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TO THE HONORABLE
BOB HOLDEN, GOVERNOR OF MISSOURI:
COMES NOW the applicant, Mose Young, Jr., by and through
his attorneys, Joseph Margulies, Sean D. O'Brien, and John William Simon,
and petitions the Governor for his order staying the execution presently
scheduled for April 25, 2001, and appointing a Board of Inquiry, pursuant
to Mo. Rev. Stat. § 552.070; and for his Order commuting the sentence
of the Circuit Court of the City of St. Louis from death to life without
parole.
Mose Young was sentenced to death in a trial in which
the prosecutor used every one of his peremptory challenges to exclude African-Americans
from the jury. Mose's trial lawyer was an alcoholic who made no pretense
of being prepared; in the next case he tried, he sat silent through the
entire proceeding to protest the court's denial of his motion for a continuance.
He was disbarred, but his other client's sentence was overturned.
Mose has been a good father to his two sons, one of whom
is retarded. He has been a mediator between African-American and
white prisoners, and has prevented more deaths than he was convicted of
causing. He is worth more to the State of Missouri alive than dead.
Regardless of the broad philosophical issues involving
the death penalty, this is one case in which a consistent death-penalty
supporter can say that life without parole is enough punishment under the
circumstances-that the norms underlying the continued practice of capital
punishment do not support carrying out this execution, and that the interests
of society weigh in favor of letting this man continue to help raise his
sons and to help his fellow-prisoners get along with each other and with
the staff.
A National Perspective on This Application
The Nation is embroiled in a debate over the death penalty.
Each new day brings fresh accounts of racial bias, incompetent counsel,
and law enforcement untroubled by conscience. Roused by countless
studies, and angered by appalling anecdotes, the public increasingly doubts
whether the ultimate penalty can be administered fairly-free from the ugly
taint of racism, free from the pathetic spectacle of counsel sleeping through
his client?s trial, free from the horrifying risk of an innocent man executed.
Support for the death penalty has fallen, and across the country, momentum
gathers for a moratorium.
To date, over 1000 local, state, national, and international
organizations have joined the call for a moratorium to study the persistent
problems in the administration of the death penalty. Nearly two dozen
municipalities have called for a halt on executions, including Atlanta,
Baltimore, Buffalo, Detroit, Philadelphia, Pittsburgh, and the City and
County of San Francisco. Many of the most prominent newspapers in
the country have added their voice to this chorus, including the St. Louis
Post Dispatch, New York Times, Washington Post, Chicago Tribune, Los Angeles
Times, San Francisco Examiner, The Oklahoman, and the Sarasota Herald Tribune.
Even the conservative Washington Times has endorsed a moratorium.
(Published information compiled by Equal Justice USA, available online
at www.quixote.org/ej <http://www.quixote.org/ej>; see also www.Moratorium2000.org/news).
Nationally recognized religious leaders have called for
a moratorium, including Cardinal Mahoney in California, Cardinal Keeler
in Baltimore, Bishop Fiorenza, and Pat Robertson. Moratorium bills
have been introduced in a dozen state legislatures, including Missouri,
and passed in Nebraska and Illinois. In New Hampshire, the legislature
repealed the death penalty, the first state in the modern era to do so,
although the Governor vetoed the bill. (Published information compiled
by Equal Justice USA, available online at www.quixote.org/ej/legis2000
<http://www.quixote.org/ej/legis2000>). Prominent national and international
organizations have joined the campaign, including the American Bar Association
and the United Nations Commission on Human Rights.
In 1997, the ABA published a 147-page report on the death
penalty, and concluded that the "decisions about who will live and who
will die turn not on the nature of the offense the defendant is charged
with committing, but rather on the nature of the legal representation the
defendant receives." (Report of the American Bar Association on the
Administration of the Death Penalty at 6 (1997)). The ABA called
for an end to executions until the states implemented important reforms,
notably in minimum standards for defense counsel and the elimination of
racial disparity. Yesterday, July 10, 2000, the incoming president
of the American Bar Association renewed this call, and urged lawyers in
their states to work for a moratorium until persistent questions about
racial profiling and incompetent counsel are resolved. U.S. Lawyers
Leader Seeks Death Penalty Moratorium, New York, July 10 (Reuters).
