At the Missouri State Penitentiary (now called the Jefferson City Correctional Center), the twenty-year-old aspired to be a "regular": strong, not weak; a predator, not prey. He stabbed at least one snitch. He didn't kill the guy, but he says now that he was trying.
"That was just the way it was," Amrine says unapologetically. "Either you did that or you were done to."
Amrine now finds himself on the other side of the equation. To the Missouri Department of Corrections, he is CP 48 -- "CP" for capital punishment. The number means Amrine is the 48th man sentenced to die since Missouri reinstated the death penalty in 1976 (and began executing prisoners in 1989).
Amrine was convicted of murdering another inmate in 1986. He was sent to death row on the testimony of three other inmates. But those men now say he is not guilty and have admitted that they lied out of simple self-interest. Some of the jurors who convicted him now think he's innocent. The 8th Circuit Court of Appeals (which covers seven states, including Missouri) strongly suggested the same in a 1997 ruling. At a 1998 hearing in Kansas City, however, Judge Fernando Gaitan apparently thought technicalities in the legal process carried more weight than new evidence. Now Amrine awaits his execution date -- or a pardon from Governor Bob Holden -- for a crime Amrine says he didn't commit.
"That's not the way the process is supposed to work. Our system builds in safeguards almost ad nauseam, almost beyond explanation, particularly with a death sentence," says Tom Brown, the prosecuting attorney on the Amrine case, who is now a Cole County circuit judge.
But somehow those safeguards haven't worked for Joe Amrine. Despite appeals that have dutifully chugged along for fifteen years, the sheer weight of that process -- the simple fact that all the steps have been completed -- creates the presumption that the system must have functioned properly.
Amrine's case calls all of that into question.
Joe Amrine and Gary Barber were cellmates twice, once for an uneventful 90 days in 1982 and then again for a month in 1984. The second time, they argued over gambling debts but never came to blows, and they didn't part as enemies. Since then, Amrine hadn't had much contact with Barber, who was serving a fifteen-year sentence for burglary and auto theft.
On the afternoon of October 18, 1985, both men were in the rec room of the supermax unit, the highest-security section of the state penitentiary. It was a small space, about half the size of a basketball court, in which 90 inmates were packed for a few hours a day, three days a week. Around 2:25 p.m., someone stabbed Barber in the back with a metal rod broken off a paint roller -- nine-and-a-quarter inches long, sharpened to a point and covered with white and green paint.
Amrine says he was playing poker and didn't see the stabbing and recalls that a few minutes later, he saw prison guards take inmate Terry Russell away for questioning. When guards came to interview him later that day, Amrine says, he wasn't surprised -- he and Russell were friends, so he figured investigators would come calling for him, too. Amrine also knew that his behavior in the past had not endeared him to prison administrators -- they had sent him to solitary confinement for raping and stabbing other inmates but had never been able to gather enough evidence to charge him with anything.
He told them he didn't kill Barber. He says George Brooks, leader of a team of prison investigators who handle everything from disciplinary matters to murders, gave him the chance to pin the murder on Russell, but Amrine told them he didn't know who did it. He figured that was that.
What he didn't know was that Brooks and his team had also given Russell the chance to pin the murder on Amrine.
Russell, who was serving time for burglary, had a good reason to turn against Amrine: Russell was due to be released in 60 days but was now facing charges for murdering Barber. Ten days before the murder, Russell and Barber had fought, and both had been sent to solitary. When Brooks questioned Russell shortly after the murder, Brooks said John Noble, a guard, had seen Barber chasing Russell after Barber had been stabbed. Russell's interrogators also told him that another inmate had seen him kill Barber. Investigators knew about Russell's fight with Barber, and they told him he was going to be charged with the murder. They read him his rights. At the same time, Russell now says, Brooks encouraged him to blame Amrine. So he did.
Five hours after the killing, Russell gave a statement claiming that he hadn't seen the murder. He said he'd left the rec room to get aspirin and the last thing he saw was Barber seated at a poker table and Amrine pacing, clutching a red handkerchief that he usually wore on his head. When he got back, Barber was dead and Amrine said he had killed Barber.
