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Mose YOUNG Jr.





Classification: Murderer
Characteristics: Robbery
Number of victims: 3
Date of murders: February 8, 1983
Date of arrest: Next day
Date of birth: December 25, 1955
Victims profile: Sol Marks, 80; Kent Bicknese, 22, and James Schneider, 33
Method of murder: Shooting (rifle)
Location: St. Louis, Missouri, USA
Status: Executed by lethal injection in Missouri on April 25, 2001

United States Court of Appeals
For the Eighth Circuit

opinion 00-2705

clemency petition


Robbed pawn shop and shot employees after they refused to buy stolen jewelry.

Prior convictions for Assault and Heroin.


State of Missouri v. Mose Young

701 S.W.2d 429 (Mo.Banc 1985)

Capital Punishment in Missouri from

Case facts:

On February 8, 1983 Mose Young entered a pawn shop in St. Louis to pawn a gold plated stickpin.

Mr. Lee Raseover, the owner of the shop, told Young the pin was worthless and threatened to call the police and have him arrested for stealing by deceit.

A heated exchange ensued with both men pushing each other. Mr. Rascover pulled a gun from a holster on his hip and ordered Young to leave. Mr. Pascover then telephoned one of his partners at a different shop and warned him of Young's attempt to pawn the stickpin and the altercation that took place.

Young showed up at the second shop and tried to pawn the stickpin for several thousand dollars at which time his offer was refused. Young left the shop after another argument and an attempt to take some jewelry he had asked to examine.

Sometime later Young returned to the second shop carrying a rifle. At the time there were four persons at the shop including an employee Romaell Bennett, Sol Marks, Mr. Raseover's grandfather, James Schneider, a partner of Mr. Rascover's, and Kent Bicknese, a billboard salesman.

As Young entered the store with the rifle Mr. Bennett sent Mr. Marks to the rear of the store because he feared there might be trouble.

As Young entered the store he pointed the rifle at Mr. Bennett and fired a shot whieh hit and killed Mr. Bicknese who was standing in front of Mr. Bennett. At that moment Mr. Schneider emerged from his office and Young turned, fired a shot and killed him.

Mr. Bennett retreated with Mr. Marks to the back of the store. Mr. Marks tripped and Mr. Bennett left him and went to the basement where he hid in the vault. While in the basement Mr. Bennett tripped an alarm.

Mr. Bennett testified that he heard Young ask Mr. Marks where Mr. Bennett was. After that Mr. Bennett reported hearing two more gun shots. Mr. Bennett also heard Young yell down the steps, "Where are you?"

Mr. Bennett remained in the vault until he heard police radios. The bodies of Mr. Bicknese and Mr. Schneider were found in the lobby area of the store and the body of Mr. Marks was found in a hallway leading to the rear of the building.

The top of the jewelry counter had been smashed and almost all of the jewelry was gone. There was $576.00 in cash missing from the cash registers as well as the victims wallets.

Mose Young was born in St. Louis. Missouri on December 25, 1955.

On August 27, 1975 Young was arrested in St. Louis City for Possession of Heroin. He pleaded guilty on February 27, 1976 and was sentenced to one year in the city jail.

On June 25, 1981 Young was arrested in St. Louis City for Assault First Degree. He pleaded guilty on April 19, 1982 and was sentenced to six months in the city jail.

On February 9, 1983 Young was arrested for three counts of Capital Murder and Robbery First Degree in St. Louis City.

On May 19, 1984 a jury found Young guilty of all three counts of Capital Murder. On July 6, 1984 Young was sentenced to death on each count of Capital Murder.

Legal Chronology:

2/8-Mose Young shoots and kills Sol Marks, Kent Bicknese and James Schneider in a pawn shop in St. Louis.
3/18-Mose Young is charged by information with three counts of capital murder.

5/19-Mose Young is found guilty by a St. Louis City Circuit Court jury of three counts of capital murder.
5/21-The jury recommends the death penalty on each count.
7/6-The court denies a motion for a new trial and sentences Young to three death sentences as recommended by the jury.
7/10-Notice of Appeal filed in the Missouri Supreme Court.

12/17-The convictions and sentences are affirmed by the Missouri Supreme Court,

1/15-Motion for a rehearing is denied.
5/5-Certiorari denied by the United States Supreme Court.
7/30-Young files a motion for post-conviction relief.

12/11-The motion for post-conviction relief is denied.

1/5-Notice of appeal of court's ruling to deny post-conviction relief is filed.

5/16-The denial of the motion for post-conviction relief is denied.

10/30-A petition for habeas corpus is filed in the United States District Court for the Eastern District of Missouri.

4/3-Young files an amended petition for habeas corpus.
5/4-A response to the amended petition is filed.

5/9-A petition for Mandamus is filed seeking to compel a ruling on the petition for habeas corpus.
6/24-The U.S. District Court denies the petitionfor habeas corpus.
10/2-Young files a Notice of Appeal
12/4-The U.S. District Court affirms the conviction and sentence.

1/29-Rehearing by the panel and rehearing en banc denied.
6/28-Certiorari petition filed.
10/4-The United States Supreme Court denies the petition for certiorari. An execution date is requested of the Missouri State Supreme Court.

6/9-The Missouri State Supreme Court sets July 12, 2000 as the date of execution for Mose Young.
7/12-The U. S. Supreme Court grants stay of execution.

3/27-The Missouri Supreme Court sets April 25, 2001 as the date of execution for Mose Young.


Mose Young

Associated Press

May 25, 2001

MISSOURI - Mose Young, who gunned down 3 people in a pawn shop that wouldn't make a deal, was executed by injection early today at Potosi Correctional Center. He was pronounced dead at 12:14 a.m.

Young lost his final bid for mercy Tuesday night when Gov. Bob Holden rejected his request for clemency and a commutation of the sentence to life in prison.

A federal appeals court had rejected Mose's final legal appeal on Monday, leaving the clemency request his last hope. Shortly before Holden announced his decision, Young said by telephone from the prison, "It's getting kind of shaky, but I understand what I'm facing." Young's bid for clemency restated what he had pleaded in a lengthy series of court appeals -- that his original defense lawyer did a miserable job.

On Feb. 8, 1983, Young walked into a former location of Lee's Pawn Shop, at 5934 Natural Bridge Avenue, with a rifle after employees at both Lee's shops refused to lend him $1,800 for a stickpin.

He murdered Kent Bicknese, 22, of west St. Louis County, who was on a sales call for his brother's billboard company; James Schneider, 33, of Edwardsville, a co-owner of the shop; and Sol Marks, 80, of Creve Coeur, a part-time employee. Ronnell "Rock" Bennett, another co-owner, escaped to the basement. Bennett, now deceased, had known Young at Vashon High School and identified him.

Young testified during his trial in 1984 and insisted that a man nicknamed "Mickey" had fired the shots. Evelyn Bicknese, 66, of West County, the mother of Kent Bicknese, and three other relatives witnessed the execution.

Young spent part of Tuesday with two Roman Catholic nuns and had a last meal. The nuns also attended the execution. Young glanced their way, said something to them and smiled before he died.

Young was within 7 hours of execution on July 11 when the 8th U.S. Circuit Court of Appeals stopped the countdown.

The court ordered a hearing on the claim that Jane Geiler, a former assistant prosecutor in St. Louis, had been prevented by then-Circuit Attorney Dee Joyce-Hayes from reporting her memory of Young's trial in the clemency appeal. A follow-up hearing went against Young.

In 1984, Geiler was a supervisor to public defender John M. "Jack" Walsh, who represented Young. Walsh was disbarred in 1988 for his handling of another death penalty trial.

Young becomes the 3rd condemned inmate to be put to death in Missouri this year and the 49th overall since the state resumed capital punishment in 1989. Missouri trails only Texas (245), Virginia (82), and Florida (51) in the number of executions carried out since 1977.

Young becomes the 25th condemned inmate to be put to death this year in the USA and the 708th overall since America resumed executions on January 17, 1977.

(sources:  St. Louis Post-Dispatch & Rick Halperin)

At 9 a.m. on February 8, 1983, Lee Rascover opened his pawn shop in St. Louis, and admitted Mose Young who had been waiting in front of the store.

Young attempted to pawn a gold-plated stickpin and wanted $1800 for it so he could buy his girlfriend a used Cadillac. Lee told Young that it was worthless and threatened to have Young arrested for attempting to steal by deceit.

A heated exchange ensued during which Young attempted to push Lee. Lee pushed Young back and drew his gun from a hip holster and ordered Young to leave, which he did.

Lee telephoned his other pawn shop and warned Ronnell Bennett, one of his partners, that Young was bringing the pin there. Young did go to the second pawn shop and attempted to get several thousand dollars for it. Having been forewarned, Ronnell would not take the pin.

Young then engaged in an argument with James Schneider, another partner in the pawn shop. Eventually they all agreed that Young might have luck pawning a gun or rifle. Young left after attempting to steal some jewelry which he had asked to examine.

Sometime later, Young returned to the second pawn shop carrying a rifle. At the time four people were present. Ronnell, Sol Marks, who was Lee’s grandfather, Kent Bicknese, who was taking the semester off from his aerospace engineering studies at the University of Missouri-Rolla to work for his brother's billboard company, and James Schneider.

Ronnell saw Young as he entered the store, apparently sensed danger and sent the 80-year-old Marks to the back of the store.

About this time, Young raised the rifle and fired in the direction of Bennett. The shot killed Kent, who was standing directly in front of Ronnell. At that moment, James emerged from the office and Young turned and killed him. Ronnell retreated with Sol Marks to the back of the store.

When Sol hesitated and fell from Ronnell’s arms, Ronnell left him and escaped to the basement where he hid in the vault. While in the basement, Ronnell tripped an alarm. Ronnell remained in the vault until he heard police radios sometime later. The police found three bodies, Bicknese, Schneider and Marks.

Young was convicted on three counts of capital murder by a jury and was sentenced to death. "Mose Young is a brutal triple murderer who committed three heinous crimes and is an example of why juries in Missouri need to have the option of the death penalty," Attorney General Jay Nixon said.


Canadian Coalition to Abolish the Death Penalty


Mose Young has claimed from day one that a man named “Mickey”, not he, walked into Lee’s Pawn Shop on February 8, 1983 and opened fire, randomly killing three people.


