Man slated for execution receives unexpected boon

2011-01-04T15:36:00Z 2011-01-26T01:33:05Z Man slated for execution receives unexpected boonBY REBECCA BERG > rberg@post-dispatch.com > 573-635-6178 stltoday.com

JEFFERSON CITY -- A convicted murderer on death row, who is seeking clemency from the governor and a stay of execution from the Supreme Court, received an unexpected boon today from a man who knows what a wrongful conviction feels like.

Richard Clay, who is set to die on Jan. 12, was sentenced to death for the 1994 for-hire murder of Randy Martindale in Missouri's Bootheel. Clay's execution would be just the second in the state since 2006, when executions were put on hold by court order, and the first since 2009.

With only a week left until the execution, Clay has nearly exhausted his legal options, and defense attorney Jennifer Herndon said her legal team has also run out of money. Just half an hour after she made that remark, though, it was no longer true.

Joshua Kezer, who was convicted of second degree murder in 1994 and freed in 2009 as an innocent man, sat toward the back of the room for most of an event in the Capitol organized by Clay's supporters. But, as the meeting wrapped up, he strode to the front and handed Herndon a $10,000 check.

"I didn't realize this was about money," Kezer said. "For people to support Rick's death is to support my death, and I take issue with that."

In the front row, a group of Clay's family members burst into sobs as they thanked Kezer.

"No, that wasn't staged," Herndon said later of Kezer's donation.

In 2005, a federal court appointed Herndon to the Clay case and authorized funds for attorneys, investigators and other expenses including hotels and meals. Herndon said that the money was gone even before an execution date was set last month.

Since then everyone on the case, Herndon included, has been working for free.

"Everything everybody has been doing has been out of their own pocket," Herndon said in an interview. "We couldn't continue to keep doing that."

This week, Herndon will file a new appeal and seek an emergency stay on the execution from the Missouri Supreme Court, while applying to Gov. Jay Nixon for clemency. She said she hopes some lingering questions about Clay's guilt will be enough for an appeal to move forward.

Charles Sanders, a friend of Clay who testified in 2001 that he lied during the trial about his plea bargain, was engaged in an extramarital affair with the victim's wife, Stacy Martindale, at the time Randy Martindale was killed, according to court records. Clay's legal defense has maintained that Sanders possessed a greater motive than Clay in the killing, and points to Sanders' testimony as unreliable.

The ruling in the Clay case was overturned and a retrial ordered by a federal judge in 2001, but an appeals court reinstated the original decision in 2004.

Questions about one of the original prosecutors have also dogged the case.

Clay's case was prosecuted with the help of Kenny Hulshof - who, at the time, was then-Attorney General Jay Nixon's special prosecutor and later served six terms in Congress and ran an unsuccessful campaign for governor in 2008. Hulshof has been involved in several cases that were later found to have prosecutorial misconduct or were overturned on appeal.

Hulshof was traveling Tuesday and unavailable for comment, according to a spokeswoman for Polsinelli Shughart, the Kansas City law firm where Hulshof works.

New Madrid County Public Administrator Riley Bock, who was the county prosecutor when he worked with Hulshof on the Clay case, rejected that Hulshof's involvement in the case should throw the jury's verdict into question.

"I called the shots in this case," Bock said in an interview. "Kenny did everything I asked him to do, he did it properly and he was a good assistant."

Bock said he has no reservations about the evidence in the case, nor does he question the original verdict.

Herndon has not yet filed an application for clemency with the governor or submitted a request for an emergency stay of execution from the Court. These documents will likely be in order by the end of the week, Herndon said.

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