BEFORE THE GOVERNOR OF THE STATE OF MISSOURI
THE HONORABLE BOB HOLDEN

In the matter of MARLIN GRAY, CP#99, Applicant. <

APPLICATION OF MARLIN GRAY TO GOVERNOR BOB HOLDEN FOR EXECUTIVE CLEMENCY FOR COMMUTATION OF TWO SENTENCES OF DEATH

COMES NOW the applicant, Marlin Gray, by and through his attorneys, Joanne Martin Descher and Kent E. Gipson, and petitions the Governor for his order appointing a Board of Inquiry, pursuant to Mo. Rev. Stat. §552.070, and for his Order commuting the sentences of the Circuit Court of the City of St. Louis from death to life without parole.

I. SUMMARY.

Marlin Gray was convicted as an accomplice and sentenced to death in the notorious Chain of Rocks Bridge double homicide case. The state conceded he was not present at the time the murders were committed, and no witness testified Marlin directed anyone to kill – or that he even knew any murder was about to take place. Instead, the state proceeded on a theory that Marlin was the “ringleader”, even comparing him repeatedly to Charles Manson. Despite the utter lack of evidence that Marlin Gray intended that anyone be killed, and in spite of the fact that he was not present when the killings occurred, he was sentenced to be executed and has lived on Potosi’s death row since 1992.

This case has presented many confusing and unresolved issues from the beginning. Thomas Cummins, cousin of the victims Julie and Robin Kerry, was the original suspect and gave conflicting accounts of the night’s events to the police, including one in which he never mentioned the four young men eventually charged with the crimes.

Pictures of Cummins taken shortly after he claimed to have jumped from the bridge spanning the Mississippi River showed his hair to be clean and dry (trial exhibits 200-204); the police report authored at the time also reported his hair to be “dry and neatly combed” and Cummins to be “dry from the neck up”; and the police laboratory technician who testified at trial did not find any river silt or residue in Cummins’ hair. No weapon was used to commit the crimes; nevertheless, Cummins, self-described as a firefighter, paramedic, and expert in lifesaving techniques, offered no resistance and admitted he pushed away Julie Kerry when she attempted to hold on to him in the water.

Despite his inconsistent stories to the police, the state’s case featured Cummins as the star witness. Following his testimony in the trials of Marlin Gray and two others charged as the principal actors in the crimes, Reginald Clemons and Antonio Richardson, Cummins filed a civil lawsuit against the City of St. Louis and the individual police officers who interrogated him. He claimed the police had beaten him into making a statement, threatened him, and denied him his right to counsel.

The defendants paid Cummins $150,000.00 in a confidential settlement to resolve that case. The record is undisputed that the same police who interrogated Cummins interrogated Marlin Gray, who has maintained since the day after his arrest and interrogation in early April 1991 that he was beaten into giving a statement to the police.

Marlin Gray’s case was prosecuted by Nels Moss, who repeatedly crossed the line of ethical conduct. As will be explained in more detail below, it is undisputed that Marlin’s trial counsel requested all exculpatory material required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), early in the case; that Moss knew of Cummins’ claims of police brutality prior to the Brady request but did not disclose that evidence to defense counsel; and that the trial court held its hearing on Marlin’s motion to suppress his statement, all without the Cummins evidence being disclosed to the court or defense counsel.

The trial court overruled Marlin’s motion to suppress, and the coerced confession (in which he admitted to raping the victims, but not to any role in their murder) became a key piece of evidence against him at trial.

The record is similarly clear with respect to another critical point: Marlin Gray filed a complaint with the Internal Affairs Division of the St. Louis Police Department within a day of his interrogation, in which he gave a detailed account of his beating by the same police officers later accused of interrogating and beating Thomas Cummins. In Marlin’s case, however, there was no $150,000.00 cash payment. Instead, despite investigation by the Federal Bureau of Investigation, Moss failed to disclose the strikingly similar Cummins allegations. The FBI closed its investigation, finding no violation of Marlin Gray’s civil rights.

Marlin Gray simply did not receive anything close to a fair trial, particularly when he was charged with acting as an accomplice. In addition to the Brady violation, Moss made repeated, and egregious, errors in both the guilt and penalty phases of his closing arguments. For instance, after assuring the trial court judge that he was not going to call Marlin “Manson”, he referred instead to members of the Manson family by name.

He referred to the race and physical attractiveness of Marlin’s friends, when race was not an element of any crime charged and was therefore not relevant to any issue in the case. He told the jury he (Moss) knew what it was like to almost drown, and described the “slow, agonizing” death of the victims as if he had lived it himself. He quite improperly, and incorrectly as a matter of law, advised the jury that Marlin simply had to be involved in the events preceding the murder to be convicted of first degree murder, thus eliminating the crucial element of intent required under Missouri law to render Marlin eligible for first degree murder and the death penalty.

According to a study of prosecutorial misconduct released June 26, 2003 by the Center for Public Integrity, Moss’ “record of 8 reversals due to misconduct and 17 other findings that he committed prosecutorial error is extreme”. Steve Weinberg, “Breaking the Rules – Who Suffers When a Prosecutor is Cited for Misconduct?” Harmful Error – Investigating America’s Local Prosecutors, The Center for Public Integrity, Washington, June 26, 2003. As apparently he has in many prior cases, Moss engaged in outrageous conduct in his closing arguments in both the guilt and sentencing phases of Marlin’s trial. Predictably enough, the result was a “victory” for Moss and a denial of due process for the defendant.