We are asking Governor Bob Holden to stay the execution of Mose Young and to appoint a Board of Inquiry to look into the differences effective assistance of legal counsel would have made in the Young case. We also ask this Board of inquiry to investigate violations of the Batson rule, excluding black jurors without cause, now substantiated in the testimony of Ms. Jane Geiler of the Circuit Court Attorney's office of St. Louis where Mr. Young was tried.


Mose Young Application for Executive Clemency


COMES NOW the applicant, Mose Young, Jr., by and through his attorneys, Joseph Margulies, Sean D. O’Brien, and John William Simon, and petitions the Governor for his order staying the execution presently scheduled for April 25, 2001, and appointing a Board of Inquiry, pursuant to Mo. Rev. Stat. § 552.070; and for his Order commuting the sentence of the Circuit Court of the City of St. Louis from death to life without parole.

Mose Young was sentenced to death in a trial in which the prosecutor used every one of his peremptory challenges to exclude African-Americans from the jury. Mose’s trial lawyer was an alcoholic who made no pretense of being prepared; in the next case he tried, he sat silent through the entire proceeding to protest the court’s denial of his motion for a continuance. He was disbarred, but his other client’s sentence was overturned.

Mose has been a good father to his two sons, one of whom is retarded. He has been a mediator between African-American and white prisoners, and has prevented more deaths than he was convicted of causing. He is worth more to the State of Missouri alive than dead.

Regardless of the broad philosophical issues involving the death penalty, this is one case in which a consistent death-penalty supporter can say that life without parole is enough punishment under the circumstances—that the norms underlying the continued practice of capital punishment do not support carrying out this execution, and that the interests of society weigh in favor of letting this man continue to help raise his sons and to help his fellow-prisoners get along with each other and with the staff.


Supreme Court upholds Young's stay of execution

Jefferson City News-Tribune

Wednesday, July 12, 2000

POTOSI, Mo. (AP) - A federal appeals court on Tuesday granted a stay of execution for convicted killer Mose Young just hours before he was scheduled to die by injection. The U.S. Supreme Court refused the state's request to vacate the stay early Wednesday morning, postponing the execution indefinitely.

Young, on death row since 1984, had been scheduled to die at 12:01 a.m. Wednesday for killing three men inside a St. Louis pawn shop 17 years ago.

After waking up alive Wednesday, Young told The Associated Press from the Potosi Correctional Center, "It's a beautiful morning." "I didn't shed no tears. I didn't cry because I know it's never over with." he said. "That was God's will to have this one day, and it's going to be God's will to have whatever more days are remaining in my life."

The 8th U.S. Circuit Court of Appeals in St. Louis ruled about six hours before the scheduled execution that St. Louis Circuit Attorney Dee Joyce-Hayes violated Young's right to due process by interfering with a witness.

The court ordered U.S. District Judge Jean Hamilton of St. Louis to reconsider Young's appeal. Hamilton had rejected it Monday. Missouri Attorney General Jay Nixon's office said Nixon would appeal the stay so the state could move forward with the execution as early as Thursday morning.

Young's attorney, Joseph Margulies, argued that the witness, an attorney now working for Joyce-Hayes named Jane Geiler, wanted to offer information that could help Young receive clemency from Gov. Mel Carnahan.

They alleged that Joyce-Hayes threatened to fire Geiler if she did so. "The Constitution of the United States does not require that a state have a clemency procedure, but, in our view, it does require that, if such a procedure is created, the state's own officials refrain from frustrating it by threatening the job of a witness," the court ruling said. "Indeed, there is reason to think that what the circuit attorney did here amounts to the crime of tampering with a witness," the appeals panel wrote. "Such conduct on the part of a state official is fundamentally unfair."

Joyce-Hayes has denied threatening to fire Geiler. "I never threatened to fire her, and some of the things Mr. Margulies alleges she and I discussed were in fact never discussed by us," Joyce-Hayes said Tuesday night. "It was never my intention to interfere with Mose Young's due process of law."

The state immediately appealed, asking the U.S. Supreme Court to set aside the ruling. The court had made no ruling by late Tuesday. A spokesman for Carnahan said the governor would not decide on clemency until after all appeals were exhausted. Margulies claimed that in Young's 1984 trial the jury was racially stacked against him and his lawyer was ill-prepared. "My reaction was relief," Margulies said in a telephone interview Wednesday from Minneapolis. "We are pleased and relieved the court saw the case the way we saw it." Margulies said prosecutors moved to strike nine prospective jurors only because they were black. Eventually, the jury consisted of eight whites and four blacks. Young is black; all three victims were white.

Young told the AP in an interview Tuesday that he first met his attorney, Jack Walsh, four days before the trial began. Walsh warned the court that he hadn't had time to prepare.

Margulies also claimed that Geiler, an associate of Walsh's at the time of the 1984 trial, would have been willing to describe how poorly Young was represented if not for the threat from Joyce-Hayes. Young spent Tuesday visiting with two nuns and talking on the phone with lawyers and well-wishers, hoping and praying the courts or Carnahan would halt the execution. "I believe in God -- I'm holding up strong," Young said. "I ain't bitter."

The nuns were from a convent in Savannah, Mo. Young said they began corresponding with him about five years ago. Young, on death row longer than all but three of the 80 inmates awaiting execution at Potosi, maintained "from day one" that a man named "Mickey," and not he, walked into Lee's Pawn Shop on Feb. 8, 1983, and began firing.

Killed were James Schneider, 33, a co-owner of the shop; Sol Marks, 80, who worked there part-time and was the grandfather of another partner; and Kent Bicknese, 22, a billboard salesman who had stopped by to lease space outside the store for a sign.

Authorities said the evidence was overwhelming against Young, a convicted drug felon who was suspected of several unsolved murders in a rough area of north St. Louis. "Mose Young is a brutal triple murderer who committed three heinous crimes and is an example of why juries in Missouri need to have the option of the death penalty," Attorney General Jay Nixon said.

Young said that he had argued with the pawn shop proprietors over a gold-plated stickpin he had tried to pawn. Young wanted $1,800 for the pin, and planned to spend the money to buy his girlfriend a used Cadillac. The pawn shop owners thought it was worthless. Young left, then returned with a rifle, according to Ronnell Bennett, also a partner in the pawn shop.

Bennett said he was the intended target, but the bullet struck Bicknese, who was taking the semester off from his aerospace engineering studies at the University of Missouri-Rolla to work for his brother's billboard company. Bennett escaped to a basement and hid in a vault until police arrived. Police and Bennett found the three men shot to death.



Straight from the Heart...

By Sister Audrey Locke, O.S.F.

Just a little over a year ago, I was faced with a challenge to act on my word. After prayerful deliberation, I made the decision to step out in faith and take a path that I had never expected to go in my life time. It was a journey that would be by far one of the most challenging of my life, a real test of who I say I am.

On July 6, 2000, I accompanied two of my religious sisters, Sisters Christine and Kathleen, on a trip to the Potosi Correctional Center in southeast Missouri. Potosi is approximately a six to seven hour drive from our home here in Savannah, Missouri.

Our mission and purpose were to provide spiritual support for a man who was on Death Row. Sister Christine had been in communication with this person for the previous five years via letters, occasional phone calls, and visits.

Upon our arrival, we met Mose Young, a 44-year-old African-American who had been convicted and incarcerated since February, 1983, for the killing of three men in a pawn shop in St. Louis, Missouri.

My being able to come face to face with the accused introduced a whole new dimension of reality of a person on Death Row. I saw before me a man who was very appropriate in his words and in his behavior. Mose was a strong extrovert with an outgoing personality and an unusual sense of humor. He was neatly dressed and well groomed in his simple prison apparel.

From the very beginning, I sensed a genuineness in his being and a comfortableness in his relating to us in spite of our just having met. Mose had a story that needed to be told, a story that needed to be heard: his story of conversion and grace after so many long and difficult years on Death Row. “In spite of all the adversities I have had in my life, I harbor no grudge or resentment towards anyone. I was not always of this thinking, but Allah has been good to me and has worked through me. I praise him everyday for this rebirth.”

Mose had been given an execution date for July 12, 2000. Several days after our first visit we were on the road again to Potosi. Throughout the long trip, “When I was in prison, you visited me.” kept running through my head. How many times had I read or heard this corporal work of mercy? How many times had I committed myself to being present to someone who is confined behind prison walls, unable to express his or her freedom in ways which I so much take for granted? Without a doubt in my mind, this experience presented a whole new meaning to reaching out to those who have no voice and in many ways are looked at as being disposable.

As we got closer to foreign territory, I found myself a bit anxious, apprehensive, and rather emotional. Deep within I knew that this was just the beginning of the many hurdles that we would have to face. My focus was not intended to pamper my own fears but an attempt to meet any needs that Mose might be having during this crucial and devastating time.

After being so coldly processed and educated in the do’s and don’ts of the execution protocol, I did not allow myself to become disempowered by what I perceived as insensitive and uncaring attitudes of some of the staff. For some it seemed to be “just a job”. For others their nonverbal behavior spoke of compassion.

Like many caught up in the system, Mose openly admitted that his past history did not deem the “prize”. “I have done some awful things in my life that I am not very proud of, but I can honestly say today, as was said eighteen years ago, I am innocent of this crime. I am not a murderer. I am not the insensitive and selfish person I was years ago.” A number of the staff confirmed this when they said that Mose had been a model prisoner throughout his time of being incarcerated.

Mose, without hesitation, maintained his innocence to the last. So was this man innocent or not? It is not my nature to minimize or condone any heinous and violent act that destroys life. At the same time, I feel a grave responsibility from within that compels me to contend that life, all life is to be reverenced and protected from harm.

Our first deathwatch began on July 10th, 2000. Having passed all the tightly secured checkpoints, we were then escorted down a deserted hallway, passing through several large automated steel doors that snapped with a harsh bang, resonating throughout the corridor. This pathway eventually lead to a long flight of winding stairs, leading down to subterranean depths of the prison. The holding cell and execution chamber are within several feet of each other, both being a part of the prison infirmary. I found this to be most disturbing and misleading.

The holding cell symbolized extreme confinement and “untouchable” for the individual that occupies this minute space. This designated area was camouflaged by a corrugated door, giving one a feeling of dark secrecy. In a more descriptive sense, the holding cell is best to be described as a “cage” or a “dog kennel”. The exterior of the holding cell is made up of a heavy iron crisscrossed fence, which obscures one’s view when visiting with the inmate. This area is backed by a solid concrete wall.

