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No. ______________
IN THE SUPREME COURT OF THE UNITED STATES
This is a capital case - Execution scheduled June 18, 2014
JOHN E. WINFIELD,
Petitioner,
v.
TROY STEELE,Warden, Potosi Correctional Center, et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
JOSEPH W. LUBY*JESSICA SUTTONDeath Penalty Litigation Clinic
6155 Oak Street, Suite CKansas City, MO 64113(816) 363-2795 (816) 363-2799 fax
*Counsel of Record
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CAPITAL CASE QUESTION PRESENTED
A staff member at the Potosi Correctional Center gave a sworn declaration stating
that petitioner John Winfield is in the elite 1% of all inmates, including non-capital
inmates, that Mr. Winfield helps younger and weaker prisoners adjust to prison life, that
the staff respect him, and that Mr. Winfields sentence should be commuted to life
imprisonment. But the officer withdrew his statement after investigators named him a
suspect and investigated him for the offense of over-familiarity with Mr. Winfield.
The district court held an evidentiary hearing and concluded that Winfield is likely to
be able to prove at a later trial that prison officials took actions to intimidate [the
witness] to keep him from providing support for Winfields clemency petition. App. C-
10. The district court ruled that it is a violation of due process for state officials to
frustrate a state-created clemency procedure by threatening the job of a witness, and
that Mr. Winfield is likely to succeed on the merits of his due process claim. App. C8-
C12.
The Eighth Circuit reversed, reasoning that the circumstances were not
tantamount to the examples described by Justice OConnors concurring opinion in Ohio
Adult Parole Authority v. Woodard, 523 U.S. 272, 289 (1998), specifically, a coin-flip by the
decisionmaker or a prisoners complete denial of access to the clemency process.
This case presents the following question:
For purposes of clemency proceedings, does due process automaticallycountenance procedural irregularities that are less arbitrary than the Woodardexamples of a coin-flip or the prisoners complete denial of access?
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TABLE OF CONTENTS
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.. . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASONS WHY THE WRIT SHOULD BE GRANTED. . . . . . . . . . . . . . . . . . . 14
The court should grant certiorari to clarify the type and extent ofminimal due process safeguards that attach to clemency proceedings. . . . 14
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
APPENDIX
App. A Eighth Circuit order on petition for rehearing
App. B Eighth Circuit panel order on motion to vacate stay of execution
App. C District Court memorandum and order granting preliminary injunctionand stay of execution
App. D District Courts preliminary injunction and stay of execution
App. E District court order denying motion to alter or amend judgment
App. F Exhibits from district court evidentiary hearing
App. G Transcript of district court evidentiary hearing
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App. H Defendants Suggestions in Opposition to Motion for PreliminaryInjunction, Motion for Stay of Execution, and Request for InjunctiveRelief, filed in District Court
App. I Missouri Supreme Court order from State v. Skillicorn, Case No.SC78864, Aug. 20, 2008
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TABLE OF AUTHORITIES
Cases
Aruanno v. Corzine, No. 07-5270 (AET), 2007 WL 4591378(D.N.J. Dec. 28, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Faulder v. Texas Bd. of Pardons and Paroles, 178 F.3d 343 (5th Cir. 1999). . . . . . . . 16, 17
Harbison v. Bell, 556 U.S. 180 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18
Herrera v. Collins, 506 U.S. 390 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hill v. McDonough, 547 U.S. 573 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Lewis v. State Dept. of Corrections, 139 P.3d 1266 (Alaska 2006). . . . . . . . . . . . . . . . 15, 16
Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998). . . . . . i, 8, 11, 12, 15, 16, 17
Tamayo v. Perry, 553 Fed. Appx 395 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Concentrated Phosphate Export Assn., 393 U.S. 199 (1968). . . . . . . . . . . 10
Wilson v. U.S. Dist. Court for Northern Dist. of California,
161 F.3d 1185 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17
Winfield v. Steele, No. 4:14CV1022 CDP, 2014 WL 2616904(E.D. Mo. Jun. 12, 2014) (Also at App. C1-C13). . . . . . . . . . . . . . . . . . . . .passim
Young v. Hayes, 218 F.3d 850 (8th Cir. 2000). . . . . . . . . . . . . . . . 8, 9, 12, 14, 15, 16, 18
Statutes
28 U.S.C. 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 1651(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2
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Rules of Court
U.S. Sup. Ct. R. 13.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fed. R. Civ. P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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PETITION FOR WRIT OF CERTIORARI
Petitioner John Winfield respectfully requests that a writ of certiorari issue to
review the order and judgment of the Eighth Circuit Court of Appeals, which vacated
a stay of execution entered by the United States District Court for the Eastern
District of Missouri on Mr. Winfields due process claim.
