after conviction . . . upon such
conditions and with such limitations as he may deem proper.” He is not
restricted by strict rules of evidence, and is free to consider a wide range of legal
and equitable factors in the exercise of his clemency powers.3 He may consider
any aspect of the case, including claims which the courts have declined to review
3
See Whitaker v. State, 451 S.W.2d 11, 15 (Mo. 1990).
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for procedural reasons.4 The Governor is also free to expand the relevant case
law and apply his own interpretation to grant relief if he so desires.
When the courts cannot or will not grant the necessary relief from injustice,
clemency stands as the only means of justice. “The administration of justice by the
courts is not necessarily always wise … Executive clemency exists to afford relief
from undue harshness or evident mistake in the operation or enforcement of the
criminal law.” Ex Parte Grossman, 267 U.S. 87, 120-121 (1925) (emphasis added).
The view that clemency is a quasi-legitimate power that rarely should be
used is one that was not shared by the founders of our country, past
governors and former presidents. The purpose of clemency is to provide a
meaningful check on courts and legislatures.
The framers of the Constitution were so convinced of the need for
unfettered executive clemency authority that they overwhelmingly
rejected a proposal requiring the president to share the power with the
Senate, and dismissed other limitations as well. Indeed, Alexander
Hamilton asserted that "humanity and good policy" dictate that the
clemency power "should be as little as possible fettered or embarrassed." If
"ready access" to clemency were not available, Hamilton cautioned, justice
would "wear a countenance too sanguinary and cruel."
Daniel T. Kobil, Quality of mercy in commutations: The history behind clemency
powers, Chicago Tribune (December 4, 2002) .5
The shockwaves from DeCoster’s betrayal of John will not end with John’s death.
They will ripple through the system in wave after wave of after-shocks.
When defendants no longer have absolute faith that all confidential
communication with counsel will remain forever inviolate, no candid
communication will transpire, and the guarantee of effective assistance of
counsel will become meaningless. This is too high a cost for society to bear.
Reaves, 574 So.2d at 107 (emphasis added); accord Wilkins, 933 F.Supp. at 1524
(allowing this breach of fiduciary duty would inhibit the public from trusting
attorneys) . Client confidences must be jealously guarded for the good of the
4
See Ohio Adult Parole Authority, et al. v. Woodard, 523 U.S. 272, 280-81 (1998).
5
http://www.law.northwestern.edu/depts/clinic/wrongful/documents/Kobil2.pdf
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system and for the safety of the clients. Curry, supra. No where, is the distrust
that flows from betrayal more evident than here. At the hearing on his motion to
dismiss his Rule 29.15 motion, John told the motion court that he wanted to
dismiss his 29.15 case was because his attorneys had not been “straight up” with
him. It is John’s profound distrust of attorneys that has brought us to the brink
of this calamity.
By betraying John, DeCoster has left the public to question the integrity of the
entire judicial system and the honor of the legal profession. “[Mr. DeCoster’s]
hand on the tiller of the prosecution, his hand on one of the scales of justice, is
not the even hand required to assure justice – the end result of a criminal
prosecution.” People v. Lepe, 164 Cal.App.3d 685, 689 (4th Dist. 1985).
Why John Should Not Be Executed
Courts must indulge every reasonable presumption against the waiver of
fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). “If a
judge at any stage of a criminal proceeding has reasonable cause to believe the
accused, as a result of mental disease or defect, lacks capacity to understand the
proceedings against him or to assist in his defense, the judge must order a mental
examination.” Drope v. Missouri, 420 U.S. 162, 180 (1975) (emphasis added). This
applies equally to a capital defendant’s stated desire to dismiss post-conviction
proceedings. Rees v. Peyton, 384 U.S. 312, 312-13 (1966) (per curiam).
Rees sought federal habeas corpus relief from his state-imposed death sentence.
Id. at 313. The District Court and the Court of Appeals denied his petition. Id.
With Rees’ consent, his attorney filed a petition in the United States Supreme
Court, seeking a writ of certiorari. Id. After counsel filed that petition, Rees
directed him to withdraw it and stop all further appeals. Id. Counsel related
Rees’ request to the Court, but he explained that doubts he held regarding Rees’
competency made it impossible for him conscientiously to accede to Rees’
request without a psychiatric examination. Id.