The limited space consists of one plastic patio chair, a metal bed frame that extends out from the wall with a foam mattress approximately three inches or less in depth; a small TV, telephone, and a stainless steel toilet and washbowl. A guard sits at a small desk, closely watching, listening, and documenting all activity that goes on in the holding cell.

Right outside of the “cage” are two more plastic chairs nailed to the floor. One could not miss the bold and intimidating red line that strongly indicated to visitors to stay within their boundary. The long hours spent in such uncomfortable confinement was indeed evident of God’s grace for my own personal endurance.

Six hours prior to the scheduled execution, Mose was granted a temporary stay. Not knowing just how long the stay would last, we rejoiced in the moment and expressed our sighs of relief and prayers of thanksgiving. After leaving the prison around 11:00 PM, we waited anxiously back at the motel until 1:00 AM, when we received word that the U.S. Supreme Court had upheld the stay for further investigation. With this news, we had hoped that Mose would possibly be given a second chance at a new trial.

In earlier years, Mose’s legal representatives failed to adequately prepare for his defense. Sometime later, two of the trial lawyers were disbarred for numerous misrepresentations and personal discrepancies. One of the lawyers, with much humility, was courageous enough to admit his negligence in the case: “This knowledge has haunted me for the past 18 years and will continue to haunt me for the rest of my life.”

Over the next nine months, we continued to travel to Potosi to visit Mose. A revised legal team was working very diligently and conscientiously in trying to bring justice to the forefront. All kinds of legal tactics were exercised, but to no avail, the darkness was upon us once again.

March 27, 2001, there was a mandatory lock-down in the prison. Mose shared with us that a strange feeling came over him. Once he was in his cell, he was able to look through what is called a bubble, a large mirror, anchored on the wall. He saw six guards and a prison official ascending the stairs to the second landing. At that point he was certain they were coming to retrieve him.

Mose was informed that the Missouri Supreme Court had issued another warrant and date for his execution. The execution was scheduled for April 25th. Without further information, Mose was immediately removed from the prison’s general population and placed in protective custody for the next 30 days.

Upon hearing this news, I was intent not to be overcome by the brain-etched nightmares of last July, for I had committed myself unconditionally for the duration of this journey, no matter what the outcome.

Sunday, April 22nd, 12:00 o’clock midnight, when quiet dominates the prison environment, Mose was transferred to the holding cell. This transition always occurs 48 hours prior to the execution. Mose,felt that he had an advantage in knowing what to expect this time around.

Monday, April 23rd, we began our second deathwatch with Mose. With much regret, due to prior international meetings, Sister Kathleen was unable to make this last stretch of Mose’s journey. She was able to speak with him over the phone reassuring him of her prayers, blessings and heartfelt wishes.

Shortly before we were escorted down to the holding cell, we met with Mose’s attorneys. They were just coming from meeting with him. The lawyers were quite emotional in their informing us that the outcome was not looking very favorable. Their last attempt for clemency was presented to both the governor and the 8th Circuit Court. If either would refuse to give consideration to the requests, then legally there was nothing else to be done, for they had exhausted all avenues.

These legal advocates were quite moved by Mose’s concern for them. He reassured and thanked them for all they had done on his behalf. “Can you believe that he was consoling us and thanking us? We have never represented anyone like Mose before...ever! Mose’s concern for others when his own life is less than 36 hours away from being over is so amazing.”

The lawyers graciously expressed their thanks and appreciation for our presence and commitment to Mose. “He will need you more than ever at this time,” said one of the lawyers. Mose would often say “You don’t begin to know how much it means to have my ‘special angels’ here.” We knew, yet his gift of self and example to us outweighed anything we could have possibly given to him. Truly we were the recipients.

When entering the holding cell area, we found Mose in good spirits despite the circumstances. We were graced with shared moments of spiritual peace, prayer and laughter, recalling some of our previous visits and how we all looked forward to getting together and sharing the vending machine meals.

Never forgetting the seriousness of the situation, there was mutual determination not to be robbed of our quality time together. In one sense Mose made it easier for us, we just simply took our cues from him. He had a way about him that seemed to overshadow the sadness with peace.

Tuesday morning, April 24th, 15 hours away from the scheduled execution, Mose’s lawyers called to inform him that the courts had denied his request for an appeal. Even at this news, Mose remained composed and undisturbed, not giving into the forces that had dictated his life for the past eighteen years.

This unusual stamina was not one that seemed to come from wrestling with his foes, but one that comes from the God force within. ”I understand and I appreciate all that you and the rest of my supporters have done for me. No matter what, there will be a blessing, there will be a resurrection, for this thing is much bigger than Mose. If it is Allah’s will, then so be it. I may have to die for this cause, but it will not have been in vain.”

Taking only a brief break during the day, we continued to wait with him, hoping and praying that the governor’s decision would be honest and non-political, that it would be a decision of compassion, not one of vengeance and cruelty. Around 6:10 PM, being very much aware that visiting hours would be ending at 7:00 PM, we expressed our words of gratitude and blessings for one another.

For one of our final prayers we sang “I Will Walk in the Presence of God”. This song speaks of the freedom which comes when one enters into God’s presence. We later sang the blessing of St. Francis: “May the Lord bless and keep you. May he turn his face to you have mercy. May he turn his countenance to you and give you peace.” Tears welled up in Mose’s eyes. We knew he could feel the touch of God and that peace and comfort were his companions.

I said to Mose, “If the state carries out this execution tonight, embrace death, for death is a gift. Death is never the hard part; it’s the getting there. There is this old spiritual I sing once in awhile, ‘I don’t feel no ways tired, I’ve come too far from where I started from. Nobody told me that the road would be easy, I don’t believe he’s brought me this far to leave me’.” Mose’s response: “Amen, Amen!” He said with much conviction. “This is a very unjust thing that has happened to me. For eighteen years I have had to live with this heavy burden strapped to my back, but tonight it is going to end. Straight from the heart, I am all right, for I am at peace. I refuse to harbor hate, for hate is deadly in the worst kind of way. They may be able to destroy Mose’s body, but they will never be able to claim Mose’s spirit or soul.”

Five minutes to seven, the escorts had come down to tell me that I must leave. Sister Christine, Mose’s spiritual advisor, would be staying until 10:30 As I was leaving the holding cell, the very last words that I heard were, “I love you, keep it real.”

“I love you too my brother, be at peace.” I thought how sad and inhuman that the one who is to die is denied that last human touch with their loved ones. I remained strong, but the core of my soul grieved for all of us. It is customary that on the eve of an execution there is a lock-down of the entire prison. All inmates are accounted for in their cells.

The guards are manning their posts. The press conference area is intact. The telephones are checked for clear connections, and the clocks are all synchronized. The atmosphere is very quiet, but far from being peaceful.

I was to return to the prison at 10:30 PM. The next three and half hours would seem like an eternity. As I was being escorted to my car, I was told that the purpose of the escort was for my protection from the media. Personally, I did not perceive it as a problem. Greater measures were taken to avoid any possible contact with the victim’s family. It was even suggested that when I return to the motel, I park my car at least 2-3 doors down from where I was actually staying to avoid the “forbidden ”!

It was later reported that a few minutes before 10:00 PM one of Mose’s lawyers called to inform him that the governor would be announcing his decision on television that the execution would be carried out as planned. Mose was able to hear the announcement simultaneously as he was speaking to his lawyers.

Mose said, “I am relieved. The wait is almost over. I will finally get to see my mother and father tonight. It has been an awful long time since I have seen them.” Sadly, both parents and numerous other loved ones had passed away during the time of Mose’s incarceration.

At 10:20 I started my short trip back to the prison. I felt as if I were in slow motion. About one half mile before reaching the entrance of the prison, I was trailed by several security vehicles which followed me to the front gate. The gate, being closed, was blocked by another eight or nine security cars.

The prison’s S.W.A.T. team was heavily strapped with fire arms and communication gear. One would have thought that some dignitary was expected to arrive, not that a man was about to be murdered in our name. I felt a deep hollowness inside.

A couple of the guards approached my vehicle. After showing some ID and stating that I was a witness for Mose Young, I was flagged on, led by a security car to the back entrance of the prison, only to park my vehicle and be transported in the prison van to the farthest and most remote section of the prison. Inside the van there were the driver and a companion guard in the front seat. Directly behind them, was a steel grate dividing the seats. I was instructed to sit behind the grate.

No effort made for conversation. Only after a short distance this overwhelming distaste of feeling violated and being treated like a criminal came over me. I insisted that I be let out, so that I could walk the rest of the way. With much reluctance they complied. Ahead I could see the chaplain and a “high security” staff person waiting. Sad to say, I really do not think that either one had a clue as to how vulnerable a person might be feeling at this time.

I was then taken to a waiting room, ironically the same waiting room where we would often visit Mose. There I was to meet Sister Christine. Once she arrived, we were detained for little over an hour before being taken to the execution chamber. We as witnesses of the accused were the last to enter the execution area and the first to leave immediately once the execution was completed.

The execution chamber is a core of a larger room. It is enclosed by a steel door on one side and three viewing rooms. At each window of the viewing rooms are Venetian blinds that are kept closed until the procedure is ready to begin.

In the viewing area to the left of the offender were the state witnesses and media, the second viewing area, at the foot of the offender was the victim’s family, and the third viewing area to the right of the offender were the witnesses for the accused. Only one victim’s family participated. They felt that the death of this man was justified in order that they might have some kind of closure.

The father in this particular case refused to participate in the witnessing. The second victim’s family are all deceased, and the third victim’s family stated that they also, did not want to advocate the taking of another person’s life.

At 11:55 PM the call came for us to go to the execution chamber, the dreaded dark hour had come. I remember praying over and over, “Lord, God, let your mercy be upon us. Jesus remember Mose when you come into your kingdom.”

Once we were in the chamber, we sat in our designated seats, which consisted of plastic chairs nailed to a three-tiered platform. There was a stillness, a shameful silence. A gamut of emotions filled the room. Some waiting for the first signal to be given, others praying that the first signal would never come....but it did.

“Operation Will Begin,” the monotone voice announced. The blinds are aggressively snapped open. The front line executioners are not revealed. Alone in the chamber, Mose was lying on a gurney. A bright white sheet covered all but his face and head, leaving the imprints of the restraints underneath quite visible. In spite of his mild lethargic state, Mose immediately made contact with us.