OPINIONS BELOW
The Eighth Circuits order and opinion on rehearing, vacating the stay of
execution, is unpublished and appears in the Appendix at App. A-1. The court of
appeals earlier panel-order denying respondents motion to vacate the stay is likewise
unpublished, and it appears in the Appendix at App. B-1. The district courts
memorandum and order granting a preliminary injunction and stay of execution is
unpublished and appears in the Appendix at App. C-1; the memorandum and order is
also available as Winfield v. Steele, No. 4:14CV1022 CDP, 2014 WL 2616904 (E.D. Mo.
Jun. 12, 2014). The courts formal entry of an injunction and stay appears in the
Appendix at App. D-1. The district courts order denying the defendants motion to
alter or amend the judgment is unpublished and appears in the Appendix at App. E-
1.
STATEMENT OF JURISDICTION
This Courts jurisdiction is invoked under 28 U.S.C. 1254(1). The state-
affiliated defendants appealed the district courts order granting a stay, and the Eighth
Circuit vacated the stay in its order and opinion on rehearing. App. A1. Petitioner
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also invokes the Courts jurisdiction under 28 U.S.C. 1651(a), which allows this
Court to issue all writs necessary or appropriate in aid of [its] jurisdiction. This
Court has ultimate jurisdiction over the due process claim that Mr. Winfield brought
in the district court and which remains pending there. Therefore, the Court has
authority to review the Eighth Circuits stay ruling in order to protect its eventual
jurisdiction. The Eighth Circuit issued its order and opinion on rehearing on June 17,
2014. This petition is therefore timely under Rule 13.1.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Section 1 of the Fourteenth Amendment to the United States Constitution
provides:
All persons born or naturalized in the United States, and subject to thejurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shallabridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without dueprocess of law; nor deny to any person within its jurisdiction the equalprotection of the laws.
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STATEMENT OF THE CASE
Petitioner John Winfield is scheduled to be executed by the state of Missouri at
12:01 a.m. on Wednesday, June 18, 2014. He brought suit in the United States
District Court for the Eastern District of Missouri after state officials intimidated a
prison employee who has worked with Mr. Winfield for years, and who intended to
give a sworn declaration in support of Mr. Winfields petition for executive clemency.
The district court conducted an evidentiary hearing on petitioners motion for stay of
execution and preliminary injunction, before granting both motions.
The district courts order summarized the evidence that was presented at the
hearing:
The evidence showed that on the weekend of May 17 and 18, 2014,Jessica Sutton, one of Winfields attorneys, came to the home of [thewitness], the laundry director at Potosi Correctional Center, where Winfieldis incarcerated. [The witness] supervised Winfield in the laundry at PCC1
for five years. In response to counsels request, [the witness] told counselthat he supported Winfields request for clemency, and that he was willingto provide a letter that could be included in a clemency request.
On Monday, May 19, 2014, [the witness] spoke to Brenda Ross, aPCC administrator assigned to deal with policy and legal issues. He askedher about the prison policy regarding letters supporting clemency, and shetold him that there was no policy either against it or in favor of it. She toldhim that it is up to the individual employee. She told him that if he didspeak to counsel or write a letter, he should be sure that it was clear he wasexpressing his own opinion and was not speaking for the Department ofCorrections. Several witnesses testified that it is also policy that staffmembers must report to their supervisors if they have any contact with
Counsel had approached [the witness] about a year ago and asked generally1
whether he would support Winfields clemency, but she did not actually ask him tosign anything until May of 2014.
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attorneys for an inmate.
That same day [the witness] told his supervisor at the time, LarryJody Glore, that Winfields counsel had come to his home and asked himto write a letter. Glore immediately called Warden Troy Steele to tell himabout the conversation, and Warden Steele told Glore that an attorneycoming to an employees home was a serious matter and that he should ask[the witness] for a written statement. Glore did so and [the witness]provided a written statement the next day. [The witness] told Glore that2
he did not intend to write a letter supporting clemency.
