Walter J. Blair v. Bill Armontrout, Walter J. Blair v. Bill Armontrout

* Before HEANEY R. and FLOYD GIBSON, Judges, Senior Circuit GIBSON, R. Judge. JOHN Circuit GIBSON, Judge. R. JOHN Circuit Blair, Walter J. convicted of mur- death, appeals der and sentenced to from petition the district court’s denial of his corpus for a writ of under habeas 28 U.S.C. Blair was convicted of kill- Allen, Kathy ing Jo who was scheduled to testify rape as the victim in the trial of Larry Jackson. Jackson had made offers pay appeal Blair kill Allen. On this writ, argues from denial of the Blair that granted for the the writ should be follow- (1) ing knowingly reasons: used trial; (2) testimony perjured at his the ex- pretrial interrogation clusion from of an attorney represented Blair an who had charge rendered Blair’s waiver unrelated ineffective; (3) rights of his Miranda prosecutor’s argument during Blair’s sen- eighth amendment tencing violated his rights; in his trial was not instruction; first-degree murder given a (5) he had not received effective assist- during corpus ance of counsel this habeas argues cross-appeal, the State case. On dis- court should not have that the district with the qualified attorneys all affiliated Attorney of the State General Office court’s affirm the district of Missouri. We and reverse its petition of Blair’s denial disqualification order. Blair’s trial established

Evidence at incar- in this case. While following facts County cerated with Blair the Jackson Jackson, charged Jail, Larry who had been Allen, offered Blair raping Kathy Jo testifying $2,000 keep Allen Later, Blair had been against him. after Blair, released, told him contacted Jackson killed, and raised his Allen that he wanted * Wright, States United Heaney, Honorable Scott O. active 1. The Gerald W. The Honorable Judge of Mis- the Western District argued, Judge as- District when this case Circuit January souri. status on sumed senior by Sharon as described clothing accepted. On $6,000, Blair which offer Allen Jones. days before three August against Jackson testify Moore, scheduled a.m., who 6:30 Velma At about friend, Ernest trial, told Blair rape screams, Street, two heard E. 34th lived on to watch going Jones, he scream, a third shot. another gunshots, evening and girl [Allen]” “white Al- a.m., police found 7:00 At around following out.” "take her might Volks- her abandoned body next len’s seen had that he told Jones day, Blair Tracy Ave- lot at wagen in a vacant apartment boyfriend her girl and her of Blair’s home from the nue, blocks four had a if he evening and previous from the nude was found Allen mother. Later them both. killed he could gun injuries head sustained up, had waist p.m., 9:00 p.m. and 8:00 day, between object, a blunt struck being caused handgun, .32a caliber Jones showed Blair chest, head, been shot and had earlier he had stolen said Blair wrist. of Au- hours morning early day. breath, his moth- arrived, out residence, Blair Jones’ Ernest gust Sharon 7:00 a.m. around er’s house Jones, iswho friend, Sharon girl met house, she saw the and was still Jones Jones, together and to Ernest related not From the pillow case. carrying a Blair mother’s residence. to his they went a take brown case, Blair she saw pillow he was that Jones There, Sharon told Blair watches, ring, two diamond a silver purse, he that and the bitch” to kill white “going day, that gloves. Later his gun, and his sunrise. return before would to Ernest went Jones Sharon Blair and and home his mother’s left Blair then There, passed Blair residence. Jones’ hid apartment. He Allen’s walked to watch, and ring, a man’s a diamond around and apartment the street the across Ernest Blair told license. driver’s Allen’s Seeing activity. suspicious for watched and that Allen abducted that he had Jones re- apartment, none, approached the Blair that she and a brick her with “he hit Al- window, entered and a screen moved 1484). (Tr. V her.” shot so he fall wouldn’t time, her Allen and At that len’s bedroom. family would Jackson’s that said Blair also Kienzle, asleep on a were Robert boyfriend, driver’s they Allen’s saw when pay him then living Blair room. mattress the evening Blair burned That license. with a face of his part lower covered case, spent and a pillow purse, the brown Allen’s couch. on he found pillow case casing. shell until couple and watched sat Blair murder, Blair and day after On the a.m. 6:00 approximately awoke Kienzle unsuccessfully to attempted Jones Ernest and Kienzle gun at his pointed Blair They then ring. diamond Kienzle’s pawn Allen, hearing to move. him warned brother, older ring to Ernest’s gave the Blair told up. woke talking, then men for $50. it Jones, pawned he and Frederick to rob just there was couple that he Ernest, who money to gave Frederick them. harm he would them Blair. money to gave the in turn ring, which diamond Kienzle’s Blair saw the Jack- contacted Blair August On pil- under attempted to hide had Kienzle driv- Allen’s them family showed son watch along Kienzle’s low, and took day Blair also same That license. er’s told Blair Kienzle’s wallet. cash from telephone. by Larry Jackson talked to drive could she so that get dressed Allen him like he loved Blair told Jackson take refused to Blair him somewhere. done, and that he had for what brother Kien- refused also keys and car Kienzle’s $6,000 had been he get Blair would When driver. act as offer to zle’s found day, police Later promised. Allen, Kienzle he told leaving with was ticket pawn name Jones’ Frederick ten seven within back she him. they arrested ring and Kienzle's Kien- gone, as Blair was As soon minutes. also ar- Jones Ernest thereafter Soon testified Kienzle police. called zle rested. clothing similar wore abductor Allen’s arrests, keep testifying against her from learned of the Jackson

When Blair friend, accidently girl Tina and that he shot her when Jones’ instructed Ernest escape. tried to Jackson, phone call num- she to have Ernest “Cody.” Tina When Jack- ber and ask Blair was convicted of Allen’s murder by police later that questioned son and sentenced death. The conviction by supplied the number day, gave she them and death sentence were affirmed on direct police determined Blair. The Blair, appeal. S.W.2d apartment rented phone number was for (Mo.1982)(en banc), denied, cert. sister, Linda Robertson. by Larry Jackson’s 1030, reh’g apartment, to that The Police then went denied, that Blair told them but Linda Robertson After L.Ed.2d certiorari was there, they then drove to was not denied, post-conviction Blair commenced a police were Blair’s mother. home of proceeding in state court under Missouri’s during Blair and their by admitted Mrs. subsequently Relief de Rule 27.26.2 they a hooded sweatshirt sim- search found nied and that denial was affirmed by Kienzle as one described ilar to the Appeals Missouri Court of for the Western being worn Allen’s abductor. Subse- State, 683 District. Blair v. S.W.2d 269 yielded quent analysis of the sweatshirt curiam).3 (per (Mo.Ct.App.1984) paint on the paint chips consistent with brought corpus Blair then this habeas apartment and cat hair of Allen’s outside proceeding under 28 U.S.C. 2254. He Allen’s cat. consistent with prosecution: called Er- argued that Jones, 22, Ernest at the be- August disclosing On nest Jones as a witness without Blair police, called the number explicit implied hest of the the had made or that State After a man given charges to Tina Jackson. promises respect had with Jones phone to the code name against exchange answered the him in for his pending Linda “Cody,” police testimony; the entered Robert- and failed to correct Jones’ testimony concerning and found Blair with sev- the existence of apartment son’s false family. Relying v. any of the Jackson “deals”. on United States eral members apartment and found a Bagley, the police searched (1985), Blair contended that near Blair and L.Ed.2d 481 similar to Kienzle’s

watch prejudiced analy- these two factors in a closet. Later pistol a .32 caliber gave him and an incentive to against Jones expended that the two bullets sis showed thereby rendering testimony, alter his body, near Allen’s as well found in and fundamentally unfair in viola- trial attempted had to Blair’s casing Blair the shell four- process clause of the weapon. tion of the due burn, fired had all been amendment. teenth and was read his Mi- Blair was arrested prosecu- that a The district court found times. Mi- rights at least two See randa Bell, tor, with Jones had discussed Arizona, James randa Sterling, possi- attorney, Peter there- and his Soon 16 L.Ed.2d 694 disposition of case. bility a lenient Jones’ after, abducting and kill- Blair confessed to Further, Sterling told noted that the court Blair first confessed ing Kathy Jo Allen. go peniten- confession, he would not Jones that signed a written orally, then in Blair’s case. More- tiary if he testified on vid- finally gave a third confession and and over, that both Bell the court noted in each of these contended eotape. Blair in- had that Jones been Sterling Al- testified although he had killed that confessions bargain possible plea with of a len, kidnap her to formed intended he had order, but filed a appeals a three-line January issued repealed effective 2. Rule 27.26 was dealt with supporting in Missouri is now which relief memorandum 1988. Post-conviction State, Supreme Court Rule arguments under Missouri Blair v. available in detail. See (Mo.Ct.App. July 29.15. memorandum No. WD 31, 1984) (unpublished). post-conviction proceedings, the circuit In the of issues. The court ruled on a number court under degrees of offense possible testimony. his exchange for State guilty found he could be had which Jones however, that court, concluded Further, stat- court Id. guilty. impeached thoroughly been already convicted exchange could a defendant that ed that indicated which evidence and after charged before both not been murder capital testimony, he had for his September Allen, pend his the statute amendment with the revoked, he not been Id. probation had ing Ac award. a $2500 part had received Blair’s claim considered The court next concluded court cordingly, argument closing prosecutor’s that the error, harmless constituted non-disclosure trial, of Blair’s sentencing phase reasonably probable it was because it would argued prosecutor leniency agree purported that, had this to sentence financially efficient be more of Blair’s disclosed, the outcome ment been constitutional death, his violated Blair Blair different. been trial would have argument rejected this The court rights. (W.D. 785, 788 Armontrout, F.Supp. at 793-94. discussion. detailed without Mo.1986). argues cross-appeal, the On that he claim considering Blair’s disqualified erred when court the district attorney, seeing prevented Attorney attorneys affiliated all Blair while found district attorney, prior an office General’s Locke, as- Kevin seen he had custody Blair office, represented had joining that as- defender, who public sistant Blair proceedings. post-conviction in state unrelated in an Blair to defend signed (W.D. Armontrout, F.Supp. courthouse. hallway of the charge, in the “the Mo.1985). concluded The court one of he said to saw Locke When Blair ex properly disqualification scope of attorney,” my him, holding “That’s men as a office Attorney General’s tends to Locke took then prosecutors one disqualifica that the whole,” id. he him that told office into another appear avoid required to was also tion Nevertheless, Blair. speak with could not id. 516-17. impropriety, ance knowingly waived held the court at all knew rights because his Miranda I. speak with he could refuse times that court district the argues that first Blair an request authorities, could that he the probabil- reasonable employing the erred in to use intended the State and that attorney, the determining that State’s ity standard con- to secure his videotaped confession the tes- perjured Jones’ Ernest knowing use of Id. viction. enti- to be In order timony was harmless. the that rejected claim Blair’s court that a claim relief on corpus to habeas tled the failing instruct by erred trial court tes- perjured on premised a conviction a lesser-in- first-degree murder as jury on the show that must timony, a defendant held It capital murder. offense cludéd testi- perjured used knowingly prosecution trial at the presented “the evidence that testimony could “the false and that mony support insufficient have been jury,” the judgment the have affected Id. at murder.” degree of first conviction Agurs, v. States United argument rejected Blair’s court 790. The L.Ed.2d these decisions between conflict that the 882 F.2d Trickey, Johnson also See protec- equal under rights his violated Blair that Cir.1989). conclude We (8th amendment. the fourteenth clause tion requisite of these either establish fails to elements. argu- post ex Blair’s Looking to facto by examination on direct testified Jones ease involved held that ment, court office prosecutor’s that the prosecutor sub- from a distinguished procedural press they would that him had told did change and hence change stantive told if he accessory to murder charges clause. post ex not violate facto probation case. His about the truth notice had clear Blair found the state circuit court concluded that Blair probation him his would not told officer had “failed to establish the existence of if testified. He had received revoked deal, expected any especially light such of the fact to receive reward $500 $2,000 testimony. person supposed gain who was reward for his additional deal, Jones, 1497-98). Then, (Tr. the testi- the benefit of the never knew atV such deal.” Id. at 11. The Missouri (assault any mony pending turned to cases Appeals for the Western District and Jones stated drug possession) conclusion, agreed stating with this any had not made deals with prosecutor “[mjovant’s Blair his claim the contention that there exist- him those cases.4 bases on ‘implied ed an contract’ as testimony perjured on later between testimony by prosecutor, prosecution James and the witness has no eviden- given State, basis.” Blair v. tiary Bell, sentencing the two No. WD on Jones’ partic- memorandum at 3. pending at the time of his charges trial,5 and on statements ipation in Blair’s We review state court factual determina attorney, Sterling, Peter made Jones’ corpus in federal actions un tions habeas hearing un- post-conviction during Blair’s 2254(d).7 der 28 U.S.C. Federal courts § Rule 27.26.6 der presume must that state court factual de appli in Blair’s terminations are correct unless the argument was made When this cant can either establish the hearing, circuit court noted existence the state conditions, 2254(d)(l)-(7), or “revealed that no one of seven Blair’s own evidence § are show that state court determinations regarding Ernest Jones’ deal was made State, record,” fairly supported “not pending cases.” No. CV83- Armontrout, 2254(d)(8). See Woods (Jackson Div. 8 slip op. at 9 Co.Cir.Ct. cert. de- (8th Cir.1986), 7, 1983) Accordingly, 787 F.2d (unpublished). July trial, hearing Sterling prosecutor questioned testified at Blair’s Rule 27.26 During any concerning the existence of deals as follows: Jones prosecution might made Jones Gardner) you you (By Q. had an Mr. Did feel testifying: before your understanding with Mr. Bell that client received, you’ve though go penitentiary? Q. And even would not Yes, you’re receive an additional entitled to A. I did. 12,000 money your testimony, as reward prosecutor’s anyone office of- Okay. you your Q. has advise client And did any pending the three to dismiss go penitentiary? fered that he would against you? cases A. Yes. agree- A. No. you you Q. did feel that had an And you they Q. deals with Have made your testified in with Mr. Bell if client ment those three cases? go case he would not Walter Blair’s A. No. penitentiary? 1498). (Tr. V right. A. That is 68, 71-72). (Rule Hearing 27.26 Tr. testimony transcript in Jones’ of Bell's 5. The reads, sentencing part, as follows: court, fash- The district in rather abbreviated ion, issue and the evidence on this outlined discussions with Mr. Jones I had several stated, counsel under concluded that ”[b]oth testifying, telling attorney prior to his and his oath, possible of a that Jones had been informed thought it for tactical reasons him that I testimony,” bargain plea with the State for his specifics discuss the of be better not to would 787, Armontrout, F.Supp. at but 643 Blair v. case, bargain that I would plea in this but a testimony impeaching and the pointed other to disposi- a lenient make sure and recommend testimony to show that of Jones’ nature exchange proba- his this case in tion of Id. at have been different. would not outcome exchange to that effect—or in tion—or words conclusion, reaching the district this 787-88. In cooperation. Words to that effect. the limitations on made no reference to court already agreed cooperate prior had He imposed by 2254 and § 28 U.S.C. recommendation, its review in considera- but is the state court determi- to consider of failed expense cooperation and the this tion of Instead, simply the court this issue. nations on this defendant in incurred to house would be Bagley, analysis under conducted an 667, the State of Missouri outside an institution 3375, any error and found that S.Ct. probation appropri- 105 is the State feels light our of occurred was harmless. that had holding, ate. questions. (Jones 4-5). not reach these we do Sen. Tr. 1318 testimony, is perjured used 890, knowingly 93 1036, 107 S.Ct. nied, U.S. 479 fact. of law and question un mixed applicant If the (1987). 842