He turned his head and smiled. With some effort, he was able to raise his right hand to give the peace sign. He mouthed the words, “I am all right. I will be with you. I am going to touch you.” Our message to him, “Mose go towards the light. Finally be at peace, embrace your God, for Allah is with you forever.”

At the head of the gurney, there was a hole in the wall that accommodated three intravenous lines, piggybacked into a main line that was inserted in Mose’s right arm. As a medical professional, I cannot count the times I have started IV lines administering medications to fight infections and inflammations of all sorts, the goal and result being restorative, yet I felt powerless and much sadness that I was unable to intervene on behalf of a human being who was intentionally being put to death.

“Phase One!” Startled by the unemotional announcer, I was aware that the first lethal injection, Sodium Pentathal, causing deep unconsciousness, was being administered. Mose’s immediate response was a mild shudder. His pupils became fixed. He was still, very still. There was a brief pause, approximately 60 seconds.

Then on cue “Phase Two" the next lethal injection, Pancuronium Bromide was introduced in the lines causing paralysis of the lungs and other muscles. At this time I began to notice some cyanosis (a bluish tint) around Mose’s lips. Very little time had passed when we heard the final instruction, “Phase Three", a lethal injection of Potassium Chloride administered causing cardiac arrest. After the last drug was given, there was a 7-8 minute wait, before the announcer signaled, “Operation complete. Mose Young deceased.”

Soon after midnight, Mose had succumbed. Flooded with an overwhelming sense of God’s peace, I was certain that death had come prior to it’s being officially pronounced. I felt the moment Mose’s freedom came, for his physical remains presented a different look. His body no longer housed his soul. I am confident that God embraced this man with a tenderness which, hopefully, you and I shall come to know. All I could pray was “Thanks be to God for setting this man free. No longer enslaved. No longer caught up in a system that denies his right to life. No more prison bars and locked doors to keep him confined. No more raping of his humanity and vulnerability. No more looking over his shoulder, wondering if this is the day someone makes the decision whether he lives or dies. No more walking in the shadow of death....No more walking in the shadow of death.”

Just seconds after the official death pronouncement, the blinds were lowered. We were hurried out of the chamber area. No allowances or considerations intended. Sadly, no acknowledgment of the loss.

As we proceeded to leave the premises, the front entrance that was once swarming with guards, and security cars was now deserted. The air was fresh, the sky was clear and the stars were plenty. After all there was a real celebration going in heaven, a real welcoming home. Mose had reached the finish line. He had crossed the barren desert, and he did not die of thirst, for it was his faith and trust in God that sustained him through the fire.

With heartfelt regret, I am truly sorry that there was never the occasion to speak with the victim’s family, not to judge them or challenge their feelings, but to simply acknowledge their pain and their loss. As Sister Helen Prejean expresses so well, we need to stand on both sides of the cross, giving empathy, compassion and understanding for both the victims and the perpetrators.

I have often wondered why we are afraid to speak of what heals rather than what destroys. In the past eighteen years, what had been done to help families such as these find authentic closure which would bring healing and peace? I believe that within each person there are inner resources which can offer comfort and reconciliation. With appropriate guidance and direction, one can come to recognize these gifts and channel his or her life in a more holistic way.

For me the following excerpt speaks volumes, “Vengeance and violence dehumanizes, gives false satisfaction. Surrendering to vengeance and violence can only lead to death, spiritual death. If we truly understand our pain and suffering from serious violation, then why would we want to inflict this pain on anyone else, especially when it can only lead to false hope and temporary satisfaction?

Violence and vengeance crucifies us all, but every time someone responds with love and forgiveness, that person and all humankind are raised up to a new vision and quality of life. This is salvation. This is mirroring the God who makes good come out of evil. This is the beginning of the end of violence.” (Hidden Friends, Carmelites of Indianapolis)

Personally having experienced violence in my own family, the murders of a grandfather and three cousins, I feel compelled as a human being to be a part of what seeks, advocates, and promotes peace and justice. In the struggle to find that unity of reverencing life, all life, we must become reconciled. It is imperative that we give value and worth to all people, even those who have made poor choices in their lives, especially those whom we perceive as radically different from ourselves. In reality they reflect a dimension of who we are and what we are capable of “but for the grace of God”.

Though our “Green Mile” has been long and emotionally draining, my life has been touched in a very sacred way, a way that not even I will be able to fully grasp until that day when I too shall be in total presence of God. I give thanks to him for this rich experience, and the grace to endure it. As I look back and process this tragic ordeal, I feel a much deeper appreciation for the protection that accompanied us. God’s shock absorbers were indeed a blessing!

As people of God, we must all continue to rise and move against the grain for justice, remembering and praying for those who have fallen at the hands of violence. Through faith we are committed to divine law rather than the law of the state, knowing that this is the only way we can come to God’s true peace and forgiveness of one another.

---Sister Audrey Locke, O.S.F.


Application for Executive Clemency


COMES NOW the applicant, Mose Young, Jr., by and through his attorneys, Joseph Margulies, Sean D. O'Brien, and John William Simon, and petitions the Governor for his order staying the execution presently scheduled for April 25, 2001, and appointing a Board of Inquiry, pursuant to Mo. Rev. Stat. § 552.070; and for his Order commuting the sentence of the Circuit Court of the City of St. Louis from death to life without parole.

Mose Young was sentenced to death in a trial in which the prosecutor used every one of his peremptory challenges to exclude African-Americans from the jury.  Mose's trial lawyer was an alcoholic who made no pretense of being prepared; in the next case he tried, he sat silent through the entire proceeding to protest the court's denial of his motion for a continuance.  He was disbarred, but his other client's sentence was overturned.

Mose has been a good father to his two sons, one of whom is retarded.  He has been a mediator between African-American and white prisoners, and has prevented more deaths than he was convicted of causing.  He is worth more to the State of Missouri alive than dead.

Regardless of the broad philosophical issues involving the death penalty, this is one case in which a consistent death-penalty supporter can say that life without parole is enough punishment under the circumstances-that the norms underlying the continued practice of capital punishment do not support carrying out this execution, and that the interests of society weigh in favor of letting this man continue to help raise his sons and to help his fellow-prisoners get along with each other and with the staff.

A National Perspective on This Application

The Nation is embroiled in a debate over the death penalty.  Each new day brings fresh accounts of racial bias, incompetent counsel, and law enforcement untroubled by conscience.  Roused by countless studies, and angered by appalling anecdotes, the public increasingly doubts whether the ultimate penalty can be administered fairly-free from the ugly taint of racism, free from the pathetic spectacle of counsel sleeping through his client?s trial, free from the horrifying risk of an innocent man executed.  Support for the death penalty has fallen, and across the country, momentum gathers for a moratorium.

To date, over 1000 local, state, national, and international organizations have joined the call for a moratorium to study the persistent problems in the administration of the death penalty.  Nearly two dozen municipalities have called for a halt on executions, including Atlanta, Baltimore, Buffalo, Detroit, Philadelphia, Pittsburgh, and the City and County of San Francisco.  Many of the most prominent newspapers in the country have added their voice to this chorus, including the St. Louis Post Dispatch, New York Times, Washington Post, Chicago Tribune, Los Angeles Times, San Francisco Examiner, The Oklahoman, and the Sarasota Herald Tribune.  Even the conservative Washington Times has endorsed a moratorium. 

Nationally recognized religious leaders have called for a moratorium, including Cardinal Mahoney in California, Cardinal Keeler in Baltimore, Bishop Fiorenza, and Pat Robertson.  Moratorium bills have been introduced in a dozen state legislatures, including Missouri, and passed in Nebraska and Illinois.  In New Hampshire, the legislature repealed the death penalty, the first state in the modern era to do so, although the Governor vetoed the bill. Prominent national and international organizations have joined the campaign, including the American Bar Association and the United Nations Commission on Human Rights.

In 1997, the ABA published a 147-page report on the death penalty, and concluded that the "decisions about who will live and who will die turn not on the nature of the offense the defendant is charged with committing, but rather on the nature of the legal representation the defendant receives."  (Report of the American Bar Association on the Administration of the Death Penalty at 6 (1997)).  The ABA called for an end to executions until the states implemented important reforms, notably in minimum standards for defense counsel and the elimination of racial disparity.  Yesterday, July 10, 2000, the incoming president of the American Bar Association renewed this call, and urged lawyers in their states to work for a moratorium until persistent questions about racial profiling and incompetent counsel are resolved.  U.S. Lawyers Leader Seeks Death Penalty Moratorium, New York, July 10 (Reuters).

On the national level, the Justice Department revealed last week that it is studying the influence of racial bias in the federal death penalty, and Senator Richard Durbin (D-Ill.) and Senate Judiciary Chairman Orrin Hatch (R-Utah) have called for Senate Hearings on the administration of the death penalty.  Senator Patrick Leahy (D-Vt.) has introduced The Innocence Protection Act, designed to ensure, among other things, that people charged with a capital crime will have access to competent counsel.  In the House, Representatives Jesse Jackson, Jr., (D-Ill.) and Jan Schakowsky, (D-Ill.) introduced legislation calling for a seven-year moratorium on all executions while studies proceed on the fundamental inequity in the death penalty.  And on July 7, 2000, the Clinton Administration announced that it would delay the first scheduled federal execution in nearly forty years to study the undeniable evidence of racial imbalance in the federal death penalty.

The events unfolding on the national stage provide a fitting backdrop to Mr. Young?s case.  The recurring themes in the national debate are persistent concerns about racial disparity and incompetent counsel.  Yet both themes figure prominently in Mr. Young?s case, and explain the result:  Mose Young was prosecuted by a racist, and defended by a drunk.  But the leading men in this tragedy are themselves a product of a broken system-a system that tolerated institutional racism, just as it created a defense that collapsed under the weight of impossible burdens, until defense counsel became no better-and no different-than the sleeping lawyer.  Mose Young?s trial was a mockery and a farce, and you should not allow his execution to go forward.  The execution should be stayed and a Board of Inquiry appointed to study both the troubling evidence of racial profiling in the selection of jurors, and the appalling performance of Mr. Young?s attorney.

Reasons for Exercising Clemency

I. The sentence of death against Mose Young is not the result of a fair and rational weighing of aggravating and mitigating factors but of raw prejudice in the selection of the twelve citizens who would make this decision-prejudice against African-Americans when they were not in a position to defend themselves at the ballot box.