Prior to his convictions in this case, Marlin Gray had never been convicted of a felony – in fact, he had never previously been charged with a crime of violence. Approximately one month before the Chain of Rocks murders, he saved a man’s life by resuscitating him after a car ran over him. Marlin continued to care for the man after his release from the hospital, until the day he was arrested.

He has had the support of his family and his church since his arrest, with Bishop Garnett Henning of the African Methodist Episcopal Church testifying on his behalf at trial. The state’s interest in punishment surely cannot extend to executing Marlin Gray, who was not present when the killings occurred, has no history of violent behavior, and whose trial was so infected with prosecutorial misconduct that the state truly can have no confidence whatsoever in its outcome.

II. THE STATE’S BRADY VIOLATION REQUIRES THAT MARLIN GRAY’S DEATH SENTENCES BE SET ASIDE.

On April 8, 1991, at approximately 5:10 a.m., Marlin Gray gave an audiotaped statement to the St. Louis Police Department. The tape was made in the presence of detectives Chris Pappas and Joseph Brauer. It is undisputed that Detectives Pappas and Richard Trevor interrogated Gray for hours prior to the tape being made.

Marlin Gray has consistently maintained that he was beaten by Detectives Passas and Trevor of the St. Louis Police Department’s homicide section. He reported immediately to the Internal Affairs Division that he was slapped across the head with Pappas’ open hand; struck repeatedly across the back and side of the head, by both detectives, with thick log books; threatened with the death penalty if he did not make a statement; told to sit on his hands, after which he was punched repeatedly in the chest; grabbed from behind by Pappas, who jerked his head to the right and said he would “snap his neck” if he did not talk, and then applied more pressure in a vice-like grip; forced to stand while Pappas punched him repeatedly in the chest and stomach; verbally threatened and abused, including being told he would be beaten to within an inch of his life; and thrown into another interview room, causing him to fall and injure his knee. (Transcript of Marlin Gray statement to Internal Affairs Division, St. Louis Police Department, L.F. 373-399). Throughout this ordeal, Marlin Gray asked for an attorney no fewer than four times. At no time was he allowed to consult with an attorney.

Marlin’s trial counsel filed a motion to suppress the coerced statement prior to trial, which was denied by the trial court after hearing but without explanation in a memorandum order dated July 24, 1992. (L.F. 240.) Prior to the hearing, she properly requested all exculpatory material from the prosecution. (L.F. 362-64.) No information regarding Thomas Cummins’ interrogation was disclosed. Marlin’s testimony at the hearing on the defense motion to suppress his statement on July 22, 1992 was essentially identical to his statement to the Internal Affairs Division over a year earlier.

In October 1992, Cummins testified for the state against Marlin Gray. During cross-examination, Cummins attempted to explain why the police attributed various incriminating statements to him in their reports, statements which he denied making at the time of trial: “They told me to sit on my hands while I was sitting in the chair and one of the detectives took my head and turned it very sharply to one side and held it there.” (Tr. 1285). By his description, the detective turning his head “very sharply to one side” was Chris Pappas, the same detective who interrogated Marlin Gray in precisely the same manner.

The similarities in Gray’s and Cummins’ descriptions became even more striking as Cummins was asked if anything else was done to him: Q: Did they do anything else to you? A: They slapped me in the back of the head. Q: What did they use? A: An open hand. Q: Which one of the detectives did that? A: I don’t know. It was someone standing – it wasn’t Lieutenant Jacobsmeyer and it wasn’t the foreign looking detective [Pappas]. It was another detective who was in the room who again I don’t remember his name. … Q: And he hit you in the back of the head? A: Yes, he did right across where the hairline is up here. Q: Up here say approximately? A: Top of the head. … Q: Did they ever tell you they would hurt you if you didn’t tell them what you wanted to hear – what they wanted to hear? A: Yes, they did. Q: What did they say? A: They told me, Lieutenant Jacobsmeyer told me that if I didn’t tell them what he wanted to hear, that he was going to put me in the hospital that night and he had witnesses that said I resisted arrest. (Tr. 1286; 1287-88) Cummins then testified that he told prosecutor Nels Moss about the beating a year and a half before the trial: Q: Have you ever told anybody about this police brutality before today? A: Yes. Q: Who have you told? A: Mr. Moss. Q: When did you tell him that? A: May the 8th. Q: 1991? A: That’s correct. (Tr. 1290)

In August 1991, four months after Cummins testified he told Moss of the brutality, Moss was contacted by an FBI agent investigating Marlin Gray’s claim that his civil rights had been violated by the St. Louis Police Department.

The record counsel has been able to obtain under the Freedom of Information Act contains several redactions, but clearly establishes that Moss was contacted by the FBI in August 1991, long before the July 1992 hearing on the motion to suppress the incriminating statement.

After he had testified against Marlin Gray, Reginald Clemons and Antonio Richardson, Thomas Cummins filed a civil suit in the United States District Court for the Eastern District of Missouri, Eastern Division, against various members of the St. Louis Metropolitan Police Department and others, including Chris Pappas and Richard Trevor. The claims included assault, battery and false imprisonment. The specific allegations against Pappas and Trevor, as well as Steve Jacobsmeyer, included the following:

Thereafter defendants Jacobsmeyer, Pappas and Trevor interrogated plaintiff in an interrogation room in the Homicide Division at the Central Police Headquarters located at Clark and Tucker in the City of St. Louis. Plaintiff asserted his innocence, whereupon all three defendants threatened and verbally abused plaintiff, and defendants Pappas and Trevor physically assaulted plaintiff at the direction of Jacobsmeyer and all three defendants attempted to coerce him into implicating himself in the crimes on the bridge. Defendants caused plaintiff to be in apprehension of bodily harm.