On the national level, the Justice Department revealed
last week that it is studying the influence of racial bias in the federal
death penalty, and Senator Richard Durbin (D-Ill.) and Senate Judiciary
Chairman Orrin Hatch (R-Utah) have called for Senate Hearings on the administration
of the death penalty. Senator Patrick Leahy (D-Vt.) has introduced
The Innocence Protection Act, designed to ensure, among other things, that
people charged with a capital crime will have access to competent counsel.
In the House, Representatives Jesse Jackson, Jr., (D-Ill.) and Jan Schakowsky,
(D-Ill.) introduced legislation calling for a seven-year moratorium on
all executions while studies proceed on the fundamental inequity in the
death penalty. (Published information compiled by Moratorium 2000,
available online at www.moratorium2000.org/news <http://www.moratorium2000.org/news>).
And on July 7, 2000, the Clinton Administration announced that it would
delay the first scheduled federal execution in nearly forty years to study
the undeniable evidence of racial imbalance in the federal death penalty.
The events unfolding on the national stage provide a
fitting backdrop to Mr. Young?s case. The recurring themes in the
national debate are persistent concerns about racial disparity and incompetent
counsel. Yet both themes figure prominently in Mr. Young?s case,
and explain the result: Mose Young was prosecuted by a racist, and
defended by a drunk. But the leading men in this tragedy are themselves
a product of a broken system-a system that tolerated institutional racism,
just as it created a defense that collapsed under the weight of impossible
burdens, until defense counsel became no better-and no different-than the
sleeping lawyer. Mose Young?s trial was a mockery and a farce, and
you should not allow his execution to go forward. The execution should
be stayed and a Board of Inquiry appointed to study both the troubling
evidence of racial profiling in the selection of jurors, and the appalling
performance of Mr. Young?s attorney.
Reasons for Exercising Clemency
I. The sentence of death against Mose Young is not the
result of a fair and rational weighing of aggravating and mitigating factors
but of raw prejudice in the selection of the twelve citizens who would
make this decision-prejudice against African-Americans when they were not
in a position to defend themselves at the ballot box.
At Mose's trial the prosecutor used all nine of his opportunities
to strike a prospective juror without giving a reason to exclude African-Americans
from the jury, when Mose is an African-American and the decedents in the
pawnshop robbery of which he was convicted were white. It is impossible
to present a more compelling inference of racial discrimination than to
show that the prosecutor used 100% of these "peremptory challenges" against
people of color. The St. Louis defense bar has long contended that
behavior such as this is no fluke-that prosecutors in St. Louis deliberately
discriminate against African-Americans in jury selection.
In the judicial courts-as distinguished from this proceeding-the
fact that the prosecutor used his entire allotment of peremptory strikes
to remove people of color would arguably not support an inference of intentional
discrimination under the Fourteenth Amendment's guaranty of the equal protection
of the laws, even when it is combined with the anecdotal understanding
of the defense bar. In court-as distinguished from a clemency proceeding-such
a claim requires direct proof of discriminatory purpose, as the Supreme
Court of the United States held in Swain v. Alabama.1 This factor
is one of several in this case in which the courts have been limited by
Congress-or have created limits for themselves-that allow life-and-death
constitutional grievances to go unremedied without the intervention of
the Executive. The courts expressly rely on clemency as a backstop
when they announce such self-imposed limitations.2
Direct proof of racially discriminatory intent is notoriously
difficult to secure.3 In this case, the difficulty has been greater
still because prosecutors have maintained a strict code of silence about
their practice. Commissioner Jane Geiler's courageous decision to
break that code of silence has enabled Mr. Young, for the first time, to
establish that prosecutors in St. Louis-in his case and numerous others-routinely,
repeatedly, and deliberately excluded African-Americans from juries in
criminal cases.
Previous litigation in this case focused on whether Mr.
