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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.