At Mose's trial the prosecutor used all nine of his opportunities to strike a prospective juror without giving a reason to exclude African-Americans from the jury, when Mose is an African-American and the decedents in the pawnshop robbery of which he was convicted were white.  It is impossible to present a more compelling inference of racial discrimination than to show that the prosecutor used 100% of these "peremptory challenges" against people of color.  The St. Louis defense bar has long contended that behavior such as this is no fluke-that prosecutors in St. Louis deliberately discriminate against African-Americans in jury selection.

In the judicial courts-as distinguished from this proceeding-the fact that the prosecutor used his entire allotment of peremptory strikes to remove people of color would arguably not support an inference of intentional discrimination under the Fourteenth Amendment's guaranty of the equal protection of the laws, even when it is combined with the anecdotal understanding of the defense bar.  In court-as distinguished from a clemency proceeding-such a claim requires direct proof of discriminatory purpose, as the Supreme Court of the United States held in Swain v. Alabama.1  This factor is one of several in this case in which the courts have been limited by Congress-or have created limits for themselves-that allow life-and-death constitutional grievances to go unremedied without the intervention of the Executive.  The courts expressly rely on clemency as a backstop when they announce such self-imposed limitations.2

Direct proof of racially discriminatory intent is notoriously difficult to secure.3  In this case, the difficulty has been greater still because prosecutors have maintained a strict code of silence about their practice.  Commissioner Jane Geiler's courageous decision to break that code of silence has enabled Mr. Young, for the first time, to establish that prosecutors in St. Louis-in his case and numerous others-routinely, repeatedly, and deliberately excluded African-Americans from juries in criminal cases.

Previous litigation in this case focused on whether Mr. Young could receive the benefit of Batson v. Kentucky-the United States Supreme Court decision setting forth the constitutional rules to apply when a prosecutor's strikes appear to be racially motivated in a given case.4  The Supreme Court decided Batson before Mose's appeal became final.  That question was resolved against Mose because trial counsel, Jack Walsh, did not raise the objection necessary to preserve the issue for review, and because Walsh had no duty under the Supreme Court decision defining the constitutional guaranty of the "effective assistance of counsel" to anticipate the Supreme Court's Batson decision.5  As a result, the prosecutor's discriminatory use of his peremptory challenges was governed by the earlier rule of Swain v. Alabama.6  Because of the culture of silence which prevailed in the prosecuting attorney's office with respect to its deliberate practice to discriminate against African-Americans in the selection of jurors, that proof was beyond the reach of any competent defense lawyer at the time of Mr. Young's trial.  Commissioner Geiler's recent appointment makes that proof available for the first time.
The relevant facts are few.  In state post-conviction proceedings, trial counsel for Mr. Young, Jack Walsh, testified that the prosecutor in this case, Ed Rogers, used all nine peremptory challenges allotted to the prosecution to remove African-Americans from the jury.  No one has never denied or refuted this testimony.

On June 23, 2000, Joe Margulies-one of Mr. Young's present attorneys-spoke by telephone with Ms. Jane Geiler, and asked then Assistant Circuit Attorney Geiler about the discriminatory use of peremptory challenges by prosecutors within the Circuit Attorney's Office.  Ms. Geiler told Mr. Margulies she has been a prosecutor with the Circuit Attorney for the City of St. Louis, the same office that prosecuted Mose in the name of the State of Missouri, since late 1984 or early 1985.  She joined the office shortly after Mose's trial.

Ms. Geiler often choked back sobs as she talked.7  She told Mr. Margulies that prosecutors in that office routinely and repeatedly used their peremptory challenges to remove blacks from criminal juries.  "Speaking slowly and emphasizing her words, Ms. Geiler said that prior to the Supreme Court decision in Batson v. Kentucky, prosecutors in her office 'always, always' used their strikes against blacks.  Blacks, she said, were not viewed as individuals but as a group-just as they viewed members of certain professions, or people with advanced degrees.  People in these groups were considered presumptively hostile to the prosecution."8  Ms. Geiler stated, "[y]ou didn't have to be a racist to use all your strikes against blacks, you just had to be a good prosecutor who wanted to win."9  Ms. Geiler was not surprised that Ed Rogers had used all nine of his strikes against blacks, including some whom he removed without asking a single question.

Later in the day on June 23, 2000, Mr. Margulies received a voice mail message from Ms. Geiler, who indicated that she had recently left a meeting with her boss (Circuit Attorney D. Joyce Hayes), and said she had been forbidden from cooperating on behalf of Mose Young.  Ms. Geiler made it clear that if she did cooperate with Mose's attorneys, she would have to leave the office. At Ms. Geiler's request, Mr. Margulies called her at her home in the morning of June 24, 2000.  Ms. Geiler reaffirmed that she had crossed the line when she offered to cooperate with Mr. Young:  "There was no ambiguity.  [Circuit Attorney D. Joyce Hayes] told me if I give you a statement, I will lose my job."  Choking back tears, Ms. Geiler explained that she could not afford to lose her job for many reasons of a highly personal nature.10  If subpoenaed to a hearing on this matter, Ms. Geiler will testify in accordance with her statements as set forth in Mr. Margulies' affidavit.

In related litigation, the United States Court of Appeals for the Eighth Circuit observed that it was uncontested that the State of Missouri-through Circuit Attorney Dee Joyce Hayes-"has deliberately interfered with the efforts of petitioner to present evidence . . . ."11  The Eighth Circuit found it even worse than than a civil wrong:  "[i]ndeed, there is reason to think that what the Circuit Attorney did here amounts to the crime of tampering with a witness, see Mo. Ann. Stat. § 575.270(1)."  Based on these propositions of fact-later found to be true by the district court after a trial-the Eighth Circuit ruled that Ms. Hayes's conduct had independent constitutional significance:

The instant complaint alleges that the defendant Hayes, with the purpose of inducing Ms. Geiler to withhold evidence, threatened her with loss of her job. Cf. 18 U.S.C. § 1505 (a comparable federal statute). Such conduct on the part of a state official is fundamentally unfair.  It unconscionably interferes with a process that the State itself has created.  The Constitution of the United States does not require that a state have a clemency procedure, but, in our view, it does require that, if such a procedure is created, the state's own officials refrain from frustrating it by threatening the job of a witness.  [Id. at 853.]

Counsel learned what Ms. Geiler had to say several months ago.  Ms. Geiler did not immediately become available as a witness because of the chill which state actors placed on her testimony.  Ms. Geiler's testimony became available only recently, when she left the Circuit Attorney's Office to accept an appointment as Commissioner for the Twenty-Second Judicial Circuit.12

Ms. Geiler's testimony provides the proof needed to support the Swain claim-proof that was previously beyond Mr. Young's reach.  To get to first base by making a prima facie showing under Swain, an accused citizen must produce "[s]uch proof [that] might support a reasonable inference that African-Americans are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny African-Americans the same right and opportunity to participate in the administration of justice enjoyed by the white population."13  An accused citizen "is not required to show that the prosecutor always struck every black venireman offered to him . . . but the facts must manifestly show an intent on the part of the prosecutor to disenfranchise blacks from traverse juries in criminal trials in his circuit."14  In federal habeas corpus, a petitioner can make a prima facie "showing either by coming forward with statistical evidence or by using testimony from individuals who have witnessed the prosecutor's manner of exercising his peremptory strikes."15

Without Ms. Geiler's testimony, redress for Mose Young's Swain claim was beyond his reach.  A senior member of the Eighth Circuit, the Hon. Myron Bright, observed that prosecutors have too often relied on the tough evidentiary standard of Swain to to get away with bare-faced racial discrimination:

In case after case, this court has decried the frequency with which we have been called upon to examine prosecutors' use of peremptory challenges to strike black jurors from the trials of black defendants. . . . The number of appeals in which such challenges are made indicates that many federal prosecutors have been ignoring the Supreme Court's prohibition against the purposeful exclusion of black jurors from the juries of black defendants solely on account of their race.  Swain  v. Alabama, 380 U.S. 202 (1965);  Strauder v. West Virginia, 100 U.S. (10 Otto) [303], 25 L. Ed. 664 (1880). Prosecutors seem to have been relying on the tough evidentiary standard of Swain to bar a defendant from successfully demonstrating error due to a prosecutor's conduct of peremptory striking of all or almost all potential black jurors.  Prosecutors seem also to have been relying on  Swain' s evidentiary standard to insulate themselves from being forced by the district court to provide the reasons for their use of peremptory strikes to eliminate black jurors.16

This observation applies with special force to Mose Young's case because the prosecution went to extraordinary lengths to enforce the code of silence that concealed their practice and policy to discriminate against African-Americans in the selection of trial juries.  The history of this case speaks loudly and clearly that, in Judge Bright's words, "So far as prosecutors have relied upon the evidentiary standard in Swain to shield themselves from being forced to relate their reasons for peremptorily striking black prospective jurors, their reliance is neither justified nor in good faith."17

Using the standards the courts impose on themselves, the fact that Rogers used his peremptory challenges to exclude African-Americans from Mose's jury was not sufficient in and of itself to establish a constitutional violation.  Commissioner Geiler's testimony provides direct evidence of the prosecutor's intentional racial discrimination.  It changes the entire legal landscape of the racial discrimination issue in this case.  If Mose could receive judicial consideration of this claim now that the Geiler evidence is available, under the Eighth-Circuit law, the burden would shift to the prosecution to show that it did not discriminate (which it cannot):  when direct proof of the state's discriminatory intent is provided, the state is no longer entitled to the presumption that it exercised its peremptory challenges in a lawful manner.18

Mose Young cannot count on the courts to enforce the rules in his case, because these courts frequently apply the Antiterrorism & Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA) to cases that were filed before its effective date, as Mose's was.  In his case, the retrospective application of the AEDPA to bar his due process and equal protection claim would do little more than reward the state for obstructing justice.  But for the code of silence, he would have had the information he needed to succeed on a Swain claim years ago.  Now he faces the denial of a judicial forum to present his federal constitutional grievances because of the application of a statute which was not even drafted, let alone enacted, at the time he filed his petition for federal habeas corpus.

We all know that racial discrimination is wrong for several reasons.  First, it deprives a large segment of our population of the right to participate in self-government.  Second, it distorts the fact-finding process by limiting the perspective of the jury to the perspective of one group in our society.  Nowhere is this evil of racial discrimination more pronounced than in the sentencing portion of a capital trial.  Stacking the deck by artificially increasing the number of jurors who will naturally empathize with the decedents as opposed to the accused citizens interferes with the rational consideration of aggravating and mitigating factors which is essential to the Supreme Court's decisions allowing the states and the federal government to resume capital punishment.

