A guard’s belated
"recollection" led to the execution of Roy Michael Roberts
Roy Michael Roberts, a 46-year-old
laborer from south St. Louis, was executed at Missouri’s Potosi
Correctional Center at 12:07 a.m. on March 10, 1999, for the murder
of a prison guard 16 years earlier — a crime Roberts insisted he did
not commit. His last words were, "You’re killing an innocent man."
Perverse juxtaposition
In the weeks
preceding Roberts’s execution, Missouri Governor Mel Carnahan had
been the focus of an intense controversy because, in response to a
personal plea from Pope John Paul II, he had granted clemency to
Darrell Mease, a confessed triple murderer. Mease had been scheduled
to die by lethal injection during a January papal visit to St.
Louis.
The Reverend Larry Rice, founder of the New
Life Evangelic Center in St. Louis and one of Missouri’s leading
death penalty abolitionists, contends the Mease clemency thrust the
politically ambitious Carnahan into a defensive posture that
probably sealed Roy Roberts’s fate even before his clemency petition
landed on the governor’s desk. (After the execution, Rice suggested
a campaign slogan for Carnahan, who had recently announced his
candidacy for the U.S. Senate in 2000: "I’ll kill for this job.")
The Mease-Roberts life-death juxtaposition was perverse: Due to the
coincidental timing of John Paul’s Missouri trip, a killer whose
multiple victims included a paraplegic, is alive. Yet a man who had
unwaveringly professed innocence, who had passed a lie-detector test,
who had earned two college degrees in prison, who had been condemned
on the testimony of dubious witnesses — prison guards who were
contradicted by a fellow guard and a parade of defense witnesses —
is dead.
The crime
The crime for
which Roberts died was the 1983 murder of a guard at a medium
security prison in Moberly, Missouri, where Roberts was serving the
final months of a sentence for a 1978 armed robbery. The victim, 62-year-old
Thomas G. Jackson, Jr, was stabbed to death during a melee involving
drunken prisoners.
During the initial
investigation, which included searches of cells for evidence and
interviews with every guard and prisoner in any proximity to the
killing, no evidence was found that in any way appeared to implicate
Roberts. Not a single witness, guard or prisoner, ascribed any role
whatsoever to Roberts.
Blood-stained clothing and
shanks were seized from two other prisoners, Rodney Carr and Robert
Driscoll, who wound up as Roberts’s co-defendants, but Roberts was
not identified as a participant until two weeks after the fact. The
belated allegation against Roberts came from Denver Hawley, a guard
Roberts claimed bore him grudge stemming from his refusal to work in
the prison laundry. Hawley denied any such grudge, but somehow never
could explain why, in two previous reports on the riot, he had
neglected to mention Roberts.
The trial
At trial, Hawley’s testimony was corroborated by
two other guards, both of whom also initially had not implicated
Roberts. However, a fourth guard testified that Roberts was at the
other end of the tier when Jackson was murdered; thus, he could not
have been guilty. A prisoner who corroborated Hawley at trial
subsequently recanted, saying he had been coerced by prison
officials to falsely implicate Roberts.
Although Roberts’s co-defendants did not testify
at his trial (they were awaiting trial themselves at the time) both
later said Roberts was not involved. One co-defendant, Rodney Carr,
the only one, ironically, against whom prosecutors had a solid case,
received only a life sentence. The other, Robert Driscoll, was
sentenced to death, but won a new trial in a federal habeas corpus
proceeding after showing that Dr. Kwei Lee Su, chief forensic
serologist for the Missouri State Police, withheld evidence that
blood on a shank found in his cell could not have been Jackson’s.
Driscoll was again convicted and again sentenced to death for the
crime in December of 1999, but that conviction was overturned by the
Missouri Supreme Court in September of 2001. By then Driscoll was 60
and already serving life on other charges, and he was not retried.
Polygraph test
On
February 19, 1999, against his lawyer’s advice, Roy Roberts took a
polygraph examination administered by a recently retired Kansas City
Police Department polygraph examiner. Asked whether he had been
involved in the slaying of Thomas Jackson, Roberts answered he had
not, truthfully in the examiner’s opinion.
Despite all the doubts about Roberts’s guilt,
Carnahan summarily denied his clemency petition.
In addition to the questions about Roberts’s
involvement in the Jackson slaying, there is another perplexing
aspect of the case — the very real possibility that at the time of
the Jackson murder Roberts was in prison for a crime he did not
commit. Another man, Carl Harris, told the St. Louis Post-Dispatch
that he committed the 1978 armed robbery for which Roberts was doing
time. (Other than the armed robbery and the Jackson murder,
Roberts’s only other conviction had been for the theft of a radio in
1977.)