Young could receive the benefit of Batson v. Kentucky-the United States
Supreme Court decision setting forth the constitutional rules to apply
when a prosecutor's strikes appear to be racially motivated in a given
case.4 The Supreme Court decided Batson before Mose's appeal became
final. That question was resolved against Mose because trial counsel,
Jack Walsh, did not raise the objection necessary to preserve the issue
for review, and because Walsh had no duty under the Supreme Court decision
defining the constitutional guaranty of the "effective assistance of counsel"
to anticipate the Supreme Court's Batson decision.5 As a result,
the prosecutor's discriminatory use of his peremptory challenges was governed
by the earlier rule of Swain v. Alabama.6 Because of the culture
of silence which prevailed in the prosecuting attorney's office with respect
to its deliberate practice to discriminate against African-Americans in
the selection of jurors, that proof was beyond the reach of any competent
defense lawyer at the time of Mr. Young's trial. Commissioner Geiler's
recent appointment makes that proof available for the first time.
The relevant facts are few. In state post-conviction
proceedings, trial counsel for Mr. Young, Jack Walsh, testified that the
prosecutor in this case, Ed Rogers, used all nine peremptory challenges
allotted to the prosecution to remove African-Americans from the jury.
No one has never denied or refuted this testimony.
On June 23, 2000, Joe Margulies-one of Mr. Young's present
attorneys-spoke by telephone with Ms. Jane Geiler, and asked then Assistant
Circuit Attorney Geiler about the discriminatory use of peremptory challenges
by prosecutors within the Circuit Attorney's Office. Ms. Geiler told
Mr. Margulies she has been a prosecutor with the Circuit Attorney for the
City of St. Louis, the same office that prosecuted Mose in the name of
the State of Missouri, since late 1984 or early 1985. She joined
the office shortly after Mose's trial.
Ms. Geiler often choked back sobs as she talked.7
She told Mr. Margulies that prosecutors in that office routinely and repeatedly
used their peremptory challenges to remove blacks from criminal juries.
"Speaking slowly and emphasizing her words, Ms. Geiler said that prior
to the Supreme Court decision in Batson v. Kentucky, prosecutors in her
office 'always, always' used their strikes against blacks. Blacks,
she said, were not viewed as individuals but as a group-just as they viewed
members of certain professions, or people with advanced degrees.
People in these groups were considered presumptively hostile to the prosecution."8
Ms. Geiler stated, "[y]ou didn't have to be a racist to use all your strikes
against blacks, you just had to be a good prosecutor who wanted to win."9
Ms. Geiler was not surprised that Ed Rogers had used all nine of his strikes
against blacks, including some whom he removed without asking a single
question.
Later in the day on June 23, 2000, Mr. Margulies received
a voice mail message from Ms. Geiler, who indicated that she had recently
left a meeting with her boss (Circuit Attorney D. Joyce Hayes), and said
she had been forbidden from cooperating on behalf of Mose Young.
Ms. Geiler made it clear that if she did cooperate with Mose's attorneys,
she would have to leave the office. At Ms. Geiler's request, Mr. Margulies
called her at her home in the morning of June 24, 2000. Ms. Geiler
reaffirmed that she had crossed the line when she offered to cooperate
with Mr. Young: "There was no ambiguity. [Circuit Attorney
D. Joyce Hayes] told me if I give you a statement, I will lose my job."
Choking back tears, Ms. Geiler explained that she could not afford to lose
her job for many reasons of a highly personal nature.10 If subpoenaed
to a hearing on this matter, Ms. Geiler will testify in accordance with
her statements as set forth in Mr. Margulies' affidavit.
In related litigation, the United States Court of Appeals
for the Eighth Circuit observed that it was uncontested that the State
of Missouri-through Circuit Attorney Dee Joyce Hayes-"has deliberately
interfered with the efforts of petitioner to present evidence . . . ."11
The Eighth Circuit found it even worse than than a civil wrong: "[i]ndeed,
there is reason to think that what the Circuit Attorney did here amounts
to the crime of tampering with a witness, see Mo. Ann. Stat. § 575.270(1)."
Based on these propositions of fact-later found to be true by the district
court after a trial-the Eighth Circuit ruled that Ms. Hayes's conduct had
independent constitutional significance:
The instant complaint alleges that the defendant Hayes,
with the purpose of inducing Ms. Geiler to withhold evidence, threatened
her with loss of her job. Cf. 18 U.S.C. § 1505 (a comparable federal
statute). Such conduct on the part of a state official is fundamentally
unfair. It unconscionably interferes with a process that the State
itself has created. The Constitution of the United States does not
require that a state have a clemency procedure, but, in our view, it does
require that, if such a procedure is created, the state's own officials
refrain from frustrating it by threatening the job of a witness.