II. Mose Young's trial lawyer was admittedly and chronically unprepared to represent him.

Mose Young was represented by Mr. Jack Walsh, who has since given up his license and resigned from the practice of law.  Mr. Margulies has attached an affidavit recounting his conversation with Ms. Geiler.  Most notably, she recalls Mr. Walsh as ?a functional alcoholic,? with a running tab at a local tavern.  Every night after work-whether he was in trial or not-Mr. Walsh retreated to the familiar comfort of his bar stool at C.J. Muggs and ?drank his sorrow away.?  This practice is confirmed by the affidavit of James McKay, who worked at the time as a junior attorney in the same office, but who later became its Director.  McKay was drinking with Mr. Walsh during the capital trial that followed immediately after Mr. Young?s-where Mr. Walsh sat mute during trial, and the case was reversed for ineffective assistance.  (Affidavit of James McKay.)

Often choking back tears, Ms. Geiler described Mr. Walsh?s utter and abysmal failures throughout Mr. Young?s case, beginning with an unmitigated failure to prepare.  Mr. Walsh inherited the case virtually at the last minute, and tried the case immediately after defending a major rape trial, which followed immediately on the heels of another murder trial.  Immediately after Mr. Young?s trial, Mr. Walsh was forced to try yet another capital case.  By the time this last trial started, Mr. Walsh was coughing up blood.

Operating under these conditions, Ms. Geiler recalls that Mr. Walsh never visited the scene of the crime in Mr. Young?s case, and made no attempt to investigate or prepare prior to trial.  Ms. Geiler remembers that Mr. Walsh had given no thought, let alone prepared for, the punishment phase.  Ms. Geiler still recalls the night, during trial, when Mr. Walsh came to her home, well past midnight.  In this meeting, Ms. Geiler developed the punishment phase instructions to the jury, and attempted to force-feed Mr. Walsh the arguments he could use to beg for his client?s life.  In the trial for Mr. Young?s life, Mr. Walsh did virtually nothing.

But Ms. Geiler does not blame Mr. Walsh.  Ms. Geiler describes Mr. Walsh as a tragic hero, who failed miserably and collapsed under the weight of an oppressive system.  To understand Mr. Walsh?s abysmal failure, Ms. Geiler believed it was also necessary to comprehend the equally abject conditions under which her office operated.  The Office of the Special Defender was overwhelmed.  (See also Affidavit of James McKay.)  Even in the most serious cases, attorneys litigated without the time, resources, and support essential to their clients? defense.  In many cases, Ms. Geiler explained, the attorneys working in her office were veritable walking violations of the right to effective assistance of counsel.  When counsel asked specifically whether this applied to Mr. Walsh?s defense of Mr. Young, Ms. Geiler said without hesitation that it did.  When asked specifically whether Mr. Young received a fair trial, Ms. Geiler said, again without hesitation, that he did not.19  Her office was a classic example of institutional ineffectiveness, and Mr. Young?s defense was the shining illustration.

Sadly, the themes of racial disparity and incompetent counsel in this case are linked:  because of counsel?s incompetence, the prosecutor?s racism has escaped review.  As noted, Mr. Walsh did not object to the prosecution?s discriminatory use of its peremptory challenges because he believed, incorrectly, the issue would be preserved for federal review even without an objection.20  He also acknowledged at the PCR hearing that: (1) he knew the local prosecutors used their peremptory challenges to excuse minorities from the venire; (2) he had objected to this practice in other cases; (3) he had intended to lodge the same objection in this case, even though he believed no objection was necessary in order to preserve the claim; and (4) he had no strategic or tactical reason not to make the objection, and in fact was surprised to discover that he had not done so.21

In the midst of Mose Young?s death penalty trial, Walsh experienced a sudden realization that would cost him his license to practice law in the State of Missouri.  Exhausted from a crushing caseload, meager resources, aggressive prosecutors, and the unbending demands of the judiciary, Walsh nevertheless went through the motions of defending Young?s capital trial even though he knew he was ill-prepared.  That was simply the path of least resistance.  It was easier to proceed to trial on a capital charge than to stand up for his client?s right to be defended by an adequately prepared lawyer.

On a Saturday morning in May 1984, a St. Louis jury returned a verdict fixing Mose Young?s punishment at death.  Walsh spent the rest of the weekend intoxicated.  The following Monday, still vomiting from his binge, Walsh appeared for jury selection in the capital case of State of Missouri v. Walter Harvey.  He urged the court and the prosecutor to continue the case.  He was physically exhausted.  Since being appointed to represent Harvey, he had been tied up in numerous other trials-including one case in which he met his client for the first time on the morning of trial.  Walsh told the court that he had done no preparation whatsoever for Harvey?s trial; he was not ready to give the case the defense it deserved.  His plea for for an opportunity to give his client a fair trial fell on deaf ears; the court denied his request and proceeded with jury selection.

Fearful that any effort that he might put forth on Harvey?s behalf would simply sanitize an injustice, Walsh determined that Harvey would be better off if he simply refused to participate in the trial.  He did not make any challenges or strikes from the venire panel.  He gave no opening statement.  He conducted no cross-examination.  He presented no witnesses.  He made no argument.  His sole effort consisted of repeatedly reminding the court that he was not prepared to give his client a fair trial.

Walsh took this action knowing that he was putting his legal career at substantial risk.  He excused his young apprentice, assistant public defender James McKay, so that McKay would not suffer any repercussions from Walsh?s conduct.  Walsh felt there was no real alternative for Harvey?s defense under the circumstances.  He had nagging doubts about Harvey?s guilt.  There were promising avenues of investigation he had not explored.  There were aspects of the prosecution?s case that did not ring true.  And he believed that Harvey did not deserve the death penalty.

Walsh?s desperate decision had the anticipated consequences.  Harvey?s conviction was reversed on appeal in a begrudging opinion by the Missouri Supreme Court.  At his retrial, a jury spared Harvey?s life.  Angry judges and prosecutors pursued disciplinary action against Walsh in the Missouri Supreme Court; recognizing that his career as a trial lawyer had gone down the tubes, Walsh surrendered his license and returned to his boyhood home, Chicago Illinois.  When asked if he had any regrets, Walsh replied that he wishes his epiphany had come ten days earlier-when he had the life of Mose Young in his hands.

The same factors which prompted Walsh?s kamikaze move in Harvey?s trial applied with equal justification in the Mose Young trial.  Even though Young consistently asserted his innocence, Walsh had conducted no investigation.  He had not viewed the crime scene.  He had not interviewed Patricia Wilson, an eye-witness who was inside the pawn shop when the shooting started, even though Ms. Wilson had made statements suggesting that Young was not the shooter.  Walsh did not investigate Ronnell Bennett, the only witness produced at trial who claimed to have seen Young open fire in the pawn shop.  The jury did not know that Bennett and Young had a history; several years earlier,  Bennett?s brother had shot Mose Young in the back.  Young still has the bullet lodged near his spine.

Aside from the issue of guilt or innocence, there were many facets of Young?s hard life growing up in the projects which could have moved a jury to spare his life.  Many witnesses willing to vouch for his character and his amenability to rehabilitation.  Circumstances strongly suggesting that Mose was suffering from severe mental and emotion difficulties, which may have been induced or exacerbated by use of toxic street drugs. He had been seen by witnesses shortly before the shooting, acting irrationally.  Young appeared to be engaged in a heated argument with someone, even though he was alone.

The cases of Mose Young and Walter Harvey share many similarities.  Both involved high-publicity crimes which were being prosecuted by skilled and aggressive prosecutors.  In both cases, Walsh was haunted by doubts about guilt, which he had not had the opportunity or resources to investigate. Both clients persistently asserted their innocence.  Neither deserved to die.  The only difference between Mose Young and Walter Harvey is the fortuitous timing of their trials.  Walsh concedes that if Harvey had gone to trial first, Harvey would now be on death row, and he would have thrown his career away to save Mose Young.  In Walsh?s own words, to even attempt to mount a defense in either case, in light of the dearth of resources, his burdensome caseload, and his absolute failure to prepare, would have been ?a fraud on the system.?  Mose Young?s execution would perpetuate that fraud.

III. Mose Young is a valued part of a family in which he has fulfilled his role as a parent even from prison.

Mose is of value to others even within the walls of a maximum security prison.  He has remained a positive factor in his sons' lives.  Although his own parents have passed away, he remains an active, valued member of his extended family.

A. Mose Young grew up in public housing projects as a generous, likeable child, whom his relatives remember with affection.

Mose grew up in public housing projects in St. Louis; his family did not have the resources most families had; his father worked at intermittent, poorly paying jobs.  (App. 5.)  Mose sometimes helped his father on the job.  (App. 1 & 8.)  Mose and his siblings sometimes had to use rolled-up socks instead of baseballs in order to play games.  (App. 5.)

In spite of the negative factors in this environment, Mose grew up as a well-behaved, likeable child.  He was generous to other children, sharing what little he had.  His relatives now recall him as he was then, and regard him fondly.  (App. 2, 5 & 9.)

The jury that returned a death verdict did not know about Mose's strong family ties, because counsel did not contact them.  One after another of the relatives who have provided affidavits in support of clemency say that clemency counsel was the first attorney for Mose to contact them, and that if they had been contacted in preparation for Mose's trial, they could have provided more information.  Mose's cousin, Geraldine Wynne, adds that some of the relatives to whom she would have referred previous counsel if they had contacted her have died since Mose's trial.

B. Mose Young has positively participated in the upbringing of his sons, one of whom has cerebral palsy.

Mose had a long-lasting, monogamous relationship with Linda Brownlee, and she bore him two sons, Mose Brownlee and Morio Brownlee. (App. 2.)  Mose Brownlee has cerebral palsy and is mentally retarded.  (App. 2 & 11.)

Morio is nineteen, and graduated from Roosevelt High School in 1999. (App. 11.)  He recounts that his father kept him and his brother out of trouble; his father encouraged him to stay in school, and he graduated.  (App. 11.)  Morio plans to continue to keep his father involved in his family as he has children of his own, if the State of Missouri does not kill him first.  (App. 11.)

Killing Mose would needlessly deprive his sons of a father who continues to be a positive influence in their lives.

Because it has arisen since his incarceration, the jury could not have had the full sense of this fact about the value of Mose's life even if his previous lawyers had bothered to interview his sons, which they didn't.  Like the information about his upbringing that the jury never heard, this is a mitigating factor that you are the first-and last-decisionmaker to consider.