The second witness who testified against Amrine was Jerry Poe, who was in prison for burglary and escape. Barber's death had scared him. Only twenty, he was afraid of the men around him. He wanted guards to keep him safe; investigators wanted him to tell them what had happened. "All I wanted was to check in for a while until things cooled down, but Brooks wanted me to say things I hadn't seen and didn't know about," Poe testified in a hearing years after Amrine's conviction. "I kept telling them that I was playing cards and was turned the wrong way to see what went down. They kept trying to put words in my mouth like I had seen what happened."
After prison officials sent Poe, under protective custody, to the nearby Cole County Jail, suddenly it was too late for him to back out. "Brooks told me if I didn't say what they wanted me to they would put me back in supermax and pass the word that I'd made a statement anyway," he later testified. "I was already afraid for my life, so I thought I had no choice. I knew these cops were serious, and I was afraid."
On October 21, 1985, Poe offered investigators a written account of what he had supposedly seen: Barber was at the punching bag when Amrine sneaked up on him from behind, pulled the rod from his waistband and thrust it into Barber's back, under his left shoulder blade. He then pulled the rod out of Barber, turned and ran back toward a group of people at the other end of the room.
The third witness against Amrine was Randy Ferguson, who in 1985 was a skinny nineteen-year-old from St. Joseph serving a five-year sentence for delivering marijuana and a one-year sentence for second-degree burglary. Ferguson had quickly come under the heel of an inmate named Clifford Valentine, who repeatedly forced Ferguson to have sex with him in exchange for protection. If Ferguson refused, he got his ass kicked.
For months, investigators grilled Ferguson about what he'd seen the day of the murder. And for months Ferguson said he hadn't seen anything. As late as April 8, 1986, just before Amrine's trial, Ferguson told Brooks he hadn't seen Amrine or anyone else stab Barber.
In depositions conducted a few years later, Brooks explained why he had continued to work over Ferguson: "From my professional opinion ... Ferguson was very easily coerced. In other words, his particular situation inside the penitentiary was what a person told him to do. And the person that I would refer to would be what I consider to be his homosexual partner or 'daddy,' if you want to refer to it in that name. As long as he's under his influence, he's going to do what he says."
By April 1986, Brooks had put Ferguson under his influence. After he denied seeing the murder, Ferguson later testified, Brooks turned off the tape recorder and asked whether Ferguson would change his story in return for a transfer to the Cole County Jail. Investigators knew what was happening to Ferguson. "I was having a hard time living with myself," Ferguson later testified. "It was -- oh, it was real important, because it hurt, you know, so much. Not just physically to be raped, but inside, you know. So it was real important. I just couldn't take it no more."
Brooks found other pressure points. According to Ferguson's testimony, Brooks warned Ferguson he might be charged with Barber's murder if he didn't cooperate -- at the least, Brooks and other prison officials would make sure word got out that he was a snitch. Ferguson knew snitches got stabbed or set on fire or worse. So on April 16, 1986, he signed an agreement that he would testify against Amrine in exchange for dropping a weapons charge. (That spring, prison guards had found a knife in Ferguson's cell.)
Ferguson's new account: On the afternoon of the murder, he had seen Amrine walk over to Barber, who was sitting near the TV. The two men talked for a few minutes, then started walking back and forth across the rec room. With Amrine's hand on Barber's shoulder, they made five or six passes before Amrine pulled a knife from his waistband and stabbed Barber. Then Amrine took off running. Barber pulled the knife out of his back and chased Amrine until he collapsed.
For his cooperation, Ferguson earned a transfer to Cole County Jail and a radio.
And on April 28, 1986, Amrine went on trial for Barber's murder. He wore an orange jumpsuit for the short ride from the prison to the Cole County courthouse, where he sat with the shackles on his legs attached to a metal hook under the table. The jury was cleared from the room before his testimony so that Amrine could be moved from the table to the witness stand. "What could they possibly be thinking about my testimony when I had two sheriffs standing behind me with hands on their guns?" he wonders now. Amrine also remembers the judge, Byron Kinder. "[He] looked at me like I had shit on me," Amrine says.
