Link to Mo. Sup. Ct. Opinion
Gregory Bowman was convicted by a jury of first-degree murder.[2] At the sentencing phase, the jury found six aggravating factors, and the trial court imposed the death penalty accordingly.[3] Bowman appealed the conviction and death sentence to the Supreme Court of Missouri.[4] The Court upheld the conviction but reversed the death sentence.[5] The majority reversed on grounds that during sentencing, the jury considered invalid factors; namely, two previous Illinois murder convictions which were later reversed. Judge Wolff, concurring in part and dissenting in part, engaged in a proportionality review based on Section 565.035 of the Revised Statutes of Missouri; this review led to the same result and brought to light a number of issues that demonstrate the room for error existing in death penalty cases. Given the finality of the death penalty, efforts should be made to decrease room for error as much as humanly possible.
I. Facts and Holding
On June 7, 1977, Velma Rumfelt was found raped and murdered in St. Louis, Missouri.[6] The case laid dormant for nearly 30 years.[7] In 2007, the St. Louis County police department received a DNA profile from the Belleville, Illinois police department belonging to Gregory Bowman.[8] It matched the DNA profile of the sperm recovered from Rumfelt's underwear.[9] Bowman's DNA had been collected by Illinois police in 2001 as part of an investigation into the murders of two women.[10] In 1979, Bowman had been convicted in Illinois for the murders of the women, but in 2001 the convictions were vacated and new trials were ordered on the grounds that his confessions were coerced.[11] Bowman remained in jail awaiting the new trial until he posted bond in 2007.[12]
In addition to the DNA profile evidence, the State also presented testimony from the St. Louis County medical examiner, who testified as to the cause of death and the likelihood that Rumfelt was a victim of sexual assault.[13] The State also called two of Rumfelt's friends as witnesses. One testified that she saw Rumfelt walking with a young man on June 5, 1977, and that thirty years later she made an eyewitness identification of Bowman as the young man using a photo lineup.[14] The other testified that she saw Rumfelt on the morning of June 6, 1977, the day Rumfelt was believed to be murdered.[15] The jury convicted Bowman of first-degree murder.[16] During the sentencing phase, the jury found six aggravating circumstances, two of which were findings that Bowman had abducted and murdered the two women in Illinois.[17]
On appeal, the Supreme Court of Missouri upheld Bowman's convictions, but reversed his death sentence. As to the guilt phase, Bowman argued that the trial court erred by: overruling his motion to suppress his DNA profile; excluding evidence that another man may have committed the murder; overruling his motion for judgment of acquittal based on insufficient evidence; allowing testimony from a doctor with the crime laboratory regarding the DNA evidence; not allowing him to cross-examine the crime laboratory doctor concerning two unidentified slides found in Rumfelt's evidence file; and allowing a medical examiner to testify that Rumfelt was a probable victim of sexual assault.[18] However, the Court found no error existing in the guilt phase of the trial.[19]
Bowman found some success in his challenges to the penalty phase of his trial.[20] He raised two points on appeal: that the trial court erred in allowing the state to present excessive victim impact evidence, including the previous Illinois murder convictions that had been vacated, and that it erred in overruling his motion to preclude the death penalty as disproportionate. The Court found the first point concerning the State's introduction of excessive victim impact evidence dispositive; therefore, the Court did not address his proportionality claim.[21] The Court held that the trial court erred by permitting the State to present evidence that Bowman was convicted of the two murders in Illinois.[22] Relying on precedent, the Court held that while the underlying facts of the murders may be admissible as unadjudicated prior bad acts, it "cannot assume that the jury's weighing process and sense of responsibility were unaffected by its knowledge that Bowman previously had been convicted of two murders."[23] Given that these two sentencing factors were invalid, the Court held that the sentence itself was invalid.[24]
Judge Wolff filed a separate opinion concurring in part and dissenting in part. While he agreed that Bowman's death sentence rested on invalid sentencing factors, he questioned whether Bowman was truly a "serial murderer" or whether he had been wrongly convicted of murder in two trials in two states. Judge Wolff's analysis began with a declaration that the Court "undoubtedly" had a duty to review the sufficiency of evidence in this death penalty case, even though the statute creating this duty did not exist at the time the crime was committed.[25] In conducting the sufficiency of the evidence review, Judge Wolff determined that while the DNA evidence was sufficient to sustain Bowman's conviction, the evidence was insufficient to sustain a sentence of death.[26]
