David Leisure's Clemency Petition

Application for Executive Clemency

TO THE HONORABLE MEL CARNAHAN, GOVERNOR OF MISSOURI:

COMES NOW the applicant, David R. Leisure, by and through his attorneys, Joseph P. Teasdale and John William Simon, (1) and petitions the Governor for his order under Mo. Const. art. IV, ß 7, and Mo. Rev. Stat. ßß 217.800 & 552.070 (1994), commuting the applicant's sentence from death by lethal injection to life imprisonment without eligibility for parole, or, in the alternative, staying the execution presently scheduled for September 1, 1999, and appointing a board of inquiry under section 552.070, or, in the alternative, ordering a stay pending an independent examination of the applicant under Mo. Rev. Stat. ß 552.060 (1994).

David was the only person sentenced to death for allegedly participating the fatal car-bombing of James Michaels, Sr., in 1980. The grandson of the victim has written on behalf of that gentleman's survivors to urge clemency, because "[t]he Michaels family and the Leisure family have experienced enough grief for one lifetime," and "the execution of David would bring additional needless hardship, not only to his family but to my family as well." (2) Both of these families--and the Lebanese-American community from which they come--have suffered too much already. Members of each family were the victims of bombings that, according to the prosecution, were the work of members of the other family. It is the sincere desire of both families that the bloodshed will end; it is hard to see why the State of Missouri cannot oblige them.

David is a worthy object of mercy. He had an IQ in the low seventies at the time of his trial, and--according to Dr. Richard D. Wetzel--his mental functioning may be diminishing. (3) Counsel have provided the Director of the Department of Corrections sufficient information to cause her to certify David for a stay of execution and an independent determination whether he is competent to be executed. David grew up as one of eight people sharing two rooms.

David was not successfully toilet-trained until well into elementary school--where, as one would imagine, he did not fit in and did not succeed. He went to work in his father's junkyard instead of finishing elementary school. Throughout his early life, the social institutions we count on to intervene to protect and nurture the retarded did not function in his case. (4) Only after the bombing for which he was convicted and sentenced to death was his mental retardation diagnosed.

Several men appear to have participated in this bombing. Of them, three made deals with the state and federal governments to avoid prosecution altogether or to receive plea bargains to lesser charges. Only David and his elder cousins Paul and Anthony Leisure were tried for capital murder. The federal government ranked Paul Leisure as first in culpability, with Anthony as second and one of the informants as his "right hand man." It ranked David third.

Whereas three of the alleged participants made deals with the prosecution, Paul and Anthony Leisure were fortunate enough to obtain counsel who had the experience to conduct a capital case. Paul received a change of venue; both received life without parole instead of the death penalty.

David was represented by a collections attorney who used a law student as his conduit of information to and from David, and whose thinking he relied on for grand strategy. David's present counsel did not learn until February 1999 that this law student had been laboring under the adverse psychological effects of untreated chemical dependency. When they brought this fact to the attention of the federal courts, the representatives of the State of Missouri said David couldn't be killed quickly enough, that it didn't matter that his trial counsel's "brains" was a drug addict.  

During the penalty phase of David's trial, his counsel argued that "David will never get out." The prosecutor objected, saying "We don't know what the Governor's going to do with him." (5) The prosecutor told the jurors that they would not be making the final decision because the Governor of Missouri has the power to grant clemency. When the prosecutor lifted that load from the shoulders of the jurors, he placed it squarely on the Governor. No one can argue that the jury has made a final decision in this case, because the attorney for the State of Missouri told them that the final decision was not theirs but yours. No one should be heard to complain when you accept the burden that the People of the State of Missouri placed on you in conferring on you the power to grant pardons and commutations, especially when the prosecutor used it as a reason why the jurors should return a verdict of death.

Many of the doctrines, decisions, and statutory limitations on the federal courts' power to grant relief from the sentence of death in David's case are intended not to promote executions, but to preserve the states' role in the federal system--not to make the enforcement of the law harsher against the individual, but to keep the federal government from overwhelming the several states. Nothing in these doctrines, decisions, and statutory limitations--and no decision denying relief on the basis of them--has any negative implication concerning the authority of the Governor to grant clemency or concerning the appropriateness of doing so in any particular case.

To the contrary, in Herrera v. Collins, (6) the Supreme Court of the United States relied on the power of chief executives to exercise clemency as a reason why the federal courts should deny relief in certain situations. If this power is not used, the rights of our citizens are in jeopardy, because the federal courts are relying on chief executives to remedy wrongs and to mitigate harsh results from which judges do not feel they have the authority to provide relief.

When the federal courts go overboard in denying not only relief--but even consideration--in the face of meritorious constitutional claims, one must reflect that a chief executive takes an oath to preserve, protect, and defend the Constitution just as judges do. When, as here, the Governor is learned in the law, he has every right to enforce the Constitution if federal judges decline to do so. In the vast majority of instances in this case, they have declined to enforce the Constitution not because David has failed to state a claim on which relief could be granted, but because of some failure of previous counsel to raise a claim at another time and in another forum.

In addition, they have declined even to consider David's constitutional claims because of a statute that was not enacted until after he filed his petition. As counsel will document in the following discussion, (7) every other federal appellate court that hears habeas corpus appeals would have applied the pre-existing legal standard: only the United States Court of Appeals for the Eighth Circuit applies the appeal-limiting provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) retrospectively. David was never even allowed an federal appeal regarding his death sentence. From the reinstitution of the death penalty after 1976 until the adoption of AEDPA in 1996, every Missouri prisoner who has been executed was allowed such an appeal. David has been denied such an appeal on the basis of an isolated position that the Eighth Circuit has taken on the application of this new statute.

The commutation should be granted, or, in the alternative, the execution should be stayed and a board of inquiry appointed. Serious questions exist whether David is competent to be executed, and a stay would be indicated to resolve these questions alone. Most fundamentally, however, it is simply too harsh and too unfair to execute a retarded man for his alleged role in a crime when the men the prosecution considered more culpable are either serving life terms or other sentences or were never tried at all.

Statement of the Case

David Leisure was born in 1950, the third child of Pete and Jean Leisure. (Attachment D, ? 4.) His immediate family was poor; as a child, David lived in the same four room apartment with his parents, his elder brother, his two sisters, his aunt and uncle, and his two cousins Paul and Anthony. (Attachment D, ? 9.) David did not complete toilet-training until he was as old as eight. (Attachment D, ? 12.) David was thrown out or dropped out of school in the third grade, and went to work in his father's junkyard. (Attachment D, ? 16.) He began drinking at age eight to ten, and was involved in substance abuse by age thirteen. (Attachment D, ?? 25-26.)

David's mother died in 1957. (Attachment D, ? 7.) His elder brother Richard was fatally shot in a bar in 1963. (Attachment D, ? 19.) When David's father died in 1973, David looked up to his elder cousins Paul and Anthony as father-figures. (Attachment D, ? 10 & 23.) David continued to work at simple tasks in a junkyard under their domination. (Attachment D, ?? 21 & 24.)

