IN THE MATTER OF:
BOBBY LEWIS SHAW, CP-7
Potosi Correctional Center
Mineral Point, Missouri 63660
APPLICATION FOR COMMUTATION OF A SENTENCE OF DEATH
TO : The Honorable Mel Carnahan
Governor of the State of Missouri
INTRODUCTION
The final decision as to whether Bobby Shaw lives or dies
now rests with the Governor of Missouri. As this petition is
being written, the sole question remaining in Bobby's legal
appeals, whether he is mentally competent to be executed, has
been resolved against Bobby by Judge Robert Carr in Washington
County, Missouri. Although all of the mental health experts
appointed by the court or retained by counsel on both sides of
the question agree that Bobby is mentally retarded, has severe
brain damage and suffers from schizophrenia and dementia, Judge
Carr entered an order finding that these conditions were not
determinative of the very narrow legal question that was before
him. While we disagree with Judge Carr's finding, it is
important for the Governor to realize that Justice in this case
extends far beyond the issue of whether Bobby knows he is going
to die.
Every state in the nation and the federal government have
given its chief executive the power to grant pardons, clemency
and reprieves. With the decision in Herrera v. Collins, 506 U.S.
,; 113 S.Ct. , 122 L.Ed.2d 203 (1993), the United States
Supreme Court has transformed a Governor's clemency power from an
elective act of mercy into a vital safeguard of justice. In
denying relief for a prisoner who had new evidence to support his
innocence, Justice Rehnquist wrote:
Clemency is deeply rooted in our Anglo-American tradition of
law, and it is the historic remedy for preventing a
miscarriage of justice where judicial process has been
exhausted. In England, the clemency power was vested in the
Crown and can be traced back to the 700's...
kk eK
Executive clemency has provided the "fail safe" in our
criminal justice system....It is an unalterable fact that
our justice system, like the human beings who administer it,
is fallible.
122 lv.Ed.2d at 224, 226. As Alexander Hamilton noted, "The
criminal code of every country partakes so much of necessary
severity that without an easy access to exceptions in favor of
unfortunate guilt, justice would wear a countenance too
sanguinary and cruel..." The Federalist No. 4, pp. 447-449 (C.
Rossiter ed. 1961). Recently, the Missouri Supreme Court also
noted that it is the proper role of the governor to act when the
courts decline to correct an unjust conviction or sentence.
State v. Wilson, 813 S.W.2d 833 (Mo. 1991) (en banc).
The Governor is not restricted in his clemency powers. He
can grant or deny clemency for any reason, or for no reason. He
is not bound by the doctrine of procedural default. He can
freely review the facts of the case. He must answer only to his
own conscience in making the final life and death decision that
is before him now.
The governor is the last resort for justice an mercy for
Bobby Shaw. The evidence is incontestible that Bobby suffers
from schizophrenia, brain damage and mental retardation. Bobby's
life should be spared because:
1. His mental condition prevented him from being fully
responsible for his crimes, and he is so severely impaired
now that there is no purpose to be served in killing him;
2's Bobby did not receive a fair trial because the jury and
judge who imposed Bobby's death sentence were misinformed
about Bobby's mental disabilities;
3. Because of procedural technicalities, the courts have
failed to correct the injustice that has occurred.
4. The public opposes the execution of those with the
degree of mental impairment Bobby suffers.
In spite of the undeniable fact of Bobby's mental illness, the
courts have willfully blinded themselves to his condition.
The United States Supreme Court, interpreting the eighth
amendment ban against cruel and unusual punishment, has
proclaimed that modern standards of decency mandate an
individualized assessment of the appropriateness of the death
penalty. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978), the Court held that a sentencer cannot be
precluded from "considering, as a mitigating factor, any aspect
of a defendant's character or record and any circumstances of the
offense that the defendant proffers as a basis for a sentence
less than death." Id. at 604. Such evidence is relevant
"...because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems,
3
may be less culpable than defendants who have no such excuses."
California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d
934 (1987) (O'Connor, J., concurring). This applies with special
force where the offender is mentally ill or mentally retarded;
the Court has specifically held in the case of mentally retarded
persons that "full consideration of evidence [of mental
retardation] is essential if the jury is to give a reasoned,
Moral response to the defendant's background, character and
crime." Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989). Finally, the Eighth Amendment to United
States Constitution "prohibits a state from carrying out a
sentence of death upon a prisoner who is insane." Ford v.
Wainwright, 477 U.S. 399, 409-410, 106 S. Ct. 2595, 91 L. Ed. 2d
335, 346 (1986). Justice Marshall, writing for a plurality of
the Court, held that "it is no less abhorrent today than it has
been for centuries to exact in penance the life of one whose
mental illness prevents him from comprehending the reasons for
the penalty or its implications." 477 U.S. at 417. Unfortunately
for Bobby, these moral mandates of the Eighth Amendment were
_neither observed nor enporcea by the courts in his case.
BOBBY'S MENTAL CONDITION
Bobby's mental impairment has been apparent since Bobby was
enrolled in school. He had to repeat the first grade twice. He
was finally allowed to advance when his-younger sister, Martha,
was enrolled. There were no classes for mentally retarded black
children in Hayti's segregated school system, so it was up to
4
Martha to help her older brother. Bobby would cry a lot, get
lost, and wander off. Martha would have to go get him, and lead
him back to his chair. Bobby was often confused and
disoriented. He would wander onto to neighbors' porches and try
to get in, thinking he lived there. Mr. Shaw reports he would
become frustrated with Bobby and thought Bobby "just wasn't
paying attention". He would "whup" Bobby to make him stop,
thinking it would "make him think harder the next time." At the
same young age, Bobby also was acting restless, so a doctor
prescribed phenobarbital to help him sleep. If Mrs. Shaw forgot
to give Bobby his medication, Bobby would act even more bizarre,
shaking his head and twirling around.?
When Bobby was ten or eleven years old, the family moved to
St. Louis. In the St. Louis school system, Bobby was tested and
found to be mentally retarded. He was placed in special
education classes, but was too ashamed to attend. At age 16, he
dropped out of school.
Bobby has no juvenile court record, but he began to
experience difficulty with the law when he was 18 years old. In
1972, he was convicted of second degree burglary and placed on
Ipr. William A. O'Connor, Ph.D., identified this behavior as
a classic indication of brain damage. The neuropsychological
tests he administered, and the neurological examination conducted
by Dr. Jonathan Pincus, M.D., revealed that the frontal lobes of
Bobby's brain had atrophied, probably due to damage in the
parietal lobe of the brain that occurred in childhood. Because
the parietal lobe is responsible for sending sensory input to the
frontal lobe, large portions of Bobby's brain simply never
developed.
probation. A state probation and parole officer described him as
"the product of an economically deprived, inner-city upbringing."
In 1973, Bobby was convicted of attempted robbery and sentenced
to four years in the Missouri Department of Corrections.
