Victim advocates question death penalty reversal

Criminal defense attorneys: Prepare to grapple with either slamming the character of dead victims in open court or risking being deemed ineffective counsel.

That appears on its face to be the message in an opinion last week from the Missouri Supreme Court in a case where judges admonished two public defenders for not exposing the murder victim as a downloader of child pornography.

It has staff at the nation’s first crime victim advocacy center wondering if the last 25 years’ efforts have been reversed, as well.

“It undermines a lot of work that has been done to recognize the crime for what it is and not blame the victim,” said Julie Lawson, executive director of the Crime Victim Advocacy Center of St. Louis. “This says somehow the victim may or may not have deserved what has happened to them.”

However, prosecutors don’t think victims will be dragged through the mud as a result.

“I don’t think it’s made too much of a wave. It’s very case specific, and I don’t believe it will have wide implications,” said Dwight Scroggins, president of the Missouri Association of Prosecuting Attorneys.

If there’s a wider implication in Gill v. State, he said it doesn’t center on victims’ rights.

“What does and doesn’t constitute character evidence is confusing at best. This case adds to that confusion,” Scroggins added.

Public defenders overlooked disparaging evidence surrounding a victim that could have saved his murderer from the death penalty, the Supreme Court ruled last week.

The Supreme Court is returning Mark Gill to New Madrid County for a new penalty phase of his trial in light of sexually explicit materials that were found on his victim’s computer before trial.

Gill sought post-conviction relief, contending that his attorneys should’ve used the computer evidence to prevent prosecutors from using victim character evidence in the penalty phase – or at least used it to rebut the state’s characterization of the victim as a “saint,” according to the opinion.

“A reasonably competent attorney would have conducted further investigation as to the contents of the computer,” Judge Mary Rhodes Russell wrote in the unanimous opinion.

Gill was charged with the 2002 murder of his roommate, Ralph Lee Lape Jr. In 2004, a New Madrid County jury convicted Gill of first-degree murder, armed criminal action, kidnapping, first-degree robbery and first-degree tampering.

At the time, public defenders in the St. Louis capital trial office, David Kenyon and Sharon Turlington, represented Gill. Neither of them returned phone calls for comment.

“[The Supreme Court] felt their performance was below what was constitutionally required,” said Gill’s attorney on the appeal, William Swift of the Columbia public defender’s office.

Defenders and prosecutors typically aren’t allowed to use evidence concerning a victim’s character in murder cases. However, Russell explained that the state can attempt to use evidence to display the victim’s good character. If the defense doesn’t fight it and prosecutors proceed, “the State opens the door for the defense to present rebuttal character evidence.”

In this case, prosecutors used testimony from four witnesses who were surviving family members of the victim and testified to his good character and his death’s effect on their lives.

They talked of his “generosity with what little money,” he had, showed a family photograph album that chronicled his life and told anecdotes of good deeds he had performed while alive.

“Gill’s counsel should have presented rebuttal evidence. However, his counsel failed to present rebuttal evidence because they failed to discover it,” Russell wrote.

A sheriff’s department report generated before trial listed all of the file folders and directories on the victim’s computer, which the prosecutor sent to defense attorneys about a month before opening statements.

The victim’s computer had been searched as a part of the criminal investigation because Gill and his co-defendant, Justin Brown, had transferred $55,000 from the victim’s bank and credit card accounts to an account they could access at an ATM.

The report showed a list of instant messaging user accounts that had communicated with the computer. Despite user names that ranged from “a_slutty18girl_w38c” to “sweetgirl14older” to “sweetpiece123,” the defense attorneys “did not notice anything that would have alerted them to the presence of pornography on the computer,” according to the opinion.

A computer analyst who used software to decode the instant messages revealed sexually explicit instant message conversations, some of which referenced sex with underage girls, child pornography images and bestiality. But defenders never deposed the analyst or members of the sheriff’s department who knew about the findings.

“Gill’s counsel could have used the sexually explicit material to rebut the State’s positive character evidence about the victim,” Russell wrote. “The jury would have had an alternative description of the victim when it deliberated whether to recommend the death penalty for Gill.”

Gill’s attorney, Swift, said “it’s not uncommon” in murder trials for prosecutors to present character evidence in conjunction with victim impact evidence.

Asked how often that character evidence is ever rebutted, Gill’s attorney answered, “It occasionally happens.”

“The court was concerned about the jury getting a complete picture,” he said. “When there’s a clear picture to present, that’s when I think defense counsel is obligated to do it.”

Jurors in a separate trial for Gill’s co-defendant called for life imprisonment instead of the death penalty, Judge Russell emphasized. In that trial, the computer evidence wasn’t allowed as a result of a motion from the prosecutor to block it. Also, the same four family members testified, but their testimony was much more inhibited.

“There is a reasonable probability that, with the different description of the victim, the jury would have decided that, in its consideration of all of the evidence, the death penalty was not proper punishment for Gill,” Russell said.

The Supreme Court affirmed the circuit court’s judgment in part, agreeing that there was no prosecutorial misconduct because the state had provided the computer evidence to defense counsel.

However, the Supreme Court reversed the local court’s decision in part, finding that the convict had received ineffective assistance of counsel and remanded the case to New Madrid County for a new penalty phase of the trial.

Lawson, of the victim advocacy center, said she fears the ruling will have dangerous consequences.

“I’m afraid this finding will cause defenders to go digging, to go criminalize every murder victim,” she said. “All of us have done something in our lives – it’s a step in the wrong direction.”

In the Gill case, she said it would be unfair to use the information found on his computer in open court because it never was proven that he had committed a crime and it could cause surviving family members additional hardship.

She said she’s also uncomfortable with defenders bargaining with the information to prevent family and friends from testifying on the victim’s character.

“He was no less loved as a father or brother because of what was on his computer,” Lawson said. “It does not in any way diminish the horror of the crime that has been committed.”

Scroggins, who also is Buchanan County’s prosecuting attorney, said he understands how it could be easy to become alarmed over the court’s finding.

He believes prosecutors will continue to call on surviving family members to testify in homicide cases, but he drew the distinction between using them for victim impact evidence and character evidence.

Victim impact evidence is allowable in murder cases, while he said prosecutors already think twice before attempting to present character evidence.

“The character of the crime victim isn’t relevant in any but a very few cases,” he said. “The person is no less deserving of society’s protection because they have a trait that is unfavorable.”

Since defense counsel can’t attack the victim unless prosecutors present positive character evidence, Scroggins said prosecutors already know that if they go ahead they must be confident no discrediting evidence is out there.

In the Gill case, he said both sides had access to and acknowledged the sexually explicit materials on the victim’s computer, but defense attorneys did nothing with it.

He said the Gill case has muddied the line between character and victim impact evidence for prosecutors, though.

“It’s very confusing as to where character evidence has been injected,” he said.

Nanci Gonder, a spokeswoman for the attorney general’s office in Jefferson City, declined to comment.

The case is Mark Anthony Gill v. State of Missouri, SC89831.