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“The facts presented by the underlying crime are appalling and horrifying.” That is a line not from the Missouri Supreme Court’s majority opinion affirming the death sentence of Craig Wood, but instead from the dissent. And it is undeniably true. The evidence that Mr. Wood committed the crime is staggering. That crime was the kidnapping, sexual assault, and murder of a 10 year-old girl named Hailey Owens, whom Wood literally grabbed off of the street and pulled into his truck. Yet, the dissent reached a very different conclusion from the majority. Whereas the majority held that all of the prosecutorial excesses were harmless because the crime was so awful, the dissent grasped on to the slippery mantle of fair-minded judging: in its words, the shocking nature of the offense “makes it even more important to apply settled legal principles.”

Last month, the Missouri Supreme Court ruled in the State’s favor, affirming Wood’s conviction and death sentence. Despite the gravity of the crime, the jury actually deadlocked when trying to decide whether Mr. Wood should receive the death penalty or a life sentence: 10 jurors wanted to sentence him to death, and two chose life. In a quirk of Missouri’s capital-sentencing scheme, the judge was allowed to decide the punishment question after the deadlock; he selected death. The main legal issue—one that may even draw the attention of the U.S. Supreme Court—is whether the Missouri law permitting the trial court to make the punishment decision is unconstitutional. The majority, consisting of five judges, upheld the law, and the dissent, with three votes on this particular question, found that it did not comport with the Constitution. But, as often seems the case in these high-profile death-penalty matters, questions of prosecutorial misconduct lurk.

Two issues in particular troubled Judges Stith and Chief Justice Draper. First, while there was no dispute about which gun Mr. Wood used to kill the victim, the trial court allowed the prosecution to introduce copious evidence about Mr. Wood’s extensive gun collection. While Missouri courts typically preclude prosecutors from introducing evidence of weapons unrelated to the offense, the court here found that the defendant’s decision to select the murder weapon out of his several options proved that he had deliberated about the best way to commit and cover up the murder. But, for the dissent, this justification should not have given the State permission to go overboard.

The dissent described what happened:

In total, the jury viewed 29 photographs of different weapons and accessories.  The testimony by [FBI] Agent Tucker accompanying the photographs stretches more than 20 pages in the transcript and likely took more than an hour. The jury also was shown a large diagram of Mr. Wood’s home, and saw Agent Tucker mark an “X” where each of these weapons or accessories was located.

Even conceding the relevance of Mr. Wood’s decision to select a particular weapon of the many he owned, the dissent persuasively argues that “[t]he State could have made its point simply by introducing evidence Mr. Wood owned numerous guns, he had to pass one or more to get to the gun he used, and it was the smallest. The judge might have permitted introduction of a picture of one or two of those guns.” Instead, the prosecution got to hammer the jury with an hour-long descent into the irrelevant details of Mr. Wood’s gun ownership. As Missouri caselaw recognized so well—at least until this decision—this kind of evidence is extraordinarily prejudicial. It is the judiciary’s job to thoughtfully constrain it.

While the prosecutors at least had some plausible justification for its presentation about the guns Mr. Wood owned, their deceitful behavior in the penalty phase had no justification whatsoever. Before trial, the defense sought permission to introduce evidence that the victim’s mother did not want Mr. Wood to receive the death penalty. In accordance with the law, the trial court held that neither party could introduce evidence about the particular sentence family members wanted the defendant to receive. Despite knowing how Hailey Owens’s mother felt, the prosecution said in its closing argument: “With your verdict, sentencing [Mr. Wood] to the ultimate punishment, you speak for Hailey . . . . You speak for her family.” In short, the prosecutor lied. And it did what the trial court said neither party could do—tell the jurors what outcome the family desired.

The dissent explained that it “disagree[d] with [the majority’s] handling of the prosecution’s intentional reference to evidence of the family’s wishes for a death sentence, for such evidence is categorically inadmissible. The error was compounded by the fact the prosecutor had purposely kept out evidence that the victim’s mother did not wish a death sentence to be imposed.” The State’s lie was bad enough on its own. The majority’s conclusion that this testimony did not influence the outcome only makes that lie more insidious. After all, two jurors voted for a life sentence. Had the jurors known that the victim’s mother actually wanted a life sentence—or at least known that a death sentence did not speak for the family—the deliberations may have reached a different conclusion. 

As disgusting as it is for the prosecution to intentionally misrepresent the outcome that a victim’s family member wants, this is not an isolated occurrence. Other death penalty cases reveal that the State sometimes purposely misleads jurors. In the Texas trial of Paul Storey, prosecutor “Christy Jack made a false and misleading argument to the jury when she said that ‘it should go without saying that all of [Jonas Cherry’s] family and everyone who loved him believe the death penalty was appropriate.’” In that case, the State went even further than it did in Mr. Wood’s case; the prosecution had actively concealed the evidence that the victim’s parents actually opposed the death penalty for the defendant.

The Missouri Supreme Court’s opinion affirms a deeply troubling death sentence. To do so, it ignores vital aspects of the defendant’s claim and gives no scrutiny to the prosecution’s misdeeds. It appears the dissent has the better of the law and of morality. If either of those things matters in Missouri, Mr. Wood’s death sentence will at some stage, perhaps years from now, be vacated.

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