Defendants Jacobsmeyer, Pappas and Trevor intentionally struck plaintiff and twisted his head and neck, thereby causing him bodily harm and injury. In the interrogations by Guzy and again by Jacobsmeyer, Pappas and Trevor, plaintiff repeatedly requested that he be permitted to have the advice of a lawyer, but plaintiff’s said request for counsel was denied by defendants. First Amended Complaint filed in Thomas Patrick Cummins v. David A. Robbins, et al., Cause 4:93CV00822, United States District Court for the Eastern District of Missouri, Eastern Division, pages 8-9 (emphasis added.)

In April 1995, six months after the Missouri Supreme Court affirmed Marlin Gray’s conviction and death sentences, Thomas Cummins’ suit was passed for settlement, then dismissed with prejudice. According to news reports, the parties reached a confidential settlement. Marlin through his counsel requested discovery on this and other issues during his federal court habeas proceedings, and the motions for discovery were denied in their entirety.

Through discovery allowed in the federal court habeas proceedings of his co-defendant Reginald Clemons, Marlin finally obtained proof of the significant payment made to Cummins, but only after his First Amended Petition for Writ of Habeas Corpus before the federal court had been denied in its entirety. The settlement check and voucher were submitted in support of his Rule 59(e) motion but not addressed by the federal court in its denial of the motion.

Marlin Gray was not granted a certificate of appealability with respect to his claims, raised in his First Amended Petition for Writ of Habeas Corpus, that his statement should have been suppressed as the result of police coercion, or that the state violated the rules mandated by Brady by not disclosing Thomas Cummins’ claim of a nearly identical beating by the same detectives. Thus, no court has ever addressed the effect of all the evidence presented here, corroborating that Marlin Gray’s confession was coerced.

In its order of July 24, 1992, the trial court did not provide a basis for its decision to deny Gray’s motion to suppress. It is probably safe to assume, however, that it was based upon the judge’s weighing of the credibility of the detectives versus that of Marlin Gray. Evidence from Thomas Cummins, one of two chief witnesses for the state, that he was subject to the same abuse by the same detectives could hardly have been more relevant to the trial court’s determination of the witnesses’ credibility, and the court and Marlin Gray were entitled to have that evidence presented. The state apparently found Cummins’ claims worthy of belief, as it decided to pay him the substantial sum of $150,000.00.

The evidence of Cummins’ beating, and the state’s failure to disclose it, was extremely critical to Marlin Gray’s right to a fair trial. Missouri law requires evidence of cool, deliberative intent on the part of the accomplice, not another actor, for a conviction of first degree murder.

In other words, when the state is proceeding on a theory of accomplice liability, the intent to commit first degree murder cannot be implied from the act of another. State v. O’Brien, 857 S.W.2d 212 (Mo. banc 1993). The trial court and prosecutor repeatedly advised the jury, however, that Gray simply had to be involved, in some way, in the events on the bridge to be guilty of first degree murder as an accomplice. Therefore, once Marlin admitted any involvement in his statement, the road was paved in the jurors’ minds to a first degree conviction.

Marlin Gray never spoke to Thomas Cummins about his beating, nor was Cummins present at Marlin’s interview by Internal Affairs or the hearing on the motion to suppress his statement. The record counsel has been able to compile demonstrates without contradiction that prosecutor Moss knew of Cummins’ claim in May 1991; was contacted by the FBI regarding Marlin Gray’s claim in August 1991; and did not disclose to defense counsel (and likely not the FBI according to the records produced thus far) the facts reported by Cummins to Moss. After Marlin’s conviction was affirmed, it is undisputed that the St. Louis Police Department paid Cummins $150,000.00 to settle a suit based on the same claims made by Marlin, against the same detectives, in the same place and at the same time.

In other words, agents for the state first vouched for the truthfulness and credibility of Thomas Cummins as a witness at three capital trials, then paid him a substantial sum to settle the same allegations of brutality made by Marlin Gray. We can have no confidence in the jury’s decision to impose the death penalty when such critical evidence impacting upon Marlin’s statement was undeniably withheld by the prosecution. Marlin Gray’s death sentences should be set aside on the basis of the state’s Brady violation.

III. MARLIN GRAY’S DEATH SENTENCES SHOULD BE COMMUTED TO LIFE IMPRISONMENT, DUE TO PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT.

The closing arguments of the state during the penalty and guilt phases of Marlin Gray’s trial were blatantly improper. Each argument was filled with references to such things as Charles Manson and his “family” and appeals to racial prejudice. A brief review of the principal errors follows.

