IN THE MATTER OF: MARTSAY BOLDER (2%8 Sob
Potosi Correctional Center >
Mineral Point, Missouri 63660 Vad Qs
APPLICATION FOR A REPRIEVE FROM, OR
COMMUTATION OF, A SENTENCE OF DEATH
TO: The Honorable Mel Carnahan
Governor of the State of Missouri
I. INTRODUCTION
Martsay Bolder, through his attorney, respectfully submits
this application seeking a reprieve or commutation of his death
sentence to the Honorable Governor Mel Carnahan. The application
is submitted pursuant to Article IV, § 7 of the Missouri
Constitution and R.S.Mo. §§ 217.800 and 552.070.
Mr. Bolder’s execution currently is scheduled for January 27,
1993. :
Mr. Bolder requests that the Governor issue a reprieve, or
stay, of the execution date and time. A reprieve is necessary
because Mr. Bolder has recently obtained evidence demonstrating
that, as a matter of law, he is not guilty of capital murder and,
therefore, is not eligible for the death penalty. This evidence
will be submitted to the United States District Court for the
Eastern District of Missouri through a petition for a writ of
habeas corpus.' The Court has not yet had the opportunity to
examine the evidence and a reprieve is necessary to ensure that Mr.
'The petition has not yet been filed because Mr. Bolder has not
had an opportunity to sign the petition. Although Mr. Bolder’s
attorney mailed the petition to Mr. Bolder on January 7, 1993, as
of this time, it has not been delivered to Mr. Bolder for his
signature. The petition cannot be filed without Mr. Bolder’s
signature.
Bolder is not executed while the evidence of his innocence awaits
a court hearing.
Alternatively, Mr. Bolder requests that the Governor commute
his sentence to life in prison without the possibility of parole
for 50 years pursuant to R.S.Mo. § 565.008 (capital sentencing
statute in force at the time of Mr. Bolder’s trial; repealed 1983).
Commutation is appropriate because the death sentence is
disproportionate to any crime Mr. Bolder committed and because Mr.
Bolder’s death sentence is the direct result of constitutionally
deficient effort by his state-appointed trial lawyer.
Mr. Bolder also suggests that a reprieve of the sentence
should be issued while the Governor considers the request for
commutation. A reprieve of at least 90 days is necessary in order
to ensure that the Governor has adequate opportunity to consider
the report and analysis of the Board of Probation and Parole and,
if desired, the report and analysis of a Board of Inquiry, as well
as adequate opportunity for personal consideration of this
application.
Finally, Mr. Bolder respectfully requests an opportunity to
present evidence and argument in support of this application to
Governor Carnahan and the Board of Probation and Parole, or to a
Board of Inquiry, as contemplated by Missouri Supreme Court Rule
30.30. Only through these processes can this application receive
the full and fair review it deserves.
The inappropriateness of Mr. Bolder’s sentence has been
recognized and written about by judges in every judicial forum
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where his case has been heard. In the Missouri Supreme Court Judge
Seiler and Judge Bardget described Mr. Bolder’s death sentence as
"excessive and disproportionate". State v. Bolder, 635 S.W.2d 673,
691-92 (Mo. banc 1982), cert. denied, 459 U.S. 1137 (1983).
(Seiler, J. dissenting in which Bardget, J. concurs). In the
federal courts, the district judge who heard Mr. Bolder’s previous
habeas corpus petition and judges of the Eighth Circuit Court of
Appeals have concluded that Mr. Bolder’s death sentence is the
direct result of inadequate lawyering and that a life sentence
would have been issued if Mr. Bolder’s trial lawyer had performed
adequately. Bolder v. Armontrout, 713 F. Supp. 1558, 1567 (W.D.
Mo. 1989) (Bolder I); Bolder v. Armontrout, 921 F.2d 1359, 1370
(8th Cir. 1990), cert. denied, 112 S. Ct. 154 (1991) (Bolder IT)
(Lay, C.J., dissenting); Bolder v. Armontrout, 928 F.2d 806 (8th
Cir. 1991) (Bolder III) (Lay, Cc. J3., specially dissenting from
denial for petition of rehearing en banc with whom McMillian, J.,
concurs).
