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Roy Michael ROBERTS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Prison riot
Number of victims: 1
Date of murder: July 3, 1983
Date of arrest: Same day
Date of birth: December 18, 1952
Victim profile: Thomas Jackson (Correctional Officer)
Method of murder: Stabbing with knife
Location: Randolph County, Missouri, USA
Status: Executed by lethal injection in Missouri on March 10, 1999
 
 
 
 
 
 

clemency petition

 
 
 
 
 
 

State of Missouri v. Roy Roberts

709 S.W. 2d 857 (Mo. banc 1986)

Roy Michael Roberts was executed on March 10, 1999

Case Facts:

On July 3, 1983 at approximately 9:45 p.m. Correctional Officer Thomas Jackson, assigned to the Moberly Correctional Center, entered the B wing of Housing Unit 2 in order to remove an unruly inmate named Jimmy Jenkins.

Jenkins refused to come out of the area upon Officer Jackson's order. Officer Jackson went to the control center within the housing unit to obtain backup support.

About 30 inmates gathered in B wing as Officer Jackson and two other officers returned to the wing to escort Jenkins out. As the two officers escorted Jenkins, Officer Jackson was following about ten feet behind.

It was at this time that Roy Roberts challenged the rest of the inmates to keep the officers from taking Jenkins from B wing. About 20 to 30 inmates, including Roberts, rushed the officers. The two officers and Jenkins made it safely to the rotunda area of the control center where four or five other officers awaited. Some of the inmates also made it into the rotunda while a group of about ten inmates surrounded Officer Jackson who was still in B wing.

As Officer Jackson attempted to make it out the door and back to the control center, Roberts grabbed him by the head and hair and pinned him against the door casing.

Another inmate, Robert Driscoll, stabbed Officer Jackson three times in the chest, twice penetrating his heart. As officers on the other side of the door attempted to pull Officer Jackson to safety Roberts struck the officers, grabbed Officer Jackson and pulled him back into the wing where he was stabbed in the abdomen by inmate Rodney Carr. The officers were then able to pull Officer Jackson into the rotunda of control center area. Officer Jackson died from the stab wounds inflicted by the inmates.

Legal Chronology

1970
10/16 -- Roberts was arrested for Tampering in St. Louis City. He was fined and placed on probation.
12/18 -- Roberts was arrested for Stealing Over Fifty Dollars. He was placed on probation, but that period of supervision was later revoked and Roberts was sentenced to 60 days in the St. Louis Medium Security Institution.

1973
09/28 -- Roberts was arrested in St. Louis City on the charge of Possession of a Controlled Substance and was sentenced to six months in the St. Louis Medium Security Institution.

1979
08/14 -- Roberts was sentenced to 12 and 18 years on two charges of Robbery First Degree and two years on a charge of Stealing Over $1 50 by Deceit in the City of St. Louis to run concurrently.

1983
7/3-Correctional Officer Thomas Jackson is killed by inmates at the Moberly Correctional Center in Moberly, Missouri.

1984
1/30-Roberts is charged by information with capital murder in Randolph County.

1985
2/1-After a three day trial in Marion County on a change of venue from Randolph County, a jury finds Roberts guilty of Capital Murder and recommends a sentence of death.
3/15-A motion for a new trial is denied and Roberts is sentenced to death. Roberts files a notice of appeal.

1986
5/7-The Missouri Supreme Court affirms Roberts' conviction and sentence.
11/3-The United States Supreme Court denies certiorari review.
11/24-Roberts files a motion for post conviction relief in the Circuit Court.

1988
1/13-The Circuit Court denies post conception relief.
1/14-Roberts files a notice of appeal.
7/5-Roberts case is remanded to the Circuit Court for a new evidentiary hearing.
10/21-The Circuit Court denies post conviction relief.
11/1-Roberts files a notice of appeal.

1989
8/1-The Missouri Supreme Court affirms the denial of relief.

1990
3/19-The United States Supreme Court denies review.
3/29-Roberts files a petition for writ of habeas corpus in the United States District Court for the Eastern District of Missouri.

1995
8/3-The District court denies the petition for writ of habeas corpus.

1996
9/27-The District Court denies the Motion to Reconsider.
10/25-Roberts appeals the denial of habeas relief.

1998
3/3-The United States Court of Appeals for the Eighth Circuit affirms the denial of relief.

1999
1/11-The United States Supreme Court declines the review.
2/4-The Missouri Supreme Court sets March 1O, 1999 as Roberts' execution date.

 
 


 
 
 
Name/DOC # Roy Roberts
Address Moberly Training Center for Men
Date of Birth  
Race White
Date of Crime July 3, 1983
Age Time of Crime  
Date Sentenced  
Victims Thomas Glen Jackson
Race of Victims White
Relationship to Defendant Prisoner/guard
Facts Alleged by State Holding prison guard while he was stabbed to death
County of Trial  
Trial Judge  
Trial Attorney Tom Marshall
Prosecutors Tim Finnical
Trial By Jury
Race of Jurors  
Convicted of Capital murder
Confession No
Accomplice Testimony No:

Rodney Carr, stabber, got life

Robert Driscoll-recently retried and got death penalty
Eyewitness Testimony Yes:

3 guards and 1 prisoner: all failed initially to identify Roberts, a 300+ pound man

Guard Halley claimed in trial testimony that he just forgot to mention him
Forensic Testimony Blood on other inmates' clothes, not known if tested; Nothing on Roberts's clothes (they were not saved, tested, or offered as evidence)
Jailhouse Snitch No
Defendant Testimony  
Principal Exculpatory Evidence No bloody clothes.

No physical evidence tying him to crime.

One guard testified that he fought with Roberts elsewhere during riot.

Roberts took polygraph test Feb. 19, 1999 - results showed "no deception" on direct questions about murder

Sentencing Authority Jury
Statutory Aggravating Factor Previous arrest for robbery of restaurant; did 2 years before that
Non-Statutory Aggravating Factor  
Mitigating Factors  
Evidence of Mental Illness Retardation and or Neurological Damage No
Criminal History Crime for which he was in prison: robbing a restaurant

Carl Harris confessed to that crime in February, 1999 (St. Louis Post-Dispatch-February 21, 1999, Bill McClellan, reporter)

Appellate History Direct appeal denied State v. Roberts, 709 S.W. 2d 857 (Mo.1986).

His writ of certiorari was denied in Roberts v. Missouri, 479 U.S. 946 (1986).

Again in 1989 his writ of certiorari was denied by the court en banc, 494 U.S. 1039 (1990).

The U.S. Supreme Ct. denied his final petition for certiorari on Jan. 11, 1999. Roberts v. Bowersox, 119 S. Ct. 808 (1999).

The U.S. Supreme Ct. denied his final petition and appeal March 9, 1999, hours before the execution.

