IN THE MATTER OF: JAMES W. CHAMBERS, CP-22
Potosi Correctional Center
Mineral Point, MO 63660
TO: THE HONORABLE MEL CARNAHAN,
Governor of the State of Missouri
APPLICATION FOR EXECUTIVE CLEMENCY AND/OR
COMMUTATION OF A SENTENCE OF DEATH
Respectfully submitted,
KENT E. GIPSON, #34524
. ATTORNEY AT LAW
305 East 63" Street
Kansas City, MO 64113
816/363-2795 @ Fax 816/363-2799
GEORGE M. WINGER, #15724
ATTORNEY AT LAW
9233 Ward Parkway, Ste. 120
Kansas City, MO 64114
816/361-1137 @ Fax 816/361-0283
Attorneys for Applicant
TABLE OF CONTENTS
SUMMARY OF REASONS JUSTIFYING EXECUTIVE CLEMENCY ........ 1
INTRODUCTION ........ cece etree eee e cece eeeeeeeeaeeeenee 2
STATEMENT OF FACTS ..... cece cece eee e eee eee en eee nee eenes 5
PROCEDURAL HISTORY .........200ceece ence eeee tence eee enees 8
JAMES CHAMBERS’ SENTENCE OF DEATH IS GROSSLY
DISPROPORTIONATE TO THE CIRCUMSTANCES OF HIS CASE ........ 9
IF THIS CASE HAD BEEN PROPERLY TRIED WITH THE ASSISTANCE OF
COMPETENT COUNSEL, CHAMBERS WOULD NOT HAVE BEEN
CONVICTED OF CAPITAL MURDER ...........000eseeeeeeeeeeeeeee 12
CHAMBERS’ CONVICTION WAS SECURED THROUGH THE USE OF FALSE
AND UNRELIABLE EYEWITNESS TESTIMONY .......-.00:eeeeeeeee 16
COUNSEL FAILED TO PRESENT EVIDENCE AT TRIAL OF JAMES
CHAMBERS’ BORDERLINE MENTAL RETARDATION .........+..++05 21
EXECUTING JAMES CHAMBERS AFTER SEVENTEEN YEARS ON DEATH
ROW WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHEMENT.... 25
CONCLUSION os. isis trteis ediiee eiecis acitine Sricire wee Seles bees wv eS SES Oe 27
IN THE MATTER OF:
THIS IS A DEATH PENALTY CASE.
EXECUTION IS SET FOR 12:01 AM
NOVEMBER 10, 1999
JAMES W. CHAMBERS, CP-22
Potosi Correctional Center
Mineral Point, MO 63660
ee ee
APPLICATION FOR EXECUTIVE CLEMENCY AND/OR
COMMUTATION OF A SENTENCE OF DEATH
TO: THE HONORABLE MEL CARNAHAN,
Governor of the State of Missouri: |
COMES NOW James W. Chambers, by and through counsel, George Winger and
Kent Gipson, and petitions the Governor for an order under Missouri Constitution Art. IV,
Section 7 and Sections 217.800 and 552.070 R.S.Mo (1994), granting him a new trial, or
order his sentence be commuted from death by lethal injection to life imprisonment without
eligibility for parole; or, in the alternative, stay the execution presently scheduled for
November 10, 1999, and appoint a board of inquiry under Section 552.070 to investigate
this case or; stay the execution pending the completion of the investigation of special
prosecutor Morley Swingle into allegations that Mr. Chambers’ conviction and sentence of
death was secured through the perjured testimony of several of the prosecution witnesses.
1.
SUMMARY OF REASONS JUSTIFYING EXECUTIVE CLEMENCY:
James Chambers’ life should be spared because:
e No one else in modern times in the United States has received a sentence of death
where the homicide occurred in the context of a bar fight. The death sentence given
to James Chambers is, therefore, grossly disproportionate to the facts of his case.
e Witnesses whose testimony would have helped prove that Chambers 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, Fred leppert,
gave an inconsistent and possibly perjured account of events at the third trial which
falsely bolstered the prosecution’s theory that the shooting was planned and
premeditated.
e Evidence of Chambers’ borderline erent retardation which could have negated the
deliberation element of the charge and provided powerful mitigating evidence in
favor of a life sentence was not presented to the jury due to the incompetence of
counsel.
e To execute James Chambers after he has spent 17 years on death row would
constitute cruel and unusual punishment.
I.
INTRODUCTION
James W. Chambers, has been on Missouri's death row for over 17 years as a
result of a barroom argument which culminated in the shooting of Jerry Oestricker outside
the Country Club Lounge in Amold, Missouri in 1982. James Chambers has had three
trials, but he has not had three fair trials. Due largely to the incompetence of his different
trial counsel, Mr. Chambers’ story that he lawfully acted in self defense against a larger
man who was the initial aggressor and had a reputation as a violent barroom brawler, has
never been effectively told and properly presented to a Missouri jury.
