Roy Michael Roberts, )
Applicant, )
)
v. )
)
State of Missouri, )
Respondent. )
APPLICATION OF ROY MICHAEL ROBERTS TO GOVERNOR MEL CARNAHAN FOR EXECUTIVE CLEMENCY.
Innocent of the crime for which he was convicted and sentenced
to death, applicant Roy Michael Roberts applies to Missouri Governor Mel
Carnahan for an order granting Roberts executive clemency, or, alternatively,
either commuting his death sentence to life without parole, or staying
the execution and convening a board of inquiry.
Executive clemency exists precisely for cases like this.
Governors who have previously granted clemency to inmates with claims of
innocence did so based on doubt about guilt. Concern about the horrible
possibility that their state might execute an innocent man forced each
of these Governors to the same conclusion: mercy must be shown and clemency
granted if there is any doubt as to guilt.
"While there is guilt for Ronald Monroe, in an execution in this
country the test ought not be reasonable doubt; the test ought to be is
there any doubt." - Louisiana Governor Buddy Roemer, quoted in, J. Wardlaw
& J. Hodge, "Execution Halted by Roemer", New Orleans Times-Picayune,
Aug. 17, 1989.
"I cannot in good conscience erase the presence of a reasonable doubt and fail to employ the powers vested in me as governor to intervene." - Virginia Governor L. Douglas Wilder, quoted in The Washington Post, Jan. 24, 1992, Sec. D1 (grant of clemency to Herman R. Bassette Jr.).
"The first question I ask in every case is whether there is any doubt about the individual's guilt or innocence. This is the first case since I have been the governor when the answer to that question was 'yes'.... I take this action so that all Texans can continue to trust the integrity and fairness of our criminal justice system."- Texas Governor George W. Bush, Dallas Morning News, Saturday, June 27, 1998, Editorial, Sec. 24A, story Sec. 12A. (granting clemency to Henry Lee Lucas).
"There was more than sufficient evidence to show he was guilty, but there were some questions as far as I was concerned. I was able to get some information that I know the judges and jurors did not necessarily receive. Some of the evidence came in after the trial." - Virginia Governor George F. Allen, quoted in, The New York Times, Nov. 10, 1996 (commutation of the death sentence of Joseph Payne).
"My decision finally was reached by some slight tinge of doubt about both the commission of the crime and the location of the crime.... I'd have to say in the main that I lean toward the prosecution side. However, as I mentioned, if there's the slightest doubt, I'm reluctant to have a man executed." - Idaho Governor Phil Batt, quoted in, M. Trillhaase, "Batt Spares Paradis' Life," The Idaho Statesman, May 25, 1996, p. 1A.
A fair and reasoned examination of the facts of this case must create
not just any doubt, but reasonable doubt as to Roberts' guilt. We
implore Governor Carnahan to have the courage to exercise his clemency
powers in this difficult and troubling case, lest the State of Missouri
suffer the shame and infamy of executing an innocent man.
INTRODUCTION
Roy Roberts was convicted and sentenced to death for his alleged
participation in the stabbing death of a prison guard, Thomas Jackson,
during a July 3, 1983 riot in the state prison in Moberly, Missouri, the
Moberly Training Center for Men. Roberts was never accused of stabbing
Jackson. Roberts was accused and convicted based on testimony that
identified Roberts as the person who restrained Jackson during the riot
while other inmates stabbed and murdered Jackson. The murder occurred
in the midst of the bedlam and confusion caused by over thirty rioting
inmates. Roy Roberts has always maintained his innocence.
