Transcript of David Smith=s Sentencing Hearing Exh. 3

During his penalty phase argument, Mr. Moore told the jury that he was precluded from presenting, and the jury was precluded from considering, nonstatutory mitigating evidence and circumstances. (Tr. 437). Mr. Moore pointed out to the jury that they should consider the statutory mitigators of Lingar's lack of prior criminal history, Lingar's youth, and Lingar's intoxication which kept him from appreciating the criminality of his conduct in determining punishment. (Tr. 437-38). After approximately three hours of deliberation, the jury returned with a verdict sentencing Lingar to death based upon a finding of two statutory aggravating circumstances. See ' 565.032 RSMo. (1986). The jury found the aggravating circumstance that "the murder of Thomas Scott Allen involved torture and depravity of mind." (L.f. 106). The jury also found that the murder was committed while Lingar was engaged in the perpetration of a kidnapping. (Id.).

The Missouri Supreme Court summarily denied Lingar=s motion to recall the mandate on October 3, 2000. Lingar then filed a petition for writ of certiorari with the United States Supreme Court on January 2, 2001, arguing that Mr. Lingar was denied his right of Equal Protection based on the Court=s recent pronouncement in Bush v. Gore, ___ U.S. ___ (2000). Lingar v. Missouri, No.00-7717. Mr. Lingar is currently awaiting a ruling on that petition.

I. Clemency Should Be Granted Because There Are Significant Concerns Surrounding Mr. Lingar=s Guilt and Degree of Responsibility for this Murder.

Mr. Lingar=s co-defendant, David Smith, entered into a plea agreement with the state and his trial testimony was the only direct evidence establishing that Lingar was the Atriggerman@ in this murder. Smith received a ten year sentence in exchange for his testimony and is now a free man.

This lenient plea bargain given to David Smith, by itself, raises a Ared flag@ regarding Smith=s truthfulness and credibility. Criminal practitioners are well aware that it is common for a co-defendant, in exchange for a favorable plea agreement, to falsely minimize his own degree of involvement and shift the blame to a less culpable co-defendant. There is a significant danger that this is precisely what occurred in this case. As noted earlier, Smith=s testimony was the only evidence suggesting that Stanley Lingar, rather than Smith, was the mastermind of the kidnapping and the triggerman in the murder. Both objective and subjective factors that can be gleaned from the record in this case strongly support an alternative theory that it was Smith, not Lingar, who was the ringleader of this kidnapping plot and was the person who actually shot and killed Scott Allen.

The objective evidence that suggests that Smith was the triggerman comes to light based upon a comparison of the facts of Smith=s story with the medical testimony regarding the condition of the victim=s body. Smith testified that Lingar shot the victim, hit him several times in the head with a tire iron and then ran over him with a car, prior to throwing the victim=s body into Eleven Point River. The medical testimony clearly establishes that Smith=s account regarding the manner of the victim=s death is false. The only trauma to the victim=s body, apart from the gunshot wounds was one laceration to the head. Had the victim been struck repeatedly in the head with a tire iron and run over by the car, there obviously would have been additional trauma to the victim=s body that would have come to light in the autopsy. If Smith lied about the cause and manner of the victim=s death, it is certainly not unlikely that he would lie about his own degree of involvement in the killing. It certainly would not take a great deal of intelligence or imagination for Smith to Aflip-flop@ his involvement with that of Lingar, portraying Lingar as the mastermind and triggerman when in fact, Smith himself was the actual killer.

There are two other subjective reasons, that can be gleaned from the facts, that suggest that Smith was the triggerman instead of Lingar. First, Smith is much more intelligent than Lingar. Second, as an intuitive matter, it is highly unlikely that Lingar, if he was the mastermind of this kidnapping and murder plot, would have been driving the car and holding the victim at gunpoint at the same time.

Although Lingar=s precise IQ scores are not available, both the pre-trial mental evaluation, and, more recently Dr. A. E. Daniel have indicated that Mr. Lingar=s intelligence is in the borderline mentally retarded range. (L.f. 23-28). David Smith, although slightly younger than Lingar, is much more intelligent. Due to confidentiality concerns, Lingar and his counsel have not had access to any of Smith=s school or prison records which we believe would establish that his level of intellectual functioning was much higher than Stanley Lingar=s. However, the Board of Probation and Parole and the Governor=s Office are not so constrained. In the course of the investigation of this application, Mr. Lingar would respectfully request that the Board of Probation and Parole examine the prison records of both Mr. Lingar and Mr. Smith to see for itself which of these two men is the most likely mastermind of these crimes. In light of this fact that Smith is the much more intelligent of the two, as an intuitive matter, it is therefore much more likely that he was the principle and the Lingar was the accomplice in this criminal episode.