By all accounts, the facts of this case, essentially involving a barroom brawl resulting
in a homicide, would not seen to warrant the imposition of the ultimately penalty of death
by execution. Sadly however, the Supreme Court of Missouri, in the words of former Chief
Judge Charles Blackmar in his dissent in State v. Reuscher, 827 S.W.2d 710 (Mo. banc
1992), in it’s eagerness to affirm death penalty convictions in Missouri, has “continually
refused to face up to it’s responsibilities in proportionality review.” Id. at 719 (Blackmar, J.,
dissenting). The facts in this case led former Supreme Court Judge Warren Welliver to
conclude in his dissent in Chambers II: “I respectfully dissent. This is an ordinary barroom
altercation... Under these circumstances, | cannot impose the death penalty. | would
reduce the sentence from death to life imprisonment without parole for fifty years;
otherwise proportionality in Missouri is reduced totally meaningless. State v. Chambers,
714 S.W.2d 527, 534 (Mo. banc 1986) (Welliver, J., dissenting).
Apart from the disproportionality of the penalty to the severity of the crime, there are
many other compelling reasons to spare Mr. Chambers life. Because of the incompetence
of his trial attorneys Karen Craft and Christine Grady, the jury did not hear compelling
evidence regarding the true facts surrounding the crime which, at a minimum, would have
resulted in a conviction for a lessor included offense of manslaughter or second degree
murder. In this regard, the comments of jury foreman, Eric Chism are particularly
appropriate. Mr. Chism, ina sworn affidavit, has stated that the experienced and skilled
prosecutor Richard Callahan totally out performed and out classed the defense counsel
at the third trial. Mr. Chism has now stated that he does not believe that Mr. Chambers
3
should be executed and has provided powerful evidence and insight indicating that if the
case had been properly tried by competent counsel that Mr. Chambers would not be on
death row. (Exh. 1).
It is inescapable that there has never been a case in the post-Furman era where a
state has executed a convicted murderer for a homicide that occurred in the context of a
bar fight. If Mr. Chambers’ execution is allowed to proceed as scheduled, the fairness of
Missouri's criminal justice system will be forever tarnished by this aberration of justice.
Effective counsel could have persuaded the jury that this homicide was a culmination of
a barroom fight instigated by Jerry Oestricker, a violent man with a reputation as a barroom
brawler, whose violent acts precipitated his own death. The jury that convicted and
sentenced Mr. Chambers heard nothing of Oestricker’s background. It was also not
pointed out to the jury that the prosecution’s star witness, Fred leppert, gave a drastically
different account of the shooting in Mr. Chambers’ third trial. Mr. leppert’s change in his
story went virtually unchallenged by the defense, who incompetently failed to point out to
the jury the inconsistencies between Mr. leppert’s account of the crime at the third trial and
his previous testimony. Mr. leppert’s changed story at the third trial, whether motivated by
intentional perjury or his own lack of memory and overall credibility, made this homicide
appear much more premeditated than it actually was. In particular, Mr. leppert’s testimony
at the third trial falsely suggested that Mr. Chambers lured Mr. Oestricker out of the tavern,
checked his gun as he was exiting the tavern, and then shot Oestricker a “split second”
after he walked out the door. In fact, Mr. leppert had previously testified that there was a
ten to twelve second lapse between the victim’s exit from the bar until the shot was fired.
This would have provided plenty of time for Oestricker to attack Mr. Chambers before he
4
was shot, thus bolstering his claim of self-defense.
The other glaring failure of trial counsel in the third trial was their utter failure to put
on any evidence regarding Mr. Chambers’ borderline mental retardation, which could have
rebutted the mental element necessary to convict of capital murder and provided powerful
mitigating evidence to the jury that would have convinced them to spare his life at the
penalty phase. Counsel’s failure in this regard was inexcusable. For all the reasons that
will be outlined below, elementary principles of justice demands that, at a minimum,’ Mr.
Chambers’ disproportionate and unfairly inposed sentence of death be commuted.
Mh
STATEMENT OF FACTS
On Friday, May 29, 1982, James Chambers spent the Memorial day weekend
camping on the Meramec River with his wife, Darlene Chambers, her two sons, Eddy and
Kevin, his brother, Dan Chambers, his cousin, Donny Chapman, and Chapman's girlfriend,
Eleanor Hotchkiss. They spent Friday fishing and target shooting. Sometime in the early
evening Chambers and Chapman decided to try to get a boat to take the children out on
the river fishing. Chapman told Chambers that the Turners had a boat and both men along
with Eleanor Hotchkiss, left the river to look for the Turia. They first proceeded to the
Country Club Lounge.
The Turner family had however left the bar shortly before the group arrived. The
'Based upon the facts of this case, justice would best be served if the Governor
granted clemency with the understanding that Mr. Chambers would not raise any legal
objection to a retrial. Alternatively, a commutation involving a parolable prison sentence
for the lesser.crime of second degree murder might be appropriate because a sentence
of life without parole, like the death penalty, would also be excessive under the facts of
this case.
Turners were asked to leave by Ken Vaughn, the bar owner, following a brief argument
between Jerry Oestricker and Jackie Turner. Mr. Chambers went into the lounge and left
without incident after realizing the Turners were not there. Chapman, Hotchkiss and
Chambers then proceeded to the Turners’ home which was located nearby. Jackie Turner
told Chambers that their boat was dry docked, but a neighbor had a boat that he might be
able to use.
Chambers and Jackie Turner retumed to the Country Club Lounge to find the
neighbor and see if they could get the boat. Chambers walked up to Jerry Oestricker an
old acquaintance, and asked if Oestricker would buy him a drink. Oestricker responded :
“fuck you,” and an argument erupted between Chambers and Oestricker. Ken Vaughn
requested that they stop or take their problems outside. Chambers headed for the door and
Oestricker followed as the two proceeded outside. In the course of the ensuing fight,
Oesiricker was shot once in the chest by Chambers.
Attrial, the defense contended that Chambers shot Oestricker in self defense. After
exiting the bar, Oestricker hit Chambers and knocked him down and stabbed him in the
arm with a pair of needle-nosed pliers.?, Chambers then shot Oestricker from the ground
as Oestricker was moving toward him. As Oestricker's momentum carried him closer to
petitioner, Chambers struck Oestricker with the gun.