L.Ed.2d alternative, "the either establish able to 2254(d) section It is well-established applicant upon rest shall burden determinations only to factual applies convincing evidence by establish of questions or mixed rulings legal not to court by the State determination factual Mata, 455 v. fact. See Sumner law 2254(d); see 28 U.S.C. § was erroneous.” 1306-07, 1303, 597-98, 591, U.S. 550, 539, 101 Mata, 449 U.S. v. Sumner curiam) (Sum- (1982) (per 480 L.Ed.2d 71 (Sum (1981) 722 770, 764, L.Ed.2d 66 S.Ct. ap- “the involve II). questions Mixed ner clearly review “standard I). This ner the historical principles legal plication of appellant.” on the heavy burden places Sullivan, 446 case,” v. Cuyler facts [a] 1091, 1093 F.2d 735 Wyrick, v. Robinson 1714, 1708, 64 342, S.Ct. 335, 100 U.S. 983, 105 denied, 469 U.S. Cir.), cert. (8th determi- (1980), factual while L.Ed.2d 333 390, L.Ed.2d 324 83 S.Ct. basic, histori- primary, or nations, “termed 6,n. 83 309 Townsend, at cal,” every habeas applies standard This to “a more similar are n. at 755 S.Ct. competent court a state “in which case credibility and the events recital external after ‘a determination has made jurisdiction Brown narrators,” (quoting id. their is- factual aof merits hearing on the ” 443, 506, 73 S.Ct. Allen, U.S. 344 546, 101 I, 449 U.S. at sue.’ Sumner J.)). (Frankfurter, (1953) L.Ed. 469 97 2254(d)). 28 U.S.C. (quoting at “that are requirements only other argu- considering Blair’s courts The state agent or its State and the applicant habeas did a deal determined point on this ment id., and proceeding,” parties a factual exist, we believe by ruling is “evidenced court state Fenton, that the Miller See determination. other opinion, or finding, written ‘a written 445, 88 L.Ed.2d 104, 106 S.Ct. ” indicia,’ id. adequate written reliable Whiteside, 475 U.S. Nix v. (1985);8 cf. (quoting 28 546-47, S.Ct. at at L.Ed.2d 182, 106 S.Ct. sub- Congress enacted 2254(d)). Brennan, U.S.C. § J., joined (Blackmun, be- friction (d) in alleviate concurring) section JJ., Stevens, Marshall, and systems. court and federal state tween the court finding by the [that state (“factual interest at 770. “This 550, 101 S.Ct. Id. testimony defendant’s requires deference ... in federalism presumption to a is entitled perjurious] determinations factual courts 2254(d)”). federal 28 U.S.C. § under correctness particularly true This is courts. all state squarely before question This its deter- makes court a federal ... where proceed- in Blair’s court circuit state record that the identical based mination vigor- attorney argued There, Blair’s ing. appellate by the state was considered existed. indeed a deal ously that court....” testimony, con- Jones’ reviewed Sain, 372 U.S. Townsend See statement prosecutor’s sidered (1963). We testimony sentencing, and heard Jones’ is- arguments on consider now close At the attorney. from Jones’ sue. record reviewed judge arguments, that: wrote and him before section contends first hearing at own evidence [Blair’s] this case 2254(d) inapplicable no 20, 1983 revealed on held June the state whether presented, question largely an evaluation turns Miller, that: Court noted therefore demeanor, 8. In and compelling are there familiar ap- suggest the often considerations [OJther apply- leaving process justifications for questions resolving close propriateness according trial court to the ing law fact issue as one of an concerning status weight. presumptive its determinations extending deference favor of "fact” in or “law” (emphasis at 474 U.S. added). When, example, the trial court. to the credibility witnesses involves issue agreement an existed between his client regarding made Ernest Jones’ deal was office, however, pending prosecutor’s cases. and the Ster- ling relationship prose- described his working relationship, cutor Bell as a trial and The evidence of movant’s ... any agreement stated existence at evidentiary hering movant’s [sic] (Rule unspoken. that time was 27.26 Hear- prosecutor] Bell and Mr. Jones [the ing 68-69). Sterling Tr. testified that he agreement had not reached an on Jones’ Bell cases. told Jones that he trusted and that he pending believed that Bell would treat Jones favor- CV83-6637, State, slip op. No. Blair v. ably at the conclusion of the Blair case. Moreover, Ap- the Missouri Court of (Rule 68). Hearing Sterling 27.26 Tr. also specifically District peals for the Western stated that he told Jones that because exists no factual or found that “[t]here testifying against Jones “was a man who any agreement reveal evidentiary basis to State, presumed dangerous, had to to be that it No. WD be or ‘deal’.” Blair v. Accordingly, practice go under 28 was standard that he would not memorandum 2254(d), presume that we must penitentiary U.S.C. to the under those kinds of § correct. are circumstances, these determinations assuming he testified and (Rule cooperated with Mr. Bell.” 27.26 however, argues, Blair also 68). testified, Hearing Sterling Tr. further “fairly sup are not these determinations however, specific plea agreement that a did record,” citing 28 U.S.C. ported by the until trial. not exist with Bell after Blair’s 2254(d)(8), pre and hence should him that He stated that Bell did not tell sumed correct. go penitentiary Jones would not to some state circuit court The record before the penitentiary. Fi- other than the Missouri Bell, stated that prosecutor, that the shows Sterling it not until nally, testified that was conversations with Jones he had several sentencing spe- that the just before Jones’ during which he had encour- Sterling a deal were outlined and that cifics of cooperate prosecu- with the aged Jones plea on the continued discussions Bell told against Blair. tion its case Sterling any admitted courtroom. exchange cooper- Sterling that in Jones’ agreement that he understanding or dispo- recommend a lenient ation he would time was thought prior existed to this pending against charges sition of opinion feeling based on his individual Jones, “for tactical reasons and that specific prom- any and not on for the case specifies discuss the better not to would be (Rule Hearing Tr. made Bell. ise 4-5). (Jones’ Sentencing Tr. case.” this 81-84). that he felt he had Sterling testified testimony of Bell and Ster- Based on would not be sent to agreement that Jones found that no ling, the state circuit court conveyed and that he had penitentiary gen- agreement existed.9 addition feeling When asked whether to Jones. Sterling penitentiary. he had an Mr. believed that: circuit court stated 9. The state Bell, agreement Mr. but that was based hearing evidence at the movant’s own expecta- speculative upon unilateral deal revealed that no held on June do, pending upon regarding Ernest Jones' Mr. Bell would was made tion of what unequivocal spoke cases. terms. what Mr. Bell Sterling, attorney at Mr. Jones’ Mr. Peter to vacate sen- cannot base a motion You Mr. Bell movant’s trial stated the time of judgment upon basis of one tence and concerning specifics not enter into agree- attorney’s there was an "belief" that [sic], Sterling pending Mr. testi- cass Jones’ agreement ever when in no ment fact or two did not believe until one fied that he days days prior Jones' to one or two reached before plea, of Jone’s No- [sic] before the date testimony days guilty plea, after the some 47 plea agree- had a that he vember The evidence in movant’s trial. of Jones years specific of number of ment as to the imprisonment eviden- movant’s trial at the the movant’s imposed upon and of to be Bell had tiary hering Jones and Mr. is that [sic] Sterling by probation Jones. Mr. to be served pending agreement an on Jones’ not reached say any- Bell did not also testified that Mr. thing cases. having go the not to to about Jones conclusions, containing the state its When record before the courts eral statement detail, following apparent is it is that made the considered circuit court state specific agreement no findings fact: there was concern- of detailed ing plea testified at Jones’ when Jones Bell, prosecutor, James 14. That the Blair’s trial. September trial on prior stated to agreement no had been “ex- 1980 that Since Blair has failed to refute con- pressly impliedly” made with Jones vincing evidence the state courts’ determi- charges his regarding pending those nations that no deal existed between Jones testimony. during prosecutor's Blair’s office trial, are and because these determinations attorney Sterling, for Mr. Peter 15. record, supported by presume we fairly Jones, on June Ernest testified 2254(d) under section that the state courts’ with Mr. James in conversations findings that no deal existed are correct. testimony prior to Bell Mr. Jones’ about Therefore, perjure did not himself at Jones trial, Sterling Bell Mr. Mr. told movant’s trial that he had when testified any to into enter that he did not want prosecutor’s made no deals with office. Mr. specifics concerning a deal with Accordingly, Blair has failed to establish charges. pending Jones on his then testimony knowing perjured of that a use Sterling testified on Mr. Peter judgment of the in his affected trial, 20,1983 prior to movant’s June case. Jones Mr. never told him that would Bell but that Mr. go penitentiary, Alternatively, Blair asks an evi- no say prob- there would be Bell did hearing concerning the dentiary truthful pending working out Jone’s lems [sic] testimony. It is clear that ness of Jones’ they would be taken charges and that complete. fact record before us This care of. this case from differentiates Johnson Sterling further testi- Mr. Peter we remanded Trickey, 882 F.2d where until one or that he did not believe fied evidentiary hearing to a case for an resolve Mr. days the date of Jones' two before perjured claim that testi defendant’s 4, 1980, that he guilty plea on November prosecu knowingly by the mony was used specific agreement as plea tion. Id. at 319. We conclude remand imprisonment years be number unnecessary, record because the before probation be imposed upon and thoroughly supports us the state courts’ his Ernest Jones. served client careful and detailed consideration Jones’ testimony. Blair, CV83-6637, slip op. at No. State v. (citation omitted).

2-3 II. hearing, review of Blair’s its argues the district Appeals for Western Missouri evidentiary specific by ruling, without an that no erred also concluded District his hearing, that Blair’s waiver of Miranda agreement existed.10 CV83-6637, (c) Blair, op. plea agreement slip were not at 9 details as to State v. No. days prior added). few wit- discussed until a (emphasis guilty plea, which a month subse- ness’s Appeals stated in its trial, Missouri Court 10. quent to movant’s unpublished memorandum that: (d) only supports a evidence conclusion good position in a that the witness particular upon the record in facts agreement, plea enter into a that such finding deal support [that existed] no reached, agreement was in fact are as follows: trial, (e) during counsel the wit- (a) movant's prior testimony the witness [Jones] ness, giving just agreement, to the witness's plea he was not aware of testimony, pending court that (b) testimony advised trial witness—that counsel for against charges not been dis- the witness had prosecutor counsel there advised while the working posed problems wit- of. no out the would be State, prosecutor WD memorandum at charge, Blair v. No. pending declined ness's original). (emphasis entering agreement, any specific 2-3 into though upon appellant attor- and the accompanying even of- rights was effective pretrial custodial ney was excluded on. ficers continued Locke then demand- claim, support this Blair interrogation. To speak appellant ed to and was re- relies on statements Moran particularly represent ap- fused. Mr. Locke did not Burbine, 106 S.Ct. 475 U.S. pellant charge. on the murder At the (1986),indicating that its result L.Ed.2d statement, beginning videotaped of his if been different the defendant would have appellant again was advised of his Mi- public had known of the de- in that case rights again randa and waived them. to contact him. He also fender’s efforts Appellant then made his third confession Illinois, upon relies Escobedo Kathy murder Jo Allen. 1758, 12 L.Ed.2d 977 pointing repeated Id. After to the Mi- minimum, that, argues at a the dis- warnings randa and its conclusion that the have conducted an evi- trict court should voluntary, confessions were the court fur- decide whether Blair dentiary hearing ther stated: rights. validly waived his Miranda Nor does the fact that Kevin Locke re- attorney involving Kevin The incident quested speak appellant dictate Locke, public an assistant defender who Although repre- Locke another result. representing Blair on an unrelated was appellant charge, sented on an unrelated two charge, occurred after Blair had made request appellant made no attor- confessions, was detailed oral one of which ney repeatedly in fact stated that he and signed, immediately transcribed and and attorney. did not want an The trial court interrogated before a before he was to be overruling appellant’s err in mo- did not The incident with Locke video camera. suppress tion to his confessions. earlier confes- thus cannot affect the two read, sions; was the second confession true, It is also entirety, jury. its findings with the factual Consistent although neither Locke nor Blair knew Court, Supreme the Missouri made

then, represent- that Locke could not court stated that “Blair knew at all district charge, as Blair in this ed speak and times that he could refuse appointed to office had been the defender’s he was aware of request lawyer, Jackson, man represent Larry who videotaped to use the the State’s intention Kathy kill Jo the offer to Blair to extended to secure a conviction.” Blair confession Allen. Armontrout, F.Supp. at 789. Missouri, Supreme Court findings that “state-court We observe recita- appeal, direct made a detailed in- subsidiary surrounding facts [regarding concerning this incident. tion of the facts on the ha- terrogations] ... are conclusive Blair, After 638 S.W.2d at 755. State v. fairly supported if the record beas court statement, he given Blair had a written enumerated if the other circumstances if make a confession asked he would 2254(d) inapplicable.” are Miller v. in § tape and was told that he could on video Fenton, 106 S.Ct. at 453. attorney present if he desired. have an that the fac- Accordingly, since we believe videotaped agreed to make a “Appellant Supreme findings the Missouri tual that he did repeatedly stated statement record, fairly supported Court are attorney.” Id. at 749. not want binding upon us. The findings are these stated: Missouri hear- conducting habeas district court being transported appellant As facts, that, given these ings concluded grand jury room where officers to the rights his Miranda Blair’s waiver of place, they videotaping would take volun- valid, confessions were and that his Locke, an assistant encountered Kevin Armontrout, F.Supp. at tary. Blair v. appel- represented public defender who agree with that conclusion. We appel- charge. As lant on an unrelated Burbine, 475 read Moran v. We do not ap- passed, greeted Locke him lant reply, where- U.S. pellant made an unknown 1322 Moran, argues the Blair that the State’s con

aiding Blair’s claim. In defen- duct rendered his waiver of the Miranda public contacted a local dant’s sister had defender, rights the telephoned police the station invalid because he believed that who rights be futile. informed a that she would assertion of those detective Although support in for this represent the the de- There is no the record defendant. Furthermore, her not im attorney position. the that client we are tective told questioned night, pressed argument that Blair’s would not be many respects he are only questioned confessed record is silent in was he but concern murder. The defendant Moran did material this issue. The record ing fully developed questioned this issue was at both know when suppression hearing and at his trial. public defender had called for him. Blair’s the confession admissi- held developed fully in a Since this issue was deception of ble “deliberate and stated that suppression hearing before trial and was possibly affect a sus- attorney an could not during aired some detail before Miranda pect’s waive decision to [his] trial, reject Blair’s claim that we at least rights unless [the defendant] [was] by ruling, an court erred without district Id. 423, 106 aware of the incident.” evidentiary Locke’s exclusion hearing, that S.Ct. render Blair’s waiver of his Mi- did not rights ineffective. randa us is different

The situation before represent that Moran. Locke did not and could charge question Blair on the III. so, public de- not have done because argues prosecutor’s Blair already represented Jack- fender’s office during sentencing por plea for death already significantly, Blair had More son. eighth tion of Blair’s trial violated his before he given two detailed confessions specifical rights. points Blair amendment after Finally, both before and saw Locke. ly following passage prose from the occurred, re- Blair stated this incident closing argument: cution’s not want to see peatedly that he did penalties in this are two [T]here attorney. case, death or life without consideration 478, Illinois, 84 Escobedo years. parole for 50 977, sup- 12 does not S.Ct. L.Ed.2d Why taxpayers as should we Escobedo, the Su- port position. Blair’s fifty years? Why this man for house preme that a confession should Court held we have to him three meals should feed police told a sus- excluded when have been fifty years, fifty him for day for clothe attorney not want to see pect that his did recreation, years, him medical furnish at 1761. This 84 S.Ct. him. care? Escobedo, nothing in is unlike case 2317). (Tr. VII police ever indicates that record ar recognized district court right concerning either misled Blair polls had shown that gument that recent against self-incrimina- right or his counsel public support of cost was one reason for Moreover, that the Court we note tion. “ penalty, but concluded that death “prime purpose”