The United States Supreme Court remanded the case for a determination as to
Rees’ competency to forgo further appeals. Id. at 313-14. The Court directed the
District Court “to determine Rees’ mental competence in the present posture of
things, that is, whether he has capacity to appreciate his position and make a
rational choice with respect to continuing or abandoning further litigation or on
the other hand whether he is suffering from a mental disease, disorder, or defect
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which may substantially affect his capacity in the premises.” Id. at 314. Without
that competency determination, the United States Supreme Court could not
determine what disposition should be made of Rees’ petition for certiorari. Id.
John’s case mirrors Rees, and, if his sentence is not commuted, he should be
granted a reprieve to determine whether his copious mental illnesses have
substantially affected his capacity to waive his rights knowingly and voluntarily.
Mental Illness Complicates John’s Distrust of Attorneys
Some refer to John as a volunteer for his looming death. He has, to be sure, given
up all hope and asked to be executed. Exacerbating John’s deep distrust of
attorneys is his mental health. John has long suffered from major depression.
He has attempted suicide at least three times. Each of his prior attempts has
failed. Now, he has asked the State of Missouri to help him succeed.
Upon arriving at Potosi Correctional Center in July 1999, John rammed his head
into a steel door, leaving a deep gash which required hospitalization. In the days
that followed, John reported that he had been seeing images of Ms. Kearnes’
dead body being projected onto his cell wall and hearing messages coming to
him from the television. Potosi officials placed him on suicide watch, and, soon,
doctors added bipolar disorder with psychotic features to John’s diagnoses.
John is also plagued with a borderline personality disorder that makes it difficult
to discern his true desires. For example, just two months ago, he told his ex-wife,
Mary Smith, not to bring his children (Joshua and Johnna) for any more visits
because it was emotionally too difficult for him. Mary accepted John’s
instructions and cancelled an early-September (2003) trip to Potosi that she had
previously planned. As that weekend drew to a close without seeing his
children, John grew anxious. He called Mary, asking, “Where were you this
weekend? You said you were bringing the kids.” These conflicting messages are
classic among people with borderline personality disorder.
Relationships with others are intense but stormy and unstable with
marked shifts of feelings and difficulties in maintaining intimate, close
connections. The person may manipulate others and often has difficulty
with trusting others. There is also emotional instability with marked and
frequent shifts to an empty lonely depression or to irritability and anxiety.
There may be unpredictable and impulsive behavior which might include
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excessive spending, promiscuity, gambling, drug or alcohol abuse,
shoplifting, overeating or physically self-damaging actions such as suicide
gestures. The person may show inappropriate and intense anger or rage
with temper tantrums, constant brooding and resentment, feelings of
deprivation, and a loss of control or fear of loss of control over angry
feelings. There are also identity disturbances with confusion and
uncertainty about self-identity, sexuality, life goals and values, career
choices, friendships. There is a deep-seated feeling that one is flawed,
defective, damaged or bad in some way, with a tendency to go to extremes
in thinking, feeling or behavior. Under extreme stress or in severe cases
there can be brief psychotic episodes with loss of contact with reality or
bizarre behavior or symptoms. Even in less severe instances, there is often
significant disruption of relationships and work performance. The
depression which accompanies this disorder can cause much suffering and can lead
to serious suicide attempts.
Richard J. Corelli, M.D, Borderline Personality Disorder (Symptoms), available
online at http://www.stanford.edu/~corelli/borderline.html
On October 20, 2003, another inmate6 gave John a piece of paper with counsel’s
name and phone number on it, encouraging John to “call Gary.” Initially, John
ripped up the paper and tossed it on the floor, saying, “I don’t wanna talk to any
attorneys.” Later in the evening, John stopped by the other inmate’s cell and
reported that he had “tried to call Gary but he wouldn’t answer.”
On October 21, 2003, undersigned counsel arrived at his office and found a
phone message that had been left at 8:36 p.m. the night before. Because the
message only recorded “...osi Correctional Center...,” counsel spent much of that
day investigating who had called for him. Upon discovering that it had been
John who called, counsel called Ms. Brenda Ross in the Litigation Department at
Potosi Correctional Center and left a message for John to call him collect. Ten to
fifteen minutes later, Ms. Ross called counsel to report that “Mr. Smith said to
‘tell Gary I’m not going to call him today.’” (emphasis added).