The prosecution’s theory of the case was that this was a premeditated attack by
Chambers to avenge the altercation between Jackie Turner and Oestricker earlier in the
The fact that Chambers was stabbed was corroborated by Robert DePew, a
deputy sheriff who supervised the Jefferson County jail, who testified that he observed
a puncture wound on Chambers’ arm after he was arrested that night.
6
day. The State’s star witness, Fred leppert, who of all the patrons and employees of the
tavern, was the only person who claimed to have seen what transpired at the time of the
shooting, testified that Mr. Chambers knocked Mr. Oestricker down by striking him in the
head with the gun. He further testified that as the victim was attempting to get up off the
ground, Chambers shot him once.
Witnesses testified that after Chambers struck Oestricker he returned to near the
doorway of the bar displaying the gun and made threatening statements to the persons
inside the tavern. He then walked to the car he had arrived in and was driven away.
The actual shooting occurred sometime between 10:15 and 10:30 p.m. Autopsy
results revealed that the victim died of a single gunshot wound to the chest. Bruises were
found on the victim's face and shoulders. The victim's blood alcohol level was .14. Mr.
Gestiisiier's level of intoxication however, was probably higher than that because he had
received intravenous fluids at the hospital during attempts to save his life.
The jury, after due deliberation, convicted Chambers of first degree murder and
returned a sentence of death based upon a finding of two statutory aggravating
circumstances under Missouri law. The jury found that petitioner had - substantial history
of serious assaultive convictions and that the homicide involved depravity of mind. The
jury heard no evidence in mitigation of punishment, other than a brief plea for mercy from
Chambers’ wife.
Iv.
PROCEDURAL HISTORY
After he. was convicted and sentenced to death at his first trial in December of 1982,
the Missouri Supreme Court reversed the conviction because the trial court failed to give
a self-defense instruction. State v. Chambers, 671 S.W.2d 781 (Mo. banc 1984). Mr.
Chambers’ conviction and sentence following retrial in 1985 was affirmed by the Missouri
Supreme Court in State v. Chambers, 714 S.W.2d 527 (Mo. banc 1986), but later reversed
by the Eighth Circuit Court of Appeals because he received ineffective assistance of trial
counsel. Chambers v. Armontrout, 907 F.2d 825 (8th Cir. en banc 1990), cert. denied 498
U.S. 950 (1990). Mr. Chambers’ third trial commenced on October 28, 1991. He was
again convicted and sentenced to death. This conviction and death sentence was affirmed
by the Missouri Supreme Court on consolidated appeal in State v. Chambers, 891 S.W.2d
93 (Mo. banc 1994).
A petition for federal habeas corpus relief was denied by the United States District
Court for the Western District of Missouri and the Eighth Circuit Court of Appeals. See
Chambers v. Bowersox, 157 F.3d 560 (8th Cir. 1998). Certiorari was denied by the United
States Supreme Court in June of 1999. Mr. Chambers has, therefore, exhausted all legal
remedies available to him. For the following reasons, executive clemency is warranted.
Vv.
JAMES CHAMBERS’ SENTENCE OF DEATH IS GROSSLY
DISPROPORTIONATE TO THE CIRCUMSTANCES OF HIS CASE
“[A]n ordinary barroomaltercatior’ was the description given to this case by Judge
Welliver of the Missouri Supreme Court in his dissent in State v. Chambers, 714 S.W.2d
at 534, after the second trial. The imposition of the death penalty in such a case is simply
disproportionate to the gravity of the crime committed. The facts of this case clearly do
not warrant the death penalty and justice demands that this travesty be rectified.
A. No other defendant has ever been executed for a barroom
killing in modern times
The imposition of the death penalty is this case was arbitrary and fundamentally
unfair. The only case counsel has been able to find in any state, including Missouri, where
on similar facts the defendant was given the death penalty was reversed by the Supreme
Court of the State of Nevada as disproportionate. The description by the Nevada court of
the facts of that case fits this case almost perfectly:
“Biondi’s crime, although violent, occurred in the context of a barroom
confrontation among opposing strangers who were substantially intoxicated
and emotional. Tempers flared, challenges were issued and a death
occurred. While we do not in any sense condone such a senseless killing
» we are nevertheless convinced that our course is clear under the
proportionality mandate of the statute....we hold the death penalty imposed
on Biondi is disproportionate.”
Biondi v. State 699 P. 2d 1062, 1066 -1067 (Nev. 1985).
The most factually similar Missouri cases, involving tavern homicides, have all
resulted in lesser sentences. In 1998, for example, the Missouri Court of Appeals, Western
District affirmed Larry McCoy’s conviction for second degree murder and armed criminal
action and his sentence of concurrent terms of twenty years for shooting a man in a
altercation which had spilled out of a bar. State v. McCoy, 971 S. W. 2d 861 (Mo.App.
W.D. 1998). The Southern District in 1993 affirmed Ronald Hill’s conviction of second
degree murder and sentence of fifteen years imprisonment for shooting an acquaintance
in a barroom argument. State v. Hill, 866 S. W. 2d 160 (Mo.App. S.D. 1993).
B. The penalty review procedure by the Missouri Supreme
Court was inadequate
In order to prevent the arbitrary, and therefore unconstitutional, use of the death
penalty, the Supreme Court of Missouri must, by law, independently review all cases where
the death penalty has been imposed on a defendant. The Court must consider: “whether
the sentence of death is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime, the strength of the evidence and the defendant.”