The three witnesses were telling different stories. Russell said he wasn't in the room. Poe said Amrine sneaked up on Barber, stabbed him and then pulled out the knife. Ferguson said Amrine and Barber were walking side by side for several minutes before Amrine killed him, leaving the knife in.
At the end of Amrine's four-day trial, he was sentenced to death.
Amrine's current attorney, Sean O'Brien of the Public Interest Litigation Clinic, theorizes that Brooks obtained the testimony implicating Amrine because he was more interested in clearing his caseload than solving crimes. Amrine says he has since transformed himself into "friendly-ass Joe" -- no trouble now, no fights, no rapes and a GED. But at the time of the murder, his reputation for bad behavior made him a convenient suspect. "I'm not sure this whole thing grows out of a plot to frame Amrine so much as 'There's a murder, here's our theory, let's put a case together and win,'" O'Brien says. "There's a general presumption that all the inmates are guilty of something."
In depositions, Brooks admitted to O'Brien that "it would be a fair statement" to say that investigators sometimes edited prisoners' statements to fit their own theories. Brooks agreed that he sometimes ironed out inconsistencies in stories prisoners told officers.
Brooks, now a captain with the Cole County Sheriff's Department in Jefferson City, declines to discuss Amrine's case. Former prosecutor Brown says O'Brien is simply doing what a defense attorney is supposed to do: throwing up any and all possible doubts that might save his client. "I have absolute confidence in [Brooks'] professional ability and his integrity," Brown says.
Amrine doesn't know what he would be doing if the verdict had been different. He would have been released from prison before 1997, the year his mother died. He figures if he earns $7.50 a month in prison mopping and cleaning, he could earn that much an hour in the real world. He says he can't imagine himself getting in trouble again. Even before his time on death row, he had earned his GED. He knew that if he didn't change his aggressive attitude, it would kill him -- in those days, fights almost always turned into one guy trying to kill the other.
At the beginning of a jury trial, a defendant is presumed innocent. A defendant already serving time may be presumed less innocent. Still, Amrine's original jurors might ultimately have doubted the testimony of three jailbirds whose stories didn't match. But Julian Ossman, the state public defender who had been appointed to represent Amrine, helped the prosecution's case more than his client's.
Prison guard John Noble had also been in the rec room on the afternoon of the murder. Noble testified that he'd seen a man running away from Barber immediately after Barber had been stabbed. Noble's testimony has remained the same for seventeen years; however, during Amrine's trial, Noble said he didn't know at first that Terry Russell was the man's name -- a point of confusion that prosecutor Brown used to neutralize Noble's testimony and that Ossman did not attempt to clarify.
Ossman also failed to call two witnesses who would have testified that Amrine was innocent. An inmate named Ronnie Ross, who would later testify that he was playing cards with Amrine at the time of the murder, did not testify in 1986. Inmate Kevin Dean testified in 1998 that Amrine was playing poker and Barber was working out on the punching bag when Russell stabbed Barber. But Dean never took the stand during Amrine's 1986 trial -- though he was waiting in the hallway outside the courtroom for just that purpose.
Ossman never cast any doubt on Russell's story. He didn't mention Russell's fight with Barber ten days before the murder, and he didn't question Russell's alibi. Russell claimed that when he'd left the rec room to get aspirin, he'd chatted with an inmate he identified as Harry Heard or Hurd. No man with either name was listed as an inmate at the prison the day Barber was killed.
The jurors never heard the discrepancies in the different versions of the murder -- prosecutor Brown presented Ferguson's story of Amrine and Barber's side-by-side stroll as the only account. O'Brien believes this was part of Brown's strategy to "bank on Ossman's incompetence." O'Brien adds, "With a competent defense lawyer, Brown would have not gotten away with that."
Jury foreman Russell Gross didn't trust convicts, and he later told O'Brien that the jurors were pretty much convinced from the beginning that Amrine was guilty. Juror Larry Hildebrand told O'Brien that when Ossman presented his case, it was as if he was meeting his witnesses for the first time. In the case of Brian Strothers, Ossman actually was: On the day Strothers was to testify, Ossman hastily interviewed the witness in the hall while the courtroom waited.