IV. Mose Young has played a valuable role for staff and other prisoners.

One of the principal determinants of a decision between life without parole and the death penalty is whether the accused citizen will be a threat to others if sentenced to prison or whether he will make a contribution to society while confined.  By his conduct in the Department of Corrections, Mose Young has proved that the interests of the State of Missouri would be better served by keeping him alive than by killing him.  The jury and the sentencing court could not have know this:  you do.

A. Mose Young has healthy respect among both black and white prisoners on account of his unique combination of seriousness and good humor.

Virtually anyone who takes the trouble to meet Mose Young, Jr., will agree that he is an impressive person.  He is friendly, and at the same time serious.  This combination of personal strengths was developing, or perhaps already developed, before he went to the Department of Corrections.  (App. 1 & 9.)

This combination of good personal attributes has not been lost on his fellow prisoners.  (App. 16 & 17.)

B. Mose Young uses the respect he has earned to prevent violence and other violations of good order.

Lamentable as its effects has been outside the walls of our prisons, our country's sad history of racial conflict has had fatal consequences among men who are confined at close quarters and are not selected from among the most restrained and lawabiding among us.  Grievances that could lead to removal from one's holiday card list in the outside world could lead to assault or even homicide in a prison, and routinely do.

Mose Young has repeatedly used the credibility he has established among other prisoners to prevent potentially fatal situations from getting out of hand.  (App. 13-18.)  In presenting this information, counsel do not rely on the word of their client's black fellow prisoners, but on a Native American (who regards himself as a neutral observer of conflicts between white and blacks, App. 15) and two whites (one of whom the State of Missouri has characterized as a white supremacist, App. 13).  In light of the evidence from men who might be expected to be hostile toward Mose, one can safely assume there would be numerous testimonials from staff if they were not gagged by those in the Department of Corrections who put killing a few of their prisoners ahead of protecting the mass of them.

In acting as a mediator, Mose has exposed himself to hostility from other prisoners who may regard him as a traitor to his fellow blacks or as uppity toward whites, as the case may be.  (App. 14.)  In doing so, he has undoubtedly saved lives of staff and prisoners alike.

Mose Young is a real-life analog to John Coffey in The Green Mile.  Of course he has not performed miracles; but The Green Mile is a work of fiction.  Mose Young has stopped race riots, and has saved more lives than he has been convicted of taking.  Sparing his life would be readily understandable to anyone who can add and subtract, especially if they have seen this movie.

WHEREFORE, the applicant prays the Governor for his order staying the execution and appointing a Board of Inquiry, and thereafter commuting the death sentence of Mose Young or granting other and further appropriate relief.

Respectfully submitted,



1380 U.S. 202 (1965).
2E.g., Herrera v. Collins, 506 U.S. 390 (1993).
3Cf. United States v. Wilson, 816 F.2d 421, 424 (8th Cir. 1987) (discussing "the tough evidentiary standard of Swain").
4476 U.S. 79 (1986).
5Strickland v. Washington, 466 U.S. 668 (1984).
6"[A] defendant cannot, under Swain, establish an equal protection violation 'solely on proof of the prosecutor's use of peremptory challenges to strike black jurors at the defendant's own trial.'"  Garrett v. Morris, 815  F.2d 509, 511 (8th Cir. 1987), citing Griffith v. Kentucky, 479 U.S. 314 (1987).
7Affidavit of Joe Margulies, p. 1.  (Submitted with this document.)
8Id. at 4.
10Id., p. 5.
11Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000).
12The office of Commissioner is a quasi-judicial position created by Missouri statute.  In that capacity, Commissioner Geiler presides over drug prosecutions by special order of the Presiding Judge of the 22nd Circuit.
13Swain, 380 U.S. at 224; Horton v. Zant, 941 F.2d 1449, 1454 (11th Cir. 1991).
14Willis v. Zant, 720 F.2d 1212, 1220 (11th Cir. 1983)(emphasis in the original); Horton v. Zant, 941 at 1454.
15Id. at 1455; Love v. Jones, 923 F.2d 816 (11th Cir. 1991).
16United States v. Wilson, 816 F.2d 421, 425 (8th Cir. 1987) (Bright, J., concurring).
18See Walton v. Caspari, 916 F.2d 1352 (8th Cir. 1990); Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987).  In Walton, the Eighth Circuit held that a violation of Swain v. Alabama is established when the explanation for peremptory strikes reveals a discriminatory intent.  916 F.2d at 1359.  Direct evidence of the prosecutor's racially discriminatory intent establishes the Swain violation and justifies habeas corpus relief.
19Affidavit of Joseph Margulies at Para. 5.
20PCR Tr. at 139 (?[I]t was always my understanding of federal law that in terms of preservation of it you need not make a formal record at the trial stage.?)
21PCR Tr. at 139-40; 151-53.


161 F.3d 1159

Mose Young, Appellant,
Michael Bowersox, Superintendent, Potosi Correctional Center, Appellee

United States Court of Appeals,
Eighth Circuit.

Submitted Sept. 21, 1998.
Decided Dec. 4, 1998


RICHARD S. ARNOLD, Circuit Judge.

Mose Young was convicted and sentenced to death for the murder of three men in a St. Louis pawn shop. After unsuccessful state appeals, he petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that numerous aspects of his trial violated his constitutional rights. The District Court1 denied the application, and Young now appeals on three grounds. First, he argues that he received ineffective assistance of counsel because his attorney failed to object to the prosecutor's use of peremptory challenges to exclude black people from the jury. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Second, he argues the trial judge should have granted a mistrial because of an unanswered question by the prosecutor directed to the defendant on cross-examination, which, Young argues, improperly implied that he had committed prior violent acts. And third, he claims he was denied due process by several allegedly improper remarks made by the prosecutor during closing arguments in the penalty phase of the trial. We find no merit to Young's arguments and affirm.


The facts concerning the crime itself are not relevant to the issues on appeal, except to point out that Young, who is black, was charged with shooting and killing three men on February 8, 1983.

Young's first argument relates to the failure of his trial attorney to object to what he contends was the prosecutor's racially discriminatory use of peremptory challenges. Counsel's trial notes indicate the prosecutor used all nine of his peremptory strikes against black veniremen.2 Counsel did not object to this tactic, although he claimed he was well aware of the state prosecutor's practice of excluding black people from juries, had objected to this practice in the past, and had intended to do so in this case. Young claims that this oversight deprived him of the effective assistance of counsel and resulted in a structural defect that tainted the entire trial.

In order to prevail on a claim of ineffective assistance of counsel, Young must show that his attorney's assistance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We find it unnecessary to discuss the reasonableness of counsel's conduct because, in any event, Young cannot show he was prejudiced by this oversight. As Strickland makes clear, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Young cannot satisfy the prejudice requirement and has not attempted to do so. Instead, he urges this Court to view his counsel's failure to lodge the Batson objection as a "structural defect" which is presumptively prejudicial. According to Young, a Batson error is a structural defect which renders the entire trial unreliable, and it necessarily follows that prejudice should be presumed. Otherwise, Young argues, he is forced into the impossible position of showing how the outcome of the trial would have been different in the absence of a structural defect.

We cannot accept this position. This case is controlled by Wright v. Nix, 928 F.2d 270 (8th Cir.1991). In Wright, we were also confronted with a defendant whose attorney had failed to object to the prosecutor's use of peremptory challenges to exclude non-whites from the jury.3 Because the defendant Wright had failed to raise this issue properly, he was required to show both cause and prejudice for his omission in order to attack his state conviction in a federal court. Wright argued that the ineffective assistance of his trial counsel was the cause of the omission, and thus he had to satisfy the two-part Strickland test. Like Young, Wright argued that requiring him to show prejudice in the sense of a reasonable probability of a different outcome asked the impossible. We rejected Wright's attempt to avoid the prejudice requirement of Strickland. We explained that an error by counsel does not warrant setting aside the judgment of a criminal proceeding on collateral attack if the error had no effect on the judgment. Wright, 928 F.2d at 273 (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052).

A passage from the concurring opinion in Wright is relevant here:

[Wright] has not shown that the individual jurors who tried him were not impartial, and, as already noted, he has not even begun to show that the presence of the black juror[s] in question on the jury that tried him would have affected the outcome at all. It is in the sense of outcome, I submit, that the Strickland Court used the term "prejudice." The focus is on the outcome of the individual trial. Is there a reasonable likelihood that it would have been different? Here, I am persuaded that there is no such likelihood, and I therefore agree that this judgment should be affirmed.

928 F.2d at 274. Young has not shown a reasonable probability that the results of the proceeding would have been different, and his ineffective-assistance-of-counsel claim must fail.

Young's next argument relates to the prosecutor's conduct during cross-examination. The prosecutor began questioning Young regarding the origin of an alleged disability which defense counsel mentioned in opening arguments. Defense counsel had referred to the fact that Young had a slight limp while explaining Young's version of his hasty retreat from the crime scene. In response to the question about the disability, Young volunteered that he had also been shot in the back, and then explained that his limp was the result of an old football injury. The prosecutor followed up with a question about the gunshot wound, and defense counsel objected. A sidebar followed, and the trial judge sustained the objection. The prosecutor then returned to cross-examination, and the following exchange ensued:

Q: "Mr. Young, how many people have you shot?"

A: "Have I shot?"

Q: "Yeah, how many."

Defense counsel quickly objected and requested a mistrial, arguing that the prosecutor was attempting to introduce evidence of other crimes. The judge sustained the objection, denied the request for a mistrial, and Young never answered the question.

Although the prosecutor admitted during sidebar that he was referring to "specific prior bad acts," the State now suggests that the jury most probably interpreted the question to refer to how many people Young shot in this case. We will assume the jury's interpretation of the question was consistent with the prosecutor's purpose. Even so, the unanswered question is not "so egregious that [it] fatally infected the proceedings and rendered [the] entire trial fundamentally unfair." Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir.1985). The question did not refer to any specific past acts or indicate what the circumstances surrounding those acts might be. Moreover, the evidence of Young's guilt was overwhelming, and the jury relied on multiple aggravating circumstances when setting the penalty.


