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Special Master Report in the Reginald Clemons Case

The special master has delivered his report in the case of Missouri death row inmate Reginald Clemons.

This proceeding is a state habeas corpus petition filed after the usual state postconviction review and the federal habeas corpus have been completed.  In substance, then, it is like a successive habeas petition.  Missouri law apparently follows the pre-AEDPA federal successive habeas petition law of McCleskey v. Zant (and current federal procedural default law).  The petitioner must satisfy a "gateway" test of either "cause and prejudice" or actual innocence before the merits of the petition will be considered.

Clemons may win the case on a fairly routine basis -- a nondisclosure claim under Brady v. Maryland with passage through the gateway via "cause and prejudice."  The special master recommended in his favor on that claim.  (Page 102.)

The case is nationally notorious, though, because of Clemons's claim he is actually innocent.  The master rejects this claim.  A few excerpts follow the jump.
In Paragraph 15 of his Petition for Writ of Habeas Corpus, Clemons seems to revert to his old argument of trying to blame Thomas Cummins for the murders of the Kerry sisters....

Of course, if newly discovered evidence would make it more likely than not that no reasonable juror would have convicted Clemons because Cummins was the perpetrator, then that dog might hunt, but the truth is, it will not. The time has finally come to drive a stake through the heart of the shibboleth that Thomas Cummins is the murderer responsible for the deaths of the Kerry sisters.

The police suspected Cummins because of flawed factual premises that turned out to be wrong: the whirlpool, the 90 foot drop. the 80 mile-an-hour impact, neatly-combed hair, etc. The siren song that Cummins was the killer was also a ready-made defense for Clemons and the other defendants, but in reality none of those things were ever proved, and that was for a good reason: They were unprovable because they were false.

Interesting stuff, but case-specific.  Also interesting and more broadly applicable is this passage:

10. Why does Clemons still refuse to answer questions about his participation in the rapes and deaths of the Kerry sisters? While he had a right to decline to testify at his criminal trial, we are way past that point now. A habeas proceeding is civil in nature and there is no right to assert the privilege against self incrimination in a civil proceeding, without serious consequences. That is the clear holding of a case heavily relied on by Clemons before the habeas hearing last September, Bean v. Calderon, 166 F.R.D. 452 (E.D. Cal. 1996); accord, State ex rel. Myers v. Sanders, 204 W.Va. 544,526 S.E.2d 320 (1999).
Bravo.  Every jurisdiction that has an "actual innocence" exception to its default and timeliness rules (and every one should) should also have a simple rule about disclosure.  The petitioner claiming this exception should be required to (1) make a reverse-Brady disclosure of every material fact known to the petitioner or his present or former legal teams, and (2) testify at the hearing and be subject to cross-examination.  No exceptions.  If he refuses, the claim is dismissed.

After all, the essence of this exception is that the fundamental justice of the case should trump the usual rules of procedure and finality.  The petitioner should not be able to bulldoze the rules protecting the other side while still hiding behind his own privileges.

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