Roberts v. Bowersox, 119 S. Ct. 1160 (1999)

Ineffective Assistance? Yes:

Lawyer failed to cross examine 3 of the 4 eyewitnesses about discrepancies in testimony

Police Misconduct?  
Prosecutorial Misconduct?  
Appellate Counsel Bruce Livingston
 

Roy Michael ROBERTS

Allegation

On March 10, 1999, the State of Missouri, with the acquiescence of the federal government of the United States, executed Roy Michael Roberts. The state and federal governments failed to ensure Roberts's right to a fair trial. The unfair trial resulted in Roberts's execution.

Crime

Thomas Jackson, a guard at the Moberly Training Center for men, was stabbed to death during a prison riot on July 3, 1983. Roy Roberts was accused of holding Jackson, while other inmates stabbed him. He was tried and convicted of capital murder.

Salient Issues

  • No physical evidence linked Roberts to the killing.
     

  • Many inmates testified at Roberts's trial that he was elsewhere during the riot and did not take part in the killing.
     

  • The four eyewitnesses who testified against Roberts in the guilt phase of his trial did not identify Roberts, a large man who weighed over 300 pounds, in their initial statements.
     

  • All of the surviving guards who could identify who stabbed Jackson named another man as the killer. That man was tried and received a life sentence.
     

  • At trial, Roberts's lawyer failed to cross-examine three of the four eyewitnesses for the prosecution about their initial failure to identify Roberts.
     

  • None of the witnesses or the prosecution claimed Roberts had a weapon or that he had stabbed the victim.
     

  • Although the victim was covered in blood after he was stabbed in the eye, the heart, and the abdomen, Roberts's clothes had no blood on them.
     

  • A 17-page summary report by the investigator for the Department of Corrections released two weeks after the riot did not mention Roberts as a suspect and indicated there was not likely to be other identification of prisoner involvement.
     

  • Two days after this report, Officer Halley implicated Roberts in the murder despite no mention of him in his initial report.
     

  • An inmate who testified against Roberts recanted his testimony and stated that he had lied to get parole from the State of Missouri.
     

  • Roberts passed a polygraph test in which he attested to his innocence just weeks before his execution.

Trial

Roy Roberts was convicted of capital murder for allegedly holding down a prison guard while other inmates stabbed him to death. No physical evidence ever tied Roberts to the crime. Although it was a bloody murder, the clothes Roberts was wearing on the day had no blood on them. Immediately after the riot, prison officials did a thorough search and confiscated all bloodied clothes from inmates. Roberts's clothes were not confiscated because they were not bloody.

Roberts was convicted based on what has been called "evolving testimony," that is testimony that evolves over time to fit the facts of the crime. No one implicated Roberts in the murder in the two weeks following it. None of the eyewitnesses mentioned Roberts as being anywhere near the victim, much less holding him down, as was later alleged in testimony, despite the fact that Roberts, a large man weighing over 300 pounds, stood out in a crowd.

Two weeks after the murder, the Department of Corrections submitted a 17-page internal investigative report. It failed to identify Roberts as a participant in the murder. It confirmed that no one knew who, if anyone, had held down the victim. Nonetheless, three guards later testified that Roberts held down the victim. All of these guards knew Roberts prior to the murder and yet failed to identify him as a participant in the murder immediately following it. One of these officers was hypnotized to bolster his memory, and still did not identify Roberts. Roberts's lawyer cross-examined only one of the eyewitnesses about inconsistencies between his initial statements and his trial testimony. This eyewitness maintained that he had simply forgotten to report seeing Roberts holding Jackson. Roberts's attorney never cross-examined the other three.

Appeals

Roberts's appeals in the state courts were denied. In 1986, his direct appeal and his federal writ of certiorari were denied. Again in 1989, his writ of certiorari was denied by the court en banc. The U.S. Supreme Court denied his final petition for certiorari on Jan 11, 1999. Shortly before his execution, his attorneys filed a writ in the Missouri Supreme Court claiming that Roberts was innocent and that the execution of an innocent man violated due process. This petition was denied and an appeal was made to the U.S. Supreme Court, which was denied hours before his execution.

Conclusion

Roy Michael Roberts was executed despite compelling evidence of his innocence. There was no evidence that Roberts stabbed the victim. There was very little evidence that he participated in the murder. There was substantial evidence of his innocence. In fact, there is some evidence that he was innocent of the crime that put him in prison in the first place. Roberts's court-appointed lawyers failed to challenge the little evidence that there was against Roberts, an omission that rendered his assistance to Roberts ineffective and Roberts's trial unfair. Nonetheless, Roberts was executed.


Roy ROBERTS

62 year old Tom Jackson was a guard at the state prison in Marion Co. Missouri when he was attacked by Roy Roberts, Rodney Carr and Robert Driscoll on 7/3/83. 

Roberts was convicted of helping to kill prison guard Tom Jackson during a riot at the medium-security state prison in Moberly in July 1983.

Four witnesses testified at his trial that he held Jackson while two other inmates plunged makeshift knives into his eyes and repeatedly into his chest and stomach. 

Denver Halley, a captain at the prison at the time and the main person who indentified Roberts, said Roberts was the inmate who held Jackson while 2 others stabbed him. 

"I have no doubt in my mind," Halley said Tuesday. "I knew Roberts and I was close enough to blow in his ear. I was no more than 2 feet from him while they were stabbing Tom and I was trying to get to him to pull them off." 

He said he didn't know the inmate with the knife. But Roberts, who weighed more than 300 pounds, had grabbed Jackson from behind, slipped his arms under Jackson's armpits and pulled his shoulders back to expose his torso. 

"Roberts stands out like a red rose in the Sahara Desert," Halley said. "There is no way I would forget something like that." 

He said Roberts avoided getting blood on his clothing because he was behind Jackson during the attack. 

Halley, now 76 and retired in Macon, Mo., said he had no reason to implicate Roberts unfairly.  "I know they are saying that I picked him out from a whole wing of prisoners to say he did it," Halley said. "That's a crock." 

The attack occurred July 3, 1983, when Halley led a group of 6 guards into a common area to remove an unruly prisoner, one of several who had become drunk on homemade alcohol. 

As the guards approached, about 3 dozen prisoners mobbed them, Halley recalled. Several guards, including Halley, were injured.  Roberts, who was in prison on an armed robbery conviction, admitted to punching a guard during the melee. But he denied any role in Jackson's death. 

The inmates who stabbed Jackson were later identified as Rodney Carr and Robert Driscoll. But Roberts was the only one who stayed on death row.

Driscoll was convicted and sentenced to death. But the conviction was reversed in 1995 by a federal appeals court because of a prosecutor's error. He will be retried in November.  The jury that convicted Carr of murder deadlocked on punishment, so the judge's only option at the time was to sentence him to life in prison.

  


 

A guardís belated "recollection" led to the execution of Roy Michael Roberts

Roy Michael Roberts, a 46-year-old laborer from south St. Louis, was executed at Missouriís Potosi Correctional Center at 12:07 a.m. on March 10, 1999, for the murder of a prison guard 16 years earlier ó a crime Roberts insisted he did not commit. His last words were, "Youíre killing an innocent man."