Amrine recalls that Ossman met with him only once before the trial, in a session with eight other inmates.
"There was a sharp contrast between the contradictory and faltering testimony of the defense witnesses and the very well rehearsed and cogently presented state's case," Hildebrand says.
When the trial was over, Hildebrand wondered on the drive home whether Amrine was guilty and had no defense or had been assigned a lawyer who had put on "the worst job of representation you could ever have."
Ossman, now in private practice in Jefferson City, did not return several phone calls seeking comment for this story. No complaints have ever been filed against Ossman, according to the state's Office of Chief Disciplinary Counsel.
Jurors Hildebrand and Gross have read the recanted testimonies. Both now think the jury made the wrong decision.
"Based on all the evidence I have seen and heard in this case, I believe that Joe Amrine is innocent," Gross wrote in a statement last year.
Once the presumption of innocence is gone, the appeals process is stacked against the party found guilty. In Missouri, verdicts that result in death sentences are automatically appealed to the state Supreme Court. This court does not consider new evidence; it only reviews the motions and objections of the trial record to make sure the trial was conducted fairly. If the state Supreme Court does not send the case back to the trial court, the defendant can file a petition asking the U.S. Supreme Court to review the proceedings of the lower court to determine whether there were any irregularities.
If the U.S. Supreme Court doesn't review the case (it usually doesn't, and it didn't for Amrine), a defendant can appeal to the original trial court. This is essentially the only time a defendant can present new evidence. Amrine's post-conviction hearing was held in Jefferson City in 1989. Both Ferguson and Russell had recanted their testimony by then, but the lawyer handling Amrine's case hadn't contacted Poe, and with his [Poe's] testimony unchanged, Circuit Judge A.J. Seier did not overturn the conviction. Amrine was transferred to the Potosi Correctional Center in May 1989. He filed two more appeals, again to the State Supreme court and the U.S. Supreme Court. Both were futile.
In Missouri, most death-penalty defendants are represented by the Missouri Public Defender System, with several lawyers on hand to shepherd a case from trial through appeals. Defendants who need a public defender are assigned one from the jurisdiction where the trial takes place. If a prosecutor seeks the death penalty, the defense is turned over to the Capital Litigation Division, and two new attorneys are assigned for trial. If a defendant is convicted and sentenced to death, the automatic appeal to the Missouri Supreme Court is handled by a fourth defense attorney, an appellate specialist. If the appeal is affirmed by the state Supreme Court but is not granted a hearing by the U.S. Supreme Court, it goes back to the circuit court for a post-conviction appeal, and the defendant is represented by his fifth and sixth public defenders. If the circuit court upholds the death sentence, a seventh attorney handles another appeal, returning the case to the state Supreme Court.
Missouri created the Capital Division and poured money into training attorneys in the late 1980s, O'Brien says, as a way to improve what was then an inefficient death-penalty system. For a while, the system was so backlogged that the state couldn't find attorneys to represent 22 death-row inmates, including Amrine. Although none of these men went to court without a lawyer, O'Brien says, "There were people who went to court and met their lawyer for the first time. Experienced and qualified lawyers would be the exception, not the rule."
In 1990, the American Bar Association released a study of state death-penalty cases, which concluded that "the principal failings of the Capital Punishment review process today are the inadequacy and inadequate compensation of counsel at trial and the unavailability of counsel in state post-conviction proceedings."
As of April, 65 men sat on Missouri's death row. Since 1989, the state has carried out 56 executions, half of them in the last four years. Six inmates were executed for prison murders: One killed a guard; the other five killed fellow inmates. Just a few years after Barber's murder, for example, a group of prisoners armed with knives attacked another inmate; prisoner Sam Smith tried to intervene, wound up in a knife fight with one of the assailants and stabbed the man nineteen times.
"Particularly in Jefferson City and Cole County, just about every prison murder was a death case, just as a matter of policy," says Kent Gipson, an attorney with the Public Interest Litigation Clinic. "I think the prosecutors know committing a murder in prison gives them one of the best arguments to get the death penalty."
