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April 30, 2013

Mizzou Supreme Court hears arguments concerning Miller's impact

As reported in this local article, headlined "MO Sup Court hears cases of two St. Louis juveniles sentenced to life without parole," the top court in the Show Me State is trying to figure out how it must adjust its sentencing system in the wake of last year's Miller ruling by the US Supreme Court.  Here are the basics of what is now before the Supreme Court of Missouri:

Two St. Louis cases were among the first to go before the state's high court Tuesday as it tries to decide what should be done with dozens of juvenile murder convicts who were sentenced to mandatory terms of life without parole before the U.S. Supreme Court declared it unconstitutional....

One of those is the high-profile case of Ledale Nathan Jr., who was 16 when he and an accomplice stormed into a home in the LaSalle Park neighborhood of St. Louis, burglarized it and shot the family members inside. One woman was killed and two others, a city firefighter and police officer, were wounded.

In Missouri, first-degree murder carries only two sentencing options: life without parole, or death (which the U.S. Supreme Court had already ruled could not apply to juveniles).  But in the June 2012 Miller v. Alabama decision, the U.S. Supreme Court determined that while juveniles can be sentenced to life without parole, it cannot be automatic and must only be done after the judge or jury has the opportunity to hear mitigating circumstances that include the defendant's age and a range of other factors.

The state legislature is expected to ultimately decide how to change the statutory range of punishment to comport with the court ruling, clearing things up for cases going forward. But in the meantime, the state supreme court is being asked to consider what the Miller decision means for the older cases — both those on direct appeal, and those that have exhausted their state court remedies.

There are 84 cases in Missouri in which a person is currently serving life without parole for an offense committed as a juvenile, according to the last count by the Missouri Department of Corrections.  Of those cases, 46 of the offenders were age 17 at the time of the crime, 25 were age 16, 11 were age 15, and two were age 14.

Of the three cases argued on Tuesday, two were being heard on direct appeal, one being the Nathan case.  The state, represented by Attorney General Kris Koster's office, conceded that the two cases should get a new sentencing hearing, but argued the only options should be life — which amounts to 30 years in Missouri — or life without parole.

"Allowing life and life without parole achieves as close as the court can get without adding words or redrafting the statute," argued Assistant Attorney General Evan Buchheim, in the Nathan case. Buchheim said until the legislature decide on anything different, "we've got to work with what we've got."

But Nathan's attorney, Jessica Hathaway, and the American Civil Liberties Union, which argued as a friend of the court, contended that route would go beyond the court's authority by rewriting the statute.  They argued instead for a sentencing range that applies for second degree murder, or a Class A felony, which is ten to 30 years (life)....

Similar arguments were made in the other case being heard on direct appeal, the St. Louis case of Laron Hart, convicted of the fatally shooting of a man and robbery of a woman at gunpoint in January 2010, when he was 17.  In the third case involves the 1995 conviction of a McDonald County woman, Sheena Eastburn, as an accomplice in the shooting death of her husband.  The state has argued Miller does not apply to her case because she has exhausted her appeals, among other procedural issues.

April 30, 2013 at 10:23 PM | Permalink


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Missouri has a large number of lawyers who are Unreconstructed. That means that they reject the 14th Amendment and any power of a federal court, or a state court, to enforce a liberty interest, i.e. the right to a fair trial on federal jurisprudence. The MoSupCt rejected outright the notion of a Jackson v. Virginia circumstantial evidence rule in a case in 2008 styled State v. Samuel Freeman. This unreconstructed thing goes way back. Some of you might recall the little flurry of interest when it was revealed that Clarence Thomas has a Confederate Flag on his office wall in the office of Attorney General in Jefferson City when he as an assistant A.G. It was simply explained that Clarence was unreconstructed. That word has lost its territory so to speak. But the mindset still prevails in the Show Me State. Mizzoura.

Posted by: liberty1st | May 1, 2013 8:34:18 PM

Actually Jackson does not have a circumstantial evidence rule in it. Missouri adopted Jackson instead of the much more stringent standard that Missouri previously applied in a 1992 case styled State v. Grim.

I know of no lawyer in Missouri who rejects the power of the 14th Amendment or state or federal courts to protect a liberty interest, much less the majority. The question is always under a Matthews v. Elrdige type analysis whether the asserted liberty interest is actually a liberty interest. Just saying that it is a liberty interest does not make it so.

Posted by: tmm | May 3, 2013 9:28:22 AM

Reply To Tmm:

The following letter was issued to some newly minted lawyers who were inquiring about the circumstantial evidence rule in Missouri:

One of the core tenets of the post Civil War revolutionaries was that citizenship and the rights of man be articulated, spelled out, and enshrined as the law of the land throughout the federal system and imposed upon the states. The politicians behind this movement were dubbed the Radical Republicans.
Rights enshrined in the original Constitution, particularly the Bill of Rights were to be extended to the freedmen and to all citizens. Where previously certain “rights” set forth in the Constitution were enforceable only when the federal government was the actor, under the new construct, the States were also bound to respect and enforce those rights. That is, the states were to be obligated, as the federal government had been prior to the 14th Amendment, to regard the rights of citizens to due process of law in a fair and equal manner—to enforce those rights. This of course applied in criminal trials. The Bill of Rights were now to be extended to citizens of states, to be honored in state courts in civil and criminal trials and extended to all citizens, not just the whites or the aristocrats. The Civil War was not just a fight to rid the nation of slavery, it was an end to aristocracy. The post war efforts to enact these provisions into law and the efforts to impose these enactments upon the southern states was dubbed the 'Reconstruction Era'. Those in both the South and the North who opposed these revolutionary reforms were not just aristocrats who formerly held slaves, or bigots who thought they owned the public schools or the right to walk on the sidewalks. The opposition to civil rights entitlement and enforcement met both in public and in private. They enacted laws and rules in opposition to these so called constitutional requirements. The opposition acted privately and tyrannically to quell any notions of equality, fair play, due process. Such opponents may not have been out-right bigots. Although in the South, even in “polite society”, they employed the N word and denounced all manifesations of civil rights or equality. A polite word coined to denominate themselves was immediately adopted, and persists even to this day: “Unreconstructed”.

