Missouri Supreme Court to hear acquitted conduct issue

In this post last December, I noted an interesting Missouri Court of Appeals decision.  In Missouri v. Clark, the intermediate state court upheld the use of acquitted conduct in a jury sentencing proceeding, relying heavily on the Supreme Court's (now shakey?) Watts decision.  A helpful reader altered me that the Missouri Supreme Court has agreed to hear the Clark case next week, and the parties' brief are available at this link.

Here is the conclusion of the appealing defendant's brief:

Bifurcated sentencing was intended by the legislature to be a powerful tool in the hands of prosecutors.  However, this provision of Missouri law is still subject to basic standards of fundamental fairness and to the limits imposed by the Missouri and United States Constitutions. These were not "unadjudicated bad acts".  These were acts that a jury had already determined were not committed by Calvin Clark and could not have been admitted during the guilt phase of this trial.  Allowing their admission through the back door during the penalty phase ensured that Mr. Clark would be sentenced not just for his present actions, or uncharged prior conduct, but for acts that a properly impaneled jury of his peers had already determined he did not commit.

Here are the concluding sentiments of state's brief:

Appellant was sentenced to consecutive terms of life imprisonment, thirty years, and fifteen years, in compliance with the jury's recommendation, for the crimes of first degree assault, armed criminal action, and attempted first degree robbery as well as his history and character.  The evidence regarding his history and character showed that he was a vile and dangerous person, and the sentences he received were not disproportionate to the severity of the crimes of which he was convicted. It was the three convicted crimes, not the four murders, that gained him the sentence he is currently serving.  Because the state did not use evidence of appellant's past acquittals to twice prosecute appellant for the four murders, his sentences and convictions in this case should be upheld.