§565.035.3 R.S.Mo.(1984). The court must also cite references to those similar cases
which it has taken into consideration in its proportionality review. Id. This process is
intended to ensure that a fair and consistent distinction is made between those crimes for
which the death penalty is deemed suitable and those for which it is not.
The starting point for a proper proportionality analysis, therefore, should be those
cases which are factually similar to the case under review in terms of the crime committed,
the evidence and the personal characteristics of the defendant. A comparison should then
be made between the penalty imposed in those other similar cases and the case under
review.
The seven cases cited by the Missouri Supreme Court as similar to Chambers’ case
clearly are not, under any stretch of imagination, remotely comparable to this tavern
homicide. State v. Wilkins involved a stabbing of a store clerk committed during the course
of a robbery. State v. Lingar involved a murder of a young man during a kidnapping that
had sexual overtones. State v. Rodden was a double murder where the victims’ bodies
were set on fire after they were stabbed to death. State v. Grubbs, State v. Reuscher, and
10
State v. Feltrop also were particularly gruesome homicides that are categorically different
from this case.
The monstrous injuries inflicted by these defendants on their victims in these
purportedly comparable cases are of a wholly different character from the homicide in this
case. In Reuscher, the victim suffered multiple head wounds including a fractured skull and
stab wounds to the chest, throat and testicles. In Rodden, the two victims died from
multiple stab wounds and an attempt was made to burn the bodies; and, in Grubbs the
victim had thirteen broken ribs, a cracked sternum, lacerations to face and liver, a broken
nose and a brain hemorrhage. The victim in Wilkins suffered multiple stab wounds. In
Lingar, the victim was shot, beaten, and run over by a car. In Feltrop, the victim bled to
death after being repeatedly stabbed by the defendant, who then dismembered and
disposed of the body in a pond.
Cc. The Federal Courts did not address this issue
Apart from the Missouri Supreme Court, no other court has considered the
proportionality of the death penalty in this case. The District Court acknowledged that it
was bound to reject the proportionality claim without consideration because of prior case
law. Chambers v. Bowersox, 1997 WL 118366 (W.D. Mo.). However, Judge Sachs noted
that “a tavern related homicide may be an unfamiliar context for capital punishment.” The
Eighth Circuit was also unable to fully consider the question of proportionality because
precedent precluded them from independently examining the determination by the Missouri
Supreme Court that the sentence was proportionate. Chambers v. Bowersox, 157 F.3d
at 570.
11
All similarly-situated defendants in Missouri, who have committed homicides in
tavern fights have received sentences of imprisonment. James Chambers, therefore, has
been given a death sentence for a crime for which no other person either in Missouri or
anywhere else in the United States has been executed in modern times.
The last word on this subject should be heard from Judge Welliver of the Missouri
Supreme Court:
“,..1 am unable to see any new or additional evidence that changes the case
froma barroom altercation. Under these circumstances, | cannot impose the
death penalty. | would reduce the sentence from death to life imprisonment
without parole for fifty years; otherwise proportionality in Missouri is reduced
totally meaningless.”
State v. Chambers, 714 S.W.2d at 534; (Welliver J. dissenting).
Vi.
IF THIS CASE HAD BEEN PROPERLY TRIED WITH THE
ASSISTANCE OF COMPETENT COUNSEL, CHAMBERS WOULD
NOT HAVE BEEN CONVICTED OF CAPITAL MURDER
The State claimed the shooting of Jerry Oestricker was a premeditated attack in
contrast to Chambers’ claim that he acted in self defense. At trial the State had the
burden of proving beyond reasonable doubt that the James Chambers did not act in self
defense. The key issues in every self defense case involve whether the defendant; (a)
reasonably believed it was necessary to use deadly force, and (b) to protect himself from
what he reasonably believed to be the use of unlawful force that placed him in imminent
danger of serious injury or death from the victim. Vital witnesses and evidence which
established that Oestricker had attacked Chambers with a pair of pliers was not presented
to the jury...As a result, the defense’s contention that James Chambers reasonably
12
believed he was in danger of serious injury when he shot Oestricker was not effectively
presented. Independent evidence and impeaching information, which undermined the
prosecution’s case that this was a premeditated attack, was also not utilized. Finally, the
fact that Chambers was advised by counsel not to testify meant that it was almost
impossible for a jury to determine what he reasonably believed at the time of the shooting,
thus dooming his claim of self-defense.
A. Chambers’ Lack of Premeditation Could Have Been
Proven by Effective Counsel
The prosecution’s theory that the shooting was premeditated and therefore
deserving of the death penalty was largely unsubstantiated and incredible. Because he had
incompetent attorneys, Mr. Chambers had no opportunity to effectively advance his
version of events..The true reason for Chambers wound up at the tavem that night was to
obtain a boat with which to fish on the river. It is for this reason that he traveled first to the
Turners’ house and then to the bar. When he discovered that the Turners’ boat was
unavailable, Chambers proceeded to the Country Club Tavern to see Jerry Hardesty
about a boat. There were many witnesses who could have attested to this and, therefore,
undermined the prosecution’s argument that Chambers was on a mission to kill Jerry
Oestricker at the behest of the Turner family. These witnesses include Eleanor Hotchkiss,
Dan Chambers, Darlene Chambers, Phil Turner and Jack Turner. (See Exh.’s 5 - 8).
None of these witnesses were called at the guilt phase of trial.