Penalty Phase Closing Argument.
During the opening phase of his closing argument for the death penalty, Moss told the jury:

You know, as I sat here, also, yesterday listening to his witnesses and I got this strange feeling that, you know, something was wrong here. Couldn’t put my finger on it. I kept seeing the witnesses and seeing the witnesses. As I pointed out they’re white, middle class, problem, not accepted at home for some reason or another, low self esteem. I said something’s – and then I looked at, you know, I talked about this crime. And it struck me. Do you remember California? Do you remember the man that never went into the house? (Tr. 2705; emphasis added)

Marlin Gray’s counsel objected and the objection was initially sustained. However, after Moss assured the trial judge he was not going to call Marlin Gray “Manson”, the court overruled the objection. As soon as his argument resumed, however, Moss referred to Manson’s co-defendants, using infamous names forever linked to the Manson case:

Well, the names, you know, Charles “Tex” Watson came to me, Patricia Krenwinkle, Squeaky Fromme. You know, those names came to me and I said what the heck, you know, why did that jump into my mind and I couldn’t understand it. And then basically it came that people who are weaker, younger, problematic, can be manipulated and dealt with by somebody who is apparently stronger, who like their leader, you know, was a poet, played the guitar, fancied himself a songwriter, but really had a problem. (Tr. 2707)

Not content with comparing Marlin Gray to Charles Manson twice in the opening phase of his closing argument, Moss again brought the Manson case to the jury’s attention in his final remarks to the jury, after defense counsel had made her argument for a sentence of life without parole and could no longer address his remarks:

And that these ladies [witnesses for Marlin Gray] would come in here and lie. Remember the case I was referring to in California. Do you remember the young ladies who were, of course, charged and the man, young man? But do you also remember the people that came outside the courthouse and when he shaved his head they shaved their heads and sat individually – (Tr. 2719).

The prejudicial effect of comparing Gray to Charles Manson cannot be disputed. Over thirty years later, websites remain devoted to the case (ie., www.charliemanson.com and www.ohnomews.com/manson.html), and his conviction on January 25, 1971 is still the subject of news reports. The effect of referring to the infamous Manson case is amply demonstrated by comparing the three co-defendants’ trials, all of which were handled by Moss. Moss was cited for contempt and fined $500.00 in State v. Clemons for ignoring the Court’s ruling that he could not refer to Charles Manson. He did not refer to Manson in Richardson’s case. The juries sentenced Gray and Clemons to death in their cases, but hung on the issue of Richardson’s punishment.

The prosecutor’s remarks violated Marlin Gray’s due process rights and denied him a fair trial. The Eighth Circuit has previously reversed death sentences where the prosecutor referred to other notorious criminals, including Charles Manson, in Newlon v. Armontrout, 885 F.2d 1328 (8th Cir. 1989) and Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999). Inexplicably, the Eighth Circuit in this case termed these Manson references “obscure” and refused to overturn Marlin Gray’s death sentences on this basis. Gray v. Bowersox, 281 F.3d 749, 757 (8th Cir. 2002).

Marlin Gray cannot rely upon the courts to enforce the rules in his case. Failure to reverse Marlin Gray’s death sentence based upon these improper Manson comparisons sends a misguided and dangerous message to ethically-challenged prosecutors. As demonstrated by Mr. Weinberg’s study, the prosecutor’s comments in Gray’s case do not stand in isolation, but are part of a pattern and practice of improper argument that must be stopped. The only way to stop the pattern is to reverse those convictions and death sentences obtained in violation of the rules.

Nels Moss also focused in his closing argument on Marlin Gray’s friendship with women who happened to be Caucasian, implying that there was something unnatural about this association, based purely on race, and that this association justified the jury putting Marlin Gray to death:

What other things do we know about the defendant? Did you notice who came in here? Did you notice who his friends were? Is there some significance there? Think about it for awhile. Normally they were female. Normally they were white. Normally they were middle class. Normally they had a problem at home, self esteem, something else. Normally they were not physically what you would call overly attractive. Now you contrast that with the kind of people that the Kerry sisters had around them and what they did with them…. You tie in where he was at, with his mom, with his other things, all this other kind of stuff and you bring it in to see who his friends are and how they were, what their ages are, the type, and then you remember the crime of rape, okay. (Tr. 2702).

Not only are these comments personally offensive, they have absolutely no place in a courtroom where a jury is trying to determine the punishment in a highly charged, double homicide case.

Moss’ closing argument also contained this fabricated scenario, which did not track the evidence against Marlin Gray and could only have further inflamed the jury:

Understand one thing, please. Think just for a moment, just for a moment, put yourself on that bridge, that night on that deck. Put yourself fifty, a hundred feet away. Put a gun in your hand that has three bullets, four bullets in it and you’re standing there and you look and you hear a scream of terror and another scream of terror and another scream that says, “Oh, no, don’t. I’ll give you anything. Please do not hurt me.” And you’re standing there watching this. And then again “If you don’t stop screaming, I’ll throw you off the bridge right now.”

And then you hear the sounds of them moaning as they’re raped repeatedly by these fellows and you’re just standing there. You have this gun. And then you stand there and you see them slowly escort one girl semi-nude, Julie, down to the platform. You see them escort Robin. You see them bring Tom Cummins and put them down there. And then you happen to see ’cause you moved up near the hole, you’re right near the top and you see them standing on the pier and the guy’s getting ready to push them off. Do you do nothing? Is there a one of you that was in the position on that bridge and had a gun in your hand, is there really, really as weak as you may think that you might, you know, you might not be, is there really one of you in your heart of hearts that wouldn’t say, stop, Marlin, you don’t have to do this. Reggie, you don’t have to do this. Antonio, stop, stop or I’ll shoot. I cannot let this happen. (Tr. 2721-22)

Moss’s comments were, again, grossly improper. The scenario he painted did not track the evidence presented to the jury: most importantly, according to the state, Marlin Gray was not even on the bridge at the point the jurors are implored to “stop” him, had no role in taking anyone to the manhole, and no gun was used at any time. Whether the jurors would have stopped the fantasy presented during closing argument is irrelevant to whether Marlin Gray deserved the death penalty, and this argument could only have further confused the jury concerning the actual evidence in the case - all of which showed that Marlin Gray was not even on the bridge when the Kerry sisters were pushed. The prosecutor may not personalize argument to the jury, and thus “taint the jury’s judgment with suggestions of personal danger to them or their families”. State v. Storey, 901 S.W.2d 886 (Mo. 1995). Yet, that is exactly what the state did in Marlin’s trial.