The second reason to doubt Smith=s testimony that Lingar, rather than Smith, was the triggerman in the murder and mastermind of the kidnapping was his account that Lingar, after the abduction, drove the car and held the victim at gunpoint at the same time. As an intuitive matter, it is much more likely that the slow witted accomplice, rather than the more intelligent mastermind would be driving the car. In addition, it would be extraordinarily difficult for a person to concentrate on driving and hold the victim at gunpoint at the same time. It is much more likely that Lingar, being the accomplice, drove the car while Smith held the victim at gunpoint in the passenger seat. Since Smith probably had possession of the weapon, it therefore, follows that he likely shot the victim instead of Lingar.

These questions surrounding the relative culpability of Lingar and Smith raises a disturbing question regarding whether the State of Missouri put the right man on death row. It is far from certain that Lingar, rather than Smith, masterminded this kidnapping and killed the victim. There is no dispute that both Lingar and Smith were involved in the abduction of the victim. However, there is enough doubt regarding their relative degree of involvement to justify sparing Stanley Lingar=s life.

Evidence concerning Lingar's sexual preference, although purportedly offered by the state to establish motive for the murder, was not presented during the guilt phase of trial. Prior to the penalty phase, the state did not offer any evidence of Lingar=s homosexual relationship with the co-defendant, David Smith. This is particularly curious because if this evidence was critical to the state's theory of motive for the homicide, why didn't the prosecutor present this evidence during Smith's extensive testimony in the guilty phase? During sentencing proceedings, however, the state suddenly claimed that evidence pertaining to Lingar=s sexual relationship with Smith should be allowed because it showed Aone of the circumstances of the crime@ and thus tended to prove Lingar=s motive for killing Scott Allen. In the state=s view, A[Lingar] realized that to let Scott Allen go would suddenly bring into evidence that he was a homosexual,@ adding that Lingar=s relationship with the co-defendant was relevant...

However, the prosecutor did not produce any evidence to suggest that Lingar=s sexual relationship with the co-defendant motivated the offense, and raised no such inference during his closing argument. Co-defendant David Smith testified that he and Lingar had been engaged in a homosexual relationship; which was the only additional aggravating evidence submitted by the state in the penalty phase, other than a letter written by Lingar that the state believed showed a lack of remorse. (Tr. at 403-405). In light of these circumstances, the prosecutor's purported motivation was obviously a pretext to hide his true reason for presenting this evidence: to inflame a homophobic jury from a rural area with prejudicial evidence that Lingar was a practicing homosexual; a fact that the prosecution believed the jury would find morally offensive.

The federal district court recognized that admission of this evidence of homosexuality was both irrelevant and prejudicial as a matter of Missouri state evidentiary law. The Eighth Circuit also did not dispute Lingar=s argument that the admission of this evidence violated the constitution. However, the court astonishingly refused to overturn Lingar=s death sentence by finding that the admission of this incredibly prejudicial evidence was harmless error.

To allow a death sentence to be imposed based upon a defendant=s sexual preference is both morally and legally indefensible. Although the state apparently recognized that this homosexuality evidence was inadmissible in the guilt phase, the prosecution perniciously injected this evidence for the jury to consider as relevant evidence in determining whether Lingar deserved to die. There can be no question that this information was introduced for the sole purpose of inflaming a rural Missouri jury into imposing a sentence of death. As a result, there is a real question whether the jury, absent this inflammatory and irrelevant information, would have imposed a sentence of death.

The prosecution=s presentation of this evidence was a transparent, but effective, tactic to inject an inflammatory and volatile social issue into the case to influence a rural jury to condemn appellant to die because he was, as believed by many fundamentalist Christians in the "bible belt," an immoral sexual deviant. Homosexuality, according to the views of many Americans, particularly fundamentalist Protestants, indicates a "depraved mind.@ The prejudice resulting from this evidence permeated the sentencing proceedings with unfairness. Elementary principles of justice and fairness demand that Stanley Lingar's death sentence be commuted.