Missouri authorities contended that
Harris’s confession lacked credibility because it was not made until
21 years after the crime, long after the statute of limitations had
run on the armed robbery and because Harris and Roberts had been
roommates in 1978. Since Harris could not be prosecuted, the
authorities contended, he might have been lying to help his former
roommate. But the equally plausible theory is that Harris is telling
the truth.
The robber wore a mask, and the victims
identified Roberts by his stature and voice. Harris and Roberts
apparently looked and sounded a lot alike in those days. The victims
easily might have mistaken one for the other. Since there was no
physical evidence linking Roberts to the crime, that makes Roberts's
guilt any more likely than Harris's.
In any event,
there was nothing in the Jackson murder case to make Roberts's guilt
appear more likely than his innocence. Rather, it seems to be the
other way around.
The foregoing summary was prepared by Center
on Wrongful Convictions Executive Director Rob Warden. The summary
may be reprinted, quoted, or posted on other web sites with
appropriate attribution.
Case data:
Jurisdiction: Marion County, Missouri
Date of birth: NA
Date of crime: July 3, 1983
Age at time of crime: 30
Date of arrest: NA
Gender: Male
Race: Caucasian
Trial counsel: Tom Marshall (court-appointed)
Convicted of: Capital murder (prison guard)
Prior adult felony conviction record: Armed robbery (of which
Roberts may have been innocent) 1978; theft, 1977
Trial judge: Ronald R. McKenzie
Key Prosecutor(s):
No. of victims: 1
Age of victim: 62
Gender of victim: Male
Race of victim: Caucasian
Relationship of victim to defendant: Prison guard where Roberts was
incarcerated
Evidence used to obtain conviction: Testimony of prison guard, who
belatedly identified Roberts, and informant testimony
Major issues on appeal: Accomplice liability, sufficiency of the
evidence
Evidence suggesting innocence: Statement of co-defendant that
Roberts was not involved.
Date of execution: March 10, 1999
Time lapse crime to execution: 5,936 days
Final appellate counsel(s): Bruce D. Livingston, Moscow, Idaho, and
Leonard J. Frankel, Clayton, Missouri
Center on Wrongful Convictions
Clemency Application of Roy Michael Roberts
In the Offices of the Governor and the Missouri
Board of Pardons and Parole
Roy Michael Roberts, Applicant, v. State of
Missouri, Respondent.
Application of Roy Michael Roberts to Governor
Mel Carnahan for Executive Clemency
Innocent of the crime for which he was convicted
and sentenced to death, applicant Roy Michael Roberts applies to
Missouri Governor Mel Carnahan for an order granting Roberts
executive clemency, or, alternatively, either commuting his death
sentence to life without parole, or staying the execution and
convening a board of inquiry.
Executive clemency exists precisely for cases
like this. Governors who have previously granted clemency to
inmates with claims of innocence did so based on doubt about guilt.
Concern about the horrible possibility that their state might
execute an innocent man forced each of these Governors to the same
conclusion: mercy must be shown and clemency granted if there is any
doubt as to guilt.
"While there is guilt for Ronald Monroe, in an
execution in this country the test ought not be reasonable doubt;
the test ought to be is there any doubt." - Louisiana Governor Buddy
Roemer, quoted in, J. Wardlaw & J. Hodge, "Execution Halted by
Roemer", New Orleans Times-Picayune, Aug. 17, 1989.
"I cannot in good conscience erase the presence
of a reasonable doubt and fail to employ the powers vested in me as
governor to intervene." - Virginia Governor L. Douglas Wilder,
quoted in The Washington Post, Jan. 24, 1992, Sec. D1 (grant of
clemency to Herman R. Bassette Jr.).
"The first question I ask in every case is
whether there is any doubt about the individual's guilt or innocence.
This is the first case since I have been the governor when the
answer to that question was 'yes'.... I take this action so that
all Texans can continue to trust the integrity and fairness of our
criminal justice system."- Texas Governor George W. Bush, Dallas
Morning News, Saturday, June 27, 1998, Editorial, Sec. 24A, story
Sec. 12A. (granting clemency to Henry Lee Lucas).
"There was more than sufficient evidence to show
he was guilty, but there were some questions as far as I was
concerned. I was able to get some information that I know the
judges and jurors did not necessarily receive. Some of the evidence
came in after the trial." - Virginia Governor George F. Allen,
quoted in, The New York Times, Nov. 10, 1996 (commutation of the
death sentence of Joseph Payne).
"My decision finally was reached by some slight
tinge of doubt about both the commission of the crime and the
location of the crime.... I'd have to say in the main that I lean
toward the prosecution side. However, as I mentioned, if there's
the slightest doubt, I'm reluctant to have a man executed." - Idaho
Governor Phil Batt, quoted in, M. Trillhaase, "Batt Spares Paradis'
Life," The Idaho Statesman, May 25, 1996, p. 1A.