[Id. at 853.]
Counsel learned what Ms. Geiler had to say several months
ago. Ms. Geiler did not immediately become available as a witness
because of the chill which state actors placed on her testimony.
Ms. Geiler's testimony became available only recently, when she left the
Circuit Attorney's Office to accept an appointment as Commissioner for
the Twenty-Second Judicial Circuit.12
Ms. Geiler's testimony provides the proof needed to support
the Swain claim-proof that was previously beyond Mr. Young's reach.
To get to first base by making a prima facie showing under Swain, an accused
citizen must produce "[s]uch proof [that] might support a reasonable inference
that African-Americans are excluded from juries for reasons wholly unrelated
to the outcome of the particular case on trial and that the peremptory
system is being used to deny African-Americans the same right and opportunity
to participate in the administration of justice enjoyed by the white population."13
An accused citizen "is not required to show that the prosecutor always
struck every black venireman offered to him . . . but the facts must manifestly
show an intent on the part of the prosecutor to disenfranchise blacks from
traverse juries in criminal trials in his circuit."14 In federal
habeas corpus, a petitioner can make a prima facie "showing either by coming
forward with statistical evidence or by using testimony from individuals
who have witnessed the prosecutor's manner of exercising his peremptory
strikes."15
Without Ms. Geiler's testimony, redress for Mose Young's
Swain claim was beyond his reach. A senior member of the Eighth Circuit,
the Hon. Myron Bright, observed that prosecutors have too often relied
on the tough evidentiary standard of Swain to to get away with bare-faced
racial discrimination:
In case after case, this court has decried the frequency
with which we have been called upon to examine prosecutors' use of peremptory
challenges to strike black jurors from the trials of black defendants.
. . . The number of appeals in which such challenges are made indicates
that many federal prosecutors have been ignoring the Supreme Court's prohibition
against the purposeful exclusion of black jurors from the juries of black
defendants solely on account of their race. Swain v. Alabama,
380 U.S. 202 (1965); Strauder v. West Virginia, 100 U.S. (10 Otto)
[303], 25 L. Ed. 664 (1880). Prosecutors seem to have been relying on the
tough evidentiary standard of Swain to bar a defendant from successfully
demonstrating error due to a prosecutor's conduct of peremptory striking
of all or almost all potential black jurors. Prosecutors seem also
to have been relying on Swain' s evidentiary standard to insulate
themselves from being forced by the district court to provide the reasons
for their use of peremptory strikes to eliminate black jurors.16
This observation applies with special force to Mose Young's
case because the prosecution went to extraordinary lengths to enforce the
code of silence that concealed their practice and policy to discriminate
against African-Americans in the selection of trial juries. The history
of this case speaks loudly and clearly that, in Judge Bright's words, "So
far as prosecutors have relied upon the evidentiary standard in Swain to
shield themselves from being forced to relate their reasons for peremptorily
striking black prospective jurors, their reliance is neither justified
nor in good faith."17
Using the standards the courts impose on themselves,
the fact that Rogers used his peremptory challenges to exclude African-Americans
from Mose's jury was not sufficient in and of itself to establish a constitutional
violation. Commissioner Geiler's testimony provides direct evidence
of the prosecutor's intentional racial discrimination. It changes
the entire legal landscape of the racial discrimination issue in this case.
If Mose could receive judicial consideration of this claim now that the
Geiler evidence is available, under the Eighth-Circuit law, the burden
would shift to the prosecution to show that it did not discriminate (which
it cannot): when direct proof of the state's discriminatory intent
is provided, the state is no longer entitled to the presumption that it
exercised its peremptory challenges in a lawful manner.18
Mose Young cannot count on the courts to enforce the
rules in his case, because these courts frequently apply the Antiterrorism
& Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214
(AEDPA) to cases that were filed before its effective date, as Mose's was.
In his case, the retrospective application of the AEDPA to bar his due
process and equal protection claim would do little more than reward the
state for obstructing justice. But for the code of silence, he would
have had the information he needed to succeed on a Swain claim years ago.
Now he faces the denial of a judicial forum to present his federal constitutional
grievances because of the application of a statute which was not even drafted,
let alone enacted, at the time he filed his petition for federal habeas
corpus.
