Reggie Clemons has spent 19 years on death row. Next month his case will be reviewed for one last time in a hearing that cuts to heart of the debate about capital punishment in America
Reggie Clemons has one last chance to save his life. After 19 years on death row in Missouri for the murder of two young women, he has been granted a final opportunity to persuade a judge that he should be spared execution by lethal injection.
Next month, Clemons will be brought before a court presided over by a "special master", who will review the case one last time. The hearing will be unprecedented in its remit, but at its core will be a simple issue: should Reggie Clemons live or die?
That question is as deadly serious as it sounds. One of Clemons's three co-defendants has already been executed, and Clemons himself came within 12 days of being put to death in 2009.
The Reggie Clemons case has been a cause of legal dispute for the past two decades. Prosecutors alleged that he and his co-defendants brutally cut short the lives of Julie and Robin Kerry, sisters who had just started college and had their whole adult lives ahead of them.
The Missouri prosecutors' case against Clemons, based partly on incriminating testimony given by his co-defendants, was that Clemons was part of a group of four youths who accosted the sisters on the Chain of Rocks Bridge one dark night in April 1991. The bridge, that connects Missouri and Illinois over the Mississippi river, had fallen into disuse, and teenagers used to gather up there to meet, smoke dope or do graffiti. The sisters, and their cousin Thomas Cummins, had gone onto the bridge that night to see a poem Julie Kerry had painted on it, and as they did so they bumped into Clemons and three other young men who were hanging out there.
The prosecution case was that the men forced the sisters to strip, threw their clothes over the bridge, then raped them and participated in forcing them to jump into the river to their deaths. As he walked off the bridge, Clemons was alleged to have said: "We threw them off. Let's go."
Clemons's supporters have over the years given a different rendition of events. In the racially heated atmosphere of St Louis in the early 1990s, they say, Clemons was made the fall guy. Of the four men who were charged with the murders, the three black men were all put on death row while the one white man is now free on parole.
In this account of events, the cards were stacked against Clemons from the beginning. His appeal lawyers have argued that he was physically beaten into making a confession, the jury was wrongfully selected and misdirected, and his conviction largely achieved on individual testimony with no supporting forensic evidence presented.
Next month's proceedings will bring these two versions of events head
to head. The hearing will be unique in US legal history in terms of
the open-ended brief that has been assigned to the special master,
appointed by the Missouri supreme court after a federal judge granted
Clemons a stay of execution three years ago. The position was given
the title of special master to denote the unusual legal challenge it
involved. The judge would given full powers to call witnesses, look
through the evidence and eventually recommend to the supreme court
what should happen to Clemons.
The hearings will also be significant in a wider sense: in effect, the
death penalty in America will itself be put on trial when the hearing
opens on 17 September.
Judge Michael Manners will be confronted by a question that goes to the heart of the debate on capital punishment in America today. Is the legal system so foolproof, so devoid of flaws and inconsistencies, that it can – beyond the shadow of even the slightest doubt – impose the ultimate, irreversible punishment: the taking of a man's life?
At the end of what is expected to be a week-long hearing, Manners will draw up his recommendation to the Missouri supreme court that will seal Clemons's fate. The judge will have the full range of options open to him. He could recommend that Clemons be freed on time served; order a new trial; call for his death sentence to be commuted to life without parole; or suggest that a date be set for Clemons to be executed – this time with no chance of reprieve.
Clemons is not allowing his hopes to rise ahead of the hearing. He has been through many twists and turns in his legal fortunes already. At one point an appeal court overturned his death sentence, only for it to be reimposed by another judicial panel. After so many years, he has acquired a degree of emotional detachment.
"When dealing with the courts, you learn not to have expectations," he said in a Guardian interview from death row at Potosi Correctional Center in Missouri. "After 20 years of contemplating my execution, and contemplating my death, I have accepted it."
The burden of proof at the special hearing will fall on the defence. In other words, it will be for Clemons and his lawyers to convince the judge that his death sentence for double murder is unsound.
To do that, the defence is expected to concentrate on Clemons's confession to police detectives after he was arrested on suspicion of being involved in the murder of the Kerry sisters, who drowned in the Mississippi river on the night of 4-5 April 1991. Clemons confessed to raping Robin Kerry, but immediately retracted the statement, insisting it had been beaten out of him during a violent police interrogation.
Lawyers on both sides of the legal argument are declining to speak before the hearing. But it is understood that new evidence will be presented to the hearing that supports Clemons's case that his confession was coerced and should not have been allowed to be put before the jury at trial. The Missouri prosecutors are expected in reply to argue that a coerced confession is not proof of Clemons's innocence.
The state's star witness at the trial of Reggie Clemons was Thomas Cummins, the cousin of the Kerry sisters. Cummins told the jury that on the night his cousins were murdered, Cummins and the two sisters had been accosted on the deserted Chain of Rocks bridge by four men they encountered there. The sisters were raped and pushed into the river, Cummins said, then he was forced to jump in after them.
