David Leisure's Clemency Petition
 
 

                        Application for Executive Clemency

                   TO THE HONORABLE MEL CARNAHAN, GOVERNOR OF MISSOURI:

                     COMES NOW the applicant, David R. Leisure, by and
                   through his attorneys, Joseph P. Teasdale and John William
                    Simon, (1) and petitions the Governor for his order under
                     Mo. Const. art. IV, ß 7, and Mo. Rev. Stat. ßß 217.800 &
                     552.070 (1994), commuting the applicant's sentence from
                      death by lethal injection to life imprisonment without
                      eligibility for parole, or, in the alternative, staying the
                    execution presently scheduled for September 1, 1999, and
                    appointing a board of inquiry under section 552.070, or, in
                     the alternative, ordering a stay pending an independent
                    examination of the applicant under Mo. Rev. Stat. ß 552.060
                                     (1994).

                   David was the only person sentenced to death for allegedly
                   participating the fatal car-bombing of James Michaels, Sr., in
                    1980. The grandson of the victim has written on behalf of
                   that gentleman's survivors to urge clemency, because "[t]he
                     Michaels family and the Leisure family have experienced
                    enough grief for one lifetime," and "the execution of David
                    would bring additional needless hardship, not only to his
                       family but to my family as well." (2) Both of these
                   families--and the Lebanese-American community from which
                    they come--have suffered too much already. Members of
                    each family were the victims of bombings that, according to
                     the prosecution, were the work of members of the other
                      family. It is the sincere desire of both families that the
                      bloodshed will end; it is hard to see why the State of
                              Missouri cannot oblige them.

                    David is a worthy object of mercy. He had an IQ in the low
                     seventies at the time of his trial, and--according to Dr.
                       Richard D. Wetzel--his mental functioning may be
                    diminishing. (3) Counsel have provided the Director of the
                    Department of Corrections sufficient information to cause
                       her to certify David for a stay of execution and an
                    independent determination whether he is competent to be
                   executed. David grew up as one of eight people sharing two
                    rooms. David was not successfully toilet-trained until well
                   into elementary school--where, as one would imagine, he did
                   not fit in and did not succeed. He went to work in his father's
                   junkyard instead of finishing elementary school. Throughout
                   his early life, the social institutions we count on to intervene
                    to protect and nurture the retarded did not function in his
                   case. (4) Only after the bombing for which he was convicted
                       and sentenced to death was his mental retardation
                                    diagnosed.

                   Several men appear to have participated in this bombing. Of
                       them, three made deals with the state and federal
                    governments to avoid prosecution altogether or to receive
                    plea bargains to lesser charges. Only David and his elder
                     cousins Paul and Anthony Leisure were tried for capital
                    murder. The federal government ranked Paul Leisure as first
                     in culpability, with Anthony as second and one of the
                    informants as his "right hand man." It ranked David third.

                    Whereas three of the alleged participants made deals with
                    the prosecution, Paul and Anthony Leisure were fortunate
                      enough to obtain counsel who had the experience to
                     conduct a capital case. Paul received a change of venue;
                      both received life without parole instead of the death
                                     penalty.

                   David was represented by a collections attorney who used a
                   law student as his conduit of information to and from David,
                    and whose thinking he relied on for grand strategy. David's
                    present counsel did not learn until February 1999 that this
                       law student had been laboring under the adverse
                    psychological effects of untreated chemical dependency.
                    When they brought this fact to the attention of the federal
                     courts, the representatives of the State of Missouri said
                   David couldn't be killed quickly enough, that it didn't matter
                       that his trial counsel's "brains" was a drug addict.

                   During the penalty phase of David's trial, his counsel argued
                    that "David will never get out." The prosecutor objected,
                    saying "We don't know what the Governor's going to do
                   with him." (5) The prosecutor told the jurors that they would
                    not be making the final decision because the Governor of
                      Missouri has the power to grant clemency. When the
                    prosecutor lifted that load from the shoulders of the jurors,
                   he placed it squarely on the Governor. No one can argue that
                    the jury has made a final decision in this case, because the
                    attorney for the State of Missouri told them that the final
                    decision was not theirs but yours. No one should be heard
                    to complain when you accept the burden that the People of
                   the State of Missouri placed on you in conferring on you the
                   power to grant pardons and commutations, especially when
                     the prosecutor used it as a reason why the jurors should
                               return a verdict of death.

                    Many of the doctrines, decisions, and statutory limitations
                   on the federal courts' power to grant relief from the sentence
                      of death in David's case are intended not to promote
                     executions, but to preserve the states' role in the federal
                     system--not to make the enforcement of the law harsher
                    against the individual, but to keep the federal government
                     from overwhelming the several states. Nothing in these
                     doctrines, decisions, and statutory limitations--and no
                      decision denying relief on the basis of them--has any
                      negative implication concerning the authority of the
                        Governor to grant clemency or concerning the
                    appropriateness of doing so in any particular case. To the
                   contrary, in Herrera v. Collins, (6) the Supreme Court of the
                     United States relied on the power of chief executives to
                   exercise clemency as a reason why the federal courts should
                   deny relief in certain situations. If this power is not used, the
                              rights of our citizens are in
                     jeopardy, because the federal courts are relying on chief
                    executives to remedy wrongs and to mitigate harsh results
                     from which judges do not feel they have the authority to
                                   provide relief.

                    When the federal courts go overboard in denying not only
                     relief--but even consideration--in the face of meritorious
                    constitutional claims, one must reflect that a chief executive
                       takes an oath to preserve, protect, and defend the
                   Constitution just as judges do. When, as here, the Governor
                      is learned in the law, he has every right to enforce the
                    Constitution if federal judges decline to do so. In the vast
                     majority of instances in this case, they have declined to
                    enforce the Constitution not because David has failed to
                   state a claim on which relief could be granted, but because of
                    some failure of previous counsel to raise a claim at another
                               time and in another forum.

                     In addition, they have declined even to consider David's
                     constitutional claims because of a statute that was not
                     enacted until after he filed his petition. As counsel will
                   document in the following discussion, (7) every other federal
                     appellate court that hears habeas corpus appeals would
                   have applied the pre-existing legal standard: only the United
                    States Court of Appeals for the Eighth Circuit applies the
                   appeal-limiting provisions of the Antiterrorism and Effective
                    Death Penalty Act of 1996 (AEDPA) retrospectively. David
                     was never even allowed an federal appeal regarding his
                    death sentence. From the reinstitution of the death penalty
                     after 1976 until the adoption of AEDPA in 1996, every
                   Missouri prisoner who has been executed was allowed such
                     an appeal. David has been denied such an appeal on the
                   basis of an isolated position that the Eighth Circuit has taken
                           on the application of this new statute.

                    The commutation should be granted, or, in the alternative,
                     the execution should be stayed and a board of inquiry
                      appointed. Serious questions exist whether David is
                    competent to be executed, and a stay would be indicated to
                      resolve these questions alone. Most fundamentally,
                    however, it is simply too harsh and too unfair to execute a
                   retarded man for his alleged role in a crime when the men the
                   prosecution considered more culpable are either serving life
                       terms or other sentences or were never tried at all.
 
 

                               Table of Contents
 
 

                                Table of Contents viii
 
 

                               Statement of the Case 1
 
 

                            Reasons for Exercising Clemency 8
 
 

                             I. David is mentally retarded. 8
 
 

                      A. From birth, David has been noticeably deficient in
                    reasoning skills that we associate with coping with life in
                     society and which we presume to exist in holding people
                              accountable for their actions.
                                       8
 
 

                          B. David has an IQ in the low seventies.
                                       10
 
 

                     C. Irrespective of general arguments for and against the
                    death penalty, and of one's view of other issues in David's
                     case, it would be wrong to execute David in light of his
                                mental retardation. 11
 

                           II. David is not a threat to anyone. 15
 

                    III. The family of the victim opposes executing David. 16
 

                    IV. David is the only one of the alleged participants in the
                   bombing of James Michaels, Sr., to receive a death sentence,
                     when under the prosecution's own theory, he was less
                   culpable than two others who received life without parole. 17
 
 

                    V. David's trial counsel abdicated his role as a lawyer to a
                   nonlawyer who was laboring under the effects of illegal drug
                    use, and David has yet to have a hearing on this grievance
                              in the state or federal courts.
                                       21
 
 

                    A. Trial counsel allowed a drug addict to be the "brains" of
                                 David's defense 21
 
 

                   B. David did not receive a hearing on the influence of illegal
                      drugs on his defense due to conflict of interest 30
 

                    VI. David's trial was unfair, and its result unreliable, in that
                     the judge allowed the prosecution to introduce, in the
                   penalty phase, a highly prejudicial photograph of the victim
                    of another, different car-bombing of which David was later
                   convicted but for which he did not receive the death penalty.
                                      32
 

                       VII. David received representation at trial that was
                   constitutionally ineffective, but the federal courts refused to
                     apply mandatory precedent from the Supreme Court to
                             evaluate this ground for relief.
                                      43
 

                    VIII. David did not have the full course of judicial review of
                   his conviction and sentence which would give the public the
                     necessary confidence that they were obtained without
                              constitutional violation. 48
 
 

                      A. The result of David's state post-conviction relief
                   proceedings has been cast into doubt by credible allegations
                                of conflict of interest.
                                       48
 
 

                    B. The Eighth Circuit has denied David appellate review by
                       taking an isolated position that the appeal-limiting
                    provisions of the Antiterrorism and Effective Death Penalty
                            Act of 1996 apply retroactively. 50
 
 
 
 
 
 

                             Statement of the Case
 
 

                    David Leisure was born in 1950, the third child of Pete and
                    Jean Leisure. (Attachment D, ? 4.) His immediate family was
                   poor; as a child, David lived in the same four room apartment
                    with his parents, his elder brother, his two sisters, his aunt
                      and uncle, and his two cousins Paul and Anthony.
                    (Attachment D, ? 9.) David did not complete toilet-training
                   until he was as old as eight. (Attachment D, ? 12.) David was
                    thrown out or dropped out of school in the third grade, and
                    went to work in his father's junkyard. (Attachment D, ? 16.)
                    He began drinking at age eight to ten, and was involved in
                    substance abuse by age thirteen. (Attachment D, ?? 25-26.)

                    David's mother died in 1957. (Attachment D, ? 7.) His elder
                       brother Richard was fatally shot in a bar in 1963.
                     (Attachment D, ? 19.) When David's father died in 1973,
                    David looked up to his elder cousins Paul and Anthony as
                    father-figures. (Attachment D, ? 10 & 23.) David continued
                   to work at simple tasks in a junkyard under their domination.
                              (Attachment D, ?? 21 & 24.)