We all know that racial discrimination is wrong for several
reasons. First, it deprives a large segment of our population of
the right to participate in self-government. Second, it distorts
the fact-finding process by limiting the perspective of the jury to the
perspective of one group in our society. Nowhere is this evil of
racial discrimination more pronounced than in the sentencing portion of
a capital trial. Stacking the deck by artificially increasing the
number of jurors who will naturally empathize with the decedents as opposed
to the accused citizens interferes with the rational consideration of aggravating
and mitigating factors which is essential to the Supreme Court's decisions
allowing the states and the federal government to resume capital punishment.
II. Mose Young's trial lawyer was admittedly and chronically
unprepared to represent him.
Mose Young was represented by Mr. Jack Walsh, who has
since given up his license and resigned from the practice of law.
Mr. Margulies has attached an affidavit recounting his conversation with
Ms. Geiler. Most notably, she recalls Mr. Walsh as ?a functional
alcoholic,? with a running tab at a local tavern. Every night after
work-whether he was in trial or not-Mr. Walsh retreated to the familiar
comfort of his bar stool at C.J. Muggs and ?drank his sorrow away.?
This practice is confirmed by the affidavit of James McKay, who worked
at the time as a junior attorney in the same office, but who later became
its Director. McKay was drinking with Mr. Walsh during the capital
trial that followed immediately after Mr. Young?s-where Mr. Walsh sat mute
during trial, and the case was reversed for ineffective assistance.
(Affidavit of James McKay.)
Often choking back tears, Ms. Geiler described Mr. Walsh?s
utter and abysmal failures throughout Mr. Young?s case, beginning with
an unmitigated failure to prepare. Mr. Walsh inherited the case virtually
at the last minute, and tried the case immediately after defending a major
rape trial, which followed immediately on the heels of another murder trial.
Immediately after Mr. Young?s trial, Mr. Walsh was forced to try yet another
capital case. By the time this last trial started, Mr. Walsh was
coughing up blood.
Operating under these conditions, Ms. Geiler recalls
that Mr. Walsh never visited the scene of the crime in Mr. Young?s case,
and made no attempt to investigate or prepare prior to trial. Ms.
Geiler remembers that Mr. Walsh had given no thought, let alone prepared
for, the punishment phase. Ms. Geiler still recalls the night, during
trial, when Mr. Walsh came to her home, well past midnight. In this
meeting, Ms. Geiler developed the punishment phase instructions to the
jury, and attempted to force-feed Mr. Walsh the arguments he could use
to beg for his client?s life. In the trial for Mr. Young?s life,
Mr. Walsh did virtually nothing.
But Ms. Geiler does not blame Mr. Walsh. Ms. Geiler
describes Mr. Walsh as a tragic hero, who failed miserably and collapsed
under the weight of an oppressive system. To understand Mr. Walsh?s
abysmal failure, Ms. Geiler believed it was also necessary to comprehend
the equally abject conditions under which her office operated. The
Office of the Special Defender was overwhelmed. (See also Affidavit
of James McKay.) Even in the most serious cases, attorneys litigated
without the time, resources, and support essential to their clients? defense.
In many cases, Ms. Geiler explained, the attorneys working in her office
were veritable walking violations of the right to effective assistance
of counsel. When counsel asked specifically whether this applied
to Mr. Walsh?s defense of Mr. Young, Ms. Geiler said without hesitation
that it did. When asked specifically whether Mr. Young received a
fair trial, Ms. Geiler said, again without hesitation, that he did not.19
Her office was a classic example of institutional ineffectiveness, and
Mr. Young?s defense was the shining illustration.
Sadly, the themes of racial disparity and incompetent
counsel in this case are linked: because of counsel?s incompetence,
the prosecutor?s racism has escaped review. As noted, Mr. Walsh did
not object to the prosecution?s discriminatory use of its peremptory challenges
because he believed, incorrectly, the issue would be preserved for federal
review even without an objection.20 He also acknowledged at the PCR
hearing that: (1) he knew the local prosecutors used their peremptory challenges
to excuse minorities from the venire; (2) he had objected to this practice
in other cases; (3) he had intended to lodge the same objection in this
case, even though he believed no objection was necessary in order to preserve
the claim; and (4) he had no strategic or tactical reason not to make the
objection, and in fact was surprised to discover that he had not done so.21
In the midst of Mose Young?s death penalty trial, Walsh
experienced a sudden realization that would cost him his license to practice
law in the State of Missouri. Exhausted from a crushing caseload,
meager resources, aggressive prosecutors, and the unbending demands of
the judiciary, Walsh nevertheless went through the motions of defending
Young?s capital trial even though he knew he was ill-prepared. That
was simply the path of least resistance. It was easier to proceed
to trial on a capital charge than to stand up for his client?s right to
be defended by an adequately prepared lawyer.