Moran stated ‘the argument his constitutional did not violate to vindicate consti- of Escobedo was not Armontrout, Blair v. rights. F.Supp. 643 such, but, like right to counsel tutional at 793-94. Miranda, guarantee full effectuation “to Missis- citing Caldwell against argues, self-incrimina- privilege ”’ 2633, 86 sippi, Moran, 429-30, U.S. U.S. tion.” Illinois, (1985), sentencing por- Kirby L.Ed.2d 231 (quoting the trial not meet the standard 32 tion of did U.S. (Stewart, J.) eighth amendment (quoting reliability L.Ed.2d requires pros- that the Jersey, unless can be said v. New Johnson (1966))). no effect on the argument “had 1778, ecutor’s L.Ed.2d 341, danger jury being swayed by Id. at 105 S.Ct. sentencing decision.” prosecutorial closing argu misbehavior in argu that such points 2646. He out in indefensible, sentencing phase, especially ments the in particu held ments have been case, capital is obvious. How Tucker larly by the Eleventh Circuit. See ever, is axiomatic that federal courts (11th Cir.) (en “[i]t F.2d 1480 Kemp, 762 may in judicial process intervene the state banc), granted judgment vacat cert. only wrongs to correct of a constitutional 517, 1001, 88 by 474 U.S. 106 S.Ct. ed Goode, dimension.” Wainwright v. 464 remand, (1985), F.2d on 802 L.Ed.2d 452 378, 381, 104 U.S. 78 L.Ed.2d curiam), Cir.1986)(en banc) (11th (per 1293 curiam); Nix, (per Wycoff 187 see 1359, denied, 911, 107 S.Ct. cert. 480 U.S. 1111, (8th Cir.) (quoting 869 F.2d 1113 (1987); Kemp, L.Ed.2d 529 Brooks v. 94 — Goode), -, denied, cert. U.S. 110 Cir.1985) (en banc), (11th 762 F.2d 1383 179, (1989). 107 L.Ed.2d 135 “In a by granted judgment vacated cert. corpus proceeding, 2254 habeas a federal 1016, 3325, 92 L.Ed.2d 478 U.S. 106 S.Ct. alleged process due court’s review of viola (11th (1986), remand, 809 F.2d 700 732 stemming a state tions court convic curiam), Cir.1987) (en banc) (per cert. de Nix, tion is narrow.” Hamilton v. 809 1010, 3240, nied, 97 107 S.Ct. 463, (8th Cir.) (en banc), F.2d 470 cert. (1987). L.Ed.2d 744 1023, 3270, denied, 483 U.S. 107 S.Ct. 97 Brooks, noted In the Circuit Eleventh (1987). L.Ed.2d 768 prose for the clearly improper it that was Blair’s trial was bifurcated. Thus im death should be argue cutor “to prosecution’s argument the the sentenc than life im posed cheaper because was ing phase, jury came the after Similarly, F.2d at 1412. prisonment.” 762 already guilty found Blair mur Tucker, admonished the Eleventh Circuit der, have affected the determina could not making ef prosecutor for an economic guilt. only tion of We will consider wheth support a death sen ficiency argument to process er or not Blair was denied his due (calling refer F.2d at 1488 tence. 762 rights during sentencing phase by improper). unprofessional ence prosecutor’s comments. cases, however, concluded the court both Supreme involving In a recent Court case enough arguments that the did not have argument more vicious than before sentencing impact to render the adverse 477 today, Wainwright, Darden v. U.S. us fundamentally under review proceedings 168, 2464, (1986), L.Ed.2d 144 106 S.Ct. 91 1488; Tucker, F.2d at unfair. See prosecutor repeatedly referred to that Brooks, F.2d at 1416.11 that the defendant as an animal and wished condemning this We have no hesitation “face” had been shot and had his defendant legal simply no argument.12 There 14, away. n. 106 S.Ct. at Id. blown imposing the death justification ethical rejected Supreme 2472 n. 14. The Court proper this and it is not a penalty on basis argument eighth that the the defendant’s jury, for it Caldwell, to be considered factor amendment standard properly applied not reflect considered and instead does argument pro- crime or character of under the due circumstances of the evaluated the distinguishing Stephens, Zant v. Id. In Cald- the individual. See cess standard. 2743-44, 862, 878-79, well, that the observed (1983). guilt-in- at the question re- there were made comments sentencing however, stage rather than mains, present- Blair has nocence whether say that stage, went on to Caldwell: granting a but grounds for writ. ed sufficient Brooks, brought about condemned and have opinion have been Eleventh Circuit’s 11. The Brooks, See, e.g., v. Jor- was reinstated the court in courts. F.2d reversal in state (1956); dan, 809 F.2d 294 P.2d 80 Ariz. Clark, Pa. 185 A. Commonwealth Brooks, Circuit observed in 12. As the Eleventh 13, arguments as this n. such 762 F.2d at 1442 outcome of complained of affected the types to certain com- relevant trial—i.e., jury alleged as to absent that mislead ment—those sentencing process in a probably impropriety, its role verdict feel less way that allows have been different.” Hamilton [v. sen- responsible than it should Nix], 809 F.2d at 470. case, tencing none of decision. In at 1336-37. have had the effect comments could conclusory arguments Neither Blair’s thinking into misleading jury the by prosecutor violat- that the statement the sentencing had a reduced role the it decency of human and ed all standards process. duty to jury the abandon its caused 15, Darden, 106 477 U.S. 183-84 n. S.Ct. penalty nor our objectively apply the death argu- an n. deals with 2473 15. Darden us that study of the record convinces the similar in nature to before ment sentencing rendered fundamen- phase stronger one that we to be us and believe part prosecutor’s tally unfair the of the improper more than the one closing argument at issue. process applied As the due case. Darden standard, are are that we com- we satisfied strongest part of not the the This was pelled Maryland, to do v. 482 so.13 Booth prose- closing argument. The prosecutor’s 496, 2529, 96 L.Ed.2d 440 107 S.Ct. U.S. hard-hitting argu- tough, delivered a cutor (1987), eighth applying an amendment hard facts which was based on the ment impact a analysis evidence of victim main presented by this case. His focus statement, Gathers, v. and South Carolina establishing at least one four was on 805, 2207, 109 which aggravating circumstances Missouri prolonged argu- (1989), dealing a a present jury before order requires be victim, are not based on ment He discussed impose penalty. the death contrary.14 Allen, called a Kathy murder Jo it hire, monetary Blair’s stressed recently pro due

We defined this murder, “tough Blair’s Armontrout, gain from the noted in Newlon cess standard Cir.1989), image prison, talked of the consti- (8th guy” cert. denied 885 F.2d 1328 — 3301, right U.S. -, people of the of the State 110 S.Ct. tutional nom. sub death, (1990), man to we stated that: to sentence a where Missouri L.Ed.2d give Blair jury should not stressed that the al- petitioner must show years just only he was “mercy” egregious improprieties were “so leged 2317-19). (Tr. During argu- old. VII they proceedings fatally infected the ment, repetition, the pause pros- without fundamen- rendered his entire trial challenged statement made ecutor Wyrick, 760 F.2d tally unfair.” Moore v. caring for Blair for the the cost of Cir.1985). about (8th this stan- Under fifty years, which was the alter- next dard, petitioner show that there is a must 2317). (Tr. a VII to death sentence. probability that error native “reasonable a cases, very a significant and the other similar instructions der Caldwell that one 13. It is sentencing jury trial was as United States in Blair’s decision read to recent Court, Smith, -U.S. -, Sawyer follows: (1990), Teague held Guilty Capital Final 111 L.Ed.2d 193 has Murder: Deci- Lane, on the Punishment L.Ed.2d sion mitigat- you (1989), Sawyer decide that sufficient Even if reasoned that to be bar. ing do not ex- circumstance or circumstances prosecuto- invalidated no case before Caldwell outweigh aggravating circum- ist eighth argument impermissible under rial exist, you found to — stance or circumstances at -, amendment. punish- compelled fix death as are Accordingly, a conviction became where your to be final deci- Whether that is ment. Caldwell, Teague applied. bar before final you. sion rests narrow Sawyer the two also held neither 15.46, (1979). (Tr. 2d MAI-CR 15-57 MAI-CR Teague applicable. exceptions were As 2332). VII final on October conviction became Accordingly, Teague predates argument Caldwell. conclude that Blair’s Were we to argument. eighth bar amendment eighth properly un- under the amendment falls argument Accordingly, in Darden branded the we conclude that the dis- trict court did not err in repeated an animal on its defendant as occa- conclusion on this issue. sions, see 477 U.S. at 179 n. 106 S.Ct. at capacity produc- n. IV. impact

ing greater prejudicial far than the Newlon, argument at issue in this case. In that, argues when the trial court granting in which we affirmed the of the refused first-degree to instruct the closing argument, writ based on the the murder,16 process it violated the due clause prejudicial repeated and amendment, statements were of the fourteenth equal argu- protection nearly entirety infected clause of the fourteenth amend- ment, case, post and the ex clause of arti- ment. In that outlined the im- we facto I, cle section clause 1 of the United proper statements as follows: arguments States Constitution. These are (1) expressed per- prosecutor his [T]he unpersuasive. all propriety sonal in the of the death belief implied special sentence and that he had A. record; (2) knowledge empha- outside matter, As a threshold we must position authority prose- sized his consider the State’s contention that Blair is (3) attorney County; cuting of St. Louis procedurally raising barred from these ar attempted petitioner to link with several guments. We believe that we should ad murderers; (4) appeal- well-known mass arguments dress merits of Blair’s be jurors’ personal ed to the fears and emo- prejudice cause the cause and standard of tions; jurors to “kill asked 72, 87, Wainwright Sykes, v. 433 U.S. him now. Kill him now.” 2497, 2506, (1977), S.Ct. 53 L.Ed.2d 594 is Newlon, added). (emphasis 885 F.2d at 1335 satisfied in this case. argu Blair could not have made these Arguments similar to the one made in Supreme ments until the Missouri Court were Blair’s case made Tucker Goddard, decided 649 S.W.2d Brooks, they comprised only a but both (Mo.) (en banc), denied, cert. 464 U.S. closing portion prosecutor’s brief of the (1983). 78 L.Ed.2d 689 God argument, and in each case the Eleventh 26,1983, April shortly dard was decided on Circuit concluded that the defendant’s due after Blair filed his state-court collateral process rights had We not violated. pursuant attack on conviction to Mis compare argument in this case with 27.26, souri’s Rule before that claim but to demonstrate the level at which others Thus, although argu was decided. corpus such behavior necessitates habeas depend only upon princi ments well-settled relief. law, the factual ples of federal basis argument We are satisfied reasonably the claims not available to “was sufficiently prejudicial question is not Murray counsel” before the default. fatally proceedings Carrier, infect the so as to ren- sentencing hearing (1986). Therefore,

der Blair’s fundamen- 91 L.Ed.2d 397 established, see Amadeo v. tally unfair.15 cause has been guilty degree prosecutor’s murder if 15. The dissent also discusses the of the offense of first killing perpetration reference to Blair as a black man. There was committed in the arson, objection argument kind to this attempt perpetrate rape, no in the or trial, trial. The motion for new the 27.26 mo- burglary, kidnapping.” robbery, Mo.Rev. amendments, petition tion and for writ of (1979). Stat. 565.003 § corpus and briefs counsel and filed habeas hand, provided all On the other Missouri pro se in court nowhere raise this issue. times, "[a]ny person who unlawful- relevant willfully, knowingly, deliberately, times, ly, and with provided, 16. Missouri law at all relevant killing premeditation causes the of an- "Any person unlawfully kills or that: who kills another being guilty being premeditated other human human without a intent to offense particular capital cause the death of a individual murder.” Id. 214, 221-22, Zant, fencing prison him to term. Further- (1988); Murray, 1776-77, more, jury concerning instructed we 106 S.Ct. at U.S. only capital also murder but second-de- sufficiently appar prejudice is believe that gree manslaughter. murder and Blair ar- re analysis is not that an ent extended to a gues that he was also entitled first-de- quired. instruction his of- gree murder kidnapping. involved fense B. effect, argues that In Beck re Alabama, 447 After Beck quired the trial court his case to instruct 625, 100 L.Ed.2d 392 every jury on homicide offense defined make may force a

(1980),states interpretation This is in Missouri law. acquitting defen stark choice between prescribe a correct. does not first-de Beck penalty upon imposing the death dant and Beck, Supreme gree re murder instruction this case unless Court him.17 prevented statute that first-degree viewed an Alabama murder is a lesser-included of instructing juries less judges trial murder, capital fense of see id. Re murder. er-included offenses of 2384; and the S.Ct. at Missouri clause lying upon process the due held, appeal Court of Blair’s convic amendment, the held that fourteenth tion, first-degree not a murder was option” a “third Alabama to submit murder, capital lesser-included offense of Theoretically, jury would jury. Beck’s 739, (Mo. Blair, 638 S.W.2d State v. acquitted prosecution him unless the (en banc), denied, 1188, 1982) cert. U.S. every capital mur established element of 838, (1983). L.Ed.2d 1030 beyond reasonable doubt. Neverthe der however, Blair, validity challenges the of less, explained the Court defendant that, in a holding; argues he series of capital in a case:18 cases, Supreme the Missouri Court has an “is a lesser offense instruction entitled to inconsistently. question We swered that not be precisely ... because should argu equal protection now turn to exposed risk that the to the substantial ment. diverge theory. will jury’s practice the elements of the offense Where one of doubt,

