Juarez, O'Brien says, moved out of his mother's house in St. Joseph because of an argument over a cat. The fight was long in coming but was a situation that would have smoothed itself out over time. After all, Brandon was a good kid, even if he had some problems in school and made some bad judgments about the characters he hung out with.
"Brandon moved in with Paul Ham, a parolee in Savannah, Mo.," O'Brien says. "Ham was fresh from prison. He had a girlfriend, a job, and a lot of energy. Ham was a charming guy, almost charismatic in the way in which he attracted people to him. It was easy for Juarez, an impressionable and trusting kid, to look up to him."
In his soothing voice, O'Brien says Ham and Juarez did a lot of partying. They drank a bit, hung out with friends. Juarez was obsessed with playing guitar. On Sept. 14, 1995, shortly after Juarez moved in with Ham, they went to a party at Robin Lovelady's apartment in Savannah, where she lived with Ron Munsterman. Munsterman, also a parolee, had frequent arguments with Lovelady over her heroin addiction. Munsterman finally threatened to go to the police if Lovelady couldn't drop the smack -- as she had promised time and again.
At the party, Lovelady and Munsterman fell into another argument, this one a real fight. At one point, Munsterman slapped Lovelady across the face. After a deep breath, he threatened again to go to the police.
"Brandon saw Ron slap Robin but didn't know the rest of the situation," O'Brien says. Juarez was mad. He had been surrounded by women since he was a child, living with his mother and sisters in St. Joseph. Munsterman's treatment of Lovelady was repulsive to him. When Ham suggested he and Juarez take Munsterman out and rough him up, it sounded like a good idea.
"Brandon didn't know Paul had designs on Robin," O'Brien says. "Brandon agreed, and he and Ham convinced Ron to go out with them to get more beer for the party." The three men piled into Munsterman's car. They stopped at the liquor store. On the way back, Ham convinced Munsterman to drive to an abandoned limestone quarry three miles east of Savannah. There, he told Munsterman, was supposed to be another party, with girls -- a way to forget Robin for a while.
Juarez says he believed Ham when he said they were going to rough up Munsterman, leave him at the quarry, and take his car back to town. At the quarry, when the three men were out of the car, Juarez hit Munsterman in the face. Munsterman was stunned. Ham hit him, and it was Brandon's turn again.
Then, Ham took out a bowie knife and stabbed Munsterman "11 times in the back, leaving him to fall face first on the ground," says O'Brien. "The wounds are deep. The knife penetrates vital organs and breaks ribs."
Ham then handed the knife to Juarez, who was confused and so frightened he could hardly move. He knew alcohol had an effect on Ham, making him kind of crazy. But he had never seen Ham act like a madman; he never knew that a man could change so quickly. There was no one around, no sounds, no light. "Ham tells Brandon, 'You stab him too or I will kill you,'" O'Brien says. Ham was serious, breathing heavily, a crazed look in his eyes. Juarez feared for his life.
He took the knife and looked briefly at Munsterman's motionless form. Juarez thought he was dead -- there didn't seem to be further harm in doing what Ham told him to save his own life.
In a panic, "Brandon stabbed Munsterman in the upper buttocks," O'Brien says. "But Munsterman lurched with pain -- he wasn't dead. Brandon couldn't go on. He dropped the knife and threw up."
Juarez watched Ham pick up the knife from the grass, lift Munsterman's head, and slash his throat deeply. He stabbed Munsterman two more times in the groin, and dragged him off to a ravine.
O'Brien believes he has never met a kid more undeserving of a life sentence. "We really failed him," he says. "There probably aren't many people less deserving of a life sentence than Brandon." O'Brien represents Juarez in his postconviction appeals, something he does for many men. "There's not much question that if Brandon had not done anything to Ron, it would not have changed the outcome," he says.
Kent Gipson shares his Kansas City, Mo., law practice with O'Brien. The two are known to scores of actors in the criminal justice system -- criminal defendants, inmates, judges of all levels, prosecutors, and defense attorneys -- as the best in criminal defense and postconviction appeals.
Gipson sits behind a simple wooden desk. His law degree hangs on the wall beside him, and a potted plant sits on the window sill. Some awards are piled on a file cabinet, not really on display. Outside of these extras, Gipson's office is spare. There is no mahogany. All the furniture is practical, middle- to low-price stuff. Even the pencil holders on his desk are plastic cups from the nearby convenience store. The photos all seem to be of death row inmates.
Gipson's surroundings reflect his priorities. There is little margin in the type of criminal defense and postconviction representation he practices with attorney O'Brien at the Public Interest Litigation Clinic at the corner of 63rd and McGee. To keep an office and a small secretarial and research staff and to hire investigators and expert witnesses, there is no room for exotic wood, expensive furniture, or exterior design.