Even more pertinent is the fact that there was no grudge between Jerry Oestricker
and Jackie Turner at the time of the shooting and hence no motivation for a premeditated
killing by Mr. Chambers to “avenge” Jackie Turner. There was a fight that had occurred
13
earlier that day between the victim and Turner, but the two men reconciled. The
reconciliation was verified by an independent witness, Beverly Melton. In a police
interview, she stated she saw the two men “ shaking hands and patting each other on the
back and Jackie went his way and Jerry went back to the poo! table and so | assumed well
they just figured they had both been drinking and that was it.” (See Exh. 3). This evidence
was never heard and, as such, the jury was left with little choice but to believe the
unsubstantiated and incredible “retaliation” theory advanced by the prosecution.
The other glaring shortcoming of defense counsel, apart from their failure to
discredit the state’s theory of motive and premeditation with credible evidence, was their
utter failure to present to the jury the fact that the victim, Jerry Oestricker, had a notorious
reputation for violence. The jury that convicted Mr. Chambers and ultimately sentenced
him to death heard nothing about Jerry Oestricker’s background and reputation as a
barroom brawler. Available evidence could have been presented to show that Mr.
Oestricker had prior convictions, had a reputation for violence, and was known to
frequently engage in barroom fights. In fact, some of the injuries noted on Mr. Oestricker’s
body by the coroner after he was killed were inflicted upon him in a fight the previous night
with a man named Russell Humphrey. Because of counsel's failure to provide the jury
with with a true picture of Mr. Oestricker’s violent tendencies, the result of the third trial was
inherently unreliable and unjust.
In this regard, it is interesting to note that counsel for Mr. Chambers was recently
contacted “out of the blue” by a man from Amold, Missouri, named Bill Lee. Mr. Lee, after
reading of Mr. Chambers’ upcoming execution in the local newspaper, contacted counsel
to provide information about a similar barroom confrontation that he had with Jerry
14
Oestricker in 1969. Mr. Lee has stated in a swom affidavit that he was subjected to an
unprovoked attack by Jerry Oestricker outside a bar in south St. Louis that was strikingly
similar to Oestricker’s confrontation with Mr. Chambers that led to his death some thirteen
years later. (See Exh. 2). Mr. Lee’s account of his confrontation with Mr. Oestricker in
1969 speaks volumes as to the victim’s true character and history of violent behavior while
intoxicated. Although no barroom brawler deserves to die, Mr. Oestricker’s violent and
belligerent nature and actions undoubtedly contributed to his death. Had the jury known
of Mr. Oestricker’s character and propensity for violence, there is little doubt that they
would not have convicted Mr. Chambers of capital murder, nor sentenced him to death.
The fact that Mr. Oestricker’s violent behavior contributed to his own death also
significantly bolsters Mr. Chambers’ argument that the facts of this case are not appropriate
for capital punishment.
The death penalty, in theory, in order to be consitutionally imposed, is supposedly
reserved for a small percentage of the most heinous and atrocious murders. A common
thread of the overwhelming majority of death penalty cases that have come before the
Governor and the courts for review is that the victim was innocent and helpless. Never
before in the modern history of this state’s capital punishment system has a man been
executed where, as here, it is clear that the victim’s violent and provocative behavior
contributed to his own death. For this reason alone, the death penalty is an aberration in
this case that cries out for correction.
Vil.
CHAMBERS’ CONVICTION WAS SECURED THROUGH THE USE OF
FALSE AND UNRELIABLE EYEWITNESS TESTIMONY
15
Fred leppert was the star witness for the State and his testimony was vital to the
State’s case for capital murder. He testified at the preliminary hearing and all three trials.
leppert’s testimony was critical to the issue of whether Chambers was acting in response
to a perceived risk of serious injury or death. leppert testified at the third trial that
Chambers shot Oestricker, without provocation, a split second after they exited the tavern.
Even the most cursory look at the transcripts of the three trials and the preliminary
hearing reveal that Mr. leppert’s testimony is totally inconsistent and self contradictory. Mr.
leppert not only gives contradictory testimony between each trial but also contradicts
himself within the same trial, sometimes within a few lines. Chambers’ trial attorney did little
to impeach leppert regarding the inconsistencies between his testimony at the third trial
and his previous statements and testimony. If trial counsel had effectively challenged
leppert as to these inconsistencies in his testimony, the jury would have reached the
inescapable conclusion that his testimony was unworthy of belief. It is James Chambers’
grave misfortune that leppert’s credibility was not effectively challenged.
The most critical discrepancies involved leppert’s testimony that he had seen the
entire altercation, and had not seen Oestricker hit Chambers, his testimony as to when he
saw James Chambers pull out a gun from his waistband and testimony that he did not see
Oestricker holding anything in his hands before or during the altercation. This evidence
was of critical importance to the question of whether the homicide was premeditated or
involved self-defense.
The following examples clearly demonstrate the inherent unreliability of leppert’s
. testimony. Mr. leppert’s claim that he only lost sight of the two men for a split second was
devastating to the defense. This “split-second” testimony completely undermined the
16
defense’s contention that Chambers shot Oestricker after he was assaulted because
counsel did not bring to light that leppert previously testified that he lost sight of the pair
of men for 10-12 seconds, more than enough time for Oestricker to have stabbed
Chambers before he was shot. The following excerpts from leppert’s numerous accounts
of the shooting underscore the material inconsistencies between his testimony at the third
trial and his previous accounts of the homicide.
Preliminary Hearing at page 14
Q: What did you observe happen on the parking lot?
Well, momentarily for a second they got out of my view and | went to the
door.
Trial One at page 486
Q: How do you know that (that Mr. leppert saw all the trouble)? Were they
apart when you first saw them?