Finally, in an all-out effort to secure a death sentence, the prosecutor reassured the jury that others would be reviewing their decision: Now someone may tell you, well, what if I made a mistake. If we sentence him to death, oh, my God, you know, there’s no changing that. Well, we all know that there’s a long line before that happens. (Tr. 2699-2700) (emphasis added).

As with his other comments summarized here, Moss’ argument completely crossed the line of ethical conduct: arguments that lessen the burden imposed by law upon the jury to decide the defendant’s fate are improper. Caldwell v. Mississippi, 472 U.S. 320,105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (prosecutor’s assurance to the jury that there would be appellate review of the death sentence an Eighth Amendment violation because it may tend to lessen the deliberative process). Whether considered alone or in combination with the many other errors in the prosecutor’s closing argument, the state’s attempt to make the jury “feel good” that someone else would review their decision constitutes error of such magnitude that Marlin Gray’s death sentences should be commuted.

The conduct of the penalty phase of the trial created a completely unacceptable risk that the death penalty is being imposed arbitrarily in this case. The state, through one of its actors, created this risk, and now has the chance to finally right that wrong. Marlin Gray’s death sentences should be commuted for prosecutorial misconduct in the penalty phase closing argument.

Guilt Phase Closing Argument.
Although this application is directed towards commutation of Marlin’s death sentences, those sentences were obtained by the prosecution at the end of a long trial. A brief look at some of the state’s improper remarks to the jury during the guilt phase closing argument is in order, because the jury could not help but be influenced by all information presented during the trial when it deliberated upon Marlin’s fate.

One of the state’s goals apparently was to discredit Marlin’s claim that he had only given a statement after being severely beaten by the police. Prior to closing the prosecutor showed a videotape to the jury of Antonio Richardson walking the bridge with two detectives, during which one police witness was allowed to tell the jury which manhole Richardson pointed out. The prosecutor then states in closing:

The one thing you’ve got to accept from him is they’re able to get Antonio Richardson, who didn’t look like a bloody mess, played him out to the very same manhole and talk about the whole thing with him, okay. Saw the TV, saw the video. (Tr. 2469) They’re able to get Reggie Clemons within, you know, ‘cause they arrest him at 11, they bring him in at 6:30, within five hours to come in on himself, sign the pictures, et cetera, and as he said the police told him that these guys implicated him as the head murderer. ….. You know, why are they gonna stop short? These other guys have named him as the head murderer. Then they know they got the guy, okay… (Tr. 2469-70)

Again, in his rebuttal: Within five hours we know that Reginald Clemons spilled the beans and was arrested and subsequently at 2 something in the morning, 2:20 taken downstairs. We know within 5 hours this guy spills the beans and tells what he was willing to tell them because he knows he’s negotiating what he’s gonna say because he knows they’ve told him your butt’s on the line. Antonio came in on you and Reggie caved in on you …(Tr. 2532)(emphasis added)

Statements of co-defendants are clearly hearsay and inadmissible, and “[d]ue to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986). Allowing introduction of these statements, and argument about them, was extremely prejudicial to Marlin Gray. Moss has been previously reprimanded by the Missouri Court of Appeals for offering into evidence statements of co-defendants, which the Court found inadmissible:

We are dismayed by what we conclude to be a thinly veiled attempt by an experienced prosecutor to inject into appellant’s trial the fact that an accomplice had admitted his participation in the crime for which appellant was on trial, when he should have known and we believe did know that he was thereby attempting to evade the impact of a well known and fundamental rule of evidence and do indirectly what he could not have done directly. State v. Browner, 587 S.W.2d 948, 954 (Mo. App. 1979)(emphasis added).

Moss committed further error when he advised the jury of his personal view of Marlin Gray’s defense: “He has fabricated his entire defense here. And he’s one of the best I’ve seen and I’ve been doing this for about twenty years.” (Tr. 2478).

Trial defense counsel properly objected to this remark, her objection was sustained, and the jury was instructed to disregard; however, the damage had been done. Very similar remarks were held to be “highly prejudicial” in State v. Storey, 901 S.W.2d 886 (Mo. 1995), where the prosecutor called the crime at issue there “the most brutal slaying in the history of this county”. The Missouri Supreme Court reasoned that allowing a prosecutor to argue facts outside the record amounts to unsworn testimony by the prosecutor, and his assertions “are ‘apt to carry much weight against the accused when they should carry none’ because the jury is aware of the prosecutor’s duty to serve justice, not just win the case. Berger v. United States, 295 U.S. 78, 88, 79 L.Ed. 1314, 55 S.Ct. 629 (1935).” In Storey, the death penalty was reversed. Marlin Gray deserves no less, particularly in light of his alleged role as an accomplice only.

