Mo. prosecutors stay quiet on death penalty review

COLUMBIA, Mo. -- When the American Bar Association sought to review Missouri's death penalty laws as part of a nationwide study of capital punishment, it turned to a collection of the state's most esteemed lawyers, judges and law professors for help.

The two-year ABA study, released earlier this year, relied on detailed responses from law enforcement agencies, medical examiners, crime labs and others involved in handing down the state's ultimate legal sanction. But one group was largely and notably absent from the discussion: the prosecutors who decide whether to seek the death penalty in the first place.

Several members of the panel that worked on the study said the prosecutors' lack of cooperation hindered efforts to fully evaluate the death penalty system in a state that executed 68 people since the U.S. Supreme Court reinstated capital punishment in 1976, trailing only Texas, Virginia, Oklahoma and Florida.

ABA surveys sent to prosecutors in Kansas City, Springfield, Columbia, Cape Girardeau and St. Charles went unanswered, while the state attorney general's office provided limited information. Daniel White, prosecutor in Clay County in suburban Kansas City, was the only survey recipient to write back with his own thoughts but declined to participate, saying he did not want to "embolden enemies of justice."

White, who has sought the death penalty just twice in nearly 20 years, said sharing his insights would "generate a public document subsequently available to others who may not have justice as their primary mission."

Cape Girardeau County Prosecuting Attorney Morley Swingle said Thursday he decided not to respond because he thought the purpose of the review was purely political.

"I felt that it was rigged, basically," he said. "They knew the conclusions they wanted to reach. It's as if the fox is calling to ask your opinion on henhouse security."

Swingle has won five of the 10 cases death penalty cases he has prosecuted in Cape Girardeau County. He resigned from membership in the ABA in February 1997 and cited the reason as the association's stance on the death penalty.

He said he supports its use because he believes it does deter some homicides, pointing to a past case he prosecuted where a man who kidnapped and raped a young girl admitted he did not kill her because he did not want to receive the death penalty if he were caught.

"If it saves the life of one 5-year-old girl, it's worth having," he said.

The ABA sought details on the training and qualifications of assistant prosecutors who handle capital cases, including their caseloads. The association also asked about office budgets and salaries, number of previous and active death penalty cases, procedures for sharing discovery evidence with defense lawyers, interactions with families of victims, and policies on plea bargains.

The study panel had members from Missouri including U.S. District Court judges Nanette Laughrey and Stephen Limbaugh Jr. and Harold Lowenstein, a former state representative who spent 28 years as a judge for the Missouri Court of Appeals and is now in private practice in Kansas City. The panel also included two University of Missouri law professors and another from St. Louis University.

A 436-page report that came from the study includes recommendations that mostly would require legislative action. They include improved procedures for preserving biological evidence and a call for limits on the 17 aggravating circumstances under which prosecutors can seek death against murder suspects.

"I didn't anticipate a total lack of sharing information," said study panel member Doug Copeland, a St. Louis attorney and former Missouri Bar president. "They suggested some problems they had with going into their thought processes. I can understand that. But there's so much more information that doesn't tip their hands on anything."

St. Louis County prosecutor Bob McCulloch and former Callaway County prosecutor Bob Sterner, now an associate circuit judge, did not respond to the 40-question survey in writing but answered verbally, although it's not clear if they did so over the phone or in person.

St. Louis Circuit Attorney Jennifer Joyce's one-paragraph response to the survey referred to a collective response by the Missouri Association of Prosecuting Attorneys written by Taney County prosecutor Jeffrey Merrell, who merely cited Missouri laws on death penalty cases.

Merrell said prosecutors were concerned the ABA study was an effort to endorse a moratorium on the death penalty, which he said was the conclusion in seven of the previous nine ABA reviews.

"It seemed that every jurisdiction the ABA had studied, they recommended a moratorium," he said. "Our initial feeling was this was a superficial effort to do a study and then recommend a moratorium.

"There were several questions that really did not appear to be designed to be answered in a way that was a fair representation of how decisions are made in the state of Missouri."

Panel member Paul Litton, a University of Missouri law professor, said some of the prosecutors' concerns are reasonable, especially considering that the ABA office in charge of the review is called the Death Penalty Moratorium Project.

"We did not set out and say, 'Let's go find reasons to implement a moratorium,"' Litton said. "We went into it with an open mind about everything. We didn't go into this with some sort of anti-death penalty agenda."

Staff writer Erin Ragan contributed to this report.