While many lawyers' prices determine their clients, most of the people Gipson and O'Brien represent are poor, behind bars, or on death row. The two are involved in the postconviction appeals cases of 15 of Missouri's 85 death row inmates -- more than any other single firm in Missouri -- and provide legal advice to the other 70 and their attorneys. They also represent about 40 criminal defendants and inmates in Missouri's prisons in postconviction appeals. Each man takes three to five new capital and 10 to 15 new criminal and noncapital postconviction cases each year. It is the most complex, expensive, time-consuming, and heartbreaking work in criminal justice.
Few want to do what Gipson and O'Brien do. The two lawyers can't think of doing anything else. For all their work, both Gipson and O'Brien make a living but little more. When asked why he does the work he does, Gipson says, "I relate well to my clients." He grew up in Crane, a small town in south-central Missouri, and in law school was interested in being a trial lawyer. He worked as a public defender before joining O'Brien in private practice. He says he has seen his share of people just like him come through the justice system.
Gipson lays his hands on his thighs. The cuffs of his long-sleeve polo shirt are hand-mended; his jeans are faded and worn, with a frayed and open slice under one of the pockets. Suits are for court. He is a shy, retiring man, contemplative and peaceful -- a stark contrast to his presence in the courtroom, according to prosecutors, clients, and other lawyers who have seen him work. Gipson is enigmatic this way. Despite his confidence and serene bearing, behind his thick glasses shines a drive born of discontent.
"Most Americans think the criminal justice system is fair and just and judges and prosecutors make few mistakes -- until they have a loved one in the system," he says. "I think the criminal justice system is screwed up. There are more than a few people in prison who were unjustly convicted, more than a few people on death row who don't deserve to be there."
Gipson and O'Brien are experts at working with habeas corpus, the federal appeals process that protects convicts' constitutional rights in the law enforcement and judicial processes. Kansas City attorney Cheryl Pilate, who also represents poor clients on death row, says Gipson and O'Brien "are the very best in this field. They are known around the nation and have consulted on a number of death penalty and habeas corpus cases throughout the country. I don't think I could -- or would -- do the work I do without them to consult with.
"Habeas corpus work is a minefield for the unwary. You have to have the procedural stuff just right all the time or you could squander your client's claim and ability ever to have another appeal -- and with death penalty cases, your mistake could kill someone, and perhaps someone who isn't guilty. Without Sean and Kent, I don't believe many attorneys in Missouri would do this kind of work -- they are the gurus of habeas corpus."
Gipson and O'Brien take a breather at a restaurant at 63rd and Oak. O'Brien smiles a lot. He beams an optimism that contrasts with Gipson's more subdued and serious exterior. Despite their differences, they speak as if they are finishing each other's thoughts. They even order the same lunch. Gipson slowly sips an iced tea, rarely looking up from the table, unlike O'Brien, who leans far over the table and uses his hands to make a point.
"Everyone has something to give," says Gipson. "There is not one person in the world who is a bad person all the way through."
"There are people who have done bad things," O'Brien says. "But they are often people who are so inured in the shittiness of their situations that they can't make good decisions, even if they want to. After doing this work for a while, I think some people are programmed to make bad choices and do bad things. Many of the people we represent have long histories of child abuse and neglect, some sort of physical abuse, or mental illness. In those instances, you have to ask yourself if they are real actors in their lives. And then you have to ask yourself if those kind of people deserve to die for what they do. People have choices, but some people's choices are severely limited. Many deserve to be punished, that is clear. But at the same time, there are deeper problems prison sentences and the death penalty don't address."
Gipson says he and O'Brien have an advantage over many wealthier attorneys. "We don't have to take any case we don't believe in," he says.
"We were never the kind of attorneys who graduated from law school looking to represent wealthy clients and make a lot of money," O'Brien says.
Gipson graduated from Washington University Law School in 1984 and joined the Jackson County Public Defender's office, where O'Brien was chief counsel. He wanted to practice criminal law and found he enjoyed representing indigent clients. "It was a place where I could quickly get into the heat of battle and stay there," he says. In the 1980s, the Jackson County, Mo., public defender's office did quite well, Gipson says, winning one-third of all the cases that made it to juries. But there were problems. "The bureaucrats in Jefferson City, where our money came from, had less interest in us doing a good job than with things like time sheets, budgets, and tracking the number of cases we did."
In 1989, O'Brien and Gipson, due to changes in funding for the public defender's office, moved exclusively into capital defense cases. Federal law had changed to fund special Capital Defense Resource Centers in an effort to make sure that death row inmates were getting quality representation after the reinstatement of the federal death penalty in 1988. Congress, Gipson says, recognized that many crimes had been made federal crimes in the 1980s and that many more federal crimes were made capital crimes.
O'Brien headed the resource center for Missouri, based at the University of Missouri-Kansas City Law School. The resource centers specialized in federal death penalty cases, but funding was also provided to the centers to represent inmates in the appeals process in high-death-penalty states. Missouri was one of 22 states where resource centers were established. The centers also provided information for private attorneys who had been appointed to criminal defense and appeals by courts in jurisdictions with limited public defense resources. "In more rural areas or jurisdictions with a limited number of public defenders, as a criminal defendant you may have gotten a tax or development or antitrust attorney appointed to your case," says Gipson, who believes the situation hasn't changed. "Those lawyers needed the information and expertise we had."