Why is the above postulation relevant to a newly minted lawyer who has just passed the Missouri Bar Exam? The civil rights movement is over and done with, we have integrated schools, equal rights to public accommodations and freedom of religion. How does the past somehow impact the future of this lawyer to be, in this time period of our Republic?

It is the fair trial. The right of an individual to receive a fair trial, by a jury of his peers, in a court of law governed by articulated laws guaranteeing the human rights set forth in the Constitution. That nice set of rights you were taught in Constitutional Law is beautiful, well intentioned and yet not a reality in the lessor environs of your fair state. More precisely, the dictates of the Due Process Clause have little viability in a criminal jury trial in many of the counties of your home state. The right to receive an impartial jury of your peers is impeded, the right to have evidence presented in a fair and even handed manner is not protected, the right to be convicted only upon a quantum of reliable evidence is not protected. The right to inject the platitudes of our federal Constitution exists but the right to have a court be bound to follow those protections is almost non existent. Your fair trial my young budding lawyer, your client's right to a fair trial, is entirely dependent on the whims and caprice of the trial judge and the ethics and behavior of the state prosecutor. On appeal, your arguments that the evidence was insufficient, that the jury panel was inflamed by prejudice, that the evidence was unreliable, will fall on deaf ears and no standard of appellate review based on federal constitutional evidence standards will be adhered to. An appellate court will review such questions and decide them on the sole criteria of what a fair trial is in Missoura: “I know it when I see it.” This reality exists because of the success of the 'unreconstructed'. They oppose the notions stated in the 14th Amendment and silently, and without expressing the N word, prefer a world where the arbiters of justice have full reign.

If the foregoing paragraph seems a bit exaggerated or specious to you then I invite you to read two cases from the Missouri Supreme Court, one rendered in 2008 and the other in 2010: State v. Samuel Freeman and State v. Donald R. Nash. The Freeman case is a review by the Missouri Supreme Court of the decision of the Southern District Court of Appeals. Judge Lynch of the Court of Appeals articulates in straightforward language the federal jurisprudence based on the Due Process Clause of the Fourteenth Amendment which requires a criminal conviction to be grounded upon a minimal basis of reliable evidence—the sufficiency of the evidence test. The Supreme Court of Missouri knocked the socks off of this decision of the Southern District. The Supreme Court wholly ignored the federal constitutional dimension of the case, or the discussion fully articulated in the Southern District opinion, and articulated a standard of review which can best be described as : I know sufficient evidence when I see it. Samuel Freeman received a judicial lynching in a Missouri County Circuit Court by a jury not of his peers. Read the two opinions: first, that of the Southern District, and, then the opinion of the unreconstructed Judge Mary Rhodes Russell from the MoSupCt. No dissents. One concurring opinion by Judge Wolff with some apologies about the senior court “wearing big pants”.

Having read these two decisions you must come to some conclusions and face some realities. If you are to ascend to the position of attorney at law and attempt to represent defendants in criminal cases how do you contend with this immense hypocracy and nominal form of Soviet justice?

You might never practice law in the criminal arena and therefore these considerations will fall to the wayside. Most lawyers in Missouri have not tried a felony criminal jury trial in their entire careers. Most lawyers of say fifty years of age have perhaps five jury trials under their belts. The percentage who try civil cases on a regular basis is quite low and the percentage who try criminal jury cases is much lower. For these reasons the Bar as a whole is oblivious to the problems facing the criminal defendant and his attorney in a rural county jury trial in Missoura. Few lawyers are familiar with say, the sufficiency of the evidence doctrine laid out in Jackson v. Virginia. There were no law review comments about the Freeman case after it came out, no letters to the editor of the Missouri
Bar Journal. As one who ran up against total bigots sitting on the bench thirty seven years ago I am a bit disturbed that our efforts to have some good judges appointed to the Supreme Court had succeeded—but lo and behold --has now come to naught.

There is not in place a set of federal statutes aimed at implementing the fair trial jurisprudence of the Due Process Clause at the state court trial or appellate levels. Lyndon Johnson pushed and passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Both of those statutes had been specifically authorized by a provision of the 14th Amendment and 15th Amendments respectively. So, a person deprived of a civil right by a cop can sue under Section 1983 of the Civil Rights Act in federal civil court and obtain some justice. But there is no parallel statute which would compel a state court judge to honor, acknowledge, and enforce the right of a criminal defendant to a fair trial by imposing a sufficiency of the evidence rule in his court.

In State v. Samuel Freeman the Supreme Court of Missouri ignored the well written opinion of Judge Lynch from the Southern District which articulated the circumstantial evidence rule, and in effect, "went South." They went South several years before in State v. Grimm.

Posted by: liberty1st | May 4, 2013 1:23:42 AM

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