Death by default
Missouri's execution chamber in Bonne Terre. Gabriel B. Tait/Post-Dispatch
Missouri Gov. Jay Nixon soon must decide whether to spare the life of a man on death row — or give the execution the green light. It’s the second time in less than a month he’s faced that decision.
Reginald Clemons has an execution date of June 17. A federal appeals court granted a stay on Friday as part of a case that broadly challenges Missouri’s system of lethal injections. But the stay could be lifted on short notice, and the execution could proceed.
Clemons was convicted as an accomplice to the murders of Julie and Robin Kerry, two sisters who were pushed to their deaths from the Chain of Rocks Bridge into the Mississippi River in 1991. Clemons was 19 at the time. He is not alleged to have planned or to have committed the murders.
One of the common laments about the criminal justice system is that criminals sometimes walk because of legal technicalities. The precise opposite is true in the Clemons case.
The crimes were horrific. But compelling reasons support granting clemency and commuting the death sentence to life without the possibility of parole: Reginald Clemons scheduled execution is based on a technicality.
Seven years ago, U.S. District Judge Catherine Perry vacated Clemons’ death sentence. She found a clear violation of constitutional law in how his jury had been selected. Six prospective jurors had wrongly been excluded from serving because they showed some ambivalence about applying the death penalty.
The court, in other words, concluded that the deck had been stacked against Clemons. This didn’t affect his conviction. He still would have been required to serve life in prison without the possibility of parole. The court simply held that the state can’t execute a man when he’s denied an impartial jury.
The U.S. Court of Appeals for the Eighth Circuit didn’t dispute Judge Perry’s analysis. The trial record suggested that Clemons had, indeed, been denied an impartial jury. Under ordinary circumstances, such an error is sufficiently egregious to warrant reversal of the death penalty.
The problem, according to the Missouri Supreme Court and two of the three members of the federal appeals court panel, was that Clemons’ lawyer failed to push enough paper to adequately “preserve” the constitutional violation for judicial review.
Never mind that the trial court erred, and that Clemons was denied an impartial jury on the issue of death. At this point, the technicality prevails and lethal injection may proceed.
A colleague, Post-Dispatch columnist Bill McClellan, calls this ruling “legal gobbledygook.” It’s much worse. It is grotesque, a shameful example of the state’s most somber function being relegated to a bureaucratic shuffle.
Josh Levine, a former federal prosecutor who took Clemons’ case pro bono, put it this way: “Anybody who is concerned about the rule of law and maintaining faith in our system should be deeply troubled by the prospect of Reggie being executed.”
We categorically oppose the death penalty, believing that it should be abolished as inherently capricious, inhumane and degrading to society.
The governor has been an aggressive proponent of the death penalty — vigorously defending its imposition even in cases involving offenders who were teenagers or who are alleged to be mentally retarded.
He argues that the jury system is our best means of discerning justice — even hard justice. But the jury pool in the Clemens case was infected. And the rule of law was perverted.
The hard justice in the Clemens case is that his life should be spared.
The guy in the photo looks like he’s quite proud of the execution chamber.