While serving this sentence, his condition deteriorated. He
was tested at the Department of Corrections Diagnostic Center and
was found to have the mental capacity of an eleven-year-old
child. He was twenty-four. In addition, Prison records reveal
numerous incidents of bizarre behavior. Once, Bobby grabbed
another inmate and began sucking on his right breast. The prison
psychiatrist evaluated Bobby's behavior and prescribed Mellaril,
an antipsychotic drug. The incident, however, had caused so much
difficulty with the other inmates Bobby had to be transferred to
another facility.
During this same incarceration, Bobby also was attacked by
another inmate and beaten with a pipe. His family believes that
this attack traumatized him so severely that he was never the
same afterward. After he was released on parole, he lived with
his mother and father. They saw him talking to imaginary people,
telling them to get away from him, and he would pour water over
his head. He would sit on the back porch and mutter to himself,
and in the middle of the night he would pack up his clothes and
walk many miles to his old girlfriend's house. She was living
with her new boyfriend, so she would send him home, but he kept
going back. On other occasions, Bobby's family would search for
him and find him wandering around the city with his sack of
clothes. His mother asked him, "Bobby, why do are you doing
this? Why can't you stay home?" Bobby told her, "It's the people
in my room, mama." Mrs. Shaw told him there was no one in his
room, but he would not believe her. He was obviously afraid.
It was difficult for Bobby to carry on a conversation; he
would forget questions that were asked of him, and would stop in
mid-sentence and go to a totally unrelated topic. Although they
were never told that Bobby had been prescribed antipsychotic
medication while in prison, Bobby's mother and sister knew that
Bobby needed psychiatric treatment. They tried to get him to go
to a mental hospital, but he refused. The family relented,
thinking that Bobby was simply having a difficult time adjusting
to society after being incarcerated.
Bobby's sister, Martha Shaw, had a common-law husband,
Calvin Morris, who took a special interest in Bobby and tried to
help him. In September, 1975, Calvin was shot to death. Bobby's
brother, Vancil Shaw, heard a shot, and then saw Bobby standing
over Calvin's body. He told Martha that he just "woke up" and
was standing over Calvin's body. Later, Bobby admitted hearing
voices at that time. He said the voices had "picked Calvin a
murderer. They picked me.. I don't know why. They picked me and
I had to do it."
Bobby was convicted of Calvin's murder and sentenced to life
in early 1976. No psychiatric examination was conducted for his
defense in that case, and not one single witness was called in
Bobby's defense. Even though they still were not told that
prison doctor suspected Bobby was psychotic, his family remained
convinced that if Bobby shot Calvin, he did so because of his
mental disease.
While Bobby was in prison, he continued to experience
auditory hallucinations and engage in bizarre behavior. In
February of 1978, he got in a fight with his cell mate after
hearing voices. Another time, he was late for work at his job in
the prison kitchen, and was found, undressed, standing in the
doorway of his cell and staring into his cell. At the time he
was sentenced for the homicide of Walter Farrow, he only had
three conduct violations while serving his life sentence--the two
incidents mentioned above, and one other for disobeying an order
from a corrections officer. Mr. Jimmy Ohern, Bobby's caseworker,
described his work and training reports as "reflect [ing]
excellent work." Many of the most favorable reports were written
by Walter Farrow.
The Department of Corrections conducted a thorough
examination of Bobby for the first time in 1986. Prison
psychologist Betty Weber noted that Bobby's "appearance was
unkempt and disheveled; his verbal responses minimal, speech was
soft and somewhat difficult to understand; his answers were
incomplete and eye-contact was non-existent; and his affect was
flat and mood appeared to be indifferent and/or depressed." A
neuropsychological examination revealed "Strong signs that a
neurological impairment which interferes with cognitive
functioning is present." (Report of Dr. Henry Bratkowski, D.O.,
March 5, 1988, p. 3). Bobby's thinking was described as
"concrete," a psychological term that means that he is incapable
of abstract reasoning. Dr. Philip Harris, a psychologist
employed at the Fulton State Hospital, found that "there is
[cerebral] impairment and in an overall sense it is to a
moderate-to-serious degree, with some impairment being serious
and some less so." (Report of Dr. Philip W. Harris, March 6,
1987, p. 8). Dr. Harris found "indications that in his daily
functioning he is compromised at the cerebral level." (p. 9).
Dr. Harris recommended as "decidedly important" that Appellant
receive thorough neurological evaluation. (p. 8).° Bobby's
history of hallucinations, among other factors, caused him to be
diagnosed by a state psychiatrist, Dr. Ajans, as suffering from
chronic, undifferentiated schizophrenia. (Report of Dr. Ajans,
July 24, 1986). Dr. Ajans prescribed Mellaril, an anti-psychotic
medication, and advised that Bobby needs close supervision and
counselling.
Bobby was examined again in 1990 and 1991 at the expense of
his court-appointed lawyers to determine his competence to be
executed. Dr. William A. O'Connor, a psychologist, conducted an
examination in 1990. Although noting that it is extremely
difficult for him to determine Petitioner's degree of competence
“Bobby finally received a thorough neurological examination
on December 30, 1992, by one of the finest neurologists in the
country, Dr. Jonathan Pincus, chairman of the Department of
Neurology and Professor of Neurology at’ Georgetown University
Hospital. Dr. Pincus found that Bobby does indeed have brain
damage, which greatly impairs Bobby's ability to cope with the
symptoms of his schizophrenia.
or impairment at the time of the offense, Dr. O'Connor expressed
the opinion that:
This is a long standing pattern of brain damage which
extends to a period of time well before the commission
of the acts leading to Mr. Shaw's conviction of capital
murder. I would consider a very high probability that
command hallucinations were actively involved in these
two outbreaks of extreme violence for which Mr. Shaw
can currently provide no rationale or motivation. At
an optimal level, this is an individual whose basic
processing of information and reality testing is
impaired; during periods of relatively poor
performance, Mr. Shaw is clearly actively psychotic and
incapable of even rudimentary judgments and decision
making.
Report of Dr. William A. O'Connor, November 13, 1990. Another
psychologist, Dr. Dan Cuneo, examined Bobby in 1990 and in 1992.
He concurs in Dr. O'Connor's assessment of Bobby's mental
impairments. Bobby can parrot back words and phrases, but he has
no understanding of them. Although Bobby admits that he hears
voices, he believes they are real; he adamantly denies that
there is anything wrong with him.
Other earmarks of Bobby's condition are that he
“confabulates", meaning that he has gaps in his memory, and fills
the gaps with whatever information is given to him. As a result
of his dementia, he has virtually no independent memory of his
own. His personal hygiene is poor. His speech is echolalic,
meaning he repeats words over and over. He functions on the
level of a three to five year old child, and his behavior and
daily routine are that of a typical long-term residential
psychiatric patient. According to the testimony of
Superintendent Paul Delo, Bobby has been completely docile and
10
has caused no problems at all for the prison staff since he was
sentenced to death. At this moment, Bobby is in an isolation
cell in Potosi Correctional Center, vaguely aware that he is
scheduled to receive a lethal injection, and very agitated and
frightened because his daily routine has been disrupted.