Perverse juxtaposition

In the weeks preceding Robertsís execution, Missouri Governor Mel Carnahan had been the focus of an intense controversy because, in response to a personal plea from Pope John Paul II, he had granted clemency to Darrell Mease, a confessed triple murderer. Mease had been scheduled to die by lethal injection during a January papal visit to St. Louis.

The Reverend Larry Rice, founder of the New Life Evangelic Center in St. Louis and one of Missouriís leading death penalty abolitionists, contends the Mease clemency thrust the politically ambitious Carnahan into a defensive posture that probably sealed Roy Robertsís fate even before his clemency petition landed on the governorís desk. (After the execution, Rice suggested a campaign slogan for Carnahan, who had recently announced his candidacy for the U.S. Senate in 2000: "Iíll kill for this job.")

The Mease-Roberts life-death juxtaposition was perverse: Due to the coincidental timing of John Paulís Missouri trip, a killer whose multiple victims included a paraplegic, is alive. Yet a man who had unwaveringly professed innocence, who had passed a lie-detector test, who had earned two college degrees in prison, who had been condemned on the testimony of dubious witnesses ó prison guards who were contradicted by a fellow guard and a parade of defense witnesses ó is dead.

The crime

The crime for which Roberts died was the 1983 murder of a guard at a medium security prison in Moberly, Missouri, where Roberts was serving the final months of a sentence for a 1978 armed robbery. The victim, 62-year-old Thomas G. Jackson, Jr, was stabbed to death during a melee involving drunken prisoners.

During the initial investigation, which included searches of cells for evidence and interviews with every guard and prisoner in any proximity to the killing, no evidence was found that in any way appeared to implicate Roberts. Not a single witness, guard or prisoner, ascribed any role whatsoever to Roberts.

Blood-stained clothing and shanks were seized from two other prisoners, Rodney Carr and Robert Driscoll, who wound up as Robertsís co-defendants, but Roberts was not identified as a participant until two weeks after the fact. The belated allegation against Roberts came from Denver Hawley, a guard Roberts claimed bore him grudge stemming from his refusal to work in the prison laundry. Hawley denied any such grudge, but somehow never could explain why, in two previous reports on the riot, he had neglected to mention Roberts.

The trial

At trial, Hawleyís testimony was corroborated by two other guards, both of whom also initially had not implicated Roberts. However, a fourth guard testified that Roberts was at the other end of the tier when Jackson was murdered; thus, he could not have been guilty. A prisoner who corroborated Hawley at trial subsequently recanted, saying he had been coerced by prison officials to falsely implicate Roberts.

Although Robertsís co-defendants did not testify at his trial (they were awaiting trial themselves at the time) both later said Roberts was not involved. One co-defendant, Rodney Carr, the only one, ironically, against whom prosecutors had a solid case, received only a life sentence. The other, Robert Driscoll, was sentenced to death, but won a new trial in a federal habeas corpus proceeding after showing that Dr. Kwei Lee Su, chief forensic serologist for the Missouri State Police, withheld evidence that blood on a shank found in his cell could not have been Jacksonís.

Driscoll was again convicted and again sentenced to death for the crime in December of 1999, but that conviction was overturned by the Missouri Supreme Court in September of 2001. By then Driscoll was 60 and already serving life on other charges, and he was not retried.

Polygraph test

On February 19, 1999, against his lawyerís advice, Roy Roberts took a polygraph examination administered by a recently retired Kansas City Police Department polygraph examiner. Asked whether he had been involved in the slaying of Thomas Jackson, Roberts answered he had not, truthfully in the examinerís opinion.

Despite all the doubts about Robertsís guilt, Carnahan summarily denied his clemency petition.

In addition to the questions about Robertsís involvement in the Jackson slaying, there is another perplexing aspect of the case ó the very real possibility that at the time of the Jackson murder Roberts was in prison for a crime he did not commit. Another man, Carl Harris, told the St. Louis Post-Dispatch that he committed the 1978 armed robbery for which Roberts was doing time. (Other than the armed robbery and the Jackson murder, Robertsís only other conviction had been for the theft of a radio in 1977.)

Missouri authorities contended that Harrisís confession lacked credibility because it was not made until 21 years after the crime, long after the statute of limitations had run on the armed robbery and because Harris and Roberts had been roommates in 1978. Since Harris could not be prosecuted, the authorities contended, he might have been lying to help his former roommate. But the equally plausible theory is that Harris is telling the truth.

The robber wore a mask, and the victims identified Roberts by his stature and voice. Harris and Roberts apparently looked and sounded a lot alike in those days. The victims easily might have mistaken one for the other. Since there was no physical evidence linking Roberts to the crime, that makes Roberts's guilt any more likely than Harris's.

In any event, there was nothing in the Jackson murder case to make Roberts's guilt appear more likely than his innocence. Rather, it seems to be the other way around.

The foregoing summary was prepared by Center on Wrongful Convictions Executive Director Rob Warden. The summary may be reprinted, quoted, or posted on other web sites with appropriate attribution.

Case data:

Jurisdiction: Marion County, Missouri
Date of birth: NA
Date of crime: July 3, 1983
Age at time of crime: 30
Date of arrest: NA
Gender: Male
Race: Caucasian
Trial counsel: Tom Marshall (court-appointed)
Convicted of: Capital murder (prison guard)
Prior adult felony conviction record: Armed robbery (of which Roberts may have been innocent) 1978; theft, 1977
Trial judge: Ronald R. McKenzie
Key Prosecutor(s):
No. of victims: 1
Age of victim: 62
Gender of victim: Male
Race of victim: Caucasian
Relationship of victim to defendant: Prison guard where Roberts was incarcerated
Evidence used to obtain conviction: Testimony of prison guard, who belatedly identified Roberts, and informant testimony
Major issues on appeal: Accomplice liability, sufficiency of the evidence
Evidence suggesting innocence: Statement of co-defendant that Roberts was not involved.
Date of execution: March 10, 1999
Time lapse crime to execution: 5,936 days
Final appellate counsel(s): Bruce D. Livingston, Moscow, Idaho, and Leonard J. Frankel, Clayton, Missouri

Center on Wrongful Convictions

 
 


 

Roy Michael Roberts - 99-03-10, Missouri

Kansas City Star and Rick Halperin:

Roy Michael Roberts, convicted of killing a prison guard in 1983, was executed early today.

Roberts was pronounced dead at 12:07 a.m., 2 minutes after the state administered the 1st of 3 lethal doses at the state penitentiary in Potosi.

Roberts' last words were, in part, "You're killing an innocent man."

Gov. Mel Carnahan turned down his appeal for a last-minute reprieve about 10 p.m. Tuesday.

Death penalty opponents were angry, saying questions about Roberts' guilt warranted at least a delay. They said the criticism Carnahan received in January for commuting a death sentence at the pope's request made it difficult for him to consider Roberts' appeal on its merits.