All of the surviving guards, that could identify who stabbed
Jackson, identified Rodney Carr as the stabber. Carr was convicted
of capital murder but received a sentence of life imprisonment, rather
than death. Another inmate, Robert Driscoll, was also convicted and
sentenced to death for stabbing Jackson, but Driscoll's conviction was
reversed in 1995 after it was discovered that the prosecution had misled
the jury into believing that the dead guard's blood was on Driscoll's knife,
when in fact no such blood was present. See Driscoll v. Delo, 71
F.3d 701 (8th Cir. 1995). Driscoll has yet to be retried for the
crime. Thus, Roberts is the only person under sentence of death for
the crime, even though he is the least culpable, even under the State's
version of the evidence. This disproportionality pales in comparison,
however, to that which arises if, as we contend, Roberts is indeed innocent
of the crime.
Roberts' claim of innocence is supported by three main points.
First, the initial statements of all the eyewitnesses against Roberts at
trial failed to describe or mention Roberts as being near Officer
Jackson, much less holding Jackson while he was stabbed. The failure
of the eyewitnesses to identify Roberts initially raises grave doubts about
their later testimony against him. Roberts, a 300 pound behemoth,
should have been impossible to miss while allegedly restraining Jackson
in a headlock and crushing him against a wall and door frame as Jackson
was repeatedly stabbed. Despite the glaring omission of any
identification of Roberts by each of the eyewitnesses against him in their
initial statements, Roberts' counsel failed to cross examine all but one
of those eyewitnesses on that omission at trial. The negligence of
appointed counsel thus precluded the jury from learning that the eyewitness
identifications of Roberts, the only evidence against him, were thoroughly
suspect.
Second, no physical evidence ties Roberts to the bloody scene
of Jackson's death, where Roberts' allegedly restrained Jackson in a headlock
while he was stabbed in the eye, heart and abdomen. Though the guards
were on the lookout for bloody clothes, and indeed confiscated such clothes
from Robert Driscoll, Roberts' clothes were scrutinized after the riot,
but were not confiscated because they were not bloody.
Third, on February 19, 1999, to prove his innocence, Roy Roberts
took a polygraph (lie detector) test, administered by a well-respected,
retired Kansas City police officer/polygrapher. Despite being under
the stress of a warrant for execution, Roberts passed the polygraph.
His test results showed "no deception" in his answers denying involvement
in the murder, including specific denials that he was holding the victim
during the stabbings.
All attempts at relief in the courts have failed. An appeal
for clemency to Governor Carnahan is Roberts' only hope.
DOUBTS ABOUT ROBERTS' GUILT AND THE POSSIBILITY THAT HE IS INNOCENT COMPEL THE EXERCISE OF THE GOVERNOR'S CLEMENCY POWERS TO PREVENT ROBERTS' EXECUTION.
A. THE "EYEWITNESS" IDENTIFICATIONS AT TRIAL ARE INHERENTLY UNRELIABLE
AND SUSPECT.
At Roberts trial, four witnesses testified in the guilt phase
that Roberts was holding Jackson when Jackson was stabbed. Three
witnesses were guards, Denver Halley, Robert Wilson and Wayne Hess, and
one was an inmate, Joseph Vogelpohl. At first blush, four eyewitnesses
might seem like a strong case for guilt. The facts are otherwise.
As set forth in greater detail below, each of these four witnesses
gave initial statements shortly after the riot which omitted any mention
or description of Roy Roberts. The inability of anyone to identify
Roberts as the inmate who restrained Jackson in the two weeks following
the riot is particularly troubling, given Roberts' easily recognized size
at the time of 300 pounds. Further, and of great significance
to the fairness of Roberts' trial, his appointed lawyer, Tom Marshall,
failed to question these witnesses, save one, about their prior inconsistent
statements. The jury was led to believe that the eyewitness identifications
of Roberts were far more reliable and trustworthy than was in fact the
case.
Before addressing the specifics of the eyewitnesses failure to
describe or name Roberts initially in their individual statements, it is
worthwhile to put the scope and extent of the murder investigation in perspective
by examining the summary report by the Department of Corrections' internal
affairs investigator, Mark Schreiber. Two weeks after the riot, Schreiber
submitted a 17 page internal investigation report of the murder.