When a human life is at stake, the Constitution demands extraordinary protections for capital defendants that can only be realized if the accused has competent counsel. The Eighth Amendment and Ineffective Assistance of Counsel at Trial in Capital Cases, 107 Harv.L.Rev. 1923, 1940 (1994). Counsel disregarded other viable guilt phase defenses to pursue a voluntary intoxication defense and further incorrectly informed the jury at the sentencing phase that it could only consider the three statutory mitigating circumstances submitted (i.e., age, lack of prior criminal history and impaired mental capacity) in determining punishment. The jury was also not presented with critically important, attainable evidence regarding appellant=s family background, psychiatric history, and borderline mental retardation. Thus, it was virtually inevitable, in light of these inexcusable errors of counsel, that appellant would be convicted as charged and sentenced to die.

Trial counsel=s guilt phase theory of defense centered upon his mistaken belief that Lingar=s voluntary intoxication negated his ability to Adeliberate@ and, in turn, negated the mens rea required to support a first degree murder conviction. In his closing argument, without his client=s consent, counsel informed the jury that Lingar had committed second degree murder:

(Tr. 383-84).

This argument, which rested entirely on counsel=s perceived validity of the voluntary intoxication defense, had grave consequences. Because the jury was not instructed that voluntary intoxication was a defense or a factor to consider in determining Lingar=s guilt of the charged offense, counsel presented no viable defense at all to the capital offense of first degree murder. For all intents and purposes, counsel, in effect, conceded that Lingar was guilty of first degree murder. With no viable defense to the greater charge, and counsel's concession of guilt to the homicide, conviction of the capital crime was a foregone conclusion.

Conceding Lingar=s guilt and relying on legally invalid theory of defense presents a textbook example of ineffective assistance of trial counsel. Both Judge Heaney from the Eighth Circuit and District Judge Jean Hamilton recognized that counsel=s performance was deficient. Counsel=s incompetence is particularly egregious because, in light of the credibility problems of star witness David Smith as outlined above, a strong defense could have been presented that David Smith was the ringleader of the kidnapping and the triggerman in the murder. Had this defense been competently asserted, there is a reasonable likelihood that Mr. Lingar would have been convicted of the second degree felony murder and would have probably have been released on parole by now.

As with the homosexuality claim, it is astonishing that the courts did not grant relief on this claim. Governor Holden is not constrained by hyper-technical and arcane rules of law that, in recent years, have been manipulated and perverted by conservative courts to deny relief to prisoners on meritorious claims. If the right to effective assistance of counsel is to remain viable in this state, Stanley Lingar=s death sentence should be overturned.

During his penalty phase closing argument, Lingar's attorney explained to the jury that the jury instructions "tell you what the law is." (Tr. 437) He explained to the jury that they must find an aggravating circumstance and then consider the mitigating circumstances. (Id.). In describing to the jury what mitigating circumstances they could consider, Lingar's counsel explained:

(Id.) (emphasis added).

Both the District Court and Judge Heaney found that Lingar's attorney's performance was deficient within the meaning of Strickland:

It is apparent that Lingar's attorney failed to research the law regarding nonstatutory mitigating circumstances, even though his client's life was at stake.

Because of counsel's mistaken understanding of the law, the jury was precluded from hearing and considering available nonstatutory mitigating evidence including, but not limited to, the following mitigating factors: (1) a background of being victimized by physical and sexual abuse, (2) a history of serious alcohol abuse, (3) a history headaches and blackouts which could be related to his alcohol abuse, (4) that Lingar is normally a dependent, passive and non aggressive person, (5) Lingar's poor self-esteem and acute paranoia, (6) his potential to be rehabilitated through treatment, and (7) documented remorse for the crime.

The state has consistently argued that the jury was aware that they could consider nonstatutory mitigating factors when they handed down judgment. This argument ignores the fact that nonstatutory mitigating evidence was never presented to the jury. As Judge Heaney noted in dissent, AI cannot accept this rationale because the jury had no mitigating evidence to consider. Because of counsel=s misunderstanding of the law, he failed to investigate and develop nonstatutory mitigating circumstances including a background of sexual abuse, serious alcohol abuse, a history of blackouts, mental problems, and documented remorse for the crime. I repeat, the fact that the jury was instructed by the court that it could consider >any circumstances= is beside the point, as defense counsel neither developed nor presented any such evidence.@ Lingar, 176 F.3d 453, 464 (8^th Cir. 1999).

Had Mr. Lingar's jury been specifically instructed on the seven nonstatutory mitigating circumstances set out above, it is very likely the jury would have found that the mitigating circumstances outweighed the two submitted aggravating circumstances. Therefore, it is likely the balance of the evidence would have "tipped the scales" in favor of a life sentence had counsel performed in a competent fashion.