charged remains in but the defen- C. offense, guilty plainly is of some dant equal protection claim is likely its jury to resolve doubts by conviction.” upon favor of the treatment several Mis based statutory Supreme Court decisions souri 634, (emphasis Id. dealing first-de States, amendments with whether original) (quoting Keeble v. United 1993, 205, 212-13, gree 1997- murder was a lesser-included offense 98, (1973)). declaring A capital 36 L.Ed.2d 844 murder. statute of first-degree murder a lesser-included because, Beck, even This case unlike repealed capital was effec fense of murder capital mur- guilty found after Mo.Rev.Stat. der, given option January sen- tive 1979. See jury Florida, to waive the statute limitations Spaziano v. defendant 17. But see Spaziano, give In 82 L.Ed.2d 340 a lesser-included-offense instruction that Beck was not violated six Justices held be J., as to an offense that would otherwise on a lesser-in- refused to instruct (White, when Florida 104 S.Ct. at 3166 barred.” Id. for which the statute of limita- cluded offense J., concurring). by Rehnquist, joined plurality four Justices A tions had run. would have required an instruction if defendant Supreme stated in Beck that did 18. Court willing of limitations waive the statute the Due Process Clause "not decide whether charge. 456- respect Id. at with defense 57, require giving included [lesser J., (Blackmun, joined by 104 S.Ct. at 3160-61 noncapital case.” 447 instructions in offense] O'Connor, Powell, J., C.J., J.). Burger, Two S.Ct. at 2390 n. U.S. at 638 n. plurality’s disagreed intimation Justices permit “requires a court ... that Beck state 1979).19 January (repealed holding, After In so the court did 556.220 not acknowl- § edge the amendments. I, provided statute that: a new may 1. A defendant be convicted of Baker, 636 S.W.2d the issue was charged in included in an offense offense error, only capital whether “it is when mur- or information. An of- the indictment charged, der is fail to submit a first included when degree fense is so murder in a instruction trial for capital murder January committed (1) by proof of the It established [was] after (emphasis original). 1979.” Id. at 904 required all the facts same or less than Gardner, distinguished The court because the commission of the of- to establish the crime in Gardner occurred 1978. Id. charged; or fense recognized The court also that under the (2) specifically denominated It [was] 556.046, amended version of section “an degree a lesser of the of- by statute as can offense be a lesser included offense of charged.... fense (1) another either: when its elements are therein, necessarily included or when obligated to 2. The court shall not be specifically it is statute denominated as a respect to an includ- charge the degree charged.” lesser of the offense Id. unless there is a basis for a ed offense degree The court concluded that “first acquitting verdict the defendant of murder is not a lesser included offense of charged convicting him of offense elements,” capital murder on their included offense. first-degree one can be convicted (1979).20 Although Mo.Rev.Stat. only if independent felony, he commits an these modifications occurred requires while a murder conviction specifically did not Missouri Also, proof. first-degree no such mur- Baker, until address them specifically der was not denominated banc), (Mo.1982) (en cert. de S.W.2d 902 capi- statute as a lesser-included offense of nied, Therefore, tal murder. the court held Id. (1983). Goddard, 649 L.Ed.2d 1027 See that, scheme, statutory under the new 887-89; (Welliver, id. 890-92 S.W.2d first-degree murder instruction need not be J., dissenting). given, degree since murder is not a “first capital murder.” lesser included offense of after the amend- The first case decided Id. Gardner, ments was 618 S.W.2d State (Mo.1981). Gardner, The crime in how- Supreme The Missouri Court decided ever, in before the amend- occurred appeal Blair’s after it decided Baker. soon Gardner, in ments. The defendant who Gardner, Relying upon argued in his murder, charged capital claimed failing was with appeal “the trial court erred in that court have instructed first-degree that the trial should mur- give to an instruction on first-degree murder. The Mis- jury on that the der because there was evidence accepted the defen- Supreme during souri Court the commission of murder occurred argument kidnapping, burglary, robbery.” and held that fail- and dant's “[t]he (citation degree Blair, murder 746-47 omit- ure to instruct on first 638 S.W.2d at [in ted). of a crime requires ... reversal Since Blair was convicted capital murder case] August 41. which occurred on judgment of conviction.” Id. at Septem- repealed provided: Another amendment took effect on statute 19. The 20. amendment, first-de- ber 1979. Before the any consisting Upon indictment for offense given jury may gree had to be degrees, find the murder instructions ... of different guilty charged every capital the offense accused not of case. See Mo.Rev.Stat. murder indictment, may guilty 1979). and find him (amended the any degree amend- After the 565.006.1 § ment, however, of to that that, such provided inferior section 565.006.1 of offense indictment, attempt charged or of an cases, give capital courts "shall not murder offense, any degree there- commit such offense lesser included instructions on of.... supported evidence not be which could added) (re- (emphasis Mo.Rev.Stat. presented in the case.” Id. 1979). pealed did not trial court and the application in its holding that Baker’s upon relied court submitting first error reversible commit a lesser-includ- was not murder first-degree last statement This murder.” Id. degree rejected capital murder of ed offense claim, equal protection Blair’s root of is the at 747. id. argument. See Blair’s applied Baker was that argues he incon- is an that there argument him. retrospectively Supreme Court Missouri sistency in Goddard, Su- the Missouri Shortly after first-degree murder whether on decisions Holland, murder State capital Court decided preme of offense lesser-included banc). (en God- (Mo.) As Goddard, 649 S.W.2d S.W.2d primarily from arises had been in Holland dard, been case had the defendant in that defendant 882. The was but capital Baker murder only charged before with capital murder charged with after the first-de- murder first-degree of decided, convicted was but convicted was trial The that on offenses. claimed He instructed both jury was gree murder. that instructed stated not have court should Missouri (1) reasons: had ade- for two defendant first-degree murder whether on was issue mur- first-degree might charged be convicted he was not notice that quate first-de- Because established der; Baker Id. first-degree murder. of- a lesser-included was was before Baker gree murder tried had been Holland See id. murder. “had an capital that he decided, fense of the court held argument, Goddard’s rejected degree mur- The court first of notice abundance at the notice jury.” he “was clear holding that submitted going be der was that he trial and his the homicide its deci- time of indicated court also The Id. murder degree of first convicted be solution upon could not “intrude sion did charged formally though he was instruct even the failure v. Baker This Id. capital murder.” [only] first-degree murder.” to ... down by the fact supported conclusion catego- distinct into two fall These cases first-degree Gardner, had ruled which exemplified by category, first In the ries. offense a lesser-included murder were who Blair, defendants Baker a few murder, decided capital that the argued convicted See trial in Goddard. before months on first- instructed jury should de- recognized id. at 887. group consists second murder. degree any of- convicted cannot fendants Holland, in such as Goddard cases indict- information or fense charged with had been defendants notice, but them fair give not did ment convicted had been but capital murder were who defendants that concluded defendants The murder. first-degree of Baker before murder capital charged argued that the cases line of second convicted they might be were aware instructed on have been not jury should defendants Because murder. first-degree first-degree murder. after capital tried were who equal analyzing step in first notice, the have such not Baker would to determine challenge is protection not be they could acknowledged court scrutiny. The dis standard appropriate It stated first-degree murder. convicted of de groups two these between tinction first- of murder conviction rationally is if it upheld will be fendants the offense mitigation of degree was See interest. state legitimate to a related some- a conviction rather than charged, 117, (4th 121 F.2d 881 Thompson, v. Evans charged, what was than thing other — -, 110 denied, U.S. Cir.1989), cert. required not reversal was (1990); Dicker 764 3255, L.Ed.2d 111 S.Ct. form long approved followed court trial (1st 1116, Latessa, 1119-20 F.2d 872 v. son stat- The court of submission. 814 F.2d Lynaugh, v. Cir.1989); Williams of due Goddard, matter aas that while ed denied, Cir.), 484 (5th cert. 205, 208-09 any of- be convicted could not process, 311, 270 98 L.Ed.2d 935, 108 S.Ct. notice, U.S. fair he did of which fense below, we given reasons (1987). For the retroactive, prospective, but is “Baker 1329 all, prosecute ments at even to a rational distinction be- serious that there is hold denied, 1138, crimes.”), groups of defendants. cert. 471 tween the two U.S. 105 2681, S.Ct. 86 L.Ed.2d 699 line of The Goddard-Holland Goddard, In Holland and the Missouri that a defendant’s implicates the rule cases “ Supreme recognized Court these notice re- no ‘right to reasonable sixth amendment However, case, quirements. in each charge against him ... is incor tice of the that the trial court could Amendment to held submit porated in the Fourteenth first-degree thus murder instruction to the Constitution and the United States ” because, trials, abridged by the states.’ at the time of the cannot be (8th White, 416, anyone F.2d 417 803 defendants notice who was Franklin v. Cir.1986) curiam) (per (quoting charged Goodloe v. murder could be con- Cir.1979)), 1041, (8th Parratt, 1045 first-degree 605 F.2d murder. victed 1020, denied, 107 rt. ce Concerns about reasonable notice (1987).21 1904, 510 How 95 L.Ed.2d implicated in the cate are not Baker-Blair ever, by the tech the states are not bound Rather, gory question cases.22 pros federal criminal governing nical rules either state law or Beck v. whether Ala ecutions; pros question the crucial state bama, 2382, 100 S.Ct. 65 U.S. the defendant had suf ecutions is whether (1980),requires L.Ed.2d 392 the submission potential charges ficient notice of the first-degree of a murder instruction to to con prepare him that he could against jury. the state law We cannot review v. Trick charges. test those See Johnson questions, Wainwright Sykes, v. 1989); (8th F.2d Cir. ey, 882 2497, 2503, 97 S.Ct. 53 L.Ed.2d 594 (8th Lockhart, 854 F.2d Wright v. (1977) (stating that “a state decision rest — -, Cir.1988), denied, U.S. cert. adequate ing on an foundation of state (1989); Frank 104 L.Ed.2d 642 law is immune from review in substantive 418; lin, also Hulstine 803 F.2d at see Solem, courts”); the federal Woods 1987) (8th Morris, Cir. 819 F.2d (8th Cir.1989) (stating that F.2d (“Due may satis requirements Process conclusions of state law that we “these are receives actual notice fied if a defendant — reexamine”), denied, may not cert. U.S. him, if the against even charges of the -, 1952, 109 L.Ed.2d 314 deficient.”) indictment or information (1990), already and we have concluded denied, 484 (emphasis original), cert. in this case. Beck is satisfied thus derived groups of cases are two Nix, (1988); 751 F.2d Williams legal principles. from two distinct sets Cir.) (“The any express (8th omission of recognized The Missouri indict felony murder from the mention of types of difference between the two affect ment ... did not [the in both Holland Goddard. See cases rights.... In the substantial defendant’s] 674; Goddard, Holland, 653 S.W.2d at de facto amendment federal courts such a example, the at 889 & n. 1. For S.W.2d prob might raise serious of an indictment that its decision court stated Holland that lems, has held Court but notice, did of and thus turned on the issue does not re Amendment the Fourteenth of v. upon “intrude the solution State grand-jury indict- not to use quire the states courts, proceeding or in all state Virginia, in a criminal also Jackson v. 21. See (1979) federal.”). 61 L.Ed.2d 560 99 per- (stating process "that a due demands that liberty for an offense incur the loss of son [not] involving give a first- refusals 22. Other cases meaningful opportunity to notice and a without oc degree and crimes that instruction 196, 201, Arkansas, defend"); 68 Cole v. January, v. are State after curred 514, 517, (1948) ("No princi- L.Ed. 644 S.Ct. ple 92 (en banc), Williams, (Mo.1983) S.W.2d 102 652 clearly procedural process is more due of (en Betts, (Mo.1983) 646 S.W.2d 94 State v. banc), specific that notice of the established than charge, (Mo. Woods, v. 639 S.W.2d 818 and State be heard in a trial of and a chance to 1982). desired, by charge, if are raised the issues among every rights of accused the constitutional 1330 These category. failure to instruct down

Baker to the Goddard-Holland at 674 degree protection first murder.” S.W.2d cases equal do establish an (citation omitted). Although Judge Welliv- violation. Goddard, er, said that dissenting Because there is a rational distinc a cases had created “classic Missouri cases, categories tion the two of between defendants, eatch-22” for 649 S.W.2d we has cannot conclude that there J., (Welliver, dissenting), did equal protection of inter violation Blair’s the differences between the two address if ests. first-de We also observe even Interestingly, of in Hol- groups cases. gree murder awere lesser-included offense land, Rendlen referred Chief Justice murder, the district court held compares ap- dissenting opinion “the argument that Blair’s was untenable be

ples oranges.” at 678 S.W.2d cause the state trial court had found that (Rendlen, C.J., concurring). support there was insufficient evidence to argument, base, Blair’s at its must rest separate charge first-degree murder. upon holding that Baker would Goddard’s F.Supp. at See 643 However, apply prospectively. dealing statement was made in with issues D. process due considerations of rea-

where sonable notice were involved Blair claims that the Missouri Su have mandated the result. cannot con- We transgressed preme post ex facto equal pro- deprived clude that Blair was by clause of the United States Constitution holding, after Blair’s tection Goddard’s holding retrospectively applying Baker’s appeal was decided. argument unpersuasive to him. This pre-Baker Nor do we believe that two because, purposes post for the ex (Mo. cases, Fuhr, 626 S.W.2d State v. clause, merely a holding Baker’s facto 1982), Daugherty, and State v. S.W.2d change applied procedural that can be ret (Mo.1982), support argument. rospectively. Although crimes in both Fuhr involved Technically, post the ex facto January, Daugherty occurred after proscribe retrospective clause does not 1979, neither case referred to the 1979 stat- decisions, application judicial Moreover, utory change. relied both cases a limitation Ex Post Facto Clause is “[t]he involving upon cases crimes that were com- upon powers Legislature, January, see mitted before State apply does not of its own force Gardner, (Mo.1981), S.W.2d government.” Judicial Branch Marks Wilkerson, (Mo. 616 S.W.2d 829 States, United 1981) (en banc), support holdings their (citation 51 L.Ed.2d 260 be reversed because convictions should However, omitted). principles that un first-degree the failure to instruct on operate post derlie the ex clause murder. Goddard commented that both facto through process clause of the four due “appear to be neces- Daugherty Fuhr and prevent state courts teenth amendment to sarily overruled Baker.” 649 S.W.2d making doctri certain unforeseeable (emphasis original). not in Daugherty, added, changes. that falls nal it must also be is case See id. nearby apartments, kidnapping we cannot conclude

23. Missouri cases make clear charged trial court's there is constitutional error in the not be where the movement should merely of- determination that there no submissible confinement is fense, incidental another Erby, kidnapping. 735 this it is issue of See State and that to make determination any (Mo.Ct.App.1987); v. Jack- necessary S.W.2d to whether there was 149 consider son, (Mo.Ct.App.1985). danger S.W.2d or to the victim 703 32-33 increased risk of harm the present for new trial claimed that a of the other Blair’s motion that was not as result Armontrout, refusing first-degree in F.2d trial court erred offenses. See Williams 924, 912 case, Cir.1990). ground (8th on the sole In this murder instruction 929-930 support apartment to it. The denial her there was evidence which Allen was removed from ruling by this a the trial court on parking her this motion is to lot in an urban area where a by clearly occupants of issue. be heard screams could

1331 Columbia, 993; City 378 that if a Bouie v. U.S. death sentence were declared in- 353-54, 1697, 1702-03, valid, 12 would be replaced sentence auto- (1964). matically L.Ed.2d 894 by imprison- a sentence of life Evans, 119; ment. See 881 F.2d at Cole- clause, however, post The ex facto man, 869 F.2d at 1385. After the state prohibit retrospective applica does not modified, laws were an invalid death sen- procedural, opposed to tion of new sub by tence could be followed a valid death Florida, stantive, rules. Dobbert 432 Evans, 119; sentence. See 881 F.2d at 282, 292-93, 2290, 2297-98, 97 U.S. S.Ct. 53 Coleman, 869 F.2d at 1385. Both cohrts (1977). Significantly, L.Ed.2d 344 changes, held that these which increased changes pro which are considered realm of probability defendant will be purpose quite large. cedural for See death, sentenced were merely procedur- 292-97, 2297-2300; 97 id. S.Ct. Evans, 120; Coleman, al. See 881 F.2d at 881 120-21. Thompson, F.2d at F.2d at 1387. Dobbert, In Court held that cases, light In reject of these we Blair’s sentencing powers a change post argument. ex Blair was convict- juries penalty judges and death cases facto ed of murder. Neither the defini- merely procedural. Prior to the was tion of crime nor the accompanying change, a defendant who was convicted of punishment changed between the murder capital murder was sentenced to death un- and the trial. majority jury less a recommended leniency. at 288 & n. See U.S. change, at 2296 & n. After the S.Ct. V. relegated rendering

jury was to the task brief, pro argues In Blair’s se advisory id. at decision. See right that his constitutional to effective concluded that S.Ct. infringed assistance counsel was when merely procedural the modification was be- “ court-appointed his counsel failed to raise present crime for which the cause ‘[t]he all issues the district court exhausted indicted, punishment defendant appeal. and on We have considered therefor, prescribed quantity and the rejected argument urged pro se proof necessary to degree establish respect ins first-degree with to the unaffected guilt, all remained his ” pro truction.24 Blair in his se brief makes [change].’ subsequent only issue, specific reference to one other added) (quoting (emphasis at 2298 judge spoke directly that the trial with 589-90, Utah, Hopt v. being present. jury The state without 209-10, (1884)). 28 L.Ed. 262 postconviction proceedings determined We also believe that recent decisions this discussion dealt with whether provide and Tenth Circuits a the Fourth Saturday spe held on court would be against benchmark which mea valuable any cifically rejected claim that there had Evans, argument. sure Blair’s See any security problems.25 mention of 117; Saffle, 869 F.2d F.2d Coleman v. (10th Cir.1989), denied, -U.S. -, by the The issue raised dissent as cert. failure to was con- 108 L.Ed.2d 964 In call two witnesses cases, provided question strategy originally sidered to trial both state law be judge, making specific thoroughly the trial issue was briefed before this of misconduct of 24. This Armontrout, testimony. ap- in Williams v. F.2d 924 The court of reference to this (8th 1990). Cir. affirming upon peals relied in its memorandum findings these and commented that there judge hearing the 27.26 the trial testified 25. At contrary no evidence introduced briefly spoke that he answer respect judge’s any denial of comment question about whether court would held on Further, nothing security. there was about Saturday given during the trial. He denied prejudice that this about the fact demonstrate security prob- that there mention of the record. comment was not transcribed in ruling the motion the lems. circuit found that there was no merit claim court 1332 postconviction proceedings. justifies This

the state sues should be raised relief or requires further specifically consideration. was not raised either issue counsel, pro se either before brief or this court.26 the district court VI. find to see how the exact-

We it difficult Finally, cross-appeals the State Washing- v. ing standards of Strickland disqualifying from district court’s order ton, 668, 104 80 Attorney S.Ct. the Missouri General’s Office appearing in (1984), from this case. district could be met either L.Ed.2d disqualified entire court office because respects. two of the latter office, serving a member of the when as a defender, public represented Blair dur recognize must that it has We also attempts his ing various to attack convic held that there is a not heretofore been tion. right representation a constitutional Avery, v. habeas action. Johnson conclusion, reaching In its the district 747, 750, 21 L.Ed.2d primarily upon court relied the decisions in (1969); Wainwright, Co., 775 F.2d Hooks v. Dean Arkansas v. Foods Products (8th Cir.1979), (11th Cir.1985); F.2d Wright, 17A C. overruled on grounds, In other re Multi-Piece Rim Miller, Cooper, E. A. & Federal Practice Liability 612 F.2d Litigation, Products 4268.4, (1988); at 524 and Procedure § cf. Cir.1980), — (8th and in Giarratano, U.S. -, Murray Croka, (Mo.Ct.App.1983). 646 S.W.2d 389 2765, 2769-72, supports Neither decision the continued dis- (holding required are that states qualification of the office. entire appoint prisoners who are col counsel Products, laterally attacking convictions and In Dean Foods this court af- their disqualifying firmed district court order court); death sentences state Miller Attorney taking from an Assistant General Cir.1989) (9th Keeney, 882 F.2d part against in an antitrust action defen- (rejecting an ineffective assistance coun represented by being dant that was upon attorney’s sel was based an claim that law firm. 605 F.2d former See petition file for a writ of decision not to Moreover, disqualified 384-86. the court certiorari). As ineffective assistance Attorney those members General’s right spring counsel claims from the actively participated staff who had in the amendment, contained in the sixth counsel supervision disqual- case under the of the 684-86, 104 Strickland, 466 U.S. at attorney. ified See id. 2062-64, it there no follows that constitu explicitly judgment reserved on whether right underpinning for claimed tional in the the conflict should have resulted in this action. effective assistance habeas imputed disqualification of the entire Attor- recognize Congress is now consid We at 387 ney General’s office. See id. n. encourage ering legislation that would Appeals in The Missouri Court Croka in habeas and provide states counsel County disqualified Prose- the entire Saline cases, does not review of but that death Attorney’s cuting Office because attor- considering this case. assist us in confidential ney office had obtained that Blair’s most rep- We cannot conclude while information the defendant resenting general all unexhausted is- the defendant. 646 S.W.2d argument that theory presenting." that we of ineffective of defense are 26. The dissent discusses claim failing 134-35). (27.26 ruling Hearing to call two wit- assistance of counsel Tr. police report present motion, listed in the near point nesses the state court concluded that testi- scene. The record contained the homicide mony strategy, a matter of trial referred coun- experienced counsel that of the defense testimony and that there was no inef- sel’s held witnesses, Q.T. Lee and aware two calling two witness- assistance fective Wilson, they Clarence and concluded 18-19). (Order The Missouri Court Cir.Ct. es. not be called as "it was inconsistent with should 436, 468, 392-93.27 (1903) (Holmes, J., dissenting). L.Ed. 679 think that Dean Foods Prod We do not Capital punishment, because receives required district court ucts and Croka proportion attention far out of to its useful entire Office of the Attor disqualify the law, “hydrau in the criminal exerts a ness The in this case. United ney General pressure” lic on courts. id. at Dis District Court for Western States Cf. S.Ct. at 468. This is a hard case because a adopted the Missouri trict of Missouri had Responsibility, “as 21-year of Professional old woman was murdered and soci Code by the Mis from time to time” amended ety rightfully pay insists that someone 2(D)(2). Supreme Court. W.D.Mo.R. souri demands, however, that the crime. Justice Rules of Profes Rule 1.11 of the Missouri constitutional standards be followed ob Conduct, regulates successive sional taining sustaining a conviction. private employment, dis government why advances three meritorious reasons attorney “par- government qualifies a judgment denying the district court’s lawyer in a matter in which ticipat[ing] corpus writ of should set aside. habeas substantially participated personally and First, prosecution knowingly intro- nongovern practice or private while prevent testimony duced false at trial to 1.11(c)(1), Rule re employment.” mental impeachment wit- state’s chief Rule 4. Supreme Missouri printed in ness, Jones, violating Ernest Blair’s due accompanying that sec commentary (c) “[pjaragraph states that explicitly process rights tion under the fourteenth amend- lawyers in the disqualify other does not ment. lawyer question agency with which the Second, giv- the trial court erred Under these

