Too late to stop the hangman?

Missouri is determined to execute Joseph Amrine for murder even though every prosecution witness and the jury foreman now say he's innocent and new witnesses point to another man. Why? A federal law says the evidence came in too late.

Editor's note: Because of the urgency of the death penalty case examined in the following article, we are taking the unusual step of making this Premium story available to all Salon readers.

By Dave Lindorff

Feb. 20, 2002 | As the number of death-row prisoners exonerated by DNA evidence continues to mount, some innocent inmates are still being freed the old fashioned way, when new evidence emerges to implicate another suspect, or supposed witnesses recant their stories. But Joseph Amrine, a black man convicted by an all-white jury of killing a fellow prison inmate 17 years ago, still sits on Missouri's death row, even though all the witnesses against him now say he didn't do it, new witnesses have identified another inmate as the killer, and at least three of the 12 jurors who convicted Amrine, including the jury foreman, now say they think he is innocent.

Death penalty opponents say Amrine's case is among the most egregious examples of the flaws in the nation's capital punishment system. His legal appeals completely exhausted, Amrine's fate now lies in the hands of Missouri Gov. Bob Holden, a pro-death penalty conservative Democrat who has been authorizing executions at a rate of about one per month throughout his term, and who has yet to commute or even stay a single prisoner's sentence.

Amrine, now 45, was serving a short sentence at the Missouri State Penitentiary (now known as Jefferson City Correctional Center) for check kiting when he was accused of the October 1985 knife slaying of Gary Barber, a fellow prisoner. He is facing execution despite the fact that the three prisoners who testified against him at his trial have subsequently recanted their testimony. They say they were pressured by prison authorities to lie, and then rewarded for it.

The way Amrine's lead appellate attorney, Sean O'Brien, describes his client's legal odyssey might be darkly comic, if a man's life wasn't at stake. When the first two of the prosecution's three witnesses recanted their testimony, the federal judge hearing Amrine's appeal, Fernando Gaitan Jr., ruled that they weren't credible, because the third witness had not disavowed his testimony that Amrine was the killer. But later, after that third witness came forward to say that he too had lied at the trial, the same Judge Gaitan ruled that this recantation was not credible. The judge went on to muse that none of those recanting could really be believed because they were all prison inmates, and thus inherently not believable -- reasoning that of course could have been used to dismiss their earlier testimony against Amrine, but wasn't. Gaitan also ruled that he didn't need to reconsider the earlier recantations, in light of the third one, because he had already considered and rejected them, so they were no longer "new."

The St. Louis Post-Dispatch, after describing Gaitan's rulings in a May 5, 2000, editorial headed "Executing Without Justice," asked rhetorically, "Should the state execute a person when no evidence is left standing against him?" But that appears to be exactly what Missouri is set to do. Amrine, who was featured in controversial Benetton ads spotlighting death-row prisoners in 2000, could be executed as soon as the governor signs off on a state Supreme Court death warrant, which could happen at any time.

Amrine's case is important beyond his own personal situation, because the 8th Circuit Court of Appeals actually used his appeal in establishing an important precedent limiting the ability of criminals to introduce new evidence of their innocence. A three-judge panel held that the testimony of other inmates who say they saw another prisoner, Terry Russell, kill Barber was not sufficient to require a new hearing, because the defense could have obtained that evidence at the original trial, through due diligence, but did not. Despite acknowledging that Amrine might well be innocent, the appeals court ruled that the witnesses who might prove that could not be heard.

Legal experts say that precedent placed a chilling new limit on death-penalty appeals. In plain language, it means there may be eye witnesses to a murder discovered after a trial, who were never heard by a jury, who can attest to a person's innocence. But if for some reason the defense overlooked them or failed to call them at the trial, the person should die anyway.

While experts disagreed with the appellate court's decision on that point, many of them back the panel's contention that the public defender in the case, Julian Ossman, failed to give his client the best possible defense. At the time of the 1986 Amrine trial, Ossman was the Cole County public defender. Six of his clients currently sit on death row, and two of his clients' death-penalty convictions have been overturned at the federal level, including one by the 8th Circuit, on the grounds that they had ineffective counsel.

Jurors say in Amrine's case, Ossman didn't introduce evidence to challenge prosecution witnesses, failed to interview and thus prepare defense witnesses before putting them on the stand, and made little effort at the penalty phase of the trial to provide evidence of mitigating circumstances against the imposition of the death penalty. Efforts to reach Ossman by phone were unsuccessful.

Now Larry Hildebrand, one of the jurors who helped convict Amrine, is adamant that the governor needs to grant a pardon in this case. "At a minimum he deserves a new trial," he says. "All the witnesses are saying something different now, and if they'd been saying what they're saying now, I never would have voted to convict him."

Hildebrand, a Catholic who says he supported the death penalty back in 1986, now says he opposes it, based in part on the Amrine case. "If we kill Joseph Amrine, we'll have killed an innocent man, and that would be the end of it," he explains. "Saying 'oops' at that point isn't enough!"

But Scott Holste, a spokesman for the Missouri Attorney General's Office, which has been defending Amrine's conviction against appeals for 16 years, says there is no reason Amrine should be spared. He says that the courts have ruled on the recanted testimony of the prosecution's witnesses, determining that those recantations are not credible. But he says that his office will not interfere with the governor's decision on Amrine's parole petition, unless asked for an opinion by Gov. Holden. "It's in the governor's authority to grant pardons, and that's a decision he has to make," Holste said.

Next page: An inmate who would have testified that another man killed Barber was never called to the stand