A fair and reasoned examination of the facts of
this case must create not just any doubt, but reasonable doubt as to
Roberts' guilt. We implore Governor Carnahan to have the courage to
exercise his clemency powers in this difficult and troubling case,
lest the State of Missouri suffer the shame and infamy of executing
an innocent man.
INTRODUCTION
Roy Roberts was convicted and sentenced to death
for his alleged participation in the stabbing death of a prison
guard, Thomas Jackson, during a July 3, 1983 riot in the state
prison in Moberly, Missouri, the Moberly Training Center for Men.
Roberts was never accused of stabbing Jackson. Roberts was accused
and convicted based on testimony that identified Roberts as the
person who restrained Jackson during the riot while other inmates
stabbed and murdered Jackson. The murder occurred in the midst of
the bedlam and confusion caused by over thirty rioting inmates. Roy
Roberts has always maintained his innocence.
All of the surviving guards, that could identify
who stabbed Jackson, identified Rodney Carr as the stabber. Carr
was convicted of capital murder but received a sentence of life
imprisonment, rather than death. Another inmate, Robert Driscoll,
was also convicted and sentenced to death for stabbing Jackson, but
Driscoll's conviction was reversed in 1995 after it was discovered
that the prosecution had misled the jury into believing that the
dead guard's blood was on Driscoll's knife, when in fact no such
blood was present. See Driscoll v. Delo, 71 F.3d 701 (8th Cir.
1995).
Driscoll has yet to be retried for the crime.
Thus, Roberts is the only person under sentence of death for the
crime, even though he is the least culpable, even under the State's
version of the evidence. This disproportionality pales in
comparison, however, to that which arises if, as we contend, Roberts
is indeed innocent of the crime.
Roberts' claim of innocence is supported by three
main points. First, the initial statements of all the eyewitnesses
against Roberts at trial failed to describe or mention Roberts as
being near Officer Jackson, much less holding Jackson while he was
stabbed. The failure of the eyewitnesses to identify Roberts
initially raises grave doubts about their later testimony against
him. Roberts, a 300 pound behemoth, should have been impossible to
miss while allegedly restraining Jackson in a headlock and crushing
him against a wall and door frame as Jackson was repeatedly stabbed.
Despite the glaring omission of any
identification of Roberts by each of the eyewitnesses against him in
their initial statements, Roberts' counsel failed to cross examine
all but one of those eyewitnesses on that omission at trial. The
negligence of appointed counsel thus precluded the jury from
learning that the eyewitness identifications of Roberts, the only
evidence against him, were thoroughly suspect.
Second, no physical evidence ties Roberts to the
bloody scene of Jackson's death, where Roberts' allegedly restrained
Jackson in a headlock while he was stabbed in the eye, heart and
abdomen. Though the guards were on the lookout for bloody clothes,
and indeed confiscated such clothes from Robert Driscoll, Roberts'
clothes were scrutinized after the riot, but were not confiscated
because they were not bloody.
Third, on February 19, 1999, to prove his
innocence, Roy Roberts took a polygraph (lie detector) test,
administered by a well-respected, retired Kansas City police officer/polygrapher.
Despite being under the stress of a warrant for execution, Roberts
passed the polygraph. His test results showed "no deception" in his
answers denying involvement in the murder, including specific
denials that he was holding the victim during the stabbings.
All attempts at relief in the courts have failed.
An appeal for clemency to Governor Carnahan is Roberts' only hope.
DOUBTS ABOUT ROBERTS' GUILT AND THE POSSIBILITY
THAT HE IS INNOCENT COMPEL THE EXERCISE OF THE GOVERNOR'S CLEMENCY
POWERS TO PREVENT ROBERTS' EXECUTION.
A. THE "EYEWITNESS" IDENTIFICATIONS AT TRIAL ARE
INHERENTLY UNRELIABLE AND SUSPECT.
At Roberts trial, four witnesses testified in the
guilt phase that Roberts was holding Jackson when Jackson was
stabbed. Three witnesses were guards, Denver Halley, Robert Wilson
and Wayne Hess, and one was an inmate, Joseph Vogelpohl. At first
blush, four eyewitnesses might seem like a strong case for guilt.
The facts are otherwise.
As set forth in greater detail below, each of
these four witnesses gave initial statements shortly after the riot
which omitted any mention or description of Roy Roberts. The
inability of anyone to identify Roberts as the inmate who restrained
Jackson in the two weeks following the riot is particularly
troubling, given Roberts' easily recognized size at the time of 300
pounds. Further, and of great significance to the fairness of
Roberts' trial, his appointed lawyer, Tom Marshall, failed to
question these witnesses, save one, about their prior inconsistent
statements. The jury was led to believe that the eyewitness
identifications of Roberts were far more reliable and trustworthy
than was in fact the case.
