Missouri Case Illustrates the Reality of Juror Regret in Capital Cases and the Danger of the Death Penalty’s Finality

Posted in: Criminal Law

On June 6, while America marked the anniversary of the 1944 D-Day invasion, the state of Missouri put Michael Tisius to death. He was executed for murdering two guards in 2000 during an aborted attempt to help an inmate escape from jail.

At first glance there was nothing remarkable about the Tisius execution. After all, the death penalty has been used in Missouri since 1810 when Peter Johnson was hanged for murder.

According to an article in Missouri Lawyers Media:

As of February 2023, Missouri [had] carried out 95 executions since the U.S. Supreme Court reinstated the death penalty as a constitutionally permissible punishment in 1976. The state accounts for about 6 percent of the 1,564 death sentences carried out nationwide during that time. Overall, Missouri is one of the most prolific in use of the death penalty; only Texas, Oklahoma, Virginia and Florida have executed more people in that span.

And Missouri has carried out three of the 12 executions that have occurred in the United States so far this year. Today there are 15 people on its death row.

Tisius, who had been on death row for 22 years, was killed by a single dose of pentobarbital.

Like many who face death sentences, Tisius had been “neglected and abused as a child by his family.” In the run up to his execution, his lawyers had argued that “late adolescents” between the ages of 18 and 21 should be spared from the death penalty because their brains are not fully developed.

The Kansas City Star reports that Tisius also expressed “everlasting remorse” for his crime.

But one thing that made the Tisius execution stand out was a remarkable change of heart by several of the jurors who initially had voted to sentence him to death in 2010. Six of them joined in supporting Tisuis’s clemency petition.

They tried without success to convince Missouri’s Governor, Mike Parsons, to commute his sentence to life in prison without parole.

The Death Penalty Information Center quotes from affidavits the jurors submitted in support of Tisius’s clemency petition. One juror said, “I believe that people can change and should get second chances.” Another reported that, “At this time, based on what I have learned since the trial, I would not object if Mr. Tisius’s sentence were reduced to life without parole.”

A third juror acknowledged, “I feel angry and remorseful. I feel that I wronged Michael. … I hated having a part in somebody dying.”

They changed their minds when they learned of new information about Tisius’s abusive childhood and mental health issues, along with his good behavior in prison.

Two of the jurors told the New York Times that “they have been haunted by their experience. One woman who served as an alternate said she has suffered from anxiety, sleeplessness and guilt. If she had been allowed to vote, she said, she would not have chosen the death sentence.”

Another juror explained that during the trial, “he felt it was a crucial fact that Mr. Tisius had killed more than one person. Mr. Tisius had an opportunity to stop before shooting the second jail employee,… [b]ut now he said he knows, based on what he was recently told by Mr. Tisius’ legal team, that doctors who have examined him concluded that he had mental deficiencies that could have impaired his decision-making. And Mr. Smith has learned about medical research showing that the frontal lobe of the brain is not fully developed in the teenage years.”

The Times quotes law professor Juandalynn Taylor who explains that “Jurors change their minds all the time. But if no one goes and asks them and discovers it, then we don’t find out about it in public.”

For example, in another Missouri case, evidence of possible innocence changed the minds of former jurors in the case of Walter Barton, who was executed in 2020.

And, in 2022, lawyers for Richard Fairchild presented affidavits from two jury members as part of their unsuccessful effort to persuade Oklahoma’s Pardon and Parole Board to spare his life. The jurors said, “They would not have recommended the death sentence if Fairchild’s known brain injuries at the time were presented during trial by the defense.”

Whether they subsequently change their minds or not, serving on a jury in a capital case is often psychologically disturbing to the people who have to make life-and-death decisions. As the journalist Andrew Guthrie Ferguson notes, “Jury service is stressful. Jurors internalize both the difficulty of deciding another’s fate, as well as the emotional toll of bearing witness to tragic events.”

Ferguson reports that “A National Center for State Courts report found that 70 percent of all jurors feel some stress.” Not surprisingly, “the greatest difficulty often lies in homicide and death penalty trials, in which jurors not only share the burden of imposing guilt (or even death), but are necessarily confronted with the loss of life that led to the case. Some jurors even report physical ailments, including headaches, nightmares, and symptoms consistent with post-traumatic stress disorder.”

As one mental health professional rightly asked “Who’s taking care of the jurors? These are average, every-day people who have been called in for service. They would never want to listen to any of this horrific testimony, but it’s their job to do just that.”

The trauma of serving on a death penalty jury is compounded when, as in the Tisuis case, jurors learn about new evidence that was unavailable to them when they made their sentencing decision.

This is another reason that we should end the death penalty in this country. As the political theorist George Kateb observes, “The US Constitution teaches the proper democratic attitude towards punishment, which is that punishment should be done reluctantly and leniently.”

And, in a constitutional democracy, no judgment ever should be permanent and irrevocable, impervious to new evidence and the reality that humans, even those who commit horrible crimes, can change in profound and important ways.

A decent society should welcome such redemptive change and keep alive the possibility that it will justify looking again and revising our judgments. Justice requires such openness. The death penalty forecloses it.

Posted in: Criminal Law

Tags: Death Penalty, Missouri

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