The prosecutor again argued facts outside the record and attempted to inflame the jury when he stated: “[y]ou know, they shoot at the end of my block just like they shoot at the end of yours. We got to do something about it when we’re presented with the facts of what’s going on here.” (Tr. 2485). Not only did Moss attempt to personalize and place himself alongside the members of the jury, he appealed to the prevalent fear in today’s society that crime is out of control, and urged the jurors to convict Marlin Gray as a way to deal with escalating crime. Such an argument, again, is clearly improper under the law. United States v. Lee, 743 F.2d 1240 (8th Cir. 1984); United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir. 1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985)(“A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking.”).

Perhaps the most blatant error occurred near the end of the first portion of the state’s closing argument, when the prosecutor told the jury what it was like to “almost” drown:

Do you understand – unlike me maybe you’ve never almost drowned, but you go under just like Tom Cummins said, you go under and you go down deep the first time and you don’t think you’re coming up. You’re trying to come up, but all you’re sucking is water and you get up on the top maybe and you’re looking for something to grab onto. But you can’t. The current is too swift. It’s taking you down. Takes you further down river. And you go under again. And again. Until finally you can’t come up any more because your lungs have no more air and then you go down and you stay down. This isn’t a bullet to the head. This isn’t a knife to the heart. This is a slow, knowledgeable, knowing, agonizing death. (Tr. 2483).

This argument is even more prejudicial than the one the Court found “grossly improper” in State v. Storey, supra. In Storey, the prosecutor argued: Think for just this moment. Try to put yourselves in Jill Frey’s place. Can you imagine? And, then – and then, to have your head yanked back by its hair and to feel the blade of that knife slicing through your flesh, severing your vocal cords, wanting to scream out in terror, but not being able to. Trying to breathe, but not being able to for the blood pouring down into your esophagus. Id. at 901.

Here, not only did the prosecutor impliedly ask the jury to put themselves in the victims’ place by graphically describing the process of drowning, he told the jury HE knew what it felt like, and vouched for the “accuracy” of Tom Cummins’ testimony. As the Storey Court stated, “The prejudice of this argument is undeniable.” Id.

The prosecutor further argued that the jury should consider Marlin Gray’s “lack of remorse” in determining his guilt or innocence: You know, it might be a different ballgame if he got up there and bawled his eyes out for what had really happened, for what really had occurred. If he said, look, things got out of control as he said on his tape, and I tried to tell them no. I tried to tell them not to do it. If he expressed some remorse, some small portion of remorse for his action and his lack of actions. If he had bothered to tell you the truth about the watch, then you could have some pity on him and maybe then you could have some compassion on him had he shown any, any compassion to these people, had he shown you any honesty about what really happened. But he’s content to try and blame it on the cousin. (Tr. 2543-44)

This argument is clearing improper, and asks the jury to punish Marlin Gray for exercising his right to a trial by jury, and maintaining his innocence, in violation of his constitutional rights.

The prosecutor’s arguments in the guilt and penalty phases so clearly violated the law, and were so egregious, that they rendered the entire trial fundamentally unfair. With error heaped upon error, no one can be sure – as sure as we must be before executing someone - that a jury would have sentenced Marlin Gray to death in a fair trial. He does not deserve to die simply because the prosecutor decided to break all the rules to secure yet another death sentence.

IV. MARLIN GRAY SHOULD NOT BE EXECUTED, BECAUSE OF THE LACK OF SOLID EVIDENCE REGARDING HIS ROLE IN THE CHAIN OF ROCKS EVENTS.

It is clear that, at the very least, substantial doubt has been cast on the reliability of Marlin Gray’s statement to the police. Without that evidence, the state’s case (as opposed to the arguments of the prosecutor) consisted primarily of the following.

The state relied on the testimony of Thomas Cummins, the surviving cousin, and Daniel Winfrey, the one white co-defendant who accepted a deal from the state and pled guilty to second-degree murder. A review of the actual testimony shows that Cummins is able to attribute only the following comments to Gray: “This isn’t your lucky night. This is a robbery. Get down on the ground.” (Tr. 1166). He then testified Gray told him to lay on the ground and not to look up at anybody. (Tr. 1168). After prompting by the prosecutor, Cummins added that Gray said he would shoot him if he looked up at anybody. (Tr. 1168-69). At the subsequent trial of Antonio Richardson, Cummins testified that he was told simply “not to look” at that point. Transcript in State v. Richardson, 923 S.W.2d 301 (Mo. banc 1996), at p. 1515. He did not know if Gray was still with him at the point he heard the girls scream, and estimated Julie was fifty feet from him at this time. (Tr. 1169-70). According to Cummins, it was “very dark” on the bridge and there were no lights, other than from the stars. (Tr. 1236).

At some point in time, someone else was with him and someone said he would be “popped” if he put his head up or tried to look. (Tr. 1171). He did not know if this voice was the same one who initially talked to him (Gray), or another voice. (Tr. 1172). In the federal habeas litigation involving Reginald Clemons, however, the state represents that the voice which ordered Cummins to jump from beneath the bridge was the same voice which earlier said he would like to “pop” Cummins. As will become clear in the discussion of Daniel Winfrey’s testimony, Marlin Gray was long gone from the bridge at that point. The only other possible reference to Marlin in Cummins’ testimony is his statement that he heard “the first voice or another voice come up and say, ‘No, I told him he could live.’” (Tr. 1176; emphasis added). Cummins, who wore glasses, did not wear them that night. (Tr. 1242).

