Reggie Clemons: 21 discrepancies that cast doubt on his conviction
Was Reggie Clemons' confession beaten out of him? We look at the discrepancies thrown up during the course of the prosecution
• Reggie Clemons was not accused of pushing the Kerry sisters into the Mississippi. The main witness against him, Thomas Cummins, testified that he saw a "black hand" push his cousins into the river but failed to specify whose hand that was. Yet in the separate trial of co-defendant Antonio Richardson, Cummins said that it was Richardson who pushed the women into the river.
• Clemons confessed to raping Robin Kerry, but did not confess to murder. He was found guilty of murder as an accomplice.
• Two days after Clemons made the confession, he retracted it. He told St Louis police internal affairs officers that he had been beaten, punched in the chest and had his head slammed against the wall. He alleged that after hours of being assaulted he agreed to read out a confession that police officers had written in advance, because if he had refused to do so "they would have beat me some more".
• Police photos show that Clemons looked physically fit when he was first picked up by police, but after his was interrogated he was reported by several witnesses to have a swollen right cheek. When he came before a judge for arraignment, the judge sent him to the local hospital ER for examination, where he was diagnosed with muscle inflammation and a swollen face.
• Clemons's claims of police brutality were strikingly similar to independent complaints of police beatings made by his co-defendant Marlin Gray and by Thomas Cummins, the main prosecution witness against him, even though the three men had no contact with each other. All three sets of complaints related to interrogations that occurred within the same police station involving the same alleged techniques of assault, and all within the same 48-hour time span.
• Clemons's complaint of police brutality was dismissed and he was put on death row, as was Gray. But when Cummins sued the St Louis police for misconduct – claiming that detectives had tried to frame him for the murders and had fabricated police records – he won a settlement of $150,000.
• Clemons, a black man, was convicted of murder largely on the basis of eyewitness accounts of two men, both of whom were white and both of whom arguably had a self-interest in implicating him. Thomas Cummins was initially considered the prime suspect , though the investigation against him was later dropped, and Daniel Winfrey achieved a plea bargain in which he would testify against Clemons in exchange for avoiding execution himself. Winfrey was overheard saying before the trial that "he would take any plea bargain offered" and "say anything he had to to obtain a plea bargain".
• There was no physical evidence to support the murder and rape allegations against Clemons. The human rights group the Constitution Project has shown that that three-quarters of all prisoners exonerated in the US in recent years were convicted at least in part on the basis of faulty eyewitness testimony.
• Cummins changed the story he gave police several times, police records suggest. His highly inconsistent account given in the records either strengthens his claim that he was beaten up by police – which in turn supports Clemons's allegation that his confession was beaten out of him, too – or implies that Cummins was an unreliable source upon whom the prosecution should not have depended as star witness.
• One of the stories told by Cummins, as related by police notes, was that Julie Kerry had stumbled into the Mississippi after he startled her by trying to hug her. "He just wanted to hug her but she became startled, lost her balance and fell into the river," the police incident report records. Her sister Robin then jumped into the river to try and save her. Cummins later sued the police for alleged brutality and falsification of their notes.
• As the judicial process got under way, Clemons was denied a state-funded defence lawyer because he was told that all the registered state lawyers were busy at the time.
• Two private lawyers, Robert Constantinou and Jeanene Moenckmeier, were employed by Clemons's family to represent him. Moenckmeier has told the Guardian that she was given insufficient time to review boxes of evidence provided by the prosecutors under discovery. She has also complained that crucial evidence may have been withheld from her by the prosecution.
• The two lawyers were going through a divorce at the time of Clemons's trial. Moenckmeier was in the process of moving to California to take a job as a tax lawyer. A separate team of defence lawyers, who processed Clemons's later clemency appeal, alleged in court documents that the original trial lawyers "failed him at every stage of his representation", including failure to review the police reports up to a month before the trial. Moenckmeier denied to the Guardian that either the divorce or the move to California had adversely affected her representation of Clemons.
• A "rape kit" recording the results of tests on Julie Kerry's body after it was retrieved from the Mississippi was not presented to the jury in Clemons's trial, despite the fact that the allegation Clemons raped one of the Kerry sisters was an important part of the prosecution case against him. Nor was the rape kit disclosed to his defence lawyers before trial, even though they had specifically requested in writing to see "all evidence from the sheriff's department, police department and medical examiner's office who investigated and examined the recovery of the body of Julie Kerry".
• When the trial started in January 1993, seven prospective jurors – all of them black – were improperly excluded from the jury. A federal judge later found that this was unconstitutional, and ruled that Clemons's death sentence should be commuted to life imprisonment as a result. The state of Missouri managed to overturn that ruling on a legal technicality, allowing the death penalty to stand.
• The final composition of the jury was two black jurors and 10 white, in a city where 49% of the population is African American.
• The prosecutor in the case, Nels Moss, was heavily criticised after the event for his conduct during the trial. As court documents show, the district court that reviewed the case called his behaviour during trial "abusive and boorish" and "calculated to intimidate the defence at every turn".
• Before the trial began, Moss was specifically ordered by the trial judge, Edward Peek, to refrain from highly contentious tactics he had deployed at the previous trial of co-defendant Marlin Gray. But as documents lodged with the Missouri supreme court show, Moss blatantly ignored the order. He did precisely what he had been told not to do: to compare in front of the jury Clemons – a 19-year-old with no previous criminal record – to the notorious serial killers Charles Manson and John Wayne Gacy. A week after Clemons was sentenced to death, Peek found that Moss's conduct had been "willfully and intentionally committed in disobedience of the court" and fined him $500 for criminal contempt. But, still, the death sentence was allowed to stand.
• According to papers filed by Clemons' appeal lawyers to the Missouri supreme court, Moss addressed the jury in impassioned terms that the lawyers argued amounted to inflaming the jury. He asked the jury to imagine a hypothetical crime in which the Kerry sisters were raped, put into a "dark room" and repeatedly stabbed. "This hypothetical had nothing to do with the trial, but everything to do with Moss's goal to have an inflamed and upset jury". Moss has declined to talk to the Guardian ahead of the special hearing into the Clemons case in September.
• A member of the jury at Clemons's trial submitted an affidavit stating that if she had known of the discrepancies in the way the trial was conducted, she would not have voted for the death penalty.
• The state boundary between Missouri and Illinois falls down the middle of the Chain of Rocks bridge, which became a matter of great legal contention at trial. Lawyers argued over the precise location of an uncovered manhole on the bridge through which the Kerry sisters and Cummins were alleged to have been forced before being pushed into the river.
The prosecution said that the manhole lay on the Missouri side of the state line, which they used to claim jurisdiction over the case. But the defense argued the manhole had been located a few feet to the east on the Illinois side of the bridge, and that therefore the trial should have been in the Illinois courts. In the early 1990s Illinois was much less inclined to hand out death sentences than Missouri, so just a few feet could have been crucial. In fact, had the trial taken place today it would undoubtedly had been a matter of life or death: Illinois abolished the death penalty in March 2011 while Missouri
still has 47 death row inmates awaiting execution.
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