First, Judge Wolff was skeptical considering the events leading to Bowman's latest conviction.[27] Further, there were facts unmentioned in the majority opinion: the Rumfelt evidence box had been stored in a facility that flooded in the 1980s, and there were slides with semen specimens and hair samples taken during Rumfelt's autopsy that were missing from the box.[28] There were also unidentified vaginal slides in Rumfelt's box labeled with the name of two women whom the doctor performing the autopsy did not know.[29] All of these facts led Judge Wolff to conclude that "whether purposely or inadvertently, the evidence box must have been tampered with, and, in any event, crucial evidence was missing."[30]
Judge Wolff also highlighted the problems with the eyewitness identification evidence presented by the State.[31] The State called a witness who testified to seeing Rumfelt walking with an unidentified man perhaps hours before her murder in 1977.[32] After it was determined that Bowman's DNA profile matched the samples in Rumfelt's evidence file, this witness was shown a 1977 photo lineup containing Bowman's picture, from which she hesitantly identified Bowman.[33] Judge Wolff pointed out that eyewitness identifications are inherently questionable, and this is especially so when it is done thirty-two years later.[34] Judge Wolff concluded that the identification was not useful, "especially when the only other evidence available is tainted DNA evidence and when the defendant is given a sentence of death."[35]
Finally, Judge Wolff was concerned given the evidence of the alternative perpetrator who was a prime suspect in Rumfelt's murder.[36] Again, he discussed facts unmentioned by the majority: the other man actually matched the description given by the eyewitness; he was convicted of murdering another woman by cutting her throat; the man had been fired around the day Rumfelt went missing; the man was not only familiar with the area where Rumfelt was found, but had visited the area around the time she was murdered; the man's girlfriend was missing a knife similar to the weapon used in the murder; a box of matches had been found at the crime scene, and the man solely used matches when he smoked; the man collected keys and the only thing missing from Rumfelt was her key ring; and the man knew Rumfelt and had asked her out on dates.[37] Judge Wolff noted that although evidence that another person may have committed the crime could mislead a jury, the Supreme Court of Missouri should consider such evidence in reviewing the strength of the evidence in a death penalty case under Section 565.035 of the Revised Statutes of Missouri. Here, the evidence against the other man was especially strong in comparison to the evidence against Bowman.[38] Judge Wolff concluded his opinion by noting that "[t]he power and the danger of trial court discretion are on display in this case."[39]
II. Legal Background
A. Aggravating Circumstances
Missouri, along with several other states, developed a bifurcated hearing procedure for capital cases following the U.S. Supreme Court's decision in Furman v. Georgia.[40] This format was meant to avoid the imposition of the death penalty in an arbitrary and capricious manner.[41] Also, the bifurcated trial permits the presentation of evidence relevant to sentencing that would otherwise be inadmissible as to the defendant's guilt.[42] Because the death penalty is the ultimate consequence in a capital case, an individualized determination of an appropriate punishment is required. Therefore, it is necessary that the jury have as much information as possible to assist in its decision.[43] Accordingly, during the penalty phase both the defendant and State may introduce evidence, such as character evidence, that either supports or mitigates the defendant's punishment.[44]
Character evidence permitted during the penalty phase includes evidence concerning the circumstances of prior convictions, evidence concerning prior unadjudicated criminal conduct, and evidence of conduct occurring subsequent to the crime being adjudicated.[45] Prior convictions are considered during sentencing in all U.S. sentencing systems.[46] However, in Johnson v. Mississippi, the U.S. Supreme Court held that where a death sentence was based in part on a subsequently-vacated prior conviction, denial of a motion for post-conviction relief violated the Eighth Amendment.[47] The Court reasoned that when a prior conviction is utilized as an aggravating circumstance, and the only evidence of the conviction are the documents establishing the conviction, such evidence would be rendered irrelevant if the prior conviction were later reversed.[48] Therefore, the death sentence would be invalid as being based on irrelevant factors.[49]