On September 17, 1980, James A. (Jimmy) Michaels, Sr., was killed when a bomb exploded in his car while he was driving on Interstate 55 in the St. Louis, Missouri, area. Paul, Anthony, and David Leisure were charged with capital murder for the bombing; in federal court, these men and others were charged with violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). (8) Three of the admitted participants in the bombing became prosecution witnesses in exchange for plea bargains or placement in the Federal Witness Protection Program. These participants testified that the bombing of Mr. Michaels was the product of power struggles between two competing organized crime entities in St. Louis and specifically in Local 110 of the Laborers Union.

Whereas Paul and Anthony were represented by experienced criminal defense lawyers, and received sentences of life imprisonment without parole, David was represented by a lawyer with no previous homicide trial experience and with only three to five criminal jury trials under his belt. (9) Trial counsel delegated client contact and other critical tasks to a law student; by his own admission this law student was laboring under the effects of untreated chemical dependency. (Attachment F, ?? 11 & 15-16.) According to other witnesses, he was using cocaine and heroin at the time of David's trial. (Attachments G & H). On April 7, 1987, a jury found David guilty of the capital murder of Jimmy Michaels.

The penalty phase of David's trial was merely a half-day proceeding. During the penalty phase, the trial court admitted into evidence, over the objection of David's counsel, a photograph of the charred remains of George "Sonny" Faheen, who was killed on October 16, 1981, when an incendiary bomb burned up his parked car. This photograph depicts the aftermath of the Faheen car bombing and shows Faheen's corpse fused to the seat of his automobile. The only photographs introduced at the penalty phase were of the Faheen crime scene, even though David was not on trial for Faheen's death. The prosecutor's only penalty phase witness testified about the Faheen bombing, even though David was not on trial for, and had not been convicted of, that bombing. Without any explanation by the prosecutor of the Faheen photograph's probative value, the trial court overruled trial counsel's objection and admitted the Faheen photograph. The jury returned a punishment verdict of death.

Paul and Anthony Leisure were also convicted in separate trials for the capital murder of Jimmy Michaels, but neither was sentenced to death. Instead, each was sentenced to life imprisonment without possibility of parole for fifty years. (10) The Faheen photograph was not admitted during the trials of either Paul or Anthony Leisure.

The evidence at all of the trials showed that even if he were involved in the crime, David was the least culpable of those implicated. The evidence also established that David was mentally retarded, ill educated, and a substance abuser. Of all the alleged participants in the bombing, David sits alone on death row.

Both a direct appeal to the Supreme Court of Missouri and a state court post-conviction motion under Missouri Supreme Court Rule 29.15 were unsuccessful. (11) On direct appeal, two members of the Missouri Supreme Court (Judges Blackmar and Welliver) concluded that David's death sentence was unconstitutional based on the erroneous admission of the Faheen photograph. (12) The dissenting judges found the admission of the Faheen photograph unconstitutional, because it did not aid the jury in any way in reaching a decision and it served solely to prejudice David and to inflame the passions of the jury. (13) Characterizing David's penalty phase as a "legalized lynching," Judges Blackmar and Welliver would have remanded his case for a new sentencing hearing. (14)

In October 1992, David filed a pro se federal habeas corpus petition pursuant to 28 U.S.C. ß 2254 in the United States District Court for the Eastern District of Missouri. Counsel was appointed and, in August 1993, a First Amended Petition was filed, raising a number of constitutional claims. Three of those claims, which are discussed in detail in this application, are based on: (1) the admission of the Faheen photograph during the penalty phase of David's trial; (2) the disproportionality of David's death sentence compared to the life sentences received by his elder cousins who were more culpable than David according to the federal pre-sentence investigation report; and (3) ineffective assistance of counsel based on the cumulative effect of trial counsel's errors.

On January 13, 1998, the district court denied the First Amended Petition in all respects. Leisure v. Bowersox, 990 F. Supp. 769 (E.D. Mo. 1998). The district court also summarily denied David a certificate of appealability, even though he had not yet requested one, and even though the law requiring the issuance of a certificate of appealability had not been enacted until almost four years after David filed his federal habeas petition. (15)

David's appointed counsel subsequently filed a notice of appeal and an application for a certificate of probable cause or, in the alternative, for a certificate of appealability, with the United States Court of Appeals for the Eighth Circuit. On May 26, 1998, the court of appeals summarily denied David an appeal. The Eighth Circuit's order stated in its entirety:

The court, having reviewed the record in this case, denies the application for certificate of appealability. [Attachment I.]

The court of appeals also summarily denied David's timely petition for rehearing. Judge McMillian would have granted the suggestion for rehearing en banc. The Supreme Court of the United States denied certiorari on March 29, 1999. (16)

While David's certiorari petition was pending, counsel learned, in February 1999, of a good-faith basis for believing that a law student who had been trial counsel's conduit of information to and from David, and who had come up with the idea of abandoning David's alibi defense in favor of a diminished-capacity defense, had been on drugs at the time of David's trial. Immediately after learning of the denial of certiorari, David's counsel filed a motion for relief from judgment in the federal district court under Fed. R. Civ. P. 60(b)(6). They presented an affidavit from trial counsel setting forth his basis for believing that the law student, Gerald Wayne Bassett, had been on drugs. (Attachment J.) When the respondent expressed disbelief that trial counsel's observations meant Mr. Bassett had been on drugs, counsel obtained and filed declarations from women who knew Mr. Bassett at the time, and these declarations removed any ambiguity. (See Attachments G & H.) The district court denied relief, holding that the Rule 60(b)(6) motion was actually a second petition.

Counsel sought relief from the Eighth Circuit, and in reply to the respondent's denials that Mr. Bassett was on drugs, they obtained an affidavit from him that sets out the contours of his drug problem and its effect on his work for David. (Attachment F.) On August 24, 1999, the Eighth Circuit denied all relief, including a stay of execution to seek review of its decision by the Supreme Court.

Reasons for Exercising Clemency

David is mentally retarded.

1.From birth, David has been noticeably deficient in reasoning skills that we associate with coping with life in society and which we presume to exist in holding people accountable for their actions.

David Leisure was born about two months premature, into a poor family that did not generally receive medical care. (Attachment D, ?? 8, 9 & 10.) (17) David was not toilet-trained until he was as old as eight. (? 12.) Other children called him names reflecting the presence of feces on his person. (? 13.) Not surprisingly, David had great difficulty at school; he quit school or was thrown out of school in the third grade, and went to work for his father in a junk or salvage yard. (?? 15-16.) Rather than being tested and tracked into special education classes, which would have remediated his condition to the extent possible, David was able to learn simple, mechanical tasks in the junkyard, which masked his mental deficits to those around him. (? 21.)

David grew up in a four-room flat that his nuclear family shared with that of his uncle Paul Leisure, Sr.; David grew up in a sibling-to-sibling relationship with his elder cousins Paul and Anthony Leisure. (? 9.) Especially after the deaths of David's parents and his own elder brother Richard, David looked up to Paul and Anthony as one might to a father. (?? 19-20 & 22-24.) Paul and Anthony Leisure dominated and manipulated David, sometimes putting him in a cage and hoisting it up on a boom crane. (? 24.)