                   On September 17, 1980, James A. (Jimmy) Michaels, Sr., was
                    killed when a bomb exploded in his car while he was driving
                      on Interstate 55 in the St. Louis, Missouri, area. Paul,
                     Anthony, and David Leisure were charged with capital
                     murder for the bombing; in federal court, these men and
                      others were charged with violation of the Racketeer
                   Influenced and Corrupt Organizations Act (RICO). (8) Three
                      of the admitted participants in the bombing became
                     prosecution witnesses in exchange for plea bargains or
                   placement in the Federal Witness Protection Program. These
                    participants testified that the bombing of Mr. Michaels was
                     the product of power struggles between two competing
                   organized crime entities in St. Louis and specifically in Local
                              110 of the Laborers Union.

                       Whereas Paul and Anthony were represented by
                      experienced criminal defense lawyers, and received
                    sentences of life imprisonment without parole, David was
                     represented by a lawyer with no previous homicide trial
                     experience and with only three to five criminal jury trials
                   under his belt. (9) Trial counsel delegated client contact and
                    other critical tasks to a law student; by his own admission
                   this law student was laboring under the effects of untreated
                      chemical dependency. (Attachment F, ?? 11 & 15-16.)
                    According to other witnesses, he was using cocaine and
                    heroin at the time of David's trial. (Attachments G & H). On
                   April 7, 1987, a jury found David guilty of the capital murder
                                 of Jimmy Michaels.

                     The penalty phase of David's trial was merely a half-day
                      proceeding. During the penalty phase, the trial court
                      admitted into evidence, over the objection of David's
                     counsel, a photograph of the charred remains of George
                    "Sonny" Faheen, who was killed on October 16, 1981, when
                      an incendiary bomb burned up his parked car. This
                   photograph depicts the aftermath of the Faheen car bombing
                      and shows Faheen's corpse fused to the seat of his
                   automobile. The only photographs introduced at the penalty
                    phase were of the Faheen crime scene, even though David
                    was not on trial for Faheen's death. The prosecutor's only
                    penalty phase witness testified about the Faheen bombing,
                    even though David was not on trial for, and had not been
                   convicted of, that bombing. Without any explanation by the
                   prosecutor of the Faheen photograph's probative value, the
                    trial court overruled trial counsel's objection and admitted
                     the Faheen photograph. The jury returned a punishment
                                  verdict of death.

                    Paul and Anthony Leisure were also convicted in separate
                    trials for the capital murder of Jimmy Michaels, but neither
                   was sentenced to death. Instead, each was sentenced to life
                    imprisonment without possibility of parole for fifty years.
                    (10) The Faheen photograph was not admitted during the
                          trials of either Paul or Anthony Leisure.

                    The evidence at all of the trials showed that even if he were
                    involved in the crime, David was the least culpable of those
                    implicated. The evidence also established that David was
                    mentally retarded, ill educated, and a substance abuser. Of
                    all the alleged participants in the bombing, David sits alone
                                   on death row.

                   Both a direct appeal to the Supreme Court of Missouri and a
                   state court post-conviction motion under Missouri Supreme
                    Court Rule 29.15 were unsuccessful. (11) On direct appeal,
                      two members of the Missouri Supreme Court (Judges
                      Blackmar and Welliver) concluded that David's death
                     sentence was unconstitutional based on the erroneous
                    admission of the Faheen photograph. (12) The dissenting
                     judges found the admission of the Faheen photograph
                    unconstitutional, because it did not aid the jury in any way
                   in reaching a decision and it served solely to prejudice David
                    and to inflame the passions of the jury. (13) Characterizing
                     David's penalty phase as a "legalized lynching," Judges
                    Blackmar and Welliver would have remanded his case for a
                              new sentencing hearing. (14)

                    In October 1992, David filed a pro se federal habeas corpus
                    petition pursuant to 28 U.S.C. ß 2254 in the United States
                    District Court for the Eastern District of Missouri. Counsel
                      was appointed and, in August 1993, a First Amended
                    Petition was filed, raising a number of constitutional claims.
                    Three of those claims, which are discussed in detail in this
                    application, are based on: (1) the admission of the Faheen
                   photograph during the penalty phase of David's trial; (2) the
                    disproportionality of David's death sentence compared to
                    the life sentences received by his elder cousins who were
                       more culpable than David according to the federal
                      pre-sentence investigation report; and (3) ineffective
                   assistance of counsel based on the cumulative effect of trial
                                  counsel's errors.

                     On January 13, 1998, the district court denied the First
                   Amended Petition in all respects. Leisure v. Bowersox, 990 F.
                   Supp. 769 (E.D. Mo. 1998). The district court also summarily
                    denied David a certificate of appealability, even though he
                      had not yet requested one, and even though the law
                    requiring the issuance of a certificate of appealability had
                   not been enacted until almost four years after David filed his
                              federal habeas petition. (15)

                    David's appointed counsel subsequently filed a notice of
                    appeal and an application for a certificate of probable cause
                    or, in the alternative, for a certificate of appealability, with
                   the United States Court of Appeals for the Eighth Circuit. On
                    May 26, 1998, the court of appeals summarily denied David
                    an appeal. The Eighth Circuit's order stated in its entirety:

                    The court, having reviewed the record in this case, denies
                   the application for certificate of appealability. [Attachment I.]
 
 

                    The court of appeals also summarily denied David's timely
                   petition for rehearing. Judge McMillian would have granted
                   the suggestion for rehearing en banc. The Supreme Court of
                    the United States denied certiorari on March 29, 1999. (16)

                     While David's certiorari petition was pending, counsel
                   learned, in February 1999, of a good-faith basis for believing
                    that a law student who had been trial counsel's conduit of
                    information to and from David, and who had come up with
                    the idea of abandoning David's alibi defense in favor of a
                    diminished-capacity defense, had been on drugs at the time
                    of David's trial. Immediately after learning of the denial of
                     certiorari, David's counsel filed a motion for relief from
                    judgment in the federal district court under Fed. R. Civ. P.
                     60(b)(6). They presented an affidavit from trial counsel
                     setting forth his basis for believing that the law student,
                    Gerald Wayne Bassett, had been on drugs. (Attachment J.)
                   When the respondent expressed disbelief that trial counsel's
                   observations meant Mr. Bassett had been on drugs, counsel
                    obtained and filed declarations from women who knew Mr.
                     Bassett at the time, and these declarations removed any
                     ambiguity. (See Attachments G & H.) The district court
                       denied relief, holding that the Rule 60(b)(6) motion
                             was actually a second petition.

                   Counsel sought relief from the Eighth Circuit, and in reply to
                   the respondent's denials that Mr. Bassett was on drugs, they
                    obtained an affidavit from him that sets out the contours of
                      his drug problem and its effect on his work for David.
                     (Attachment F.) On August 24, 1999, the Eighth Circuit
                   denied all relief, including a stay of execution to seek review
                           of its decision by the Supreme Court.
 
 

                        Reasons for Exercising Clemency

                     1.David is mentally retarded.
 
 

                          1.From birth, David has been
                             noticeably deficient in reasoning
                             skills that we associate with coping
                             with life in society and which we
                             presume to exist in holding people
                             accountable for their actions.
 
 

                   David Leisure was born about two months
                   premature, into a poor family that did not
                   generally receive medical care. (Attachment D,
                   ?? 8, 9 & 10.) (17) David was not toilet-trained
                   until he was as old as eight. (? 12.) Other
                   children called him names reflecting the
                   presence of feces on his person. (? 13.) Not
                   surprisingly, David had great difficulty at school;
                   he quit school or was thrown out of school in the
                   third grade, and went to work for his father in a
                   junk or salvage yard. (?? 15-16.) Rather than
                   being tested and tracked into special education
                   classes, which would have remediated his
                   condition to the extent possible, David was able
                   to learn simple, mechanical tasks in the
                   junkyard, which masked his mental deficits to
                   those around him. (? 21.)

                   David grew up in a four-room flat that his
                   nuclear family shared with that of his uncle Paul
                   Leisure, Sr.; David grew up in a sibling-to-sibling
                   relationship with his elder cousins Paul and
                   Anthony Leisure. (? 9.) Especially after the
                   deaths of David's parents and his own elder
                   brother Richard, David looked up to Paul and
                   Anthony as one might to a father. (?? 19-20 &
                   22-24.) Paul and Anthony Leisure dominated and
                   manipulated David, sometimes putting him in a
                   cage and hoisting it up on a boom crane. (? 24.)

                   Due to his family's poverty, his father's attitude
                   toward medical care, David's ability to perform
                   the simple tasks required of a helper in a
                   junkyard, and his willingness to go along with his
                   elder family members, David was not the object
                   of intervention by social institutions that would
                   have taught and treated him in accordance with
                   his mental handicaps. Instead, David began
                   using alcohol at the age of eight to ten. (? 25.)
                   He began sniffing glue at about age thirteen.
                   (? 26.) He went on to use illegal drugs, to the
                   point where two family members considered
                   having him committed the year before the
                   bombing for which he was convicted and
                   sentenced to death, but abandoned this idea
                   because David appeared to stop or control the
                   abuse. (? 27-28.)

                   Only after the bombing for which David has been
                   convicted and sentenced to death was he
                   diagnosed as mentally retarded.

                          1.David has an IQ in the low
                             seventies.
 
 

                   In his testimony at David's trial, Dr. Daniel J.
                   Cuneo of Chester State Hospital in Illinois
                   testified that he had performed two IQ tests on
                   David, and that David scored 70 on one test and
                   74 on the other. (18) The first was the "Quick
                   Test"; the second was the Wechsler Adult
                   Intelligence Scale Revised (WAIS-R). On the
                   basis of these tests, Dr. Cuneo testified that
                   David's IQ was between 70 and 74. (Attachment
                   K at 104-12.)

                   In considering whether to inform the Director of
                   the Department of Corrections to seek a mental
                   examination under Mo. Rev. Stat. ß 552.060
                   (1994), counsel sought an opinion from Dr.
                   Richard D. Wetzel of Washington University
                   School of Medicine. (19) Dr. Wetzel reviewed
                   records of previous psychological evaluations of
                   David, and concluded that "[t]here is a strong
                   basis to suspect that Mr. Leisure has suffered
                   brain damage or brain disease." (Attachment B
                   at 2.) Whereas Dr. Cuneo had discounted earlier
                   IQ tests because they were given in group
                   settings at school where students could copy off
                   of others' papers and the data collection
                   procedures were otherwise compromised, Dr.
                   Wetzel combined these scores with a lower score
                   subsequent to Dr. Cuneo's tests to suggest a
                   degenerative condition. (Attachment B at 2,
                   ? 4.iii.) Dr. Wetzel pointed out that a previous
                   report had found "possible frontal lobe atrophy"
                   indicating a
                   "global decrease in [David's] central nervous
                   system," which is "a rare and unusual finding"
                   that "cannot be malingered." (Attachment B at
                   2, ? 4.ii.) Unless David is independently
                   determined to be competent, it would be
                   fundamentally immoral to execute him.

                          1.Irrespective of general arguments
                             for and against the death penalty,
                             and of one's view of other issues in
                             David's case, it would be wrong to
                             execute David in light of his mental
                             retardation.
 