Notably, other inmates report that John has been heavily medicated for the past
few weeks. Doctors at Potosi have John on several medications that “zone him
out.” John spends most of his time “sleeping, waking and spending time with
6
A former client of undersigned counsel’s.
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people, sleeping again, and forgetting everything he said and did before.” (emphasis
added). The drugs are severely “messing with his head and his memory.”
In July 2001, John wrote to the court hearing his Rule 29.15 motion for postconviction relief, asking that it dismiss his case and set an execution date. That
was John’s first step down this dank corridor towards his execution. Sadly, at
that time, Potosi was not giving him the proper dosage of Risperdal (his antipsychotic medication). The decreased dosage heightened John’s anxiety and
agitation and impaired his concentration. By October 2001, John reported
concern that he could not concentrate and thus could not fully participate in his
case.
Dr. Gary Selbert, the Chief of Mental Health Services at Potosi, has been in
charge of John’s mental health care since July 1999. Dr. Selbert has significant
doubt about John’s ability rationally to decide to forego his remaining appeals.
He strongly recommends that John’s competence to do so be evaluated.
Dr. Michael Stacy, a former psychology supervisor at Fulton State Hospital,
echoes this doubt. Before John’s trial, Dr. Stacy warned trial counsel that John’s
depression would make his self-preserving motives fluctuate over time, thus,
John’s depression would render his ability to assist counsel variable. That
variability necessitated that counsel actively monitor John’s depression and its
impact on his ability to assist.
The courts, however, have refused to permit the evaluations necessary to give
effect to that monitoring. That duty, now, befalls our Governor.
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John’s Life is Worth Saving
John committed a horrible crime. Over and over, he has expressed his intense
remorse for those moments in July 1997. He is haunted by images of Ms.
Kearnes, whom he loved. Nothing that happens now can right the wrong of his
crimes.
Executing John will only add another ripple of victims. John’s ex-wife, Mary,
and their children, Joshua and Johnna have already endured immense heartache. The children do not want their dad to be dead, let alone to be put to death
by the State of Missouri. It took them several years to begin rebuilding their
relationship with him, stripping them of that, now, will do untold harm to them
as they enter adolescence.
They went nearly six years without seeing, let alone hugging, their dad. Mary
and Johnna made their first trip to Potosi Correctional Center during the summer
of 2001. As Mary pulled onto the parking lot, the awesome sight of the razor
wire barricade surrounding the prison so intimidated Johnna that they had to
turn and leave without seeing John. Outwardly, John understood; certainly, he
said that he did. But, as he recited his understanding, tears welled in his eyes.
Later, in the summer of 2001, Joshua and Johnna wanted to send snapshots of
their summer fun to their dad. Undersigned counsel helped them do that, and
John’s eyes brightened noticeably. He could not believe how they had grown,
and he showed them to all his prison friends. He, then, returned the favor and
sent Joshua and Johnna a picture of him with his prison softball team.
John yearns to help Mary provide support for Joshua and Johnna. Indeed, a
recurring theme in his “volunteering” for death is his hope that, upon his death,
Joshua and Johnna will be entitled to social security benefits. John is far more
comfort to Joshua and Johnna alive in prison than a social security check could
ever be. They want their father in their life, available to answer their difficult
questions and to share their joys and sorrows.
Finally, John is not a dangerous inmate. Quite the opposite, he is a model
inmate, presenting a very minimal risk to the prison system. Since being
removed from suicide watch in 1999, John has been continuously housed in “5House,” which is Potosi’s Honor Dorm.
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Conclusion
Counsel, with unwavering support and encouragement from members of the
Small Firm Internet Group, a discussion group among the Missouri Bar’s Solo and
Small Firm Practice Committee members, respectfully requests that John Clayton
Smith’s sentences of death be commuted to sentences of life imprisonment
without the possibility of parole; or, alternatively, that a reprieve be granted
staying John’s execution and that a board of inquiry be convened to determine
the factual issues raised in this application.
Respectfully submitted,
_____________________________________
Gary E. Brotherton, MOBar #38990
Legal Writes, LLC
1390 Boone Industrial Drive, Ste. 120
Columbia, Missouri 65202
573-875-1571 (phone)
573-875-1572 (fax)
GEBrotherton@LegalWritesLLC.com
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