The Supreme Court of Missouri addressed the issue in State v. McFadden.[50] In that case, the State argued that although the prior conviction had been reversed, the facts surrounding the conviction were admissible as evidence of unadjudicated criminal conduct.[51] The Court held that the sentence was invalid.[52] It reasoned that even if the underlying facts of a reversed conviction were admissible as prior bad acts, the jury likely considered that the defendant had already been sentenced to death, thereby affecting its weighing process and sense of responsibility.[53]
B. Proportionality Review
Section 565.035.3(3) of the Revised Statutes of Missouri provides that whenever the death penalty is imposed, the Supreme Court of Missouri shall review the sentence and determine if the sentence of death "is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence and the defendant."[54] This statute was enacted for the purpose of providing a safeguard against "arbitrary and capricious sentencing" and promoting the "evenhanded, rational and consistent imposition of death sentences."[55] It also ensures against wrongful convictions and executions.[56] This statute has been described in court opinions as creating an obligatory duty on the Court.[57] Further, this duty has been described as "continuing."[58] Quite recently, proportionality review has been expanded, so that instead of comparing a case to only those in which the death penalty was imposed, the Court now also considers cases in which life in prison without the possibility of parole was imposed.[59]
The proportionality-review statute was first enacted in 1977 as part of a comprehensive statutory scheme that delineated the procedures for imposing the death penalty.[60] The original language of the statute provided that the Court need only consider the crime and the defendant in determining if the death sentence is proportionate.[61] It did not include the current language of the statute requiring the Court also consider the strength of the evidence.[62] This language was not added until 1984.[63] Despite this, case law shows that the Court has taken into consideration the strength of the evidence in evaluating the death penalty even when the crime occurred before 1984.[64]
The statutory provision requiring review of the strength of the evidence is somewhat unique to Missouri.[65] Most other states with mandatory proportionality review do not have similar provisions.[66] The Court determined that this provision requires the Court to not only review the evidence to determine whether it is sufficient to support a conviction, but also whether it is of a compelling enough nature to support a death sentence.[67] If the Court determines that the evidence is sufficient to support a conviction, but is otherwise not compelling enough to support a death sentence, it may resentence the defendant to life imprisonment without eligibility for probation, parole, or release.[68]
In the case of State v. Chaney, the Court found the evidence sufficient but not compelling, and therefore it set aside the death penalty.[69] The Court gave great weight to the fact that the evidence was primarily trace and pathological, and there was no eyewitness, confession, admission, or other direct evidence linking the defendant to the crime.[70] There was also no evidence of the defendant's involvement in similar crimes from which his involvement in the crime at hand could have been inferred.[71] The Court noted, though, that it is very rare to find a case where the evidence is sufficient to support a conviction, but not compelling enough to support a death sentence.[72]
III. Comment
The Supreme Court of Missouri made the right sentencing decision regardless of the approach taken. However, Judge Wolff's opinion highlights several issues of which courts should be aware in death penalty and other criminal cases.
There are many aspects of our system of justice that have been developed and strongly guarded to ensure accuracy in the results of a criminal trial: the right to counsel, right to confront witnesses, presumption of innocence, burden of proof, exclusionary doctrine, et cetera. Obviously, we want accuracy in our criminal process to maintain faith in the system, protect the public, and protect the liberty of innocent people. Over recent years, it has become apparent that these safeguards, while commendable, are inadequate. Since 1989, DNA has helped to exonerate 272 prisoners in the United States.[73] Of these 272 individuals wrongly convicted, seventeen had received a sentence of death.[74]
There appears to be some movement towards achieving greater equality in the administration of the death penalty and greater protections against mistaken convictions and executions. As mentioned above, the Supreme Court of Missouri is now conducting a proportionality review that includes comparison of not only other cases where the death penalty was imposed, but also cases where life imprisonment without the possibility of parole was imposed.[75] Besides the courts, law enforcement has been working to implement best practices to ensure against mistaken identifications and confessions.[76] However, as Judge Wolff implied, more could be done.
