During the early morning hours of April 5, 1991, Tony Richardson, a sixteen year-old, was driven to the Chain of Rocks Bridge by an acquaintance, twenty year-old Reginald Clemons. The bridge was a local hang-out for teenagers on the North side of St. Louis. At the entrance to the bridge, Richardson and Clemons met up with Daniel Winfrey and Marlin Gray.

Earlier that evening, Richardson and Clemons were at the residence of Michael Schaffner in a St. Louis suburb. Daniel Winfrey, a fifteen year-old, and his friend, twenty three year- old Marlin Gray, were also there. Trial Transcript, pp. 1684, 1688, 1692, 1697 ("Tr.___). Gray suggested that they travel to the abandoned Chain of Rocks Bridge. Tr. 1686, 1690-91, 1697-98. The old bridge spans the Mississippi River between Missouri and Illinois and had been closed to vehicular traffic for many years. Tr. 1387-88. Schaffner declined to go, but the others drove to the bridge around 11:30 p.m. Tr. 1686, 1690, 1699. Around the same time, Julie and Robin Kerry left their house in St. Louis to pick up their cousin, Thomas Cummins, to take him to the bridge to show him a poem they painted on the bridge deck. Tr. 1335, 1341, 1345, 1499. Cummins, a nineteen year-old from Washington, D.C., was in St. Louis visiting his grandparents. Tr. 1490-91.

The events that unfolded on the bridge leading to the deaths of the Kerry sisters were clearly orchestrated by Gray and Clemons, who easily dominated over Richardson and Winfrey. Gray and Clemons were not only older, but much bigger and stronger than Richardson and Winfrey. After getting onto the bridge, Clemons, Winfrey, Gray and Richardson walked over to the Illinois side and then headed back toward the Missouri side. Tr. 1703-04. On the way back, they encountered the Kerry sisters and Cummins. Tr. 1704. The two groups spoke for a short time, then parted in different directions. Tr. 1505-08, 1704-07.

Winfrey testified that Clemons then said to the others: "Let's rob them," and that Gray replied: "Yeah, I feel like hurting somebody." Tr. 1707. Winfrey testified that Gray orchestrated the robbery. Tony's statement to St. Louis police detectives confirms that it was Gray who directed the robbery. See Tab 1 at 11, 13. As Gray led the group back toward the Illinois side, he handed out condoms to the others. Tr. 1708. Gray threatened Tony with bodily harm if Tony did not do what Gray said. Tab 1 at 13. They continued walking toward the Illinois side and again met up with the Kerry sisters and Cummins. Tr. 1510, 1711-12.

As Cummins and the sisters began walking back toward the Missouri side, Gray led the others in following them. Tr. 1512, 1713. At a bend in the bridge, Gray threw Cummins to the deck and told him it was "a robbery." Tr. 1513-14, 1714. Tab 1 at 11-12. Winfrey testified that the sisters were then raped. Tr. 1715-20. Clemons robbed Cummins of his cash and watch. Tr. 1720-23. Cummins and the Kerry sisters were led to an open manhole on the bridge deck that led to a metal platform underneath. Tr. 1386, 1720, 1723. The platform permitted access to a concrete pier that supports the bridge structure, located several feet below the platforms. Tr. 1403.

According to Winfrey, Richardson took one of the sisters through the manhole, and Clemons later forced the other sister and Cummins under the bridge. In an attempt to deflect culpability from himself and his friend, Gray, Winfrey testified that he then ran off the bridge in search of Gray, who supposedly left the bridge several minutes earlier in search of Tony. Tr. 1720-23. But in fact, everyone present at the scene went under the bridge deck. Cummins testified that while under the bridge deck, he heard two "thuds," as if two more people had entered the manhole and jumped onto the metal platform. Tr. 1599-1600, 1637. This corroborates Richardson's account that he, Clemons, Gray and Winfrey were all under the bridge, along with Cummins and the Kerrys. Tab 1 at 18. Cummins was told to lay down on the platform and then to move down onto the concrete pier below. Tr. 1526-27. Robin and Julie Kerry then came down onto the pier and stood beside Cummins. Tr. 1527-28.