Funding for the resource centers ended with the 1994 "Republican revolution," that party's takeover of Congress. "We were one of the first targets," says O'Brien. "They just couldn't stand the fact that criminals might be getting a fair shake in the criminal justice system with government funding."
"We just weren't popular in Congress and had been a target for a long time," Gipson says. "There weren't and aren't a lot of people there with the constitution and the courage to stand up for defendants in capital cases."
When the money for the resource centers was cut off at the start of 1995, O'Brien says, "We had to do something. We had clients on death row who depended on us. We weren't going to leave them there, but we had to make a living. Plus, the tough-on-crime environment was growing more hostile toward the accused all the time."
To resolve the situation, O'Brien established the Public Interest Litigation Clinic, a nonprofit organization, in 1995. He expanded the focus of his practice to include criminal defense and postconviction representation. Gipson joined the office soon after and worked for a few months without pay. But the broadened focus and nonprofit status allowed the clinic to widen its sources of funding, bringing Gipson and O'Brien modest paychecks and allowing them to use private investigators and researchers.
But there was enough income to allow the men to publish a local legal newsletter, Missouri Capital Case Update. The law in criminal defense, postconviction, and death penalty is arcane, complicated, and riddled with politics. Keeping up with changes in law, the rulings of the various courts, and the attitudes of prosecutors and judges is a job in itself. But it's what makes Gipson and O'Brien good at what they do.
Court payments help fund the Public Interest Litigation Clinic's public defense work and some postconviction representation for inmates. The rest comes from private donations and receipts from clients. Gipson and O'Brien also take payment in trade and family dinners, since most of their fees are steeply discounted. They write off fees for many of their clients.
The importance of the Public Interest Litigation Clinic and the work he and O'Brien do, Gipson says, lies in a fundamental bias in the criminal justice system. "In an auto theft case, for example, there is a presumption of innocence during the entire process," he says. "In homicide, the defendant is often presumed guilty and the jury has a higher standard of reasonable doubt. Because of this, there are a lot of innocent guys in prison." Many, Gipson says, are pushed there by the ambitions of prosecutors who want to bolster their careers or judges who have to worry about re-election or appointment to a higher court.
Gipson says the appointment of conservative judges to the federal bench, where a great deal of law gets made in the appeals process, has exacerbated that bias. Moreover, the country's lean to the right since Reagan's presidency, the war on drugs, and the importance of a tough-on-crime stance to a prosecutor's career all increase the likelihood of mistakes, particularly in high-profile crimes around election time.
It's easy to read media accounts and listen to the prosecutors and make a decision about a stranger's life or death, says Cindy Short, an attorney with the Jackson County Public Defender's Office Capital Crimes Unit. "It's a lot different when you are sitting across the table from a family who is about to lose a family member, across the table from those clients," she says. "I have a great deal of sympathy for the victims' families. But I can count on two or three fingers the number of people I have met who are not salvageable. I don't believe the majority of my capital clients are evil. I believe they were abused. Many are mentally ill. Others have mental deficiencies. Many are drug addicts who were never able to address that. They are sitting across from me for the first time sober, and I find they bring something to the table that is redeeming.
"With those experiences, it's hard to choose a small number who commit homicides and single them out for death. We have 20,000 homicides a year in the United States, and only 300 are singled out for the ultimate penalty. If you look at the numbers, most of the decisions to charge criminals with capital crimes are made around elections."
Former Jackson County Prosecutor Claire McCaskill, now Missouri state auditor, says she doesn't see such prejudice, and few, if any, prosecutors make political hay by pursuing the death penalty. She thinks a great deal of political pressure for elected prosecutors exists to make sure they are tough on crime. "I think that is more a function of them doing their jobs representing the people of the jurisdiction. In my case, I don't think I did anything that enhanced my career," she says.
McCaskill was tough but fair, say defense attorneys. "She went for the death penalty far less frequently than I thought she was going to," Pilate says. "There are many others in Missouri who are not so fair."
Missouri Attorney General Jay Nixon's office, says spokesperson Scott Holste, lets district attorneys and elected prosecutors handle initial trials. State trials are handled by special prosecutors under the auspices of Nixon's office. "Mostly, we handle the appeals," Holste says. "The people of Missouri have determined through representatives or through the ballot that there are measures that are appropriate in heinous murder cases. One measure of punishment includes the death penalty. I don't think any prosecutor goes into a case pushing for the death penalty for poll numbers. I don't see decisions made on fighting crime measured in terms of benefit to officeholders. Whether that happens or not, I think you can find arguments both ways." Pilate points out other problems. "When a murder happens in a jurisdiction not used to homicide, charging the criminal with a capital crime is the visceral response we see. I have not seen the degree of racial prejudice in Jackson County that exists in other parts of the state. But I have to say the overwhelming bias for the death penalty is poverty. Everyone on Missouri's death row is poor. Across the country, there are very few rich people on death row."