Due to his family's poverty, his father's attitude toward medical care, David's ability to perform the simple tasks required of a helper in a junkyard, and his willingness to go along with his elder family members, David was not the object of intervention by social institutions that would have taught and treated him in accordance with his mental handicaps. Instead, David began using alcohol at the age of eight to ten. (? 25.) He began sniffing glue at about age thirteen. (? 26.) He went on to use illegal drugs, to the point where two family members considered having him committed the year before the bombing for which he was convicted and sentenced to death, but abandoned this idea because David appeared to stop or control the abuse. (? 27-28.)

Only after the bombing for which David has been convicted and sentenced to death was he diagnosed as mentally retarded.

David has an IQ in the low seventies.

In his testimony at David's trial, Dr. Daniel J. Cuneo of Chester State Hospital in Illinois testified that he had performed two IQ tests on David, and that David scored 70 on one test and 74 on the other. (18) The first was the "Quick Test"; the second was the Wechsler Adult Intelligence Scale Revised (WAIS-R). On the basis of these tests, Dr. Cuneo testified that David's IQ was between 70 and 74. (Attachment K at 104-12.)

In considering whether to inform the Director of the Department of Corrections to seek a mental examination under Mo. Rev. Stat. ß 552.060 (1994), counsel sought an opinion from Dr. Richard D. Wetzel of Washington University School of Medicine. (19) Dr. Wetzel reviewed records of previous psychological evaluations of David, and concluded that "[t]here is a strong basis to suspect that Mr. Leisure has suffered brain damage or brain disease." (Attachment B at 2.)

Whereas Dr. Cuneo had discounted earlier IQ tests because they were given in group settings at school where students could copy off of others' papers and the data collection procedures were otherwise compromised, Dr. Wetzel combined these scores with a lower score subsequent to Dr. Cuneo's tests to suggest a degenerative condition. (Attachment B at 2, ? 4.iii.) Dr. Wetzel pointed out that a previous report had found "possible frontal lobe atrophy" indicating a "global decrease in [David's] central nervous system," which is "a rare and unusual finding" that "cannot be malingered." (Attachment B at 2, ? 4.ii.) Unless David is independently determined to be competent, it would be fundamentally immoral to execute him.

Irrespective of general arguments for and against the death penalty, and of one's view of other issues in David's case, it would be wrong to execute David in light of his mental retardation.

Our society rejects the execution of the mentally retarded because such a practice is inconsistent with the objectives, such as retribution and deterrence, that we rely on to support capital punishment. (20)

Retribution is a weak argument for executing a person who is not operating at a normal intelligence level: such a person is simply not as accountable for his or her actions. Even if we need to confine them and are justified in punishing them to some extent, we naturally draw back from inflicting the most severe penalty. When the Supreme Court of the United States held that it was not unconstitutional for the states and the federal government to resume executing their citizens in 1976, it qualified this holding to cover cases in which "a life has been taken deliberately by the offender." (21)

Mentally retarded people are by definition not as able to deliberate, and are simply not as blameworthy as others who engage in activity like the activity for which David was convicted. The limits of blameworthiness of retarded people places a limit on our punishment of them that is consistent with general support for the death penalty.

Deterrence is also a weak basis for executing a mentally retarded person. Deterrence presumes that the individual engages in a cost/benefit analysis before taking or refraining from an action which the law seeks to prevent. For the same reason that a mentally retarded person is not as blameworthy morally as a person of normal intelligence, a mentally retarded person is less likely to be deterred by the threat of capital punishment.

Execution of a retarded person diminishes deterrence to the rest of society: any punishment is less likely to deter crime when its imposition is seen to depend not on the choices of the offender than on conditions in his or her past that he or she cannot change, or behavior of the legal system that he or she cannot understand and certainly cannot control.

A mentally retarded person is more likely than the average person to be convicted and sentenced to death on account of the behavior of others. In this case, David was dominated by Paul and Anthony from his childhood through the time they were in the St. Louis City Jail before their capital murder trials. Such domination was not the product of a conscious, informed, intelligent choice but of mental retardation; it would be unjust to punish David more harshly than Paul and Anthony for the actions the courts have found him to have committed.

A mentally retarded person is less likely to receive adequate legal representation and otherwise to receive the rights of the accused that we rely on to prevent the conviction of the innocent and to promote the selection of appropriate punishments for the guilty.

Especially where, as in this case, the retarded defendant is easily manipulated by persons around him, both codefendants and counsel can overbear the defendant's will whether by trickery or simply by saying what they want him or her to do. Legal decisions such as whether to take the stand are less attributable to the mentally retarded defendant than they are to the average defendant.

A mentally retarded person is also less likely to appreciate the prospect of his own death, and to prepare for it as the law presumes he or she has a right to do. Although the Supreme Court surveys secular rationales for not executing the insane, the historical reason still applies among people of faith, and is a proper consideration so long as a religious viewpoint is not forced on the condemned person: it has been the law for five hundred years that we do not execute the insane, because they are incapable of preparing themselves to meet their Maker; as we reflect on our own mortality, we draw back from any action on our part that may not only extinguish the condemned person's physical existence but doom their eternal soul as well. (22) But the same reasoning applies to the retarded. Whether or not it is a basis for legal relief, it is a basis for extending mercy.

A mentally retarded person presents less of a danger to society than a person of normal or superior intelligence or a person with active psychoses. Society can completely defend itself against any potential threat from a retarded person by confinement as opposed to execution. Although the contributions of a retarded person will be limited in comparison to those of other persons, a retarded person can contribute to society within a structured environment in which good behavior is positively reinforced.

Notwithstanding his mental deficiencies, David can play a valuable role in his structured environment. As Attachment L illustrates, he is doing so now. David does not need to be killed.

David is not a threat to anyone.

David's record in the Department of Corrections is one of positive value to the staff and other inmates, not one of threats to others within or without the Department. Although he has received occasional, minor conduct violation reports, he has also contributed to the lives of other prisoners and eased the tasks of staff by his work in the Recreation Department. Attachment L. In 1993, then Superintendent Paul Delo wrote him a letter of commendation for assisting a staff member when she had an accident. Attachment M. This pleasant, generous demeanor dates back to the time he and his cousin Anthony were in the St. Louis City Jail before trial. Attachment N. He has also remained a valued part of his family, and has contributed to raising his children to be honest, productive citizens. Attachment D (?? 29-30).

Killing David cannot be justified by any need to protect society from him. In his structured environment David is able to contribute to society.

The family of the victim opposes executing David.

In his letter of March 11, 1999, James A. Michaels iii--grandson of the man who was killed in the bombing for which David was sentenced to death--expresses the belief of the Michaels family that David should not be executed. (Attachment A.) This letter is especially significant because according to one of the admitted participants who made a testimony-for-leniency deal with the prosecution (which can hardly be taken at face value, in light of these witnesses' obvious incentive to fabricate), David proposed detonating the bomb when James A. Michaels iii was at his grandfather's car with his grandfather. (23) The author of this letter was not only the grandson of the victim, but also a potential victim himself. He and his family understand that perpetuating a cycle of violence does no one any good.

