Nixon completes death penalty review

EXAMINING JUDGES' SENTENCING

From staff and wire reports

JEFFERSON CITY, Mo. -- After a review of Missouri's 67 death row cases, Attorney General Jay Nixon said Friday that the state complies with a recent U.S. Supreme Court ruling that juries, not judges, are to decide whether to impose the death penalty.

Nixon said his review found the state's death penalty provisions were constitutional in light of a decision by the nation's highest court in an Arizona case.

The U.S. Supreme Court decision in June concerned instances in which juries determined defendants' guilt or innocence and judges alone decided their punishment.

The court held that such sentences violate defendants' constitutional right to trial by jury.

The attorney general's office has said nearly one of every six Missouri death row inmates -- 12 of 67 -- were condemned by a judge instead of a jury.

In Cape Girardeau County, Andrew Lyons was sentenced to death for a triple homicide in 1992. One of Lyon's death sentences was handed down by a judge, but Cape Girardeau County Prosecutor Morley Swingle said the Supreme Court's ruling will not likely stop the inmate's eventual execution because his other death sentences were issued by a jury.

Missouri law allows judges to impose the death penalty in some cases, most often when the same jury that convicted a defendant deadlocks about sentencing.

"In Missouri, jury instructions in capital cases require the jury to first unanimously determine an aggravating circumstance exists that would qualify a defendant for the death penalty," Nixon said. "If the jury cannot agree that such a circumstance exists, then the jury is required to return a verdict of life without parole."

Nixon said that if a jury finds an aggravating circumstance, it can decide an appropriate sentence. When no agreement on a sentence can be reached, a judge can make the decision since an aggravating circumstance has already been determined.

Not surprising

Marty Robinson, director of the state public defender's office, said he was not surprised by Nixon's findings.

"That's what I would expect the attorney general to say, but matters of constitutionality will be determined by the courts and not the attorney general," Robinson said. "There is nothing in the decisions that come out of the jurors to say why they are hung up. He is making assumptions about what's going on the sanctity of the jury room."

Robinson also suggested there are likely to be some chances in jury instructions in future cases when a death penalty sentence is left up to a judge.

"You ought to see a more specific pronouncement of why the jurors could not agree on the sentence," Robinson said. "Then there would be no misunderstanding why the judge is making a decision that is ordinarily made by 12 people."

Nixon said his review found eight cases in which a jury found the aggravating circumstances necessary for capital punishment but left to a judge the final decision on sentencing. Four of those cases when directly to a judge after a defendant waived the right to trial by jury.

Nixon said those four cases should not be affected by the Supreme Court decision "because the court never questioned the right of the defendant to waive trial by jury and place himself at the mercy of the judge."

The four cases of death row inmates that have claims pending under the U.S. Supreme Court decision are:

James Rufus Ervin, who was sentenced by a Reynolds County judge after being convicted by a jury in the death of Leland White.

Andre D. Morrow, sentenced to death by a St. Louis County judge after a jury conviction in the death of John Koprowski.

Roderick Nunley, sentenced to death by a Jackson County judge after pleading guilty for the murder of Ann Harrison.

Joseph Whitfield, sentenced to death by a St. Louis County judge after being convicted by a jury in the death of Ronald Chester.

The ruling by the Supreme Court called into the question the death sentences of at least 160 convicted killers in at least five states. Executions in Arizona, Idaho, Montana, Colorado and Nebraska, which have similar laws, must be reconsidered.

Missouri has executed 58 men since the state resumed carrying out the death penalty in January 1989.