Daniel Winfrey testified that Gray said, in response to Clemons’ suggestion of a robbery, he felt like hurting somebody. (Tr. 1680). According to Winfrey, Gray handed out condoms (Tr. 1682) and raped Robin Kerry, with Clemons’ assistance (Tr. 1688-89). Winfrey then testified that while Gray was raping Robin Kerry, Richardson forced Julie Kerry into a manhole on the bridge deck and followed her. (Tr. 1690). When he was finished, Gray went to Winfrey and asked him where Richardson had gone. (Tr. 1691). Winfrey pointed to the Missouri side of the river. Gray then ran off to the Missouri side, running past the manhole. The next reference to Gray occurs when Winfrey testifies Clemons asked where Gray had gone (Tr. 1693), and Winfrey runs to find him, off the bridge. (Tr. 1694).

Marlin Gray admitted to rape in his statement to the police, but never murder. His statement should have been suppressed for the reasons previously set forth. Without his statement, the jury would have heard that Cummins believed Gray put him on the ground and told him this was a robbery, and Winfrey, a co-defendant with inherent credibility problems due to his plea agreement with the state, testified Gray raped one of the victims and then left the bridge. It is obvious from the actual testimony presented to the jury that, at most, Gray could have been convicted of felony murder, not first degree murder.

The O’Brien requirement of evidence of Marlin Gray’s actions or intent was completely lost at trial. The trial court informally instructed the venire on the issue of accomplice liability with examples that completely eliminated the crucial element of cool, deliberative intent on Gray’s part necessary to convict him of first degree murder, and further diluted the fundamental concept of reasonable doubt. The following is illustrative of the trial court’s error in advising the potential members of the jury on these two critical concepts:

The next issue I want to talk about is how this defendant is charged in this case. The defendant is charged with acting with another. Acting with another is a, it’s another way of saying that a number of people were involved in the same crime. Let me give you an example that has nothing to do with this case whatsoever. Let me give you two examples. Bank robbery, two people drive up in front of a bank downtown. One guy keeps the car running.

The other guy runs in, grabs the bag of money, comes back out, gets in the car. They’re both equally guilty of robbing the bank. Does everybody understand that? Let’s go on to a murder type case. Let’s say there’s a fistfight and it develops where there’s two individuals fighting one and the one fellow grabs the other and holds him while the second one picks up a knife and stabs him or picks up a brick and hits him or picks up a gun and shoots him. You understand they both can be found guilty of the same charge, even though the one was holding and the other was stabbing. Does anyone have a problem understanding what I’ve just explained to you?

That is how this defendant is charged in this case. He is charged with acting with another. I’m sure the attorney’s will get into that in more detail, but the law in Missouri is whether you’re the holder or the shooter or stabber, you’re equally responsible if you were both doing the same act, pursuing the same ends. Understand? Okay. (Tr. 275-276; emphasis added.) The law in Missouri is very clear and, in fact, I think it’s the law all over the country. If you’re charged with a traffic ticket and the most that can happen to you is that you can get a ten dollar fine, the standard of proof is proof beyond a reasonable doubt.

The state has to convince you beyond a reasonable doubt that the defendant would be guilty of speeding and, therefore, a ten dollar speeding ticket would be assessed. Same applies to the death penalty cases. Even though the punishment is certainly more severe the possibility of the punishment is more severe in a death penalty case than it would be in a ten dollar traffic ticket case, the standard of proof remains the same.

The standard of proof is beyond a reasonable doubt. And I’ve defined that to you already. I read that instruction to you and you’ll get that instruction through the trial. You’ll get it at the beginning of the trial and again at the end of the trial. But my point is just because this is a very serious, potentially serious punishment type case, death penalty could be imposed, it doesn’t mean that the State is under a higher burden to prove the facts to you. The same burden applies. (Tr. 274-275; emphasis added.)

The Missouri Supreme Court reviewed the trial judge’s comments, stating “[d]espite his well-intentioned purposes, the judge said far more than was necessary in this case. The purpose of the Approved Jury Instructions is to avoid confusion among jurors. That purpose is undermined when a judge or lawyer, under the guise of voir dire, makes what seem to be comments on the law or facts in the case. …” State v. Gray, 887 S.W.2d 369, 379 (Mo. banc 1994). Despite its conclusion that the judge “said far more than was necessary in this case”, the Court refused to find “plain error” or reverse on this ground, referring to the written instructions actually given to the jurors at the conclusion of the case.

This trial, and the state’s request to execute Marlin Gray, need to be considered as a whole. The trial court gave the above inaccurate and confusing informal instructions to the prospective jurors at the very beginning of the case, when they were the most impressionable. There can be no doubt that these comments left the jurors with the impression that everyone involved in a crime can be dealt with equally, when in reality the state was required to prove deliberation on Marlin Gray’s part to convict him of first degree murder as an accomplice.

The prosecutor compounded the error when he referred to them in his closing argument in the guilt phase of the trial. First, he referred to the getaway driver example given on voir dire by the trial court as an example of acting with another (Tr. 2455-2456). After telling the jury Marlin Gray was guilty without a doubt of “a form of felony murder second” (Tr. 2455), he states, “[a]nd let’s go into murder in the first degree. All that 6 and 12 [jury instructions 6 and 12] require is that Reginald Clemons and Antonio Richardson caused the death. That is not in dispute.” (Tr. 2456).