Lingar's jury convicted him and sentenced him to death without hearing or considering a number of mitigating circumstances. Lingar's trial counsel was constitutionally ineffective because he failed to conduct a reasonable investigation into Lingar's background, character, and medical and mental health. Lingar's defense attorney failed to investigate and present to the jury the following mitigating circumstances during the penalty phase of the trial: (1) Lingar's borderline intellectual functioning, acute paranoid disorder, anxiety disorder, and dysthymic disorder; (2) Lingar's history of and treatment for blackouts, dizziness and severe headaches; (3) Lingar's history of alcohol abuse which coincides with his history of blackouts; and, (4) the extensive physical and sexual abuse Lingar endured as a child and throughout his teenage years. Lingar's trial attorney also failed to present to the jury that Lingar is a passive and dependent person, that he suffers from poor self-esteem and severe paranoia, and that he has a strong potential for rehabilitation and/or treatment. Finally, Lingar's trial attorney failed to rebut the prosecutor's argument that Lingar showed no remorse for the crime by presenting documented evidence which revealed that Lingar was in fact remorseful for his acts.

Instead of presenting these mitigating circumstances to the jury, Lingar's trial counsel put forth a brief plea for mercy through three of Lingar's family members. However, these three family members -- Lingar's mother, Gladys Lingar, his father, Roy Lingar, and his sister, Deborah Lowe -- had already lost credibility with the jury as it was revealed during the guilt phase of the trial that these three individuals had tried to help Lingar escape law enforcement. (Tr. 301-302). The extent of the penalty phase mitigating evidence included testimony from these three family members that Lingar had never been in trouble with the law, that he was a good and helpful person, and that he received poor grades in high school. Counsel failed to call other, more credible witnesses to bolster the discredited testimony of these family members. The record reveals that there were other witnesses that counsel could have called on Lingar's behalf. (See Exh. 2).

Moreover, despite the fact that counsel relied on the mitigating instruction regarding Lingar's lack of capacity to appreciate the criminality of his conduct, supported solely with evidence of Lingar's intoxication the night of the shooting, counsel failed to ask any questions of these family members regarding Lingar's intoxication. Counsel failed to question these family members regarding Lingar's extensive history of alcohol abuse even though they were the people most familiar with it.

Lingar's jury convicted him and sentenced him to death without hearing that his intellectual functioning fell in the borderline retarded range. The jury also never heard that Lingar suffers from severe paranoid and anxiety disorders along with a depression disorder known as dysthymic disorder. Although Lingar's mother, father, and sister all testified during the penalty phase of his trial that Lingar "wasn't too high a scholar" (Tr. 413), received poor grades in school (Tr. 416, 423), and did not graduate from high school (Tr. 416), the jury never learned why this was so. The pretrial mental examination found the following:

(L.f. 25). No WAIS-R score or IQ was reported, and, consequently, counsel never attempted to find out what Lingar's I.Q. score was. Whether due to neglect or oversight, this is a significant dereliction of duty on the part of Mr. Moore because the term "borderline" encompasses a range of intellectual functioning, the lower end of which is considered mentally retarded. Golden, Charles J, PH.D., Clinical Interpretation of Objective Psychological Tests (1979).

The pretrial examination documents Lingar's significant adaptive problems including skipping school at age 14, abusing alcohol at age 16, dropping out of school at age 17, and inability to hold down a steady job. (L.f. 26). Counsel was also aware that Lingar was not "self-sufficient" as he and David Smith had attempted to live in their own trailer, but ended up moving back in with Lingar's mother and father because they could not make it on their own. (Tr. 262-63). Lingar's adaptive problems were obvious. These problems combined with the "borderline intellectual functioning" should have alerted Mr. Moore of the necessity of more investigation and further psychological testing, especially for purposes of mitigation in the penalty phase.

On April 30, 1986, shortly after Lingar was sentenced and arrived at the Missouri Department of Corrections, a personality inventory, the Million Clinical Multi Axial Inventory (MCMI) was administered to Lingar. (Add. at 98-101). From the results of the MCMI, the following parallel DSM-III diagnoses were listed:

* * *

(Exh. 1) (emphasis added).

The information contained in the pretrial psychiatric examination was not hidden or kept from Mr. Moore. Mr. Moore was fully aware of the findings and lack of conclusiveness on the most important mitigating issues. The results of the MCMI performed after Lingar entered the Department of Corrections reveal that Lingar's attorney failed to discover considerable additional mitigating psychiatric evidence, which, as the report states, "are likely to have persisted for several years prior to the present assessment." (Id.).