That memo does not mention Roy Roberts. The report confirms that
nobody knows who, if anyone, was holding Jackson while he was being stabbed.
The DOC's report on the riot, dated July 18, 1983, is telling in its omission
of any mention of Roy Roberts, and in its suggestion that hypnosis be used
to identify more suspects. Schreiber's report concluded that additional
participants might not ever be identified, because of difficulties in identifying
any other assailants of Officer Jackson, other than, of course, those mentioned
in the Supplemental Report, inmates Driscoll and Carr. Schreiber's
conclusion bears reprinting in its entirety here, as it underscores the
completeness of the investigation to that point, makes the candid assessment
that no further suspects were likely to be identified, and significantly
undermines the credibility of the subsequent identification testimony against
Roberts:
Conclusion
Every investigative effort has been and is being made to determine
the identity of and to bring to justice the individual or individuals who
are responsible for the death of CO/I Thomas Glen Jackson and the subsequent
assaults upon other correctional officers at MTCM on July 3, 1983.
Due to the number of inmates who were intoxicated and who, to varying degrees
participated in the riot, the full extent of the number and identity of
those involved may never be known. The greatest obstacle which has
hampered ongoing investigation thus far has been the inability of potential
eyewitnesses to remember anything as to the identity of the officers' assailants.
This is not to say that the officers have not honestly made such attempts.
The hard facts are that when one is fighting for life itself there is no
time to sit down and take notes.
It was suggested by Sgt. L. Dale Belshe that perhaps it might be beneficial if the officers involved were to be placed under hypnosis if they are willing. I feel that such an investigative procedure might be of benefit. Sgt. Belshe has indicated that he is willing to make the arrangements.
A continued effort will be made to identify any individual who was involved in the acts of violence which took place on July 3, 1983. The important factor in an investigation of this magnitude is not who or what agency receives the credit but that agencies working together as a single effective investigative unit do all that is possible within the realm of police science to solve the problem for the benefit of all concerned.
Memo to W. David Blackwell from Mark S. Schreiber, dated July 18, 1983,
Re:
Supplemental Investigation - MTCM Incident of July 3, 1983, at p. 17 (emphasis
added). Memo Attached as Exhibit A.
Roberts has never denied that he was involved in the riot and
engaged in fisticuffs with prison personnel. Officer Kroeckel testified
that he and Roberts fought in a fist-fight in the control center, Trial
Transcript ("TT") at 243-45. This Roberts did, along with 20-40 other
inmates, many of whom have presumably served their sentences and are now
walking the streets of Missouri. See TT at 240 (testimony of Officer
Kroeckel that 20-30 inmates were fighting in the control center); id. at
317 (testimony of Officer Hess that 25-40 inmates involved); id. at 372
(testimony of Officer Humphrey that 30-35 inmates involved).
What Roberts did not do was hold Officer Jackson while he was
being stabbed and thereby prevent Jackson's escape from whatever murderous
inmate was stabbing him. Many inmates testified that Roberts did
not restrain Jackson. They are not alone. Officer Kroeckel
acknowledged that Roberts fought with him, and agreed that he did not see
Roberts holding Jackson. TT 245.
The testimony of four people convicted Roy Roberts of the crime
for which he is sentenced to die. Examination of their initial statements
and comparison to each person's trial testimony reveals how radically different
the trial testimony is. Clearly, the witnesses in this case got their
story "straight" over time and aimed it directly at Roy Roberts.
Such "evolving" testimony is inherently suspect and raises serious doubts
of Roberts' guilt.
Captain Denver Halley was the ranking officer during the riot.
He testified at trial that from a foot away through the glass window, TT
254, he saw Roberts hold Jackson "by the arm and also by the hair of the
head and keeping him right up against the door casing." TT 256.
Halley testified that "while Roberts was holding him, I would see Jackson
jerking and blood getting all over him." TT 257. Halley further
testified that when Halley attempted to rescue Jackson, Roberts let go
of Jackson to hit Halley, and thereafter, Roberts re-took his hold on Jackson.