On a Saturday morning in May 1984, a St. Louis jury returned
a verdict fixing Mose Young?s punishment at death. Walsh spent the
rest of the weekend intoxicated. The following Monday, still vomiting
from his binge, Walsh appeared for jury selection in the capital case of
State of Missouri v. Walter Harvey. He urged the court and the prosecutor
to continue the case. He was physically exhausted. Since being
appointed to represent Harvey, he had been tied up in numerous other trials-including
one case in which he met his client for the first time on the morning of
trial. Walsh told the court that he had done no preparation whatsoever
for Harvey?s trial; he was not ready to give the case the defense it deserved.
His plea for for an opportunity to give his client a fair trial fell on
deaf ears; the court denied his request and proceeded with jury selection.
Fearful that any effort that he might put forth on Harvey?s
behalf would simply sanitize an injustice, Walsh determined that Harvey
would be better off if he simply refused to participate in the trial.
He did not make any challenges or strikes from the venire panel.
He gave no opening statement. He conducted no cross-examination.
He presented no witnesses. He made no argument. His sole effort
consisted of repeatedly reminding the court that he was not prepared to
give his client a fair trial.
Walsh took this action knowing that he was putting his
legal career at substantial risk. He excused his young apprentice,
assistant public defender James McKay, so that McKay would not suffer any
repercussions from Walsh?s conduct. Walsh felt there was no real
alternative for Harvey?s defense under the circumstances. He had
nagging doubts about Harvey?s guilt. There were promising avenues
of investigation he had not explored. There were aspects of the prosecution?s
case that did not ring true. And he believed that Harvey did not
deserve the death penalty.
Walsh?s desperate decision had the anticipated consequences.
Harvey?s conviction was reversed on appeal in a begrudging opinion by the
Missouri Supreme Court. At his retrial, a jury spared Harvey?s life.
Angry judges and prosecutors pursued disciplinary action against Walsh
in the Missouri Supreme Court; recognizing that his career as a trial lawyer
had gone down the tubes, Walsh surrendered his license and returned to
his boyhood home, Chicago Illinois. When asked if he had any regrets,
Walsh replied that he wishes his epiphany had come ten days earlier-when
he had the life of Mose Young in his hands.
The same factors which prompted Walsh?s kamikaze move
in Harvey?s trial applied with equal justification in the Mose Young trial.
Even though Young consistently asserted his innocence, Walsh had conducted
no investigation. He had not viewed the crime scene. He had
not interviewed Patricia Wilson, an eye-witness who was inside the pawn
shop when the shooting started, even though Ms. Wilson had made statements
suggesting that Young was not the shooter. Walsh did not investigate
Ronnell Bennett, the only witness produced at trial who claimed to have
seen Young open fire in the pawn shop. The jury did not know that
Bennett and Young had a history; several years earlier, Bennett?s
brother had shot Mose Young in the back. Young still has the bullet
lodged near his spine.
Aside from the issue of guilt or innocence, there were
many facets of Young?s hard life growing up in the projects which could
have moved a jury to spare his life. Many witnesses willing to vouch
for his character and his amenability to rehabilitation. Circumstances
strongly suggesting that Mose was suffering from severe mental and emotion
difficulties, which may have been induced or exacerbated by use of toxic
street drugs. He had been seen by witnesses shortly before the shooting,
acting irrationally. Young appeared to be engaged in a heated argument
with someone, even though he was alone.
The cases of Mose Young and Walter Harvey share many
similarities. Both involved high-publicity crimes which were being
prosecuted by skilled and aggressive prosecutors. In both cases,
Walsh was haunted by doubts about guilt, which he had not had the opportunity
or resources to investigate. Both clients persistently asserted their innocence.