Young's final argument concerns several statements the prosecutor made during closing arguments at the penalty phase of the trial. In arguing that the evidence supported finding the crime was committed with "depravity of mind," an aggravating circumstance, the prosecutor stated, "it's disgusting and it's as cold as anything I've ever seen." The prosecutor also stated, "if the death penalty is an appropriate punishment, you tell me a situation where it's more appropriate than here." The defense did not object to either of these statements. The third allegedly improper remark relates to the prosecutor's attempt to imply that if Young did not receive the death penalty, he might take the life of a fellow inmate. The prosecutor suggested, "why should he hesitate to take a life of somebody he doesn't like in the penitentiary ... [w]hat would it be for then, folks, a pack of cigarettes, a stick of gum, a[n] extra fifty cents." Counsel objected to this line of argument and again moved for a mistrial, the objection was overruled, and the motion was denied. Young failed to raise any of these issues in his motion for a new trial. The Missouri Supreme Court, therefore, reviewed the allegedly improper comments for plain error, State v. Young, 701 S.W.2d 429, 435 (Mo.1985) (en banc), and we will do the same. Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir.1997).

The test for prosecutorial misconduct has two parts. First, the remarks must have been improper, and second, the remarks must have been so prejudicial as to deprive the defendant of a fair trial. United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985). The first remark was clearly improper. It invited the jury to rely on the prosecutor's personal opinion about the relative coldness of this crime and compared the circumstances of this crime to other crimes that were not in the record. Analyzing the prejudicial effect of these remarks requires us to consider a number of factors: (1) the type of prejudice that arose from the remark; (2) whether defense counsel did anything in his argument to minimize the prejudice; (3) whether the jury was properly instructed; and (4) whether there is a reasonable probability that the outcome of the sentencing phase would have been different, taking into account all of the aggravating and mitigating circumstances. Antwine v. Delo, 54 F.3d 1357, 1363 (8th Cir.1995). As noted above, the prosecutor made this statement as part of his argument that the crime involved depravity of mind and was outrageously or wantonly vile, horrible, or inhuman. There was overwhelming evidence from which the jury could have found the presence of this aggravating circumstance aside from the prosecutor's personal opinion that it was as cold as anything he had ever seen. In addition to finding depravity of mind, the jury designated four other aggravating circumstances for two of the murders and five others for the third. After taking all of the aggravating and mitigating circumstances into account, we see no probability that the sentence would have been any different. The error was harmless beyond a reasonable doubt.

The second remark was the prosecutor's statement that "if the death penalty is an appropriate punishment, you tell me a situation where it's more appropriate than here." We do not find this type of rhetorical statement improper. Even if it were, it would certainly not rise to the level of a constitutional violation.

Finally, Young argues that it was improper for the prosecutor to comment on his future dangerousness during the sentencing phase of trial. In support of this position, Young cites to a case from the Seventh Circuit which held that the "government may not attempt to obtain a conviction by appealing to jurors to prevent future crimes by finding present guilt." United States v. Cunningham, 54 F.3d 295, 300 (7th Cir.1995) (emphasis supplied). This is not the case here. The prosecutor's comments were made during the sentencing phase, and the Supreme Court has specifically approved capital-sentencing procedures that allow the jury to consider the probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Jurek v. Texas, 428 U.S. 262, 274-76, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Because we do not find this comment improper, it is unnecessary to determine whether any prejudice resulted. The argument did no more than invite the jury to consider that a life sentence might not be sufficient to deter this defendant, who had killed three people, from committing murders in the future. Juries are fully capable of properly weighing this kind of rhetoric.




The Hon. George F. Gunn, Jr., late a United States District Judge for the Eastern District of Missouri


The notes also indicate that there were seven white jurors and five black jurors


The claim Wright's attorney failed to preserve relied on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The reasoning of our Wright opinion would apply with at least equal force to a Batson claim


218 F.3d 850

On Appeal from the United States District Court for the Eastern District of Missouri.


RICHARD S. ARNOLD, Circuit Judge.

This is an action under 42 U.S.C. 1983. The plaintiff (appellant in this Court) is Mose Young, a prisoner who is under sentence of death in the State of Missouri. For our opinion affirming the dismissal of Mr. Young's petition for habeas corpus, see Young v. Bowersox, 161 F.3d 1159 (8th Cir. 1998), cert. denied, 120 S. Ct. 192 (1999). The sentence of death is scheduled to be carried out at 12:01 a.m. tomorrow, Wednesday, July 12, 2000. The District Court dismissed Mr. Young's complaint on motion for summary judgment. The appellant seeks reversal and a stay of execution in this Court.

We state the facts and our conclusions briefly because of the exigency of time. The essential theory of the complaint is that the defendant Hayes, Circuit Attorney for the City of St. Louis, has threatened to fire one of the lawyers under her supervision, Jane Geiler, if Ms. Geiler provides information to the Governor of Missouri in connection with a clemency petition Mr. Young wishes to file. Interference by an official of the State with the clemency process, Mr. Young argues, threatens to deprive him of his life, without due process of law.

Our first duty is to decide our own jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). Is the case moot? Defendants argue that it is, for two reasons: (1) Ms. Hayes has withdrawn her objection to Ms. Geiler's participation in the clemency proceeding; and (2) Ms. Geiler has actually provided the Governor with an affidavit. We conclude that neither of these events renders the case moot. As to Ms. Hayes's action, we think it sufficient to quote the recent opinion of the Supreme Court in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 120 S. Ct. 693, 708 (2000):

It is well settled that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite, 455 U.S., at 289, 102 S. Ct. 1070. "[I]f it did, the courts would be compelled to leave '[t]he defendant . . . free to return to his old ways.'" Id., at 289, n. 10, 102 S. Ct. 1070 (citing United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L.Ed. 1303 (1953)). In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S. Ct. 361, 21 L.Ed.2d 344 (1968). The "heavy burden of persua[ding]" the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. Ibid.

Here, even if we assume that Ms. Hayes's withdrawal of her prior statement about firing Ms. Geiler is full and ungrudging, we have nothing more than the voluntary cessation of allegedly illegal activity.

As to the affidavit that Ms. Geiler has submitted, at least one good reason remains why the case is not moot. The affidavit covers only one of the two subjects that Ms. Geiler initially agreed to testify about. The affidavit describes what Ms. Geiler regards as the inadequate representation that Mr. Young received in his capital trial. It does not address Ms. Geiler's further observation (if representations by counsel for Mr. Young as to the conversation he had with Ms. Geiler are to be believed) that the Circuit Attorney's office, during the relevant time period, uniformly and without exception exercised peremptory challenges to remove black jurors. This omission, we think, is arguably due to Ms. Hayes's insistence, even after the threat of discharge had been removed, that Ms. Geiler, her employee, not say anything to the Governor or to the Missouri Board of Probation and Parole that would embarrass the Circuit Attorney's office. This case was decided on motion for summary judgment. The burden of demonstrating mootness is on the defendants. Friends of the Earth, supra. It seems to us that a trier of fact could reasonably infer that Ms. Geiler's willingness to provide information freely is still under some substantial restraint as a result of actions by the defendant Hayes.

What about the merits? On this point, the District Court simply dismissed the complaint for failure to state a claim, holding that there is no right whatever to due process of law in connection with a clemency proceeding. This view is inconsistent with the position quite recently taken by a majority of the Supreme Court. See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288-89 (1998)(O'Connor, J., concurring in part and concurring in the judgment, joined by Souter, Ginsburg, and Breyer, JJ.); id. at 290 (Stevens, J., concurring in part and dissenting in part). In particular, Justice O'Connor stated:I do not . . . agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards.

The State relies on two decisions of this Court, Perry v. Brownlee, 122 F.3d 20 (8th Cir. 1997), and Otey v. Stenberg, 34 F.3d 635 (8th Cir. 1994). In both of those cases we rejected due-process claims aimed at state clemency hearings. We do not think that the general expressions in these opinions about the applicability of due process in clemency proceedings are controlling in the particular circumstances of the present case. In any event, if the cases are read as laying down an absolute rule that no due-process violation can ever occur in a clemency proceeding, they are inconsistent with the later pronouncements of a majority of the Supreme Court in Woodard. This panel is bound by previous panel opinions of our own Court, but we are not so bound if an intervening expression of the Supreme Court is inconsistent with those previous opinions.

Certainly the discretion of a governor to grant or deny clemency is unlimited in any ordinary circumstances. No claim is advanced here that the petitioner has a "liberty interest" in the grant of clemency or the right to any particular outcome when he seeks it. The allegation is quite different. Apparently Missouri regularly receives evidence from any and all sources in clemency matters, and the Governor is not restricted as to the nature of the considerations he may entertain or the evidence he may receive. If clemency is sought on the ground of ineffective assistance of counsel, racial discrimination in the trial process, or other procedural grounds, the Governor may grant or deny it as he chooses. The claim here is that the State, acting through the Circuit Attorney of the City of St. Louis, has deliberately interfered with the efforts of petitioner to present evidence to the Governor. It is uncontested that the interference did in fact occur at one time. As we have tried to explain above, the question whether the effects of the interference still persist is one on which reasonable people could differ, and therefore for a trier of fact.

Indeed, there is reason to think that what the Circuit Attorney did here amounts to the crime of tampering with a witness, see Mo. Ann. Stat. 575.270(1). This statute provides, in pertinent part:

A person commits the crime of "tampering with a witness" if, with purpose to induce a witness or a prospective witness in an official proceeding . . . to absent himself . . ., or to withhold evidence, information or documents, . . ., he:

(1) Threatens or causes harm to any person or property; or

(2) Uses force, threats or deception;

. . ..

The instant complaint alleges that the defendant Hayes, with the purpose of inducing Ms. Geiler to withhold evidence, threatened her with loss of her job. Cf. 18 U.S.C. 1505 (a comparable federal statute). Such conduct on the part of a state official is fundamentally unfair. It unconscionably interferes with a process that the State itself has created. The Constitution of the United States does not require that a state have a clemency procedure, but, in our view, it does require that, if such a procedure is created, the state's own officials refrain from frustrating it by threatening the job of a witness.

This reasoning makes it unnecessary for us to address petitioner's alternative claim under the First Amendment.

The judgment of the District Court is reversed, and this cause is remanded to that Court for further proceedings consistent with this opinion. The motion for stay of execution is granted, and the defendant Luebbers is hereby enjoined and restrained from carrying out the sentence of death in Mr. Young's case until further order of this Court, the District Court, or the Supreme Court.

Petitioner's pro se motion for a stay of execution is denied as moot.

Our mandate shall issue forthwith.

BEAM, Circuit Judge, dissents.



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