Karen Kraft, director of the Capital Litigation Division of the Missouri Public Defender System, says prosecutors "frequently" seek the death penalty in prison killings. "If it's a guard, in particular, they want to be able to say, 'If you kill a guard, we're going to get you.'" When an inmate is charged with killing another inmate, Kraft says, the accused killer is often already serving time for a serious crime, so prosecutors think that "if they don't prosecute harshly, people would be killing each other right and left."
Brown contends that getting a jury to convict any defendant -- even a prison inmate -- in a death-penalty trial isn't easy. Still, defense attorneys begin prison murder cases at a distinct disadvantage. "The problem with prison killing cases is, you're gonna get a lot of closed doors," Kraft says. "The prison is not going to be forthcoming in giving information. Emotions run high because guards and prisoners are in there together." And unlike defense attorneys, prosecutors can cut deals with prisoners. "If they're making deals with inmates, that is not the most reliable testimony," Kraft notes. "Gee, what kind of incentive do they have to necessarily tell the truth?"
Amrine's unsuccessful state appeals were exhausted by 1990, and during those years Amrine had been represented by a number of attorneys, many of them inexperienced in death-penalty appeals. After Amrine used up his state appeals, he filed for habeas corpus, a petition that claims unlawful imprisonment, in U.S. District Court. The motion was transferred to the court of Judge Fernando Gaitan in Kansas City, who had the case under review for six years, until 1996.
Although the three men who testified against Amrine recanted at different times in the years after the murder, their statements weren't heard at the same time until a 1998 hearing in Gaitan's courtroom.
Ferguson had been the first to recant, at Amrine's 1989 post-conviction hearing. Over the years, he said, he had become so distraught about lying that he was prepared to confess to Barber's murder himself. "I would rather myself die than to see him die because of me," he later told O'Brien. (Ferguson claimed he had actually tried to kill himself several times by slashing his wrists and once by slashing his throat, a wound that required 32 stitches.)
Ferguson now claimed he wasn't even in the rec room on the afternoon of the murder. He said he'd been working out on the punching bag and had gone to the bathroom to wash. When he came back, Barber was dead, "laying in front of the door in his blood."
Russell also changed his story for the 1989 hearing, saying that the reason he had falsely testified was to avoid being prosecuted himself for killing Barber. Russell still maintained he had left the rec room at the time of the murder and didn't know where Amrine was when Barber was stabbed.
"It was wrong for them to use me to get to that man," Russell says now. "Flip a coin: heads or tails. One side says I did it. The other side says he did it. The reality is, they don't know who did it."
Judge Gaitan's first ruling, on February 29, 1996, six years after receiving the case on appeal, had reaffirmed the decision from the 1989 post-conviction hearing. "Despite the new evidence presented at trial by witnesses Russell and Ferguson," Gaitan wrote, "it cannot be said that it is more likely than not that no reasonable juror would have found [Amrine] guilty beyond a reasonable doubt in light of the continued existence of witness Poe's testimony."
Though two witnesses had recanted their testimony, it took only one witness to uphold the murder conviction.
O'Brien and PILC got involved when the case went on to the federal 8th Circuit Court of Appeals in 1997. The PILC had been formed in 1995 around the remains of the Capital Punishment Resource Center, which had been founded at the University of Missouri-Kansas City to train lawyers to handle capital cases.
O'Brien's first step was to track down Jerry Poe, who was serving time at the Missouri Eastern Correctional Center in Pacific. When O'Brien contacted Poe, he didn't know whether Poe would stand by his original testimony. But Poe claimed that he had tried to "let several people and the court system know what really happened" by writing letters to a federal judge and the state Supreme Court, among others. "No defense attorney or investigator had ever questioned me about this case," Poe said.
On the day of the murder, he told O'Brien, he was playing cards when he heard a commotion behind him. He turned to see Barber chasing someone, but he didn't know whether it was Amrine or someone else. He hadn't seen the stabbing. He didn't know who Amrine was or where he was.
"[Brooks] told me, you know, that they were going to give -- do some stuff for me and all this," Poe later testified. "And whenever they wanted to change something around, they'd just stop, and he changed it around whenever he done it, you know, as he went along, typing it up."
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.
Subscribe now to get the latest news delivered right to your inbox.