Lingar asserts that even though his attorney was operating under the deficient belief that he was limited to statutory mitigating circumstances, counsel should have discovered and introduced this mitigating psychiatric evidence because it provided a basis to support one of the statutory mitigating factors submitted, i.e., whether Lingar had the capacity to appreciate the criminality of his conduct. In addition, this evidence provided a basis to request an additional statutory mitigating circumstance regarding whether "the murder. . . was committed while the defendant was under the influence of extreme mental or emotional disturbance." ' 565.032.3 (2) RSMo. (1985).

The pretrial examination further documented Lingar's history of blackouts and its connection with his history of alcohol abuse. Once again, this history was never presented to the jury either during the guilt phase or in mitigation of punishment. The pretrial report documents the following:

* * *

(L.f. 23-26) (emphasis added).

Lingar's trial counsel relied heavily on the extent of Lingar's intoxication the night of the shooting both in the guilt phase and the penalty phase. Mr. Moore admitted Lingar's guilt to all elements of murder in the first degree except deliberation in the guilt phase, mistakenly relying on a "voluntary intoxication defense" to the deliberation element. In the penalty phase, counsel based the statutory mitigating instruction regarding whether Lingar had the capacity to appreciate the criminality of his conduct solely on Lingar's intoxication that night. Despite this "strategy," counsel completely failed to present to the jury the fact that Lingar has a history of alcohol abuse. As demonstrated above, this history was well documented in the pretrial mental examination.

Lingar's history of alcohol abuse was also documented in both presentence investigation reports submitted before sentencing. In the report dated April 2, 1986 submitted by Officer James Kellogg, he reports that:

(L.f. 117). Officer Kellogg's presentence report concluded with the following:

(L.f. 116). The fact that the probation officer felt Lingar's history of alcohol abuse, not just the fact that Lingar was intoxicated on the night of the shooting, was relevant and important for sentencing purposes reveals the extent of Moore's deficient performance in failing to present it as mitigating evidence before the jury.

In addition, the report documents that Lingar had been treated for these blackout spells, which included a prescribed medication. In fact, on March 20, 1985, Mr. Moore requested Lingar's medical records from Doctor's Regional Medical Center. The only record from Doctor's Regional in Poplar Bluff, Missouri, is that of a CT scan conducted on Lingar on December 8, 1980. This record noted in the history section "fainting." There were also records from Ripley County Memorial Hospital in Doniphan, Missouri which indicated that Lingar had been admitted to Ripley County Hospital on December 2, 1980 and discharged on December 9, 1980. These records show that Lingar was treated by a Dr. C. Forrest Sparger for blackouts and fainting spells. (L.f. at 113). The Ripley County Records state as follows:

* * *

(Id.).

Despite the medical documentation of Lingar's history of and treatment for black out spells, fainting, dizziness and headaches, and the fact that the cause of these fainting episodes had not previously been determined, Mr. Moore did nothing to further determine the cause of Lingar's medical condition. Neither did he try to further determine whether or not Lingar's medical condition was related to his history of alcohol abuse, and/or was a factor in Lingar's behavior the night of the shooting. In fact, Lingar's attorney presented absolutely no evidence of Lingar's medical condition to the jury, despite its clear relevance to the intoxication defense during the innocence/guilt phase, and its relevance to the mitigating circumstance submitted to the jury regarding Lingar's capacity to appreciate the criminality of his conduct.

Furthermore, the pretrial psychiatric report reveals that Lingar's blackout spells began when he was eight years old, the same year he began drinking alcoholic beverages. (L.f. 24-26). The report also notes that it is possible that there is a link between Lingar's heavy use of alcohol and the blackouts he experiences. (L.f. 24). During these black outs Lingar does not completely lose consciousness, which is consistent with the fact that he appeared conscious on the night of the murder, but did not remember the incident clearly. This is also documented in the report: "Mr. Lingar said beyond this point he cannot remember anything until after the alleged crime. . .." (L.f. 25). Mr. Moore testified that when he first interviewed Lingar, Lingar could not remember parts of the incident, but that closer to trial, Lingar no longer claimed memory loss, although Lingar could not tell him how many times he shot the victim. (PCR Tr. 21-22). Lingar, however, testified that what he told his attorney about the shooting came not from his own memory, but solely from what David Smith told him. (PCR Tr. 54-56). Regardless, Lingar told the examining psychiatrist and his attorney that he could not remember parts of the incident.