All of the mental examinations ever performed on Bobby are
being submitted with this plea for clemency. Although Judge Carr
found that Bobby has no mental disease or defect, counsel for Mr.
Shaw adamantly dispute that finding. Objections to Judge Carr's
findings of fact and conclusions of law are being submitted
separately. However, counsel also point out that no court has
considered the broader questions of Bobby's mental state at the
time of his crimes, and there is compelling proof that he should
not be held fully responsible for his crimes. Because this proof
surfaced late in Bobby's appeal, the courts found that they
lacked the jurisdiction to receive the new evidence. The
Governor is not so constrained.
THE JURY WAS NOT FULLY INFORMED ABOUT BOBBY'S MENTAL CONDITION
Of all the mental health experts who have examined Bobby,
only one, Dr. S.D. Parwatikar, has ever concluded that Bobby does
not suffer from a mental disease or defect. Before trial, Bobby
was examined by Dr. Parwatikar, who concluded that although Bobby
is mentally retarded, he did not suffer from a mental disease or
defect that would completely excuse his conduct under Missouri
11
law relating to the defense of insanity.? He was asked to
supplement his opinion by addressing the defense of diminished
responsibility. (Report of Dr. Parwatikar, September 11, 1979).
For this purpose, he reviewed his notes of his previous
interviews of Bobby and interviewed unnamed prison staff members,
coworkers of the deceased, who told him that Bobby "was
considered to be an average inmate devoid of physical, mental or
behavioral problems. "* Based on this false information, he
concluded that Bobby had the ability to form the state of mind
necessary for first degree murder. (Report of Dr. Parwatikar,
April 29, 1980). Prior to trial, defense counsel conducted no
investigation into Bobby's psychiatric or medical history, and
did not provide Dr. Parwatikar with any information whatsoever.
School records, prison records, prior hospitalizations, and
family information was totally lacking, even though there was an
abundance of information establishing Bobby's retardation and
mental illness.
In the last stages of Bobby's appeals, Dr. Parwatikar
reviewed documents and reports collected during subsequent
evaluations. The records included Missouri Department of
Corrections documents that existed at the time of Dr.
*Dr. Parwatikar later concluded that this opinion was wrong
because he was not fully informed of Bobby's mental health and
behavioral history. He now believes that Bobby suffered from
schizophrenia at the time of the offense.
“This was not true; prison records reveal that Bobby had
been examined and treated in the prison infirmary for a mental
condition involving auditory hallucinations before the stabbing
of Officer Farrow.
12
Parwatikar's original evaluation, but which was not then made
available to him. He executed an affidavit describing the
significant information that he lacked at the time of his
pretrial examination, stating, "I have recently learned of
additional facts which cause me to believe that there is
substantial probability that my opinion which was rendered prior
to and at the time of trial was incorrect." (Affidavit of Dr. S.
Parwatikar, April 26, 1991, emphasis added.) In his affidavit, he
takes note of:
Mrs. Shaw's description of her son's hallucinations and
unusual behavior after his release from prison in 1974;
The February 1, 1978 incident in which auditory
hallucinations are documented in prison files;
Mr. Shaw's history of treatment with Mellaril, an
antipsychotic drug, and Dilantin.
Dr. Parwatikar concludes:
During my trial testimony I was asked a question about
the probability of the success of suggestibility to a
person who had the mental capacity such as Bobby. If I
were to have understood the circumstances surrounding
the crime, and had the information (aside from the
other psychological and psychiatric reports) which is
now available to me this certainly would have affected
the diagnosis attributed to him as I now believe that
he was suffering from the onset of early dementia, and
possibly early chronic schizophrenia.
The above along with other detailed information about
Mr. Shaw that was previously unknown to me casts
significant doubt on the reliability and accuracy of an
opinion that Mr. Shaw did not suffer from a mental
disease or defect within the meaning of Chapter 552 of
the Revised Statutes of Missouri at the time of the
homicide of Walter Farrow.
Affidavit of Dr. S.D. Parwatikar, April 26, 1991. Dr. Parwatikar
is not an expert retained by the defense at trial; he was a
state-employed psychiatrist who was appointed by the trial court
13
ee
to perform the pre-trial examination of Mr. Shaw pursuant to
Missouri Chapter 552.
Unfortunately, Dr. Parwatikar was also the only one who
testified at Bobby's trial, and the jury and judge relied on his
testimony in finding Bobby guilty of capital murder and
sentencing him to death. The verdict of the jury that Bobby
committed a deliberate murder after cool reflection on the
matter, and that Bobby does not deserve mercy because of his
mental disabilities, rests on false testimony.
As was already discussed, numerous psychiatric,
psychological, and neuropsychological examinations have been
performed on Bobby during the period following his conviction.
These examinations have been conducted by both State and private
experts to address various questions, including Bobby's
competency to be executed, the degree of Bobby's mental
retardation and the extent of Bobby's brain damage. The reports
of these examinations are virtually unanimous that Bobby Lewis
Shaw has a mental disease or defect as defined under Section
552.060 RSMo., 1978.°
> Affidavit of Dr. Parwatikar; Psychiatric evaluation
performed by Dr. Bruce Harry on May 4, 1990; Psychological
evaluation performed by Dr. Daniel Cuneo on August 6, 1992;
Affidavit of Dr. Eric Nuetzel regarding evaluation performed on
April 30, 1990; Neuropsychology Consultation Report by Dr. Philip
Harris dated February 25 and 26, 1987; Mental Health Evaluation
by Dr. William O'Connor dated November 13, 1990; Psychiatric
Evaluation by Dr. Steven Kory dated October 1, 1992; Report of
neurological examination of Dr. Jonathan Pincus dated January 5,
1993 «
14
These interviewers have noted several common themes which
run throughout the interviews with Bobby. First, despite the
numerous examinations and the reasons for them, Bobby has been
uniformly described as being cooperative.§ Rather than
emphasizing facts which would help him, Bobby tries to downplay
or hide from the examiner information such as his medication
history, his history of severe head injuries, and his
hallucinations.’
Second, Bobby's performance during these interviews
consistently indicates that the nature of his mental impairment
is extreme. Three different doctors noted that Bobby's memory
was so impaired that Bobby could not remember even basic personal
information such as the date of his birthday. Dr. Cuneo notes
that Bobby states he was 39 at a time in which Bobby was actually
40.° Similarly, Bobby stated two different dates of birth during
separate interviews with Drs. Harry and Dr. Kory.®
Bobby has consistently shown an inability to understand
ideas in any way other than in concrete and definite terms.
During one interview, Dr. Nuetzel asked Bobby to interpret the
s. Psychiatric Evaluation by Dr. Steven Kory dated October
1, 1992; Psychiatric Evaluation performed by Dr. Daniel dated
August 22, 1987.
4, Affidavit of Eric Nuetzel, supra; Psychiatric
Evaluation by Dr. Harry, supra.
om Affidavit of Dr. Daniel Cuneo, supra.
