DEAD-Locked: Evaluating Judge-Imposed Death Sentences Under Missouri's Death Penalty Statute.

AuthorEssma, Michael J.

    On October 6, 2017, Judge Kelly Parker, a St. Charles County circuit judge in Missouri, sentenced Marvin Rice to death for the murder of his girlfriend, Annette Durham. (1) Parker's sentencing came in spite of eleven of twelve jurors voting to sentence Rice to life imprisonment instead. (2) The jury found Rice guilty of first-degree murder for killing Durham and guilty of second-degree murder for killing Durham's boyfriend--Steven Strotkamp. (3) With respect to the first-degree murder charge, the jury did not unanimously decide whether Rice should be sentenced to life without parole or death. (4) The "deadlock" provision of Missouri's death penalty scheme allows a judge to make the ultimate determination of life or death when the jury cannot reach a unanimous decision. (5) Since all twelve members were not able to make a determination, the jury deadlocked, and the decision was ultimately made by Judge Parker. (6)

    Marvin Rice's case is not unique in Missouri. In 1994, Joseph Whitfield was also sentenced to death by a judge after the jury voted eleven-to-one in favor of life without parole. (7) In fact, a jury has not sentenced anyone to death in Missouri since 2013. (8) Overall, Missouri judges have imposed death sentences after a jury deadlock fifteen times since the provision was created in 1984. (9)

    These cases of judicially imposed death sentences are, however, unique in the United States. Only Missouri and Indiana allow a judge to impose a death sentence after the jury deadlocks on the ultimate determination of whether to sentence a defendant to death. (10) These two states authorize judge-imposed death sentences because of U.S. Supreme Court precedent that allows judges to only make sentencing determinations. (11) These cases emanate from the Sixth Amendment protection of a jury trial for criminal defendants. (12) Still, Eighth Amendment restrictions on implementation of the death penalty muddy the distinction between sentencing and findings of fact required to be made by a jury under the Sixth Amendment. Since the consequences of the death penalty are the highest possible, people should be confident that the Missouri death penalty scheme provides defendants their constitutional protections. Yet, many people question whether this is true. (13)

    This Note evaluates whether the Missouri death penalty scheme meets Sixth Amendment and Due Process Clause requirements. Part II explains the Missouri death penalty scheme, the Missouri Supreme Court's conflicting interpretations of the scheme, and the confusion that has been created by this precedent. Next, Part III dissects the Missouri Supreme Court's recent decision in State v. Wood, which found the Missouri death penalty does not violate the Sixth Amendment. Part IV addresses whether the weighing of aggravators and mitigators can ever be a sentencing factor. Then, Part IV considers whether Missouri's death penalty statute makes the weighing of aggravators and mitigators a factual finding, despite no constitutional requirement to do so. Finally, Part IV argues that Missouri can and should fix its death penalty statute to leave no doubt that all constitutional protections are afforded to defendants in death penalty cases.


    The Sixth Amendment of the U.S. Constitution guarantees "in all criminal prosecutions . . . a speedy and public trial by an impartial jury . . . ." (14) Further, the Fourteenth Amendment's Due Process Clause requires that a jury find each element of a crime "beyond a reasonable doubt." (15) These two safeguards for criminal defendants appear straightforward, but they become complicated when applied to "bifurcated trials," which are used to impose the death penalty. This Part examines U.S. Supreme Court precedent on the due process rights of defendants in death penalty cases and the Missouri Supreme Court's interpretation of that precedent. Section A will trace the U.S. Supreme Court's precedent by first analyzing its interpretation of the Sixth Amendment. Then, the unique statutory scheme required by the Supreme Court for death penalty statutes will be explained, including the meaning of "bifurcated trial." Finally, Section A will examine the U.S. Supreme Court's application of its Sixth Amendment jurisprudence to its death penalty jurisprudence. Section B will then focus on the Missouri death penalty and the Missouri Supreme Court's application of U.S. Supreme Court precedent.