In addition to Mr. Michaels, Chorbishop Robert J. Shaheen--the clergyman in charge of St. Raymond's Church both at the time of the bombing and today--has written in support of clemency. (Attachment O.) Like Mr. Michaels, St. Raymond's Church was a potential victim of the bomb that killed the elder Mr. Michaels if one believes the prosecution's evidence. When the victims and potential victims show mercy on David, they set a good example for us all. They want the bloodshed to cease. In this case, the Governor of the State of Missouri can make that happen.

David is the only one of the alleged participants in the bombing of James Michaels, Sr., to receive a death sentence, when under the prosecution's own theory, he was less culpable than two others who received life without parole.

Actually imposing the death penalty on David would be excessive and disproportionate in light of the life sentences imposed on the alleged participants in the murder of Mr. Michaels--Paul Leisure and Anthony Leisure--whom the prosecution itself considered more culpable. (24)

The injustice is inescapable when one considers David's lack of mental abilities. It is all the more excessive and disproportionate when one considers that two admitted participants, Broderick and Ramo, received substantially lighter sentences than Paul and Anthony. State prosecutors to deals with Broderick and Ramo, because they agreed to testify against Paul, Anthony, and David. The man who actually made the bomb, Fred Prater, was not prosecuted but placed in the Witness Protection Program; the state prosecutors did not call him at David's trial because the discrepancies between his story and the already inconsistent stories of Ramo and Broderick would have been fatally damaging to the prosecution's case.

The Eighth Circuit has previously granted relief in an analogous case on the issue of an unfair and disproportionate sentence. (25) This decision, as well as the others noted below, shows that jurists of reason could disagree over whether meaningful appellate review of a death penalty case requires a comparison of sentences received by others convicted of exactly the same crime (when there are multiple participants), and thus whether David's death sentence violates the Eighth and Fourteenth Amendments.

Of all the convictions in the Jimmy Michaels case and the cases of other violence affecting both families, only David's conviction resulted in a death sentence. But the evidence at both the respective state trials and a related federal RICO trial demonstrated that David--even if he was involved in the crime--was the least culpable of the Leisure family: "Pauley was the power, Anthony was the brains, and David was basically step and fetch." (Attachment P at 151.) The federal pre-sentence investigation report concluded:

In terms of culpability, the U.S. Attorney's Office ranked Paul Leisure first as head of the organization. Anthony Leisure was ranked second with Joe Broderick described as Anthony Leisure's right hand man. They stated David Leisure was ranked third in culpability . . . . [Attachment Q at 6.]

In addition, the evidence presented during his state trial established that David was mentally retarded (with an I.Q. in the low 70's), (26) ill educated, and addled by drug use. (27) The evidence also demonstrated that David was a follower, not dangerous alone; if he were dangerous it would only be when he was subject to the domination and manipulation of others with dangerous intentions--in this instance, his older cousins Paul and Anthony Leisure. (28)

The sentences received by David's codefendants are the only similar sentences to which David's death sentence should fairly have been compared. (29) The alleged masterminds behind the crime did not receive the death penalty. (30)

The review of David's sentence was arbitrary and irrational. The death sentence cannot be imposed in such circumstances without a deprivation of David's Fourteenth Amendment rights to equal protection and due process, and his Eighth Amendment right to be free from cruel and unusual punishment. (31) To impose the death penalty in this case would be to disconnect the law from what is right and wrong in the minds of the people and of their spiritual and intellectual leaders.

It is a sufficient basis for the exercise of clemency. This case is not one in which different juries simply came to different decisions. David did not have a fair trial, because he did not receive constitutionally effective counsel.

Anthony was represented by Richard H. Sindel--a leading member of the St. Louis bar with special expertise in capital litigation--and Paul was represented by senior criminal defense lawyer Alvin M. Binder of Jackson, Mississippi, who obtained a change of venue to St. Joseph.

David was represented by an attorney who was not ready to try a capital case, and who abdicated his role as attorney to a law student with a drug problem. Even when his life was at stake, David wound up on the short end of the stick once more: his trial counsel had never tried a murder case--let alone a capital case--and had little experience with criminal cases in the first place. (Attachment E, ? 2.) David was too retarded, and too much the follower, to know the disadvantage to which he was being subjected.

David's trial counsel abdicated his role as a lawyer to a nonlawyer who was laboring under the effects of illegal drug use, and David has yet to have a hearing on this grievance in the state or federal courts.

Trial counsel allowed a drug addict to be the "brains" of David's defense.

David's counsel at the trial level, Alan N. Zvibleman, delegated substantial trial preparation responsibilities to Gerald Wayne Bassett during critical periods of David's state court proceedings. (32) Before and during trial, Mr. Bassett acted as the conduit between Mr. Zvibleman and David, and almost all communications with respect to strategy or the facts of the case were transmitted to Mr. Zvibleman via Mr. Bassett. (33)

In an affidavit from Mr. Zvibleman (Attachment I), he has stated his belief that Mr. Bassett's abilities were impaired by illegal drug use during the time of the trial:

9. During trial preparation and the trial itself, I noticed behaviors on the part of Mr. Bassett that I now believe were manifestations of illegal drug use. These behaviors included, but were not limited to, a jerkiness or an inability to remain still, and abnormally fast talking.

10. If I had believed that Mr. Bassett was using illegal drugs at the time of trial preparation and the trial in Mr. Leisure's case, I would not have allowed him to assist me in my practice. I believe that drug usage could have substantially impaired Mr. Bassett's ability to assist me and Mr. Leisure in the preparation and presentation of Mr. Leisure's defense.

David's counsel discovered a good-faith basis to pursue Mr. Bassett's drug problem on February 12, 1999, in the course of an interview of Mr. Zvibleman; at his suggestion or simultaneously with an interview of him, counsel found an article of February 5, 1999, in the St. Louis Post-Dispatch to the effect that the Illinois Supreme Court had reinstated Mr. Bassett's law license, which he had voluntarily placed on inactive status on account of his drug problem.

By the time of this discovery, the federal district court had already denied relief, the Eighth Circuit had denied a certificate of appealability, and the matter was before the Supreme Court of the United States on a petition for certiorari.

When the Supreme Court denied certiorari, David's counsel filed a motion for relief from judgment under Fed. R. Civ. P. 60(b) based on this newly discovered evidence. They alleged that Mr. Zvibleman's failure to detect Mr. Bassett's mental problems stemming from past or present illegal drug use elevated Mr. Zvibleman's already ineffective assistance to the level of gross negligence, and thus satisfied the "extraordinary circumstances" test of Fed. R. Civ. P. 60(b)(6).