3, Psychiatric evaluation by Dr. Steven Kory dated October
1, 1992; Psychiatric evaluation by Dr. Bruce Harry dated May 4,
1990.
15
proverb, "people who live in glass houses should not throw
stones". Bobby's response was, verbatim, "Glass Houses. People
might see inside." Dr. Harry also observed this same level of
functioning. While trying to assess whether Bobby was
discouraged about his approaching execution date, Dr. Harry asked
Bobby if he had "thrown in the towel". Bobby replied, "I don't
throw the towel, I folded the towel."*° These responses are
clearly indicative of a thought disorder.
The prison personnel have noted Bobby's isolation, flat
affect and poor hygiene, all of which are classic indicators of
schizophrenia. All examiners have also noted these symptoms. As
Dr. O'Connor noted, "I think we are all seeing pretty much the
same thing."
Because accurate information surfaced very late in Bobby's
appeal process, the courts found themselves powerless to hear new
evidence or grant Bobby a new trial or sentencing hearing. The
Governor is free to hear whatever matters he chooses in deciding
this plea for mercy.
Decent legal representation would have spared Bobby's life.
At Bobby's trial, a competent investigation by his attorney would
have enabled Dr. Parwatikar to conclude that Bobby suffers from a
mental disease or defect which would make him not guilty of
capital murder under Missouri law. The trial attorney appointed
to defend Bobby Shaw did not investigate Bobby's mental
7 Psychiatric evaluation by Dr. Bruce Harry dated May 4,
1990.
16
impairment, even after he decided that his trial strategy was to
argue Bobby was not guilty by reason of mental disease or defect.
There was no investigation into Bobby's psychiatric or medical
history, and defense counsel did not provide Dr. Parwatikar with
any information whatsoever. Dr. Parwatikar testified that
although Bobby functions in the borderline range of mental
retardation, his impairments did not constitute a defense to the
charge of capital degree murder.
At the conclusion of Dr. Parwatikar's testimony, defense
counsel withdrew Bobby's plea of not guilty by reason of mental
disease or defect. The jury convicted Bobby of capital murder.
In the penalty phase of trial, defense counsel presented no
evidence whatsoever in the penalty phase of trial concerning
Bobby's retardation and mental illness, even though such evidence
was available. Although trial counsel requested an instruction
to the jury submitting Bobby's mental retardation as a mitigating
circumstance, the trial court refused the instruction. The jury
sentenced Bobby to death.
In spite of the paucity of evidence about Bobby's mental
condition, Missouri Supreme Court Justice Robert Seiler remarked
in his dissenting opinion in Bobby's case:
Being a borderline mental defective goes
to the existence of the state of mind which
makes up the elements of capital murder, and
inasmuch as capital murder is the only crime
for which death can be the punishment, it
also goes to whether this particular
defendant deserves the death penalty. "It is
essential that the capital-sentencing
decision allow for consideration of whatever
mitigating circumstances may be relevant to
7:
either the particular offender or the
particular offense." Roberts v. Louisiana,
431 U.S. 633, 637, 97 S.Ct. 1993, 1995, 52
L.Ed.2d 637 (1977).
The report required of the trial judge
by § 565.014.1, RSMo. 1978, on the
questionnaire prepared by this court has a
space to "list any nonstatutory mitigating
circumstance indicated by the evidence, if
any" to which the trial judge answered "low
mentality." Why was it not, therefore,
instructed upon?
zee
It was for the jury to decide whether
defendant's mental defect raised a reasonable
doubt as to whether or not he acted with
required mental intent. The jury should have
considered this both at the guilt phase and
at the punishment phase, but in the absence
of MAI-CR2d 3.74 being given in the guilt
phase and the absence of any mention of
mental defect in the sentencing stage in the
instructions, the jury's attention was
deflected elsewhere. The practical effect
was to minimize the jury's consideration of
relevant mitigating factors, contrary to the
requirements of Lockett v. Ohio, 438 U.S.
586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
State v. Shaw, 636 S.W.2d 667, 678 (Mo. 1992) (Seiler, J.,
dissenting), cert. denied, 459 U.S. 928 (1982).
Trial counsel in this case attempted to pursue a defense
based on Bobby's mental disabilities. However, his pursuit of
that defense was so poor that he could not even get a jury
instruction on Bobby's only defense. Bobby was denied an
adversarial trial on the central issue in the case.
While the previous administration characterized its clemency
powers as "interfering with the judicial process," Bobby's death
sentence is the product of a complete breakdown of the adversary
system. The true defense in this case has never been inside a
18
courtroom, and it never will. The purpose of exercising of
clemency in this case would be to salvage the failure of the
judicial process.
THE PUBLIC OPPOSES EXECUTION OF RETARDED PERSONS
Since he was appropriately diagnosed for the first time in
the mid-1980's, Bobby has not presented a hazard of any kind to
corrections officers or other inmates. It is fair to say that
had his condition been diagnosed sooner, and appropriate
treatment and/or security precautions been given, the incident
for which Bobby was condemned to death would never have happened.
In fact, Mr. Delo, the Superintendent of Potosi Correctional
Center, described Bobby as a docile, simple-minded individual who
poses no risk of violence, and who has not presented any problems
since the stabbing of Officer Farrow. In essence, once the
nature of Bobby's problems became known, the Department of
Corrections was able to take effective steps to neutralize any
risk that Bobby might pose to other inmates or corrections
officers.
Bobby just turned 42 years in November, 1992. He is a
troubled individual who has struggled all his life with mental
disease and mental retardation. In opinion polls conducted on
the issue, a majority of people oppose the idea of executing
people who have mental retardation:
--In Georgia, where 75% of the public supports the
death penalty, 66% oppose the execution of mentally
retarded persons, while only 17% favor the practice.
(Source: "Execution of Retarded Opposed:, Atlanta
Journal, January 6, 1987, p. 1B.) Georgia has since
19
adopted legislation to ban the execution of mentally
retarded persons.
--In Florida, where 86% of the public favors capital
punishment, 79% oppose the execution of mentally
retarded prisoners. (Source: "An Analysis of Attitudes
Toward Capital Punishment in Florida," Cambridge Survey
Research, June, 1985).
--In Connecticut, where 67.6% of those surveyed support
the death penalty, 83% oppose the execution of mentally
retarded persons. (Source: "Capital Punishment in
Connecticut, Tuckel and Greenberg, Analysis Group, Inc,
588 East Street, New Haven, CT 06511, May, 1986).
--In Nebraska, where 68% of those surveyed favor
capital punishment, 66% would be less likely to support
the death penalty for mentally retarded persons.
(Source: "The Nebraska Annual Social Indicators
Survey," Johnson and Booth, University of Nebraska--
Lincoln, Lincoln, NE 68588-0325).
--In Texas, 86% of the public supports capital
punishment, but 73% oppose the execution of mentally
retarded offenders. (Source: Dallas Morning News,
November 15, 1988).
--In California, 64.8% of those polled stated that it
is not right to execute mentally retarded persons.
(Source: University of California--Santa Cruz, May,
1989).