On Tuesday, May 20, 2014, James Nicholson, an investigator withthe Missouri Department of Corrections Investigator Generals office,summoned [the witness] to his office. He told [the witness] that he was
under investigation for alleged over-familiarity with Winfield. Nicholsontold [the witness] that there were allegations that he had met withWinfields family and attorneys. [The witness] denied ever meeting ortalking to the family, but admitted that he had met with counsel.
It is Missouri Department of Corrections policy that employees canwrite letters in support of clemency, so long as they do not indicate thatthey are speaking for the department. When a staff member is underinvestigation, he is not permitted to discuss the investigation or toparticipate in activities potentially relating to the investigation. [The
witness] believed that this policy meant he could not support plaintiffsclemency efforts while the investigation was pending. Nicholson confirmedto him that this was the case. At the conclusion of the conversation,Nicholson asked [the witness] to write a statement, which [the witness] did.In his statement, [the witness] denied that he had agreed to write aclemency letter.
Attorney Sutton came back to [the witnesss] home on May 22,2014, and provided him with a typewritten declaration that included thethings [the witness] had told her before about Winfield. [The witness] toldSutton that he was under investigation for over-familiarity and that he wasconcerned that signing the declaration could place his job in jeopardy.
After more discussion, he agreed to sign the declaration because Suttonagreed to redact it and remove all information that could identify him as
[The witness] wrote the statement to Glore after he learned he was under2
investigation.
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the person providing the declaration. He testified at the hearing that he wasconcerned about the public and his employer knowing his identity, becausepeople have different views on these issues. The declaration [the witness]signed is very favorable to Winfield. It states, among other things, thatalthough he did not disagree with the death penalty generally, he did notbelieve it was appropriate for Winfield. The declaration stated that
Winfield is in the elite 1% of all inmates. It described plaintiff as acompassionate and generous person who has the ability to mentor younginmates and change their lives. [The witness] stated that he had seen
Winfield help other inmates, was a very good worker, and had the respectof prison staff and other inmates.
At some later point, Sutton provided an additional draft declarationfor [the witness] to sign. This one included many of the same favorable
statements about Winfield, but also included statements to the effect that[the witness] feared for his employment because immediately after tellingpeople at the prison that he had spoken to Winfields counsel he cameunder investigation for over-familiarity. [The witness] did not sign thisstatement, and testified that he did not agree with the portion that said he
was concerned for his job.
On May 27, Sutton texted [the witness] and asked him if he hadreceived the new declaration. His wife, on his behalf, then texted thefollowing response from [the witnesss] phone:
Jessica, after considerable debate and discussion with my wife, Ihave decided that I cannot sign the declaration at this time due tothe current pending investigation. It is also my wish to rescind theredacted copy that I have already signed as well. Some concernshave arisen that Nancy and I have due to this current investigation,however, once I have received a final disposition of the unmeritedinvestigation in which is an utterly ridiculous claim ofover-familiarity, I will have no problem in signing either declaration.Sorry.
[The witness] did not talk to Sutton again.
On May 28, Nicholson provided a report finding the allegations ofover-familiarity to be unfounded. He sent the report to Warden Steele, butno one notified [the witness] of the results of the investigation until June4, when he was again interviewed by an investigator from the Inspector
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Generals office.
When counsel filed this suit on June 3, they filed the completesigned declaration under seal and ex parte and filed the redacted copy inthe public file. On June 4, 2014, after hearing news reports indicating thata correctional officer at PCC was under investigation for assisting
Winfields counsel in clemency proceedings, the MDOC Inspector Generalsent Paul Wilson to PCC to investigate the news reports. He conducted a
very lengthy interview of [the witness]. During the interview he told [thewitness], for the first time, that the over-familiarity investigation had beenconcluded and the allegations had been deemed unfounded.
[The witness] testified that he had gone back and forth in trying todecide whether to assist Winfield. When he was questioned by prison
officials, however, [the witness] consistently denied signing a letter oragreeing to help Winfield in any way. After Wilson repeatedly told him thatit would be fine if he had signed something, [the witness] ultimatelyadmitted that he had provided the statement to Sutton. Wilson said, You
wont be in any trouble for providing something that you are allowed toprovide.... If you did, ... thats fine ... but dont feel like you have to say no,you didnt, because you think you might be in trouble for it, because youare not. After that statement, [the witness] admitted that he had signed thedocument.