A: It’s possible they might have three or four seconds from the time | walked
from the stool to the door.
Trial Two at page 442
Q: Can you tell us in seconds how long the two men were out of your view?
From the time it took me from the barstool to that door. | would say
approximately ten seconds.
Trial Three at page 350
Q: While you were walking to the door, did you temporarily lose sight of Jerry?
Possibly - a split second or so.
17
Preliminary hearing at page 37
About how far from the door was he standing in the parking lot?
About fifteen feet, approximately Approximately fifteen feet.
Fifteen feet out the front door. What did you see him do out there on the
parking lot while he was waiting for Mr. Oestricker?
Raise his shirt and draw a pistol.
Trial One at page 461
As Chambers walked outside the door, how far outside the door was he
when you saw him take an object out of his belt.
Well as soon as he started out the door he started to pull up his shirt and
take out the object
Trial One page 463
So, how far was Chambers inside the bar yet when Chambers took the gun
out of his belt?
Twenty feet inside the bar.
Trial Two at page 428
My question to you, and | want to clarify it, he was in the doorway moving
out the building when you saw him reach?
Yes
Trial Three at page 361
And you said (at the preliminary hearing) he’s still inside the bar, about a
foot from the door when you see him reach and pull something out?
18
i
A: Yes ma’am.
Trial Three at_page 362
Q: And you’re saying that Jim was still inside the bar when you saw him pull the
gun out?
A: | didn’t say that. | said he was moving as he raised up his shirt going out the
door, all in one motion.
These are just two examples of the inconsistencies in Mr. leppert’s evidence. Mr.
leppert inconsistently has stated that Oestricker walked to the door of the bar (trial 1 page
483, trial 2 page 433) and also that he ran to the door (police interview page 2, trial 3 page
361). At the first trial (page 464) he gave evidence that Mr. Oestricker was not moving
toward James Chambers before he was shot but in the preliminary hearing (page 46) and
in the second (page 445) and third trials (page 364) he testified that Jerry Oestricker was
in fact moving toward Chambers. leppert also testified in the preliminary hearing (page 46)
and second trial (page 449) that he did not see James Chambers fire the gun but in the
third trial (page 365) he said he did. In the third trial (page 349, 353), he testified, for the
first time, that Chambers looked down at the gun as if checking to see if it was loaded.
This was the first time he had ever mentioned this critical fact, which was effectively utilized
by the prosecution to establish premeditation.
Other discrepancies lie in what Mr. leppert saw in Oestricker’s hands. In the
preliminary hearing (page 41) he said he didn’t notice anything in Oestricker’s hands as he
left the bar, but in the first and second trials he said Oestricker did not have anything in his
--hands (page 467, 422). He also stated in the preliminary hearing (page 46) that at the
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point when Oestricker got up off the floor he did not notice Oestricker's hands and could
not say whether he had anything in his hands at that point. In trial two he agrees with
defense counsel that this was his testimony (page 450) but then under redirect examination
he then says he did notice Oestricker’s hands after he got up and there was nothing in
them (page 452).
Another significant inconsistency in leppert’s testimony involved the relative position
of Mr. Chambers and Oestricker when the fatal shot was fired. leppert testified at the third
trial that the victim was crouching in a non-erect position when Mr. Chambers shot him.
(Tr. 353). At the first trial leppert recounted that the victim was standing when he was shot
by Chambers. (Tr. 1 at 464). Mr. leppert had also twice previously testified that the victim
was standing and lunging at Mr. Chambers when the fatal shot was fired. (Prelim. Tr. 45-
46; Tr. 2, 444-446, 454, 454-455). Counsel’s failure to impeach leppert as the position of
the victim when the shot was fired effectively prevented the defense from using expert
testimony involving recreation of the shooting which would have significantly bolstered Mr.
Chambers’ theory of self-defense. (See Exh.’s 9 - 10).
Mr. leppert has contradicted himself at some point on virtually every aspect of the
fatal altercation between Chambers and Oestricker. These drastic inconsistencies have
led to the appointment of a special prosecutor, H. Morley Swingle, to investigate whether
leppert committed perjury at the third trial. Swingle’s findings and conclusions on these
questions will be provided to Governor Carnahan in support of this application.
Vill.
COUNSEL FAILED TO PRESENT EVIDENCE AT TRIAL
OF JAMES CHAMBERS’ BORDERLINE MENTAL RETARDATION
20
Mr. Chambers was sentenced to death by a jury that did not hear vital evidence of
his mental disabilities. Prior to Mr. Chambers’ first trial, a mental evaluation was ordered
by the court. The results of the tests carried out by state mental health expert Dr. S. D.
Parwatikar contained much important information highly relevant to both the guilt and
sentencing phase of Mr. Chambers’ trial.
Dr. Parwatikar’s findings stated that at the time of the offense, Mr. Chambers was
suffering from depression, which seems to date from about eight weeks prior to the
incident, and that he had an IQ of 78. He states further that this could constitute a mental
disease or defect within the meaning of Chapter 552 and concluded that the disease is
“quite likely” to have caused Mr. Chambers to act impulsively after provocation. This is
critical evidence that shows that Mr. Chambers did not act with the mental state of ‘cool
deliberation’ required under Missouri law to support a capital murder conviction. (Exh. 15).