Before addressing the specifics of the
eyewitnesses failure to describe or name Roberts initially in their
individual statements, it is worthwhile to put the scope and extent
of the murder investigation in perspective by examining the summary
report by the Department of Corrections' internal affairs
investigator, Mark Schreiber. Two weeks after the riot, Schreiber
submitted a 17 page internal investigation report of the murder.
That memo does not mention Roy Roberts.
The report confirms that nobody knows who, if
anyone, was holding Jackson while he was being stabbed. The DOC's
report on the riot, dated July 18, 1983, is telling in its omission
of any mention of Roy Roberts, and in its suggestion that hypnosis
be used to identify more suspects. Schreiber's report concluded
that additional participants might not ever be identified, because
of difficulties in identifying any other assailants of Officer
Jackson, other than, of course, those mentioned in the Supplemental
Report, inmates Driscoll and Carr. Schreiber's conclusion bears
reprinting in its entirety here, as it underscores the completeness
of the investigation to that point, makes the candid assessment that
no further suspects were likely to be identified, and significantly
undermines the credibility of the subsequent identification
testimony against Roberts:
Conclusion
Every investigative effort has been and is being
made to determine the identity of and to bring to justice the
individual or individuals who are responsible for the death of CO/I
Thomas Glen Jackson and the subsequent assaults upon other
correctional officers at MTCM on July 3, 1983. Due to the number of
inmates who were intoxicated and who, to varying degrees
participated in the riot, the full extent of the number and identity
of those involved may never be known. The greatest obstacle which
has hampered ongoing investigation thus far has been the inability
of potential eyewitnesses to remember anything as to the identity of
the officers' assailants. This is not to say that the officers have
not honestly made such attempts. The hard facts are that when one
is fighting for life itself there is no time to sit down and take
notes.
It was suggested by Sgt. L. Dale Belshe that
perhaps it might be beneficial if the officers involved were to be
placed under hypnosis if they are willing. I feel that such an
investigative procedure might be of benefit. Sgt. Belshe has
indicated that he is willing to make the arrangements.
A continued effort will be made to identify any
individual who was involved in the acts of violence which took place
on July 3, 1983. The important factor in an investigation of this
magnitude is not who or what agency receives the credit but that
agencies working together as a single effective investigative unit
do all that is possible within the realm of police science to solve
the problem for the benefit of all concerned.
Memo to W. David Blackwell from Mark S. Schreiber,
dated July 18, 1983, Re: Supplemental Investigation - MTCM Incident
of July 3, 1983, at p. 17 (emphasis added). Memo Attached as
Exhibit A.
Roberts has never denied that he was involved in
the riot and engaged in fisticuffs with prison personnel. Officer
Kroeckel testified that he and Roberts fought in a fist-fight in the
control center, Trial Transcript ("TT") at 243-45. This Roberts did,
along with 20-40 other inmates, many of whom have presumably served
their sentences and are now walking the streets of Missouri. See TT
at 240 (testimony of Officer Kroeckel that 20-30 inmates were
fighting in the control center); id. at 317 (testimony of Officer
Hess that 25-40 inmates involved); id. at 372 (testimony of Officer
Humphrey that 30-35 inmates involved).
What Roberts did not do was hold Officer Jackson
while he was being stabbed and thereby prevent Jackson's escape from
whatever murderous inmate was stabbing him. Many inmates testified
that Roberts did not restrain Jackson. They are not alone. Officer
Kroeckel acknowledged that Roberts fought with him, and agreed that
he did not see Roberts holding Jackson. TT 245.
The testimony of four people convicted Roy
Roberts of the crime for which he is sentenced to die. Examination
of their initial statements and comparison to each person's trial
testimony reveals how radically different the trial testimony is.
Clearly, the witnesses in this case got their story "straight" over
time and aimed it directly at Roy Roberts. Such "evolving"
testimony is inherently suspect and raises serious doubts of Roberts'
guilt.
Captain Denver Halley was the ranking officer
during the riot. He testified at trial that from a foot away
through the glass window, TT 254, he saw Roberts hold Jackson "by
the arm and also by the hair of the head and keeping him right up
against the door casing." TT 256. Halley testified that "while
Roberts was holding him, I would see Jackson jerking and blood
getting all over him." TT 257. Halley further testified that when
Halley attempted to rescue Jackson, Roberts let go of Jackson to hit
Halley, and thereafter, Roberts re-took his hold on Jackson. TT
257-58. Excerpts of Halley's trial testimony are attached as Ex. B.
After the riot, Halley wrote a report that
night. TT 269; Transcript of Rule 27.26 Motion Hearing ("PCR TR")
at 29. Excerpts of Halley's PCR TR testimony are attached as Ex. C.