First, as Judge Wolff's opinion points out, while DNA evidence has been greatly valuable in efforts to release wrongly convicted prisoners, it can have a negative impact as well.[77] DNA is a "smoking gun" for the prosecution and may be given undue weight by the jurors considering the modern "CSI effect."[78] This is a problem in cases where the facts tend to indicate the evidence box was not sealed. Therefore, as Judge Wolff points out, "[c]ourts must take care to assure that proponents of DNA evidence properly have preserved the evidentiary material and followed correct procedures in doing the testing."[79] In this case, it appears that the trial court eschewed this common sense approach given the facts as presented by Judge Wolff: there were missing slides, there were slides belonging to two unknown females, and the evidence had been stored in a facility that had flooded.[80]
Second, Judge Wolff suggested that when the death penalty is involved, the Court should take into consideration evidence that another person committed the crime even though such evidence was inadmissible at trial.[81] The rationale underlying this suggestion is the fact that a trial court's decision to exclude evidence is discretionary, and reviewed for abuse of discretion.[82] As Judge Wolff pointed out, this standard "may enhance the possibility of a wrongful conviction."[83] Given that this standard is unlikely to be changed and people will continue to make incorrect decisions, the Court should consider evidence that was ruled inadmissible so as to ensure that the compelling standard for applying the death penalty is met.
While defendants sentenced to death before the Supreme Court of Missouri have been convicted and, therefore, have lost the presumption of innocence, the Court should take a skeptical approach when conducting its independent review of the evidence to ensure against erroneous administration of the death penalty. As Judge Wolff highlighted, these cases involve the death penalty, the ultimate consequence.[84] Therefore, the evidence should be assessed against the finality of this extreme outcome. Otherwise, the accuracy and fairness of the justice system will continue unimproved, which could ultimately lead to further breakdown in the justice system.
-Emily M. Park
[1] No. SC90618 (Mo. April 12, 2011) (en banc), available at http://www.courts.mo.gov/file.jsp?id=45963. The West reporter citation is State v. Bowman, 337 S.W.3d 679 (Mo. 2011) (en banc).
[2] Id. at 683.
[3] Id. at 684.
[4] Id.
[5] Id. at 683, 692.
[6] Id. at 683.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at 684.
[11] Id. at 683.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 683-84.
[18] Id. at 684-91.
[19] Id. at 691.
[20] Id. at 691-92.
[21] Id. at 691.
[22] Id. at 692.
[23] Id.
[24] Id.
[25] Id. at 693-94.
[26] Id. at 694-700.
[27] Id. at 695. Bowman had been convicted in 1979 of the murders of two women based on confessions to the Illinois police. Id. These convictions were vacated in 2001 after a court ruled the confessions were involuntary. Id. He remained in jail until 2007 when he posted bail. Id. Within days, the Illinois police contacted the police in St. Louis County inquiring whether they had any unsolved homicides of females in 1977 or 1978. Id. The Illinois police were informed of Rumfelt's homicide. Id. The Illinois police then sent St. Louis County police Bowman's DNA profile. Id. He was arrested three days later. Id. Judge Wolff concluded that the Illinois police "undoubtedly believed a murderer" was walking their streets. Id. He pointed out that as a direct result of the Illinois police contacting St. Louis County police and providing the DNA to them, Bowman was taken off the streets, relieving Illinois of the burden of retrying him for the 1979 murders. Id.
[28] Id. at 695-96.
[29] Id. at 696.
[30] Id.
[31] Id. at 696-97.
[32] Id. at 696.
[33] Id.
[34] Id. at 697.