"Roy Roberts is as likely to be innocent as he is guilty," Tom Block, a death penalty activist in St. Louis, said before the execution. "But Carnahan will have pressure not to commute his sentence -- from political opponents and corrections officers."

Carnahan spokesman Chris Sifford said the governor was not under pressure to carry out Roberts' death sentence. Carnahan denied the clemency petition because he did not find sufficient evidence to overturn the jury's verdict, Sifford said.

He said the criticism Carnahan received after commuting the sentence of convicted killer Darrell Mease in January was not a factor.

"That's over and done with," Sifford said Tuesday afternoon. "He (Carnahan) hasn't had a 2nd thought about the Mease case, and it has no bearing on this one."

Carnahan unexpectedly commuted Mease's death sentence to life in prison after Pope John Paul II pleaded for Mease's life during his visit to St. Louis. Carnahan said at the time that his decision was in response to the pope's simple plea for mercy and did not signal a change in policy.

The Vatican wrote a letter to Carnahan in the latest case, asking that the governor spare Roberts' life.

Missouri Republicans criticized the decision in the Mease case, saying that Carnahan acted on a whim to spare the life of a man who admitted he shot three persons from a hunting blind. They hinted that they would use the case against Carnahan next year in his campaign for U.S. Senate.

Death penalty opponents said the case showed the arbitrary nature of Missouri executions. Block said executions are scheduled seemingly at random among inmates who have exhausted their appeals.

Mease's execution originally was scheduled for January, but was delayed, apparently because it coincided with Pope John Paul II's visit.

"The politics of these executions stinks," Block said.

Leonard Frankel, a Clayton, Mo., attorney who has handled Roberts' appeals for 9 years, said he thought Roberts would have had a stronger case for clemency if Carnahan had not taken so much criticism on the Mease case.

In his petition to the governor, Frankel quoted Republican governors who have said that executions should be halted if there is any reason to suspect that the condemned man might be innocent.

Roberts was convicted of helping to kill prison guard Tom Jackson during a riot at the medium-security state prison in Moberly in July 1983. 4 witnesses testified at his trial that he held Jackson while 2 other inmates plunged makeshift knives into his eyes and repeatedly into his chest and stomach.

But the initial investigation did not name Roberts as one of the perpetrators. The internal report by the Corrections Department concluded that the killers might never be known.

Frankel said no blood was found on Roberts after the attack, despite the severity of Jackson's wounds.

"4 witnesses said after the fact that Roberts did it," Frankel said. "I think a guard was killed and killed horribly and they wanted someone to pay a penalty. I'm not sure they cared who paid it as long as someone did."

But Denver Halley, a captain at the prison at the time and the main person who fingered Roberts, said he always identified Roberts as the inmate who held Jackson while 2 others stabbed him.

"I have no doubt in my mind," Halley said Tuesday. "I knew Roberts and I was close enough to blow in his ear. I was no more than 2 feet from him while they were stabbing Tom and I was trying to get to him to pull them off."

He said he didn't know the inmate with the knife. But Roberts, who weighed more than 300 pounds, had grabbed Jackson from behind, slipped his arms under Jackson's armpits and pulled his shoulders back to expose his torso.

"Roberts stands out like a red rose in the Sahara Desert," Halley said. "There is no way I would forget something like that."

He said Roberts avoided getting blood on his clothing because he was behind Jackson during the attack.

Halley, now 76 and retired in Macon, Mo., said he had no reason to implicate Roberts unfairly.

"I know they are saying that I picked him out from a whole wing of prisoners to say he did it," Halley said. "That's a crock."

The attack occurred July 3, 1983, when Halley led a group of 6 guards into a common area to remove an unruly prisoner, one of several who had become drunk on homemade alcohol.

As the guards approached, about 3 dozen prisoners mobbed them, Halley recalled. Several guards, including Halley, were injured.

Roberts, who was in prison on an armed robbery conviction, admitted to punching a guard during the melee. But he denied any role in Jackson's death.

The inmates who stabbed Jackson were later identified as Rodney Carr and Robert Driscoll. But Roberts was the only one who stayed on death row.

Driscoll was convicted and sentenced to death. But the conviction was reversed in 1995 by a federal appeals court because of a prosecutor's error. He will be retried in November.

The jury that convicted Carr of murder deadlocked on punishment, so the judge's only option at the time was to sentence him to life in prison.

Frankel said that was just one more example of the unfairness of Roberts' execution.

"That kind of discrepancy shows how arbitrary you can get," Frankel said. "It's a sad reading of the Constitution, but it's the reading the courts have given it."

Roberts becomes the 3rd condemned prisoner to be put to death this year in Missouri, and the 35th overall since the state resumed executions in 1989.

  


 

Clemency Application of Roy Michael Roberts

In the Offices of the Governor and the Missouri Board of Pardons and Parole

Roy Michael Roberts, Applicant, v. State of Missouri, Respondent.

Application of Roy Michael Roberts to Governor Mel Carnahan for Executive Clemency

Innocent of the crime for which he was convicted and sentenced to death, applicant Roy Michael Roberts applies to Missouri Governor Mel Carnahan for an order granting Roberts executive clemency, or, alternatively, either commuting his death sentence to life without parole, or staying the execution and convening a board of inquiry.

Executive clemency exists precisely for cases like this.  Governors who have previously granted clemency to inmates with claims of innocence did so based on doubt about guilt.  Concern about the horrible possibility that their state might execute an innocent man forced each of these Governors to the same conclusion: mercy must be shown and clemency granted if there is any doubt as to guilt.

"While there is guilt for Ronald Monroe, in an execution in this country the test ought not be reasonable doubt; the test ought to be is there any doubt." - Louisiana Governor Buddy Roemer, quoted in, J. Wardlaw & J. Hodge, "Execution Halted by Roemer",  New Orleans Times-Picayune, Aug. 17, 1989.

"I cannot in good conscience erase the presence of a reasonable doubt and fail to employ the powers vested in me as governor to intervene." - Virginia Governor L. Douglas Wilder, quoted in The Washington Post, Jan. 24, 1992, Sec. D1 (grant of clemency to Herman R. Bassette Jr.).

"The first question I ask in every case is whether there is any doubt about the individual's guilt or innocence.  This is the first case since I have been the governor when the answer to that question was 'yes'....  I take this action so that all Texans can continue to trust the integrity and fairness of our criminal justice system."- Texas Governor George W. Bush, Dallas Morning News, Saturday, June 27, 1998, Editorial, Sec. 24A, story Sec. 12A.  (granting clemency to Henry Lee Lucas).

"There was more than sufficient evidence to show he was guilty, but there were some questions as far as I was concerned.  I was able to get some information that I know the judges and jurors did not necessarily receive.  Some of the evidence came in after the trial." - Virginia Governor George F. Allen, quoted in, The New York Times, Nov. 10, 1996 (commutation of the death sentence of Joseph Payne).