--In New York, 82% of those polled oppose the execution
of mentally retarded persons. (Source: Caddell
Enterprises, New York, May, 1989).
These surveys reflect a public opinion that has ancient
roots. From the thirteenth century on, execution of the
mentally incompetent has been regarded as "Savage" and as an act
of "extreme inhumanity and cruelty." E. Coke, Third Institute 6
(1644). Doctrines that would permit execution of the incompetent
have been preached and practiced in National-Socialist Germany,
but they are repugnant to the moral traditions of Western
civilization. As one of our nation's leading experts on mental
20
retardation, James W. Ellis, Professor of Law, University of New
Mexico,
and Vice President of AAMR, said:
Mental retardation is an underlying mitigating
circumstance. The major factors that mitigate against
capital punishment in persons with mental retardation
are their inability to process abstract language, their
vulnerability to the emotional stressors of everyday
life, especially when devoid of community support, and
their propensity to develop allied mental illnesses due
to the nature of mental retardation itself.
Testimony of James W. Ellis before the Texas House of
Representatives Committee on Criminal Jurisprudence, April 15,
1988.
Mental health advocacy groups with special expertise in the
disabilities suffered by persons with mental retardation
overwhelmingly oppose the execution of the mentally retarded.
Examples of resolutions and position statements include:
Association for Retarded Citizens (ARC):
WHEREAS, the Association for Retarded Citizens has
traditionally defended the rights and interests of
vulnerable citizens with metal retardation and has
shown particular concern that such citizens be treated
fairly in the criminal justice law processes and all of
its stages; and
WHEREAS, to execute someone who lacks these basic
mental capacities offends not only our notions of
justice, but of ethical conduct of civilized people;
and
WHEREAS, although these positions are well-founded in
the common law, they are frequently breached in the
rough and tumble of the adversarial justice system; and
" WHEREAS, we recognize that protection of society is a
paramount value, and that persons with mental
retardation who commit crimes, when they could have
conformed their conduct to the requirements of the law,
should suffer some punishment; and
21
WHEREAS, recognition of these principles is not,
however, inconsistent with the ARC taking a position
that society should spare the lives of persons with
mental retardation who lack the mental ability to be
deterred by capital punishment; and
WHEREAS, unless we adopt this position, the legitimate
ends of the criminal justice system will not be met;
Resolved, That the Legal Advocacy Committee of the
Association of Retarded Citizens of the United States
shall be empowered to present this position that the
state not exact capital punishment upon a person when
he is unable to comprehend the seriousness of the
crime, or even the concept of death, to relevant
correctional boards and judicial authorities.
(Adopted 1985)
The American Association on Mental Deficiency (AAMD):
"The imposition of capital punishment on individuals
with mental retardation raises troubling moral issues.
AAMD supports legal reforms in the states that conform
to the standards of other civilized nations."
("Legislative Goals for 1986," AAMD, Washington, DC)
American Association on Mental Retardation (AAMR):
WHEREAS, the AAMR, the nation's oldest and largest
interdisciplinary organization of mental retardation
professionals, has long been active in advocating the
full protection of the legal rights of persons with
mental retardation.
WHEREAS, the AAMR recognizes that archaic stereotypes
and prejudices notwithstanding, the vast majority of
people with mental retardation are not prone to
criminal or violent behavior.
WHEREAS, the AAMR recognizes that some people with
mental retardation become involved with the criminal
justice system and are often treated unfairly by the
system. This mistreatment often results from the
unusual vulnerability of individuals with mental
retardation and from the failure of many criminal
justice professionals to recognize and understand the
nature of mental retardation._
WHEREAS, the United States Supreme Court has made clear
that in all capital cases the judge or jury must
, consider any mitigating circumstances which would
22
indicate that the death penalty is inappropriate or
unjust. Among these mitigating circumstances are any
which would tend to reduce the individual offender's
personal culpability or moral blameworthiness for the
act he or she committed.
WHEREAS, mental retardation is a substantially
disabling condition which may affect an individual's
ability to conform his or her conduct to the
requirements of the law. Thus mental retardation
should always be considered to be a mitigating
circumstance in selecting an appropriate punishment of
a serious offense.
WHEREAS, the current system of permitting judges and
juries to determine the relevance of mental retardation
as a mitigating circumstance on a case-by-case basis
has failed to prevent the unjust sentencing of several
mentally retarded persons to death.
AND WHEREAS, the competence of individuals wit mental
retardation to stand trial or enter a guilty plea, and
to face execution are always subject to question,
raising serious doubts as to the legality of an
execution in any particular case.
THEREFORE, the AAMR resolves that no person with mental
retardation should be sentenced to death or executed.
(Adopted January, 1988)
The American Bar Association:
BE IT RESOLVED, That the American Bar Association urges
that no person with mental retardation, as now defined
by the American Association on Mental Retardation,
should be sentenced to death or executed.
(Adopted by ABA House of Delegates, 2/7/89).
The National Legal Aid and Defender Association (NLADA):
BE IT RESOLVED BY THE National Legal Aid and Defender
Association, that no person with mental retardation
should be sentenced to death or executed.
Examination of Bobby's case reveals that every justification
for exempting persons with mental retardation from capital
punishment apply specifically to him. His ability to conform his
conduct to the law was unquestionably impaired. He is unable to
23
comprehend the nature or finality of death. His memory and
ability to communicate are too impaired to participate in his
trial defense or in his appeals. In fact, in the entire time he
has been represented by the undersigned counsel, he has not once
contacted his attorneys, not even on any of the three occasions
when warrants were issued for his execution.
THE EXECUTION OF MR. SHAW VIOLATES ALL MODERN AND ANCIENT
STANDARDS OF DECENCY AND HUMAN DIGNITY BECAUSE OF HIS SUBSTANTIAL
MENTAL DISABILITIES.
Bobby has been examined by a number of mental health
professionals. Regardless of whether the experts were appointed
by the court, retained by Bobby's attorneys or by the Attorney
General, they all agree that Bobby suffers from a mental disease
or defect within the meaning of Chapter 552 of the Revised
Statutes of Missouri, and they have all observed the conditions
described above. The only subject of disagreement is whether
Bobby's condition makes him incompetent to be executed. The
experts hired by the Attorney General have concluded that because
Bobby can tell them that he is going to receive a lethal
injection for killing Walter Farrow, he is competent to be
executed. Other experts have concluded that although Bobby can
parrot back appropriate phrases about his impending execution, he
has no memory of having killed Walter Farrow, and does not
understand that after he receives a lethal injection he will
never wake up again. Lawyers on either side of the case disagree
what the appropriate legal test for Bobby's competence should be.
He is completely unable to articulate any rationale for sparing
24
his life. Dr. A.E. Daniel, a state's psychiatrist who found
Bobby competent in 1987, warned then that Bobby's condition will
deteriorate with added stress as an execution date approaches.
Because of his schizophrenia, compounded by his mental
retardation and brain damage, Bobby Lewis Shaw is unable to
understand why the state of Missouri seeks to harm him. Asa
schizophrenic, he faces the terror of his impending execution
without the capacity that a competent person has to understand
his life and make peace with his life and his death.
