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
     &n