 

                   Our society rejects the execution of the mentally
                   retarded because such a practice is inconsistent
                   with the objectives, such as retribution and
                   deterrence, that we rely on to support capital
                   punishment. (20)

                   Retribution is a weak argument for executing a
                   person who is not operating at a normal
                   intelligence level: such a person is simply not as
                   accountable for his or her actions. Even if we
                   need to confine them and are justified in
                   punishing them to some extent, we naturally
                   draw back from inflicting the most severe
                   penalty. When the Supreme Court of the United
                   States held that it was not unconstitutional for
                   the states and the federal government to resume
                   executing their citizens in 1976, it qualified this
                   holding to cover cases in which "a life has been
                   taken deliberately by the offender." (21)
                   Mentally retarded people are by definition not
                   as able to deliberate, and are simply not as
                   blameworthy as others who engage in activity
                   like the activity for which David was convicted.
                   The limits of blameworthiness of retarded people
                   places a limit on our punishment of them that is
                   consistent with general support for the death
                   penalty.

                   Deterrence is also a weak basis for executing a
                   mentally retarded person. Deterrence presumes
                   that the individual engages in a cost/benefit
                   analysis before taking or refraining from an
                   action which the law seeks to prevent. For the
                   same reason that a mentally retarded person is
                   not as blameworthy morally as a person of
                   normal intelligence, a mentally retarded person
                   is less likely to be deterred by the threat of
                   capital punishment. Execution of a retarded
                   person diminishes deterrence to the rest of
                   society: any punishment is less likely to deter
                   crime when its imposition is seen to depend not
                   on the choices of the offender than on conditions
                   in his or her past that he or she cannot change,
                   or behavior of the legal system that he or she
                   cannot understand and certainly cannot control.

                   A mentally retarded person is more likely than
                   the average person to be convicted and
                   sentenced to death on account of the behavior of
                   others. In this case, David was dominated by
                   Paul and Anthony from his childhood through the
                   time they were in the St. Louis City Jail before
                   their capital murder trials. Such domination was
                   not the product of a conscious, informed,
                   intelligent choice but of mental retardation; it
                   would be unjust to punish David more harshly
                   than Paul and Anthony for the actions the courts
                   have found him to have committed.

                   A mentally retarded person is less likely to
                   receive adequate legal representation and
                   otherwise to receive the rights of the accused
                   that we rely on to prevent the conviction of the
                   innocent and to promote the selection of
                   appropriate punishments for the guilty.
                   Especially where, as in this case, the retarded
                   defendant is easily manipulated by persons
                   around him, both codefendants and counsel can
                   overbear the defendant's will whether by
                   trickery or simply by saying what they want him
                   or her to do. Legal decisions such as whether to
                   take the stand are less attributable to the
                   mentally retarded defendant than they are to the
                   average defendant.

                   A mentally retarded person is also less likely to
                   appreciate the prospect of his own death, and to
                   prepare for it as the law presumes he or she has
                   a right to do. Although the Supreme Court
                   surveys secular rationales for not executing the
                   insane, the historical reason still applies among
                   people of faith, and is a proper consideration so
                   long as a religious viewpoint is not forced on the
                   condemned person: it has been the law for five
                   hundred years that we do not execute the insane,
                   because they are incapable of preparing
                   themselves to meet their Maker; as we reflect
                   on our own mortality, we draw back from any
                   action on our part that may not only extinguish
                   the condemned person's physical existence but
                   doom their eternal soul as well. (22) But the same
                   reasoning applies to the retarded. Whether or
                   not it is a basis for legal relief, it is a basis for
                   extending mercy.

                   A mentally retarded person presents less of a
                   danger to society than a person of normal or
                   superior intelligence or a person with active
                   psychoses. Society can completely defend itself
                   against any potential threat from a retarded
                   person by confinement as opposed to execution.
                   Although the contributions of a retarded person
                   will be limited in comparison to those of other
                   persons, a retarded person can contribute to
                   society within a structured environment in which
                   good behavior is positively reinforced.

                   Notwithstanding his mental deficiencies, David
                   can play a valuable role in his structured
                   environment. As Attachment L illustrates, he is
                   doing so now. David does not need to be killed.

                     1.David is not a threat to anyone.
 
 

                   David's record in the Department of Corrections
                   is one of positive value to the staff and other
                   inmates, not one of threats to others within or
                   without the Department. Although he has
                   received occasional, minor conduct violation
                   reports, he has also contributed to the lives of
                   other prisoners and eased the tasks of staff by
                   his work in the Recreation Department.
                   Attachment L. In 1993, then Superintendent Paul
                   Delo wrote him a letter of commendation for
                   assisting a staff member when she had an
                   accident. Attachment M. This pleasant,
                   generous demeanor dates back to the time he
                   and his cousin Anthony were in the St. Louis
                   City Jail before trial. Attachment N. He has also
                   remained a valued part of his family, and has
                   contributed to raising his children to be honest,
                   productive citizens. Attachment D (?? 29-30).

                   Killing David cannot be justified by any need to
                   protect society from him. In his structured
                   environment David is able to contribute to
                   society.

                     1.The family of the victim opposes executing
                        David.
 
 

                   In his letter of March 11, 1999, James A.
                   Michaels iii--grandson of the man who was killed
                   in the bombing for which David was sentenced to
                   death--expresses the belief of the Michaels
                   family that David should not be executed.
                   (Attachment A.) This letter is especially
                   significant because according to one of the
                   admitted participants who made a
                   testimony-for-leniency deal with the prosecution
                   (which can hardly be taken at face value, in light
                   of these witnesses' obvious incentive to
                   fabricate), David proposed detonating the bomb
                   when James A. Michaels iii was at his
                   grandfather's car with his grandfather. (23) The
                   author of this letter was not only the grandson of
                   the victim, but also a potential victim himself. He
                   and his family understand that perpetuating a
                   cycle of violence does no one any good.

                   In addition to Mr. Michaels, Chorbishop Robert
                   J. Shaheen--the clergyman in charge of St.
                   Raymond's Church both at the time of the
                   bombing and today--has written in support of
                   clemency. (Attachment O.) Like Mr. Michaels,
                   St. Raymond's Church was a potential victim of
                   the bomb that killed the elder Mr. Michaels if
                   one believes the prosecution's evidence. When
                   the victims and potential victims show mercy on
                   David, they set a good example for us all. They
                   want the bloodshed to cease. In this case, the
                   Governor of the State of Missouri can make that
                   happen.

                     1.David is the only one of the alleged
                        participants in the bombing of James
                        Michaels, Sr., to receive a death sentence,
                        when under the prosecution's own theory,
                        he was less culpable than two others who
                        received life without parole.
 
 

                   Actually imposing the death penalty on David
                   would be excessive and disproportionate in light
                   of the life sentences imposed on the alleged
                   participants in the murder of Mr. Michaels--Paul
                   Leisure and Anthony Leisure--whom the
                   prosecution itself considered more culpable. (24)
                   The injustice is inescapable when one considers
                   David's lack of mental abilities. It is all the more
                   excessive and disproportionate when one
                   considers that two admitted participants,
                   Broderick and Ramo, received substantially
                   lighter sentences than Paul and Anthony. State
                   prosecutors to deals with Broderick and Ramo,
                   because they agreed to testify against Paul,
                   Anthony, and David. The man who actually made
                   the bomb, Fred Prater, was not prosecuted but
                   placed in the Witness Protection Program; the
                   state prosecutors did not call him at David's trial
                   because the discrepancies between his story and
                   the already inconsistent stories of Ramo and
                   Broderick would have been fatally damaging to
                   the prosecution's case.

                   The Eighth Circuit has previously granted relief
                   in an analogous case on the issue of an unfair
                   and disproportionate sentence. (25) This decision,
                   as well as the others noted below, shows that
                   jurists of reason could disagree over whether
                   meaningful appellate review of a death penalty
                   case requires a comparison of sentences
                   received by others convicted of exactly the same
                   crime (when there are multiple participants), and
                   thus whether David's death sentence violates
                   the Eighth and Fourteenth Amendments.

                   Of all the convictions in the Jimmy Michaels
                   case and the cases of other violence affecting
                   both families, only David's conviction resulted in
                   a death sentence. But the evidence at both the
                   respective state trials and a related federal
                   RICO trial demonstrated that David--even if he
                   was involved in the crime--was the least culpable
                   of the Leisure family: "Pauley was the power,
                   Anthony was the brains, and David was basically
                   step and fetch." (Attachment P at 151.) The
                   federal pre-sentence investigation report
                   concluded:

                   In terms of culpability, the U.S. Attorney's
                   Office ranked Paul Leisure first as head of the
                   organization. Anthony Leisure was ranked
                   second with Joe Broderick described as Anthony
                   Leisure's right hand man. They stated David
                   Leisure was ranked third in culpability . . . .
                   [Attachment Q at 6.]
 
 

                   In addition, the evidence presented during his
                   state trial established that David was mentally
                   retarded (with an I.Q. in the low 70's), (26) ill
                   educated, and addled by drug use. (27) The
                   evidence also demonstrated that David was a
                   follower, not dangerous alone; if he were
                   dangerous it would only be when he was subject
                   to the domination and manipulation of others
                   with dangerous intentions--in this instance, his
                   older cousins Paul and Anthony Leisure. (28)

                   The sentences received by David's codefendants
                   are the only similar sentences to which David's
                   death sentence should fairly have been
                   compared. (29) The alleged masterminds behind
                   the crime did not receive the death penalty. (30)
                   The review of David's sentence was arbitrary
                   and irrational. The death sentence cannot be
                   imposed in such circumstances without a
                   deprivation of David's Fourteenth Amendment
                   rights to equal protection and due process, and
                   his Eighth Amendment right to be free from
                   cruel and unusual punishment. (31) To impose the
                   death penalty in this case would be to disconnect
                   the law from what is right and wrong in the minds
                   of the people and of their spiritual and
                   intellectual leaders.

                   It is a sufficient basis for the exercise of
                   clemency. This case is not one in which different
                   juries simply came to different decisions. David
                   did not have a fair trial, because he did not
                   receive constitutionally effective counsel.
                   Anthony was represented by Richard H.
                   Sindel--a leading member of the St. Louis bar
                   with special expertise in capital litigation--and
                   Paul was represented by senior criminal defense
                   lawyer Alvin M. Binder of Jackson, Mississippi,
                   who obtained a change of venue to St. Joseph.
                   David was represented by an attorney who was
                   not ready to try a capital case, and who
                   abdicated his role as attorney to a law student
                   with a drug problem. Even when his life was at
                   stake, David wound up on the short end of the
                   stick once more: his trial counsel had never tried
                   a murder case--let alone a capital case--and had
                   little experience with criminal cases in the first
                   place. (Attachment E, ? 2.) David was too
                   retarded, and too much the follower, to
                   know the disadvantage to which he was being
                   subjected.

                     1.David's trial counsel abdicated his role as
                        a lawyer to a nonlawyer who was laboring
                        under the effects of illegal drug use, and
                        David has yet to have a hearing on this
                        grievance in the state or federal courts.
 