Halley's signed report, dated 3:17 a.m. on July 4, 1983, is attached
as Ex. D ( originally marked as PCR TR Ex. 11). At the time of the
riot, Halley knew Roberts. PCR TR 36, Ex. C. Moreover, he later
described Roberts as standing out "like a red rose in the Sahara
desert." Deposition of Denver Halley in the Robert Driscoll case at
9, excerpt attached as Ex. E.
Despite Roberts' great size and the specificity
of later trial testimony, Halley failed to mention Roberts in his
initial statement on July 4. Ex. D. Halley identified only a mob
of inmates, no individuals, and stated that "they" were holding him.
Id.
They [Goodin and Kroeckel] arrived at the steps
leading out of the wing with this inmate, and he went to hollering
and [at] that time approximately 35 or maybe 40 inmates came running
to us. They grabbed Officer Tom Jackson first and had him up
against the door, and approximately, I would say, 12 or 14 inmates
were trying to come out into the Rotunda. Officer Goodin, Officer
Wilson, Lt. Kroeckel, and myself -- Captain Halley -- we went to
fighting these inmates. a number of them were armed with iron bars
and knives. I attempted to help Officer Jackson get away from the
inmates. They were holding him and during this procedure, I was
knocked down twice, plus was hit in the arm with a pipe. I heard
Officer Jackson holler and I finally managed to drag him out. He
was bleeding profusely and I dragged Officer Jackson across the
Rotunda and knew at that time that he was dying.
Ex. D, Statement of Denver Halley dated July 4,
1983 (emphasis added).
Sixteen days later and two days after DOC
Internal Affairs investigator Mark Schreiber submitted his report,
Ex. A, Halley submitted an investigation report identifying Roberts
for the first time as "one of the inmates" holding Officer Jackson.
Ex. F, Halley statement dated July 20, 1983.
Two days after the DOC report acknowledged that
no more inmates were likely to be identified, Halley selected the
biggest and most noticeable inmate to have been in the riot and
suddenly implicated him as one of the persons holding Roberts. The
evolution of Halley's testimony had begun. That evolution continued
and culminated with Halley's trial testimony, in which he stated
that Roberts, alone, was holding Jackson.
Correctional Officer Robert Wilson likewise
testified at trial that Roy Roberts held Jackson around the neck, TT
296, and that Roberts was the one preventing Jackson from getting
away. TT 299 (Wilson trial excerpts attached as Ex. G). Wilson's
initial statements are far different:
Officer TG Jackson, KF Goodin & DL Kroeckel went
in B wing and brought out a man who was intoxicated.
As they was bring the man out the door about 30 t
40 inmates busted out the wing door after us. I grabbed one inmate
by the head and was hitting him. He came out with a knife and cut
me on the left hand. Then (S) went for officer T.G. Jackson. At
this time Officer Humphrey hit him with bat & (S) went down.
The other inmates drug back into the wing.
By then I was fighting with anoughter (sic)
inmate & the other officers got the wing locked down.
Ex. H, Wilson Statement, dated 2:30 a.m on July
4, 1983. Obviously, there is no mention of Roberts in this
statement. Nor is there any mention of Roberts in Wilson's next
statement, which is much more complete and states in pertinent part:
As they were bringing the drunken inmate out of
the wing approximately 35 inmates rushed us. Inmate Rodney Carr #
38428 rushed out the door toward myself. I grabbed inmate Carr
around the neck from behind and started hitting him with my
flashlight. He pulled a shank and cut me across the left hand
freeing himself from my grip. Lunged forward approximately 3 feet
sticking Officer Jackson in the chest area.
At this time Officer Hess grabbed inmate Carr and
they began to scuffle. Carr got in behind Hess and stuck him in the
right shoulder. Officer Humphry hit inmate Carr behind the head
with a ballbat knocking him to the floor. Carr then dropped the
shank as he fell. At this time an unknown inmate hit me in the
right shoulder knocking me to the floor. as I was getting up I
picked up the shank that Carr had dropped and stuck it in back of my
belt. Inmates began dragging Carr and other inmates back into the
wing giving us enough time to get the wing doors shut and locked.
Myself, Officer Kroeckel and Halley placed
Officer Jackson onto a stretcher [illegible] to the prison
hospital. Officer Humphry Lt. Kroeckel and a inmate accompanied
Officer Jackson to the hospital. Capt. Halley and a new officer by
the name of Dillon ran to the administration building to get
shotguns and more help. Myself, Officer Goodin and Officer Hess
stayed back to hold down the house. Inmates from all four wings
were hollering, breaking glass and preparing to come into the
Rotunda after us. After approximately 10 minutes Capt. Halley,
Officer Dillon and Lt. Arney returned with shotguns. The order was
given for the inmates to return to their cells. Some of them did,
most did not! At this time Capt. Halley & Lt. Arney & myself began
firing into the wings & the inmates ran for their cells.