With regard to the penalty phase, Dr. Parwatikar’s report stated: “mitigating
circumstances as discussed should be taken into consideration to determine the degree
of his offense or the sentence if found guilty”. However, at the penalty phase where the
prosecution placed before the jury a list of Mr. Chambers’ prior convictions and the facts
of the crime, the only evidence that was heard for the defense was a brief plea for mercy
from Mr. Chambers’ wife. Without the benefit of evidence showing Mr. Chambers’
borderline mental retardation and mental instability at the time of the offense, there was
no compelling reason for the jury to spare his life. Jury foreman Eric Chism, after reviewing
this evidence, has stated under oath that the jury would not have sentenced him to death
if they had known about Chambers’ mental limitations. (Exh. 1). Governor Carnahan
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should reach the same conclusion.
A. James Chambers’ Mental History
James Wilson Chambers is the eldest of the five children of parents Raymond and
Brenda Chambers, a machine operator and housewife. James shared a bedroom as a
child with his two brothers. At age six, he experienced a bad fall and cut his head open,
losing consciousness for at least three hours and was admitted to hospital overnight.
Darlene Chambers, his childhood friend and now wife, stated under oath that James was
regularly beaten and that his father was an alcoholic. Mr. Chambers will not comment on
these statements. During his lifetime, Chambers has spent time in five mental hospitals
for periods of evaluation and treatment.
At the age of fourteen James, was first documented as having mental problems
when he failed to achieve at school, was disruptive and was ‘nervous and scared to be left
alone’ . Consultant psychologist Dr. Harvey Austrin diagnosed him as ‘mildly retarded’ and
stated that his general judgement appeared to reflect this. He recommended a special
education placement. James dropped out of school a year later. This is only time that any
educational or social institution gave James any medical attention despite the numerous
findings of mental impairment. Any evaluations made after this point were made with a
view to determining James’ competency to be tried for criminal offenses and never with a
view to providing him with the stability and structure that many mental health experts said
he needed. (See for example reports of Dr. Heisler 1977, Dr. Guhleman 1978)
At seventeen, James was cvanated by Dr. Alejandro Carillo at St. Louis State
Hospital at the request of the Prosecuting Attomey of Jefferson County. His conclusions
22
were that Chambers suffered from: “Mental retardation, borderline, with psycho social
environmental deprivation”. A neurological evaluation to rule out brain damage was
recommended however, this was not carried out at that time, and to this date no testing of
this kind has ever been done. It is, therefore, unknown as to whether Mr. Chambers
actually has brain damage although these mental health experts strongly suspect that he
does.
In 1977, three years after his incarceration, a report was prepared for the Missouri
Board of Probation and Parole by Dr. Gerald Heisler which diagnosed Mr. Chambers as
suffering from “incipient paranoid schizophrenia”. No action was taken on this diagnosis.
A year later, Dr. Henry Guhleman commented on this diagnosis stating:
“Although the psychologists suggest that he may represent elements of an
incipient paranoid schizophrenia, it is difficult for us to compare with that
impression. He does, however, fit a group of personality disorders whom we
have not infrequently seen within the institution who, can under conditions
of stress, train pressures which they feel completely unable to cope with,
decompensate for varying periods of time, appearing very much like a
paranoid schizophrenia, but who revert to their previous personality patterns
once the stress is alleviated.”
Mr. Chambers mental instability and retardation have been clearly chronicled
throughout his life. It was clearly inexcusable and incompetent for trial counsel not to have
presented this documented evidence of Chambers’ mental illness to the jury at the third
trial. If this had been done, the result would have been different.
The presentation of evidence detailing mental retardation was even more vital in the
light of Mr. Chambers outward appearance of competence. His character is such that he
appears extremely confident and outwardly adjusted. It is stated in numerous reports that
his attitude to life is that he must appear physically and mentally perfect or people will take
23
advantage of his weaknesses.
Commenting on James Chambers’ approach to life Dr. Heisler stated:
‘He is a person who has a high need for approval and yet feels that most
people are against him. He is not used to seeing people react warmly and
views conflict as being a common part of life.’
“He appears to be a person who puts on an act of being over confident and
yet is very insecure underneath’.
‘He is extremely frightened and tries to compensate by being an angry young
man who will reject others before he feels that he is rejected’.
It is easy to see how a jury without any evidence to contradict this outward veneer
would suppose Mr. Chambers fully cognizant and culpable for his crime. It is now
inescapable that the evidence of Chambers’ borderline mental retardation and mental
illness, as indicated by jury foreman Eric Chism, would have convinced the jury to spare
James Chambers’ life. Governor Carnahan should follow suit.
Ix.
EXECUTING JAMES CHAMBERS AFTER SEVENTEEN YEARS ON DEATH ROW
WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT
Mr. Chambers has now spent over 17 years on death row in Missouri. This delay is
not the result of his own frivolous appeals, calculated only to delay the inevitable. It is
instead due entirely to the State of Missouri’s failure to provide him with a legally and
constitutionally fair trial. Twice the courts have struck down his conviction, and three times
he has been forced to endure the mental anguish of being returned to death row by
prosecutors determined to obtain a death sentence. The growing chorus of legal and
humanitarian opinion that compelling someone to endure such a delay on death row
before execution is cruel is cruel and unusual punishment is now so loud that the State of
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Missouri can no longer ignore it. (See Exh. 16). The twin justifications for the use of the
death penalty: retribution and deterrence, can hardly justify the execution of Mr. Chambers
after such a long delay. Mr. Chambers has suffered retribution enough by being forced to
endure the years of uncertainty, endless delays and anxiety. Deterrence, if it is to be a
justification for executing an offender must mean that the sentence is carried out swiftly
and with great certainty. In this case, neither of these justifications for capital punishment
presently exist.