has associated.” become first-degree ing jury an instruction on rules, screening that a mecha we believe charge murder as an alternative to implemented Wall could be nism or Chinese decision, This as affirmed murder. Attorney the entire disqualifying to avoid Court, Missouri violated This result is consistent office. General’s process equal protection Blair’s and due See, commentary. De e.g., with academic rights. In velopments in the Law: Conflicts of Harv.L. Legal Profession, 94 terest in the Third, sentencing hearing was Comment, (1981); Rev. 1367-70 compromised by prosecutor’s inflamma- Dis to Law-Firm Chinese Wall Defense he tory closing argument: told passim 128 U.Pa.L.Rev. 677 qualification, they Blair to death should sentence cheaper to kill him than to it was because him; refer- improperly made incarcerate VII. ence to Blair’s assertion of constitution- affirm the denial of the writ emphasized We to the all- rights; al and he concern- the district court’s order reverse struck four jury, from which he had white ing disqualification. candidates, in race be- black the difference sympathetic victim the “attractive” tween HEANEY, Judge, Senior Circuit argument This vio- and “this black man.” dissenting. concurring and equal eighth amendment and the lated the of the fourteenth amend- protection clause make law.” cases ... bad “[HJard States, ment.1 Northern Co. United Securities merely gratuitous, the court remanded affirming argument Appeals also re- court, testimony of defense counsel. instructions ferred to the the trial the case to argument, upon disqualification id. based argues portion that the relevant 27. The state opinion it is techni- is dictum. While the Croka majority opinion 1. I in Section concur cally had no effect correct that the discussion VItof Attorney disqualification of the General’s disposition appeal, 646 S.W.2d on the 393, unnecessary. ruling disqualification office was was not on the The at 1433. Blair. Id. mention did not I. for murder. Jones Ernest police arrested convicted was Blair Walter Ernest lineup that the only after It was jury found The twenty. age at murder Id., 1519. 5 at vol. Blair. implicated Jones a witness to kill contract accepted a he that of Lar- rape trial testify in the expected to signed he had trial, that Blair testified At the formation evidence ry The Jackson. police by the written the statements from the exclusively came contract of this interrogation tactics. their Jones. and Sharon Ernest testimony of were police testimony- that the There was state- made Blair that testified The Joneses the victim case because angry about evidencing pre- homicide the prior to ments protection for their previously asked had further evidence as that and meditation refused, public- bad leading to they had and driv- the victim’s kept Blair premeditation, the homicide. pressure after public ity and family to Jackson show the license to er’s that testified Blair Id., 6 at 1850-52. vol. the statements In money. his his collect requested arrest, repeatedly he after his kidnap- however, Blair confessed police, Id. refused. police the lawyer, but testi- she would that so the victim ping put a allegedly police officer One 1997-98. statements, the In trial. fy Jackson’s A 1999-2001. Id. at Blair’s head. gun to she her when he killed that alleges Blair Blair and told interceded officer second The escape. and tried resisted later implicate him they only wanted that evidence circumstantial introduced that said officer same Id. The Jackson. the Blair was that which established name could who they seven witnesses kidnapped. was when she house victim’s talk. if would not murderer he the Blair as the that testimony established Forensic his charging They threatened at 2002. Id. The mur- range. at close were fired shots at 2003-04. murder. Id. girlfriend apartment of found weapon was der twelve for a deal they offered Finally, evidence was no There girlfriend. Blair’s testify if would incarceration years net worth. change in Blair’s they would promised and Jackson against Ernest that was theory at trial Blair’s in his would result that statement draft a victim; Jones Ernest killed the Jones Id. at years. twelve for being incarcerated believing police, Blair; and framed statement, confessed Blair In the man, engaged in right Blair was prepared signing the After felony murder. In a conviction. get questionable tactics video a similar statement, giving but before to show Blair was able particular, attorney his statement, encountered Blair years five stolen had been weapon lawyer to his Blair identified hallway. in a tran- Trial by Ernest Jones. previously and Blair police, but and prosecutor boy- The victim’s 2163-65. script, vol. at separated physically lawyer were his she her when friend, who had police.2 and prosecutor Jones Ernest identified kidnapped, was convicted and Blair disbelieved Id., vol. 4 lineup. police in a kidnapper stage second In a capital murder. him of brother, his and Ernest Jones at' 1109-12. jury voted for proceeding, of the ring, which boyfriend’s Fred, pawned af- conviction was Blair’s penalty. death abduc- the victim’s time of at the taken was Blair, 638 appeal, State on firmed Fred traced police at 1430. tion. banc), his (en (Mo.1982) S.W.2d Fred Jones shop. pawn from the Jones January final became conviction gave Ernest initially arrested was Blair v. certiorari. denial of 1983 with ring; he with the in connection name Jones’ Id. at trying him. to contact regarding him and findings light the state In case, counsel In this written statement voluntariness physically videotape, hallway were as the admissions met the same contained admissibility thought might have thus judgment as to the well separated. Blair I withhold however, note, that in right I to counsel video confession. the declaration Burbine, any request counsel Moran boilerplate and that (1986), suspect unaware L.Ed.2d 410 been futile. thereafter retained had been counsel defense fact, testimony. leniency prom- 74 for his Missouri, ises were made to Jones before trial. The post-convic His state L.Ed.2d hearing. reviewing post-convic- denied after a state petition was tion however, pe petition, Blair’s habeas tion found that there The district court denied “deal,” hearing. majority Ar accepts a Blair v. was no and the tition without (W.D.Mo.1986). montrout, F.Supp. finding.” accept this “fact Both áeem to premise erroneous of le- promises have all the did not I note that niency do not constitute a deal that must be guilt it at the information before relevant the defense. Even where some disclosed to First, attorneys defense stage. undecided, terms of a deal remain of the police witnesses listed failed to call two however, promises leniency must be dis- the homicide scene. reports present near Moreover, there is closed. evidence description of a given a would have One prosecutor deliberately deceived the tri- with that fleeing the scene consistent man and the defense to minimize the al court description of the of Ernest Jones impeachment of Jones. with the clothing inconsistent fleeing man’s day. attire that of Blair’s evidence State’s Missouri, CV83-6637, 27.26 No.

Blair v. A. (Mo. 163, 183-84 hearing transcript at 20, 1983) (post-conviction rev Cir.Ct. June Ernest testified that Blair had al- Jones iew).3 Second, jury did not know ways planned to kill the victim. Trial tran- star testimony of State’s of the some testimony script, vol. 5 at 1472-73. This Jones, I witness, perjured. be Ernest supplied premeditation the evidence of nec- testimony. examining perjured gin by At the time of essary for murder. trial, prior probation was on Jones

II. burglary conviction and was under indict- witness, Jones, degree, burgla- ment for assault the first Ernest chief State’s ry, drug possession. Id. at 1499. knowing at trial with perjured himself have led to a pending charges could He testified These complicity prosecutor. twenty years or life. Missouri respect to sentence of had been made with that no deal Jones, 80-02916, sentencing tran- exchange No. Cr against him in pending charges ap right no to the fully While there is absolute raised before the state This claim was 3. presented proceedings at pointment in Blair's habeas in habeas but was not of counsel courts corpus petition prepared by appointed his coun- process requires present, counsel in com due majority rejects pro Blair's se claim of sel. The Wainwright, F.2d plex cases. Hooks grounds that Blair assistance on denied, (11th Cir.1985), ineffective cert. proceeding, right in a habeas no to counsel has (1986); see 93 L.Ed.2d 287 right assistance. The no to effective and thus majority 3006A(g)(appointment in the § also 18 U.S.C.A. preju- there also concludes that is no complex justice). case. This is a interests of Moreover, rejected they all of considered dice because general right to of a the absence disagree. I Blair’s claims. appointment mean that once counsel is does not First, majority his did not consider all of imposed by appointed, law remain no restraints requested that all of his exhausted claims. Blair Goldberg Kelly, representation. on Cf. petition and raised in the habeas state claims be 1011, 1016, Appellate Brief at appeal Blair Pro Se to us. (1970) (while required to are not states 23; majority Appellant's n. 1. The Brief welfare, provide of benefits must termination claims, of those one has considered process). comport procedural Blair due first-degree give instruction. failure to process claim in a second raise this due can Blair, Second, according deceived his counsel Moreover, persuasive petition. he also has grounds regarding that would be him petition grounds in counsel’s de for a second agreed presented the district court. Counsel ception cases, him. Dist.Ct.Rules claims, See present state but all the exhausted (new peti grounds justify second rule 9 provided with a never to do so and failed writ). Under a an abuse of the petition. tion unless it is copy Pro se brief at the habeas Thus, judgment merely petition, would have to the district court at issue is not second claims, presenting any certain but the judge prejudicial in not error cumula counsel allegation effect of that counsel lulled Blair into appeal as well but tively admitted on this with errors pro se before the presenting other claims sufficiently prejudicial in isolation. not found district court. testimo- recall the court will 1980); ... [T]he Nov. (Mo.Cir.Ct. 9-10 script Jones Mr. cooperation ny 569.160, 565.050, 557.021, Mo.Ann.Stat. §§ Blair. Walter versus of Missouri Supp.1990). & (Vernon 1979 195.202 do so but I’m reluctant COURT: THE for disclosure asked The defense the Blair happened except for what respect made promises deals or along. go willing to I wouldn’t case tran- charges. Trial pending Ernest Jones’ of what knowledge intimate I have But 346; transcript script, 1 at vol. I remem- and do case in that place took respect promises with No or deals testimony. Mr. Jones’ ber before revealed charges were pending added). The court (emphasis 4-7 Id. at immediately It disclosed was during trial. did not bargain and Jones plea accepted the not be would Jones trial that before the of- any of time for any jail receive pawning accomplice for as an charged fenses. probation his ring and that boyfriend’s of an possibility raised the again Blair trial, At act. for this revoked would'not and the State between deal undisclosed from questioning testified under Jones hear- post-conviction Blair’s state at Jones made with were deals no that prosecution De- Public attorney, Assistant ing. Jones’ he was which charges for to the respect he dis- that Sterling, testified Peter fender at vol. 5 transcript, Trial under indictment. before with Bell situation Jones’ cussed 1498. an reached if he asked trial. When Blair’s ended, a trial Blair’s after One month “yes Bell, Sterling replied with agreement pending in recorded bargain was plea Accord- transcript at 63. 27.26 and no.” of the by one Ernest Jones against cases Bell indicated: Sterling, ing to trial, Bell, in front from prosecutors witness to be a going was Mr. Jones that over presided had judge who therefore we and Blair Walter against narcot- dismissed The State Blair trial. any us, going to weren’t, between to a charges the assault reduced charges, ic working it case in. the problems certain a recommendation felony B with class into enter want to did not that he out but and recommended probation, years three time be- at that agreement specific any proba- current then of Jones’ revocation no a State’s status as Jones’ of Mr. cause sentencing tran- Jones, Missouri v. tion. witness. court explained Bell 2-3.4 script at objected State then Id. moti- was recommendation his lenient that deal, arguing that to a references further incarcerating Jones the cost vated was none. there had Sterling testified in cooperation .by Jones’ state out you reach Sterling: “Did asked The court case: Blair “I replied: Sterling Id. any agreement?” witness- star the State’s one was agree- Honor, [H]e ait tacit would, call Your Walter versus Missouri es relationship working my on based ment Blair. numerous have had and we Bell Mr. with The Court together.” cases Mr. serious discussions several I had “THE WITNESS: for clarification. asked testi- to his attorney prior his Jones spoken words, no words was there In other tacti- thought for I telling him fying, there could state one not better it would be cal reasons under- unspoken It was a contract. bargain plea specifics of discuss of, Mr. conclusion at the standing that sure make case, I would but that this Well, going to I’m COURT: Bell—THE disposition of lenient recommend thank point, objection at sustain probation exchange for his case —or let did 65. The at you.” Id. exchange that effect—or words him de- or let his answer finish Sterling effect. to that Words cooperation. his transcript charge part burglary appears that It case, unclear. record but the assault of the working ny lawyer, from Blair’s trial who elements of their had cross- upon what scribe Jones, relationship Sterling knowledge relied. examined on how strategy, deal would have affected his testify that he Sterling allowed to questioning, presentation. Id. at 94- agreed to a that Bell had not told Jones Jones, 95. The State called who testified plea bargain, but that based specific Sterling that he had never discussed with regarding Jones and on their conversations Bell, exchanging testimony Bell for lenien- Sterling's past dealings with Jones jail cy. leniency and no time. Id. Id. at 160. expect could 67-68; (advice 71; given accord id. The state court found that it was not jail go was not Jones until after Blair’s trial that Bell entered view) (offer of Sterling’s “speculative” specific plea agreement into a with Jones’ you feel Sterling was asked: “Did proof). lawyer setting years forth the number of understanding Mr. you probation would receive. Jones go to the your client would not Bell that Missouri, CV83-6637, at 3 No. 27.26 Order 68; I A. Yes did.” Id. penitentiary? 7, 1983). (Mo.Cir.Ct.July The court found (offer proof); at 81 at 72 id. accord id. in and that no deals were made this case understanding. (“I there was believe prejudice. at 9-11. that there was no Id. specific plea agreement until There was no Appeals accepted The Missouri Court of (under- trial.”); at 88-89 after id. State, No. WD this conclusion. Blair v. go would not standing that Jones 35053, 31, 1984). (July 2-4 Mem.Op. at asked which factors penitentiary). When Sterling replied, judgment, influenced his adopt or The federal district court did not might cus- you what call there was “Well finding, noting state court fact reject the Probably the main practice.... tom and testimony that he was unaware that Jones’ impressions of my into thing that entered leniency contradicted promises my working rela- doing is what we were of Bell and Ster- by the sworn statements experience tionship with Mr. Bell based on F.Supp at 787. Instead the dis- ling. 643 through him dozens of working with that, decided based on the state trict court at The court sustained cases.” Id. 69-70. record, prejudice. there was no Id. court questions further objection to the State’s ap- majority criticizes this at 788. relationship working and exploring their and does not reach the issue proach past cases. Id. agreements their Instead, adopts the majority prejudice. Next, evidence attempted to offer finding and concludes that court fact state v. by Bell Missouri of similar conduct n. 7. no deal. Ante at 1317 there was (en (Mo.1981) Patterson, 618 S.W.2d banc). Patterson, agreed to In Bell had against the burglary charges State’s B.