Ex. I, Wilson statement, dated July 10, 1983.
More than two months later, Wilson's statement was virtually the
same, still without any reference to Roberts. Ex. J, Report of
Officers Merritt and Ullery dated September 13, 1983 (previously
identified as PCR TR Ex. 6).
Wilson admitted that he "knew" inmates Carr and
Roberts. Ex. K, Robert Wilson deposition in Robert Driscoll case at
5-6. Yet despite this knowledge and Roberts' large size, Wilson
named only Carr and failed to identify Roberts in either of Wilson's
initial statements.
Wayne Hess, too, failed to identify Roberts in
his initial statements. He gave two statements, one dated July 4,
1983, Ex. L, and another dated July 9, 1983. Ex. M. In the July 4
statement, Hess stated that "three or four inmates had ahold of his
[Jackson'] head and tried to pull him back into the wing." Ex. L,
p. 3. Hess was "right beside him," but Hess did not know any of
those inmates. Id. Hess only remembered Carr and affirmatively
stated that he did not remember any other inmates that were directly
involved in the incident. In the July 9 statement, Hess states that
"some of the inmates had Jackson in a headlock." Ex. M, p. 2. He
then went on to say that the next day he had been shown photos of
inmates, "one I remember was Carr, I think Driscoll, Batey or
something like that, and one other I don't remember. I looked at
one picture of Carr and I stated this was the man who done the
stabbing." Ex. M, p.3.
Hess' failure to identify Roberts in these
statements is particularly significant, because Prosecutor Finnical
admitted in the Rodney Carr trial that Hess was shown a photograph
of Roy Roberts before Hess went to the line-up on July 4. Ex. N,
Hess testimony from trial of Rodney Carr. Thus, Hess failed to
identify Roberts as an inmate who restrained Jackson in a statement
made shortly after Hess was shown Roberts' picture on July 4, Ex. L,
and again on July 9. Ex. M.
The prosecution attempted to hypnotize Hess to
bolster his memory, Ex. O (PCR TR Ex. 3), and still he did not
identify Roberts. Ex. O at 6, 12. Hess could not identify Roberts
in Hess' initial statements, notwithstanding that he admitted that
he knew "Hog" Roberts as the largest man in the wing and knew him by
that name. Ex. P, Hess' 27.26 testimony at 16-18.
Nevertheless, Hess' testimony at trial was very
specific, alleging that Roberts, a man he had "seen around" before
and who weighed "about 300 pounds," had Jackson "in a headlock and
Tom Jackson couldn't get away to defend himself." TT 305. Given
these circumstances, Hess' trial identification of Roberts is
particularly dubious.
Inmate Joseph Vogelpohl was the only other
witness who identified Roberts in the guilt phase as the person who
restrained Jackson while he was stabbed. Vogelpohl, too, was unable
to identify Roberts initially. In Vogelpohl's initial statement on
July 4, 1983, Ex. Q, he totally failed to mention Roy Roberts.
Despite his later claim to having witnessed Jackson's murder, all he
said in his initial statement was that: he'd seen Robert Driscoll
assemble a knife in his cell; then, while near the rotunda from five
feet away he saw Driscoll "punch at" Officer Jackson; and finally,
he'd returned to his cell, where Driscoll also returned and said to
Vogelpohl that Officer Jackson "had got stuck." Ex. Q.
In his statement Vogelpohl announced that he was
making a statement so that he wouldn't "take the rap" for the crime.
Id. In his subsequent statement to Officers Merritt and Ullery on
October 3, 1983, Vogelpohl stated that Driscoll and John Bolin were
the inmates who stated that the inmates should stop the guards from
taking Jimmy Jenkins out of the wing, and that Bolin said "let's
rush them." TT 341. Vogelpohl also wrote a letter to a friend,
Dewitt Burns, saying that he heard that Ed Ruegg, not Roberts, had
held Jackson. TT 335.
At trial, however, Vogelpohl's testimony turned
on Roberts. First, he stated that Roberts had been the person who
suggested that the inmates should "rush" the guards. TT 326-27.
Then he stated that Roberts had stopped Jackson at the wing door, TT
328, and that he had seen Driscoll stab Officer Jackson while
Roberts held him. TT 329. Excerpts of Vogelpohl's testimony is
attached as Ex. R. Vogelpohl's evolving testimony should be seen
for what it was, an attempt to evade "the rap" for being in a riot
five feet from the murdered guard, and an attempt to curry favor to
get paroled early.