"I don't think you can look at the demographics of death row and make conclusions," says Holste. "Because someone is convicted and poor, that is not what lands them on death row. Some on death row were not indigent."
Missouri also executes mental incompetents, people with mental illness, and people who were minors when they committed crimes, Pilate says.
An example is Roosevelt Pollard, now 35, who was fingered by three other men in the 1993 death of a drug dealer near St. Louis. The men, who were with Pollard at the time of the murder, were released and not prosecuted. Pollard's complicity in the crime is in question. He was not able to defend himself and was not able to communicate with his lawyers after his arrest. Pollard's physical abuse as a child is well documented, and he received a severe head injury from an iron pipe in a fight at the age of 12. Pollard never matured mentally past the age of 5. He is also severely schizophrenic. In 1995, he came extraordinarily close to execution before the U.S. Supreme Court stayed the action pending a mental review. He was once again close to execution in 1997, when the Department of Corrections determined he probably was not competent for execution. His execution was stayed, and after an examination, he was found to be incompetent. He still sits on death row.
In 1992, Ricky Grubbs was executed for killing a man during a card game in which the three participants were very drunk. Grubbs' first trial ended in a hung jury because Grubbs testified and proved to the jury that he was severely mentally handicapped. In the second trial, the jury found him guilty of first degree murder and sentenced him to the death penalty but never knew that Grubbs was mentally retarded -- the information was never offered at the trial. "A fully informed jury would never have given him the death penalty," O'Brien says. Grubbs did not realize he was going to be executed until just before he died.
McCaskill thinks Missouri has a fair system in the prosecution of death penalty cases. But she points out that without certain measures enacted by Gov. Mel Carnahan, some inmates would have been executed. "Carnahan has advocated for increases for appropriations to public defenders, which helps," she says. "Carnahan has a person in his office doing nothing but reviewing death penalty cases. So far, he has seen cases where police have lied, witnesses were mistaken, representation was no good. I have seen those things too. Any prosecutor that doesn't take those things into consideration is not doing his or her job."
Jackson County Prosecutor Bob Beaird was a defense attorney for 30 years before being appointed to the vacancy McCaskill left when she was elected state auditor in 1998. He says prosecutors have gained the perception of pursuing high-profile crimes for better results at the ballot box. "But when you look at when that's maybe happened, it doesn't translate into votes," he says. "Voters have a lot of common sense. They know if the cases a prosecutor has been on were dealt with in a way that was fair to the defendant and the state. A prosecutor's duty is to justice. If someone has poor representation, you see that and take steps to deal with that. You don't prosecute a case to run over someone.
"Prosecutors do not want trials coming back to them. If you have a bunch of them come back (through the appeals process), you are wasting your time and the resources of the court. Many unjustly tried cases end in mistrial. If they make it through, the appeals process kicks them back. We have good public defenders here in Jackson County. Outside urban areas, however, you run a greater risk of getting someone who tries a criminal case once every 10 or 15 years. They just don't have the skill and knowledge to do it right and make sure the process is fair."
McCaskill also says a prosecutor must make sure the playing field is level. She says she has turned in defense attorneys to the Missouri Bar Association who she thought were incompetent. "In one case, an attorney was impaired with drugs and alcohol, and I could not let that case go forward," she says. "I don't think people realize the difficulty the defense of people facing death is. In Jackson County, we are especially blessed to have Sean and Kent and Cindy Short. A good prosecutor wants a good defense. They want justice, and not convictions. Some of the most difficult decisions I had to make were on death penalty cases. You have to be on guard against socioeconomic and political pressure. It's there, and I won't say some prosecutors don't succumb to that. It is certainly a variable."
Beaird says he believes Gipson and O'Brien are invaluable. Pieces make up the criminal justice system: law enforcement, prosecution, defense, the judge, and jury. "Kent and Sean's role in the whole is essential," he says. "They are the watchdogs, the guys who make sure we do what we do right. What they have done in the past has been appropriate and essential. Their service to the system can't be replaced.
"We could make a mistake, and I believe prosecutors do, as human beings. The whole system is built on a clash between two sides. At a trial, the two sides go at each other, taking no quarter. Somewhere between them is the truth. But the two sides must be equals if the truth is to be found. There must be a fair fight for a fair result."
Holste says prosecutors must work to the best of their abilities to prove the case on behalf of Missourians. If there are mistakes in the trial or appeals processes, the appeals courts and state and federal supreme courts are not reluctant to send back a case in which they think justice was not served. "We have an exhaustive review on the state and federal basis," he says. "Plus, the majority of times the case is remanded back to trial court, it results in conviction."
Both McCaskill and Beaird say DNA testing has added to the certainty of evidence and, in many cases, of innocence or guilt. Nixon's office has been reluctant to use DNA evidence in the appeals process. Holste says DNA evidence has worked both for and against convicts.
