IN THE MATTER OF:
TO: '
GEORGE B. HARRIS
Potosi Correctional Center
Mineral Point, MO 63660
THE HONORABLE MEL CARNAHAN,
Governor of the State of Missouri
PETITION FOR EXECUTIVE CLEMENCY AND/OR
COMMUTATION OF A DEATH SENTENCE
Respectfully submitted,
SPENCER FANE BRITT & BROWNE LLP
GARDINER B. DAVIS #29127
MARK A. THORNHILL = #26326
1000 Walnut, Suite 1400
Kansas City, Missouri 64106
Telephone: 816/474-8100
Facsimile: 816/474-3216
ATTORNEYS FOR PETITIONER
WA 556208.1
MINERAL POINT, MO 63660
IN THE MATTER OF )
)
GEORGE B. HARRIS ) THIS IS A DEATH PENALTY CASE.
) EXECUTION IS SET FOR
POTOSI CORRECTIONAL CENTER ) SEPTEMBER 13, 2000
)
)
PETITION FOR EXECUTIVE CLEMENCY AND/OR COMMUTATION OF A DEATH
SENTENCE
TO: THE HONORABLE MEL CARNAHAN,
Governor of the State of Missouri
Comes now George B. Harris, by and through counsel, Gardiner Davis and Mark Thornhill,
and petitions the Governor for an order under Missouri Constitution Art. IV, Section 7 and Sections
217.800 and 217.220 Mo. Rev. Stat. (1994), granting him a new trial, or an order that his sentence
be commuted from death to life imprisonment without eligibility for parole. In the alternative, Mr.
Harris petitions for a stay of execution pending an investigation by a board of inquiry appointed
pursuant to Section 552.070; such board of inquiry being necessary and appropriate to reconsider
the circumstances of Mr. Harris’s conviction.
I. SUMMARY OF REASONS JUSTIFYING EXECUTIVE CLEMENCY
George Harris’s life should be spared because:
e Carrying out his death sentence would be an extreme miscarriage of justice.
His sentence is grossly disproportionate to the facts of his case. At the very
most, Mr. Harris is guilty of second degree murder, and is probably not guilty
WA 556208.1
of any homicide, since he shot the victim without deliberation and in self
defense, as attested by a disinterested eyewitness.
e Witnesses whose testimony would have helped prove that Harris was acting
in self defense, that the victim had a reputation for violence, and that this
homicide was not premeditated, were not heard by the jury due to the
incompetence of trial counsel.
e The only prosecution witness who claimed to have seen the shooting,
Michael Taylor, was himself crack dealer whose account of events provided
the sole basis to suggest that Harris did not act in self defense.
ll. INTRODUCTION
George B. Harris has been on Missouri’s death row for over 10 years as a result of firing one
shot during an argument with a man he did not know. Due largely to the incompetence of his trial
counsel, Mr. Harris’s story that he lawfully acted in self defense against a violent man who was
physically threatening him was never effectively told or properly presented to a Missouri jury. The
absence of deliberation and the need for self defense remove this case from the category of first
degree murder. On the facts of this case, George Harris should never have been eligible for the death
penalty.
Missouri permits the death penalty to be imposed only for the crime of first degree murder.
This category is reserved for the most heinous murders: those that are done with "malice
aforethought," or premeditation. Without this element, a defendant may be convicted of no more
than second degree murder, and is ineligible for the death penalty.
WA 556208.1
Mr. Harris’s first degree murder conviction resulted from the incompetence of his trial
counsel, who remarkably tried the case without having located and interviewed the eyewitnesses to
the shooting. Because of his deficient investigation, counsel failed to contact Ben Brown, a
disinterested eyewitness whose testimony would have corroborated Mr. Harris’s self defense claim.
The Seats of finding Brown was glaringly obvious, since he was listed as an eyewitness in the
police report. Mr. Brown, in a sworn affidavit obtained by Mr. Harris’s present counsel, states that
he was never contacted by Harris’s trial counsel, but that if he had been asked, he would have
testified that he saw Willoughby, the victim, arguing with Harris, then reaching for his gun, when
Harris shot him. At Harris’s trial, the only eyewitness called by the state was the victim’s best
friend, Michael Taylor, who testified that Harris gunned down Willoughby in a merciless manner.