At the hearing, and when he spoke with Wilson, [the witness] deniedever being threatened. Similarly, he told Sutton that no one had directlythreatened him. Sutton testified, however, that [the witness] told her he
was very concerned for his job and believed the investigation wasprompted by his cooperation with Winfields attorneys. [The witness]stated several times that he found it was odd or weird that theinvestigation began the day after he told prison officials that he had spokento Winfields counsel, and that he was concerned about the investigation.
When Wilson questioned him repeatedly about whether he had beenthreatened, [the witness] said he had not.
But [the witness] also told Wilson that he did, in fact, feelthreatened. He stated: I am still apprehensive. And I do feel threatened.I feel threatened and no I am not going to write a letter. I am not going tosign something like this right here. Was there a redacted copy? Sure there
was a redacted copy. [The witness] confirmed at the hearing that he nolonger wants to provide a letter or support for Winfields request for
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clemency.
Defendants presented evidence that the investigation into [thewitnesss] over-familiarity with Winfield was begun because of a reportfrom another inmate. In late December and early January an inmate wroteletters to a correctional officer indicating that [the witness] was suspiciouslyclose to Winfield, that [the witness] had visited Winfields family and talkedto his death penalty attorney, and that prisoners who worked in the laundryunder [the witnesss] supervision were extorting money from otherprisoners. The complaint indicated that the inmates working in the laundry
were making significant money from customers, that is, from otherinmates for whom they provided additional laundry services such assorting, folding, and pressing, and were pressuring non-customerinmates to pay by not providing them with good service. The letter
indicated that inmates had reported this money-making venture to [thewitness], but he did not do anything to stop the practice. In March,Warden Steele asked the Inspector General to investigate the inmatesallegations. These are the allegations that Nicholson ultimately beganinvestigating on May 20, the day after Warden Steele and other officialslearned that [the witness] had spoken to Winfields attorney. Nicholsonchose not to investigate the allegations about laundry workers charginginmates for services, because he was only concerned with the allegationsof over-familiarity, as he considered those to be a threat to the security ofthe institution. In addition to interviewing [the witness], Nicholson also
interviewed Glore and Ross, again focusing on [the witnesss]communications with Winfields lawyers.
App. C2-C8.
The defendants, for their part, made no legal defense of the states conduct. In
opposing the motions for stay and preliminary injunction, defense counsel argued
only the facts, contending that Mr. Winfields claim is factually meritless, and that
prison officials never threatened the correctional officer at issue. App. H1-H3.
Counsel likewise withheld the states current arguments from the evidentiary hearing.
App. G. The defendants opening and closing statements referred merely to the facts
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and evidence, and counsel urged his theory that the witness was never threatened by
any personnel of the Missouri Department of Corrections. App. G4, G153-G154.
The defendants never argued that clemency affords only limited protections or that
due process is indifferent to the coercion of witnesses, they never cited Ohio Adult
Parole Authority v. Woodard, 523 U.S. 272, 289 (1998), and they never urged that Mr.
Winfields claim fails because he was not completely and utterly denied all access to
the clemency process or subjected to a coin-flip.
The district court granted a stay of execution as well as a preliminary injunction
based on the evidence presented. App. C8-C12. At the outset, the court observed that
It is a violation of due process for state officials to frustrate a state-created clemency
procedure by threatening the job of a witness, citing the Eighth Circuits opinion in
Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). The court then analyzed Mr.
Winfields claim under the considerations described in Hill v. McDonough, 547 U.S.
573, 583-84 (2006). First, it ruled that Mr. Winfield is likely to prevail on the merits of
his due process claim. Mr. Winfield is likely to be able to prove that [the witness], in
fact, changed his decision because of the over-familiarity investigation. App. C10.
The court acknowledged investigator Nicholsons testimony that it was a coincidence
that he informed the witness that he was a suspect in an investigation of over-
familiarity the day after the witness informed the policy coordinator and his boss
about his contact with petitioners lawyer. Nevertheless, the court found it unlikely
that a trier of fact would believe that evidence, given the fact that no meaningful steps
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had been taken on the over-familiarity investigation for months, and that the
investigation narrowed from its initial scope in January 2014 to a particular focus on
the witnesss contact with petitioners counsel. App. C11.