 

                          1.Trial counsel allowed a drug addict to
                             be the "brains" of David's defense.
 
 

                   David's counsel at the trial level, Alan N.
                   Zvibleman, delegated substantial trial
                   preparation responsibilities to Gerald Wayne
                   Bassett during critical periods of David's state
                   court proceedings. (32) Before and during trial,
                   Mr. Bassett acted as the conduit between Mr.
                   Zvibleman and David, and almost all
                   communications with respect to strategy or the
                   facts of the case were transmitted to Mr.
                   Zvibleman via Mr. Bassett. (33)

                   In an affidavit from Mr. Zvibleman (Attachment
                   I), he has stated his belief that Mr. Bassett's
                   abilities were impaired by illegal drug use during
                   the time of the trial:

                   9. During trial preparation and the trial itself, I
                   noticed behaviors on the part of Mr. Bassett
                   that I now believe were manifestations of illegal
                   drug use. These behaviors included, but were not
                   limited to, a jerkiness or an inability to remain
                   still, and abnormally fast talking.
 
 

                   10. If I had believed that Mr. Bassett was using
                   illegal drugs at the time of trial preparation and
                   the trial in Mr. Leisure's case, I would not have
                   allowed him to assist me in my practice. I believe
                   that drug usage could have substantially
                   impaired Mr. Bassett's ability to assist me and
                   Mr. Leisure in the preparation and presentation
                   of Mr. Leisure's defense.
 
 

                   David's counsel discovered a good-faith basis to
                   pursue Mr. Bassett's drug problem on February
                   12, 1999, in the course of an interview of Mr.
                   Zvibleman; at his suggestion or simultaneously
                   with an interview of him, counsel found an article
                   of February 5, 1999, in the St. Louis
                   Post-Dispatch to the effect that the Illinois
                   Supreme Court had reinstated Mr. Bassett's law
                   license, which he had voluntarily placed on
                   inactive status on account of his drug problem.

                   By the time of this discovery, the federal district
                   court had already denied relief, the Eighth
                   Circuit had denied a certificate of appealability,
                   and the matter was before the Supreme Court of
                   the United States on a petition for certiorari.
                   When the Supreme Court denied certiorari,
                   David's counsel filed a motion for relief from
                   judgment under Fed. R. Civ. P. 60(b) based on
                   this newly discovered evidence. They alleged
                   that Mr. Zvibleman's failure to detect Mr.
                   Bassett's mental problems stemming from past
                   or present illegal drug use elevated Mr.
                   Zvibleman's already ineffective assistance to the
                   level of gross negligence, and thus satisfied the
                   "extraordinary circumstances" test of Fed. R.
                   Civ. P. 60(b)(6).

                   Counsel for the respondent in the federal habeas
                   corpus proceeding questioned whether the
                   symptoms on which Mr. Zvibleman relied were
                   sufficient to establish that Mr. Bassett was on
                   drugs. In reply to this response, David's counsel
                   obtained a declaration and an affidavit from
                   Glinda Joseph, and submitted the declaration to
                   the federal court. (34) In it Ms. Joseph swears
                   that Bassett regularly used illegal drugs in her
                   presence during the time of David's trial, and
                   that such drug use detrimentally affected his
                   abilities and made him disinterested in
                   preparation for David's trial:

                   4. During the period of Mr. Leisure's trial, Jerry
                   Bassett would come to my house a few times a
                   week.
 
 

                   5. During those visits, I observed Mr. Bassett
                   using illegal drugs.
 
 

                   6. On some occasions, I would personally inject
                   Mr. Bassett with illegal drugs, at his request,
                   because he could not find a vein or, when he was
                   doing cocaine, because he was too nervous or
                   shaky to do it himself.
 
 

                   7. These drugs included cocaine, heroin, and
                   Dilaudid.
 
 

                   8. Mr. Bassett used these drugs intravenously in
                   my presence.
 
 

                                      ***
 
 

                    14. During the period of Mr. Leisure's trial for
                   the murder of Jimmy Michaels, Sr., Mr. Bassett
                     appeared to me to be always wanting illegal
                                     drugs.
 
 

                    15. During the period of Mr. Leisure's trial for
                       the murder of Jimmy Michaels, Sr., Mr.
                    Bassett's illegal drug use affected his judgment
                   to the point where he did not seem to care about
                    his work, as distinguished from getting his next
                                      hit.
 
 

                      In similar sworn statements from Melinda
                    Coleman, (35) she states that during the time of
                    David's trial and post-conviction proceedings,
                   Mr. Bassett regularly made and received calls in
                   her presence involving the procurement of illegal
                     drugs, had illegal drugs on his person in Ms.
                     Coleman's presence, and exhibited numerous
                      signs of illegal drug use, while also being
                   exceptionally clever about covering up his use of
                                   such drugs:

                     5. Mr. Bassett made and received telephone
                    calls from my residence in which he arranged to
                         purchase and pick up illegal drugs.
 
 

                    6. Mr. Bassett had on his person illegal drugs.
                      On one occasion, he reached into the vest
                      pocket of his jacket for a pen, and several
                   Dilaudid pills in a cigarette cellophane fell on the
                    floor of my living room. I saw him pick them up
                          and put them pack in his pocket.
 
 

                      7. Mr. Bassett had bloodstains on his shirt
                    where he would have bled from injecting drugs
                                  into his arm.
 
 

                     8. During the period surrounding the trial of
                     David Leisure, I knew dozens of people who
                   were addicted to or otherwise used illegal drugs.
 
 

                                      ***
 
 

                    13. Mr. Bassett was exceptionally clever about
                     covering up his use of illegal drugs. He was
                   quick in coming up with excuses or explanations
                    that would lead another person to believe there
                       was another reason for his drug-related
                     behavior. A person who was not familiar with
                    people who are on illegal drugs would not have
                    known that Mr. Bassett was using them at the
                   time of Mr. Leisure's trial. On a few occasions I
                     have seen Mr. Bassett go into court when he
                    was high on drugs, and conduct a case without
                        anyone noticing that he was on drugs.
 
 

                       Mr. Bassett's use of illegal drugs while
                     preparing for and during David's trial made it
                     impossible for David to communicate with his
                      trial counsel in a meaningful manner. This
                    impossibility was particularly prejudicial where,
                     as here, David's counsel was relying on Mr.
                        Bassett to communicate with David.

                    In response to further expressions of disbelief
                    from the respondent's counsel, David's counsel
                    obtained from Mr. Bassett a declaration and an
                    affidavit that remove any doubt whether at the
                    time of David's trial he was laboring under the
                     psychological effects of untreated chemical
                    dependency, and that these effects prejudiced
                       David by inserting into his defense Mr.
                    Bassett's grandiose ideations overlapping with
                        narcissistic personality disorder. (36)

                    Mr. Bassett confirms that during the 1970s and
                     1980s he engaged extensively in substance
                       abuse involving both heroin and cocaine.
                    (Attachment F, ? 10.) At no point from August
                    1980 until February 1995 was Mr. Bassett free
                      from the adverse psychological effects of
                    untreated chemical dependency. (? 11.) As an
                    element of his untreated chemical dependency,
                   Mr. Bassett had grandiose ideations overlapping
                     with narcissistic personality disorder. (? 12.)
                      Among the specific instances of grandiose,
                    narcissistic ideations growing out of Bassett's
                     untreated chemical dependency were: (1) the
                   idea that he could act as second-chair counsel in
                    a capital murder case, even though he had only
                      attending one other trial--his own trial on
                   corruption charges--in which he was represented
                        by counsel; (2) the idea that he could
                    successfully defend David by approaching the
                    trial as he approached last minute preparation
                    for a law school examination; (3) the belief that
                       he could employ a diminished capacity
                     defense to persuade the jury to acquit David
                    after David and his co-defendants had already
                      been convicted in federal court under the
                         Racketeer Influenced and Corrupt
                    Organizations Act (RICO) in a trial in the same
                    location, and in which one of the predicate acts
                    alleged was the Michaels bombing. (?? 13-14.)

                      Mr. Bassett continues that Mr. Zvibleman
                    allowed him to interact extensively with David
                   and to develop the defense strategy, despite the
                    fact that Mr. Bassett was still a law student at
                      the time. (? 15.) Among the results of Mr.
                      Zvibleman's abdication of these tasks to a
                   nonlawyer, Mr. Bassett was the principal conduit
                      of information between Mr. Zvibleman and
                   David. (? 16.) Mr. Bassett used this influence to
                     mislead David about which defense would be
                     used and whether David would be allowed to
                        testify on his own behalf. (?? 16-17.)

                      Mr. Bassett was also the force behind the
                   decision to use the diminished capacity defense.
                    (? 17.) Throughout the federal litigation David's
                     counsel have explained that David was never
                     told by Mr. Bassett that he would not testify,
                    and Mr. Bassett never told Mr. Zvibleman that
                    David believed he would testify and that David
                             insisted upon testifying.

                    Mr. Bassett's affidavit demonstrates that, but
                   for constitutional error, no reasonable fact finder
                     would have sentenced David to death for the
                    murder of Mr. Michaels. Bassett states that he
                     worked on Anthony Leisure's case, and that
                   Anthony's trial counsel spent considerable more
                    time working on Anthony's case, meeting with
                    Anthony, and working with and supervising Mr.
                   Bassett than Mr. Zvibleman had. (?? 20-21.) Mr.
                      Bassett also observes that "When he was
                   represented by counsel who did not abdicate trial
                      preparation and client communications to a
                    nonlawyer disabled by the effects of untreated
                   chemical dependency, Anthony Leisure received
                     life without parole for the same crime in the
                   same venue where David Leisure was sentenced
                    to death, when the prosecutors' own theory was
                    that Anthony was more culpable in the bombing
                             than David was." (? 22.)

                     Mr. Bassett's drug use manifested itself in a
                   manner that "could have substantially impaired"
                   his ability to assist in preparing David's case for
                   a capital murder trial. Trial counsel's conduct so
                      undermined the proper functioning of the
                      adversarial process that the trial cannot be
                   relied on has having produced a just result. This
                     was particularly true in a death penalty case
                      where the client's life hung in the balance.

                   The federal courts should have granted relief, or
                    at least held a hearing, on this grievance. The
                    district court denied relief on the basis that the
                     Rule 60(b)(6) motion was "really" a second
                     petition, and required the permission of the
                    Eighth Circuit under AEDPA. David's counsel
                   sought to appeal this ruling or, in the alternative,
                   to obtain the Eighth Circuit's permission to file a
                      second petition to raise this grievance. On
                     August 24, 1999, the Eighth Circuit panel to
                      which David's most recent pleadings were
                    directed denied relief, once more without giving
                    any reasons. At this writing, the Eighth Circuit
                    en banc, the Missouri Supreme Court, and the
                      United States Supreme Court still have the
                    opportunity to grant relief on this ground or at
                    least to grant a stay of execution to allow David
                    to litigate it. Counsel submit this application in
                    an abundance of caution, so that the Executive
                   Branch may review the evidence and authorities
                      supporting this grievance, and may either
                   commute David's sentence for this and the other
                    reasons advanced or appoint a board of inquiry
                    to review this grievance and any of the others
                     concerning which the courts have failed and
                        refused to give David the time of day.