Harris, who testified on his own behalf, stated that he shot the victim in self defense. Thus, the jury
was left with the dilemma of which self-interested witness to believe, and Ben Brown’s eyewitness
testimony would have been crucial in establishing Harris’s self defense claim. To put Harris to death
because of the sloppy, ineffective defense of his trial counsel would be unconstitutional and palpably
unfair.
I. - STATEMENT OF THE CASE
Harris’s conviction arose from the shooting of Stanley Willoughby in the living room of a
drug house owned by Michael Taylor in Kansas City. The shooting took place on the evening of
March 11, 1989, during an argument between Harris and Willoughby regarding Willoughby’s failure
to return a pair of guns owned by Harris. Harris, testifying on his own behalf at trial, explained that
during the course of the argument Willoughby appeared to reach for his gun. In reaction, Harris
WA 556208.1
jumped up from his chair, moved sideways, and fired one shot in an effort to stop Willoughby. No
other shots were fired.
Michael Taylor, who acknowledged that Willoughby had been his best friend, was the only
eyewitness besides Harris who testified at Harris’s trial. Taylor, who was also a drug dealer, told
a different version of events, namely that the shooting was unprovoked and sudden. Although the
police report identified several possible eyewitnesses to the shooting, only Harris and Taylor
appeared at trial. Ben Brown, who was in the house that evening and witnessed the shooting, was
not contacted by Harris’s trial counsel and did not testify at his trial. Had he been called, Brown
would have stated that Willoughby was the aggressor in the dispute and appeared to be reaching for
a gun when Harris jumped up and shot him.
After hearing eyewitness testimony only from George Harris and Michael Taylor, the jury
found Harris guilty of first degree murder and sentenced him to death. His appeals to the Missouri
Supreme Court and his habeas corpus petitions to the federal courts with appropriate jurisdiction
have been unavailing. See State v. Harris, 870 S.W.2d 798 (Mo. 1994); Harris v. Bowersox, 184
F.3d 744 (8th Cir. 1999). Mr. Harris has exhausted all legal remedies available to him. Therefore,
for the following reasons, executive clemency is warranted.
IV. GEORGEHARRIS’S ACTIONS DO NOT WARRANT A FIRST DEGREE MURDER
CHARGE, AND LIKELY WARRANT NO MURDER CHARGE AT ALL
First degree murder, with the possibility of a death sentence, is an unusual, statutorily created
category of homicide allowing the most severe punishment for extremely heinous crimes. The
essential element of first degree murder is cool, unimpassioned premeditation, sometimes called
"malice aforethought." In Harris’s case, even assuming all the state’s evidence against him to be
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true, Harris shot Willoughby suddenly during a quarrel. This inescapable fact compels the
conclusion that Harris was not acting with cool premeditation.
Under Missouri law, a person commits first degree murder when he "knowingly causes the
death of another person after deliberation upon the matter." Mo. Rev. Stat. § 565.020(1) (1994).
The asso Supreme Court describes the deliberation necessary for a first degree murder charge
as a "cool and deliberate state of mind." State v. Simmons, 955 S.W.2d 729 (Mo. 1997). The
element of deliberation is what separates first degree murder and second degree murder; only first
degree murder requires unimpassioned premeditation that the law calls deliberation. See State v.
Rousan, 961 S.W.2d 831 (Mo. 1998).
George Harris shot Stanley Willoughby in the living room of a crack house during an
argument. Willoughby was the "doorman" at this crack house, and was well known as a tough,
violent character. Ex. A at 1. Kendra Remmer, Willoughby’s girlfriend and mother of three of his
children, stated in an affidavit that he almost always carried his 9mm Beretta with him and that he
was well known as a tough and violent fighter. Ex. B at 1. The prosecution presented no evidence
that Harris, prior to the evening in question, had ever met Willoughby, much less that he had any
reason to want to kill him.
Harris had left two guns for safekeeping at the home of Michael Taylor. When he went to
Taylor’s house that evening to retrieve his property, Willoughby was at his post; when he could not
produce the property, an argument ensued. The argument apparently lasted several minutes, and got
quite heated, with raised voices and threatening gestures. See State v. Harris, 870 S.W.2d 798, 804
(describing the facts of the case); Ex. A at 2. The record contains inconsistent statements about the
exact number of witnesses, but it is clear that several bystanders were present in the downstairs area
a6% WA 556208.1
of Taylor’s house. It was in the downstairs living room of this drug house, and during the heated
argument, that Willoughby appeared to reach for his waist, where he was known to keep his gun, and
Harris fired a single shot that proved fatal. Ex. A, Affidavit of Ben Brown, at 1-3; Ex. C, Trial
Transcript at 873-76.