Counsel for the respondent in the federal habeas corpus proceeding questioned whether the symptoms on which Mr. Zvibleman relied were sufficient to establish that Mr. Bassett was on drugs. In reply to this response, David's counsel obtained a declaration and an affidavit from Glinda Joseph, and submitted the declaration to the federal court. (34) In it Ms. Joseph swears that Bassett regularly used illegal drugs in her presence during the time of David's trial, and that such drug use detrimentally affected his abilities and made him disinterested in preparation for David's trial:

4. During the period of Mr. Leisure's trial, Jerry Bassett would come to my house a few times a week.

5. During those visits, I observed Mr. Bassett using illegal drugs.

6. On some occasions, I would personally inject Mr. Bassett with illegal drugs, at his request, because he could not find a vein or, when he was doing cocaine, because he was too nervous or shaky to do it himself.

7. These drugs included cocaine, heroin, and Dilaudid.

8. Mr. Bassett used these drugs intravenously in my presence.

***

14. During the period of Mr. Leisure's trial for the murder of Jimmy Michaels, Sr., Mr. Bassett appeared to me to be always wanting illegal drugs.

15. During the period of Mr. Leisure's trial for the murder of Jimmy Michaels, Sr., Mr. Bassett's illegal drug use affected his judgment to the point where he did not seem to care about his work, as distinguished from getting his next hit.

In similar sworn statements from Melinda Coleman, (35) she states that during the time of David's trial and post-conviction proceedings, Mr. Bassett regularly made and received calls in her presence involving the procurement of illegal drugs, had illegal drugs on his person in Ms. Coleman's presence, and exhibited numerous signs of illegal drug use, while also being exceptionally clever about covering up his use of such drugs:

5. Mr. Bassett made and received telephone calls from my residence in which he arranged to purchase and pick up illegal drugs.

6. Mr. Bassett had on his person illegal drugs. On one occasion, he reached into the vest pocket of his jacket for a pen, and several Dilaudid pills in a cigarette cellophane fell on the floor of my living room. I saw him pick them up and put them pack in his pocket.

7. Mr. Bassett had bloodstains on his shirt where he would have bled from injecting drugs into his arm.

8. During the period surrounding the trial of David Leisure, I knew dozens of people who were addicted to or otherwise used illegal drugs.

***

13. Mr. Bassett was exceptionally clever about covering up his use of illegal drugs. He was quick in coming up with excuses or explanations that would lead another person to believe there was another reason for his drug-related behavior. A person who was not familiar with people who are on illegal drugs would not have known that Mr. Bassett was using them at the time of Mr. Leisure's trial. On a few occasions I have seen Mr. Bassett go into court when he was high on drugs, and conduct a case without anyone noticing that he was on drugs.

Mr. Bassett's use of illegal drugs while preparing for and during David's trial made it impossible for David to communicate with his trial counsel in a meaningful manner. This impossibility was particularly prejudicial where, as here, David's counsel was relying on Mr. Bassett to communicate with David.

In response to further expressions of disbelief from the respondent's counsel, David's counsel obtained from Mr. Bassett a declaration and an affidavit that remove any doubt whether at the time of David's trial he was laboring under the psychological effects of untreated chemical dependency, and that these effects prejudiced David by inserting into his defense Mr. Bassett's grandiose ideations overlapping with narcissistic personality disorder. (36)

Mr. Bassett confirms that during the 1970s and 1980s he engaged extensively in substance abuse involving both heroin and cocaine. (Attachment F, ? 10.) At no point from August 1980 until February 1995 was Mr. Bassett free from the adverse psychological effects of untreated chemical dependency. (? 11.) As an element of his untreated chemical dependency, Mr. Bassett had grandiose ideations overlapping with narcissistic personality disorder. (? 12.)

Among the specific instances of grandiose, narcissistic ideations growing out of Bassett's untreated chemical dependency were: (1) the idea that he could act as second-chair counsel in a capital murder case, even though he had only attending one other trial--his own trial on corruption charges--in which he was represented by counsel; (2) the idea that he could successfully defend David by approaching the trial as he approached last minute preparation for a law school examination; (3) the belief that he could employ a diminished capacity defense to persuade the jury to acquit David after David and his co-defendants had already been convicted in federal court under the Racketeer Influenced and Corrupt Organizations Act (RICO) in a trial in the same location, and in which one of the predicate acts alleged was the Michaels bombing. (?? 13-14.)

Mr. Bassett continues that Mr. Zvibleman allowed him to interact extensively with David and to develop the defense strategy, despite the fact that Mr. Bassett was still a law student at the time. (? 15.) Among the results of Mr. Zvibleman's abdication of these tasks to a nonlawyer, Mr. Bassett was the principal conduit of information between Mr. Zvibleman and David. (? 16.) Mr. Bassett used this influence to mislead David about which defense would be used and whether David would be allowed to testify on his own behalf. (?? 16-17.)

Mr. Bassett was also the force behind the decision to use the diminished capacity defense. (? 17.) Throughout the federal litigation David's counsel have explained that David was never told by Mr. Bassett that he would not testify, and Mr. Bassett never told Mr. Zvibleman that David believed he would testify and that David insisted upon testifying.

Mr. Bassett's affidavit demonstrates that, but for constitutional error, no reasonable fact finder would have sentenced David to death for the murder of Mr. Michaels. Bassett states that he worked on Anthony Leisure's case, and that Anthony's trial counsel spent considerable more time working on Anthony's case, meeting with Anthony, and working with and supervising Mr. Bassett than Mr. Zvibleman had. (?? 20-21.)

Mr. Bassett also observes that "When he was represented by counsel who did not abdicate trial preparation and client communications to a nonlawyer disabled by the effects of untreated chemical dependency, Anthony Leisure received life without parole for the same crime in the same venue where David Leisure was sentenced to death, when the prosecutors' own theory was that Anthony was more culpable in the bombing than David was." (? 22.)

Mr. Bassett's drug use manifested itself in a manner that "could have substantially impaired" his ability to assist in preparing David's case for a capital murder trial. Trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on has having produced a just result. This was particularly true in a death penalty case where the client's life hung in the balance.

The federal courts should have granted relief, or at least held a hearing, on this grievance. The district court denied relief on the basis that the Rule 60(b)(6) motion was "really" a second petition, and required the permission of the Eighth Circuit under AEDPA. David's counsel sought to appeal this ruling or, in the alternative, to obtain the Eighth Circuit's permission to file a second petition to raise this grievance.

On August 24, 1999, the Eighth Circuit panel to which David's most recent pleadings were directed denied relief, once more without giving any reasons. At this writing, the Eighth Circuit en banc, the Missouri Supreme Court, and the United States Supreme Court still have the opportunity to grant relief on this ground or at least to grant a stay of execution to allow David to litigate it. Counsel submit this application in an abundance of caution, so that the Executive Branch may review the evidence and authorities supporting this grievance, and may either commute David's sentence for this and the other reasons advanced or appoint a board of inquiry to review this grievance and any of the others concerning which the courts have failed and refused to give David the time of day.

David did not receive a hearing on the influence of illegal drugs on his defense due to conflict of interest.