Jury Instruction 6 was the first degree murder instruction regarding Julie Kerry, which required much, much more. By the time the jury retired, however, they had heard repeatedly about getaway drivers and told all they needed to do was find others guilty of first degree murder to convict Marlin of the same charge.

After these comments, the prosecutor then blurred the lines between the conduct of the others who were actually present on the bridge, according to the state’s evidence, and Marlin Gray, who by all accounts was not on the bridge when the victims were pushed:

Secondly, that they knew that they were practically certain to cause the death of these ladies …the intent was there and they were practically certain and they succeeded in killing these two girls, they succeeded. (Tr. 2456-2457) (emphasis added)

The prosecutor next substituted intent to commit other alleged crimes for the crime of first degree murder, acting as if the following acts of “deliberation” are enough to support a conviction of first degree murder: …We’re talking about you have the time to make various decisions such as to rob or not to, to rape or not to, to rape one and not the other, to rape both . . . (Tr. 2457)

Marlin Gray’s trial counsel properly objected that this argument set forth the law on second-degree, rather than first-degree, murder. The trial court overruled her objection and the confusion continued. The prosecutor first talked about the decision to “leave them alone on the bridge” and “to rob the man”. He then covered the complete lack of evidence of any deliberation by Marlin Gray on the deaths of the victims by artfully reciting a barrage of alleged acts by others when Gray was not even present on the bridge, and without any evidence that he planned or intended that any of these acts take place:

…. The decision to walk them to the hole. The decision to lay them on the platform. The decision to get them up off the platform. The decision to put them on the pier. The decision to push one off. The decision to push the second one off. The decision to tell Thomas Cummins that he better jump or he’s gonna get shot. … We’re talking cool reflection, these are the decisions that these people have had the opportunity to make over a period of time of many minutes; many, many minutes. It wasn’t like that. It wasn’t in sudden passion. It wasn’t in anger. This was cool and calculating. (emphasis added) (Tr. 2457-2458). He knew what was going on. He’s not going to tell you the truth. He’s not gonna tell you the truth about what Reggie – and he discussed walking up there to get these people. And he’s not gonna tell the police or you the truth about what he told to Tony about getting rid of these people after we’ve done it and I’ll go down and make sure and run interference and make sure nobody comes on the bridge while you guys take care of business. (Tr. 2460)

The prosecutor’s argument here clearly misstates the evidence, for nowhere does the trial transcript reflect this participation by Marlin Gray, or any discussion at all, at any time, of a plan or an intent to kill the Kerry sisters or Tom Cummins. The prosecutor’s argument, by completely misstating the evidence, supplied the jury with what the evidence here could not - the intent on Marlin Gray’s part necessary to convict him of first degree murder, thus rendering him eligible for the death penalty.

The preceding examples occurred in the first phase of the state’s closing argument. The same theme pervaded Moss’s final remarks, after defense counsel had made her closing argument and thus could not address the error, other than by objection, which she did not make: So he had Reggie take the guy to the hole and lay him there. (Tr. 2541) …And this man that took Reggie aside to begin with to start the plan and the train rolling down the deck of that bridge, the man that took Tony aside right before they actually executed the rapes and the robberies and told them to get rid of these people, you know, take them to the hole that I’ve shown you afterwards, that went to the end of the bridge not to smoke a joint, not to get a piece of paper and a pencil for a phone number, but went to keep people from interrupting the murder, he knew, he knew he was going to commit. (Tr. 2541-42)

And finally, towards the end of his rebuttal, the prosecutor again lumps all those on the bridge together, impossibly blurring the crucial distinction in the evidence that Marlin Gray was not on the bridge when the Kerry sisters were pushed, and there was no evidence that he instructed anyone to take any action to cause their deaths: They took one to the hole, then they took the other to the hole, you know. (Tr. 2540) They led them to the hole and they slaughtered them without benefit of court, without benefit of attorney, without benefit of a judge, without benefit of somebody being able to speak in their behalf. These fellows executed these people as surely as they have put a bullet in their head. …These people have no regard for human life. These people, including Mr. Gray, have no compassion… (Tr. 2543) (emphasis added)

CONCLUSION

During his twelve years on death row, Marlin Gray has not been involved in any violence in the prison. He has held a job within the prison the entire time, currently working in the library. He is an assistant editor of the Compassion newsletter and an active participant in the prison’s music projects. He has written three manuscripts he is seeking to have published, and over seventy songs. He has maintained close contact with his family, friends and church, all of whom continue to support him and seek his release.

When the state decides to prosecute a defendant on charges of first degree murder as an accomplice, it has the corresponding duty to present evidence beyond a reasonable doubt that this defendant intended to kill. The state clearly failed in Marlin Gray’s case. All it established was that Marlin Gray was not present, did not tell anyone to kill, and was unaware of what others were doing (or even where they were) on an unlit bridge spanning the Mississippi River. There can be absolutely no confidence in the jury’s decision to sentence Marlin Gray to death, and therefore Marlin’s death sentences should be commuted.

WHEREFORE, Marlin Gray prays the Governor for his order appointing a Board of Inquiry, and thereafter commuting his death sentences or granting other and further appropriate relief.

Respectfully Submitted,
Joanne Martin Descher
Kent E. Gipson
Attorneys for Applicant Marlin Gray