                          1.David did not receive a hearing on
                             the influence of illegal drugs on his
                             defense due to conflict of interest.
 
 

                   After receiving a death sentence, David's claims
                   of trial counsel's ineffectiveness were
                   considered in a post-conviction relief hearing
                   pursuant to Missouri Supreme Court Rule 29.15.
                   In David's Rule 29.15 hearing, Mr. Bassett did
                   not testify to his own drug abuse during the
                   preparation and prosecution of David's case or
                   to the manner in which such drug abuse impaired
                   communications between David and Mr.
                   Zvibleman, caused a breakdown in the
                   attorney-client relationship, and deprived David
                   of effective assistance of counsel. (37) He was
                   entirely silent on this point, although he was
                   ostensibly testifying on behalf of David. In order
                   for Mr. Bassett to have truthfully apprised the
                   PCR motion court of the scope of David's
                   deprivation of the right to counsel, Mr. Bassett
                   would have had to confess to criminal drug
                   activity. Because Mr. Bassett was incapable of
                   protecting David's interests without jeopardizing
                   his own interests, an
                   unacceptable conflict of interest arose, further
                   depriving David of his right to the effective
                   assistance of counsel.

                   David's lead litigation counsel have also filed
                   pleadings in the Eighth Circuit and in the
                   Missouri Supreme Court citing a conflict of
                   interest on the part of David's Rule 29.15
                   counsel, Richard H. Sindel, in conducting the
                   hearing. Clemency counsel attach a copy of
                   litigation counsel's most recent Eighth Circuit
                   pleading as Attachment R. If Rule 29.15 counsel
                   could not bring out Mr. Bassett's drug problem
                   without exposing himself to discipline for having
                   used Mr. Bassett himself in Anthony Leisure's
                   trial, one cannot count on the state
                   post-conviction relief proceedings to have
                   vindicated David's Sixth Amendment right to the
                   effective assistance of trial counsel. Although
                   David's counsel have distinguished the cases on
                   which the respondent relies in arguing that the
                   federal courts "cannot" grant relief in this
                   situation, they cannot expect the courts to do so.

                   These considerations sounding in conflict of
                   interest must provide additional reasons for the
                   exercise of clemency, at least to provide a forum
                   to resolve these questions when the judicial
                   courts will not.

                     1.David's trial was unfair, and its result
                        unreliable, in that the judge allowed the
                        prosecution to introduce, in the penalty
                        phase, a highly prejudicial photograph of
                        the victim of another, different
                        car-bombing of which David was later
                        convicted but for which he did not receive
                        the death penalty.
 
 

                   During the penalty phase of David's trial, the
                   court admitted into evidence--over the objection
                   of David's counsel--a photograph of the charred
                   remains of George "Sonny" Faheen, who was
                   killed on October 16, 1981, when an incendiary
                   bomb burned up his parked car. This photograph
                   depicts the aftermath of the Faheen car-bombing
                   and shows Faheen's corpse fused to the seat of
                   his automobile. The only photographs introduced
                   at the penalty phase were of the Faheen crime
                   scene, even though David was not on trial for
                   Faheen's death, thus highlighting the
                   photographs to jurors. The prosecutor's only
                   penalty phase witness testified about the Faheen
                   bombing, even though David was not on trial for,
                   and had not been convicted of, that bombing.
                   Without any explanation by the prosecutor of the
                   Faheen photograph's probative value, the trial
                   court overruled David's counsel's objection and
                   admitted the Faheen photograph, stating only
                   that the "jury is entitled to know as much about
                   the defendant as they possibly can." (Trial
                   Transcript, Vol. X, p. 6.)

                   The federal courts have denied David an appeal
                   on the admission of the Faheen photograph.
                   Even under the Antiterrorism and Effective
                   Death Penalty Act of 1996 (AEDPA), the
                   standard for whether an unsuccessful habeas
                   corpus petitioner should receive an appeal is the
                   one the Supreme Court had previously set forth
                   in Barefoot v. Estelle, (38) which asks whether
                   the petitioner has made a "substantial showing"
                   that his or her constitutional rights had been
                   violated, in which one test is whether any of his
                   or her issues are "debatable among jurists of
                   reason."

                   Reasonable jurists have differed on whether the
                   admission of a gruesome photograph of an
                   unrelated and unadjudicated crime so infects a
                   sentencing hearing as to make it fundamentally
                   unfair. Two judges on the Missouri Supreme
                   Court thought this photograph rendered David's
                   sentencing untrustworthy. The United States
                   Supreme Court has previously granted certiorari
                   on a similar issue, (39) and Justices of that
                   Court--as well as several state supreme
                   courts--have found admission of evidence of
                   unadjudicated crimes to be unconstitutional. (40)

                   In David's case, the federal district and
                   appellate courts improperly applied the legal
                   standard for allowing habeas corpus appeals
                   because they ignored the scathing dissent on the
                   Faheen photograph issue by two jurists of reason
                   sitting on the highest court in Missouri. Judges
                   Blackmar and Welliver concluded that admission
                   of the Faheen photograph during David's
                   sentencing phase was unconstitutional, because
                   the photograph did not aid the jury in any way in
                   reaching a decision and it served solely to
                   prejudice David and inflame the passions of the
                   jury. State v. Leisure, 749 S.W.2d at 383-84
                   (Blackmar, J., joined by Welliver, J., concurring
                   in part and dissenting in part). Judges Blackmar
                   and Welliver memorialized the debate over the
                   admissibility of the Faheen photograph in their
                   dissent "so that similar inappropriate rulings will
                   not be made in the future . . . [because the]
                   penalty phase should not become a legalized
                   lynching." Id. at 385.

                   The brevity of the lower federal courts' analyses
                   concerning David's right to meaningful appellate
                   review makes it impossible to know why the
                   appeal was denied. The lower federal courts'
                   failure to acknowledge the serious constitutional
                   debate among jurists of Missouri's highest court
                   on David's direct appeal casts serious doubt on
                   their application of the Barefoot standard in this
                   case. Where execution hinges on the resolution
                   of a constitutional issue, mere recitation of the
                   Barefoot standard should not discharge a federal
                   court's duty to conduct a meaningful
                   appealability determination, particularly where
                   other judges have already differed on the issues
                   David seeks to appeal. Instead of merely giving
                   the recitation of the Barefoot language
                   talismanic effect, courts should consider the
                   actual procedural history of the case to
                   determine if the issues raised are debatable.
                   Other courts have done so. (41)

                   A certificate of appealability on this issue was
                   further justified because in Thompson v.
                   Oklahoma, (42) the Supreme Court had
                   previously granted certiorari on the issue
                   whether the admission of a gruesome
                   photograph at the sentencing phase of a capital
                   murder case violated a defendant's
                   constitutional rights. Ultimately, the majority in
                   Thompson v. Oklahoma never reached the
                   gruesome photograph issue, reversing the death
                   sentence on other grounds (relating to the youth
                   of the offender at the time of the offense). (43)
                   The decision to grant certiorari demonstrates
                   that a substantial constitutional issue is involved
                   and that this issue is one that is debatable
                   among reasonable jurists. In fact, the issue
                   presented here is even more substantial in view
                   of the fact that the Faheen photograph involved
                   the victim of a separate crime for which David
                   was not on trial and had not been convicted. At a
                   minimum, the federal courts should have
                   issued David a certificate of appealability,
                   because courts have reached different
                   conclusions on this significant constitutional
                   issue. (44) Because the courts have denied him a
                   forum on this constitutional grievance, David
                   presents it to the Executive Branch.

                   Matters devoid of probative value introduced in
                   a capital sentencing hearing solely to inflame the
                   passions of the jury are generally
                   unconstitutional and are per se prejudicial. (45)
                   At the very least, reasonable jurists can--and in
                   fact already have--differed on whether evidence
                   introduced for such a purpose violated David's
                   constitutional rights in this case. The Faheen
                   photograph's only purpose was to show the jury
                   the aftermath of a bombing for which David was
                   not on trial and had not been convicted. "How
                   could it more clearly appear that the prosecution
                   had no purpose in mind other than shock value in
                   introducing the pictures into evidence?" (46)
                   Because the Faheen photograph inflamed the
                   passions of the jurors before they determined
                   that David should die, no amount of aggravating
                   factors could erase the vice. (47) The admission
                   of the photograph "so affect[ed] the fundamental
                   fairness of the sentencing proceeding as to
                   violate the Eighth Amendment." (48)

                   Even the majority opinion of the Missouri
                   Supreme Court in David's direct appeal
                   recognized that the Faheen photograph was
                   "gruesome," demonstrating an awareness of the
                   picture's potential prejudicial impact. (49) The
                   majority ignored this impact by repeating the
                   same litany recited by the trial court when the
                   photograph was challenged below: "[I]n the
                   penalty phase, the jury is entitled to receive as
                   much information as possible in order to make
                   an informed decision as to punishment." (50) This
                   reasoning is seriously flawed, however, in this
                   death penalty case, because the Faheen
                   photograph did not relate to a crime for which
                   David was on trial, and the "state may seek
                   retribution only in relation to the
                   blameworthiness of the actor in relation to the
                   crime for which the state seeks to impose the
                   death penalty." (51)

                   Because the Faheen photograph is per se
                   prejudicial, "harmless error" analysis is
                   inapplicable. David was subsequently convicted
                   of the Faheen murder, but was not sentenced to
                   death even though the prosecution sought the
                   death penalty. Because the admission of the
                   Faheen photograph at David's penalty phase in
                   his trial for the murder of Mr. Michaels was per
                   se prejudicial, his subsequent conviction is
                   irrelevant and the harmless error test is not
                   applicable. In any event, any harmless error
                   analysis should be conducted in light of the facts
                   as they stood at the time of the trial in question.
                   At that time, David had not been convicted of
                   the Faheen bombing. (52) The Faheen
                   photograph was entirely irrelevant, and the
                   inflammatory character of the photograph posed
                   a constitutionally unacceptable risk that the jury
                   would arbitrarily sentence David to die.

                   Even assuming that admission of the Faheen
                   photograph could be reviewed for harmless
                   error, the admission of the Faheen photograph
                   had a "substantial and injurious effect or
                   influence in determining the jury's verdict," and
                   accordingly was not harmless. (53) The Missouri
                   Supreme Court's struggle to conclude that any
                   error was harmless was not persuasive, as Judge
                   Blackmar explained:

                   The principal opinion labors to justify the
                   admission, or to find a ground for affirmance, but
                   the effort is not convincing. It is first suggested
                   that the gruesome pictures properly introduced
                   at the guilt phase somehow mitigate the effect of
                   the introduction of pictures of another killing
                   which is not on trial. It is suggested that a little
                   more gore would make no difference. I cannot
                   accept this argument when a man is on trial for
                   his life.
 