Thus, by the time of trial, the State presented
four witnesses in the guilt phase who gave relatively unambiguous,
chilling testimony that placed Roberts at the scene as the one and
only person restraining Jackson. The dramatic change in the
specificity of these witnesses from the time of the riot until trial,
in which their stories coalesced and "matured" into adamant
certainty that Roberts restrained Jackson and was the sole person to
do so, by itself creates significant questions about Roberts' guilt.
The changes in testimony are too dramatic to be believed and seem to
confirm the rumor that Prosecutor Finnical was out to get "three for
one," no matter what the cost in terms of integrity or reliability.
The questions raised by the changes in testimony creates a
reasonable inference that the State of Missouri may be intending to
execute a man who may well be innocent.
B. NO PHYSICAL EVIDENCE CONNECTS ROY ROBERTS TO
THE MURDER OF OFFICER JACKSON.
No physical evidence connects Roy Roberts to the
murder of Officer Jackson. It is uncontroverted that Roberts did
not have a weapon. Despite the extensive amount of blood spilled by
Officer Jackson, there is no evidence of any blood on Roberts or his
clothes. It defies belief that Roberts could have restrained
Jackson as described by the adverse eyewitnesses, and not gotten
blood on himself.
Roberts was described as having Jackson around
the neck, TT 296 (testimony of Wilson), in a headlock, TT 305 (testimony
of Hess), and "by the arm and also by the hair of the head and
keeping him right up against the door casing." TT 256 (testimony of
Halley). The bleeding from Jackson was profuse. Halley described
it as "while Roberts was holding him, I would see Jackson jerking
and blood getting all over him." TT 257.
The blood was "all over the front and side of
Jackson's shirt" and was "very, very obvious." TT 258. Halley said
that Jackson looked like a "butchered hog." TT 281. Jackson's
shirt looked like "solid blood." TT 375 (testimony of Officer
Humphrey). Given Roberts' supposed close contact with Jackson and
the amount of spilled blood, Roberts should have been soaked with
blood.
After prison guards quelled the riot, the inmates
were locked into their cells. TT 266 (Halley testimony).
Thereafter each room was searched, and the inmates were personally
searched. TT 267. Robert Driscoll's clothes were collected from
his room and analyzed because they appeared to be covered with blood.
See Driscoll v. Delo, 71 F.3d 701, 707 (8th Cir. 1995) (blood
analysis conducted on the recovered knives, Officer Jackson's
clothes, "and the clothes worn by various inmates, including
Driscoll, on the night of the riot"). Notably, Roberts' clothes
were not saved, tested or ever offered into evidence against him.
The fact that Roberts clothes were not tested or
confiscated directly correlates to the absence of blood on them. At
the time of the riot, Willie Dennis was a major at the Moberly
prison. On February 20, 1999, Dennis spoke with Roberts'
investigator, Richard S. Hays of the Federal Defenders of Eastern
Washington and Idaho. Major Dennis told Mr. Hays that he arrived at
the prison within an hour of the death of Officer Jackson and
relieved the guards that were involved in the initial disturbance.
Major Dennis acknowledged that he supervised the
removal and transfer of inmates from their cells in Wing B who were
thought to have been involved in the riot. Major Dennis
acknowledged that he supervised the removal of Roy Roberts from his
cell, and that he saw no blood on Roberts. Major Dennis further
stated that he would have confiscated any article of clothing or
other item for evidence, if blood was on it. Affidavit of Richard
S. Hays, attached as Ex. T. Major Dennis' claim that he was looking
for blood on clothes is corroborated by the record of confiscated
clothes in this case. See Driscoll v. Delo, 71 F.3d at 707.
The absence of blood on Roberts' clothes raises
serious questions about his participation in the murder of Officer
Jackson. The likelihood that the witnesses are correct in their
description of Roberts' alleged restraint of Jackson is highly
improbable.
C. ROY ROBERTS PASSED A POLYGRAPH TEST THAT
INDICATED "NO DECEPTION" WHEN HE DENIED INVOLVEMENT IN JACKSON'S
MURDER AND DENIED RESTRAINING JACKSON WHILE JACKSON WAS BEING
STABBED.
To prove his innocence, Roy Roberts insisted upon,
took and passed a polygraph (or lie detector) test on February 19,
1999 at the Potosi Correctional Center while under a warrant of
execution set for March 10, 1999. Despite the stress involved in
taking a test under those conditions, Roberts' test results were
clear: "no deception" in his denial of involvement in Jackson's
murder.
Donald I. Dunlap, A.C. P., administered the
polygraph test. Mr. Dunlap retired after thirty years with the
Kansas City, Missouri Police Department. Dunlap served as a
polygrapher for the last 24 years of his service with the Kansas
City Police Department. He spent nine years as a full-time
polygrapher, followed by more than 15 years as Chief Polygraphist of
the department. Since Dunlap's retirement in 1985, he has worked in
private practice, presently under the name of Don Dunlap &
Associates. He is a highly respected polygrapher who has continued
to work for law enforcement, such as the Benton County Sheriff's
Department, as well as the Missouri Public Defender's Office, and
various private attorneys. His resume is attached as Ex. U.