"If a defendant wants a DNA test, I will give it to him, no questions," Beaird says. "I watch all the news programs, 20/20, 48 Hours, Dateline, 60 Minutes -- I am always baffled at prosecutors who will not let inmates have tests, who discount the results, or who will not allow the inclusion of new evidence in a case."
Across the nation, 86 of the 3,600 death row inmates have walked free in the past decade due to new evidence, the use of DNA testing, or appeals that showed the innocence of inmates long after they were convicted. Illinois recently enacted a moratorium on the death penalty after the 13th man in 10 years walked free from that state's death row. At least seven states are considering such moratoriums.
In Missouri last year, Clarence Dexter walked off death row after eight years because of new forensic evidence -- a bloody footprint that was not Dexter's was found to have been withheld by the prosecution from the initial trial. Short represented Dexter. Then, after 14 years on death row, Eric Clemmons was exonerated for a prison stabbing earlier this year. He was acquitted on eyewitness testimony not included in his trial. Pilate and Charlie Rogers, who was a staff attorney in the public defender's office with O'Brien, represented Clemmons.
The most notable death penalty case overturned in Missouri was that of Lloyd Schlup, who was in the state penitentiary in Jefferson City on a life sentence for first degree assault in 1981. Arthur Dade was fatally stabbed at the prison on Feb. 2, 1984. Schlup was convicted of first degree murder and sentenced to death. Although numerous eyewitnesses knew Schlup had not committed the crime, investigators had not questioned them. The witnesses pointed to another inmate, Rocky Jordan, as the perpetrator.
Schlup had nearly exhausted his appeals in the Dade stabbing before O'Brien and Gipson filed a writ of certiorari to get the U.S. Supreme Court to review his case. A last-minute stay saved him from being executed at 12:01 a.m. on March 12, 1992. After an intense legal battle between Schlup and Nixon's office, his habeas corpus petition in the Dade murder was dismissed by the U.S. District Court in St. Louis in October 1993. The Missouri Supreme Court swore out an execution warrant for Nov. 19, 1993.
Despite the evidence, including a prison videotape that placed Schlup far from Dade at the time of the murder, Schlup was headed for execution. Nixon fought to keep Schlup on that track. In the end, Ida B. Dade, the victim's mother, called Gov. Mel Carnahan and told him she did not believe Schlup killed her son. Her emotional appeal was helped by an Inside Edition report that brought national attention to the case. Then, at 11 p.m., Nov. 18, Justice Harry A. Blackmun was interviewed by Ted Koppel and Nina Totenberg, who structured their interview around Schlup's case. Carnahan issued a last-minute stay and convened a review panel.
Before Schlup, a habeas corpus petitioner could go through the appeals process only once. Everything has to be right, because the system, according to O'Brien, "gives you just one bite at the apple." Because of this, Schlup was to be executed for Dade's death although the preponderance of evidence pointed to Schlup's innocence. But the U.S. Supreme Court heard Schlup's case and overturned the death sentence on an old legal principle called the Actual Innocence Test, built upon years of Supreme Court case law. That law allowed convicts to challenge their cases after their appeals were over.
But the 1996 Anti-Terrorism and Effective Death Penalty Act, passed in the hysteria surrounding the Oklahoma City bombing, canceled out the legal gains made with the Schlup case, which strengthened the Actual Innocence Test. The law again limits convicts to the appeals process under federal habeas corpus.
When Schlup was up for a new trial in 1994, Nixon's office offered Schlup a second degree murder charge with a life sentence. The new sentence would not interfere with Schlup's ability to petition for parole in 2003 on his original first degree assault charge. He took the deal.
Holste points to Schlup's second degree conviction in the Dade murder as an indication that Attorney General Nixon was right to fight the new evidence. Nixon, he says, would not be a party to an execution of someone he believes is innocent. "In looking at the 34 executions since Nixon has been attorney general (he was elected in 1992), there has been no doubt in his mind that the people who were executed committed a crime and that the sentence was justly carried out," Holste says. "We certainly believe that the appeals system contains sufficient safeguards, as has been shown by the cases that have been remanded for resentencing or retrial. We believe the courts are doing the job that they are supposed to do."
O'Brien believed Schlup was innocent from the beginning. The second degree conviction carries little weight in determining the correctness of Nixon's actions. "If I were in Lloyd's position, I would have taken what they offered," he says. "They wanted Lloyd to take the stand and say he did it. But this way, it allowed Nixon to save face. The result was seemingly ambiguous, but not for Lloyd, who is more in control of his own destiny now and will be out someday."
Then, there is Ed "Butch" Reuscher, who was on death row for six years for no good reason, says O'Brien. "His original lawyer screwed him bad," O'Brien says. "We literally pulled his fat from the fire. It was looking grim for him as he neared the end of his appeals process. But we were able to get him a new trial." Reuscher was on death row for his part in the murder of Bobby Wood, who was beaten to death.