The court therefore found substantial evidence that the departments actions
caused [the witness] to fear that his employment would be negatively affected if he
continued to support clemency. And there is substantial evidence that [the witness]
was, in fact, deterred from supporting the request for clemency Id.
The court next found that the other relevant considerations favored a stay. It
observed that the risk of irreparable harm to petitioner is obvious, that the balance
of harms favored petitioner despite the states interest in carrying out executions
without federal interference, that the public interest favors due process, and that Mr.
Winfield did not unreasonably delay his claim by filing suit on June 3, considering
that the claim had ripened on May 27 when the witness rescinded his sworn
statement. App. C11-C12.
The district court then considered the issue of mootness. It rejected the
defendants argument that the case became moot when they cleared the correctional
officer of over-familiarity on May 28, or at least when they informed him of that
decision on June 4. The court reasoned that respondents were simply invoking their
own voluntary cessation of illegal activity, and that such a party bears a heavy
burden to show that the wrongful behavior cannot reasonably be expected to recur.
App. C12, citing Young, 218 F.3d at 852. The case was non-moot, the court ruled,
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because the defendants had not proven that the Department of Corrections would
not further coerce the witness or interfere with his or other employees efforts to
support petitioners clemency. App. C13. Relying on the witnesss testimony that he
did not want his declaration to be submitted to the Governor, the court observed that
a trier of fact might infer that [the witnesss] current unwillingness to support
Winfields clemency is the result of ongoing pressure from the defendants. Id.
Defendants moved to alter or amend the courts ruling under Fed. R. Civ. P.
59(e). In support of their motion, defendants informed the court they themselves had
presented the sworn declaration to the Governors counsel. SeeECF Doc. 19-4.
Defendants therefore urged that Mr. Winfields claim was moot, since the Governor
had been provided with the witnesss favorable statement. ECF Doc. 19 at 3. The
district court disagreed. Denying the motion, it ruled that the trier of fact could
reasonably find that the witness and potentially other correctional employees remain
under a substantial restraint as a result of the earlier actions of the defendants. App.
E-2. The court reiterated its earlier ruling that the defendants had not satisfied their
heavy burden of demonstrating that subsequent events had made it absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to recur.
Id., quoting Young, 218 F.3d at 852 (quoting United States v. Concentrated Phosphate
Export Assn., 393 U.S. 199, 203 (1968)).
Defendants next moved the Eighth Circuit to vacate the district courts order.
SeeWinfield v. Steele et al., 8th Cir. Case No. 14-2392 (motion filed June 13, 2014).
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Defendants argued, for the first time, that the facts alleged and proven by Mr.
Winfield did not violate due process, because they were not tantamount to a coin
flip or a prisoners complete denial of access to the clemency process as discussed
by Justice OConnors concurrence in Ohio Adult Parole Authority v. Woodard, 523 U.S.
272, 289 (1998). Defendants next argued that Mr. Winfield had not shown a
reasonable probability that the states interference would make a difference in the
Governors decision, in light of petitioners heinous underlying crime. And
defendants reiterated their claim of mootness, contending that they mooted Mr.
Winfields claim by presenting the sworn declaration to the Governor.
A panel of the Eighth Circuit denied the motion to vacate by a vote of 2-1.
App. B1-B5. Judge Colloton dissented. The dissent argued that the circumstances of
this case were not comparable to Justice OConnors two examples of arbitrariness in
Woodard, and that Mr. Winfield lacks a viable due process claim because the
defendants below gave the witnesss sworn declaration to the Governor. Id.
The defendants petitioned for rehearing, which the court of appeals granted
and thereby dissolved the stay over the dissents of four judges. App. A1-A14. The
majority reasoned that Justice OConnors hypothetical examples serve as the level of
due process required on clemency review, and it ruled that Mr. Winfield is unlikely to
prevail on his claim because the states practices here do not approach the
arbitrariness contemplated by Justice OConnor in Woodard: a coin flip or an arbitrary
denial of access to any clemency process. App. A6. The majority also reasoned that
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Winfield had been made whole by defense counsels having delivered the witnesss
statement to the Governor. Id.Judge Gruender separately concurred, arguing that the
Eighth Circuit should overrule its precedent in Young v. Hayesbecause it is
inconsistent with Justice OConnors controlling opinion in Woodard. App. A7-A8.