Despite the repeated judicial concern over Mr. Bolder’s
sentence, he has not been able to obtain relief in the courts. The
federal district court, on habeas corpus review, determined that
Mr. Bolder’s sentence was unfair and granted habeas corpus relief.
However, the district court’s order was reversed by the Eighth
Circuit Court of Appeals on a technical issue of procedural law.
The circuit Court did not disagree with the district court’s
conclusion that, on the merits, Mr. Bolder’s sentence was unjust,
but sent him back to death row.
In this paper, Mr. Bolder describes the facts relating to his
conviction, and demonstrates that a reprieve should be issued, or
alternatively, that his sentence should be commuted.
II. BACKGROUND FACTS
Martsay Bolder entered the Missouri State Penitentiary at age
seventeen. Despite his young age, Mr. Bolder had been certified as
an adult and convicted on a second degree murder charge. The
Missouri State Penitentiary is a difficult place for any inmate but
it presented special dangers for young Mr. Bolder. The principal
source of this danger was inmate Theron King.
A. The Stabbing And subsequent Death Of King
Early in 1979, Theron King was assigned as Mr. Bolder’s cell-
mate. King was twenty years older than Mr. Bolder and he used his
age and experience to taunt and harass Mr. Bolder. For example,
King told Mr. Bolder that he knew, but refused to disclose, the
circumstances of the murder of Mr. Bolder’s older brother. King
also spread gossip that Mr. Bolder was engaged in homosexuality.
King’s harassment continued after he was removed from Mr. Bolder’s
cell. Eventually, the harassment became too much for Mr. Bolder.
In April, 1979, King saw Bolder in the jail yard and started to
call him names, including "pussy assed nigger". Mr. Bolder
confronted King and, when King refused to retract his epithets, Mr.
Bolder stabbed King.
King incurred a wound to the abdomen that was not attended to
promptly. No surgeon was available for 45 minutes and, by that
time, King had lost a great deal of blood. An emergency surgery
was performed without the benefit of sterile conditions. King died
six weeks later. The autopsy report identified the cause of King’s
death as "generalized infection resulting from a stab wound".
If, indeed, the stab wound caused the infection that befell
King, Mr. Bolder would be legally responsible for King’s death.
The autopsy conclusion, however, seems suspect due to the passage
of time before the infection had its ultimate effect. Evidence
recently obtained indicates that the autopsy conclusion was only
half correct. King did die of an infection but the infection was
not caused by the stab wound. Rather, the infection was caused, by
hospital staff when, weeks after the stabbing, they removed fluid
from King’s chest by passing a hypodermic needle through the
location of King’s abdominal wound. Mr. Bolder believes that using
the wound area for this procedure was malpractice. The hospital’s
use of the wound area also may explain why King’s infection-related
death occurred six weeks after the stabbing.
The new evidence has not been fully investigated. Its source,
however, appears reliable. The significance of the evidence cannot
be overstated. If King really died of malpractice, rather than a
stab wound, Mr. Bolder could have been convicted of no more than
aggravated assault and he woulda not have been eligible for the
death penalty.
B. Mr. Bolder’s Trial
The newly discovered evidence regarding King’s death was not
available at the time of Mr. Bolder’s trial. The evidence
regarding the provocation leading to the stabbing and evidence
regarding Mr. Bolder’s background, however, was available.
Unfortunately for Mr. Bolder, the evidence was ignored by his
lawyer.
Mr. Bolder’s trial was assigned to a young Jefferson City
lawyer who practiced criminal law part-time and who had no
experience in capital murders. The lawyer’s preparation consisted
of speaking with his father, a doctor, regarding the medical cause
of King’s death and meeting with Mr. Bolder on five (5) occasions.