For no apparent reason, Gray punched Julie Kerry in the back of the head, causing her to tumble into the river below. Tab 1 at 12, 19-20. Clemmons pushed Robin off the pier into the river. Tab 1 at 12, 20. Cummins was then told to "jump" from the bridge, which he did. Tr. 1529. Cummins testified it was Richardson's voice that told him to jump. Tr. 1533, 1652. His testimony on this point is dubious at best, as Cummins admitted at the trials of Clemons and Gray that he could not identify the voice he heard under the bridge telling him to jump as that of Richardson. Tr. 1650-51. In fact, only six weeks before, at Clemons' trial, Cummins was asked the following:

Q: And, okay, then what's the next thing that happened?

A: A voice told me to jump.

Q: You don't know who that was...?

A: No sir, I don't.

Tab 2.

Not surprisingly, due to his limited intellectual ability and his life of neglect, Tony Richardson eventually ended up in the juvenile court system at age 13 when he was caught stealing. At age 14, the Juvenile authorities required Tony to fill out a sentence exercise. See Tab 5. Even a cursory glance at Tony's effort shows an extremely limited and simplistic thought process. For example, his responses to sentences 6 and 12 are that most kids think that Tony is "a food," and that "most black people is food like me Some Time."

a condition involving substantial limitations in

general functioning characterized by significantly

subaverage intellectual functioning with related

deficits and limitations in adaptive behavior such

as communication, self-care, home living, social skills,

community use, self-direction, health and safety,

functional academics, leisure and work, which is

manifested and documented before 18 years of age.

The result of a nearly unanimous world-wide sentiment has been the virtual elimination of the execution of persons for crimes committed under the age of eighteen everywhere on earth except for Virginia, Texas, and Oklahoma. The Florida Supreme Court has recently visited this issue and has interpreted the Florida Constitution to prohibit the death penalty for sixteen year-old offenders. See Brennan v. State, 754 So.2d 1 (Fla. 1999). Other states are now considering imposing a higher minimum age than is mandated by the federal constitution, using their own State Constitution as the mandating authority.

The execution of a juvenile offender goes against the basic sense of decency to which a civilized society should adhere. The fact that juveniles carry a diminished capacity in their actions is reflected everywhere throughout our society and laws. In juveniles, we recognize that because of their immaturity and lack of experience, they are far less capable than adults. Our Courts have consistently recognized that the moral guilt of juveniles is less than mature, responsible adults. Justice Stevens of the United States Supreme Court has written: "the Court has already endorsed the position that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult." Thompson v. Oklahoma, 487 U.S. 815 (1988).

Social scientific literature and theorists overwhelmingly support the conclusion that adolescence is a period of life characterized by poor impulse control and poor judgment. As adults, many of us can now reflect on our own adolescence, and perhaps that of our children, and recall episodes of impulsiveness, the inability to exercise self-restraint, poor impulse control or poor judgment. Adolescence is also characterized by an inability to foresee future consequences of one's actions; the false confidence generated by feelings of omnipotence, invulnerability or indestructibility. Taking these universally-accepted attributes, we see far less culpability in a mildly-retarded Tony Richardson, who was dominated and threatened by two grown men on the Chain of Rocks Bridge.

At the time of the crime leading to his death sentence, Tony Richardson was not old enough to vote, to gamble, or legally purchase alcohol or cigarettes, anywhere in the United States. He was not old enough to enlist in any branch of the armed services or to serve on a jury. In most states, he was too young to be married or to enter into a binding contract. All of these restrictions recognize an undeniable societal consensus and common knowledge that a lessened responsibility is a concomitant component of youth. We are not asking that Tony Richardson be absolved or excused from his actions. We only ask that he not be killed by the State for something he did when he was a child.

The inequities of executing Tony Richardson are only magnified by the fact that he did not even typify the average teenager, as he functioned and reasoned on the level of a third-grader at best. His actions on the Chain of Rocks Bridge are entirely consistent with his limitations. We humbly implore Governor Holden to lift the standards of State of Missouri above those of the other states in our nation, and in countries such as Iran and Iraq, who continue to kill juvenile offenders.

Attached to this clemency application as Tab 11 is the affidavit of Ms. Joyce Lambert, a trial juror. Ms. Lambert has sworn under oath that she and another juror never agreed to any of the aggravating circumstances. According to Instruction No. 35, the jury, which deliberated for over nine (9) hours, was automatically required under the law to return a verdict fixing the punishment at life imprisonment. Instead, the jury mistakenly returned a verdict indicating to the Court that it was unable to agree on punishment. Tab 10 at 6.