Judges Murphy, Bye, Melloy, and Kelly dissented over the course of two
separate opinions. App. A9-A12. Judge Murphy stated that the examples provided by
Justice OConnor in Woodardare merely examples, and that Justice OConnors
hypothetical should not be read to set a firm boundary delineating the only two
cognizable claims of clemency procedures which violate due process. App. A10.
Judge Murphy also disagreed with the courts view that defense counsel cured Mr.
Winfields injury by delivering the witnesss declaration to the Governor. There is a
significant difference between the governor receiving a committed voluntary
statement in support of clemency and a later disavowed statement sent on behalf of a
pressured witness. App. A11. To conclude otherwise would ignore reality. Id.
Judge Bye dissented for similar reasons. He noted that the Eighth Circuits
precedents indeed involve only the minimal requirement that the state abide by its
own procedures. App. A12. Judge Bye pointed out that Missouris statutes require all
persons to give relevant information to a clemency board of inquiry, App. A13, just
as the Eighth Circuits earlier precedent noted that the Governor may consider any
evidence in support of clemency and that the states threatened firing of a witness
amounts to the crime of witness-tampering. SeeYoung, 218 F.3d at 853. App. A13.
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And he agreed with Judge Murphy that the state actors did not eliminate the due
process violation by delivering the sworn declaration to the Governor. App. A13-
A14. A reasonable trier of fact could conclude that the witness changed his mind
because of ongoing pressure, and Judge Bye therefore concluded that it was not an
abuse of discretion for the district court to conclude that intimidation and
interference could be reasonably expected to recur. App. A14.
This urgent petition follows.
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REASONS WHY THE WRIT SHOULD BE GRANTED
The Court should grant certiorari to clarify the type and extent ofminimal due process safeguards that attach to clemency
proceedings.
For present purposes, the state does not challenge the district courts factual
finding of state interference. It accepts the district courts finding of sufficient
evidence to prove that the correctional officer became and remains unwilling to
support clemency because of ongoing pressure from the defendants. App. C10-
C11, C13. At issue is whether that interference creates a viable due process
claimwhich it did under prevailing Eighth Circuit precedent until today. SeeYoung v.
Hayes, 218 F.3d 850, 853 (8th Cir. 2000) (The Constitution of the United States does
not require that a state have a clemency procedure, but, in our view, it does require
that, if such a procedure is created, the states own officials refrain from frustrating it
by threatening the job of a witness.).
This Court recently reaffirmed the essential role of clemency in assuring the
fairness of our criminal justice system. Harbison v. Bell, 556 U.S. 180, 192 (2009).
Clemency is deeply rooted in our Anglo-American tradition of law, and is the
historic remedy for preventing miscarriages of justice where judicial process has been
exhausted. Id., quoting Herrera v. Collins, 506 U.S. 390, 411-12 (1993). It is the
fail-safe of our criminal justice system, and above all, for prisoners facing the
ultimate punishment. Harbison, 556 U.S. at 192 & n.10.
The Court recognizes that clemency is more than a matter of mercy alone,
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id., but the degree of fairness it must afford remains unclear. The controlling
authority is Justice OConnors concurrence in Ohio Adult Parole Authority v. Woodard,
523 U.S. 272 (1998). Justice OConnor opined that some minimalprocedural
safeguards apply to clemency proceedings. Id.at 289 (emphasis in original). As
examples of proceedings that might fail this standard, Justice OConnor described a
scheme whereby a state official flipped a coin to determine whether to grant
clemency, as well as a case where the State arbitrarily denied a prisoner any access
to its clemency process. Id.
Lower courts have since struggled to define the minimal process that is due.