drop Woodcox, witness, to dis- but refused chief review, we accord a rebut- collateral On The court the defense. close the deal to to state presumption of correctness table the intro- objection to sustained the State’s 28 U.S.C. factual determinations. court Supreme Court the Missouri duction of 2254(d) (1982). We do not accord this § Patterson, reversing the convic- opinion legal rulings to a state court’s presumption agree- disclose the Bell’s failure to tion for on mixed to state court conclusions or ment, objections to Wood- and sustained and fact. v. questions of law Sumner dealings his with testimony about cox’s 1303, Mata, transcript 119-20. Ster- Bell. 27.26 curiam). (per L.Ed.2d 480 out, represented Patterson ling, it turns presumption do not accord We also Woodcox represented later that case and findings the ma- to state where correctness The court burglary case. Id. his adequately developed terial facts were the cross- objection to the State’s sustained hearing; appli- where the at the state Sterling respect to his examination of full, fair, and ade- did not receive cant case. in the Patterson dealings with Bell findings hearing; or where the quate state excluded testimo- The court also Id. at 76. prosecution." of the 28 U.S.C. by the record. supported are not evi must disclose material The state (d)(8). (d)(6), 2254(d)(3), own any of its impeach tending dence findings state accept the should We States, v. United Giglio witnesses. there First, finding that case. in this 154-55, and of law question a mixed deal is nowas Li States United (1972); L.Ed.2d as to legal requires a conclusion It fact. Cir.1975) (con (8th brach, F.2d must be a “deal” what constitutes witness); made to payments cealment Second, evi- to the defense. disclosed Kiszewski, States United accord post-conviction rulings at dentiary Cir.1989); United (2d F.2d 215-16 fair a full him of hearing deprived (9th 682, 687-89 Shaffer, 789 F.2d States are not findings state hearing, and crucial 25.- also Cir.1986); Mo.R.Crim.Pro. see The evidence record. by the supported any infor (disclosure required 03(A)(9) deliberately that Bell supports view guilt of negate the which tends mation a wink negotiations conducted degree mitigate the defendant impeach- damaging to avoid in order a nod charged). offense ment. firmly establish progeny its Giglio descrip- majority’s accept the Initially, I dis- must be promises leniency even ques- fact between difference tion of provide a promises closed, such and fact. law questions of mixed tions testify ac- for witnesses strong motive deciding which events Fact-finding involves expectations. government cording to past, transpired or have will occur testified witness government’s Giglio, appli- ‘the involve “[mjixed questions while leniency in promised he had not the historical principles to legal cation testimony. The United exchange for his (quot- Ante 1318 case....’” facts of [a] case, how- the Attorney tried who States Sullivan, U.S. v. ing Cuyler defi- he would ever, witness told the (1980)). testify he did not if prosecuted nitely be post-conviction case, state the In this testify, the witness did if he deal rests no finding that there was court’s judgment good the rely on obliged to be be a must that a deal view erroneous on its at 152- Giglio, 405 U.S. Government. between agreement specific finalized reversed Court 765-66. The it before and a witness prosecution dis- failure for the conviction Giglio’s to the defense. disclosed must be by the United made leniency promises close of a notion (rejecting transcript at 64-65 assistant, noting by Attorney and an States agreement). tacit United by the statement even the the existence posi Attorney supported far better usually in a States state The also n. 4. Id. See leniency agreement. evidence. collect a defendant tion than 267-68, Illinois, is in Napue v. interest primary the state’s Because L.Ed.2d 1217 convictions, ma disclose must S.Ct. not justice, have should prosecution (holding that the defense. favorable terial evidence in sen- reduction of some promise disclosed Maryland, Brady In In United testimony). tence favorable prose 1194, 10 (1963), L.Ed.2d Bagley, States Brady’s by a statement withheld cution (1985), prosecution L.Ed.2d 481 kill to the he confessed companion wherein it was payment if witnesses two promised separately both they were ing for testimony. Su- The their satisfied on elaborated Court Supreme tried. should promises that the Court held preme by required disclosure prosecutorial money though the even been disclosed hold that “We now of law. process due “guaranteed.” of evidence prosecution suppression guaran- the stake fact that request vio upon accused to an favorable binding con- or promise through the evidence teed where process due lates contingent expressly tract, but was punishment, guilt or either to material satisfaction Government’s faith or bad good faith irrespective result, only strengthen attorneys fense deals have served end “[n]o testify falsely in order to incentive to expressly impliedly made with him con- Moreover, pros- secure a conviction. cerning charges.” transcript, those Trial affidavits that stated ecutor disclosed sentencing vol. 1 at 348. At Jones’ hear- received no and Mitchell that O’Connor however, ing, promising Bell admitted to natural promises of reward.... [T]he leniency in this case Jones but to deliber- effect of these affidavits would be [to] ately leaving print the fine for later for mislead.... “tactical reasons” because Jones was still 683-84, These 105 S.Ct. at 3384. called as a witness.7 This establishes re- opinions have been deliberately that Bell deceived the trial require peatedly understood to disclosure and the Bell in- court defense. wanted to strong enough to leniency inducements give testimony, duce Jones to favorable It es- testimony.5 false was well motivate and wanted not to minimize Jones’ prosecu- at the time of trial that tablished impeachment, but also to bolster Jones’ by softening avoid disclosure tors could not credibility by having deny that there Jones promises with some edges of their was a deal. vagueness.6 I would reach the same conclusion even cases, clear light these it is if this issue could somehow be character- prosecu- misunderstood the state courts question pure ized fact. The state There responsibility. tion’s disclosure post-conviction made its conclusive parties understanding between determination that there was no deal dur- disclosed, even if the should have been ing early part Sterling’s testimony unspecified. were left probation terms response evidentiary objection to an made concedes, admits, majority and the Bell Thereafter, the court exclud- the State. leniency to promises made Jones that he depriving Blair of the testimony against ed relevant evidence exchange for his Jones, 1319; adequate development Blair. Ante at Missouri of the facts and a sentencing transcript at 4. The state hearing. The state court ex- full and fair finding contrary. courts made no its consideration evidence of cluded from past dealings practices, Sterling’s Bell’s prosecu- that the The record also shows in the generally with Bell and Patterson perjury to intentionally elicited bolster tor case, attorney’s testimony trial and Blair’s trial, credibility. At Bell asked Jones’ regarding his examination of Jones. See any re- if he had made deals with Jones 706, F.Supp 510 709 McBryar McElroy, v. spect charges and Jones said no. to these (N.D.Ga.1981)(exclusions testimony and Moreover, told the court and the de- Bell disclosing prosecution explained: to avoid [it] allow the 5. The Eleventh Circuit Similarly, jury....” United Id. at 979. in require Certainly Giglio does not Butler, (9th Cir.1978), two v. 567 F.2d 885 States "promise” art that must be is a word of word specifically employed.... investigators government that a told the witness Gig- "The thrust of pending charges or reduction of his progeny dismissal has been to ensure that the lio and its strong probability might if he testified. Id. jury a would be a the facts that motivate knows testimony a giving ...” ... there was no claim that "bald in false at 887. While witness made, testimony promise" in reasonable found the innuen "could ... was the court which judgment right” enough “everything have affected the likelihood would be all dos that also, jury.” require Id. at 888-89. See disclosure. 1457, Cir.1979) Wainwright, Reed, (4th 1464-65 785 F.2d Brown v. Campbell 594 F.2d v. (11th Cir.1986) (citations to earlier cases omit- right”); Washington (“everything' v. would be all ted). Cir.1975) (2d Vincent, 265-67 525 F.2d (prosecutor could do to [he] would “see what (2d Lefevre, 619 F.2d In Dubose v. denied, him”), help 96 S.Ct. cert. Cir.1980), prosecutor admitted that she had (1976). testimony, with her "a the witness that told probably more in the realm was misdemeanor 7.Jones, transcript (quoted supra sentencing 4at felony.” possibility a The state court of a than 1336; (Sterling’s deal, transcript at 64 accord 27.26 at and the Second found that there was no motive, understanding “be- Bell's recollection of “The fact that the Circuit reversed. Id. at 978. 1336). us.”) (quoted supra at specific promise form did not tween did not take a confi- it undermines only where material the absence led of witnesses the absence outcome, not recon- did Bagley Moreover, dence hearing). state fair a full and involving false for cases the standard sider testimony on Jones’ relied courts the state Foster, 874 v. States testimony. United pending his discussed he never Cir.1988)(false (8th testi- F.2d 494-95 testimony in connection charges F.2d at Wainwright, mony); Brown contradicted Blair, was which against 1465-66. Accordingly, even Bell. Sterling and both this is a majority my mind agreed I if doubt is little there While reject nevertheless I would testi- question, false fact knowing use of Jones’ that the pre- fact-finding. Any case, appro- courts’ the state in this mony was material been rebutted has correctness sumption of this matter is to remand action priate hearing evidentiary full case. this court for district beyond the harmless application and C. standard. reasonable doubt evidence materiality of clearly is sufficient decide the There must next We not know jury testi- did perjured The knowing use of a remand. warrant the state’s a deal preju- made no had court found and Jones that the State mony. The district given proba- materiality to be erroneously applied Jones which under dice but he could for which simple nondisclosure offenses tion for for standard more. twenty years not decide or imprisoned does for majority evidence. greater ma- certainly this issue I remand evidence issue. This ma- Jones evidence that of the application teriality than the district probation, false knowing use of that his ring; pawned teriality test for left, re- States months forth few testimony set United a reward 97, 103-04, voked; had received or that Agurs, U.S. Brown Wain- Blair.8 turning See 2397-98, L.Ed.2d (this evi- F.2d wright, 785 testimo- knowing perjured use of “[T]he impeach- with other not cumulative dence misconduct prosecutorial ny involves new involves evidence ment corruption of ‘a involves importantly more any other not known facts the, pro- trial truth-seeking function ” evidence). 680, 105 S.Ct. Bagley, cess.’ truthfulness estimate jury’s (citing Agurs, (plurality) at 3382 may witness reliability given of a 2397). the State Where inno- guilt be determinative well testimony perjured knowingly offers factors subtle cence, upon such and it preju- it, it is material correct does the witness of possible interest as the likelihood any reasonable if there dicial life falsely a defendant’s that testifying un- judgment or jury’s the it affected depend.... may liberty or a beyond reasonable “harmless less it is true apprised of the been jury Had the 427 U.S. at Agurs, (quoting Id. doubt.” con- however, facts, might it well have 2397-98). Bagley While 103-04, at 96 S.Ct. testi- fabricated Hamer had cluded that simple the test prejudice the altered of the favor curry the mony in order by evidence of favorable nondisclosure case prosecuting the was very who State evidence any nondisclosed holding that Ernest visited 1410-11. Sharon Id. at impeach name. attempted to Sharon defense also 8. The statement jail her first after her showing testimo- Jones by inconsistencies Jones police at 1423-24. Id. she testified. police initial statement before ny her between knowing Ernest 17-year-old the names sister she disclaimed was also where victim She Blair, trial hired man who Id. or of the girlfriend, Tina Jackson. Jones’ testimony 1414-15, and her Tina, at transcript, vol. 4 Jones Ernest bore who lived with She killing $1,000 Walter discussed stand that promised on was at 1423. She Id. children. day of the day before and her the with killing, $750 to up testimony, front $250 her names, showing her telling both her satisfactorily. Id. at testified she after follow on she claimed from which driver’s license 1392. the victim’s remembered stand to have Ham- testifying, for Hamer in which repre- that such might have believed er 1, 1979, January Effective Mo.Rev.Stat. implement position to in a sentative amended to define a 556.046 was lesser § do) any (as ultimately attempted to (1) an offense included offense whose promise of consideration. offense, greater included in a elements are 1177; Napue, so statute. At an offense defined Bagley, see also homicide, August the time of this effectively, (“if used disclosed and at 3380 required every capital that in Missouri law convic- between make the difference may “ascertain, the de- jury case the whether the court Finally, acquittal.”). tion and murder, capital guilty fendant is murder this error also consider effect should degree, in the first murder second doubt jury’s sentence. Sufficient on the manslaughter, guilty degree, or is not minds jurors’ created in may have been offense_” Mo.Ann.Stat. premeditation the evidence about 1979). (Vernon 1979) (amended 565.006.1 imposing away from they might have shied 28, 1979, an amendment September On that would have even if capital punishment prohibiting instruc- this section took effect guilt verdict.9 with their inconsistent been capital tions on lesser offenses included by the supported murder unless evidence. III. 1984). (repealed trial court’s Next, argues Blair Supreme The Missouri Court affirmed first-degree jury on to instruct failure in- murder, first-degree was a lesser murder capital an alternative murder as capital deci- murder and that subsequent inconsistent cluded offense together ad- first-degree Missouri murder instructions should be sions of issue, violat- dressing this instruction the evidence in given supported where process protection and due equal subsequent ed his to this amend- decisions two his confessions argues Blair rights. Fuhr, 626 S.W.2d 379 ment. mur- first-degree conviction for support jury (Mo.1982), found that the court der, felony-murder theory, for which on a that Fuhr killed his have concluded could given.10 should have an instruction committing robbery on Feb- victim while only capital mur- Instead, gave the court however, court, trial ruary murder, manslaugh- der, second-degree murder, capital jury only on instructed ter instructions. degree, and man- the second murder in Supreme Court

slaughter. The Missouri A. capital murder conviction Fuhr’s reversed on to instruct first- for the failure held that Supreme Court Missouri Id; also State degree murder. see first-degree mur- not entitled to a Blair (fail- (Mo.1981) 618 S.W.2d Gardner first-degree der instruction held first-degree instruction give ure to a lesser included offense was not August for crime committed be error Blair, S.W.2d murder. State 1978). 631 S.W.2d Daugherty, In State v. Missouri argues 746-47. (Mo.1982), held that the court 645 reasoning in his case is Supreme Court’s instruction first-degree murder giving of a on the its decisions other inconsistent 29, 1979 September a committed for crime issue, equal protection violating his same included offense of a proper was lesser reviewing begin by agree, I rights. prosecution’s capital despite murder deci- Missouri statutes the relevant first-degree murder. charge failure to sions. only type Felony of first-de- murder was regard, to consid- the court this 9. 10. give first-degree Missouri law. Mo. gree murder under to murder former er that the failure a impose 1979) (Vernon (repealed may to have led the § instruction Ann.Stat. 565.003 might they act). predicate verdict than otherwise 1984) (including kidnaping severe as a more have. 1342 degree murder no first these cases 904- Baker, 636 S.W.2d v. In State capital for a trial required in denied, instruction 459 banc), (en cert. (Mo.1982) 05 January 1979. after committed murder 834, 74 L.Ed.2d 1183, 103 S.Ct. of trial.” the time was in effect a Baker of convicted was (1983), defendant added). was Baker (emphasis Id. at 1980. June on committed capital murder place took trial and Betts’ in 1982 decided entitled he was arguing that appealed, He in 1980. on instruction first-degree murder ato court concluded The of Gardner.