After receiving a death sentence, David's claims of trial counsel's ineffectiveness were considered in a post-conviction relief hearing pursuant to Missouri Supreme Court Rule 29.15. In David's Rule 29.15 hearing, Mr. Bassett did not testify to his own drug abuse during the preparation and prosecution of David's case or to the manner in which such drug abuse impaired communications between David and Mr. Zvibleman, caused a breakdown in the attorney-client relationship, and deprived David of effective assistance of counsel. (37)

He was entirely silent on this point, although he was ostensibly testifying on behalf of David. In order for Mr. Bassett to have truthfully apprised the PCR motion court of the scope of David's deprivation of the right to counsel, Mr. Bassett would have had to confess to criminal drug activity. Because Mr. Bassett was incapable of protecting David's interests without jeopardizing his own interests, an unacceptable conflict of interest arose, further depriving David of his right to the effective assistance of counsel.

David's lead litigation counsel have also filed pleadings in the Eighth Circuit and in the Missouri Supreme Court citing a conflict of interest on the part of David's Rule 29.15 counsel, Richard H. Sindel, in conducting the hearing. Clemency counsel attach a copy of litigation counsel's most recent Eighth Circuit pleading as Attachment R. If Rule 29.15 counsel could not bring out Mr. Bassett's drug problem without exposing himself to discipline for having used Mr. Bassett himself in Anthony Leisure's trial, one cannot count on the state post-conviction relief proceedings to have vindicated David's Sixth Amendment right to the effective assistance of trial counsel. Although David's counsel have distinguished the cases on which the respondent relies in arguing that the federal courts "cannot" grant relief in this situation, they cannot expect the courts to do so.

These considerations sounding in conflict of interest must provide additional reasons for the exercise of clemency, at least to provide a forum to resolve these questions when the judicial courts will not.

David's trial was unfair, and its result unreliable, in that the judge allowed the prosecution to introduce, in the penalty phase, a highly prejudicial photograph of the victim of another, different car-bombing of which David was later convicted but for which he did not receive the death penalty.

During the penalty phase of David's trial, the court admitted into evidence--over the objection of David's counsel--a photograph of the charred remains of George "Sonny" Faheen, who was killed on October 16, 1981, when an incendiary bomb burned up his parked car. This photograph depicts the aftermath of the Faheen car-bombing and shows Faheen's corpse fused to the seat of his automobile. The only photographs introduced at the penalty phase were of the Faheen crime scene, even though David was not on trial for Faheen's death, thus highlighting the photographs to jurors. The prosecutor's only penalty phase witness testified about the Faheen bombing, even though David was not on trial for, and had not been convicted of, that bombing.

Without any explanation by the prosecutor of the Faheen photograph's probative value, the trial court overruled David's counsel's objection and admitted the Faheen photograph, stating only that the "jury is entitled to know as much about the defendant as they possibly can." (Trial Transcript, Vol. X, p. 6.)

The federal courts have denied David an appeal on the admission of the Faheen photograph. Even under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the standard for whether an unsuccessful habeas corpus petitioner should receive an appeal is the one the Supreme Court had previously set forth in Barefoot v. Estelle, (38) which asks whether the petitioner has made a "substantial showing" that his or her constitutional rights had been violated, in which one test is whether any of his or her issues are "debatable among jurists of reason."

Reasonable jurists have differed on whether the admission of a gruesome photograph of an unrelated and unadjudicated crime so infects a sentencing hearing as to make it fundamentally unfair. Two judges on the Missouri Supreme Court thought this photograph rendered David's sentencing untrustworthy. The United States Supreme Court has previously granted certiorari on a similar issue, (39) and Justices of that Court--as well as several state supreme courts--have found admission of evidence of unadjudicated crimes to be unconstitutional. (40)

In David's case, the federal district and appellate courts improperly applied the legal standard for allowing habeas corpus appeals because they ignored the scathing dissent on the Faheen photograph issue by two jurists of reason sitting on the highest court in Missouri. Judges Blackmar and Welliver concluded that admission of the Faheen photograph during David's sentencing phase was unconstitutional, because the photograph did not aid the jury in any way in reaching a decision and it served solely to prejudice David and inflame the passions of the jury. State v. Leisure, 749 S.W.2d at 383-84 (Blackmar, J., joined by Welliver, J., concurring in part and dissenting in part). Judges Blackmar and Welliver memorialized the debate over the admissibility of the Faheen photograph in their dissent "so that similar inappropriate rulings will not be made in the future . . . [because the] penalty phase should not become a legalized lynching." Id. at 385.

The brevity of the lower federal courts' analyses concerning David's right to meaningful appellate review makes it impossible to know why the appeal was denied. The lower federal courts' failure to acknowledge the serious constitutional debate among jurists of Missouri's highest court on David's direct appeal casts serious doubt on their application of the Barefoot standard in this case.

Where execution hinges on the resolution of a constitutional issue, mere recitation of the Barefoot standard should not discharge a federal court's duty to conduct a meaningful appealability determination, particularly where other judges have already differed on the issues David seeks to appeal. Instead of merely giving the recitation of the Barefoot language talismanic effect, courts should consider the actual procedural history of the case to determine if the issues raised are debatable. Other courts have done so. (41)

A certificate of appealability on this issue was further justified because in Thompson v. Oklahoma, (42) the Supreme Court had previously granted certiorari on the issue whether the admission of a gruesome photograph at the sentencing phase of a capital murder case violated a defendant's constitutional rights. Ultimately, the majority in Thompson v. Oklahoma never reached the gruesome photograph issue, reversing the death sentence on other grounds (relating to the youth of the offender at the time of the offense). (43)

The decision to grant certiorari demonstrates that a substantial constitutional issue is involved and that this issue is one that is debatable among reasonable jurists. In fact, the issue presented here is even more substantial in view of the fact that the Faheen photograph involved the victim of a separate crime for which David was not on trial and had not been convicted. At a minimum, the federal courts should have issued David a certificate of appealability, because courts have reached different conclusions on this significant constitutional issue. (44) Because the courts have denied him a forum on this constitutional grievance, David presents it to the Executive Branch.

Matters devoid of probative value introduced in a capital sentencing hearing solely to inflame the passions of the jury are generally unconstitutional and are per se prejudicial. (45) At the very least, reasonable jurists can--and in fact already have--differed on whether evidence introduced for such a purpose violated David's constitutional rights in this case. The Faheen photograph's only purpose was to show the jury the aftermath of a bombing for which David was not on trial and had not been convicted. "How could it more clearly appear that the prosecution had no purpose in mind other than shock value in introducing the pictures into evidence?" (46)

Because the Faheen photograph inflamed the passions of the jurors before they determined that David should die, no amount of aggravating factors could erase the vice. (47) The admission of the photograph "so affect[ed] the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment." (48)

Even the majority opinion of the Missouri Supreme Court in David's direct appeal recognized that the Faheen photograph was "gruesome," demonstrating an awareness of the picture's potential prejudicial impact. (49)

The majority ignored this impact by repeating the same litany recited by the trial court when the photograph was challenged below: "[I]n the penalty phase, the jury is entitled to receive as much information as possible in order to make an informed decision as to punishment." (50)

This reasoning is seriously flawed, however, in this death penalty case, because the Faheen photograph did not relate to a crime for which David was on trial, and the "state may seek retribution only in relation to the blameworthiness of the actor in relation to the crime for which the state seeks to impose the death penalty." (51)

Because the Faheen photograph is per se prejudicial, "harmless error" analysis is inapplicable. David was subsequently convicted of the Faheen murder, but was not sentenced to death even though the prosecution sought the death penalty. Because the admission of the Faheen photograph at David's penalty phase in his trial for the murder of Mr. Michaels was per se prejudicial, his subsequent conviction is irrelevant and the harmless error test is not applicable. In any event, any harmless error analysis should be conducted in light of the facts as they stood at the time of the trial in question.