This additional suffering - beyond the norm for execution -
has prompted a public outcry for mercy in the sentence of Bobby
Shaw. In praising former Governor Ashcroft's decision to stay an
execution scheduled last December, an editorial in the St. Louis
Post-Dispatch read,
"The next step should be clemency, so the-state does
not kill a man who does not even know what death means.
Such a punishment would degrade a system that is
supposed to be just; by blocking Shaw's execution,
Governor Ashcroft has ennobled the system instead." ™
At common law execution of the incompetent was prohibited as
a "savage and inhuman" act, 4 W. Blackstone, Commentaries on the
Law of England 24 (1768), and "a miserable spectacle . . . of
extreme inhumanity and cruelty," E. Coke, Third Institute 6
(1644). When the Eighth Amendment was framed, this prohibition
was considered an "ancient" rule, dating from at least the
thirteenth or early fourteenth century. 2 J. Stephen, A History
«Editorials, December 1, 1992.
25
of the Criminal Law of England 151 (1883) (citing the written
laws of Edward II (1307-26) and Edward III (1326-77). *
Although the rule prohibiting the execution of the presently
incompetent was firmly entrenched, universally applied, and
indeed mandatory in the common law, the commentators emphasized
different reasons for the rule. No less than five rationales
were advanced. Coke explained it on grounds of fundamental
humanity and decency: "[W]hen a mad man is executed, ... [it
is] a miserable spectacle, both against law and of extreme
inhumanity and-cruelty. . . ." Coke, at 6. Accord Blackstone, at
24; Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 State
Trials 474, 477 (Howell ed. 1816), (republished from, 3
State-Tryals 651 (1719). Hale explained that execution of the
incompetent was unfair because of the inability of such persons
to defend themselves as the law might still allow: "[W]ere [the
incompetent] of sound memory, he might allege somewhat in stay of
judgment or execution." Hale, at 35. Accord Blackstone, at
395-96; Hawles, at 476.** Hawles explained that the rule existed
as well to enable the condemned to prepare for death: "[I]t is
a2 See also N. Hurnard, The King's Pardon for Homicide
Before A.D. 1307 159 (1969) (tracing the treatment of insanity
prior to Edward II); Sayre, Mens Rea, 45 Harv. L. Rev. 974
(1931-32) (citing Fitzherbert, Natura Brevium 202 (1534)); S.
Glueck, Mental Disorder and the Criminal Law 124-25 (1925).
Accord Royal Commission on Capital Punishment, 1949-1953 Report
13 (1953).
3 Hawles explained that incompetency at execution could
prevent the condemned from asserting "circumstances lying in his
private knowledge, which would prove his innocence, of which he
can have no advantage, because not known to the persons who shall
take upon them his defense. . . ." Id.
26
inconsistent with religion, as being against christian charity to
send a great offender, as it is stiled, into another world, when
he is not of a capacity to fit himself for it." Id. at 477. Coke
provided a fourth rationale: that execution of the incompetent
could not deter others from committing homicide since it "can be
no example to others." Coke, at 6. Finally, Blackstone
explained, the incompetent are not executed, for "ferocious solo
furor punitor" -- madness is punishment in itself. Blackstone, at
395-96. See also Hale, at 37. Notwithstanding these differing
explanations for the common law rule, there was no disagreement
concerning the rule: "[W]hatever the reason of the law is, it is
plain that the law is so." Hawles, at 477.
This uncommonly uniform evidence of rejection is further
reflected in international practice. United Nations reports
reveal that the prohibition is virtually universal. All
reporting countries with capital punishment laws exclude the
mentally incompetent from execution. Department of Economic and
Social Affairs, United Nations Doc. ST/SOA/SD/10, Capital
Punishment: Developments 1961-1965 10 (1967); Department of
Economic and Social Affairs, United Nations, Doc. ST/SOA/SD/9,
Capital Punishment 15-16, 88 (1962).
The universal repudiation of the execution of the
incompetent leads inescapably to the conclusion that such an
execution is an intolerable event that would deeply offend the
conscience of the community. Execution of the incompetent has
been prohibited and disapproved as savage, cruel and inhuman for
27
centuries, and it still is today. The "miserable spectacle" of
execution of Mr. Shaw should be rejected as readily as any other
"barbaric" punishment would be rejected today.
Doctrines that would permit execution of the incompetent
have been preached and practiced in National-Socialist Germany,
but they are "repugnant to the moral traditions of Western
civilization and we are confident that they would be
unhesitatingly rejected by the great majority of the population
of this country. We assume the continuance of the ancient and
humane principle that has long formed part of our common law."
Royal Commission on Capital Punishment, 1949-1953 Report 98
(1953). I£ objective standards of morality and human decency are
the test, there could be no better evidence of those standards
than the long-standing and continued repudiation of execution of
the incompetent by Anglo-American jurisprudence.
Through the work of scholars who have studied the process
of dying, it is now known that those who know they are facing
imminent death experience common psychological "stages": first
denial, then anger, and then depression. However, the dying
often "work through" these stages, by taking care of "unfinished
business" and by mourning the impending loss of all that is known
to be meaningful. Through this process people are able to die
with dignity: at peace and in a stage of acceptance. See, e.g.,
E. Kubler-Ross, On Death and Dying (1969); O. Brim, H. Freeman,
S. Levine, and N. Scotch, eds., The Dying Patient (1970); S.
Stephens, Death Comes Home (1973); R. Williams, To Live and to
28
Die -- When, Why, and How (1973); E. Kubler-Ross, Questions and
Answers on Death and Dying (1974). The suffering and anguish of
those who know they are facing death is thus ameliorated by this
universal psychological process.
This suffering is not ameliorated, however, for Mr. Shaw,
for he has lost the capacity to experience the normal
psychological processes associated with dying. This loss is
strikingly revealed in Mr. Shaw's case, for his incompetency is
due to schizophrenia. Characterized as "the most tragic chronic
disease remaining in twentieth-century western civilization," E.
Torrey, Surviving Schizophrenia at 4, "'[s]chizophrenia' is a
cruel and discordant term, just like the disease it signifies,"
id. at 1, for it thoroughly undermines a person's ability to
perceive accurately and to understand what is happening in his or
her life.
Schizophrenia is marked by delusions,
hallucinations, and disorders of thought; it
attacks the will, clarity of thinking, the
emotions -- in short, those mental processes
that differentiate us from the other
organisms in our environment. . .. The
schizophrenic is often frightened of the
world around him or her. Things and people
appear menacing. The world is confusing and
unpredictable. Eventually, the
schizophrenic's terror, coupled with an
inability to direct and control his or her
own thought processes, brings about an abrupt
withdrawal from society. This withdrawal,
while it may temporarily ease the
schizophrenic's sense of threat from the
environment, only serves to deepen the
isolation and loneliness.