Cummins's account was initially doubted by police, and they suspected him of causing his cousins' death. At Clemons's ensuing trial, an officer of the Missouri state water patrol raised doubts that anyone could survive a 70ft drop from the bridge into the perilously fast-moving waters of the Mississippi without at least suffering some visible injuries.
Cummins told police several different accounts of what happened that night, according to police records. One of the accounts was that Julie Kerry had stumbled into the water by accident after he tried to hug her. But Cummins retracted his statement, saying he had been roughly treated during many hours of interrogation, and later was granted $150,000 by St Louis police to settle a claim for police mistreatment.
A couple of days after the sisters' deaths, police dropped Cummins as a suspect and turned their attentions instead to the other four men who had been on the bridge that night. They were: Clemons; Marlin Gray (executed in 2005); Antonio Richardson (currently serving life imprisonment after his death sentence was commuted); and Daniel Winfrey (the only white man among the four, who turned witness for the prosecution and was given a deal under which he received a lesser sentence; he was released in 2007 on parole).
After several hours of questioning by St Louis police, Clemons confessed to rape but not to murder. But the next day he, too, retracted the confession, saying it had been beaten out of him.
"I remember police mainly beating me in the chest, and that was something that scared me a whole lot. While they were beating me, they were telling me what they wanted me to admit to," Clemons told the Guardian.
As Clemons's lawyers have argued, his description of the violent interrogation he was put through is almost identical to that alleged by Thomas Cummins. It took place, according to the complaints of both men, at the hands of the same detectives, in the same investigation and within 48 hours of each other .
Cummins was given a $150,000 settlement, and was made the star witness at Reggie Clemons's trial. Clemons, by contrast, had his allegedly coerced confession presented to the jury and used as key evidence to put him on death row.
The other area of legal argument that is likely to be central at next month's hearing will focus on a rape kit that was collected after Julie Kerry's body was found 297 miles downstream from the bridge. The rape kit, which is in cold storage with the St Louis police department, appears not to have been disclosed to Clemons's lawyers before his trial.
Jeanene Moenckmeier, one of Clemons's two original trial lawyers, told the Guardian that "we should have seen it as part of the evidence we could have considered at the trial."
DNA tests have recently been carried out on the rape kit, and on a condom found on the bridge that night, to see whether they can illuminate what happened 19 years ago. The results of those tests are being studied by the Missouri attorney general's office and Clemons's current defence lawyers, and are likely to be the subject of testimony in front of the special master.
What, if anything, the tests show, and whether they can cast any light on what happened on the bridge 19 years ago – and indeed Clemons's role in events – will only become clear at next month's proceedings.
There are several other aspects of the case that could hold the special master's attention. The prosecution of Reggie Clemons was so riddled by inconsistencies and irregularities that some observers of the case argue he should never have been put on death row in the first place.
"There are so many contradictions, so many things that don't add up," said Chris King, editorial director of the St Louis American, that has covered the case in depth over several years. "In capital cases the highest standards of jurisprudence should be observed – because the state is taking a life – but that didn't happen in this case."
The selection of the trial jury was conducted by the prosecution in a way that was later ruled unconstitutional. Questions were also raised about the way the prosecution had been conducted. At the time of the Chain of Rocks bridge, Clemons was 19, had just finished high school and was planning to go to college to study engineering. Yet despite the fact that Clemons had no criminal record, the chief prosecutor Nels Moss went in front of the jury and compared him to the serial killer Charles Manson. Moss had been instructed by the trial judge not to refer to Manson - he had played the same trick in the earlier trial of Marlin Gray - and for blatantly disregarding the order was later fined $500 for criminal contempt of court.
Two sets of people will be touched particularly intimately by the outcome of the hearing. The first is Clemons's family, particularly his mother Vera Thomas, who has visited him on death row every week almost without fail for the past 19 years.
"Every time I visit him I am more aware of the fact that they are trying to kill him. It's like we're living on borrowed time, as far as the system is concerned," she said.
The second set of people is the family of Julie and Robin Kerry. They prefer not to speak in public about what happened to their loved ones, and declined to participate with the Guardian.
The closest indication of the family's thinking is given in a powerful book written by the Kerry sisters' cousin, Jeanine Cummins, Thomas Cummins' sister. In A Rip In Heaven she writes movingly about the emotional rollercoaster that her family has been on over many years.
She says she has no compassion for Reggie Clemons or his co-defendants. "I don't care what happens to them. Julie and Robin aren't coming back."
Jeanine Cummins has strong words, too, about the death penalty. She writes that Julie and Robin were both adamantly opposed to the death sentence on humanitarian grounds. Cummins herself gives a different reason for wanting the death penalty to be abolished – because it further alienates and tortures families such as hers who have already suffered so much.
"Maybe the death penalty is wrong … because it rubs salt in the wounds of grief," she writes. "Because it trivialises the people who should matter most. Because it allows the murderers the opportunity to wear a badge they don't deserve – the badge of the victim."
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