It would be the height of capriciousness and injustice to ignore the legal consequences that should have followed the jury's failure to agree on the existence of a single aggravating factor. Surely we cannot put someone to death because the jury failed to follow the instructions and return a verdict for life imprisonment. We implore Governor Holden to rectify this mistake and commute Tony's death sentence to life imprisonment.

(3) whether the sentence of death is excessive or

disproportionate to the penalty imposed

in similar cases considering both the

crime and the defendant.

The Missouri Supreme Court clearly overlooked and failed to review Tony Richardson's case with similar cases in accordance with the statute. The Court ostensibly compared Richardson's case with those cases where the death penalty was imposed on defendants "who committed multiple homicides or attempted homicides; who committed murder in conjunction with other crimes involving force; [and] cases involving murder to avoid arrest or detection." State v. Richardson, 923 S.W.2d 301, 330 (Mo.banc 1996)(cites omitted). None of the cases relied upon by the Missouri Supreme Court involved anything close to a sixteen year-old mildly retarded defendant convicted as an accomplice. In fact, the Court repeatedly relies upon the purportedly "similar" case of State v. Marlin Gray, Richardson's co-defendant, who led the rapes of the Kerry sisters, the robbery of Thomas Cummins, and the eventual killings of the Kerrys.

Other "similar" cases cited by the Missouri Supreme Court underscore the disproportionality of Richardson's death sentence. See State v. Mease, 842 S.W. 2d 98, 103-104 (Mo.banc 1992)(where defendant methamphetamine dealer plotted to kill victim for several months, waited in woods for two days, using a shotgun at point blank range to kill and rob intended victim, his wife, and their paraplegic grandson); State v. Ervin, 835 S.W. 2d 905, 912-13 (where defendant carefully plotted to slowly strangle to death and rob 75 year-old victim and her son in their home); State v. Powell, 798 S.W.2d 709, 711 (Mo.banc 1990)(18 year-old defendant repeatedly jumped up and down on the chests of two helpless drunks who begged for their lives, fracturing all their ribs, stabbed each victim three times in the abdomen, then robbed victims of $3.00) and State v. Griffin, 756 S.W. 2d 475, 478-79 (Mo.banc 1988)(defendant and accomplice tied up husband and wife in their home during pre-planned scheme to rob, stabbing wife twice in the chest and four times in the throat with a steak knife, and hitting husband on the back of the head with a wrench, and stabbing him twice in throat with a steak knife and four times in the chest with a butcher knife). The facts of Tony's Richardson's case simply pale in comparison to these cases.

Additionally, in a number of cases involving much more egregious facts, only life sentences were imposed. In State v. Berdella, male victims were taken to the defendant's home where he drugged them and made them into sex slaves. The defendant injected Draino into the throats of the victims to prevent them from crying out for help. When one of the victims overdosed on the drugs injected into him, the defendant cut up the victim into pieces and placed the body parts into the garbage. Although the defendant confessed to killing seven people, the State waived the death penalty as part of a plea bargain.

In State v. Dunn, 731 S.W. 2d 297 (Mo.App. 1987), the defendant first struck one victim in the stomach with a shotgun and then shot him. Defendant then turned his handgun on his two accomplices and ordered them to shoot at the second victim with a shotgun. After they shot her, the defendant also shot her in the back with the handgun. He then attempted to choke the victim's 9 year-old son and 5 year-old daughter. All four bodies were put in an automobile and driven into a lake. The children lived.

In State v. Clark, 711 S.W. 2d 928 (Mo.App. 1986), the defendant and an accomplice abducted a husband and wife in a parking lot after the couple had been Christmas shopping. The husband was shot to death in his own car, with his wife looking on. The wife was driven to an abandoned area where she was raped, sodomized and forced to perform oral sex on the defendant. She was then shot in the face and head four times at point blank range. The bodies were dumped in an open field.