"My decision finally was reached by some slight tinge of doubt about both the commission of the crime and the location of the crime....  I'd have to say in the main that I lean toward the prosecution side.  However, as I mentioned, if there's the slightest doubt, I'm reluctant to have a man executed." - Idaho Governor Phil Batt, quoted in, M. Trillhaase, "Batt Spares Paradis' Life," The Idaho Statesman, May 25, 1996, p. 1A.

A fair and reasoned examination of the facts of this case must create not just any doubt, but reasonable doubt as to Roberts' guilt.  We implore Governor Carnahan to have the courage to exercise his clemency powers in this difficult and troubling case, lest the State of Missouri suffer the shame and infamy of executing an innocent man.

INTRODUCTION

Roy Roberts was convicted and sentenced to death for his alleged participation in the stabbing death of a prison guard, Thomas Jackson, during a July 3, 1983 riot in the state prison in Moberly, Missouri, the Moberly Training Center for Men.  Roberts was never accused of stabbing Jackson.  Roberts was accused and convicted based on testimony that identified Roberts as the person who restrained Jackson during the riot while other inmates stabbed and murdered Jackson.  The murder occurred in the midst of the bedlam and confusion caused by over thirty rioting inmates.  Roy Roberts has always maintained his innocence.

All of the surviving guards, that could identify who stabbed Jackson, identified Rodney Carr as the stabber.  Carr was convicted of capital murder but received a sentence of life imprisonment, rather than death.  Another inmate, Robert Driscoll, was also convicted and sentenced to death for stabbing Jackson, but Driscoll's conviction was reversed in 1995 after it was discovered that the prosecution had misled the jury into believing that the dead guard's blood was on Driscoll's knife, when in fact no such blood was present.  See Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995). 

Driscoll has yet to be retried for the crime.  Thus, Roberts is the only person under sentence of death for the crime, even though he is the least culpable, even under the State's version of the evidence.  This disproportionality pales in comparison, however, to that which arises if, as we contend, Roberts is indeed innocent of the crime.

Roberts' claim of innocence is supported by three main points.  First, the initial statements of all the eyewitnesses against Roberts at trial failed to describe or mention Roberts  as being near Officer Jackson, much less holding Jackson while he was stabbed.  The failure of the eyewitnesses to identify Roberts initially raises grave doubts about their later testimony against him.  Roberts, a 300 pound behemoth, should have been impossible to miss while allegedly restraining Jackson in a headlock and crushing him against a wall and door frame as Jackson was repeatedly stabbed.  

Despite the glaring omission of any identification of Roberts by each of the eyewitnesses against him in their initial statements, Roberts' counsel failed to cross examine all but one of those eyewitnesses on that omission at trial.  The negligence of appointed counsel thus precluded the jury from learning that the eyewitness identifications of Roberts, the only evidence against him, were thoroughly suspect.

Second, no physical evidence ties Roberts to the bloody scene of Jackson's death, where Roberts' allegedly restrained Jackson in a headlock while he was stabbed in the eye, heart and abdomen.  Though the guards were on the lookout for bloody clothes, and indeed confiscated such clothes from Robert Driscoll, Roberts' clothes were scrutinized after the riot, but were not confiscated because they were not bloody.

Third, on February 19, 1999, to prove his innocence, Roy Roberts took a polygraph (lie detector) test, administered by a well-respected, retired Kansas City police officer/polygrapher.  Despite being under the stress of a warrant for execution, Roberts passed the polygraph.  His test results showed "no deception" in his answers denying involvement in the murder, including specific denials that he was holding the victim during the stabbings.

All attempts at relief in the courts have failed.  An appeal for clemency to Governor Carnahan is Roberts' only hope.

DOUBTS ABOUT ROBERTS' GUILT AND THE POSSIBILITY THAT HE IS INNOCENT COMPEL THE EXERCISE OF THE GOVERNOR'S CLEMENCY POWERS TO PREVENT ROBERTS' EXECUTION.

A. THE "EYEWITNESS" IDENTIFICATIONS AT TRIAL ARE INHERENTLY UNRELIABLE AND SUSPECT.

At Roberts trial, four witnesses testified in the guilt phase that Roberts was holding Jackson when Jackson was stabbed.  Three witnesses were guards, Denver Halley, Robert Wilson and Wayne Hess, and one was an inmate, Joseph Vogelpohl.  At first blush, four eyewitnesses might seem like a strong case for guilt.  The facts are otherwise.

As set forth in greater detail below, each of these four witnesses gave initial statements shortly after the riot which omitted any mention or description of Roy Roberts.  The inability of anyone to identify Roberts as the inmate who restrained Jackson in the two weeks following the riot is particularly troubling, given Roberts' easily recognized size at the time of 300 pounds.   Further, and of great significance to the fairness of Roberts' trial, his appointed lawyer, Tom Marshall, failed to question these witnesses, save one, about their prior  inconsistent statements.  The jury was led to believe that the eyewitness identifications of Roberts were far more reliable and trustworthy than was in fact the case.

Before addressing the specifics of the eyewitnesses failure to describe or name Roberts initially in their individual statements, it is worthwhile to put the scope and extent of the murder investigation in perspective by examining the summary report by the Department of Corrections' internal affairs investigator, Mark Schreiber.  Two weeks after the riot, Schreiber submitted a 17 page internal investigation report of the murder.  That memo does not mention Roy Roberts. 

The report confirms that nobody knows who, if anyone, was holding Jackson while he was being stabbed.  The DOC's report on the riot, dated July 18, 1983, is telling in its omission of any mention of Roy Roberts, and in its suggestion that hypnosis be used to identify more suspects.  Schreiber's report concluded that additional participants might not ever be identified, because of difficulties in identifying any other assailants of Officer Jackson, other than, of course, those mentioned in the Supplemental Report, inmates Driscoll and Carr.  Schreiber's conclusion bears reprinting in its entirety here, as it underscores the completeness of the investigation to that point, makes the candid assessment that no further suspects were likely to be identified, and significantly undermines the credibility of the subsequent identification testimony against Roberts:

Conclusion

Every investigative effort has been and is being made to determine the identity of and to bring to justice the individual or individuals who are responsible for the death of CO/I Thomas Glen Jackson and the subsequent assaults upon other correctional officers at MTCM on July 3, 1983.  Due to the number of inmates who were intoxicated and who, to varying degrees participated in the riot, the full extent of the number and identity of those involved may never be known.  The greatest obstacle which has hampered ongoing investigation thus far has been the inability of potential eyewitnesses to remember anything as to the identity of the officers' assailants.  This is not to say that the officers have not honestly made such attempts.  The hard facts are that when one is fighting for life itself there is no time to sit down and take notes.

It was suggested by Sgt. L. Dale Belshe that perhaps it might be beneficial if the officers involved were to be placed under hypnosis if they are willing.  I feel that such an investigative procedure might be of benefit.  Sgt. Belshe has indicated that he is willing to make the arrangements.

A continued effort will be made to identify any individual who was involved in the acts of violence which took place on July 3, 1983.  The important factor in an investigation of this magnitude is not who or what agency receives the credit but that agencies working together as a single effective investigative unit do all that is possible within the realm of police science to solve the problem for the benefit of all concerned.