That Harris shot and killed Stanley Willoughby is not in dispute; but his state of mind when
he did so presents the crucial distinction between a lawful first degree murder charge and a mere
second degree murder case. The evidence showed that Harris shot Willoughby in the midst of an
argument. This obviously fails the test of a killing that follows cool, unimpassioned deliberation
upon the matter. The death sentence imposed on Harris for his actions that evening is grossly
disproportionate to his crime, and to carry it out would result in a miscarriage of justice.
Furthermore, there is substantial evidence that Harris acted in self defense. The issue of self
defense is normally a question decided by the trier of fact. In this case, the jury essentially had to
choose between Michael Taylor’s version of the events and Harris’s, since neither side presented
corroborating evidence or testimony. The crucial evidence to corroborate Harris’s testimony was
available through the disinterested witness Ben Brown. Harris’s trial counsel did not even contact
Mr. Brown, however, and as a result, the jury never heard his evidence that Harris acted in self
defense. Upon being contacted by current counsel assigned to the case after the trial, Brown stated
that he saw the shooting and that Willoughby appeared to be reaching for his gun when Mr. Harris
shot him. Thus, given this fresh information that has come to light, granting executive clemency
would not overrule any decisions made by the jury, but would simply take into account compelling
information that the jury never heard.
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Vv. GEORGE HARRIS’S CONVICTION IS UNCONSTITUTIONAL DUE TO THE
INEFFECTIVE ASSISTANCE OF HIS TRIAL COUNSEL
Every accused has the right, under the Sixth Amendment to the United States Constitution,
to be effectively represented by counsel in the defense of criminal charges. Competent legal
assistance is a "fundamental component of the criminal justice system." See United States v. Cronic
466 U.S. 648, 653-54 (1984). Failure to provide an accused with the effective assistance of counsel
is a fundamental constitutional error that undermines the entire trial process. See Thomas v. Wyrick,
535 F.2d 407, 413 (8th Cir. 1976). Mr. Harris’s trial counsel provided a level of assistance that falls
below the constitutional threshold, and his sentence should be commuted because of the
constitutional infirmities.
The United States Supreme Court has set out a two-part test for determining whether
assistance of counsel falls below the level of competence the Constitution requires. First, the
assistance of counsel must have been less than objectively reasonable. Second, the incompetence
must have prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The
first prong, reasonable performance by counsel, includes the requirement of a reasonable
investigation of the facts or a reasonable decision that a particular investigation is unnecessary. See
Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993).
The assistance provided by Harris’s trial counsel was less than objectively reasonable. One
of defense counsel’s most fundamental obligations is to identify and present those witnesses who
could help their client’s defense. Ben Brown’s name was mentioned in the police report of the
incident as an eyewitness. Eyewitness testimony would clearly be crucial in establishing Harris’s
‘claim that he acted in self defense when he shot Willoughby. Despite this glaring need to contact
-8- 7 WA 556208.!
all possible witnesses, Harris’s trial counsel never attempted to contact Brown. It is of no moment
that Brown was listed in the police report only as "Ben," a 15 year old black male, with no last name
given. Harris’s trial counsel conducted a pretrial interview of Jarlath Potts, one of Brown’s friends
who was at the scene with him, but failed to ask him the obvious question: "Who else was there with
you and how can I contact them?" Failing that, it would not have been difficult, and indeed would
have been the reasonable course of action, to at least try to contact all the witnesses listed in the
police reports. Trial counsel’s failure to do so makes the assistance he rendered below the level
required by the Constitution.
The ineffective assistance clearly prejudiced Mr. Harris, and the second prong of the test for
constitutionally deficient assistance of counsel is thereby satisfied. Brown stated in his affidavit that
Harris didn’t "mean anything to him," Ex. A at 3, and there is no evidence contradicting his status
as a disinterested witness. As stated earlier, the jury in this case was essentially left with a swearing
match between Harris and Taylor, both of whom had a personal interest in the outcome. Brown’s
statement of the events, which corroborates Harris’s account onall crucial points, clearly would have
been very influential, and maybe dispositive, in the jury’s determination of whom to believe.