A 19 year-old was given life imprisonment in State v. Baskerville, 616 S.W. 2d 839 (Mo. 1981), when he shot and killed three people, including a 7 year-old boy who begged for his life. State v. Downs, 593 S.W. 2d 535 (Mo. 1980), involved the triple murder of a mother, father, and their 18 year-old daughter, who pleaded for her life. A jury sentenced defendant to life. Likewise, in State v. Turner, 623 S.W. 2d 4 (Mo.banc 1981), a defendant who stabbed and beat to death two men during a robbery was given a life sentence. The State waived the death penalty in State v. Brown, 665 S.W. 2d 945 (Mo.App. 1984), in which the defendant strangled a 7 year-old girl and then molested her after killing the girl's mother. Finally, in State v. Hemphill, 721 S.W. 2d 86 (MoApp. 1986), the State again waived the death penalty where the defendant shot and killed three people in a bar and wounded two others.

It is simply not possible to reconcile these more heinous killings, in which the defendant received a life sentence or the State waived the death penalty, with a much less heinous case as presented in Richardson's appeal. It is also hard to identify a single aggravating factor that warrants the execution of this juvenile offender. The foregoing cases are by no means an exhaustive compilation of the terribly heinous cases where the defendant received something less than death. However, they do sufficiently demonstrate that the failure of the Missouri Supreme Court to consider these and other death-waived cases resulted in a great disparity of punishment.

Had a true proportionality test and review been employed by the Missouri Supreme Court, as the law mandates, Tony Richardson's sentence would have been commuted to life. That is the relief that should be granted now so that the principles of justice set forth by the Missouri legislature are protected and carried out.

Tony Richardson's only chance to escape the death penalty (beyond the plea agreement that he was talked out of) was to present compelling mitigating evidence of retardation during the penalty phase. On March 27, 1993, the penalty phase was argued and submitted to the jury. This phase of trial was handled by Ms. DiTraglia, who had never previously witnessed a penalty phase in her legal career. Tr. 2198. The prosecution presented eleven (11) victim impact witnesses, comprising the parents, relatives and friends of Julie Kerry. Tr. 2069-2130.

The evidence in mitigation presented by defense counsel was marginal. Gwendolyn Williams, Richardson's mother, in her one (1) page of testimony, said she "love[d]" her son. Tr. 2131. Essie Brassie, Richardson's aunt, testified briefly about Tony's impoverished and lonely upbringing. Tr. 2132-42. Michael Henderson, Richardson's uncle, testified that Richardson's mother abandoned both he and his little brother, Carlos; that Richardson was forced to live in an overcrowded and dirty environment, and was frequently absent from school as a child. Tr. 2142-51.

Linda Pryor, a social worker with the Division of Family Services ("DFS") in St. Louis County, testified that tests administered to Richardson at age thirteen by the St. Louis Special School District showed a full scale IQ of 70, indicating "borderline" mental retardation. But Pryor was not an expert. Tr. 2163-64. The State rebutted the results of the IQ tests with the testimony of Dr. Leonburger, a Ph. D. and clinical psychologist. Dr. Leonburger speculated that the IQ results were inherently unreliable. Tr. 2198-2200. Prior also testified that records from the DFS documented Gwen Williams's heavy involvement in drugs and alcohol. Tr. 2161-73.

Finally, Richardson's grandmother, Irene Ramsey, testified she suspected her daughter, Gwendolyn Williams, was involved with drugs. She also testified that Richardson was in the Job Corps, and that he attended as many as seven (7) different schools. She characterized his life as a "bad situation". Tr. 2189-93.

For what was subsequently labeled as a "strategic" reason, defense counsel did not call Dr. Engum to testify in the penalty phase. The jury therefore was presented with no expert testimony as to Tony's well-documented mental deficiencies. Even so, the evidence presented was enough to embroil the jury as to whether Richardson lived or died. After deliberating his sentence for over nine (9) hours, the jury remained deadlocked, and so informed the court. Under Missouri law, the judge then became the sentencer. Had the jury heard Dr. Engum's compelling mitigation testimony and seen his report, it is likely they would have returned with a life sentence.

Prior to the Court's assessment of punishment (the determination and weighing of aggravating and mitigating circumstances), defense counsel attempted to put Dr. Engum on the stand and to admit his report into evidence. The Court refused to hear or consider the evidence, and proceeded to determine the aggravating and mitigating circumstances of the crime.

Both during and after the presentation of this evidence, the court stated he "would not take this testimony insofar as a determination of the assessment of punishment in this case," and that the hearing was conducted "subsequent to punishment." ST 11, 109. Prior to formally sentencing Richardson to death, which by now was a foregone conclusion, the court again stated it held the sentencing hearing subsequent to the assessment of punishment.