TT 257-58. Excerpts of Halley's trial testimony are attached as Ex.
B.
After the riot, Halley wrote a report that night. TT 269;
Transcript of Rule 27.26 Motion Hearing ("PCR TR") at 29. Excerpts of Halley's
PCR TR testimony are attached as Ex. C. Halley's signed report, dated 3:17
a.m. on July 4, 1983, is attached as Ex. D ( originally marked as PCR TR
Ex. 11). At the time of the riot, Halley knew Roberts. PCR
TR 36, Ex. C. Moreover, he later described Roberts as standing out
"like a red rose in the Sahara desert." Deposition of Denver Halley
in the Robert Driscoll case at 9, excerpt attached as Ex. E.
Despite Roberts' great size and the specificity of later trial
testimony, Halley failed to mention Roberts in his initial statement on
July 4. Ex. D. Halley identified only a mob of inmates,
no individuals, and stated that "they" were holding him. Id.
They [Goodin and Kroeckel] arrived at the steps leading out of
the wing with this inmate, and he went to hollering and [at] that time
approximately 35 or maybe 40 inmates came running to us. They grabbed
Officer Tom Jackson first and had him up against the door, and approximately,
I would say, 12 or 14 inmates were trying to come out into the Rotunda.
Officer Goodin, Officer Wilson, Lt. Kroeckel, and myself -- Captain Halley
-- we went to fighting these inmates. a number of them were armed
with iron bars and knives. I attempted to help Officer Jackson get
away from the inmates. They were holding him and during this procedure,
I was knocked down twice, plus was hit in the arm with a pipe. I
heard Officer Jackson holler and I finally managed to drag him out.
He was bleeding profusely and I dragged Officer Jackson across the Rotunda
and knew at that time that he was dying.
Ex. D, Statement of Denver Halley dated July 4, 1983 (emphasis added).
Sixteen days later and two days after DOC Internal Affairs investigator
Mark Schreiber submitted his report, Ex. A, Halley submitted an investigation
report identifying Roberts for the first time as "one of the inmates" holding
Officer Jackson. Ex. F, Halley statement dated July 20, 1983.
Two days after the DOC report acknowledged that no more inmates
were likely to be identified, Halley selected the biggest and most noticeable
inmate to have been in the riot and suddenly implicated him as one of the
persons holding Roberts. The evolution of Halley's testimony had
begun. That evolution continued and culminated with Halley's trial testimony,
in which he stated that Roberts, alone, was holding Jackson.
Correctional Officer Robert Wilson likewise testified at trial
that Roy Roberts held Jackson around the neck, TT 296, and that Roberts
was the one preventing Jackson from getting away. TT 299 (Wilson
trial excerpts attached as Ex. G). Wilson's initial statements
are far different:
Officer TG Jackson, KF Goodin & DL Kroeckel went in B wing
and brought out a man who was intoxicated.
As they was bring the man out the door about 30 t 40 inmates
busted out the wing door after us. I grabbed one inmate by the head
and was hitting him. He came out with a knife and cut me on the left
hand. Then (S) went for officer T.G. Jackson. At this time
Officer Humphrey hit him with bat & (S) went down.
The other inmates drug back into the wing.
By then I was fighting with anoughter (sic) inmate & the
other officers got the wing locked down.
Ex. H, Wilson Statement, dated 2:30 a.m on July 4, 1983. Obviously,
there is no mention of Roberts in this statement. Nor is there any
mention of Roberts in Wilson's next statement, which is much more complete
and states in pertinent part:
As they were bringing the drunken inmate out of the wing approximately
35 inmates rushed us. Inmate Rodney Carr # 38428 rushed out the door
toward myself. I grabbed inmate Carr around the neck from behind
and started hitting him with my flashlight. He pulled a shank and
cut me across the left hand freeing himself from my grip. Lunged
forward approximately 3 feet sticking Officer Jackson in the chest area.