    1. "Endors[ing] the Incoherence" (16) : The U.S. Supreme Court's Confusing Capital Jurisprudence

      In his concurrence in Marsh v. Kansas, Justice Antonin G. Scalia described the U.S. Supreme Court's capital jurisprudence as "incoherent" and stated that he did "not endorse that incoherence" before making a decision in accordance with that confusing jurisprudence. (17) The Supreme Court's incoherent capital jurisprudence evolved from a unique intersection between Eighth Amendment protections against cruel and unusual punishment (18) and Fourteenth Amendment Due Process rights. (19) The increased protections for capital defendants under the Eighth Amendment have, in turn, created new due process protections for capital defendants. This Part will explain how the Eighth Amendment has impacted due process protections and analyze the current state of U.S. Supreme Court due process protections in capital cases. This Part will first detail the Supreme Court's due process protections for criminal defendants in non-capital cases. Then, it will lay out the special protections guaranteed by the Eighth Amendment in capital cases. Finally, this Part will explain how the two interact by analyzing the most recent cases.

      1. "By a Jury Beyond a Reasonable Doubt" (20)

        Along with incorporating the Sixth Amendment right to a jury trial to the states, (21) the Fourteenth Amendment Due Process Clause requires every fact necessary to constitute the crime be found beyond a reasonable doubt. (22) While this requirement seems clear, there persisted--and persists--doubt as to what qualifies as a fact necessary to constitute the crime charged, also referred to as an element. The Court in Apprendi v. New Jersey attempted to explain what constituted an element of the crime charged. (23) In Apprendi, the defendant "fired several shots into the home of an African-American family and made a statement--which he later retracted--that he did not want the family in his neighborhood because of their race." (24) The defendant then pleaded guilty to second-degree possession of a firearm for an unlawful purpose under New Jersey law, carrying a sentence of five to ten years. (25) Following the guilty plea, the prosecutor then sought to enhance the sentence based on the state's hate crime statute, which provided for an enhanced sentence if the judge found by a preponderance of the evidence that the defendant committed the crime with a purpose to intimidate the group because of race. (26) The judge found the crime was racially motivated and enhanced the defendant's sentence to twelve years. (27)

        On appeal, Apprendi claimed that the Fourteenth Amendment Due Process Clause required the finding that the crime was racially motivated to be proved to a jury beyond a reasonable doubt. (28) New Jersey argued that the state's enhancement for racially motivated crimes was a sentencing factor and not an element of the crime charged. (29) While an element is necessary to prove guilt or innocence, a sentencing factor "help[s] to determine the sentence imposed upon one who has been found guilty." (30) The Court rejected the State's argument, holding, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (31)

        The Court decided that the New Jersey statute, which enhanced sentences for racially motivated crimes, was an element of the crime and not a sentencing factor because it increased the maximum sentence. (32) Further, the Court noted that the inquiry of the elemental nature is "one not of form, but of effect--does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" (33) Therefore, the Court held that the New Jersey sentencing enhancement for racially motivated crimes must be proved to a jury beyond a reasonable doubt because it was an element and not a sentencing factor. (34) This framework for deciding when due process rights of a jury trial requiring proof beyond a reasonable doubt attach seems straightforward until considering the special protections provided in capital punishment cases.

      2. Cruel and Unusual Punishment and the Bifurcated Trial

        While the U.S. Supreme Court developed its jurisprudence on due process protections for criminal defendants, it also revolutionized its death penalty jurisprudence. First, the Supreme Court held Georgia's death penalty scheme--and by proxy all other death penalty schemes--violated the Eighth Amendment. (35) Justice Stewart ultimately concluded "that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." (36) However, the Supreme Court upheld the Georgia statute four years later when Georgia used a bifurcated trial for death sentences. (37)

        Under the bifurcated procedure, the trial had two phases: a guilt phase and a sentencing phase. (38) If the jury found the defendant guilty beyond a reasonable doubt in the guilt phase, then the trial would move to the sentencing phase where the jury was required to consider mitigating and aggravating evidence. (39) Aggravating evidence is evidence that increases the guilt of the crime, and mitigating evidence is evidence that reduces the moral culpability of the person committing the crime. (40) Further, the jury was required to find the existence of at least one...

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