Clemons is eternally grateful for all those who actively assisted in the actualization of his evidentiary hearing that was held September 17-20 in the Carnahan Court Building. He, his family, and the Justice for Reggie Campaign, acknowledge this has been a painful ordeal for all the families involved. We know that members of the Kerry and Richardson families attended the hearing. It is a complicated case based upon the circumstances and numbers of people involved. It was sufficiently muddied by the roguish misconduct of Prosecutor Nels Moss and St. Louis police officers Chris Pappas and Joseph Brauer.
The evidentiary hearing conducted by Judge Michael Manners is unprecedented in Missouri judicial history. The Missouri Supreme Court appointed Judge Manners as a special master three years ago to independently review the case—just days before Reggie’s execution.
The hearing was not a criminal trial; it was a hearing officiated by a judge who could exercise flexibility in his judicial conduct. He appeared to be even-handed in his approach to both sides, even sometimes allowing the legal teams to negotiate one another’s objections.
We are closer to truth and justice than we’ve been in the 20 years of the case. That is what the fight has been for—truth and justice. Our hope is that this is the goal for all those directly and indirectly involved in the case. It is certainly the lofty goal of the judicial system, but as we’ve seen many times, the goal can be derailed whether maliciously or unintentionally. The Campaign has always viewed the hearing as a space for all the families to get information and insight relative to the case, not just a space for Clemon’s side to be aired.
For those not in the courtroom and with no access to Twitter, Facebook, etc, their hunger for information about the hearing came mostly through the mainstream media. The coverage was a bit anemic of objectivity and depth and so many still have hunger pains. I want to address a few issues of the hearing that we received the most responses about.
The accusation of forced confession came not just from Reggie. Both Marlin Gray and Tom Cummins echoed the same complaint. Their accounts of brutality and coercion were basically the same—beaten about the head and torso, given a script to read, etc. The divergence in similarity occurred when Reggie and Marlin received death sentences based upon their confessions and Cummins received a $150,000 settlement from the St. Louis Police Department.
Witnesses for Reggie, including his mother and sister who saw him within days of the beating, testified that they saw a swollen face and busted lip. We already know that Judge Michael David sent Reggie to the hospital for medical treatment after he appeared in court for his arraignment. Witnesses for the state all testified that Reggie’s face was perfectly normal and that he never informed staff at the police department that he had been beaten. Sometimes, these individuals saw Reggie minutes after others who saw his distorted face. Medical reports confirm the validity of Reggie’s account.
One of the most damaging pieces of evidence related to Nels Moss’ manipulation of evidence was the original police report on Cummins’ confession; it contained margin notes by Moss to “omit” or ways to make changes. The final, sanitized version was void of any of damaging or incriminating comments by Cummins. Reggie’s defense team showed the two documents side by side on the court’s big screen for all to see. Moss testified that there were no differences in the two reports.
Moss was caught in a number of half-truths and outright lies as he squirmed on the witness stand. At one point, Reggie’s attorneys asked a series of questions regarding contradictory statements made by Cummins and the officers accused of brutality. He had to ask Moss several times whether that meant someone was not telling the truth before Moss mumbled that yes, it did mean such.
Again, because this was not a trial on the entire Chain of Rocks Bridge case, part of Team Clemons’ legal strategy was to focus on particular elements of the case. Prior to the hearing, all parties knew that Reggie would be taking the 5th on issues that his legal defense deemed not relevant to their case. On the stand, Reggie answered those questions directly related to whether he was involved in the rapes or murders of the Kerry sisters; he maintained his innocence as he has for the past 21 years. This is precisely the crux of the case: Should Reggie be executed if there is no scientific evidence that links him to rape and murder?
Assistant Attorney General Susan Boresi did what any prosecutor worth their salt would do—she used the opportunity to paint her account of the Bridge incident by asking a number of questions knowing that Reggie would plead the 5th. Hence, the media’s provocative headlines of “Pleads the 5th 30 times.” Because there was no jury, Boresi’s tactic was not as impactful although should there be a trial, all such questions will have to be answered.
Of note here, and illuminating the bias of media, at one point Judge Manners asked the investigating officer in Internal Affairs at the time of Reggie’s brutality complaint about whether Pappas and Brauer had plead the 5th during their statements for his report. Both officers had plead the 5th in queries about brutality but this didn’t get the same media attention as Reggie’s plea.
You may remember that a rape kit for Julie Kerry was mysteriously uncovered in police custody just weeks before the first scheduled hearing of Reggie in 2010. Judge Manners immediately ordered testing. Retested were a swatch from Marlin’s pants and boxer shorts.
Representatives from the State Highway Patrol and a private company testified as to the results. Regarding the DNA evidence on the clothing items, the DNA experts used the vague phrase “could not be excluded” when referring to profile matches for Reggie, Marlon or Antonio Richardson. Under cross examination by Reggie’s attorneys, the DNA technician admitted that there was no exact DNA match for Reggie in any of the evidence. Further, she admitted that contamination of the evidence was possible and that there was no scientific way to prove how old her sperm sample was or if it could even date back to the 1991 crimes.
The DNA evidence was not the smoking gun the state had hoped for, but the onus of proof is not on them–it is on Reggie. Many still believe if Moss had compelling evidence about rape, he would have certainly used it when he prosecuted the cases of Reggie, Marlin and Tony.
While the hearing answered some questions about this complex case, it also raised other questions by supporters such as:
-If the state says the Kerry sisters were killed to get rid of any witnesses, why was Tom Cummins spared?
-If the police brutality accounts of Reggie, Marlin and Cummins were virtually the same, why were Reggie and Marlin’s charges ignored?
-What was the significance of the state prosecutor bringing up the controversy as to whether it was Julie Kerry’s body that was actually recovered?
-What will happen to people who appeared to have perjured themselves in the original case or during the evidentiary hearing (including Moss)?
Judge Manners is in a unique position to review old evidence and testimonies that had been procedurally barred in the appeals court as well as look at new evidence and testimonies. No one has ever had the authority, will or access to the expanse of this case. He has set November 1 as the deadline for both the state and Reggie’s legal team to submit any other evidence including videotapes of witnesses who could not attend the hearing. Both sides must present their written arguments by December 1. At this point, another open court date is not expected.
It is anticipated that after the first of the year, Judge Manners will began the arduous tasks of combing through piles of evidence—audio and video tapes, exhibits, court transcripts, etc. We don’t know how long this will take. Ultimately, the judge will send his recommendation to the Missouri Supreme Court who must make its decision. Again, we don’t know how long this decision-making process will take.
What we do know is that getting to such an evidentiary hearing has been an extraordinary journey. We are appreciative to the Missouri Supreme Court for its due diligence. Those able to attend the hearing cited it as a memorable experience and a great lesson in better understanding our judicial system.
As we wait for the decision-making process to come to an end, the Campaign will continue its efforts to keep you updated, to raise the troubling issues in Reggie’s case (and many other death penalty cases) and to make sure justice prevails.