At this time Officer Hess grabbed inmate Carr and they began to scuffle.
Carr got in behind Hess and stuck him in the right shoulder. Officer
Humphry hit inmate Carr behind the head with a ballbat knocking him to
the floor. Carr then dropped the shank as he fell. At this
time an unknown inmate hit me in the right shoulder knocking me to the
floor. as I was getting up I picked up the shank that Carr had dropped
and stuck it in back of my belt. Inmates began dragging Carr and
other inmates back into the wing giving us enough time to get the wing
doors shut and locked. Myself, Officer Kroeckel and Halley placed
Officer Jackson onto a stretcher [illegible] to the prison hospital.
Officer Humphry Lt. Kroeckel and a inmate accompanied Officer Jackson to
the hospital. Capt. Halley and a new officer by the name of Dillon
ran to the administration building to get shotguns and more help.
Myself, Officer Goodin and Officer Hess stayed back to hold down the house.
Inmates from all four wings were hollering, breaking glass and preparing
to come into the Rotunda after us. After approximately 10 minutes
Capt. Halley, Officer Dillon and Lt. Arney returned with shotguns.
The order was given for the inmates to return to their cells. Some
of them did, most did not! At this time Capt. Halley & Lt. Arney
& myself began firing into the wings & the inmates ran for their
cells.
Ex. I, Wilson statement, dated July 10, 1983. More than two months
later, Wilson's statement was virtually the same, still without any reference
to Roberts. Ex. J, Report of Officers Merritt and Ullery dated September
13, 1983 (previously identified as PCR TR Ex. 6).
Wilson admitted that he "knew" inmates Carr and Roberts.
Ex. K, Robert Wilson deposition in Robert Driscoll case at 5-6. Yet
despite this knowledge and Roberts' large size, Wilson named only Carr
and failed to identify Roberts in either of Wilson's initial statements.
Wayne Hess, too, failed to identify Roberts in his initial statements.
He gave two statements, one dated July 4, 1983, Ex. L, and another
dated July 9, 1983. Ex. M. In the July 4 statement, Hess stated
that "three or four inmates had ahold of his [Jackson'] head and tried
to pull him back into the wing." Ex. L, p. 3. Hess was "right
beside him," but Hess did not know any of those inmates. Id.
Hess only remembered Carr and affirmatively stated that he did not remember
any other inmates that were directly involved in the incident. In
the July 9 statement, Hess states that "some of the inmates had Jackson
in a headlock." Ex. M, p. 2. He then went on to say that the
next day he had been shown photos of inmates, "one I remember was Carr,
I think Driscoll, Batey or something like that, and one other I don't remember.
I looked at one picture of Carr and I stated this was the man who done
the stabbing." Ex. M, p.3.
Hess' failure to identify Roberts in these statements is particularly
significant, because Prosecutor Finnical admitted in the Rodney Carr trial
that Hess was shown a photograph of Roy Roberts before Hess went to the
line-up on July 4. Ex. N, Hess testimony from trial of Rodney Carr.
Thus, Hess failed to identify Roberts as an inmate who restrained Jackson
in a statement made shortly after Hess was shown Roberts' picture on July
4, Ex. L, and again on July 9. Ex. M. The prosecution attempted
to hypnotize Hess to bolster his memory, Ex. O (PCR TR Ex. 3), and
still he did not identify Roberts. Ex. O at 6, 12. Hess could
not identify Roberts in Hess' initial statements, notwithstanding that
he admitted that he knew "Hog" Roberts as the largest man in the wing and
knew him by that name. Ex. P, Hess' 27.26 testimony at 16-18.
Nevertheless, Hess' testimony at trial was very specific, alleging
that Roberts, a man he had "seen around" before and who weighed "about
300 pounds," had Jackson "in a headlock and Tom Jackson couldn't get away
to defend himself." TT 305. Given these circumstances, Hess'
trial identification of Roberts is particularly dubious.