Mr. Bolder’s trial lasted only one day and virtually all of that
time was devoted to the prosecution’s case. Mr. Bolder’s lawyer
introduced no evidence and limited his closing remarks to a few
minute speech regarding the difficult burden the jury would face in
its sentencing decision.
Missouri capital punishment trials occur in two phases. In
the first phase, the jury determines the defendant’s guilt or
innocence. If the jury finds the defendant guilty of capital
murder, the second phase commences. In this penalty phase, the
jury may be presented with evidence demonstrating why the death
penalty should not be invoked. Mr. Bolder’s lawyer failed to
produce important evidence in both phases.
In the guilt phase, Mr. Bolder’s lawyer failed to present any
of the evidence regarding the despicable conduct of King and the
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anger it caused to well up in Mr. Bolder. Although such evidence
certainly would not have excused Mr. Bolder’s decision to stab
King, it would have supported a jury verdict of either first or
second degree murder for which the death penalty, as a matter of
law, could not be imposed. See State v. Bolder, supra, 635 S.W.2d
at 691-92. Moreover, if this evidence has been argued in the
penalty phase, the jury would likely have issued a life sentence.
Perhaps more importantly, Mr. Bolder’s lawyer failed to make
any investigation for witnesses who could testify at the penalty
phase of Mr. Bolder’s trial. Missouri’s capital punishment statute
allowed penalty phase evidence on any topic that could influence
the jury’s decision on life or death. Mr. Bolder’s lawyer,
however, did not read the capital murder statute carefully.
Consequently, the lawyer was not aware that he could present
mitigation evidence at the penalty phase and he conducted no
investigation for mitigation witnesses. Bolder I, supra, 713 F.
Supp. at 1567.
If Mr. Bolder’s lawyer had read the statute and looked for
mitigation witnesses, he would have been armed with valuable
penalty phase testimony. Mr. Bolder’s current lawyers, upon their
appointment to represent Mr. Bolder in his federal habeas corpus
action, promptly located neighbors, acquaintances and a counselor
to Mr. Bolder who recounted facts of Mr. Bolder’s childhood and
adolescence. In sun, these witnesses explained that Mr. Bolder
grew up in a destructive climate of poverty, violence and mental
disease. Mr. Bolder’s father was present in the home only to vent
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his wrath during drunken binges and little maternal care was
provided. Notwithstanding these remarkable burdens, Mr. Bolder was
thoughtful and considerate to his neighbors and friends and
responded admirably when able to escape the ghetto with his
counselor. Id. at 1567 (recounting evidence).
Without the benefit of any evidence demonstrating the
provocation which caused the stabbing or Mr. Bolder’s very
difficult background, it is little wonder that the jury returned a
death verdict. If the jury had heard the available evidence,
however, their verdict most probably would have been a life
sentence. The federal habeas corpus judge, who heard the evidence
believed it "inescapable" that the jury would have returned with a
life in prison verdict had Mr. Bolder’s lawyer presented the full
facts.
III. REASONS WHY A REPRIEVE OR COMMUTATION SHOULD BE GRANTED
Mr. Bolder should be granted a reprieve until his pending
habeas corpus petition is decided on the merits. Alternatively,
Mr. Bolder’s sentence should be comnuted.. Commutation is
appropriate because Mr. Bolder’s sentence is disproportionate to
his crime and because his sentence is the result of attorney
negligence.
The reasons on which Mr. Bolder seeks relief are valid. They
should not be discounted simply because all but the medical
malpractice issue previously have been presented to the courts.
The number of Mr. Bolder’s prior court proceedings does not equate
to a reasonable opportunity to present the important facts of his
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case. Indeed, all but one of Mr. Bolder’s court appearances have
been notable for their avoidance of the facts, either due to
attorney error or due to procedural technicalities relied on by the
courts to ignore the merits. The exception was the federal habeas
corpus case in which the judge found Mr. Bolder’s death sentence to
be illegal. Thus, a reprieve or a commutation by the Governor
would not “overrule” any valid fact finding of a court or jury.
