UPDATED at 11:45 a.m. with delay of hearing.
ST. LOUIS • A special review of Reginald Clemons' 1993 death row case has been delayed a day because of unspecified legal issues.
The "special master" hearing ordered by the Missouri Supreme Court began Monday and had been scheduled to resume Tuesday, but after about two hours in which attorneys met behind closed doors in the judge's chambers, a bailiff announced it would resume Wednesday morning. At that point, Clemons is expected to take the stand.
Clemons is one of four men convicted in the 1991 murders of Julie and Robin Kerry on the old Chain of Rocks Bridge.
On Monday the prosecutor who won convictions against the four had to fend off claims that he bolstered his case by having a police report altered and ignoring signs of police brutality.
Late Monday, a judge appointed to make a recommendation on the case to the Missouri Supreme Court was presented a video-taped deposition of Robert Baumann, who was captain of the St. Louis Police unit that investigated the double murder of Julie and Robin Kerry. Baumann, in response to Clemons' attorneys' questions, said he would consider it inappropriate to make changes to a police report.
Lawyers for Clemons on Monday also highlighted crime lab results — which they argue would have raised doubt of his culpability — that never made it into the 1993 trial in which their client was sentenced to death.
A stay of execution, 12 days before Clemons was to die in June 2009, paved the path for the information to be discovered, his attorneys said. Now they are hoping to convince the special master, Jackson County Circuit Judge Michael Manners, that it's enough to reverse Clemons' conviction, or at least to spare him from execution.
One of the others convicted has been executed, another is serving a life term and a third received early parole in exchange for testimony against the others.
"Now that this evidence is available, it's even more clear than ever that they did not receive a fair trial," said one of Clemons' attorneys, Josh Levine, in opening statements Monday.
Levine called former assistant circuit attorney Nels Moss "a prosecutor who was intent at getting a conviction at any cost."
Lawyers for the state attorney general's office disputed all of Levine's characterizations and said he was rehashing red herring issues already litigated.
Clemons, now 41, was convicted of murder in the deaths of the Kerry sisters, who were raped and forced to leap to their deaths in the Mississippi River from the then-unused bridge on April 5, 1991.
According to the state, Clemons blocked a manhole that was their only means of escape. Clemons confessed to raping Robin Kerry, then later recanted, claiming he was beaten during police questioning.
The victims' cousin, Thomas Cummins, was a key witness in the case against Clemons and the others, in separate trials. He said he was forced off the bridge himself but swam to safety.
But during an police interrogation shortly after the crime, Cummins also confessed to the murders before recanting. Those statements took center stage Monday.
Clemons' lawyers offered a draft police report that contained different statements from a final version produced for trial.
In the earlier version, Cummins is reported to have said that he had made sexual advances toward Julie Kerry, who refused him, and that he accidently pushed her off the bridge while they were arguing. In the final report, detectives suggest Cummins harbored sexual feelings toward his cousin, and he admits it, but says he was only trying to hug her when she became startled and fell.
Also in the first version, Cummins says Robin Kerry must have jumped or he pushed her. In the final report, he says she must have jumped in after her sister.
The draft report contains handwritten notes from Moss, in which he seems to suggest the changes.
Moss, on the witness stand Monday, said he was merely pointing out what he knew to be the facts.
"My opinion was this statement never occurred," he said, referring to the draft version. "I wasn't trying to have them beef it up or change it."
Sue Boresi, of the attorney general's office, said Moss' notes were fed to police to get answers for parts that did not fit the facts. In the interim, Clemons and three other defendants had been arrested and one had implicated the three others. Also, a flashlight had been recovered, connecting them to the scene.
The draft also contains notes in which he wrote "omit" next to entire paragraphs. Moss could not explain the notation.
One of the sections in question referred to investigators' early suspicions about Cummins' statements. One noted that Cummins' hair was not wet nor dirty as would be expected if he been in the river; another said Cummins' survival would be "an enormous feat," given the temperature and river current.
There was also a note adding a statement that Cummins supposedly made on the way to the jail, saying four men had done it but nobody would believe him.
Clemons' trial attorney, Jeanene Moenckmeier, testified Monday that she came across the draft report during trial preparation but was not allowed to make copies. She said the judge refused to let it into evidence after Moss insisted it was no different from the final report.
Levine read from a transcript in which Moss told the judge he would see in the final report, "nothing's omitted, nothing's edited, nothing's out."
In 1995, Cummins won a $150,000 settlement from the police department on his claims that he was falsely arrested and coerced into incriminating statements.
On Monday, Clemons' attorneys said the settlement bolstered their client's own claims of police brutality.
When Moss took the stand, Levine asked him about a conversation he had with a bail investigator who saw Clemons after the interrogation and reported being concerned about signs of injury.
"I really don't recall that being said," Moss responded. "He might have made some references about the right or left cheek being swollen."
Moss disputed Levine's assertion that he tried to convince the investigator that he hadn't seen anything.
Boresi said Clemons' claims of brutality were investigated fully by police internal affairs and aired before the trial judge, who refused to let a jury hear them.
Levine offered a list of at least five judges' criticisms of Moss' aggressive conduct against defendants in other cases.
A final disputed topic was a lab report that says no seminal fluid was found during the autopsy on Julie Kerry. The report was never presented at trial, which Clemons' lawyers now argue was a violation of the Supreme Court's Brady case ruling that the defense is entitled to evidence favorable to its side.
Boresi countered that the report did not fall under the Brady ruling because Clemons had admitted raping only Robin Kerry, whose body was never found. Boresi noted that the medical examiner, Michael Graham, testified at trial that Julie Kerry's body was moderately decomposed when it was recovered after three weeks in the Mississippi River, making it difficult to find evidence of rape.
DNA testing, not available at trial, has since been performed on a used condom found on the bridge, the attorneys said. It showed DNA that matched the victims' and could not exclude that of Clemons or one of his co-defendants. The pants of the since-executed defendant, Marlin Gray, showed a DNA profile that matched the girls', Boresi said.