Inmate Joseph Vogelpohl was the only other witness who identified
Roberts in the guilt phase as the person who restrained Jackson while he
was stabbed. Vogelpohl, too, was unable to identify Roberts initially.
In Vogelpohl's initial statement on July 4, 1983, Ex. Q, he totally failed
to mention Roy Roberts. Despite his later claim to having witnessed
Jackson's murder, all he said in his initial statement was that: he'd seen
Robert Driscoll assemble a knife in his cell; then, while near the rotunda
from five feet away he saw Driscoll "punch at" Officer Jackson; and finally,
he'd returned to his cell, where Driscoll also returned and said to Vogelpohl
that Officer Jackson "had got stuck." Ex. Q. In his statement
Vogelpohl announced that he was making a statement so that he wouldn't
"take the rap" for the crime. Id. In his subsequent statement
to Officers Merritt and Ullery on October 3, 1983, Vogelpohl stated that
Driscoll and John Bolin were the inmates who stated that the inmates should
stop the guards from taking Jimmy Jenkins out of the wing, and that Bolin
said "let's rush them." TT 341. Vogelpohl also wrote a letter
to a friend, Dewitt Burns, saying that he heard that Ed Ruegg, not Roberts,
had held Jackson. TT 335.
At trial, however, Vogelpohl's testimony turned on Roberts.
First, he stated that Roberts had been the person who suggested that the
inmates should "rush" the guards. TT 326-27. Then he stated
that Roberts had stopped Jackson at the wing door, TT 328, and that he
had seen Driscoll stab Officer Jackson while Roberts held him. TT
329. Excerpts of Vogelpohl's testimony is attached as Ex. R.
Vogelpohl's evolving testimony should be seen for what it was, an attempt
to evade "the rap" for being in a riot five feet from the murdered guard,
and an attempt to curry favor to get paroled early.
Thus, by the time of trial, the State presented four witnesses
in the guilt phase who gave relatively unambiguous, chilling testimony
that placed Roberts at the scene as the one and only person restraining
Jackson. The dramatic change in the specificity of these witnesses
from the time of the riot until trial, in which their stories coalesced
and "matured" into adamant certainty that Roberts restrained Jackson and
was the sole person to do so, by itself creates significant questions about
Roberts' guilt. The changes in testimony are too dramatic to be believed
and seem to confirm the rumor that Prosecutor Finnical was out to get "three
for one," no matter what the cost in terms of integrity or reliability.
The questions raised by the changes in testimony creates a reasonable inference
that the State of Missouri may be intending to execute a man who may well
be innocent.
B. NO PHYSICAL EVIDENCE CONNECTS ROY ROBERTS TO THE MURDER OF
OFFICER JACKSON.
No physical evidence connects Roy Roberts to the murder of Officer
Jackson. It is uncontroverted that Roberts did not have a weapon.
Despite the extensive amount of blood spilled by Officer Jackson, there
is no evidence of any blood on Roberts or his clothes. It defies
belief that Roberts could have restrained Jackson as described by the adverse
eyewitnesses, and not gotten blood on himself.
Roberts was described as having Jackson around the neck, TT 296
(testimony of Wilson), in a headlock, TT 305 (testimony of Hess), and "by
the arm and also by the hair of the head and keeping him right up against
the door casing." TT 256 (testimony of Halley). The bleeding
from Jackson was profuse. Halley described it as "while Roberts was
holding him, I would see Jackson jerking and blood getting all over him."
TT 257. The blood was "all over the front and side of Jackson's shirt"
and was "very, very obvious." TT 258. Halley said that Jackson
looked like a "butchered hog." TT 281. Jackson's shirt looked
like "solid blood." TT 375 (testimony of Officer Humphrey).
Given Roberts' supposed close contact with Jackson and the amount of spilled
blood, Roberts should have been soaked with blood.