Rather, an order granting a reprieve would acknowledge that
important issues regarding Mr. Bolder’s guilt remain unresolved and
an order granting a commutation would be entirely consistent with
the outcome of Mr. Bolder’s only untainted court proceeding.
Below, Mr. Bolder explains the three basic reasons that a reprieve
or commutation should be ordered.
A. Mr. Bolder should Be Granted A Reprieve Of His
Death Sentence While The Federal Court Considers
His Newly Discovered Evidence.
The evidence regarding the medical malpractice cause of King’s
death was discovered by Mr. Bolder only a few weeks ago. As soon
as an affidavit was obtained supporting the evidence, Mr. Bolder’s
lawyers filed a federal habeas corpus petition. If the medical
malpractice issue is determined in Mr. Bolder’s favor, his death
penalty will be void aa a matter of law. A ruling that King died
of medical malpractice would mean that Mr. Bolder’s crime was no
more serious than felonious assault.
A reprieve of Mr. Bolder’s sentence is necessary until the
habeas corpus petition can be ruled on the merits. If a reprieve
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is not granted, Mr. Bolder may be executed while the issue of his
guilt of capital murder remains unresolved. In order to avoid the
possibility of executing an innocent man, a reprieve should be
issued.
B. Alternatively, Mr. Bolder’s Death Sentence should
Be Commuted Because It Is Disproportionate To His
Crime
In Missouri, capital punishment may be imposed only for a
murder committed with statutorily specified circumstances. R.S.Mo.
§ 565.012.2 (capital murder statute in place at the time of Mr.
Bolder’s trial; repealed 1983; superseded by R.S.Mo. § 565.032)
All but one of the statutory circumstances focus on the motive for,
or manner of, the murder. Thus, murder for hire and murder
involving torture are crimes for which the death penalty may be
imposed. These circumstances comport with the legislature’s view
that some murders are so vile that society may be vindicated only
by taking the life of the guilty party.
Mr. Bolder is subject to the death penalty due to the lone
statutory circumstance which does not focus on motive or manner.
Mr. Bolder was sentenced to death only because his crime occurred
while he was incarcerated. R.S.Mo. § 565.012.2(9) (1978) (repealed
1983). Under the "while incarcerated" circumstance, the death
penalty may be ordered for a murder that, if it occurred outside
the prison walls, would result in a conviction of a lesser crime.
Moreover, the "while incarcerated" circumstance requires no
depravity as a prerequisite to the imposition of capital
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punishment. The circumstance, therefore, promotes disproportionate
sentences and uneven application of the death penalty.
Mr. Bolder’s case demonstrates the disproportionate impact of
the "while incarcerated" circumstance. Assuming that Mr. Bolder,
rather than medical malpractice, is responsible for the death of
King, his crime warrants a conviction of nothing greater than
second degree murder. Mr. Bolder’s crime occurred due to King’s
provocation and was not vile or shocking. Consequently, the crime
could not support a death sentence, if it had not occurred at the
penitentiary.
On the direct appeal from his conviction, two Missouri Supreme
Court judges argued exactly this point. State v. Bolder, supra,
635 S.W.2d at 691-92. The judges found that the "while
incarcerated" circumstance produced uneven and unfair results.
Mr. Bolder’s death sentence is disproportionate even if the
“while incarcerated" statutory circumstance is accepted as
appropriate. In other cases where the circumstance has been
invoked and a death sentence returned, the murders were vile and
horrible. Assuming that Mr. Bolder murdered King, the murder is
not comparable to the other cases. For example, in State _ v.