 

                   Nor is the effect of the pictures minified because
                   the trial judge told the jury, correctly, that the
                   defendant had not been convicted of the murder
                   of Faheen. The submission of the pictures, then,
                   serves to say to the jury, "these illustrate the
                   aftermath of a bomb killing which the defendant
                   may have participated in." How could it more
                   clearly appear that the prosecution had no
                   purpose in mind other than shock value in
                   introducing the pictures into evidence? (54)
 
 

                   Furthermore, the Missouri Supreme Court and
                   the United States district court incorrectly relied
                   on the jury's finding of several aggravating
                   factors other than David's RICO conviction, in
                   holding that any error in admitting the Faheen
                   photograph was harmless. The Faheen
                   photograph was so grossly or conspicuously
                   prejudicial that it fatally infected the sentencing
                   phase of David's trial. Thus, it cannot be
                   assumed that the jurors confined their inflamed
                   passions to finding the RICO conviction was a
                   non-statutory aggravating factor and set their
                   passions aside when looking at the other
                   aggravating factors. (55)

                   One juror, Ms. Donna Denando, executed an
                   affidavit that was submitted to the district court
                   as an attachment to David's First Amended
                   Petition for Writ of Habeas Corpus. In her
                   affidavit, Ms. Denando advised the court that
                   "[h]ad the photograph of George Faheen's body
                   not been admitted into evidence, . . . there [was]
                   a reasonable likelihood that [she] would not have
                   been inclined to recommend a death sentence
                   against [David]." (Attachment S). Although the
                   district court indicated it could not consider the
                   affidavit based on Federal Rule of Evidence
                   606(b), it cannot be said as a matter of fact that
                   the admission was "harmless." (56)

                   Admission of the Faheen photograph during the
                   penalty phase of David's trial is a sufficient
                   reason for commuting David's death sentence.
                   At a minimum, reasonable jurists on the United
                   States Supreme Court and other courts,
                   including the Missouri Supreme Court in David's
                   direct appeal, have differed on this issue. The
                   federal district court and the court of appeals
                   erred in denying David a certificate of
                   appealability, particularly when the David's life
                   hangs in the balance. (57) Clemency is an
                   appropriate remedy.

                     1.David received representation at trial that
                        was constitutionally ineffective, but the
                        federal courts refused to apply mandatory
                        precedent from the Supreme Court to
                        evaluate this ground for relief.
 
 

                   In Strickland v. Washington, (58) the United
                   States Supreme Court established that in order
                   to succeed on an ineffective assistance of
                   counsel claim, a defendant must demonstrate
                   that counsel's performance was deficient and
                   that the deficient performance prejudiced the
                   defendant. (59) With regard to the prejudice
                   element, "[t]he defendant must show that there
                   is a reasonable probability that, but for counsel's
                   unprofessional errors, the result of the
                   proceeding would have been different." (60)
                   Accordingly, "a court hearing an ineffectiveness
                   claim must consider the totality of the evidence
                   before the judge or jury." (61) The Supreme
                   Court also established the ineffective assistance
                   of counsel standard for capital cases:

                   When a defendant challenges a death sentence
                   such as the one at issue in this case, the question
                   is whether there is a reasonable probability that,
                   absent the errors, the sentencer. . . would have
                   concluded that the balance of aggravating and
                   mitigating circumstances did not warrant death.
                   (62)
 
 

                   This holding contemplated the consideration of
                   multiple errors in assessing the constitutional
                   implications of trial counsel's ineffective
                   assistance. As the United States Court of
                   Appeals for the Seventh Circuit has explained:

                   [A]n attorney's individual errors may not,
                   looking at the trial as a whole, cast doubt on the
                   reliability of the result, and therefore would not
                   merit reversal. On the other hand, even if
                   individual acts or omissions are not so grievous
                   as to merit a finding of incompetence or
                   prejudice from incompetence, their cumulative
                   effect may be substantial enough to meet the
                   Strickland test. (63)
 
 

                   Consistent with this holding, some federal courts
                   of appeals have concluded that under Strickland
                   the cumulative effect of trial counsel's errors can
                   deprive a defendant of his or her constitutional
                   right to effective assistance of counsel. (64)
                   Jurists in other circuits, including the Eighth
                   Circuit, have found that the cumulative effect of
                   trial counsel's errors can never deprive a
                   defendant of a fair trial. (65)

                   Following this contrary Eighth Circuit precedent,
                   the federal district court held that trial counsel's
                   cumulative error was not an appropriate
                   measure of the constitutional effectiveness of
                   counsel's assistance. (66) The district court
                   determined that if each error individually is
                   insufficiently egregious to violate a defendant's
                   constitutional rights, then no aggregation of such
                   errors--no matter how numerous--could rise to
                   the level of constitutionally defective assistance.
                   David argued in his certiorari petition that this
                   was constitutionally incorrect, but the Supreme
                   Court denied certiorari.

                   David was prejudiced by the cumulative effect of
                   his trial counsel's acts and omissions. Such
                   errors, either individually or in the aggregate,
                   give rise to a reasonable probability that, absent
                   such errors by counsel, the jury would have had
                   a reasonable doubt respecting guilt.
                   Furthermore, even if the jury found David guilty,
                   there is a reasonable probability that the jury
                   would have spared his life.

                   David's counsel committed numerous other
                   errors. David's trial counsel delegated much of
                   the trial preparation to a law student, not
                   admitted to practice law, let alone qualified to
                   work on a death penalty case. (Now we know the
                   law student was laboring under the effects of
                   untreated chemical dependency.) Trial counsel
                   also deceived David into believing that he would
                   call alibi witnesses, and that David would be
                   allowed to testify to his innocence. Instead, in a
                   reckless attempt to negate the prosecution's
                   case in the guilt phase, trial counsel presented
                   mental health evidence that was gathered at the
                   last minute for use, if necessary, in David's
                   penalty phase. (Attachment P at 135-64.)
                   Counsel also refused to present evidence
                   demonstrating that David, a man of substantial
                   girth, would not have even fit under Jimmy
                   Michaels, Sr.'s car to plant the bomb that killed
                   the elder Mr. Michaels, as he was described to
                   have done by the prosecution's witnesses.
                   Moreover, during the trial, the prosecutor ran
                   roughshod over David's ineffectual trial counsel,
                   at one point telling counsel in virtually so many
                   words to "sit down and shut up," which David's
                   trial counsel did. (67) Trial counsel simply did not
                   subject the prosecution's case to a "meaningful
                   adversarial testing" in either the guilt or
                   punishment phase of David's trial. (68)

                   The cumulative effect of these errors created
                   unreliable proceedings due to a breakdown in
                   the adversarial process. Accordingly, the
                   process cannot be trusted to have produced a
                   just result, particularly where the sentence is
                   death. (69) Not only could reasonable jurists
                   differ as to whether any individual error by
                   counsel deprived David of a fair trial, but
                   reasonable jurists have differed concerning the
                   amenability of cumulative error to habeas corpus
                   scrutiny (as evidenced by the disagreement
                   between the circuits). Where the courts are split
                   on an issue, the denial of a certificate of
                   appealability without consideration of the
                   contrary conclusions reached by other courts
                   was error. (70) Accordingly, the district court and
                   the court of appeals improperly denied David a
                   certificate of appealability. David appeals to the
                   Governor as being learned in the law and
                   constitutionally authorized to correct these
                   errors, either by commuting
                   his sentence or appointing a board of inquiry to
                   examine them.
 
 

                     1.David did not have the full course of
                        judicial review of his conviction and
                        sentence which would give the public the
                        necessary confidence that they were
                        obtained without constitutional violation.
 
 

                          1.The result of David's state
                             post-conviction relief proceedings
                             has been cast into doubt by credible
                             allegations of conflict of interest.
 
 

                   In his federal litigation and in a second state
                   habeas corpus proceeding, David's lead
                   litigation attorneys have relied on Mr. Bassett's
                   declaration and affidavit as substantiating
                   David's claims regarding a conflict of interest on
                   the part of his post-conviction relief counsel,
                   Richard H. Sindel. (Attachment R at 10-15.)
                   Specifically, Mr. Bassett states that, at David's
                   29.15 state post-conviction proceedings, Mr.
                   Sindel did not ask Mr. Bassett about his history
                   of chemical dependency, and Mr. Bassett did not
                   volunteer information about it. (Attachment F, ?
                   23.) Had Mr. Sindel specifically asked Mr.
                   Bassett about his chemical dependency, Bassett
                   would have answered truthfully. (Attachment F,
                   ? 24.) David has pleaded that, absent Mr.
                   Sindel's conflict of interest, David would have
                   learned of Mr. Bassett's drug abuse at his 29.15
                   hearing, and would have been granted relief.

                   Counsel laboring under a conflict of interest is
                   worse than no counsel at all. Here, Missouri
                   provided a petitioner only one forum in which to
                   raise claims of ineffective assistance of trial
                   counsel, and David has presented sworn
                   evidence that his counsel in the proceeding had a
                   conflict of interest which prevented him from
                   investigating and cross examining the key player
                   on the defense team on whether that player had
                   used heroin or cocaine in a way that adversely
                   affected David's representation.

                   If the courts do not wish to provide a forum for
                   resolving the issues David has sought raised in
                   state and federal court after receiving the
                   Bassett affidavit, that does not mean he should
                   die. It is within the constitutional and statutory
                   powers of the Governor to commute his sentence
                   or to appoint a board of inquiry to resolve this
                   dispute. Clemency should be granted.

                          1.The Eighth Circuit has denied David
                             appellate review by taking an
                             isolated position that the
                             appeal-limiting provisions of the
                             Antiterrorism and Effective Death
                             Penalty Act of 1996 apply
                             retroactively.
 
 

                   On April 24, 1996--well after David had filed his
                   pro se petition for a writ of habeas corpus in
                   1992--President Clinton signed into law the
                   Antiterrorism and Effective Death Penalty Act
                   of 1996 (AEDPA). AEDPA includes, among
                   other things, amendments to the general habeas
                   corpus provisions in chapter 153 of title 28 of the
                   United States Code. (71) In general, the
                   amendments to chapter 153, along with
                   amendments to Federal Rule of Appellate
                   Procedure 22(b), make it more difficult for
                   prisoners to obtain appellate consideration of
                   federal constitutional and statutory claims in
                   federal courts. Among other things, 28 U.S.C. ß
                   2253(c)(3) provides that a certificate of
                   appealability shall indicate which specific issue
                   or issues satisfy the showing required by
                   paragraph (2), i.e., "a substantial showing of the
                   denial of a constitutional right."