After prison guards quelled the riot, the inmates were locked
into their cells. TT 266 (Halley testimony). Thereafter each
room was searched, and the inmates were personally searched. TT 267.
Robert Driscoll's clothes were collected from his room and analyzed because
they appeared to be covered with blood. See Driscoll v. Delo, 71
F.3d 701, 707 (8th Cir. 1995) (blood analysis conducted on the recovered
knives, Officer Jackson's clothes, "and the clothes worn by various inmates,
including Driscoll, on the night of the riot"). Notably, Roberts'
clothes were not saved, tested or ever offered into evidence against him.
The fact that Roberts clothes were not tested or confiscated
directly correlates to the absence of blood on them. At the time
of the riot, Willie Dennis was a major at the Moberly prison. On
February 20, 1999, Dennis spoke with Roberts' investigator, Richard S.
Hays of the Federal Defenders of Eastern Washington and Idaho. Major
Dennis told Mr. Hays that he arrived at the prison within an hour of the
death of Officer Jackson and relieved the guards that were involved in
the initial disturbance. Major Dennis acknowledged that he supervised
the removal and transfer of inmates from their cells in Wing B who were
thought to have been involved in the riot. Major Dennis acknowledged
that he supervised the removal of Roy Roberts from his cell, and that he
saw no blood on Roberts. Major Dennis further stated that he would
have confiscated any article of clothing or other item for evidence, if
blood was on it. Affidavit of Richard S. Hays, attached as Ex. T.
Major Dennis' claim that he was looking for blood on clothes is corroborated
by the record of confiscated clothes in this case. See Driscoll v.
Delo, 71 F.3d at 707.
The absence of blood on Roberts' clothes raises serious questions
about his participation in the murder of Officer Jackson. The likelihood
that the witnesses are correct in their description of Roberts' alleged
restraint of Jackson is highly improbable.
C. ROY ROBERTS PASSED A POLYGRAPH TEST THAT INDICATED "NO DECEPTION"
WHEN HE DENIED INVOLVEMENT IN JACKSON'S MURDER AND DENIED RESTRAINING JACKSON
WHILE JACKSON WAS BEING STABBED.
To prove his innocence, Roy Roberts insisted upon, took and passed
a polygraph (or lie detector) test on February 19, 1999 at the Potosi Correctional
Center while under a warrant of execution set for March 10, 1999.
Despite the stress involved in taking a test under those conditions, Roberts'
test results were clear: "no deception" in his denial of involvement in
Jackson's murder.
Donald I. Dunlap, A.C. P., administered the polygraph test.
Mr. Dunlap retired after thirty years with the Kansas City, Missouri Police
Department. Dunlap served as a polygrapher for the last 24
years of his service with the Kansas City Police Department. He spent
nine years as a full-time polygrapher, followed by more than 15 years as
Chief Polygraphist of the department. Since Dunlap's retirement in
1985, he has worked in private practice, presently under the name of Don
Dunlap & Associates. He is a highly respected polygrapher who
has continued to work for law enforcement, such as the Benton County Sheriff's
Department, as well as the Missouri Public Defender's Office, and various
private attorneys. His resume is attached as Ex. U.
The polygraph report of the Roberts examination on February 19th
is attached as Ex. V. That report reaches the following conclusion:
It is the opinion of the polygraphist that deception was not
indicated in this person's polygraph records when he answered the following
questions as indicated:
1. When Jackson was being stabbed, were you holding him in any way? Answer, No.
2. When Jackson was being stabbed, were you holding him by the hair? Answer, No.
3. Just before Jackson was stabbed, did you pin him against a door casing? Answer, No.
4. While Jackson was being stabbed, did you have any physical
contact with him? Answer, No.
Ex. V, Letter Report of Don Dunlap & Associates to Bruce D. Livingston,
dated February 20, 1999, Re: Roy Michael Roberts Polygraph Interview.