Aglance at the history of the case is sufficient to show that Mr. Chambers has been
ill served by the justice system. His first conviction was overturned because the trial judge
did not instruct the jury on the issue of self-defense. An incompetent State-appointed
lawyer at his second trial gave him constitutionally ineffective assistance by failing to call
a key self-defense witness.
By the time of his third trial in 1990, Mr. Chambers had been forced to spend over
eight years on death row because of unfair trials that had condemned him to die. Eight
years in which he had to endure the inhumane conditions in the Missouri State
Penitentiary, conditions which infringed upon death row prisoners’ rights to the extent that
they successfully sued the state to rectify these squalid conditions. In Chambers’ third
unfair trial, he was represented by inept state appointed counsel who failed to prepare her
witnesses, failed properly to cross-examine key State witnesses and failed to present
important evidence relating to Mr. Chambers’ guilt and moral culpability. As a result, once
again Mr. Chambers has been forced, through no fault of his own, to endure the long wait
for a date to be set for his meeting with the executioner.
For a human being to spend seventeen years on death row is cruel and inhuman
25
t
punishment. A series of foreign country’s highest appellate courts have overturned death
sentences because of such excessive and cruel delays. In Great Britain, the Privy Council
held that a period of more than five years on death row would be ‘inhuman and degrading’
punishment, that violated the Jamaican Constitution. In Zimbabwe, the Supreme Court
tuled that delays as short as three years violated its constitutional safeguard against cruel
punishments. The European Court of Human Rights held that the extradition of a man
wanted for capital murder in Virginia would be in breach of the European Convention on
Human rights because he could expect to face a delay of up to eight years. Since Justice
Stevens of the United States Supreme Court issued his opinion in Lackey v. Texas in 1995
urging the Federal and State Courts to consider this issue, several Judges have ruled in’
dissenting opinions that they consider delays of the length suffered by Mr. Chambers
violate the eighth amendment. In many of these cases, the courts found that the reason
why the prisoner's claim lacked merit was the fact that the prisoner had brought the delay
on himself by vexatiously pursuing unsuccessful appeals. The same cannot be said of Mr.
Chambers. His first two appeals, as noted earlier, were successful.
Mr. Chambers respectfully asks that the Governor take note of the international
authority that the prolonged incarceration of a prisoner on death row is psychological
torture and commute his sentence of death on the grounds that permitting his execution
would be excessively cruel and would serve no social purpose.
xX.
CONCLUSION
James Wilson Chambers will surely die at midnight on November 10, 1999, unless
26
Govemor Carnahan intervenes to remedy this obvious injustice. In most cases, where an
accused is provided competent counsel, a fair and just result occurs at trial. Or, if an unfair
trial occurs, appellate courts will come to the rescue. Because of the fact that Mr.
Chambers had three trials, there was an incredible amount of inertia during the appellate
process not to grant him a fourth trial regardless of the merits of his case. As a result, as
expressed by jury foreman Eric Chism, the reviewing courts overlooked the fact that
defense counsel at the third trial were totally unprepared and out classed by a skilled
prosecutor.
James Chambers is no angel, but neither was the victim. Jerry Oestricker’s history
of aggressive and violent behavior, particularly occurring while he was intoxicated in
taverns, is illustrated by the attached affidavit of Bill Lee. Mr. Lee was also subjected to
an unprovoked attack by Mr. Oestricker at a tavern in 1969. Simply put, although no one
deserves to die because he is a belligerent drunk, Mr. Oestricker’s violent acts against Mr.
Chambers contributed to his own death. Certainly, in light of this fact, Mr. Chambers’ case
cannot be considered one of the small percentage of particularly heinous murders for
which the death penalty is, at least in theory, supposed to be reserved for. Elementary
principles of justice demand that this death sentence not be carried out.
Respectfully submitted,
KENT E. GIPSON, #34524
Attorney at Law
305 East 63” Street
Kansas City, MO 64113
816/363-2795 * Fax 816/363-2799
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GEORGE M. WINGER #15724
Attorney at Law
9233 Ward Parkway, Ste. 120
Kansas City, MO 64114
816/361-1137 @ Fax 816/361-0283
Attorneys for Petitioner
a
US COMMENTATORS ON THE ‘DEATH ROW PHENOMENON’
The raw terror and the unabating stress that the condemned prisoner
experiences is torture; torture in the guise of civilized business in an
advanced and humane polity...whatever one believes about the cruelty of the
death penalty itself, this violence done to the prisoner’s mind must afflict the
conscience of enlightened government and give the civilized heart no rest.
Judge Liacos (concurring) in
District Attorney v Watson 411 N.E.2d 1274 (1980)
Torture is intrinsic to the death penalty. We can argue about how much
torture there is to the electric chair, or gas chamber, or even lethal injection,
about what people feel physically. But | can witness, in fact, that people have
dies a thousand times mentally before they've died physically. You can’t
condemn a person to death and not have them anticipate their death, imagine
their death, and vicariously experience their death many, many times before
they die.
Vicki Quade quoting Sister Helen Prejean
A.B.A. Sec. Of Individual Rts. & Resps, Summer 1996 at p. 12
One night on death row is too much, and the length of time spent there by
some inmates constitutes cruelty that defies the imagination.
Clinton T Duffy.
Sometime Warden of San Quentin prison, California
The stressful environment and isolation from nearly all human contact create . _y
mental agony properly characterized as psychological torture...[furthermore]
the repeated rescheduling and withdrawal of execution date exacerbate
mental suffering
Kathleen M. Flynn
Washington and Lee Law Review (Winter 1997) 291
