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