One drunken evening in the winter of 1984, Reuscher, Wood, and Ken Melton got into a fight in Kansas City's Northeast area in which Melton shot and wounded two people. They went to Wood's house in Clay County to get Wood's car to drive to Florida until the heat subsided. Woods was asleep on the floor when Melton attacked him. Both Melton and Reuscher were fall-down drunk at the time.
"I ain't going to tell you I am an angel," Reuscher says in an interview from Crossroads. "'Cause I ain't.... I hit him with a weightlifting bar. I was 18 years old; it was an assault."
According to O'Brien, Reuscher went to the bathroom. When he came out, Melton was astride Wood, beating his head with a fire extinguisher. "The murder was so brutal," says O'Brien, "that the coroner identified him with fingerprints." He says he believes Reuscher's blow was struck after Wood was already dead and that the beating with the fire extinguisher would have killed him.
Melton is now in prison on a first degree murder conviction with a life sentence without possibility of parole for his role in Wood's death. "My partner stabbed him, then beat him with the weights, a baseball bat, a TV, and the extinguisher," Reuscher says. "I shouldn't die for what he did. When Sean heard about my case, he came to me on death row. He said he could help me out, but I was sick of lawyers at the time. You see, lawyers say they can do this or that, but it ain't like on TV. This shit's for real, and I didn't believe him. Finally, Sean said if I didn't help him, he would subpoena me. He was that confident about my case.
"Sean and Kent are my guardian angels. My case required extraordinary effort. I accepted a plea of second degree with life without parole. I didn't want it, but Sean had some good perspective. There is nothing he can't do. I was on death row and am no longer there."
Reuscher says he didn't believe he would be executed -- until his inmate friends, one by one, went to the death chamber. "It was a miracle God sent Sean," he says. "I have 100 percent confidence in him. Everyone on death row was telling me to get him. Though he knew about my case, I didn't really believe he could do anything until I got to see him in action. He cross-examined my old lawyer and was like Sherlock Holmes. He knew every question to ask. He knows everything; he seems like Perry Mason. Kent too. He worked on my case behind the scenes."
O'Brien believes that one day, through the course of appeals, Reuscher will walk free.
wish we could have gotten Butch a better result," O'Brien says. "He is not an inherently dangerous person. But the photographs of Wood's smashed head would have struck such emotion in a jury that Butch could not have hoped to be acquitted.
"Butch's original lawyer was disbarred for tax evasion. But he was a drunk who took the case for too little money and did not do the work. Melton was the co-defendant and the murderer. His family was able to spend $100,000 on defense, and he got a good result. Butch's case was a bad case with a worse lawyer."
O'Brien shakes his head and goes on to explain Juarez's case.
Juarez and Ham left the quarry in Munsterman's car with Ham driving. About a quarter-mile out, Ham got the car stuck in a ditch. They got a ride into town with an Andrew County deputy sheriff about 5:30 the morning of Sept.15. Munsterman's car was found the next day, but since Munsterman had a parole violation, it didn't surprise authorities that he was nowhere to be found. His disappearance also did not alarm anyone. A hunter stumbled across his decomposed body the following November. The Andrew County Sheriff's Department began to put the pieces together: the abandoned car, Munsterman's disappearance, and the pedestrian check the deputy made the morning he picked up Ham and Juarez.
"Ham was back in jail by the time they found Ron's body," O'Brien says. "The news was in the media. Brandon had told all his friends what had happened, looking for advice on what he should do. He had long made the decision to turn himself in, but he was deathly afraid of Ham. (He didn't know Ham was in jail.) Then one of his friends went to the police. At the same time, his girlfriend (now Juarez's wife) planned to pick him up after she got out of school to take him to the police and get the thing over with. Brandon was living with his mother in St. Joseph again at this time. Before Leslie could get to the house, the police caught up with Brandon, who answered the door and said, 'I know why you're here.' Brandon couldn't wait to tell them the story. They had to keep him quiet -- they were afraid he might give a confession before they could read him his rights and record the confession."
At the station, Brandon told all. He took police investigators to the crime scene, and then to where the deputy picked Ham and him up. He tells them Ham ditched the knife in the weeds, and they found the weapon. He was charged with first degree murder but convicted of second degree as an accomplice to the crime to which Ham had already confessed. "The co-defendant, Ham, was the primary bad actor," O'Brien says. "Brandon went along with beating a guy up. Even the victim's father, Emil, asked for mercy for Brandon. He believed our case. Still, Brandon got life with parole in 25 years. We really failed him, I think, although I think he stands a good chance at appeal."
Juarez is soft-spoken and has to shout over the slamming metal doors in a housing unit at Crossroads. Each minute, an automated voice comes over the phone, reminding callers that "This call originated from inside a Missouri correctional facility." After about two minutes, the voice says, "There has been a third party detected on this line. This call may be monitored."