At that time, David had not been convicted of the Faheen bombing. (52) The Faheen photograph was entirely irrelevant, and the inflammatory character of the photograph posed a constitutionally unacceptable risk that the jury would arbitrarily sentence David to die.

Even assuming that admission of the Faheen photograph could be reviewed for harmless error, the admission of the Faheen photograph had a "substantial and injurious effect or influence in determining the jury's verdict," and accordingly was not harmless. (53) The Missouri Supreme Court's struggle to conclude that any error was harmless was not persuasive, as Judge Blackmar explained:

The principal opinion labors to justify the admission, or to find a ground for affirmance, but the effort is not convincing. It is first suggested that the gruesome pictures properly introduced at the guilt phase somehow mitigate the effect of the introduction of pictures of another killing which is not on trial. It is suggested that a little more gore would make no difference. I cannot accept this argument when a man is on trial for his life.

Nor is the effect of the pictures minified because the trial judge told the jury, correctly, that the defendant had not been convicted of the murder of Faheen. The submission of the pictures, then, serves to say to the jury, "these illustrate the aftermath of a bomb killing which the defendant may have participated in." How could it more clearly appear that the prosecution had no purpose in mind other than shock value in introducing the pictures into evidence? (54)

Furthermore, the Missouri Supreme Court and the United States district court incorrectly relied on the jury's finding of several aggravating factors other than David's RICO conviction, in holding that any error in admitting the Faheen photograph was harmless. The Faheen photograph was so grossly or conspicuously prejudicial that it fatally infected the sentencing phase of David's trial. Thus, it cannot be assumed that the jurors confined their inflamed passions to finding the RICO conviction was a non-statutory aggravating factor and set their passions aside when looking at the other aggravating factors. (55)

One juror, Ms. Donna Denando, executed an affidavit that was submitted to the district court as an attachment to David's First Amended Petition for Writ of Habeas Corpus. In her affidavit, Ms. Denando advised the court that "[h]ad the photograph of George Faheen's body not been admitted into evidence, . . . there [was] a reasonable likelihood that [she] would not have been inclined to recommend a death sentence against [David]." (Attachment S). Although the district court indicated it could not consider the affidavit based on Federal Rule of Evidence 606(b), it cannot be said as a matter of fact that the admission was "harmless." (56)

Admission of the Faheen photograph during the penalty phase of David's trial is a sufficient reason for commuting David's death sentence.

At a minimum, reasonable jurists on the United States Supreme Court and other courts, including the Missouri Supreme Court in David's direct appeal, have differed on this issue. The federal district court and the court of appeals erred in denying David a certificate of appealability, particularly when the David's life hangs in the balance. (57) Clemency is an appropriate remedy.

David received representation at trial that was constitutionally ineffective, but the federal courts refused to apply mandatory precedent from the Supreme Court to evaluate this ground for relief.

In Strickland v. Washington, (58) the United States Supreme Court established that in order to succeed on an ineffective assistance of counsel claim, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defendant. (59) With regard to the prejudice element, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (60)

Accordingly, "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." (61) The Supreme Court also established the ineffective assistance of counsel standard for capital cases:

When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer. . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. (62)

This holding contemplated the consideration of multiple errors in assessing the constitutional implications of trial counsel's ineffective assistance. As the United States Court of Appeals for the Seventh Circuit has explained:

[A]n attorney's individual errors may not, looking at the trial as a whole, cast doubt on the reliability of the result, and therefore would not merit reversal. On the other hand, even if individual acts or omissions are not so grievous as to merit a finding of incompetence or prejudice from incompetence, their cumulative effect may be substantial enough to meet the Strickland test. (63)

Consistent with this holding, some federal courts of appeals have concluded that under Strickland the cumulative effect of trial counsel's errors can deprive a defendant of his or her constitutional right to effective assistance of counsel. (64) Jurists in other circuits, including the Eighth Circuit, have found that the cumulative effect of trial counsel's errors can never deprive a defendant of a fair trial. (65)

Following this contrary Eighth Circuit precedent, the federal district court held that trial counsel's cumulative error was not an appropriate measure of the constitutional effectiveness of counsel's assistance. (66) The district court determined that if each error individually is insufficiently egregious to violate a defendant's constitutional rights, then no aggregation of such errors--no matter how numerous--could rise to the level of constitutionally defective assistance. David argued in his certiorari petition that this was constitutionally incorrect, but the Supreme Court denied certiorari.

David was prejudiced by the cumulative effect of his trial counsel's acts and omissions. Such errors, either individually or in the aggregate, give rise to a reasonable probability that, absent such errors by counsel, the jury would have had a reasonable doubt respecting guilt. Furthermore, even if the jury found David guilty, there is a reasonable probability that the jury would have spared his life.

David's counsel committed numerous other errors. David's trial counsel delegated much of the trial preparation to a law student, not admitted to practice law, let alone qualified to work on a death penalty case. (Now we know the law student was laboring under the effects of untreated chemical dependency.) Trial counsel also deceived David into believing that he would call alibi witnesses, and that David would be allowed to testify to his innocence. Instead, in a reckless attempt to negate the prosecution's case in the guilt phase, trial counsel presented mental health evidence that was gathered at the last minute for use, if necessary, in David's penalty phase. (Attachment P at 135-64.)

Counsel also refused to present evidence demonstrating that David, a man of substantial girth, would not have even fit under Jimmy Michaels, Sr.'s car to plant the bomb that killed the elder Mr. Michaels, as he was described to have done by the prosecution's witnesses.

Moreover, during the trial, the prosecutor ran roughshod over David's ineffectual trial counsel, at one point telling counsel in virtually so many words to "sit down and shut up," which David's trial counsel did. (67) Trial counsel simply did not subject the prosecution's case to a "meaningful adversarial testing" in either the guilt or punishment phase of David's trial. (68)

The cumulative effect of these errors created unreliable proceedings due to a breakdown in the adversarial process. Accordingly, the process cannot be trusted to have produced a just result, particularly where the sentence is death. (69) Not only could reasonable jurists differ as to whether any individual error by counsel deprived David of a fair trial, but reasonable jurists have differed concerning the amenability of cumulative error to habeas corpus scrutiny (as evidenced by the disagreement between the circuits).