The polygraph report of the Roberts examination
on February 19th is attached as Ex. V. That report reaches the
following conclusion:
It is the opinion of the polygraphist that
deception was not indicated in this person's polygraph records when
he answered the following questions as indicated:
1. When Jackson was being stabbed, were you
holding him in any way? Answer, No.
2. When Jackson was being stabbed, were you
holding him by the hair? Answer, No.
3. Just before Jackson was stabbed, did you pin
him against a door casing? Answer, No.
4. While Jackson was being stabbed, did you have
any physical contact with him? Answer, No.
Ex. V, Letter Report of Don Dunlap & Associates
to Bruce D. Livingston, dated February 20, 1999, Re: Roy Michael
Roberts Polygraph Interview.
The U.S. Supreme Court recently addressed the
admissibility of polygraph evidence in the military courts. United
States v. Scheffer, 118 S.Ct. 1261 (1998). The Supreme Court
recognized the trend toward admissibility of such evidence, 118 S.Ct.
at 1265-66, though the Court declined to recognize a constitutional
right to present polygraph evidence based on a lack of consensus
within the lower courts on the reliability of polygraphs. Id. In
dissent, Justice Stevens compiled the evidence on the reliability of
polygraphs:
There are a host of studies that place the
reliability of polygraph tests at 85% to 90%. While critics of the
polygraph argue that accuracy is much lower, even the studies cited
by the critics place polygraph accuracy at 70%. Moreover, to the
extent that the polygraph errs, studies have repeatedly shown that
the polygraph is more likely to find innocent people guilty than
vice versa. Thus, exculpatory polygraphs -- like the one in this
case -- are likely to be more reliable than inculpatory ones.
Scheffer, 118 S.Ct. at 1276 (Stevens, dissenting)
(footnotes omitted) (emphasis added). Like the defendant in
Scheffer, Roberts, too, passed the more reliable polygraph-- an
exculpatory one. See Scheffer, 118 S.Ct. at 1276 n.22 (compiling
studies that show exculpatory polygraphs to be more reliable than
inculpatory polygraphs).
The polygraph that Roberts passed was reliable
not only because it was exculpatory, but also because the
examination was administered by a respected, experienced, former
member of law enforcement, Don Dunlap. As the chief Polygraphist
for the Kansas City Police Department for over 15 years, Dunlap's
qualifications are impeccable. As a former police officer, Dunlap
is decidedly unlikely to be inclined to favor an accused guard-killer
through questionable interpretations of the test results. Dunlap's
finding that Roberts passed an exculpatory polygraph test is
powerful additional evidence that Roberts is innocent of the crime
for which he has been sentenced to death.
Clemency proceedings have turned upon polygraph
results previously. Virginia Governor Douglas Wilder would have
granted clemency to Roger Coleman in 1991, had Coleman passed a
polygraph test. J. Tucker, "May God Have Mercy: A True Story of
Crime and Punishment," W.W. Norton & Co. (1997), at 280-81, 300-01.
When Coleman failed to pass the polygraph, Governor Wilder declined
to intervene. Id. at 312. Coleman's polygraph was given under
extreme circumstances, hours before his scheduled execution. Id. at
305-14. Though that test, which was inculpatory, suffered from more
significant reliability concerns than Roberts' exculpatory polygraph,
it provides precedent for considering polygraph results in making a
clemency decision.
Given the greater reliability of Roberts'
exculpatory polygraph, one must have serious doubts about his guilt.
Roberts' polygraph result strongly supports his claim of innocence
and provides Governor Carnahan with yet another reason to intervene
in this case.
CONCLUSION
In conclusion, Roberts implores Governor Carnahan
to stop the execution scheduled for March 10, 1999. Roy Roberts
deserves clemency, and at least commutation or a board of inquiry.
The State of Missouri must not proceed with this execution. The
possibility that Roberts may be innocent is too real. Allowing
Missouri's machinery of death to continue to operate, wheeling an
innocent man on a gurney to the execution chamber in Potosi, is too
horrible to contemplate -- the ultimate miscarriage of justice.
This application for clemency raises doubts about Roberts' guilt,
significant doubts. Those doubts cry out for Governor Carnahan's
intervention and mercy. Let not Missouri be the State that
knowingly executes an innocent man.
We urgently and respectfully request that
Governor Carnahan halt the execution of Roy Michael Roberts.
Federal Defenders of Eastern Idaho and Washington
Capital Habeas Unit