R. Restak, The Brain 273-74, 276 (1984). The social history of
Bobby Shaw is replete with tragic examples of the terrible
29
ordeals his mental illness has put him through. His execution
would only be the final and most cruel of them.
When a person in this condition must face death, he is
denied access to the process that leads to dying with peace and
in a state of acceptance: in short, he is denied the opportunity
to die with dignity. Unable to sort out the reasons that he will
be killed, to reflect upon his life in an attempt to find meaning
in it, to identify the "loose ends" or unfinished business of
his life (much less to attend to those matters), or to engage in
the crucial process of making peace with God, the schizophrenic
person is without the normal human tools necessary to prepare for
and accept death. The schizophrenic who faces execution faces
the terror of death without the capacity that the competent
person has to understand his life and to make peace with his life
and his death.
Mr. Shaw, for example, has at best only minimal contact with
the events of the external world. Because of his schizophrenia,
the effects of which are compounded by mental retardation and
brain damage, Mr. Shaw's ability to reason is occluded,
* As Dr. Kubler-Ross recounts, toward the end,
Many of my dying patients have relived experiences from
their past life. I think this is a period of time when the
patient has switched off all external input, when he begins
to wean off, when he becomes very introspective, when he
tries to remember incidents and people important to him, and
when he ruminates once more about his past life in an
attempt to, perhaps, summarize the value of his life and to
search for meaning.
E. Kubler-Ross, Questions and Answers on Death and Dying at 35.
30
disorganized and confused when thinking about his possible
execution. He can make no connection between the homicide he
committed and the death penalty. Further, Mr. Shaw's world is
filled with terrifying voices and events that we can neither know
nor understand. In this condition the terror inherent in facing
execution will be many times amplified for Mr. Shaw by the terror
and confusion produced by his illness. He experiences the terror
but is denied the ameliorative effects of understanding.
The additional suffering -- beyond the norm for execution --
that Mr. Shaw must experience is analogous to the additional
suffering experienced by a person who is treated with a therapy
causing painful side effects but who cannot understand why the
treatment is necessary. Such a situation was addressed in
Superintendent of Belchertown School _v. Saikewicz, 373 Mass. 728,
370 N.E.2d 417 (1977), where the court held that the guardian of
a profoundly retarded man could properly decide not to permit
radical chemotherapy treatments for the man's terminal illness.
In approving the guardian's exercise of judgment, the court
reasoned,
"If he is treated with toxic drugs he will be
involuntarily immersed in a state of painful
suffering, the reason for which he will never
understand. Patients who request treatment
know the risks involved and can appreciate
the painful side-effects when they arrive.
They know the reason for the pain and their
hope makes it tolerable." . . . Saikewicz
would have no comprehension of the reasons
for the severe disruption of his formerly
secure and stable environment occasioned by
the chemotherapy. He therefore would
experience fear without the understanding
from which other patients draw strength.
31
373 Mass. at 750, 754, 370 N.E.2d at 430, 432 (emphasis
supplied) .
Similarly, because Mr. Shaw faces execution without the
ameliorative effects of understanding, his execution would
inflict suffering beyond that involved in the humane
extinguishment of life. As already noted, the common law
commentators understood this added suffering though they
expressed it in the intellectual context of their times.*® There
can be little doubt that this awareness informed the universal
condemnation of such executions as "a miserable spectacle
of extreme inhumanity and cruelty." The standard of decency that
accords with human dignity should be no less today.
THE ORDER OF JUDGE ROBERT CARR FINDING BOBBY MENTALLY COMPETENT
FOR EXECUTION SHOULD NOT BE RELIED UPON TO DENY BOBBY CLEMENCY
There are two reasons that the Governor should not rely upon
Judge Carr's Order in reaching a decision on this Clemency
Application. First, as noted above, the scope of the questions
addressed at that hearing were incredibly narrow, and were
confined to the statutory questions involving competence to be
executed as defined in the Missouri Chapter 552. Even if we
accept, for the sake of argument, Judge Carr's finding that Bobby
presently understands that he is going to be executed for the
murder of Walter Farrow, that finding is in no way relevant to
15 See Hawles, Remarks on the Trial of Mr. Charles Bateman
at 477. "[I]t is inconsistent with religion, as being against
christian charity to send a great offender, as it is stiled, into
another world, when he is not of a capacity to fit himself for
dt ts
32
the issue of whether the jury that convicted him and sentenced
him to die should have been able to consider his mental illness
before reaching a verdict. However, we feel strongly that Judge
Carr's Order is simply wrong.
Judge Carr correctly states that "accomplished physicians
. described [Mr. Shaw's] condition as one who suffers from
dementia secondary to a physical organic brain syndrome, and
possible chronic undifferentiated schizophrenia." (Order, p. 2).
However, the next statement of the court, that "evidence
submitted by the state refutes such opinions," is incorrect. The
evidence submitted by the state consists of Exhibits A, B, C and
D. Exhibits C and D, the psychiatric reports of Dr. Stephan M.
Kory, M.D., and Dr. Bruce Harry, M.D., respectively, both
conclude that Mr. Shaw has a mental disease of defect. Dr.
Kory's report lists the diagnosis as follows:
AXIS I - Organic personality syndrome. Rule out
schizophrenia, chronic residual type. Mixed substance
abuse, by history.
AXIS II - Borderline intellectual functioning.
AXIS III - History of closed head trauma, complaints of
sinus problems.
(Exhibit C, p. 6). In medical terminology, the use of the phrase
"rule out" schizophrenia means that schizophrenia is a possible
diagnosis, but additional information is required to confirm or
rule out this possibility. Since this diagnosis was listed as an
alternative to a diagnosis involving organic brain damage, we
consulted Dr. Jonathan Pincus, a neurologist, to complete Dr.
Kory's examination. He established conclusively that the primary
33
diagnosis for Mr. Shaw is schizophrenia, with organic brain
damage as a contributing factor.
Similarly, Exhibit D reveals that Dr. Harry also found that
Bobby suffers from a mental disease. His diagnosis is as
follows:
AXIS I - Dementia as manifested by problems with recent
memory, documented moderately severe neuropsychological
impairment, impaired abstract thinking, and affective
blunting. Possible alcohol abuse, by history, possible
mixed substance abuse by history, adjustment disorder
with depressed mood.
AXIS II - Borderline intellectual functioning (it is
not possible to determine the cause of this from the
available information; it is conceivable that this
related to his dementia or could be independent of it).
AXIS III - History of closed head trauma, history of
possible chemical insult to the central nervous system,
complaints of chronic headache and sinus problems.
AXIS IV - Level of psychosocial stresses: severe.
AXIS V - Current level of adaptive functioning: 50.
(Exhibit D, p. 19). Dr. Harry concluded that "it is the opinion
of this examiner that Mr. Shaw has a mental disease or defect as
described under Section 552.010 RSMo." (Exhibit D, p. 21).
Judge Carr's finding that this evidence refutes the opinions of
the "accomplished physicians" who testified at the hearing that
Mr. Shaw is mentally incompetent is not at all supported by the
record. The state's evidence supports the diagnosis reached by
Dr. Cuneo, Dr. Parwatikar, Dr. O'Connor, Dr. Harris and Dr.
