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Commentary: Ill winds, strange karma and the devil's nightmare

This article first appeared in the St. Louis Beacon, Oct. 4, 2012 - If Shakespeare was right about all the world being a stage, death penalty opponents face chronic casting challenges. That’s because the leading man in their plays is invariably a condemned murderer.

Under the American system of justice, a person must complete a two-phase screening process before gaining admission to death row. During the first, a jury of his peers must vote unanimously that there is proof beyond all reasonable doubt that the defendant actually committed the crimes of which he stands accused.

After rendering that demanding verdict, the jury then reconvenes to consider any mitigating evidence the defense may conjure up. Having heard from his third-grade teacher, grandmother and a bevy of prison psychologists, social workers and assorted do-gooders, the jurors must again unanimously agree that it would be in the best interests of all concerned if the convict were to be put to death. Viewing the jury as a focus group, it’s safe to say that the audience does not perceive the protagonist to be a particularly sympathetic character.

One way to get around this problem is to discover that the condemned man is, in fact, innocent. That revelation reshuffles the cast. Now, the cops and prosecutors are the villains, the killer is the victim and the actual victims — the dead — are bothersome stage props to be acknowledged and conveniently dismissed. “The killings were admittedly tragic, but it would be an even greater tragedy if this poor man…”

Such was the strategy employed by supporters of Reginald Clemons, one of the men sentenced to die for his part in the gang rape and murder of Julie and Robin Kerry, a crime that occurred more than 21 years ago. In fact, Clemons has now been confined — first, awaiting trial, then on death row — longer than either of the girls lived.

You would think that after 2+ decades in custody, and the innumerable motions and appeals that have been filed on his behalf, it would be just about time to fish or cut bait in the matter of the State of Missouri v. Reginald Clemons. You might think that, but you would be wrong if you did.

Responding to pleas from Amnesty International and confederated anti-capital punishment interests who have adopted Clemons as their poster child du jour, the Missouri Supreme Court again stayed his execution in 2009 and took the extraordinary step of appointing a “special master” to review the case.

Said master is, in effect, a grand inquisitor with unilateral authority to examine old evidence, consider new findings, subpoena witnesses and entertain arguments pro and con before making his final recommendations to the court. The jurist appointed to this post was a circuit court judge from Jackson County named Michael Manners.

As one of the homicide cops who worked the case originally, I was subpoenaed to the habeas corpus hearing held downtown in the Carnahan Courthouse two weeks ago. Because I did not interrogate Clemons, I was not called upon to testify. I had, however, been deposed on the case last year.

At that time, a team of lawyers from New York questioned me at length about, among other matters, which secretary from the Homicide Unit normally conveyed completed police reports to the Record Room back in 1991. This new team of defense attorneys reminded me of the proverbial dog chasing a car — now that they had finally landed the hearing they were after; they weren’t quite sure what to do with it.

One problem they had was how to handle their client. Like all criminal defendants, he enjoyed the Fifth Amendment protection against self-incrimination but they needed him to testify to get the allegation that the police had beaten his confession out of him on the record. However, if he took the stand he would be subject to cross examination.

Clemons’ supporters claimed that he was an innocent man, so the truth should set him free. But if he really had been involved…

Ultimately, the victim of unimaginable injustice availed himself of his long-awaited day in court by taking the Fifth. After admitting to being present at the crime scene, he refused to answer questions about what he did there on the grounds that doing so would incriminate him in the crimes for which he’d already been convicted.

He took the Fifth not once, not twice, but about 35 times in the course of cross examination by Sue Boresi of the attorney general’s office. At one point, the judge actually interrupted the proceedings to ask the defendant if he understood what he was doing.

I left the courthouse feeling like I’d traveled with Alice through the looking glass. An innocent man can’t tell the truth without incriminating himself in rape and murder? How does that work? The world may have been at sixes and sevens but somebody must have turned up the karma because strange coincidence was about to make an encore appearance.

The following evening, I discussed the hearing with students in the Criminal Justice Policy course that I teach. After class, a young woman approached me to ask if we could speak privately.

She told me that she was engaged to marry a relative of Clemons. She said it was an article of faith within the family that Reginald had been falsely accused and wrongly convicted. She had been shocked when he claimed the Fifth … ”My God,” she said she thought, “he really did kill those girls…”

She said that Clemons’ mother was a good person who’d mortgaged her home and exhausted her savings trying to prove her son’s innocence. What, she wondered, would happen to her now?

I wanted to tell her that I’d seen a lot of crime in my life and that for my money, most of it was the product of mortal ignorance and human frailty. From the simple foibles of greed and lust, people could often heal; could come away scarred, perhaps, but somehow a better or wiser person.

But occasionally you’d encounter depravity so unspeakably vile that it was like a black hole in deep space. The darkness within it was so abysmal that it consumed all neighboring light, negating hope of redemption and forever diminishing those who were in any way touched by it. A case like that was the Devil’s nightmare…

I wanted to tell her that, but it seemed too ponderous and wordy for the pretty little co-ed whose eyes still glistened with the promise of youth. So instead, I said, “An ill wind blows no good.”

She nodded and replied, “No, I guess it doesn’t.” She smiled, and we parted as friends.

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