Memo to W. David Blackwell from Mark S. Schreiber, dated July 18, 1983, Re: Supplemental Investigation - MTCM Incident of July 3, 1983, at p. 17 (emphasis added).  Memo Attached as Exhibit A.

Roberts has never denied that he was involved in the riot and engaged in fisticuffs with prison personnel.  Officer Kroeckel testified that he and Roberts fought in a fist-fight in the control center, Trial Transcript ("TT") at 243-45.  This Roberts did, along with 20-40 other inmates, many of whom have presumably served their sentences and are now walking the streets of Missouri.  See TT at 240 (testimony of Officer Kroeckel that 20-30 inmates were fighting in the control center); id. at 317 (testimony of Officer Hess that 25-40 inmates involved); id. at 372 (testimony of Officer Humphrey that 30-35 inmates involved).

What Roberts did not do was hold Officer Jackson while he was being stabbed and thereby prevent Jackson's escape from whatever murderous inmate was stabbing him.  Many inmates testified that Roberts did not restrain Jackson.  They are not alone.  Officer Kroeckel acknowledged that Roberts fought with him, and agreed that he did not see Roberts holding Jackson.  TT 245.

The testimony of four people convicted Roy Roberts of the crime for which he is sentenced to die.  Examination of their initial statements and comparison to each person's trial testimony reveals how radically different the trial testimony is.  Clearly, the witnesses in this case got their story "straight" over time and aimed it directly at Roy Roberts.  Such "evolving" testimony is inherently suspect and raises serious doubts of Roberts' guilt.

Captain Denver Halley was the ranking officer during the riot.  He testified at trial that from a foot away through the glass window, TT 254, he saw Roberts hold Jackson "by the arm and also by the hair of the head and keeping him right up against the door casing."  TT 256.  Halley testified that "while Roberts was holding him, I would see Jackson jerking and blood getting all over him."  TT 257.  Halley further testified that when Halley attempted to rescue Jackson, Roberts let go of Jackson to hit Halley, and thereafter, Roberts re-took his hold on Jackson.  TT 257-58.  Excerpts of Halley's trial testimony are attached as Ex. B.

After the riot, Halley wrote a report that night.  TT 269; Transcript of Rule 27.26 Motion Hearing ("PCR TR") at 29. Excerpts of Halley's PCR TR testimony are attached as Ex. C. Halley's signed report, dated 3:17 a.m. on July 4, 1983, is attached as Ex. D ( originally marked as PCR TR Ex. 11).  At the time of the riot, Halley knew Roberts.  PCR TR 36, Ex. C.  Moreover, he later described Roberts as standing out "like a red rose in the Sahara desert."  Deposition of Denver Halley in the Robert Driscoll case at 9, excerpt attached as Ex. E.

Despite Roberts' great size and the specificity of later trial testimony, Halley failed to mention Roberts in his initial statement on July 4.  Ex. D.   Halley identified only a mob of inmates, no individuals, and stated that "they" were holding him.  Id.

They [Goodin and Kroeckel] arrived at the steps leading out of the wing with this inmate, and he went to hollering and [at] that time approximately 35 or maybe 40 inmates came running to us.  They grabbed Officer Tom Jackson first and had him up against the door, and approximately, I would say, 12 or 14 inmates were trying to come out into the Rotunda.  Officer Goodin, Officer Wilson, Lt. Kroeckel, and myself -- Captain Halley -- we went to fighting these inmates.  a number of them were armed with iron bars and knives.  I attempted to help Officer Jackson get away from the inmates.  They were holding him and during this procedure, I was knocked down twice, plus was hit in the arm with a pipe.  I heard Officer Jackson holler and I finally managed to drag him out.  He was bleeding profusely and I dragged Officer Jackson across the Rotunda and knew at that time that he was dying.

Ex. D, Statement of Denver Halley dated July 4, 1983 (emphasis added).

Sixteen days later and two days after DOC Internal Affairs investigator Mark Schreiber submitted his report, Ex. A, Halley submitted an investigation report identifying Roberts for the first time as "one of the inmates" holding Officer Jackson.  Ex. F, Halley statement dated July 20, 1983.

Two days after the DOC report acknowledged that no more inmates were likely to be identified, Halley selected the biggest and most noticeable inmate to have been in the riot and suddenly implicated him as one of the persons holding Roberts.  The evolution of Halley's testimony had begun. That evolution continued and culminated with Halley's trial testimony, in which he stated that Roberts, alone, was holding Jackson.

Correctional Officer Robert Wilson likewise testified at trial that Roy Roberts held Jackson around the neck, TT 296, and that Roberts was the one preventing Jackson from getting away.  TT 299 (Wilson trial excerpts attached as Ex. G).   Wilson's initial statements are far different:

Officer TG Jackson, KF Goodin & DL Kroeckel went in B wing and brought out a man who was intoxicated.

As they was bring the man out the door about 30 t 40 inmates busted out the wing door after us.  I grabbed one inmate by the head and was hitting him.  He came out with a knife and cut me on the left hand.  Then (S) went for officer T.G. Jackson.  At this time Officer Humphrey hit him with bat & (S) went down.

The other inmates drug back into the wing.

By then I was fighting with anoughter (sic) inmate & the other officers got the wing locked down.

Ex. H, Wilson Statement, dated 2:30 a.m on July 4, 1983.  Obviously, there is no mention of Roberts in this statement.  Nor is there any mention of Roberts in Wilson's next statement, which is much more complete and states in pertinent part:

As they were bringing the drunken inmate out of the wing approximately 35 inmates rushed us.  Inmate Rodney Carr # 38428 rushed out the door toward myself.  I grabbed inmate Carr around the neck from behind and started hitting him with my flashlight.  He pulled a shank and cut me across the left hand freeing himself from my grip.  Lunged forward approximately 3 feet sticking Officer Jackson in the chest area. 

At this time Officer Hess grabbed inmate Carr and they began to scuffle.  Carr got in behind Hess and stuck him in the right shoulder.  Officer Humphry hit inmate Carr behind the head with a ballbat knocking him to the floor.  Carr then dropped the shank as he fell.  At this time an unknown inmate hit me in the right shoulder knocking me to the floor.  as I was getting up I picked up the shank that Carr had dropped and stuck it in back of my belt.  Inmates began dragging Carr and other inmates back into the wing giving us enough time to get the wing doors shut and locked. 

Myself, Officer Kroeckel and Halley placed Officer Jackson onto a stretcher [illegible] to the prison hospital.  Officer Humphry Lt. Kroeckel and a inmate accompanied Officer Jackson to the hospital.  Capt. Halley and a new officer by the name of Dillon ran to the administration building to get shotguns and more help.  Myself, Officer Goodin and Officer Hess stayed back to hold down the house.  Inmates from all four wings were hollering, breaking glass and preparing to come into the Rotunda after us.  After approximately 10 minutes Capt. Halley, Officer Dillon and Lt. Arney returned with shotguns.  The order was given for the inmates to return to their cells.  Some of them did, most did not!  At this time Capt. Halley & Lt. Arney & myself began firing into the wings & the inmates ran for their cells.