Trimble, 638 S.W.2d 726 (Mo. banc 1982), a death sentence was
returned against an inmate who tortured a mentally slow inmate on
numerous occasions, burned and sodomized the victim and finally
slowly strangled the victim to death until a vertebra in his neck
was broken. Similarly, in State v. Parkus, 753 S.W.2d 881 (Mo.
banc 1988), an inmate was sentenced to death for the brutal
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strangulation of another inmate. In that case, the defendant
sneaked into the victim’s cell at night, hit him in the face with
a blunt instrument, further incapacitated him by binding his arms
and then strangled the victim until the vessels in his eyes burst
and he died. In State v. O’Neal, 718 S.W.2d 498 (Mo. banc 1986),
and State v. Schlup, 724 S.W.2d 236 (Mo. banc 1987), death
sentences were issued against members of a white supremacist group,
the Aryan Nation Church, who threw boiling liquid into the face and
eyes of their black victim, incapacitated his arms and then
repeatedly stabbed him to death. Mr. Bolder’s crime does not
compare in viciousness with these or any other inmate murder. ;
The disproportionate nature of Mr. Bolder’s sentence is even
better demonstrated by those cases in which the jury determined
death to be an inappropriate sentence for an inmate’s crime. In
State v. Hurt, 668 S.W.2d 206 (Mo. App. 1984), the defendant was
sentenced to life despite inflicting twenty-six separate stab
wounds during the murder of his victim. In State v. Zeitvogel, 655
S.W.2d 678 (Mo. banc 1983), two inmates stabbed their victim
sixteen separate times, attempted to stab two other inmates, and
attempted to stab a prison guard but were given a life sentence.
Uneven application of the death penalty is an evil which
responsible government must seek to avoid. When people are
sentenced based upon ‘a classification, rather than on the facts of
their crime, or when similar facts cause widely divergent
sentences, the public’s distrust of the system only can increase.
Given the nature of the classification that made Mr. Bolder
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eligible for the death penalty, and the disproportionate sentence
that was imposed, it should be concluded that Mr. Bolder’s sentence
is a product of uneven application of the death sentence. As a
result, his sentence should be commuted.
c. Alternatively, Mr. Bolder’s Death Sentence should
Be Commuted Because It Is Due To The Neglect Of His
Attorney.
In Part II(B), above, Mr. Bolder described the failures of his
state-appointed trial lawyer and explained that the lawyer’s
inattention and lack of inquiry led directly to the imposition of
Mr. Bolder’s death sentence. Here, Mr. Bolder explains the legal
significance of his lawyer’s failings. In addition, Mr. Bolder
explains why his lawyer’s conduct has not resulted in a court order
rescinding his death sentence.
Under the Sixth and Fourteenth Amendments to the United States
Constitution, all states are required to provide a lawyer to their
indigent criminal defendants. The lawyer is required to perform in
a reasonably competent, ‘or "effective" manner. If an appointed
lawyer performs incompetently or "ineffectively", the defendant is
denied a constitutional right and a sentence tainted by the
lawyer’s ineffectiveness cannot stand.
The constitutional right to an effective lawyer provides
critical protection to fairness in criminal sentencing. Jurors, no
doubt, attempt an honest assessment of the case but they can be
guided only by what is presented to them by the case lawyers. If
the lawyer appointed by the state to defend the case does a shoddy
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job, the jury may be deprived of the most important facts upon
which its life or death decision should be made. In that
circumstance, the jury may order death although it would have
ordered a life sentence if the critical facts had been presented.
Thus, consistent enforcement of the right to effective counsel can
avoid death sentences that reflect the defense lawyer’s lack of
effort and attention, rather than the nature of the crime.
In his federal habeas corpus hearing, Mr. Bolder demonstrated
that his state-appointed trial lawyer had provided ineffective
assistance and, as a result, that his death sentence was tainted.
At the habeas corpus hearing, Mr. Bolder’s current counsel
presented the mitigation witnesses who were ignored by the trial
lawyer. The judge concluded that the trial lawyer’s ineffective
assistance, including his failure to understand the law and to
contact mitigation witnesses, was inexcusable. The habeas corpus
judge ruled "counsel’s conduct so undermined the proper functioning
of the adversarial process that the sentencing hearing cannot be
relied on as having produced a just result." Bolder I, ra, 713
F.2d at 1569. Due to his finding, the judge ruled that the state
must offer a new penalty phase hearing to Mr. Bolder.