Where the courts are split on an issue, the denial of a certificate of appealability without consideration of the contrary conclusions reached by other courts was error. (70) Accordingly, the district court and the court of appeals improperly denied David a certificate of appealability. David appeals to the Governor as being learned in the law and constitutionally authorized to correct these errors, either by commuting his sentence or appointing a board of inquiry to examine them.

David did not have the full course of judicial review of his conviction and sentence which would give the public the necessary confidence that they were obtained without constitutional violation.

The result of David's state post-conviction relief proceedings has been cast into doubt by credible allegations of conflict of interest.

In his federal litigation and in a second state habeas corpus proceeding, David's lead litigation attorneys have relied on Mr. Bassett's declaration and affidavit as substantiating David's claims regarding a conflict of interest on the part of his post-conviction relief counsel, Richard H. Sindel. (Attachment R at 10-15.)

Specifically, Mr. Bassett states that, at David's 29.15 state post-conviction proceedings, Mr. Sindel did not ask Mr. Bassett about his history of chemical dependency, and Mr. Bassett did not volunteer information about it. (Attachment F, ? 23.) Had Mr. Sindel specifically asked Mr. Bassett about his chemical dependency, Bassett would have answered truthfully. (Attachment F, ? 24.) David has pleaded that, absent Mr. Sindel's conflict of interest, David would have learned of Mr. Bassett's drug abuse at his 29.15 hearing, and would have been granted relief.

Counsel laboring under a conflict of interest is worse than no counsel at all. Here, Missouri provided a petitioner only one forum in which to raise claims of ineffective assistance of trial counsel, and David has presented sworn evidence that his counsel in the proceeding had a conflict of interest which prevented him from investigating and cross examining the key player on the defense team on whether that player had used heroin or cocaine in a way that adversely affected David's representation.

If the courts do not wish to provide a forum for resolving the issues David has sought raised in state and federal court after receiving the Bassett affidavit, that does not mean he should die. It is within the constitutional and statutory powers of the Governor to commute his sentence or to appoint a board of inquiry to resolve this dispute. Clemency should be granted.

The Eighth Circuit has denied David appellate review by taking an isolated position that the appeal-limiting provisions of the Antiterrorism and Effective Death Penalty Act of 1996 apply retroactively.

On April 24, 1996--well after David had filed his pro se petition for a writ of habeas corpus in 1992--President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA includes, among other things, amendments to the general habeas corpus provisions in chapter 153 of title 28 of the United States Code. (71)

In general, the amendments to chapter 153, along with amendments to Federal Rule of Appellate Procedure 22(b), make it more difficult for prisoners to obtain appellate consideration of federal constitutional and statutory claims in federal courts. Among other things, 28 U.S.C. ß 2253(c)(3) provides that a certificate of appealability shall indicate which specific issue or issues satisfy the showing required by paragraph (2), i.e., "a substantial showing of the denial of a constitutional right."

In Lindh v. Murphy, 117 S. Ct. 2059 (1997), the Supreme Court made clear that the new habeas provisions do not apply to cases that were pending before the effective date of AEDPA:

The statute reveals Congress' intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment (except where chapter 154 [the special death penalty provisions not applicable to this case] otherwise makes select provisions of chapter 153 applicable to pending cases). (72)

Thus, the habeas corpus limitation provisions of AEDPA do not apply to cases filed before AEDPA's effective date of April 24, 1996, unless the text of the statute makes a given provision applicable to cases pending on the effective date. (73) Based on Lindh, all cases filed before the enactment of AEDPA fall under the rules applicable to certificates of probable cause.

In Tiedeman v. Benson, (74) the Eighth Circuit held that the new certificate of appealability provisions set forth in 28 U.S.C. ß 2253(c) should be applied retroactively to petitions for habeas corpus filed before AEDPA's enactment. The Eighth Circuit concluded that Lindh v. Murphy did not resolve the question of whether the AEDPA amendments to chapter 153 apply retroactively, and that the circuit courts may make this determination on an amendment-by-amendment basis. 122 F.3d at 520-21.

The Eighth Circuit's analysis turns on the word "generally" in the penultimate sentence of Lindh. See Lindh, 117 S. Ct. at 2068 ("the new provisions of chapter 153 generally apply only to cases filed after the Act became effective" (emphasis added)). From this use of "generally" the Tiedeman court determined that the Supreme Court intended to say that not all provisions of Chapter 153 apply only prospectively. The Eighth Circuit then applied typical rules of statutory construction (e.g., distinguishing between substantive and procedural amendments) to reach the conclusion that 28 U.S.C. ß 2253(c) should have retroactive application. (75)

The fundamental message of Lindh is that courts need not resort to a retroactivity analysis when congressional intent is clear and application of the statute in accordance with that intent would not violate the Constitution. The Supreme Court's analysis in Lindh undermines the Tiedeman court's determination that the "generally" language permits application of arguably procedural sections such as ß 2253(c) to pending cases.

The word "generally" merely reflects that fact that one could not baldly assert that none of chapter 153 amendments could have retroactive effect, given that ß 2264(b) expressly provided for such retroactivity in certain instances. Thus, the most plausible reading of the Lindh Court's language is that chapter 153 amendments should not be given retroactive effect unless expressly provided for in the text of the Act. (76)

The Tiedeman decision conflicts with the Supreme Court's decision in Lindh, and the decisions of every other circuit that has decided the issue. (77) Based on this overwhelming circuit consensus as to the meaning of Lindh and the non-retroactivity of ß 2253(c), it is clear that AEDPA does not apply to this case, and that the appropriate vehicle for screening David's case for appellate review was an application for a certificate of probable cause.

Under the pre-AEDPA law, no Missouri capital habeas corpus petitioner was denied an appeal from the district court's denial of relief. David has been severely prejudiced by the Eighth Circuit's formulation and application of an aberrant rule that has denied him the opportunity for review by an appellate court after briefing and argument.

David has not had the level of review we count on to assure that federal constitutional rights are respected in capital cases. The federal courts have failed to follow mandatory Supreme Court precedent; the Supreme Court has yet either to correct the Eighth Circuit's isolated position or to hold that it is, after all, correct and should be applied nationwide. In light of its own language in Lindh the latter is an unlikely prospect.

This is not a case in which a petitioner has received the full course of federal review, and has lost. It is one in which a federal appellate court has applied a new rule to David's case when no other federal appellate court would do so, and had denied him appellate review of his federal constitutional claims altogether.

Rather than avoiding the arbitrary infliction of the death penalty, as appellate proceedings are supposed to do, the Eighth Circuit's position has added a new element of arbitrariness. David has demonstrated the constitutional violations in his trial and the additional grounds for exercising clemency several times over. He should not be executed.

WHEREFORE, the applicant prays the Governor for his order as aforesaid, either commuting his sentence from death to life without parole or appointing a board of inquiry; or, in the alternative, for a stay pending an examination of his competency to be executed.

Respectfully submitted