Ex. I, Wilson statement, dated July 10, 1983.  More than two months later, Wilson's statement was virtually the same, still without any reference to Roberts.  Ex. J, Report of Officers Merritt and Ullery dated September 13, 1983 (previously identified as PCR TR Ex. 6).

Wilson admitted that he "knew" inmates Carr and Roberts.  Ex. K, Robert Wilson deposition in Robert Driscoll case at 5-6.  Yet despite this knowledge and Roberts' large size, Wilson named only Carr and failed to identify Roberts in either of Wilson's initial statements.

Wayne Hess, too, failed to identify Roberts in his initial statements.  He gave two  statements, one dated July 4, 1983, Ex. L, and another dated July 9, 1983.  Ex. M.  In the July 4 statement, Hess stated that "three or four inmates had ahold of his [Jackson'] head and tried to pull him back into the wing."  Ex. L, p. 3.  Hess was "right beside him," but Hess did not know any of those inmates.  Id.   Hess only remembered Carr and affirmatively stated that he did not remember any other inmates that were directly involved in the incident.  In the July 9 statement, Hess states that "some of the inmates had Jackson in a headlock."  Ex. M, p. 2.  He then went on to say that the next day he had been shown photos of inmates, "one I remember was Carr, I think Driscoll, Batey or something like that, and one other I don't remember.  I looked at one picture of Carr and I stated this was the man who done the stabbing."  Ex. M, p.3.

Hess' failure to identify Roberts in these statements is particularly significant, because Prosecutor Finnical admitted in the Rodney Carr trial that Hess was shown a photograph of Roy Roberts before Hess went to the line-up on July 4.  Ex. N, Hess testimony from trial of Rodney Carr. Thus, Hess failed to identify Roberts as an inmate who restrained Jackson in a statement made shortly after Hess was shown Roberts' picture on July 4, Ex. L, and again on July 9.  Ex. M. 

The prosecution attempted to hypnotize Hess to bolster his memory, Ex. O (PCR TR Ex. 3),  and still he did not identify Roberts.  Ex. O at 6, 12.  Hess could not identify Roberts in Hess' initial statements, notwithstanding that he admitted that he knew "Hog" Roberts as the largest man in the wing and knew him by that name.  Ex. P, Hess' 27.26 testimony at 16-18.

Nevertheless, Hess' testimony at trial was very specific, alleging that Roberts, a man he had "seen around" before and who weighed "about 300 pounds," had Jackson "in a headlock and Tom Jackson couldn't get away to defend himself."  TT 305.  Given these circumstances, Hess' trial identification of Roberts is particularly dubious.

Inmate Joseph Vogelpohl was the only other witness who identified Roberts in the guilt phase as the person who restrained Jackson while he was stabbed.  Vogelpohl, too, was unable to identify Roberts initially.  In Vogelpohl's initial statement on July 4, 1983, Ex. Q, he totally failed to mention Roy Roberts.  Despite his later claim to having witnessed Jackson's murder, all he said in his initial statement was that: he'd seen Robert Driscoll assemble a knife in his cell; then, while near the rotunda from five feet away he saw Driscoll "punch at" Officer Jackson; and finally, he'd returned to his cell, where Driscoll also returned and said to Vogelpohl that Officer Jackson "had got stuck."  Ex. Q. 

In his statement Vogelpohl announced that he was making a statement so that he wouldn't "take the rap" for the crime.  Id.  In his subsequent statement to Officers Merritt and Ullery on October 3, 1983, Vogelpohl stated that Driscoll and John Bolin were the inmates who stated that the inmates should stop the guards from taking Jimmy Jenkins out of the wing, and that Bolin said "let's rush them."  TT 341.  Vogelpohl also wrote a letter to a friend, Dewitt Burns, saying that he heard that Ed Ruegg, not Roberts, had held Jackson.  TT 335.

At trial, however, Vogelpohl's testimony turned on Roberts.  First, he stated that Roberts had been the person who suggested that the inmates should "rush" the guards.  TT 326-27.  Then he stated that Roberts had stopped Jackson at the wing door, TT 328, and that he had seen Driscoll stab Officer Jackson while Roberts held him.  TT 329.  Excerpts of Vogelpohl's testimony is attached as Ex. R.  Vogelpohl's evolving testimony should be seen for what it was, an attempt to evade "the rap" for being in a riot five feet from the murdered guard, and an attempt to curry favor to get paroled early.

Thus, by the time of trial, the State presented four witnesses in the guilt phase who gave relatively unambiguous, chilling testimony that placed Roberts at the scene as the one and only person restraining Jackson.  The dramatic change in the specificity of these witnesses from the time of the riot until trial, in which their stories coalesced and "matured" into adamant certainty that Roberts restrained Jackson and was the sole person to do so, by itself creates significant questions about Roberts' guilt.  The changes in testimony are too dramatic to be believed and seem to confirm the rumor that Prosecutor Finnical was out to get "three for one," no matter what the cost in terms of integrity or reliability.  The questions raised by the changes in testimony creates a reasonable inference that the State of Missouri may be intending to execute a man who may well be innocent.

B. NO PHYSICAL EVIDENCE CONNECTS ROY ROBERTS TO THE MURDER OF OFFICER JACKSON.

No physical evidence connects Roy Roberts to the murder of Officer Jackson.  It is uncontroverted that Roberts did not have a weapon.  Despite the extensive amount of blood spilled by Officer Jackson, there is no evidence of any blood on Roberts or his clothes.  It defies belief that Roberts could have restrained Jackson as described by the adverse eyewitnesses, and not gotten blood on himself.

Roberts was described as having Jackson around the neck, TT 296 (testimony of Wilson), in a headlock, TT 305 (testimony of Hess), and "by the arm and also by the hair of the head and keeping him right up against the door casing."  TT 256 (testimony of Halley).  The bleeding from Jackson was profuse.  Halley described it as "while Roberts was holding him, I would see Jackson jerking and blood getting all over him."  TT 257. 

The blood was "all over the front and side of Jackson's shirt" and was "very, very obvious."  TT 258.  Halley said that Jackson looked like a "butchered hog."  TT 281.  Jackson's shirt looked like "solid blood."  TT 375 (testimony of Officer Humphrey).  Given Roberts' supposed close contact with Jackson and the amount of spilled blood, Roberts should have been soaked with blood.

After prison guards quelled the riot, the inmates were locked into their cells.  TT 266 (Halley testimony).  Thereafter each room was searched, and the inmates were personally searched.  TT 267.  Robert Driscoll's clothes were collected from his room and analyzed because they appeared to be covered with blood.  See Driscoll v. Delo, 71 F.3d 701, 707 (8th Cir. 1995) (blood analysis conducted on the recovered knives, Officer Jackson's clothes, "and the clothes worn by various inmates, including Driscoll, on the night of the riot").  Notably, Roberts' clothes were not saved, tested or ever offered into evidence against him.