Pincus.
The balance of Judge Carr's finding is based upon the
testimony of prison officials who described Bobby's activities in
34
prison. Bobby occasionally plays board games with other
prisoners, and during exercise times, he walks alone in the
exercise yard. He remembers when it is time for him to take his
medication. The testimony of the prison officials was described
in detail to Dr. William A. O'Connor, who was formerly the Chief
Psychologist at Osteotomy State Hospital in Kansas. Dr. O'Connor
was asked whether this information was in any way inconsistent
with his findings. He replied:
Well, it's really exactly what you would expect and
exactly it's my experience of him. He is almost
classic or typical for a long-term state hospital or
very, a domiciliary patient. When people first
experience an acute psychotic break they are
pre-agitated but after a while they settle into a
routine. And typically state hospital patients get up,
they watch television, they play cards or checkers or
something and they go to the canteen. They may have
some episodic flare-ups but the longer you are
institutionalized the more this kind of settles down to
a low-grade functioning. If you remember 'One Flew
Over The Cuckoo's Nest', here are all of the people on
ward playing cards. Sometimes people aren't really
playing the cards, it kind of depends. But the point
is that there is no reason someone at this level of
functioning can't learn and actually enjoy any kind of
simple routine.
(Competency Hearing Tr., p. 186). The undersigned, in the course
of our experience as criminal defense lawyers, have had ,
experience in visiting clients in mental hospitals, and we have
observed the same behavior on the part of long-term residential
patients. Dr. O'Connor further explained that to someone in
Bobby's condition, routine is very important. By fitting into a
familiar routine, doing the same thing day after day, a mentally
ill person like Bobby will "learn that routine and... and
learn to fit and look as normal as possible and not be
35
embarrassed. And because of the repetition and familiarity you
can actually function quite well." (Competency Hearing Tr., p.
187). The behavior that Judge Carr describes in his Order is not
evidence of Bobby's mental competence; it is further indication
that Bobby should be placed in a mental health care facility, and
mot executed as a vicious criminal.
The court is mistaken in one of its most important findings.
On page 3 of his Order, Judge Carr states that Bobby "can answer
his attorneys' questions and converse about matters in
extenuation, arguments for executive clemency, or reasons why his
sentence should not be carried out." We described Bobby's lack
of participation in his case to the court:
I can tell you, as the testimony yesterday indicated,
and I will tell you now as an officer of the court,
that Bobby has never called his attorney. Even when he
is faced with an execution warrant and told by Mr. Delo
that you are going to be executed on such and such date
and I recommend that you call your attorney, he has not
done that. He's been lead to a telephone that he can
use for free and he has never called me and has never
called Mr. Wolff. In the many years that he and I, Mr.
Wolff has been on his case far longer, but I have been
helping Mr. Wolff since 1990 and he has never picked up
the phone and called his attorney. When I visit him,
he's never asked me to do anything for him. He's never
been able to give me any information that I could use
in his defense. When his life depended on it, he could
not disclose his voice ... . He's incapable, your
Honor, of appealing to the mercy of the court. What
you see here is what you get. Every time I come to
interview Bobby or meet with him, that's probably been
about six times, he gives no sign of recognizing me, I
feel. And I do introduce myself to him every time,
even though he probably knows who I am.
(Competency Hearing Tr., pp. 196-197, Closing Statement of Mr.
O'Brien). Mr. Delo testified that the telephone records of the
prison can verify that the above quoted statements of counsel are
36
the absolute truth. Bobby's mental impairment is such that he
does not even have the wherewithal to call his lawyer when an
execution warrant is issued.
Although Judge Carr believes that he offered Mr. Shaw a full
and fair hearing, he did not permit lawyers for either side to
cross-exam the mental health experts. A vigorous cross
examination of the experts who testified on behalf of Mr. Shaw at
the hearing would have revealed that these experts were telling
the truth and that their opinions rested upon objective history
and observation. All of the experts agreed with the sentiment
that Dr. Cuneo expressed after the first day of the hearing. He
stated that he wanted to be cross examined so that the Judge
could see that his opinion as to Bobby's incompetence could
withstand vigorous challenge. Furthermore, counsel believes that
cross examination could reveal serious limitations in the
conclusions of Dr. Kory and Dr. Harry. Dr. Kory did not conduct
a sufficiently thorough examination to permit him to either
confirm or rule out schizophrenia as the primary diagnosis. Dr.
Harry, even though he finds the existence of a mental disease,
had his finding of competence, stating that Mr. Shaw has "very
limited understanding of the matters and extenuation, arguments
for executive clemency, and reasons why the sentence should not
be carried out." (emphasis added) (Exhibit D). The truth is
that in all of his interviews, and in all of his dealings with
counsel, Mr. Shaw has not been able to utter a single reason that
37
his sentence should not be carried out, even though there are
many compelling reasons to spare his life.
Even if Bobby's mental competence to be executed were the
sole basis upon which to exercise the power of clemency, Judge
Carr's Order would not be a sufficient basis upon which to allow
this execution to go forward. Nevertheless, we urge the Governor
to recognize that the narrow legal question before the court at
the Competency Hearing is but one small aspect of the universe of
reasons why this unjust sentence should not be carried out.
To grant clemency to Bobby would mean that instead of being
executed, he would be sentenced to life without the possibility
of parole for 50 years. Under his special circumstances, that is
not a tremendous measure of mercy to extend. The imposition of
the death penalty on him is nothing more that the needless
imposition of pain and suffering. However, granting clemency
which merely commutes Bobby's sentence to life without parole
would be an incomplete remedy because he should be in a
residential psychiatric care facility. The picture of Mr. Shaw
that was painted at the competency hearing is that of a docile,
long term, residential psychiatric patient. Under Missouri
Chapter 552.040, an acquittal by reason of mental disease or
defect would have resulted in Bobby's commitment to the
Department of Mental Health for care, custody and treatment.
Under Chapter 552.050, a prisoner such as Bobby should be
transferred to the Department of Mental Health for treatment. We
urge the governor to fashion a remedy for Bobby that not only
38
oa relieves him of his sentence of death, but which further eases
the pain and suffering that mental illness has inflicted upon him
and his family.
An order granting Bobby clemency would not be merely an act
of compassion or sympathy; it would reflect the fact that Bobby
has a disability which prevents him from harboring the level of
culpability which would make death an appropriate punishment. It
would also demonstrate that Missouri is a state in which an
individual who suffers disabilities similar to Bobby's will be
treated with dignity and humanity. The failure to extend this
modest consideration to Bobby would violate the evolving
standards of decency expected of a civilized society.
Respectfully submitted,
Donald L. Wolff
8019 Forsyth
Clayton, MO 63105
314/725-8019
Sean D. O'Brien
500 East 52nd Street
P.O. Box 22609
Kansas City, MO 64113-2609
816/235-2383
FAX 816/235-1008
Attorneys for Petitioner
39