Juarez is articulate and intelligent. He is mature and self-deprecating. He refers to fellow inmates as "youngsters," giving the impression that he is much older than his 23 years. The only crime Juarez had on his record before Munsterman's murder was a misdemeanor stealing charge he received when he was 15. He received a fine for that crime. Outside of some problems in school with grades, Juarez was clean until that night in 1995.
Juarez has been in Crossroads since summer 1997. He admits he chose the wrong friends. He says he never would have been in the position to be involved in Munsterman's death if he had been a better judge of character and more concerned with his own safety. "When I was on the streets, I gave everyone a chance, no matter who they were. Any kind of person has good in them," he says. "If I could see that and could see potential in them for good, I trusted them. But I put too much trust in people I shouldn't have. I wish I could go back and change who I was around. Even so, I think my co-defendant was wild when he was drunk but a decent guy when not under the influence.
"When I was first in the court, I pleaded guilty. The first lawyer I had didn't investigate anything. He failed to look into information I gave him. He said I should plead guilty, that I would only have to serve 12 to 15 years. I was scared; that is a long time. But I'd heard in the county jail that under Missouri's dangerous felony law, which was a new law at the time, a convict has to serve 85 percent of the time on a felony. I told my sister and had a family meeting with the first lawyer. The first lawyer said there was no such thing, that the people in County were trying to scare me."
About the time Juarez's case commenced, Missouri's 1995 Dangerous Felony Act abolished parole for seven serious offenses, earning it the "Seven Deadly Sins" moniker. Before the law, each crime had a minimum sentence. The minimums were set aside. One inducement for Juarez's first lawyer to counsel him to plead guilty was that even with a life sentence, Juarez could be paroled in about 15 years. The passage of the law upped that figure to 27.5 years.
"I then filed a petition for ineffective assistance, which was granted, and the guilty plea was taken back," Juarez says. "I was accused again and had a new trial, where I got second degree with life. You should have seen Sean -- he fought like a dog for me, even though the jury and the court gave me the life sentence."
Gipson says the Missouri Court of Appeals set aside Juarez's original guilty plea and cleared the way for a second trial. "When the guilty plea was overturned, neither the prosecutor nor the judge was happy with that turn of events," he says. "I think it hardened their attitudes about the case. Brandon wound up being convicted on second degree with life. The prosecutor would not offer anything less than that. Then the judge ignored the wishes of the victim's father."
Emil Munsterman, Ron's father, asked the court to be fair with Juarez. The real perpetrator, Ham, he says, was the one that needed to be punished most severely for his son's death. "I can't say for sure he (Juarez) got the right sentence," Emil Munsterman says from his home in Agency, Mo., near St. Joseph. "Brandon was just a young kid in 1995, and I am sure he has grown up quite a bit by now. Sometimes I don't know what to think about him. I do know he committed a crime, and a serious one. But I think he was railroaded into it. I don't think he was a real smart individual in picking his friends, but he was young. Justice in this case was not done correctly. I told the court it was up to the judge, jury, and prosecutor. But in this case, I don't think they did the right thing."
Even so, Juarez stands behind O'Brien and Gipson. From the beginning, he says, the pair was willing to work with him for only a small retainer. "My family hasn't got a lot of money. They were willing to take a retainer and some credit with a restaurant one of my family works for. They investigate everything. Every time I call, they accept my calls (prisoners must make calls collect). They have talked to people I didn't know. I didn't know who was involved in the case. They even went to the high school in Savannah to collect the sayings from car bumper stickers to make the case that the venue was unfit because of racial prejudice.
"They are handling my appeal and are damn good attorneys," continues Juarez. "I am not paying them any money, and they are private attorneys in their own practice. After they got involved, they realized I got a raw deal from the beginning. I am blessed to have them around, and I know they will be around after the trial is over. We will go before the appeals court again this month, and I am almost confident I will get a new trial. But I also know the attorney general (Nixon) and the judges will twist the law around. The evidence is on my side. The only way to suppress that is to twist the law well enough to keep me here."
O'Brien and Gipson gave oral arguments for Juarez's appeal on prosecutorial vindictiveness April 20, which could form strong grounds for another trial. Juarez expects that if he gets a third trial, it will be much different from the first, where little evidence was introduced. Also, Juarez hopes that O'Brien and Gipson will be able to ensure that the jury will get a manslaughter instruction, which will give them the chance to take into consideration the circumstances of Ham's threat, an option that didn't exist at his second trial. "There are a lot of people here who have done a lot of terrible things. But many of the people here got themselves into bad situations and didn't know what to do. I did something that people didn't understand. But if they look closer at my case and realize why I am here, they will find that not everyone here is a cold-hearted killer," Juarez says.
Throughout preparations for the second trial and his appeals, Juarez says, O'Brien stuck with him. While Juarez was in the county jail before the second trial, O'Brien would drive to the prison "just to talk, not about the case, but just to talk to me," Juarez says.