                   In Lindh v. Murphy, 117 S. Ct. 2059 (1997), the
                   Supreme Court made clear that the new habeas
                   provisions do not apply to cases that were
                   pending before the effective date of AEDPA:

                   The statute reveals Congress' intent to apply the
                   amendments to chapter 153 only to such cases
                   as were filed after the statute's enactment
                   (except where chapter 154 [the special death
                   penalty provisions not applicable to this case]
                   otherwise makes select provisions of chapter
                   153 applicable to pending cases). (72)
 
 

                   Thus, the habeas corpus limitation provisions of
                   AEDPA do not apply to cases filed before
                   AEDPA's effective date of April 24, 1996, unless
                   the text of the statute makes a given provision
                   applicable to cases pending on the effective
                   date. (73) Based on Lindh, all cases filed before
                   the enactment of AEDPA fall under the rules
                   applicable to certificates of probable cause.

                   In Tiedeman v. Benson, (74) the Eighth Circuit
                   held that the new certificate of appealability
                   provisions set forth in 28 U.S.C. ß 2253(c) should
                   be applied retroactively to petitions for habeas
                   corpus filed before AEDPA's enactment. The
                   Eighth Circuit concluded that Lindh v. Murphy
                   did not resolve the question of whether the
                   AEDPA amendments to chapter 153 apply
                   retroactively, and that the circuit courts may
                   make this determination on an
                   amendment-by-amendment basis. 122 F.3d at
                   520-21. The Eighth Circuit's analysis turns on
                   the word "generally" in the penultimate
                   sentence of Lindh. See Lindh, 117 S. Ct. at 2068
                   ("the new provisions of chapter 153 generally
                   apply only to cases filed after the Act became
                   effective" (emphasis added)). From this use of
                   "generally" the Tiedeman court determined that
                   the Supreme Court intended to say that not all
                   provisions of Chapter 153 apply only
                   prospectively. The Eighth Circuit then applied
                   typical rules of
                   statutory construction (e.g., distinguishing
                   between substantive and procedural
                   amendments) to reach the conclusion that 28
                   U.S.C. ß 2253(c) should have retroactive
                   application. (75)

                   The fundamental message of Lindh is that
                   courts need not resort to a retroactivity analysis
                   when congressional intent is clear and
                   application of the statute in accordance with that
                   intent would not violate the Constitution. The
                   Supreme Court's analysis in Lindh undermines
                   the Tiedeman court's determination that the
                   "generally" language permits application of
                   arguably procedural sections such as ß 2253(c)
                   to pending cases. The word "generally" merely
                   reflects that fact that one could not baldly assert
                   that none of chapter 153 amendments could
                   have retroactive effect, given that ß 2264(b)
                   expressly provided for such retroactivity in
                   certain instances. Thus, the most plausible
                   reading of the Lindh Court's language is that
                   chapter 153 amendments should not be given
                   retroactive effect unless expressly provided for
                   in the text of the Act. (76)

                   The Tiedeman decision conflicts with the
                   Supreme Court's decision in Lindh, and the
                   decisions of every other circuit that has decided
                   the issue. (77) Based on this overwhelming circuit
                   consensus as to the meaning of Lindh and the
                   non-retroactivity of ß 2253(c), it is clear that
                   AEDPA does not apply to this case, and that the
                   appropriate vehicle for screening David's case
                   for appellate review was an application for a
                   certificate of probable cause.

                   Under the pre-AEDPA law, no Missouri capital
                   habeas corpus petitioner was denied an appeal
                   from the district court's denial of relief. David
                   has been severely prejudiced by the Eighth
                   Circuit's formulation and application of an
                   aberrant rule that has denied him the
                   opportunity for review by an appellate court
                   after briefing and argument.

                   David has not had the level of review we count
                   on to assure that federal constitutional rights are
                   respected in capital cases. The federal courts
                   have failed to follow mandatory Supreme Court
                   precedent; the Supreme Court has yet either to
                   correct the Eighth Circuit's isolated position or
                   to hold that it is, after all, correct and should be
                   applied nationwide. In light of its own language
                   in Lindh the latter is an unlikely prospect.

                   This is not a case in which a petitioner has
                   received the full course of federal review, and
                   has lost. It is one in which a federal appellate
                   court has applied a new rule to David's case
                   when no other federal appellate court would do
                   so, and had denied him appellate review of his
                   federal constitutional claims altogether. Rather
                   than avoiding the arbitrary infliction of the death
                   penalty, as appellate proceedings are supposed
                   to do, the Eighth Circuit's position has added a
                   new element of arbitrariness. David has
                   demonstrated the constitutional violations in his
                   trial and the additional grounds for exercising
                   clemency several times over. He should not be
                   executed.
 
 
 
 

                   WHEREFORE, the applicant prays the
                   Governor for his order as aforesaid, either
                   commuting his sentence from death to life
                   without parole or appointing a board of inquiry;
                   or, in the alternative, for a stay pending an
                   examination of his competency to be executed.

                             Respectfully submitted,

                     JOSEPH P. TEASDALE JOHN WILLIAM
                                    SIMON
 
 

                               Teasdale & Lafferty

                                   Suite 323

                    222 West Gregory Boulevard 200-A East High
                                     Street

                     Kansas City, Missouri 64114 Jefferson City,
                                 Missouri 65101
 
 

                           (816) 822-0073 (573) 632-6777

                       FAX(816) 822-0086 FAX (573) 632-6778
 
 