Cases from the Ninth and Eighth Circuits suggest that Justice OConnors examples
are just that: examples, rather than constitutional sub-floor resting just beneath the
minimum. See Wilson v. U.S. Dist. Court for Northern Dist. of California, 161 F.3d 1185
(9th Cir. 1998); Young v. Hayes, 218 F.3d 850 (8th Cir. 2000). The prisoner in Wilson
alleged that the clemency authority misled his counsel about the issues that would be
considered. Among other problems, counsel was told the governor would not
consider evidence negating the prisoners guilt, only to be informed that clemency
was denied because no such evidence was presented. The Ninth Circuit upheld the
district courts grant of a temporary restraining order on the prisoners execution, and
it held that the allegations stated a viable due process claim. Wilson, 161 F.3d at
1186-87; accordLewis v. State Dept. of Corrections, 139 P.3d 1266, 1270 (Alaska 2006) (If
a prisoner relies on a particular basis recognized by the state as a potential ground for
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clemency, the prisoner must have a fair opportunity to make a factual showing that
the ground has been satisfied.).
In Young, a prosecutor threatened to fire one of her subordinates, who wished
speak in support of a condemned inmates petition to the governor. The Eighth
Circuit reversed the district courts dismissal of the suit and stayed the prisoners
execution. It reasoned that a state agent had deliberately interfered with the
prisoners efforts to present evidence to the governor. Young, 218 F.3d at 852-53.
Such official conduct is fundamentally unfair because it unconscionably interferes
with a process that the State itself has created. Id.at 853.
Of course, the prisoners in Wilsonand Youngwere merely limitedin their
clemency effortsfor example, by the States squelching of a single witness. Both
prisoners suffered a lesser violation than a case where the State arbitrarily denied a
prisoner any access to its clemency process. Woodard, 523 U.S. at 289 (OConnor, J.,
concurring). Yet, both stated valid due process claim, and both obtained stays of
execution.
By contrast, the Fifth Circuit follows a more restrictive view, under which
Justice OConnors examples serve as a species of constitutional sub-floor: a coin flip
might not comport with due process, but anything less arbitrary is permissible. See
Faulder v. Texas Bd. of Pardons and Paroles, 178 F.3d 343 (5th Cir. 1999). In Fauldera
death-sentenced prisoner argued, among other things, that the Texas clemency
authority gave him inadequate notice of the issues it would consider, met in secret,
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and failed to explain its decisions. The Fifth Circuit found no due process violation.
It recited Justice OConnors two examples, and it observed that Faulders clemency
procedures exhibited neither of these extreme situations. Id.at 344-45. The Fifth
Circuit continues to enforce Fauldertoday. See Tamayo v. Perry, 553 Fed. Appx 395,
400-01 (5th Cir. 2014); accordAruanno v. Corzine, No. 07-5270 (AET), 2007 WL
4591378 at *5 (D.N.J. Dec. 28, 2007) (rejecting prisoners claim because New Jersey
has neither denied Plaintiff access to its clemency process nor arbitrarily denied
clemency based on the flip of a coin).
The split of authority is dispositive of Mr. Winfields due process claim. If the
Fifth Circuits view is correct, then even witness-tampering does not violate due
process, so long as the clemency procedure is marginally less arbitrary than a coin-flip
and the prisoner has not been wholly denied access to it. Indeed, that is the very
position taken by the state below and embodied in the court of appeals final order
and opinion. App. A5-A6. On the other hand, the Eighth Circuits view in Youngand
the Ninth Circuits opinion in Wilsonrecognize a right to some basic modicum of
fairness falling short of trial procedures but exceeding the fairness of a gubernatorial
coin-flip. There is no dispute here that Mr. Winfield has not been wholly denied any
access to [Missouris] clemency process. Woodard, 523 U.S. at 289 (OConnor, J.,
concurring). And yet, the more permissive post-Woodardlaw recognizes his viable
claim: The Constitution of the United States does not require that a state have a
clemency procedure, but, in our view, it does require that, if such a procedure is
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created, the states own officials refrain from frustrating it by threatening the job of a
witness. Young, 218 F.3d at 853.
The Court should grant certiorari to resolve this ongoing conflict and to
provide needed guidance to the lower courts and state officials alike. The fractured
opinions below reflect the confusion that reigns in this area of the law. Clemency
cannot serve as the fail-safe of our criminal justice system, Harbison, 556 U.S. at
192, without a clearer consensus of what modest process is due.
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,
/s/ Joseph W. LubyJoseph W. Luby, Mo. Bar 48951Jessica Sutton, Mo. Bar 63600
Death Penalty Litigation Clinic6155 Oak Street, Suite CKansas City, MO 64113816-363-2795
Attorneys for Petitioner John E. Winfield