Trial counsel further failed to locate or interview Kendra Remmer, Willoughby’s common-
law wife and the mother of three of his children. Had he bothered to speak with her, counsel would
have been ina position to buttress Ben Brown’s testimony regarding Willoughby’s violent reputation
and his penchant for firearms. Ms. Remmer would have stated that Willoughby was, like Michael
Taylor, a crack dealer who was known to be violent and who habitually carried a gun. Affidavit of
Kendra Remmer, Ex. B. She would have testified that the shooting had occurred at Michael Taylor’s
crack house. Her testimony would have confirmed the atmosphere of fear that was present when the
oie WA 536208.1
confrontation between Harris and Willoughby took place. Because of counsel’s inadequate
investigation, however, the jury never heard this crucial testimony.
VI. THE GOVERNOR SHOULD, AT THE VERY LEAST, APPOINT A BOARD OF
INQUIRY TO HEAR AND WEIGH THE TESTIMONY OF BEN BROWN AND
KENDRA REMMER
The Missouri Legislature, in an effort to ensure due process to those sentenced to death, has
provided a mechanism to assist the Governor in his review of clemency petitions. Section 552.070
of Missouri’s criminal code provides that the Governor may, in his discretion, appoint a special
board of inquiry to investigate information bearing upon whether a person condemned to death
should be granted pardon, reprieve, or commutation of sentence. Mo. Rev. Stat. § 552.070 (1994).
This board’s information gathering can include information not admissible in a court of law.
Governor Carnahan should appoint a special board of inquiry in this case to investigate new
information that has come forth and ensure that justice is done. Mr. Harris has been on death row
for ten years now. Spending a few more months to ensure that justice is being done, when a man’s
life is at stake and compelling evidence exists that he may not be guilty at all, is the right thing to
do.
A. The testimony of Ben Brown and Kendra Remmer, not heard at Harris’s
trial, should be heard and evaluated now.
While it is true that Brown’s testimony was considered by appellate courts after Harris was
already sentenced to death, it was not presented to the jury, who made the first and most important
determination of Harris’s guilt. Kendra Remmer’s testimony has been considered by no court. In
the interest of preventing a miscarriage of justice, the witnesses that trial counsel failed to call should
be allowed to give their testimony. The appointment of a board of inquiry would provide a forum
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to assure that Harris is not put to death without the consideration of all relevant testimony, not just
what was presented in court.
B. Harris’s prosecutor has publicly stated that the additional evidence
tending to prove the innocence of Harris should be heard and evaluated.
George Harris is not alone in suggesting that his case merits further review. Patrick Peters,
who prosecuted Harris’s case, has recently publicly proclaimed his belief that evidence that Harris
acted in self defense should be heard and considered before Harris’s sentence is executed. In a
recent interview, he said "If there is a possibility that... Harris ax in self defense, then it should
be litigated. ... [I]fthere’s a real issue as to whether or not he acted in self defense, don’t execute
somebody when that issue is still hanging out there." Dateline Kansas City, KSHB-TV, May 14,
2000. A review board should be given the opportunity to consider the statements of Ben Brown and
Kendra Remmer and conduct its own review of the facts of this case to ensure that justice is api
VII. CONCLUSION
George B. Harris will die on September 13" unless Governor Carnahan exercises his
constitutional power to grant a pardon, commutation, or stay of execution. The wisdom of the
Missouri Legislature in deciding to leave the final fate of a person condemned to die in the hands
of the Governor, not the courts, is apparent in this case. Due to incompetent trial counsel, the jury
never heard the testimony of Mr. Harris’s most important corroborating witnesses. Subsequent
appellate court decisions did not rectify this mistake. Now Governor Carnahan has a chance to
ensure that justice is truly being done by fully considering the testimony that a competent lawyer
would have presented at Harris’s trial. Basic principles of justice and evenhandedness in applying
the laws compel only one conclusion: George Harris’s death sentence should not be carried out. His
-ll- WA 556208.1
punishment is totally disproportionate to his crime, and he may not be guilty of any crime at all. For
the foregoing reasons Governor Carnahan should exercise his power of executive clemency.
Respectfully submitted,
SPENCER FANE BRITT & BROWNE LLP
Gardiner B. Davis, MO #29127
Mark A. Thornhill, MO #26326
1000 Walnut, Suite 1400
Kansas City, MO 64106
Telephone: 816/474-8100
Facsimile: 816/474-3216
| ATTORNEYS FOR PETITIONER
Dated this day of 2000.
-12- : WA 556208.1
