Lawyer seeks life sentence for client

The lawyer for a Jefferson County man, sentenced to death for the murder of an elderly DeSoto couple, asked the Missouri Supreme Court to resentence him to life in prison without parole.

Rosemary Percival, the public defender representing Carman Deck on appeal, said Missouri law requires that Deck be resentenced to life. This appeal is from Deck’s third penalty-phase trial – and his third death sentence.

The law in question, Section 565.040.2, “clearly and expressly states that in the event any death sentence is held to be unconstitutional, the trial court should resentence the defendant to life without parole,” Percival told the court Tuesday.

In 2005, the U.S. Supreme Court found the defendant’s second death sentence to be unconstitutional because the jury could see Deck in shackles during the trial, Percival argued.

The terms “any” and “unconstitutional” cover a broad range, she said. “If your constitutional rights are violated, whether it’s due process or whether it’s 6th Amendment, the statute doesn’t draw a line,” Percival said.

Only when an aggravator is invalid is a new trial warranted, she said, noting that the presence of an invalid aggravator is the one exception the Legislature wrote into the law.

Judge Laura Denvir Stith questioned what she said was “strange wording” in the statute: “any time the sentence is held to be unconstitutional.”

“It implies something about the sentence itself, doesn’t it, as opposed to errors at the trial?” she asked.

In Deck’s case, the error – visible shackling – may have prejudiced the jury, Stith said, asking: “Why was that an error in the sentence of death? Wouldn’t that be an error in some other case too that didn’t have the death penalty?”

Judge Patricia Breckenridge followed up by asking whether subsection 2, the one at issue in this case, is “a procedural mechanism for enforcing” subsection 1, which applies in the event the death penalty itself is held to be unconstitutional.

This was the state’s argument in a nutshell.

Evan J. Buchheim, assistant attorney general, said the predecessor to this statute was passed during the 1970s, when, after the U.S. Supreme Court’s 1972 Furman v. Georgia decision, “no one knew if there was going to be a death penalty anymore.”

“The U.S. Supreme Court has said that deciding what is the proper punishment under the Eighth Amendment involves the evolving standards of decency that marks the progress of a maturing society,” he said. “So even today we don’t know what cases the death sentence would be applicable to. Even if they are today applicable, tomorrow they may not be.

“And that was the whole reason behind the Legislature’s passage of [Section 565.040]. It was not to give defendants a windfall every time there’s a reversal,” Buchheim said.

If the court accepts Deck’s position, then every death sentence reversed based on some constitutional principle would have to be commuted to life in prison, he said.

The two lawyers also argued about whether the circuit judge erred when he allowed the prosecution to strike for cause two jurors who said they could consider the death penalty but could not serve as foreperson and sign the verdict form.

Percival said allowing such strikes, in addition to the nine peremptory challenges each side gets, would “stack the jury with pro-death jurors.” Buchheim urged the court to defer to the decision of the trial judge.

Deck was originally convicted in Jefferson County Circuit Court of the 1996 murders of James and Zelma Long and sentenced to death in 1998. Deck killed the Longs after he and his sister robbed their home, even though the couple obeyed the intruders’ instructions. While the Longs lay on their bed pleading for their lives, Deck paced around the room for 10 minutes before shooting each victim twice in the head.

The case is State v. Deck, SC89830.