The fact that Roberts clothes were not tested or confiscated directly correlates to the absence of blood on them.  At the time of the riot, Willie Dennis was a major at the Moberly prison.  On February 20, 1999, Dennis spoke with Roberts' investigator, Richard S. Hays of the Federal Defenders of Eastern Washington and Idaho.  Major Dennis told Mr. Hays that he arrived at the prison within an hour of the death of Officer Jackson and relieved the guards that were involved in the initial disturbance. 

Major Dennis acknowledged that he supervised the removal and transfer of inmates from their cells in Wing B who were thought to have been  involved in the riot.  Major Dennis acknowledged that he supervised the removal of Roy Roberts from his cell, and that he saw no blood on Roberts.  Major Dennis further stated that he would have confiscated any article of clothing or other item for evidence, if blood was on it.  Affidavit of Richard S. Hays, attached as Ex. T.  Major Dennis' claim that he was looking for blood on clothes is corroborated by the record of confiscated clothes in this case.  See Driscoll v. Delo, 71 F.3d at 707.

The absence of blood on Roberts' clothes raises serious questions about his participation in the murder of Officer Jackson.  The likelihood that the witnesses are correct in their description of Roberts' alleged restraint of Jackson is highly improbable.

C. ROY ROBERTS PASSED A POLYGRAPH TEST THAT INDICATED "NO DECEPTION" WHEN HE DENIED INVOLVEMENT IN JACKSON'S MURDER AND DENIED RESTRAINING JACKSON WHILE JACKSON WAS BEING STABBED.

To prove his innocence, Roy Roberts insisted upon, took and passed a polygraph (or lie detector) test on February 19, 1999 at the Potosi Correctional Center while under a warrant of execution set for March 10, 1999.  Despite the stress involved in taking a test under those conditions, Roberts' test results were clear: "no deception" in his denial of involvement in Jackson's murder.

Donald I. Dunlap, A.C. P., administered the polygraph test.  Mr. Dunlap retired after thirty years with the Kansas City, Missouri Police Department.  Dunlap served as a polygrapher  for the last 24 years of his service with the Kansas City Police Department.  He spent nine years as a full-time polygrapher, followed by more than 15 years as Chief Polygraphist of the department.  Since Dunlap's retirement in 1985, he has worked in private practice, presently under the name of Don Dunlap & Associates.  He is a highly respected polygrapher who has continued to work for law enforcement, such as the Benton County Sheriff's Department, as well as the Missouri Public Defender's Office, and various private attorneys.  His resume is attached as Ex. U.

The polygraph report of the Roberts examination on February 19th is attached as Ex. V.  That report reaches the following conclusion:

It is the opinion of the polygraphist that deception was not indicated in this person's polygraph records when he answered the following questions as indicated:

1. When Jackson was being stabbed, were you holding him in any way?  Answer,  No.

2. When Jackson was being stabbed, were you holding him by the hair?  Answer, No.

3. Just before Jackson was stabbed, did you pin him against a door casing?  Answer, No.

4. While Jackson was being stabbed, did you have any physical contact with him?  Answer, No.

Ex. V, Letter Report of Don Dunlap & Associates to Bruce D. Livingston, dated February 20, 1999, Re: Roy Michael Roberts Polygraph Interview.

The U.S. Supreme Court recently addressed the admissibility of polygraph evidence in the military courts.  United States v. Scheffer, 118 S.Ct. 1261 (1998).  The Supreme Court recognized the trend toward admissibility of such evidence, 118 S.Ct. at 1265-66, though the Court declined to recognize a constitutional right to present polygraph evidence based on a lack of consensus within the lower courts on the reliability of polygraphs. Id.  In dissent, Justice Stevens compiled the evidence on the reliability of polygraphs:

There are a host of studies that place the reliability of polygraph tests at 85% to 90%.  While critics of the polygraph argue that accuracy is much lower, even the studies cited by the critics place polygraph accuracy at 70%.  Moreover, to the extent that the polygraph errs, studies have repeatedly shown that the polygraph is more likely to find innocent people guilty than vice versa.  Thus, exculpatory polygraphs -- like the one in this case -- are likely to be more reliable than inculpatory ones.

Scheffer, 118 S.Ct. at 1276 (Stevens, dissenting) (footnotes omitted) (emphasis added).  Like the  defendant in Scheffer, Roberts, too, passed the more reliable polygraph-- an exculpatory one.  See Scheffer, 118 S.Ct. at 1276 n.22 (compiling studies that show exculpatory polygraphs to be more reliable than inculpatory polygraphs).

The polygraph that Roberts passed was reliable not only because it was exculpatory, but also because the examination was administered by a respected, experienced, former member of law enforcement, Don Dunlap.  As the chief Polygraphist for the Kansas City Police Department for over 15 years, Dunlap's qualifications are impeccable.  As a former police officer, Dunlap is decidedly unlikely to be inclined to favor an accused guard-killer through questionable interpretations of the test results.  Dunlap's finding that Roberts passed an exculpatory polygraph test is powerful additional evidence that Roberts is innocent of the crime for which he has been sentenced to death.

Clemency proceedings have turned upon polygraph results previously.  Virginia Governor Douglas Wilder would have granted clemency to Roger Coleman in 1991, had Coleman passed a polygraph test.  J. Tucker, "May God Have Mercy: A True Story of Crime and Punishment," W.W. Norton & Co. (1997), at 280-81, 300-01.  When Coleman failed to pass the polygraph, Governor Wilder declined to intervene.  Id. at 312.  Coleman's polygraph was given under extreme circumstances, hours before his scheduled execution.  Id. at 305-14.  Though that test, which was inculpatory, suffered from more significant reliability concerns than Roberts' exculpatory polygraph, it provides precedent for considering polygraph results in making a clemency decision.

Given the greater reliability of Roberts' exculpatory polygraph, one must have serious doubts about his guilt.  Roberts' polygraph result strongly supports his claim of innocence and provides Governor Carnahan with yet another reason to intervene in this case.

CONCLUSION

In conclusion, Roberts implores Governor Carnahan to stop the execution scheduled for March 10, 1999.  Roy Roberts deserves clemency, and at least commutation or a board of inquiry.  The State of Missouri must not proceed with this execution.  The possibility that Roberts may be innocent is too real.  Allowing Missouri's machinery of death to continue to operate, wheeling an innocent man on a gurney to the execution chamber in Potosi, is too horrible to contemplate -- the ultimate miscarriage of justice.  This application for clemency raises  doubts about Roberts' guilt, significant doubts.  Those doubts cry out for Governor Carnahan's intervention and mercy.  Let not Missouri be the State that knowingly executes an innocent man.

We urgently and respectfully request that Governor Carnahan halt the execution of Roy Michael Roberts.

Federal Defenders of Eastern Idaho and Washington
Capital Habeas Unit

  


 


Roy Michael Roberts
 

 

 
 
 
 
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