On December 15, 2022, Chief Justice Micheal A. Wolff and retired judges submitted a letter to Governor Parson’s Deputy General Counsel expressing their support for a commutation of Amber McLaughlin’s death sentence based on the jury deadlock issue.
The letter is below:
Dear Governor Parson:
We are retired judges, listed below as signers, who have served at all levels of the Missouri judicial system. Our group includes trial judges who have presided over capital cases, and judges of the Court of Appeals and the Missouri Supreme Court. We write to request you to commute Scott McLaughlin’s death sentence to life because the jury – the voice of the community – did not recommend the sentence of death. His death sentence was instead imposed by a judge.
Mr. McLaughlin was deprived of his right to a jury. His attorneys had persuaded the jury to reject three of the four alleged aggravating circumstances and then deadlocked on whether the death penalty was warranted. Even though the prosecution urged death, the jury did not unanimously and independently make an affirmative determination a death sentence was warranted. A jury, as we said, is the voice of the community in which the crime occurred – and that voice where Beverly Guenther was murdered said that the State did not sustain its burden to merit a death sentence.
Mr. McLaughlin was sentenced to death via a flaw in Missouri’s capital sentencing scheme. Missouri law permits a trial judge to make independent factual findings (both as to aggravating and mitigating factors) and to impose a sentence of death when a jury deadlocks on whether the death penalty is warranted. Missouri’s capital sentencing procedure removes the life-or-death decision from the jury when the jury cannot vote unanimously for death, and places that awesome power in the hands of one individual. That is precisely what happened in Mr. McLaughlin’s case.
This flaw is more pronounced in this case because the trial judge then relied upon aggravating circumstances specifically rejected by the jury. Thus, the trial judge made his own findings contrary to the will of the jury, which runs squarely against the fundamental principles of our justice system. The trial judge did a complete end-run around a jury, where Mr. McLaughlin’s attorneys had persuaded at least one and maybe 11 jurors that death was not appropriate.
The risk of arbitrary and irreversible injustices in the administration of those sentences is high, given the inherently problematic nature of a death sentence being imposed by a single person – and particularly after a jury did not unanimously do so. A judge should adjudge the law – the jury should voice the conscience of the community. Judicial sentencing historically has been more likely to result in a death sentence in a capital case than when a jury makes that decision, where trial judges are elected. It “has long been the case” that “[n]ot surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty.” Harris v. Alabama, 513 U.S. 504, 521 (1995) (Stevens, J., dissenting). No individual, not even a judge, should have the ability to take a human life on behalf of the State.
The arbitrariness is reflected here – where many other death sentences imposed in this manner have previously been corrected by the Missouri Supreme Court. See State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003). There is no principled basis to distinguish Mr. Whitfield and the other death sentences vacated from Mr. McLaughlin’s circumstance.
It should be mentioned that a federal district court judge recommended a new sentencing phase based upon the grievous error of trial counsel in promising to the jury to produce mental health evidence but then breaking that promise at trial. McLaughlin v. Steele, 173 F.Supp.3d 855 (E.D. Mo. 2016). Explaining the why of how such a tragedy occurred is powerful mitigation that could have been but was not presented due to the shortcomings of trial counsel. Mr. McLaughlin’s jury deadlocked and refused to return a death verdict. Had the mental health evidence that included brain damage been presented, it would have resulted in a life recommendation.
As Governor you have the power to correct this flawed death sentence, a power to grant or deny executive clemency that is an essential component – the last step – in our criminal justice system. We urge you to commute Mr. McLaughlin’s death sentence to that of life without the possibility of parole to reflect the conscience of the community that refused to recommend that Mr. McLaughlin be put to death.
Sincerely,
Judge Jon R. Gray, retired
16th Judicial Circuit - Jackson County
Judge Gary Oxenhandler, retired
13th Judicial Circuit - Boone and Callaway Counties
Judge John R. O'Malley, retired
16th Judicial Circuit - Jackson County
Judge Lisa VanAmburg, retired
Court of Appeals and 22d Judicial Circuit - St. Louis
Judge Robert Schieber. retired
16th Judicial Circuit - Jackson County
Judge David W. Russell, reitred
7th Judicial Circuit - Clay County
Judge and Chief Justice Michael A. Wolff, retired
Supreme Court of Missouri
Sent by
Michael A. Wolff
Judge, retired; Dean, retired
Professor Emeritus