That was important, says Juarez's sister Angela Humphrey, because Brandon was fragile. "Brandon couldn't stand the thought that he had a hand in killing another person and attempted suicide in the county jail. It was very rough for him for a long time. But Sean saw that Brandon was a good person -- someone who made a mistake, but a good person." O'Brien doesn't maintain just an attorney/client relationship, Humphrey says. He gets involved with clients and gets to know their characters and personalities.
"He is a friend, like a father to me," Juarez says. "My wife and I went through a hard time recently. He went out of his way to talk to her. When I was in the county jail, I sometimes got into bad situations, and he would come to get me moved. He was going to sue the state when they wouldn't let me see my 3-year-old son last year. I can call him (O'Brien) a good friend."
he number of people who have been convicted on mistaken identity, through police misconduct, or (as a result of) prosecutorial vindictiveness and misconduct is incredible," Gipson says. "Our cases cry out for correction. Because of the political climate and the conservative nature of the courts today, every case is an uphill battle. Then the appeals process is fixed because prosecutors and judges don't want to admit the innocence of the convict. No one in the system, particularly judges, will admit as many wrongful convictions as there are. It points to problems in the system, their own mistakes, and the fact that politics works against defendants. It attacks their position as demigods of justice. They delude themselves into believing the system is right and just. To think otherwise requires a self-examination of fallibility that many don't have the courage to admit."
Holste says he doesn't see the political pressure. Judges and prosecutors are doing their jobs. "At the same time, there has been an increased awareness of the fact that the families of victims are out there too," he says. "They deserve an increased amount of information than what they received in the past. Nixon has pushed for some of these things in the legislature and will continue to be active in that area -- because he believes it is a popular thing to do. Sometimes what's popular is what's the right thing to do."
Another problem is that attorneys who do public defense work in Missouri, either as a part of their practice or when appointed by a court, are paid between $70 and $120 an hour -- far below what an attorney can make from well-heeled clients or by working in corporate law. Public defenders' offices are usually working under fiscal constraints and are constantly under political pressure, Gipson says, because no one wants to be soft on crime -- "Whatever that means."
O'Brien says that in the five years he worked in the public defender's office, he saw many lawyers come and go. "But they mostly go because of the stress of what they have to do," he says. "Many of the clients are not sympathetic characters, and you have to have the talent and the aptitude to do that kind of work. If you have a problem dealing with the clientele, no matter your conviction or your principles, you won't make it there long."
"Most indigent criminal defendants find it difficult to trust their lawyers and to have the respect of their counsel," Gipson says. "Before you get to them, they have often been dealing with bureaucrat types who were hired to sell them down the river. In many jurisdictions, the criminal defense attorneys have conspired with the prosecutors and judges to get out of the case easily, since they are not getting rich off their indigent clients. When I get them, I have to show I am making my best effort in their cases. Many public defenders are quite good, but there are just as many who are not motivated and don't have the fire in the belly to do the work. The clients can feel that. And indigent clients have to be as careful as anyone seeking legal representation. There are tons of shitty lawyers out there."
But Holste says that dozens of judges consider a capital case before a death sentence is carried out. "Then the state and federal courts have remanded any case back to the trial courts where they find a violation of the prisoner's constitutional rights. It's happened on several occasions, and because of that we believe the numerous safeguards in the system are sufficient to catch any miscarriage of justice.
"The death penalty is actually applied sparingly in Missouri. About 150 people have been given a death sentence since 1977. It is applied not across the board indiscriminately, but only in those cases where aggravating circumstances have called for it."
Gipson believes there may be other areas of law a progressive-minded lawyer can get into "to advance the cause of justice rather than represent the elite -- labor, environment. But in those areas of law, there is not the sort of obvious tilting of the scales of justice against one side or the other. With what we do, we are swimming upstream in every case. It is incredibly difficult to represent a convict, and particularly difficult in a death penalty case because of the political forces against you."
For young, idealistic lawyers coming of age in the Reagan era, both O'Brien and Gipson believe the death penalty is the most challenging and most important civil liberties injustice they can fight. They find it rewarding. "We are fighting a just cause," Gipson says. "I am convinced of that, and that history will prove us right."
Gipson understands the march of history. Thurgood Marshall, he says, faced intense ridicule for his work in the South on death penalty cases. He bore the brunt of hatred with his work on segregation and wrongful conviction cases. "The death penalty will one day be rejected not only on moral grounds but as bad policy and because it is unfair and unconstitutional," Gipson says. "We will prevail. It may be 15 or 20 years down the road, but we will prevail."
Such a statement is an article of faith for a man who professes little religious motivation. Raised as a Presbyterian, Gipson says Presbyterians were "like Unitarians in that part of world." Fervent Baptists and snake handlers were mainstream religious folk, he says, something that didn't attract him. "There are sincere religious people on our side," he says. "Coming into this sort of work, even if I was religious, some things I have seen would have turned me into an atheist instantly. I would have had to ask myself, 'If there is a God, why do these things happen to the people they happen to?'
"No, it's better this way."
Contact Patrick Dobson at 816-218-6777 or email@example.com.