basis v. God in State year, the same Later in change statutory (en the 1979 (Mo.) due to 884-89 dard, 649 S.W.2d no was murder 556.046, first-degree 997, 104 S.Ct. denied, 464 U.S. banc), § cert. capital of offense included longer a lesser Missouri (1983), the L.Ed.2d 689 felony reasoned The court was murder. that Baker decided Supreme Court commission required proof con was murder The defendant prospective. only not, murder did capital felony murder, being while of a after first-degree victed were offenses murder, the two capital thus elements acquitted of charged and Moreover, under 904. Id. at in robbery dissimilar. committed a murder for to amendment September it arguing that appealed, He 1980. October instruc murder 565.006.1, first-degree first-de jury on § to instruct error was sup required unless longer was no tion had not been murder where gree 905. Id. by the evidence. ported and Blair. light of Baker with it charged rejected God Court Supreme The Missouri Su- Missouri year, the same Later that an rule claim, holding that dard’s appeal. direct Blair’s heard preme Court pro applied to be Baker nounced holding that Baker’s applied court The of that the date to trials spectively includ- a lesser murder was first-degree did not The court decision. and affirmed murder capital ed offense Betts, Woods, in each Blair, Blair, mention v. State conviction. applied Supreme Court the Missouri which not ad- did court 746-47. S.W.2d entered convictions affirm Baker evi- sufficient before there whether dress the seven Three was decided. Baker instruc- first-degree support a dence argued that Baker They dissented. judges tion.11 prospective because could Woods, 639 S.W.2d v. Similarly, in State respecting apply purported § applied Baker the court (Mo.1982), 818, 819 ef became offenses included lesser he was claim defendant’s reject the J., (Welliver, Id. at in 1979. fective instruc- murder first-degree ato entitled J., (Donnelly, dis at 892 dissenting); id. capital offense of included lesser tion as a senting). August committed a murder for murder Su the Missouri year, the same Later the Missouri following year, ignored Goddard completely Court Betts, preme decided Supreme Court from a conviction affirming a banc). Betts (en (Mo.1983) 94, 96 S.W.2d committed crime trial a homi- capital murder convicted 102, 112 Williams, S.W.2d 2, 1979 State December during a committed cide argued that banc). (en Williams (Mo.1983). his claim rejected The court robbery. first-degree murder ato entitled he was first-degree ato entitled he was Missouri instruction, but Baker, 556.046, instruction, citing § claim, citing Baker.12 declined holding of Woods, and Blair. “[I]t decided court was appeal to our post 12. Williams’ ex to consider also failed The court grant- panel of grounds. A application narrower posed problem facto petition because corpus a homicide habeas through Baker to ed Williams’ 565.006.1 Williams application of Baker. amendment date of effective preceded the uneven Cir.1989) (8th post facto alleges Armontrout, his ex F.2d 565.006.1. § view, my dissented, there arguing In Fagg rights Judge were violated. (vacated). thus long as Missouri seeming- post violation facto Supreme ex Court’s no "despite the Missouri where first-degree instruction murder precedents,” allows its application of ly inconsistent support one. evidence is sufficient there Holland, Baker, Daugherty. Fuhr and In the court in 653 S.W.2d Finally, State v. banc) (Mo.) (en (plurality), the itself and declared that 673-74 reversed first-de- charged capital with gree was murder was not a lesser included of- defendant in a first-degree murder and convicted of fense of murder. was then Baker A September 1979. Woods, crime committed applied retroactively Blair, in and Supreme the Missouri Court plurality of Goddard, changed Betts. the court of a claim that the inclusion rejected his only course and announced that was Baker by the trial first-degree murder instruction declining in prospective, apply God- Goddard, Relying on was error. court Next, applied dard's case. court Baker only prospective they noted that Baker was retroactively Finally, Williams. permissible thus the instruction and apply court refused to Baker in Holland concurred, judge the time of the trial. One only prospective. because Baker was See apply should reasoning that Baker State, 284 n. Rumble v. S.W.2d 1, 1979, instructing down January but (these (Mo.Ct.App.1987) decisions cannot be prejudicial. if it was Id. was error reconciled). (Rendlen, C.J., concurring). Three By shifting pro- back forth between dissented, arguing Baker judges spective retrospective application “retroactively prospectively applied or Baker, Supreme the Missouri Court before the solely to affirm the conviction every managed to affirm the conviction in both ... a violation of court at moment beginning Daugh- one of these cases equal protection.... process and due application of the erty. This inconsistent similarly situated majority ... has treated similarly defendants law treated situated transparent ef differently in a defendants differently, and unless there is a reason- them new trials.” Id. giving to avoid fort inconsistency, explanation able J., (Welliver, dissenting). at 679-80 protection rights violat- equal were trial occurred before Baker ed. “Blair’s 2. thus, decided, Goddard, under requires that Equal protection of the law have received an instruction Blair should similarly situated be treated people all Holland, 653 degree on first murder.” alike, government inter legitimate absent a (Welliver, J., dissenting). n. 1 S.W.2d at 681 manner. expressed in a rational Cle est argues appeal that there is Missouri Center, 473 Living burne v. Cleburne equal protection violation because “... no 3249, 3254, L.Ed.2d 105 S.Ct. was free to the Missouri (1985). judged are Judicial decisions applying the new law at draw the line consistency and state courts must by their point it concluded to be most whatever own by their constructions of their abide economy.... judicial consistent Georgia, 446 U.S. Godfrey law. reasonably appel- that all decided ... 1759, 1767, 64 L.Ed.2d 398 after would be held to late decisions Baker Respondent at ruling.” Brief of the Baker The Missouri decisions are inconsistent. passage of 556.046 and the Despite the § ' Supreme Court agree I that the Missouri 565.006.1, the Missouri amendment its decisions will be may decide whether first-degree recognized Supreme Court prospective retrospective. See Linklet capi- included offense of murder as a lesser Walker, decisions, ter v. subsequent tal murder two overwhelming premeditation intent was support evidence to there was insufficient J., case, (Fagg, previ felony including Id. at 666 of a murder instruction. commission adopted Judge dissenting). This court en banc the same motive. ous murder with kidnapping Fagg's view of the facts that the togeth admitted the State Blair’s confessions planned merely homicide. incidental unreliability of the State’s witnesses er with the Armontrout, (8th 912 F.2d Williams v. case, which the could this a closer make 1990) (en banc). While that is also the Cir. primary kidnapping was the have believed case, facts, theory on its Williams State’s in this the defendant. scheme of distinguishable evidence of State’s violat- was charges against them Perhaps tice first-de- convicted they were is at ed when a statute even where true this remains charged with it. although not murder gree decision the court’s effect of the issue and Goddard, 673; Holland, But at date. 653 S.W.2d effective the statute’s is to alter the answered court grips The come fails to S.W.2d argument this only While was saying cases. that Baker these claim posed by first problem the argu- certainly can notice the Court It answered Supreme prospective. Missouri the its crimes apply the it cannot that because prospective, by saying ment make Baker incon- Baker, of Baker was there applicability prior to on the committed decision were it has charge what precisely is failure to That from the sistently. prejudice no jus- equal principles defen- the because violation murder first-degree done in making. If Baker Daugher- decision neutral and and Fuhr tice from had notice dants change the every case after Hol- applied to instruct down. the court could ty that have law, the court statutory Goddard, 673-74; in the land, 653 S.W.2d in Goddard convictions the to reverse 887, 889. S.W.2d in affirmance the recall and Holland and that majority is correct While pro- applied If Baker Daugherty. nev- notice was challenge regarding second analysis trials, future spectively Betts, Woods, Blair, Baker, in made er in conviction affirming the used light whatsoever Williams, no sheds affirmances wrong, and the was Williams Supreme Court’s the Missouri on whether have should Woods, Betts Blair, and inconsistent. first issue are decisions recalled. first-degree that held Fuhr, court In conviction, ma- defending Blair’s In a offense included a lesser was murder approach a different jority takes that held in 1980. Baker committed crime concludes majority The State. a includ- lesser murder was first-degree defensible are decisions court’s Woods, In capital murder. ed offense instruc- murder cases, first-degree some every applied that Baker court said notice, God- such as without given tion was January after committed murder cases, the other In Holland. dard and held at 96. Goddard Woods, 639 S.W.2d instruction first-degree wanted defendant pub- only after Baker’s applied that Baker Blair, Baker, refused, such and was Goddard, 649 S.W.2d at in 1982. lication major- In the Betts, Woods, and Williams. Baker applied court In 889. Williams implicates of cases view, the first line ity’s These ignored Goddard. retroactive and thus and requirements, process notice due date changes in the effective deliberate was situations those treatment different nothing to do 556.046have and of Baker The distinc- 1328-1330. Ante at justified. and problems Goddard the notice fact majority by the recognized tion had held court if Even Holland. real, our but is of these cases patterns in Goddard retroactive was Baker or not on whether focus inquiry must rejected the have Holland, it still could Supreme Missouri analysis of the legal of Fuhr basis on the claim notice It distinguishable. cases in these Court of con- benefit unique Daugherty. what has confused majority not, and the was prospective cluding Baker issues Goddard legal separate two were agree with did not that the court and Holland. challenge to first Holland’s Goddard two faced Court Supreme Missouri first-degree murder instruction, first-degree challenges to the separate at the offense included not a lesser in Goddard given instructions their trials. time first-degree instruc- whether Holland: Moreover, the Missouri first-de- holding Baker’s violated tion analysis of the in its inconsistent has been of- included a lesser gree murder rejected Blair, issue. notice Holland, murder, fense of instruction first-degree 887; request Goddard, S.W.2d S.W.2d had not reason additional no- for the rights defendants’ and whether