Neither deserved to die. The only difference between Mose Young and
Walter Harvey is the fortuitous timing of their trials. Walsh concedes
that if Harvey had gone to trial first, Harvey would now be on death row,
and he would have thrown his career away to save Mose Young. In Walsh?s
own words, to even attempt to mount a defense in either case, in light
of the dearth of resources, his burdensome caseload, and his absolute failure
to prepare, would have been ?a fraud on the system.? Mose Young?s
execution would perpetuate that fraud.
III. Mose Young is a valued part of a family in which
he has fulfilled his role as a parent even from prison.
Mose is of value to others even within the walls of a
maximum security prison. He has remained a positive factor in his
sons' lives. Although his own parents have passed away, he remains
an active, valued member of his extended family.
A. Mose Young grew up in public housing projects as a
generous, likeable child, whom his relatives remember with affection.
Mose grew up in public housing projects in St. Louis;
his family did not have the resources most families had; his father worked
at intermittent, poorly paying jobs. (App. 5.) Mose sometimes
helped his father on the job. (App. 1 & 8.) Mose and his
siblings sometimes had to use rolled-up socks instead of baseballs in order
to play games. (App. 5.)
In spite of the negative factors in this environment,
Mose grew up as a well-behaved, likeable child. He was generous to
other children, sharing what little he had. His relatives now recall
him as he was then, and regard him fondly. (App. 2, 5 & 9.)
The jury that returned a death verdict did not know about
Mose's strong family ties, because counsel did not contact them.
One after another of the relatives who have provided affidavits in support
of clemency say that clemency counsel was the first attorney for Mose to
contact them, and that if they had been contacted in preparation for Mose's
trial, they could have provided more information. Mose's cousin,
Geraldine Wynne, adds that some of the relatives to whom she would have
referred previous counsel if they had contacted her have died since Mose's
trial.
B. Mose Young has positively participated in the upbringing
of his sons, one of whom has cerebral palsy.
Mose had a long-lasting, monogamous relationship with
Linda Brownlee, and she bore him two sons, Mose Brownlee and Morio Brownlee.
(App. 2.) Mose Brownlee has cerebral palsy and is mentally retarded.
(App. 2 & 11.)
Morio is nineteen, and graduated from Roosevelt High
School in 1999. (App. 11.) He recounts that his father kept him and
his brother out of trouble; his father encouraged him to stay in school,
and he graduated. (App. 11.) Morio plans to continue to keep
his father involved in his family as he has children of his own, if the
State of Missouri does not kill him first. (App. 11.)
Killing Mose would needlessly deprive his sons of a father
who continues to be a positive influence in their lives.
Because it has arisen since his incarceration, the jury
could not have had the full sense of this fact about the value of Mose's
life even if his previous lawyers had bothered to interview his sons, which
they didn't. Like the information about his upbringing that the jury
never heard, this is a mitigating factor that you are the first-and last-decisionmaker
to consider.
IV. Mose Young has played a valuable role for staff and
other prisoners.
One of the principal determinants of a decision between
life without parole and the death penalty is whether the accused citizen
will be a threat to others if sentenced to prison or whether he will make
a contribution to society while confined. By his conduct in the Department
of Corrections, Mose Young has proved that the interests of the State of
Missouri would be better served by keeping him alive than by killing him.
The jury and the sentencing court could not have know this: you do.
A. Mose Young has healthy respect among both black and
white prisoners on account of his unique combination of seriousness and
good humor.
Virtually anyone who takes the trouble to meet Mose Young,
Jr., will agree that he is an impressive person. He is friendly,
and at the same time serious. This combination of personal strengths
was developing, or perhaps already developed, before he went to the Department
of Corrections. (App. 1 & 9.)
This combination of good personal attributes has not
been lost on his fellow prisoners. (App. 16 & 17.)
B. Mose Young uses the respect he has earned to prevent
violence and other violations of good order.
Lamentable as its effects has been outside the walls
of our prisons, our country's sad history of racial conflict has had fatal
consequences among men who are confined at close quarters and are not selected
from among the most restrained and lawabiding among us. Grievances
that could lead to removal from one's holiday card list in the outside
world could lead to assault or even homicide in a prison, and routinely
do.