The state appealed the habeas corpus judge’s hearing to a
panel of the Eighth Circuit Court of Appeals and obtained a
reversal. Bolder II, supra, 921 F.2d at 1359. It is important to
note that the appellate panel did not disagree with the habeas
corpus judge’s finding that trial counsel’s failures were the root
cause of Mr. Bolder’s death sentence. Rather, the appellate panel
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found that a technical rule allowed them to reinstate the death
sentence.
The appellate panel’s technical ruling itself presents a
situation of bitter irony. The panel concluded that the habeas
corpus judge should not have considered the issue of the trial
lawyer’s ineffectiveness on the merits because the issue had not
first been presented to the state courts. However, the issue was
not presented to the state courts because the lawyer appointed by
the state to represent Mr. Bolder in his state post-conviction
hearing, duplicated the error of Mr. Bolder’s trial lawyer. The
state post-conviction lawyer has admitted that he did not locate
and present testimony from the mitigation witnesses because "it
didn’t occur to me". Thus, Mr. Bolder has twice been the victim of
poor lawyering and procedural rules prohibit any other court from
issuing an appropriate ruling on the merits of his claim.
The appellate panel’s decision to reverse the habeas corpus
“judge, while avoiding the merits of Mr. Bolder’s ineffective
assistance claim, has been controversial. One member of the three-
judge appellate panel wrote a dissenting opinion that harshly
criticized the action of his two brethren. The dissenting judge
argued that the merits of Mr. Bolder’s claim ought to be considered
and that, on the merits, Mr. Bolder would prevail. Bolder II,
supra, 921 F.2d at 1370. Later, the panel majority’s decision was
submitted to all active judges in the Eighth Circuit for their
consideration of whether the full court should review Mr. Bolder’s
tainted sentence. Consideration by the full court may occur only
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upon the vote of a majority of the judges. In Mr. Bolder’s case,
the judges split five to five and, consequently, the full court did
not consider the panel’s decision. Given that consideration by the
full court occurs rarely, the split indicates significant concern
by the judges. Moreover, in connection with the full court’s
action, two judges wrote a special opinion in which they stated
that executing Mr. Bolder would be a "miscarriage of justice".
Bolder III, 928 F.2d at 806.
Mr. Bolder was denied his constitutional right to competent
legal representation at his trial. The judge who fully considered
the issue found that Mr. Bolder’s trial lawyer overlooked
mitigating evidence so powerful that, had the jury heard the
evidence, it almost certainly would have returned a life sentence.
To allow Mr. Bolder’s execution would, therefore, disregard the
constitution’s mandate that all criminal defendants be given a fair
opportunity to present relevant facts regarding their case to the
jury and it would end the life of a man who deserves to live.
CONCLUSION
Mr. Bolder faces execution for what is at most a second degree
murder and may be only felonious assault. His sentence is,
therefore, disproportionate to the crime. A reprieve is necessary
to allow Mr. Bolder adequate time to prove his innocence of capital
murder in his pending habeas corpus motion. Alternatively, Mr.
Bolder’s death sentence should be commuted to life in prison
without the possibility of parole for fifty years. A commutation
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is appropriate because Mr. Bolder’s death sentence is
disproportionate to any crime he committed and is due to the
constitutionally deficient assistance from his appointed trial
lawyer. If the lawyer had presented the available evidence to the
jury, a life sentence would have been returned.
Respectfully submitted,
SPENCER FANE BRITT & BROWNE
ue thh
|
Mark &. “Thornhill
Gardiner B. Davis
1400 Commerce Bank Building
1000 Walnut Street
Kansas City, Missouri\| 64106
(816) 474-8100 \
Facsimile: (816) 474-3216
ATTORNEYS FOR APPELLANT
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above was mailed, United
States first class postage, this 14th day of January, 1993, to:
Stephen David Hawke
Attorney General’s Office
221 W. High Street
P.O. Box 899
Jefferson City, Missouri 65102
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