By Sam Levin
By Jessica Lussenhop
By Sam Levin
By Timothy Lane
By Sam Levin
By Dennis Brown
By Chris Parker
By Sam Levin
With three recanted testimonies, the 8th Circuit Court of Appeals, by a vote of nine to two, ordered the case back to Gaitan in 1997. "If the trial testimony of Poe, Ferguson, and Russell were not credited, there would appear to be no evidence implicating Amrine in Barber's murder," Judge Diana E. Murphy concluded in her instructions for Gaitan to consider the new evidence.
"I went in there with the impression I was gonna get justice," Amrine remembers.
But the appeals court had set down a rigorous definition of new evidence in 1997: "The evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence."
Because Gaitan had considered the recanted testimony of Russell and Ferguson in 1996, he ruled that it no longer constituted new evidence.
Further, he ruled that there was nothing new about guard Noble's newly clarified testimony. Gaitan also tossed out testimony from Kevin Dean because "it was apparently available at the time of [Amrine's] trial. Mr. Dean testified at the hearing before this court that he was available at trial -- that he was in fact brought to the courtroom but was never called to testify."
The only new testimony, Gaitan concluded, was Poe's. But during a deposition taken by Assistant Attorney General Frank Jung, Poe didn't do himself or Amrine any favors, refusing to answer even the most basic questions. (Jung: "What are you in the federal penitentiary for?" Poe: "I don't know." Jung: "Oh, surely you know." Poe: "They say it's all my imagination; I ain't really here.") Understandably, Gaitan found Poe's credibility lacking. Still, his own ruling appears misguided. Evidence shows that Poe was telling the truth about one key point, which Gaitan disregarded.
Poe claimed to have written letters to the Missouri Supreme Court and Federal District Judge Russell Clark attempting to recant his testimony, but Gaitan argued that neither the Supreme Court nor Clark "had any such letters on file." The court record does contain copies of letters Poe wrote to Clark and the state Supreme Court, though neither addresses Amrine specifically. Court records also contain a letter from the clerk of the state Supreme Court acknowledging receipt of Poe's letter. The handwritten letter to Clark is stamped with Clark's name and title, suggesting his office did, in fact, receive Poe's letter. Nevertheless, Gaitan threw out Poe's testimony.
The tough "new evidence" standard is part of an increasing restrictiveness when it comes to habeas corpus law. "Congress doesn't want people relitigating cases that were already litigated," says Denise Lieberman, legal director of the American Civil Liberties Union of Eastern Missouri. Nevertheless, she says the ACLU contends that "new" evidence is "what juries didn't get to hear the first time around."
Judge Gaitan does not comment on his cases, an aide says.
O'Brien, appealing again to the 8th Circuit in 2001, argued the same: New evidence should be evidence the jury never heard. The 8th Circuit, this time represented by a panel of three judges (including the pair who had voted 9-2 against Amrine in the earlier opinion) was unconvinced.
Despite jurors' admitting they made the wrong decision, despite three witnesses who now say they all lied, all of whom stand to gain nothing but possible perjury charges for their trouble, Amrine remains on death row.
On June 18, Missouri Attorney General Jay Nixon issued a statement that read, "The courts have specifically addressed the issue of the post-trial recantations of the three inmate witnesses and have not found those recantations to be credible." Referring to a documentary film produced by University of Missouri-Columbia communications students that's been showing around the state, Nixon said, "It now appears that Amrine's supporters are trying to win in the arena of public opinion after they could not in numerous federal and state courts of law."
O'Brien dismisses Nixon's grandstanding. "That's a common line he uses," O'Brien says. "To me, it's short on substance. He knows very well what happened in this case."
"I don't expect the system to be perfect," former prosecutor Brown says. "If perfection is the standard, the instruction to the jury would have to be 'beyond the shadow of a doubt.' There's a significant gap between reasonable doubt and all doubt. The system we have, as it operates, is a fair system."
Brown says he hasn't read the recanted testimonies but finds the notion of prisoners' changing their stories unremarkable. "Too many people hear the word 'recant' and think that now they're telling the truth."
O'Brien, however, says the system discourages accountability among lawyers and judges. "A huge undercurrent is that the responsibility for reviewing death-penalty cases is perceived to be dispersed among a variety of people," he says. "Everyone thinks primary responsibility lies with someone else. It is literally a process of passing the buck."
Now the buck stops at Governor Bob Holden's desk -- or on Amrine's gurney.
Having seen the appeals system up close, Amrine doesn't think the governor will grant a pardon. "I think he will probably take the easy way out. He'll say, 'I'm the governor, I have limited powers, we have a great court system, he had some of the best lawyers representing him, none of the courts felt he needed a new trial and I'll stand by them.' He'll wash his hands of it. For him to give me a pardon, that would be kind of like career suicide. I wish he would give me a pardon, but I'm a realist."
So he waits.
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