The U.S. Supreme Court recently addressed the admissibility of
polygraph evidence in the military courts. United States v. Scheffer,
118 S.Ct. 1261 (1998). The Supreme Court recognized the trend toward
admissibility of such evidence, 118 S.Ct. at 1265-66, though the Court
declined to recognize a constitutional right to present polygraph evidence
based on a lack of consensus within the lower courts on the reliability
of polygraphs. Id. In dissent, Justice Stevens compiled the evidence
on the reliability of polygraphs:
There are a host of studies that place the reliability of polygraph
tests at 85% to 90%. While critics of the polygraph argue that accuracy
is much lower, even the studies cited by the critics place polygraph accuracy
at 70%. Moreover, to the extent that the polygraph errs, studies
have repeatedly shown that the polygraph is more likely to find innocent
people guilty than vice versa. Thus, exculpatory polygraphs -- like
the one in this case -- are likely to be more reliable than inculpatory
ones.
Scheffer, 118 S.Ct. at 1276 (Stevens, dissenting) (footnotes omitted)
(emphasis added). Like the defendant in Scheffer, Roberts,
too, passed the more reliable polygraph-- an exculpatory one. See
Scheffer, 118 S.Ct. at 1276 n.22 (compiling studies that show exculpatory
polygraphs to be more reliable than inculpatory polygraphs).
The polygraph that Roberts passed was reliable not only because
it was exculpatory, but also because the examination was administered by
a respected, experienced, former member of law enforcement, Don Dunlap.
As the chief Polygraphist for the Kansas City Police Department for over
15 years, Dunlap's qualifications are impeccable. As a former police
officer, Dunlap is decidedly unlikely to be inclined to favor an accused
guard-killer through questionable interpretations of the test results.
Dunlap's finding that Roberts passed an exculpatory polygraph test is powerful
additional evidence that Roberts is innocent of the crime for which he
has been sentenced to death.
Clemency proceedings have turned upon polygraph results previously.
Virginia Governor Douglas Wilder would have granted clemency to Roger Coleman
in 1991, had Coleman passed a polygraph test. J. Tucker, "May God
Have Mercy: A True Story of Crime and Punishment," W.W. Norton & Co.
(1997), at 280-81, 300-01. When Coleman failed to pass the polygraph,
Governor Wilder declined to intervene. Id. at 312. Coleman's
polygraph was given under extreme circumstances, hours before his scheduled
execution. Id. at 305-14. Though that test, which was inculpatory,
suffered from more significant reliability concerns than Roberts' exculpatory
polygraph, it provides precedent for considering polygraph results in making
a clemency decision.
Given the greater reliability of Roberts' exculpatory polygraph,
one must have serious doubts about his guilt. Roberts' polygraph
result strongly supports his claim of innocence and provides Governor Carnahan
with yet another reason to intervene in this case.
CONCLUSION
In conclusion, Roberts implores Governor Carnahan to stop the
execution scheduled for March 10, 1999. Roy Roberts deserves clemency,
and at least commutation or a board of inquiry. The State of Missouri
must not proceed with this execution. The possibility that Roberts
may be innocent is too real. Allowing Missouri's machinery of death
to continue to operate, wheeling an innocent man on a gurney to the execution
chamber in Potosi, is too horrible to contemplate -- the ultimate miscarriage
of justice. This application for clemency raises doubts about
Roberts' guilt, significant doubts. Those doubts cry out for Governor
Carnahan's intervention and mercy. Let not Missouri be the State
that knowingly executes an innocent man.
We urgently and respectfully request that Governor Carnahan halt
the execution of Roy Michael Roberts.
Federal Defenders of Eastern Idaho and Washington
Capital Habeas Unit
By: Bruce D. Livingston
201 North Main St.
Moscow, Idaho 83843
208-883-0180
Leonard J. Frankel
Frankel Rubin Bond & Dubin, P.C.
231 S. Bemiston, Suite 1111
Clayton, Missouri 63105
314-725-8000