Mose Young has repeatedly used the credibility he has
established among other prisoners to prevent potentially fatal situations
from getting out of hand. (App. 13-18.) In presenting this
information, counsel do not rely on the word of their client's black fellow
prisoners, but on a Native American (who regards himself as a neutral observer
of conflicts between white and blacks, App. 15) and two whites (one of
whom the State of Missouri has characterized as a white supremacist, App.
13). In light of the evidence from men who might be expected to be
hostile toward Mose, one can safely assume there would be numerous testimonials
from staff if they were not gagged by those in the Department of Corrections
who put killing a few of their prisoners ahead of protecting the mass of
them.
In acting as a mediator, Mose has exposed himself to
hostility from other prisoners who may regard him as a traitor to his fellow
blacks or as uppity toward whites, as the case may be. (App. 14.)
In doing so, he has undoubtedly saved lives of staff and prisoners alike.
Mose Young is a real-life analog to John Coffey in The
Green Mile. Of course he has not performed miracles; but The Green
Mile is a work of fiction. Mose Young has stopped race riots, and
has saved more lives than he has been convicted of taking. Sparing
his life would be readily understandable to anyone who can add and subtract,
especially if they have seen this movie.
WHEREFORE, the applicant prays the Governor for his order
staying the execution and appointing a Board of Inquiry, and thereafter
commuting the death sentence of Mose Young or granting other and further
appropriate relief.
Respectfully submitted,
JOSEPH MARGULIES JOHN WILLIAM SIMON
Suite 215
220 South Sixth Street 200-A East High Street
Minneapolis, Minnesota 55402 Jefferson City, Missouri
65101
(612) 339-2673 (573)
632-6777
FAX (612) 339-7851 FAX
(573) 632-6778
Of Counsel
Sindel, Sindel & Noble, P.C.
8008 Carondelet Avenue, Suite 301
Clayton, Missouri 63105
SEAN D. O'BRIEN
Public Interest Litigation Clinic
305 East 63d Street
Kansas City, Missouri 64113
(816) 363-2795
FAX (816) 363-2799
Attorneys for Applicant
1380 U.S. 202 (1965).
2E.g., Herrera v. Collins, 506 U.S. 390 (1993).
3Cf. United States v. Wilson, 816 F.2d 421, 424 (8th
Cir. 1987) (discussing "the tough evidentiary standard of Swain").
4476 U.S. 79 (1986).
5Strickland v. Washington, 466 U.S. 668 (1984).
6"[A] defendant cannot, under Swain, establish an equal
protection violation 'solely on proof of the prosecutor's use of peremptory
challenges to strike black jurors at the defendant's own trial.'"
Garrett v. Morris, 815 F.2d 509, 511 (8th Cir. 1987), citing Griffith
v. Kentucky, 479 U.S. 314 (1987).
7Affidavit of Joe Margulies, p. 1. (Submitted with
this document.)
8Id. at 4.
9Id.
10Id., p. 5.
11Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000).
12The office of Commissioner is a quasi-judicial position
created by Missouri statute. In that capacity, Commissioner Geiler
presides over drug prosecutions by special order of the Presiding Judge
of the 22nd Circuit.
13Swain, 380 U.S. at 224; Horton v. Zant, 941 F.2d 1449,
1454 (11th Cir. 1991).
14Willis v. Zant, 720 F.2d 1212, 1220 (11th Cir. 1983)(emphasis
in the original); Horton v. Zant, 941 at 1454.
15Id. at 1455; Love v. Jones, 923 F.2d 816 (11th Cir.
1991).
16United States v. Wilson, 816 F.2d 421, 425 (8th Cir.
1987) (Bright, J., concurring).
17Id.
18See Walton v. Caspari, 916 F.2d 1352 (8th Cir. 1990);
Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987). In Walton, the Eighth
Circuit held that a violation of Swain v. Alabama is established when the
explanation for peremptory strikes reveals a discriminatory intent.
916 F.2d at 1359. Direct evidence of the prosecutor's racially discriminatory
intent establishes the Swain violation and justifies habeas corpus relief.
19Affidavit of Joseph Margulies at Para. 5.
20PCR Tr. at 139 (?[I]t was always my understanding of
federal law that in terms of preservation of it you need not make a formal
record at the trial stage.?)
21PCR Tr. at 139-40; 151-53.
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