At the very least, Lingar's jury should have heard that there was a possibility that Lingar=s intoxication was accompanied by "blackout" spells. In light of the pretrial report and the fact that counsel's only defense was that Lingar could not deliberate because he was voluntarily intoxicated, Mr. Moore should have presented to the jury the obvious connection between these blackout spells and Lingar's intoxication and loss of memory on the night of the murder.

Lingar's jury sentenced him to death without hearing important mitigating evidence concerning his background and character. Although the jury heard from Lingar's family members that he was a good kid, helped others, and had never been in trouble before, the jury did not hear relevant and key mitigating evidence of the difficult childhood and teenage years Lingar experienced due to physical abuse inflicted upon him by his father, and sexual abuse inflicted upon him by his older male cousin. Affidavits submitted by Lingar and his mother, Gladys Lingar, reveal that Lingar's father had a serious drinking problem and would beat Lingar and his siblings while in a drunken rage, using whatever he could get his hands on. (Exh. 2).

In addition, despite the sexual nature of the offense, Lingar's attorney failed to discover the extensive sexual abuse Lingar suffered throughout his childhood. Affidavits submitted by Lingar and his nephews, Steve and Curtis Thornsberry, reveal that Lingar was abused sexually by his much older cousin, Darrell Grissom, from the age of five and lasting throughout his teens. During this sexual abuse, Darrell Grissom fondled Lingar, attempted to penetrate him anally, and engaged Lingar in both masturbation and oral sex. (Id.).

Had this evidence of physical and sexual abuse been presented to the jury, it would have provided powerful evidence in the mitigation of punishment. This evidence would have also provided an explanation for the sexual overtones surrounding the crime. It is beyond dispute, based upon scientific data, that victims of child sexual abuse tend to become victimizers when they become adults. See Mendel, The Male Survivor: The Impact of Sexual Abuse (1995) pp. 121-123.

Mr. Moore also failed to further investigate and present to the jury evidence regarding Lingar's character and emotional functioning, i.e., that Lingar suffers from poor self esteem and is generally a submissive, dependent, passive and non-aggressive person. The pretrial psychiatric examination of Lingar's responses on the MMPI "reflected poor self-esteem" although it reported that "there was no evidence suggestive of an ongoing thought or mood disorder." However, the MCMI personality inventory which was administered to Lingar shortly after he arrived in the Missouri Department of Corrections reported the following concerning Lingar=s personality patterns:

(Exh. 1). Lingar's dependent and submissive character, coupled with his "acute paranoia" was clearly relevant in mitigation. Eddings v. Oklahoma, 455 U.S. 104, 107-108 (1982).

Although a trial attorney should not be faulted for failing to investigate mitigating evidence when the strategy not to do so is based on sound assumptions, Pickens, 714 F.2d at 1467, Mr. Moore's decision not to further investigate here was based on everything but sound assumptions. It was based on counsel's lack of knowledge of the law, and was the result of neglect, lack of thoroughness, and lack of preparation. Lingar's attorney read the pretrial mental examination which contained much of the mitigating evidence, but he nevertheless completely failed to follow up on the inconclusive findings contained in report. As the MCMI reveals, had counsel followed up and requested an additional mental evaluation, he would have obtained additional information and documentation of Lingar's psychological and emotional problems.

The Eighth Amendment demands that the capital sentencer have full and individualized information in deciding whether to take a life. The Sixth Amendment imposes on counsel the duty to "individualize" his or her client before the jury can make a reliable decision. Mr. Moore dismally failed in this duty and Lingar now faces the ultimate prejudice of sacrificing his life. But for the constitutionally deficient performance by Lingar's attorney, as found by Judge Heaney, there is a reasonable probability the result of the penalty phase would have been different. Stan Lingar=s death sentence should be commuted.

Stanley Lingar=s life deserves to be spared. As outlined in this application, there are serious doubts regarding Stanley Lingar=s guilt and the appropriateness of the death sentence handed down by Mr. Lingar=s jury. This case also presents an opportunity for the Governor to demonstrate to the people of Missouri that a citizen=s private sexual practices should not be considered as a reason for imposing a sentence of death. This case further provides the Governor with the chance to reaffirm a unifying principle upon which both proponents and opponents of capital punishment would agree: that in a case like this one where the evidence of guilt is uncertain, a death sentence should not be carried out.