[35] Id.
[36] Id. at 697-98.
[37] Id.
[38] Id. at 698-99.
[39] Id. at 699.
[40] State v. Royal, 610 S.W.2d 946, 950 (Mo. 1981) (en banc) ("We first note that bifurcated hearing procedures such as the one now challenged were developed in response to the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238…(1972)").
[41] Id. at 950.
[42] State v. Ervin, 979 S.W.2d 149, 158 (Mo. 1998) (en banc) (citing Gregg v. Georgia, 428 U.S. 153, 190-92 (1976)).
[43] Id.
[44] Id.; State v. Edwards, 173 S.W.3d 384, 386 (Mo. App. E.D. 2005)
[45] State v. Cole, 71 S.W.3d 163, 174 (Mo. 2002) (en banc).
[46] Marc L. Miller & Ronald F. Wright, Criminal Procedures: Prosecution and Adjudication 701 (3d ed. 2007).
[47] Johnson v. Mississippi, 486 U.S. 578, 584-85 (1988).
[48] Id. at 585.
[49] Id.
[50] 216 S.W.3d 673, 677-78 (Mo. 2007) (en banc).
[51] Id. at 678.
[52] Id.
[53] Id.
[54] Mo. Rev. Stat. § 565.035.3(3) (2000).
[55] State v. Barton, 240 S.W.3d 693, 709 (Mo. 2007) (en banc) (internal quotation marks omitted).
[56] State ex rel. Amrine v. Roper, 102 S.W.3d 541, 547 (Mo. 2003) (en banc).
[57] State ex rel. Simmons v. Roper, 112 S.W.3d 397, 418 n.8 (Mo. 2003) (en banc); State v. Edwards, 116 S.W.3d 511, 548 (Mo. 2003) (en banc); State v. Whitfield, 107 S.W.3d 253, 273 (Mo. 2003) (en banc).
[58] Amrine, 102 S.W.3d at 547.
[59] State v. Davis, 318 S.W.3d 618, 643-45 (Mo. 2010) (en banc); State v. Dorsey, 318 S.W.3d 648, 658-59 (Mo. 2010) (en banc).
[60] Mo. Rev. Stat. § 565.014.3(3) (1977); Ellen Yankiver Suni, Recent Developments in Missouri: The Death Penalty, 54 UMKC L. Rev. 553, 553 (1985-1986).
[61] § 565.014.3(3).
[62] Id.
[63] S.B. 276, 82nd Gen. Assem., Reg. Sess. (Mo. 1984).
[64] State v. Franklin, 969 S.W.2d 743, 746 (Mo. 1998) (en banc); State v. Barrister, 680 S.W.2d 141, 143, 149 (Mo. 1984) (en banc).
[65] State v. Chaney, 967 S.W.2d 47, 60 n.2 (Mo. 1998) (en banc).
[66] Id.
[67] Id. at 60.
[68] Id.
[69] Id.
[70] Id.
[71] Id.
[72] Id.
[73] Innocence Project, Facts on Post-Conviction DNA Exonerations, http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php (last visited June 29, 2011).
[74] Id.
[75] See supra Part II.B.
[76] Innocence Project, Eyewitness Identification – Reforms at Work, http://www.innocenceproject.org/fix/Eyewitness-Identification.php (last visited July 12, 2011); Innocence Project, False Confessions & Mandatory Recording of Interrogations – A Reform That Has Proven Successful, http://www.innocenceproject.org/fix/False-Confessions.php (last visited July 12, 2011).
[77] State v. Bowman, 337 S.W.3d 679, 694 n.3 (Mo. 2011) (en banc) (Wolff, J., dissenting).
[78] Id. "CSI Effect" is the name given to the situation caused by criminal television shows, whereby jurors "expect and almost demand forensic evidence," before they will convict. Id.
[79] Id.
[80] Id. at 695-96.
[81] Id. at 697-98.
[82] Id. at 699.
[83] Id.
[84] See, e.g., id. at 694, 697, 700.