1345 accomplice tim’s home with an to commit a first-degree murder. charged with been robbery. for the trial He claimed that he intended to been error would have “[I]t degree victim, up accomplice first but his struck instructed on tie to have process due jury This is because the man and killed him. The murder.... may not be con- only that a defendant requires capital instructed murder and con charged defendant, of an offense sentencing victed him to victed the Blair, indictment.” State v. 629-30, information at at 2385-86. death. Id. S.Ct. in at 747. Yet Goddard reversed, 638 S.W.2d the in reasoning The Court Holland, very rea- rejected this the court instructions is nec clusion of lesser offense not error to held that it was soning and essary jury to insure “that the will accord first-degree murder instruc- jury a give the the rea the defendant the full benefit of had not been although the defendants tion where the defen sonable-doubt standard” Hol- first-degree murder. charged with offense, clearly guilty dant is of some but 674; Goddard, land, 653 S.W.2d may element of where doubt exist as an issue is one at 889. While S.W.2d 633-34, highest charged. offense Id. at us, has the Missouri Court before (citing at 2387-88 Keeble v. Unit S.Ct. inconsistent on both. States, ed 93 S.Ct. (1973)).14 has not been L.Ed.2d 844 The Court I note that Missouri Finally, respect. important argument op that the rejected Alabama’s faithful to Baker 556.046, in- first-degree murder provided adequate due Under tion of a mistrial § sup- required where were still process protection against improper structions ver though not evidence even ported by at 2393. The dicts. Id. at 100 S.Ct. Yet in Blair’s in the indictment. charged distinguished Hopper v. Ev Court Beck suffi- case, reviewed the the court never ans, 456 U.S. Instead, the court ciency of the evidence. where, (1982), under the same L.Ed.2d 367 in- created the as if Baker applied Baker law, did not receive Alabama the defendant degree first could never rule that flexible instruction a lesser offense capital mur- offense of lesser included be a confessed to inten case. The defendant Blair, at 746-47. 638 S.W.2d der. See requested tionally killing his victim 607-08, 102 penalty. S.Ct. death B. affirmed convic 2050-51. The Court first-degree entitled to a Blair was also sup there was no evidence tion because process grounds, instruction on due murder offense, any lesser port a conviction for evidence to was sufficient there because instruc stressing required other that Beck There was no an instruction. support such supported by the evidence. only when tions contrary.13 finding to the state Similarly, in 610, 102 Id. at 447, 455, 104 Florida, Spaziano Alabama, Beck v. (1984), (1980), proge- and its L.Ed.2d 392 always that Beck rejected the view give that the failure ny establish offense instruc required lesser included in its verdict con- meaningful choices case, a conviction every where tions violates a defen- the evidence sistent with was unavailable Beck, the lesser offense rights. process dant’s due limitations. of the statute of entering the vic- defendant confessed Blair, supported 638 S.W.2d it. argues if the evidence majority the trial court found kidnap- presumption ac- of correctness evidence of 746-47. The there was insufficient finding findings no such ping. n. 23. I find not extend Ante at 1330 does corded state fact finding find Nor can I in the record. any U.S.C. left unresolved. factual issues inadequate that there was state court other 2254(d)(1). first-degree in- support a evidence Supreme Court decided Missouri struction. prosecu- protects the requirement also 14. This first-degree in- to a was not entitled that Blair increasing that the defen- the chances tion Baker, solely without on the basis of struction considering Beck, offense. of some will be convicted dant a defendant even under Baker 633, 100 S.Ct. at 2387. 447 U.S. at first-degree murder instruction to a was entitled car, friend, the victim her he left with as and its interprets Beck majority The boyfriend the to tie going not he was merely that sometimes require to progeny at 1088. phone. Id. to the option” up rip in addition or out a “third jury have the he told the 1326. Be Ante at recited acquittal. Blair’s confessions or conviction hold second-degree going to received that he jury was Blair’s victim car cause instructions, the manslaughter her from days prevent to and few murder for a her process violation. 1980; no due Id., finds video state- majority 6 at testifying. vol. however, give sec suffice, to car, not she It does the they exited 24. When ment at in manslaughter or ond-degree murder at 25. her. Id. and he escape to killed tried support for there no when structions confessions these The State introduced record. the the instructions giving that, in argued guilt but of Blair’s evidence not do instructions the alternative Where her, kill to fact, always intended he had evidence, of no they are correspond physical testimony. The relying on Jones’ dilemma avoiding jury’s more benefit at only that Blair was established evidence Spa a mistrial. of possibility than the Cf. of at the and scene apartment the victim’s 455-56, at 104 S.Ct. ziano, at U.S. indi- testimony forensic the murder. in jury be (“Requiring 3159-60 range. at close was killed that she cated for offenses included on lesser structed made that was impeachment light of the convicted, may not be defendant (and could witnesses the State’s another simply however, introduce per- for the effectively but even more fact-finding pro into the type of distortion have rea- jury could testimony), jured sec jury a giving the cess.”). Nor would confessions credit the sonably decided in manslaughter ond-degree murder Gardner, at 618 S.W.2d Compare fully. sup they are even if be sufficient struction re- instruction murder (first-degree evidence, also if the evidence by the ported kidnapped defendant quired where instruction. first-degree murder supports a victim, her with- killed then had raped the given jury be requires that a process Due Moreover, the trial provocation). out sup options meaningful verdict all the and man- second-degree murder give did Spaziano, by the evidence. ported there was suffi- If instructions. slaughter 3159; Hopper, at support these instruc- evidence cient 2052; Beck, 447 U.S. at to be- evidence tions, sufficient there was U.S. at premeditated killing lieve evi- if the must we decide Accordingly, original plan. was the kidnapping in- first-degree murder supported dence evidence Accordingly, there was sufficient law, there Missouri Under struction. murder instruc- first-degree support a an instruc- support evidence sufficient recit- might have an instruction Such tion. reasonably find jury could tion where first-degree guilty Blair was ed that on the basis the offense the elements that Blair shot if the found murder Daugherty, submitted. the evidence her, so in the course that he did killed Fuhr, 639; 626 S.W.2d S.W.2d he did so kidnapping, of a by sub- supported (“Instructions must or to kidnapping detection prevent inferences and reasonable evidence stantial pen- escape of victim. prevent therefrom.”). First-degree drawn to be at the time first-degree murder alty for a homicide law was under Missouri murder Mo. imprisonment. life trial was fel- in the course enumerated committed (re- 1979) (Vernon Ann.Stat. 565.008.2 § Mo. intent. premeditated onies without 1984). pealed 1979) (re- (Vernon 565.003 Ann.Code § 1984). confessions, pealed jury credited the Had the crime found that might not have that Blair testified boyfriend The victim’s second-degree by the defined adequately kidnapped victim when Blair told him Second-degree murder instruction. murder her. Trial to harm going that he was murder, kinds all other defined as Blair left 4 at transcript, vol. killings, including reckless boy- unharmed, and told boyfriend personal cutor focused on the characteris- homicides committed passion, and heat of of the white victim and the race those listed as tics during crimes other than jury: Mo. He first-degree murder. defendant. told predicates (Vernon 1979) (re- Ann.Stat. § you just I want to talk with a few 1984). Second-degree murder was pealed principal minutes about the two actors years ten by not less than punishable Allen, attractive, Kathy this case. Jo (Vernon Mo.Ann.Stat 565.008.2 prison. artist, 21-year-old girl, striving to be an 1984). in- 1979) jury The (repealed Institute, going City to the Kansas Art second-degree they find that could structed working part help support time to herself the they that Blair caused murder if found pay and for her education. And she was her, he in- by shooting victim’s death supposed viciously raped while the her, he did not do and that tended to shoot safety April, last as we of her own home Instruction 8. in fear of her actions. so nearly all heard. killed in that She kidnapping reference to the There was no rape, courage the to come but she had her from testi- attempt prevent or to the forward.... the capture fying. This instruction did Then, supposed safety of again, the killing further- the occurred idea by this defen- her own home was invaded Blair killed or that ance of another crime dant, you Junior Blair. Can Walter escape. prevent detection or her to imagine her state of mind when she woke about juror had reasonable doubts If a morning, staring up at 6 o’clockthat into but premeditation, evidence of the State’s by held this gun the muzzle of a black her in the course that Blair killed believed man? appropriate no kidnapping, there was of a transcript, Trial vol. 7 at 2314-15. After The this conduct. verdict that described crime, prosecutor ex- reviewing the to describe second-degree failed instruction jury choose execu- plained that the could killing, and the purpose for the a criminal years. imprisonment fifty life for tion or required premeditation capital instruction argument for prosecutor’s The first choos- case, In kidnapping. preceded “Why should we as ing between them was: given required that the process due fifty man taxpayers have to house this first-degree murder choosing option to feed him years? Why should we have It is not with the confessions. consistent day fifty years, clothe meals a three request, ev- necessary, nor does recreation, him fifty years, furnish him for murder have included offense of ery lesser prosecu- The care?” Id. at 2317. medical every case. an instruction immediately negative made refer- then tor of his constitution- ence to Blair’s assertion IV. during rights al trial.15 prose- that the Finally, agree I with Blair prosecutor’s clos- respects, three penalty at the closing argument cution’s the rule that ing argument violated prejudicial. improper and stage was character- sentencing focus on the decision and the circum- of the defendant ninety-seven had istics jury panel of The initial First, prosecu- the crime. jurors. stances of African-American seventeen designed “taxpayer” argument was tion’s of their res- were excluded because Twelve unrelated to jury and was to inflame the penalty. One about the death ervations of the defen- personal characteristics The last four were the defendant. knew not in evi- relied on facts transcript, dant. It also Trial by prosecution. struck Next, permit- prosecution is not from Kan- dence. jury, The drawn 6 at 1986. vol. the defen- comment on closing ted to make adverse In his City, thus all white. sas rights. his constitutional dant’s assertion of phase, prose- penalty at the statement the finest including representation two of you, heard a lot about and we’ve 15. “I submit to case, County....” rights lawyers in Jackson in this constitu- here constitutional criminal defendant, certainly he's rights transcript, of this 7 at 2318. tional vol. Trial is, right every there afforded constitutional bearing sentencing have “some must ing fo impermissibly prosecutor Finally, the responsibility ‘personal defendant’s on the on the attention jury’s the all-white cused ” Maryland, Booth guilt.’ moral prej of these Each race defendant. 2529, 2532, 96 U.S. constitutional arguments violated udicial (1987) (quoting Enmund Blair’s L.Ed.2d before clearly established principles Florida, final.16 conviction became (1982)). prosecu that the majority concedes A. put should be that Blair argument tor’s again has time pub imprisoned rather than death pro- amendment eighth declared amend eighth expense violated lic’s imposition arbitrariness hibits from the deflecting focus rights ment reliability sufficient penalty death Ante and the defendant. crime jury’s through be attained can Zant). prosecutor’s argu (citing The 1323 the defen- of consideration individualized gen it included improper because ment long has Individualized consideration dant. inflammatory sentiments eralized the of the characteristics a focus meant do little to that have incarceration about of- of the the circumstances offender and selecting of Walter propriety the argu- of fense, avoidance together with an Zant, at 462 U.S. for death. in particular undifferentiated upon play ments that 2744; v. Mus 879, see State 103 S.Ct. the cannot avoid jury. the fears of “[W]e (1952) 276, 15 109 N.E.2d kus, St. 158 Ohio is decision an individualized that conclusion the Constitut argument (taxpayer violates defendant capital cases. essential [Each a constitu accepted as ion).17 is not Cost respect due degree of that is entitled to] penalty. death for the justification tional considera- individual. the [Individualized 183-87, 153, 96 U.S. Georgia, 428 Gregg v. im- requirement a constitutional tion [is] (1976). 2929-31, 2909, 859 49 L.Ed.2d S.Ct. v. Lockett sentence.” the death posing statement, subsequent prosecutor’s The 2954, 605, 586, 98 S.Ct. Ohio, 438 U.S. represented Blair was that pointing out (1978)(plurality opin- 2965, 973 57 L.Ed.2d rights, his fully asserted counsel J.); v. Zant Ste- accord Burger, ion adverse argument and his costs buttressed 2733, 879, 862, 103 S.Ct. phens, assertion on Blair’s ly commented (collecting (1982) 2744, 235 L.Ed.2d 77 California, v. See, e.g., rights. Griffin 51, Ashe, 302 U.S. v. cases); Pennsylvania 1229, 14 L.Ed.2d 106 609, 85 S.Ct. (1937). In 60, 59, L.Ed. 55, 82 43 prohibited). (adverse comment (1965) sentences, the reviewing death however, insists, de- majority prison- the “ensure that has acted Court stan- eighth amendment having used spite is afforded executed to be er sentenced propriety the to determine the dards much as guarantee, as will process eighth amend- use cannot argument, we the sentence humanly possible, legal the conse- judge standards whim, preju- ment passion, out of imposed argument. prosecutor’s the Oklahoma, quence Eddings v. dice, or mistake.” Instead, employs the 878, 869, Ante at 71 118, 104, S.Ct. 102 U.S. 455 described process standard due J., concurring). weaker (O’Connor, (1982) 1 L.Ed.2d Armontrout, F.2d 885 v. jury dur- Newlon submitted the evidence All stitution, consequences er legal — U.S. -, -, the Smith, 110 Sawyer v. 16. See (1990) these claims (appli procedural bar on No state 193 ror. 111 L.Ed.2d S.Ct. Lane, Teague courts. See Ulster retroactivity the rule of state invoked cation 152-53, Allen, 334 L.Ed.2d 99 S.Ct. U.S. County Court v. errors). Sawyer sentencing (1979). 2222-23, (1989), capital S.Ct. constitutional condemnation establishes precede argument must closing prosecutor’s the Jordan, 80 Ariz. also State See applied finality on collat conviction’s Clark, (1956); Commonwealth P.2d 677 Subsequent can nevertheless cases eral review. (condemning taxpayer 185 A. Pa. 321 law, in understanding prior our inform argument). the Con clauses of various terplay between — Cir.1989), denied, eighth (8th applied the amendment to errors cert. 1336-37 U.S. -, 111 L.Ed.2d 810 jury that did not mislead the as to its role difference Booth, There is a substantial sentencing process. legal standards. Under the two impact between Court held that the use of victim amendment, if we must decide eighth statements was unconstitutional under sentencing made at type of statement eighth amendment standards. 482 U.S. the reasoned decision- “inconsistent with 508-09, 107 2535-36. Court Booth, require.” 482 U.S. at making we proof the onerous did shift burden (“the 508-09, pre formal at 2536 proposed by majority onto the defen by the state of this information sentation prove the effect of the error on the dant inflame purpose no other than to can serve Instead, jury’s thinking. re Court deciding the divert it from sentence, concluding versed Booth’s evidence.”). Instead, relevant case on the type of error at issue “creates an im place the burden on majority sentencing permissible risk that the prove prosecutor’s defendant to arbitrary decision will be made in an man made the entire sen deliberate misconduct 505, 107 ner.” Id. at S.Ct. at 2534. Sim and, tencing proceeding unfair absent Gathers, ilarly, in reversed a error, differ would have been the outcome eighth grounds conviction on amendment the risk of places at 1324. This ent. Ante prosecutor religious read where the jury’s thinking on uncertainty as to the our happened carrying to be tract victim continuing in defendant. It also risks the the time of his death. 490 U.S. at - I by prosecutors. dis misconduct tentional 2210-11, -, 104 L.Ed.2d at 109 S.Ct. analysis, and I majority’s agree with the In neither case did the error 882-83.18 unsupported. that believe jury mislead the as to its role. governs only eighth amendment The clause, process due rather than the The penalty pro scope of the permissible the amendment, eighth controls the content consequences provides the ceeding, it also guilt made at the prosecutorial statements penalty proceeding. during the for errors 178-82, Darden, 477 106 phase. U.S. decisions have Three recent opinion 2470-72. This court’s S.Ct. at closing argu legal the effect of evaluated Newlon, majority, prop upon by relied the the penalty phase under ments at the considering closing a erly noted that amendment. Carolina eighth South stage, claus argument penalty at the both Gathers, 109 must be considered. es of the Constitution Booth, (1989); 482 L.Ed.2d 882 104 argu- agree with the State’s We cannot 501-03, 2532-33; 107 S.Ct. at Cald U.S. at the district court’s use of both ment that 329-30, Mississippi, 472 U.S. well v. fourteenth eighth amendment and 2639-40, 231 its analysis somehow renders amendment only majority focuses on Cald Rather, we find that improper. decision Comparing with Darden v. Caldwell well. analysis amendment bolstered eighth Wainwright, pro- finding of a due the district court’s (1986) (due stan process L.Ed.2d has As the Tenth Circuit cess violation. prosecutorial statements applied to dards stated, propriety of a decision on “[a] concludes that phase), majority guilt argument must look to closing legal determines eighth amendment that a command Eighth Amendment’s only misstatement consequences of a complete a be based on death sentence jury into statement misleads where the individual defendant’s assessment ultimately re they are not thinking that ” circumstances.... penalty. imposing the death sponsible for Newlon, (quoting F.2d at 1337 Cole- majority neglects 1323-1324. The Ante at (10th Brown, F.2d also man v. and Booth to consider that Gathers misleading. procedures are possibility mal also rules out the 18. Gathers analysis applies eighth to for- amendment in differenti- seemingly substantial are denied, Cir.1986), cert. murderers, a we know ating between (1987)). L.Ed.2d prejudices public appeals prosecutor’s urged standard impropriety face of Even powerful. are also prove that the Blair majority, by the circumstances, must not we aggravating the death him given have jury would preju- of these the effect underestimate argument, is improper absent penalty proscribed prejudices dices— judg- type demonstrated further law, summoned but consideration jury’s case. ain be made that must ment prosecutor. hearing by this into type difficult, impossible, if not It is standards, the eighth amendment Under which factors to be certain for us of case regarding incarcer- argument prosecution’s do not We jury’s verdict. influenced constitu- the defendant’s expense and ation do not We jurors. the individual know argu- These rights prejudicial. tional minds their through what went know danger of arbitrari- a real introduce ments We of counsel. arguments heard the each in- hearings and are sentencing ness into upon to called frequently nevertheless are making of decision type consistent evidence or less effect more what assess polling information Blair recites required. jury’s deliberations had on a have signifi- is a incarceration the cost of or a defen- verdict a civil respect to coun- people in why many reason cant We review the innocence. guilt or dant’s Appellant’s penalty. death try support the weigh arguments evidence Moreover, many citizens Brief subtrac- effect of additions probable mistakenly be- prison visited never there was more whether We decide tions. light of are coddled. criminals lieve There are guilt. enough evidence than argument types of these prejudice cases, review but our hard sometimes impossi- evoke, need not assume many evidence sufficiency of the jury would that this proving task of ble difficult prohibitively is not cases absent conclusion a different have reached ju- only how reasonable decide must we know We are unable argument. this the evidence. view ror would done, and Blair would have what compoúnded, how- are difficulties These uncertainty. of our not bear risk should to decide upon ever, called are when we wholly ill-suit- ... appellate court “[A]n impose decided individuals why twelve of death appropriateness ed evaluate reviewing are not penalty. We death intangibles Whatever first instance. tangible evidence. sufficiency of “[A] sentencing in its jury might consider enters into” range considerations wider an determination, gleaned from be few can at 103 Zant, 462 U.S. judgment. this Mississip- Caldwell appellate record.” are the decision In no other at S.Ct. at 105 S.Ct. at 472 U.S. pi, among ju- differences qualita- cultural individual death is penalty of "the Because type of no other impris- apparent. more rors from a sentence tively different like- so factors corresponding differ- are the influential is a judgment ... there onment unstated, times and at reliability in the deter- ly personal, be in the need ence pun- We appropriate evidence. particular is the that death unrelated mination thought this case.” Woodson many jurors specific how in know do not ishment Carolina, 280 at voting 428 U.S. finally North case before a close 2991, L.Ed.2d 944 49 at be sure can never 96 S.Ct. punishment. We capital Zant, 462 U.S. (1976)(plurality); factors were accord aggravating the stated 2746-47;20 Eddings, 884-85, 103 S.Ct. entitled ones; we nor are decisive (O’Connor, aggra- While they were. presume J., concurring). by the considered vating circumstances Zant, which the - in -, case like not a 20. This is U.S. Mississippi, Clemons contrast, relate to that did (1990), evidence in error involved L.Ed.2d 725 S.Ct. ap- prosecutorial misconduct not involve did effect social prejudice. The peals to social appel- factor for most difficult prejudice is the judge. courts to late give penalty B. are to the same to a white defendant. racial prosecutor also introduced case, prosecution explicitly In this did sentencing process by prejudice into the race, massag comment on the defendant’s discussing the race of the defendant ing the conscious and subconscious seeing victim’s fear at speculating on the thoughts jury. of the It does not take gun.21 argu- His “this black man” with powerful image. much summon such carefully played upon white fear of ment Indeed, appeal the effectiveness of his people to tendency crime and the of white might compromised had it been This is an associate crime with blacks. Moreover, forthright. more while Batson society. exceedingly powerful image in our challenges prosecutor’s peremp to a use of perpetu- perpetrated by It is media tory against jurors strikes black cannot be manipulative politicians. It leads ated retroactively,22 prosecution’s made ex they people white to cross street when qualified jurors of all of the black clusion coming and to an African-American see strong case is evi this circumstantial nearby. It rein- speed up they when walk discriminatory purpose. dence of Bat See stereotypes that reverberate forces racial 79, 93-94, Kentucky, son v. decisions, decisions, housing employment 1721-22, 90 L.Ed.2d 69 African-Americans and in the minds of protection (prima equal facie case of viola they will never live to see a who feel that tion exclusion of the established four day country. better jurors). qualified black prejudice in Any invitation to racial role plays especially influential Race clearly prohibited by the process criminal sentencing decisions. In McCles Mitchell, fourteenth amendment. Rose v. 279, 286, 107 Kemp, 481 U.S. key v. 545, 555-56, 2999- (1987), L.Ed.2d 262 the de L.Ed.2d evidence that “the fendant introduced prosecutor permitted not be penalty death was assessed ‘should 22% [A] juror, preju- white that thirteenth involving black defendants and to summon cases prejudice violently Racial can af- victims; involving cases white dice.’ 8% [and] impartiality must juror’s fect a victims.” The Court defendants and white proceeding from the courtroom removed fourteenth amend rejected the defendant’s extent'possible_ to the fullest protection claim equal ment Thus, indicia that produce purpose spirit of the he was unable and requires in his own case. Id. at race was a factor fourteenth amendment 292-93, free of prosecutions 107 S.Ct. at 1766-67. state courts be argument. racially prejudiced that even without slurs in not refute the claim did race, juries prosecution are for state this The standard any direct comment rigorous high as as the impose regard the death is thus three times likelier to required of the federal courts they standard who kills a white as penalty on black improprie- fully the failure to raise this I believe that and was admissible sentenc- defendant ing. 886, 2747; Zant, obvi- ty assistance because of the see is ineffective U.S. at 103 S.Ct. 462 890, prosecutor appeal (suggesting made ousness of id. at 103 S.Ct. at 2749 also argu- evidence). explosiveness prosecutor's and the with inadmissible different result prejudice and for the ment. I find both cause before the state majority claim was not raised 21. This believes To the extent that the default. sense, "delib- one there has been no performance courts. In not of state counsel is bypass attorney state remedies in favor of feder- erate" has Blair's current us because before brought it, it was never to our petition al review because is habeas raised a successive not can be cause for the challenge attention either. There decisions of Blair’s available however, bypass proceedings, in the of state attorney. supra 3. See note current counsel to raise assistance of state ineffective 314, Carrier, Kentucky, 107 479 U.S. Murray See v. 477 U.S. 22. claim. v. Griffith 708, (1987); Hardy, 2645, (1986). v. L.Ed.2d 649 Allen S.Ct. 93 255, 91 L.Ed.2d 397 106 S.Ct. 199 recognize 106 S.Ct. 92 L.Ed.2d every factual 478 U.S. failure to While not assistance, legal of a claim is ineffective basis 1352 district remanded this matter process due amendment’s fifth by the conceal- whether determine court to clause. beyond a were harmless perjury ment and McKendrick, F.2d v. States United if it were Finally, even doubt. reasonable Cir.1973) (quoting United (2d 152, 157-59 grounds perjury that the assumed Fireworks, F.2d Antonelli

States appeals remand, prosecutor’s J., Cir.1946) (Frank, dissent- (2d a new justify prejudice racial social and denied, ing), cert stat- the reasons hearing. For sentencing brief, use if (1946)). “Even L.Ed. 640 ed, I dissent. closing argument in a factor as a race Brooks ...” improper obviously would be (11th Cir. 1383, 1413 762 F.2d Kemp, judg and banc), granted 1985) (en cert. 1016, vacated, ment remand, (1986), on cu-riam), banc) (en (per Cir.) (11th F.2d 700 WALTON, Appellee, E. David denied, 483 U.S. rt. ce (1987). A reversal 3240, 97 L.Ed.2d played if race required sentence CASPARI, L. William and Paul Rose, See his trial. any part in Webster,* Appellants. (reversing the 3000-02 556-59, 89-1487. No. of discrimi conviction defendant’s jury fore grand selection nation Appeals, States Court United subsequent defendant’s despite man Circuit. Eighth jury). separate by a conviction Feb. Submitted V. 16, 1990. Decided Oct. must cases, government criminal Banc Rehearing En Rehearing and act must prosecutor two hats. wear Dec. Denied re- or she advocate, although he as an partisan put ahead cautioned peatedly law the law—not success observance direction, one stretched might be as it consid- interpreted as it is the law but Courts fairness. justice erations of un- sometimes a neutral act

must against balance popular check parti- prosecutorial weight unrestrained job, justice neither do their sanship. When terms. speaking left on law are first-degree give a failure treatment inconsistent

instruction by the Missouri this issue new given a Blair be require there assumed if it were Even trial. error, the concealment no instructional together testimony, perjured itof elicitation deliberate prosecution’s require credibility, Jones’ bolster is a * L. Webster Attorney William General Trickey super- 43. proper Myrna Caspari succeeded Paul 28 U.S.C. respondent, see party Correctional Eastern the Missouri intendent argued briefs 2(b), submitted and has Rule appeal. Ac- pendency this during Center cordingly, Attorney join the appeal. We also action Myrna Caspari for Paul substitute we respondent. party aas 25(d); General Fed.R.App.P. Trickey. See Fed.R.Civ.P.

Case Details

Case Name: Walter J. Blair v. Bill Armontrout, Walter J. Blair v. Bill Armontrout

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 24, 1990

Citation: 916 F.2d 1310

Docket Number: 86-2375, 86-2376

Court Abbreviation: 8th Cir.