                     Attorneys for Applicant 1. The United States
                       District Court for the Eastern District of
                      Missouri appointed former United States
                      Attorney Barry A. Short of Lewis, Rice &
                     Fingersh, L.C., to represent the applicant in
                       seeking relief in federal habeas corpus.
                   Subsequently the Court appointed Mr. Simon as
                     co-counsel in the federal litigation. Messrs.
                      Teasdale and Simon were retained by the
                    applicant's family to represent him in seeking
                       executive clemency. Mr. Short and his
                      colleagues at Lewis, Rice & Fingersh have
                    provided generous support in the preparation of
                    this application, and join in it. 2. The original of
                   this letter has previously been hand-delivered to
                    the Chief Counsel. A true and correct copy of it
                     is submitted herewith as Attachment A. 3. An
                       affidavit of Richard D. Wetzel, Ph.D., is
                    submitted with the application as Attachment B.
                     Dr. Wetzel's curriculum vitae is submitted as
                                 Attachment C.
                   4. See generally Attachment D (affidavit of Carol
                    Rachid, the oldest surviving member of David's
                   immediate family). 5. Trial Transcript, Vol. X, at
                    174. 6. Herrera v. Collins, 506 U.S. 390 (1993).
                       7. Counsel's thematic discussion of the
                    Antiterrorism and Effective Death Penalty Act
                       of 1996, Pub. L. 104-132, 110 Stat. 1214
                   (AEDPA), appears in this application at 50-55. 8.
                     18 U.S.C. ßß 1961-68. 9. Attachment E at 1
                     (Affidavit of Gerald Wayne Bassett executed
                      August 4, 1993). 10. See State v. Anthony
                   Leisure, 810 S.W.2d 560 (Mo. App. 1991); State
                     v. Paul Leisure, 772 S.W.2d 674 (Mo. App.
                    1989). 11. See State v. Leisure, 749 S.W.2d 366
                      (Mo. banc 1988) (direct appeal); Leisure v.
                     State, 828 S.W.2d 872 (Mo. banc 1992) (Rule
                      29.15). 12. State v. Leisure, 749 S.W.2d at
                     383-85 (Blackmar, J., joined by Welliver, J.,
                                  concurring in
                    part and dissenting in part). 13. 749 S.W.2d at
                    383-84 (citing Booth v. Maryland, 482 U.S. 496
                     (1987)). 14. Id. at 385. 15. Id. at 829. 16. 119
                    S.Ct. 1939 (1999). 17. Subsequent references in
                     the text of this subsection I.A. are from the
                    affidavit of Carol Rachid, the eldest surviving
                        member of David's immediate family.
                      Attachment D, ? 6. 18. Counsel submit the
                    transcript of Dr. Cuneo's direct examination as
                    Attachment K. 19. Counsel submit Dr. Wetzel's
                    curriculum vitae as Attachment C. Dr. Cuneo's
                        basic credentials appear in his direct
                      examination transcript (Attachment K) at
                     92-101. 20. Gregg v. Georgia, 428 U.S. 153,
                      183-86 (1976) (Stewart, J., announcing the
                   judgment). 21. Id. at 187 (emphasis supplied). 22.
                      Ford v. Wainwright, 477 U.S. 399, 406-10
                                    (1986).
                    23. State v. Leisure, 749 S.W.2d 366, 370 (Mo.
                    banc 1988). 24. See State v. Paul Leisure, 772
                    S.W.2d 674 (Mo. App. 1989); State v. Anthony
                    Leisure, 810 S.W.2d 560 (Mo. App. 1991). 25.
                    See Pilchak v. Camper, 935 F.2d 145 (8th Cir.
                    1991). In Pilchak, the defendant had received a
                      life sentence while the more culpable party
                      received a short prison sentence and had
                    already completed serving his sentence by the
                    time the Eighth Circuit heard the appeal of the
                    district court's grant of a writ of habeas corpus.
                     The Eighth Circuit affirmed, concluding that
                    Pilchak's sentence was "fundamentally unjust,"
                     and stating that elements of equal protection,
                        substantive due process, and unusual
                    punishment supported its position. 935 F.2d at
                    148 & n.5. 26. Persons with I.Q.s less than 75
                    are presumed to be retarded, according to the
                    American Association of Mental Retardation.
                      See Wills v. Texas, 511 U.S. 1097, 1098 n.1
                                     (1994)
                      (Blackmun, J., dissenting). 27. See State v.
                       Leisure, 749 S.W.2d at 381-82. (See also
                    Respondent's Exhibit A, Trial Transcript, Vol.
                    VII, pp. 134-146.) 28. Respondent's Exhibit A,
                      Trial Transcript, Vol. VII, pp. 134-46. 29.
                   Conversely, when multiple people have not been
                      charged with the same crime, the Missouri
                      Supreme Court has reviewed sentences in
                     similar crimes. See, e.g., State v. Mallett, 732
                     S.W.2d 527, 542-43 (Mo. banc 1987). 30. See
                   Harmelin v. Michigan, 501 U.S. 957, 995 (1991)
                     (observing that there is qualitative difference
                    between death and all other penalties). 31. See
                    Parker v. Dugger, 498 U.S. 308, 321 (1991). 32.
                   29.15 Transcript at 35 & 37. 33. 29.15 Transcript
                    at 164. 34. Counsel submitted the declaration to
                       the federal court, and the affidavit to the
                    Missouri Supreme Court in a petition for a writ
                     of habeas corpus. Counsel submits a true and
                     correct copy of the Joseph affidavit with this
                      application as Attachment G. 35. Counsel
                    submitted the declaration to the federal court,
                   and the affidavit to the Missouri Supreme Court
                   in a petition for a writ of habeas corpus. Counsel
                    submits a true and correct copy of the Coleman
                    affidavit with this application as Attachment H.
                     36. Counsel have filed the declaration in the
                    federal litigation, and submit the original of the
                      August 16, 1999, Bassett affidavit with this
                      application as Attachment F. 37. Counsel
                     provide a transcript of Mr. Bassett's direct
                    examination as Attachment P. 38. 463 U.S. 880,
                     893 (1983). 39. Thompson v. Oklahoma, 487
                        U.S. 815, 821 (1988). 40. Robertson v.
                    California, 493 U.S. 879 (1989) (Marshall, J.,
                    joined by Brennan, J., dissenting from denial of
                      certiorari) (noting that "the States' highest
                    courts have reached varying conclusions on this
                    issue"); Miranda v. California, 486 U.S. 1038
                               (1988) (Marshall, J.,
                    joined by Brennan, J., dissenting from denial of
                      certiorari) (arguing that "the admission of
                   unadjudicated-crimes evidence at the sentencing
                     phase of a capital trial is difficult to reconcile
                      with the unique constitutional concern for
                     reliability in death sentencing proceedings").
                   State courts have divided on the issue. See Note,
                       Unreliable and Prejudicial: The Use of
                      Extraneous Unadjudicated Offenses in the
                    Penalty Phase of Capital Trials, 93 Colum. L.
                    Rev. 1249, 1250 (1993) (surveying approaches
                    taken by various states in determining whether
                    unadjudicated criminal conduct is admissible in
                     penalty phase of capital trials). A number of
                    states have established a per se prohibition on
                      the introduction of unadjudicated criminal
                     offenses in the penalty phase of capital trials.
                     See, e.g., State v. Bobo, 727 S.W.2d 945, 952
                      (Tenn. 1987) (holding that presumption of
                      innocence precludes use of unadjudicated
                       offenses in capital sentencing); State v.
                   Bartholomew, 683 P.2d 1079, 1086 (Wash. 1984)
                      (en banc) (same); Cook v. State, 369 So. 2d
                       1251, 1257 (Ala. 1978) (same); State v.
                     McCormick, 397 N.E.2d 276, 281 (Ind. 1979)
                     (same). Other states have either decided to
                   always permit use of such evidence or permit the
                    evidence only upon a showing that it is reliable
                    under varying standards. 93 Colum. L. Rev. at
                    1267. 41. See, e.g., Tankleff v. Senkowski, 135
                   F.3d 235 (2d Cir. 1998) (holding that because the
                   intermediate state court split three-to-two on two
                    issues and the district court had characterized
                   another issue as a "close call," "[i]t follows that
                   [petitioner's] claims are all properly before [the]
                     court"); Story v. Kindt, 970 F. Supp. 435, 465
                   (E.D. Va. 1997) ("[T]he issue is one about which
                    reasonable minds could differ, as demonstrated
                     by Judge Cowen's dissent from the Court of
                     Appeals' decision remanding the case to this
                     Court. The Commonwealth concedes that a
                      certificate of probable cause should issue,
                    particularly given Judge Cowen's dissent[.]");
                      Palmariello v. Superintendent, No. Civ. A.
                       85-1994-MC, 1988 WL 42393, at *2 (D.
                   Mass. Apr. 11, 1988) ("In light of the dissenting
                          opinion filed by a member of the
                   Commonwealth's highest appellate court and the
                   nature of the penalty, I hereby grant petitioner's
                    motion for issuance of a certificate of probable
                   cause."); see also Lozada v. Deeds, 498 U.S. 430,
                     432 (1991) (reversing denial of certificate or
                    probable cause because circuits were in conflict
                     and court denying appeal had failed to cite or
                   analyze authority contrary to its holding). 42. See
                      Thompson v. Oklahoma, 487 U.S. 815, 821
                       (1988). The photographs in question in
                    Thomspon showed the condition of the victim of
                    the crime for which the defendant was on trial.
                        487 U.S. at 878 (Scalia, J., dissenting)
                     (describing gun shot wounds in the head and
                    chest and knife slashes in the head, chest and
                    abdomen). 43. Id. 44. See Lozada v. Deeds, 498
                      U.S. at 432 (reversing denial of certificate
                     because circuits were in conflict and denying
                      court had failed to cite or analyze contrary
                                   authority).
                   45. See Booth v. Maryland, 482 U.S. 496 (1987),
                       overruled on other grounds by Payne v.
                     Tennessee, 501 U.S. 808 (1991). In Payne v.
                     Tennessee, the Supreme Court overturned its
                    ruling in Booth v. Maryland that victim-impact
                      statements are per se prejudicial in capital
                    sentencing, but not because it changed its view
                   on the per se unconstitutionality of evidence that
                     serves solely to inflame the jurors' passions.
                      Rather, the Court held that victim-impact
                    statements are probative of blameworthiness,
                    and, therefore, not introduced solely to inflame
                     the jury. Payne v. Tennessee, 501 U.S. at 827.
                    The Payne Court disagreed with the conclusion
                    in Booth that victim-impact statements had no
                      relevance to capital sentencing, but clearly
                   stated that for evidence to be relevant it must go
                    to blameworthiness, and evidence that does not
                    is barred by the Eighth Amendment. In fact, the
                     Payne Court let stand Booth's determination
                                  that opinions
                      of the victim's family about the crime, the
                    defendant and the appropriate sentence are per
                    se barred by the Eighth Amendment. Payne v.
                      Tennessee, 501 U.S. at 833 (O'Connor, J.,
                    concurring), 835 n.1 (Souter, J., concurring). 46.
                       State v. Leisure, 749 S.W.2d at 383-84
                   (Blackmar, J., joined by Welliver, J., concurring
                       in part and dissenting in part). 47. Id. 48.
                      Caldwell v. Mississippi, 472 U.S. 320, 340
                    (1985). 49. State v. Leisure, 749 S.W.2d at 379.
                    50. Id. 51. Beam v. Paskett, 3 F.3d 1301, 1308
                   (9th Cir. 1993), citing Tison v. Arizona, 481 U.S.
                   137, 149 (1987). 52. See Booth v. Maryland, 482
                    U.S. at 503 (holding that an evidentiary error in
                     capital sentencing constitutes a per se Eighth
                      Amendment violation when the evidence is
                                   irrelevant
                    and it "creates a constitutionally unacceptable
                    risk that the jury may impose the death penalty
                     in an arbitrary and capricious manner"). 53.
                   Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
                      54. State v. Leisure, 749 S.W.2d at 384-85
                   (Blackmar, J., joined by Welliver, J., concurring
                    in part and dissenting in part). 55. See State v.
                   Leisure, 749 S.W.2d at 384 (Blackmar, J., joined
                   by Welliver, J., concurring in part and dissenting
                      in part) ("Weakest of all is the attempt to
                   minimize the importance of the pictures because
                        the jury found sufficient aggravating
                    circumstances to authorize the death sentence.
                    The vice of the pictures is in their tendency to
                   arouse the passions. This vice cannot be erased,
                    however many statutory circumstances the jury
                   finds."). 56. See Mendez v. Collins, 947 F.2d 189,
                    190 (5th Cir. 1991) (considering juror affidavits
                    submitted in support of federal habeas corpus
                                    petition).
                   57. See Harmelin v. Michigan, 501 U.S. 957, 995
                      (1991) (observing that there is qualitative
                       difference between death and all other
                     penalties). 58. Strickland v. Washington, 466
                   U.S. 668 (1984). 59. Id. at 687. 60. Id. at 694. 61.
                   Id. at 695. 62. Id. at 695. 63. Crisp v. Duckworth,
                    743 F.2d 580, 583 (7th Cir. 1984). 64. See, e.g.,
                    Williams v. Washington, 59 F.3d 673, 682 (7th
                    Cir. 1995) ("In making [a showing of prejudice
                    caused by ineffective assistance of counsel], a
                    petitioner may demonstrate that the cumulative
                    effect of counsel's individual acts or omissions
                     was substantial enough to meet Strickland's
                   test."); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d
                      Cir. 1991) (holding that all of a defendant's
                    allegations of ineffective assistance should be
                        reviewed together to give the courts
                         an opportunity to consider "all the
                    circumstances and the cumulative effect of all
                        the claims as a whole"). 65. See, e.g.,
                   Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th
                    Cir. 1996); United States v. Gutierrez, 995 F.2d
                   169, 173 (9th Cir. 1995); Jones v. Stotts, 59 F.3d
                     143, 147 (10th Cir. 1995). 66. Leisure, 990 F.
                   Supp. 769, 794-95 (E.D. Mo. 1998) ("Cumulative
                    error is not grounds for habeas relief because
                      'each habeas claim must stand or fall on its
                    own.'") (quoting Girtman v. Lockhart, 942 F.2d
                    468, 475 (8th Cir. 1991)). 67. The exchange is
                    reported at pages 181-82 of volume VIII of the
                     trial transcript. Mr. Zvibleman attempted to
                    make an objection. The prosecutor responded,
                       "Mr. Zvibleman, sit down please." He
                    continued: "Your Honor, I object to this." The
                     judge overruled his objection. The prosecutor
                       said again, "Sit down." The judge said,
                   "Proceed." 68. United States v. Cronic, 466 U.S.
                                 648, 656 (1984)
                     69. See Strickland, 466 U.S. at 696. 70. See
                    Lozada v. Deeds, 498 U.S. at 432. 71. AEDPA
                   also includes a new chapter 154, which creates a
                    fast track procedure for capital cases in states
                     that adopt provisions for the appointment of
                     qualified counsel for capital defendants in the
                    state courts. Chapter 154 is inapplicable to this
                    case. 72. 117 S. Ct. at 2063 (emphasis added).
                      73. Id. 74. 122 F.3d 518 (8th Cir. 1997) 75.
                      Tiedeman, 122 F.3d at 521. 76. See United
                     States v. Skandier, 125 F.3d 178, 182 (3d Cir.
                     1997). 77. See Martin v. Bissonette, 118 F.3d
                    871, 874 (1st Cir. 1997); Tankleff v. Senkowski,
                     135 F.3d 235, 241-42 (2d Cir. 1998); United
                   States v. Skandier, 125 F.3d 178, 181-82 (3d Cir.
                                 1997); Love v.
                   Morton, 112 F.3d 131, 135 (3d Cir. 1997); Smith
                    v. Moore, 137 F.3d 808, 812 n.1 (4th Cir. 1998);
                    Green v. Johnson, 116 F.3d 1115, 1119-20 (5th
                     Cir. 1997); Norris v. Schotten, 146 F.3d 314,
                     322-23 (6th Cir. 1998); Rogers v. Howes, 144
                       F.3d 990, 992 n.2 (6th Cir. 1998); Koo v.
                      McBride, 124 F.3d 869, 872 & n.3 (7th Cir.
                    1997); Robbins v. Smith, 125 F.3d 831, 833 (9th
                    Cir. 1997); Sellers v. Ward, 135 F.3d 1333, 1336
                   (10th Cir. 1998); United States v. Kunzman, 125
                    F.3d 1363, 1364 n.2 (10th Cir. 1997); Hardwick
                    v. Singletary, 122 F.3d 935, 936 (11th Cir.) (per
                     curiam), modified on other grounds, 126 F.3d
                    1312 (11th Cir. 1997) (per curiam); Crowell v.
                   Walsh, 151 F.3d 1050, 1051-52 (D.C. Cir. 1998).

                    



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