Mo. death penalty foes ask Nixon to stop execution of Southeast Missouri man

JEFFERSON CITY, Mo. -- Death penalty opponents and the attorney for a Southeast Missouri man convicted and sentenced to death in a 1994 murder-for-hire plot are asking Gov. Jay Nixon to stop what would be the state's first execution in nearly two years.

Richard Clay, 45, is scheduled to die Jan. 12 for the slaying of Randy Martindale. Prosecutors say Clay killed the Missouri Bootheel car dealer at the request of Stacy Martindale, who was having an affair with a friend of Clay's.

A federal judge threw out Clay's 1995 conviction six years later and ordered a new trial, but an appeals court reinstated the conviction and death sentence in 2004.

Clay's case was one of seven in which judges found prosecutorial misconduct, overturned convictions on appeal or raised questions about the courtroom tactics of former statewide prosecutor Kenny Hulshof, a Republican who later served six terms in Congress and ran unsuccessfully for governor in 2008 against Nixon -- his former boss as attorney general.

The disputed Hulshof cases include those of Dale Helmig, who was freed on bond last month pending a state appeal after a northwest Missouri judge overturned his 1996 conviction for killing his mother; and Josh Kezer, who was released in 2009 after nearly 16 years in prison after a judge ruled that key evidence was kept from Kezer's defense attorneys.

Similar allegations were raised against Hulshof and former New Madrid County prosecutor Riley Bock in the Clay case. Clay's friend Chuck Sanders, who was involved with Martindale's wife, testified in 2001 that he lied about the 10-year sentence he expected to receive as a plea bargain. He eventually received five years of probation. Stacy Martindale was convicted of second-degree murder in her husband's death and sentenced to 15 years in prison.

Hulshof, who is now in private practice, declined an interview request Monday through a spokeswoman at the Kansas City law firm of Polsinelli Shughart, where he works.

Bock called the attempts by Clay's supporters to emphasize Hulshof's record in other cases misguided.

"This was not Kenny's case. This was my case," he said. "He assisted me, but that's all he did. I called the shots and made the decisions.

"I don't think there's any question [about Clay's guilt]," added Bock, who stepped down as prosecutor in 2002 and is now New Madrid County's public administrator.

The 2001 ruling by U.S. District Court Judge Dean Whipple notes that Hulshof mentioned in his closing arguments at Clay's trial that "Chuck Sanders is going to get 10 years in prison."

Jennifer Herndon, an attorney appointed to Clay by the appeals court, told reporters at Tuesday's event that the appellate judge's decision to deny the retrial "was just plain wrong."

The appellate judge said "not that the [potentially exculpatory] evidence wasn't true, or didn't exist, [he said] it wasn't material," Herndon said.

Because one witness had testified about seeing two witness in car (that would have put Clay away from the murder scene) the judge opined that three others would not have made a difference, Herndon added.

"But the truth in really looking at the record -- which the appellate court didn't live with for the past 12 years like I have and didn't go out and talk to the witnesses and maybe didn't even realize -- is that when that witness testified, it was anything but clear that he saw two people," she said.

Though the legal team is out of appeals and the district court has refused to approve any more funding of the defense, Clay's advocates can still petition the Missouri Supreme Court to prevent the execution on the grounds that he is innocent.

Kezer -- who joined Clay's parents, two sisters, 22-year-old son and other family members and supporters at a the news conference -- handed Herndon a $10,000 check, part of the proceeds from a multimillion-dollar settlement of a wrongful conviction lawsuit against Scott County.

"Now, I don't want it misinterpreted that I'm going to pay for every investigation that's done," Kezer said. "But when it comes to Kenny Hulshof, I'm convicted in my heart, I believe in my heart, that that man has railroaded lives. He's built his career on the bodies of other people. And enough is enough."

As a further show of support, he then tore up four cherished photos taken the day he was released from prison.

"You kill that man, you're saying my day of release didn't mean anything," Kezer said.

Kezer also said he has filed a complaint against Hulshof with the state Office of Chief Disciplinary Counsel, which has the power to reprimand and disbar Missouri lawyers.

Herndon said that in addition to the clemency request she also plans to file a request for an emergency stay of execution and a new appeal with the Missouri Supreme Court later this week.

Herndon said she wasn't optimistic about the request before Nixon, who has never granted a clemency request or pardon. She suggested that Nixon will be even less inclined to essentially overturn a decision made under his watch as attorney general.

"What we're saying is, 'He was convicted because of you,'" she said. "So how can he be in a position to make a clemency decision?"

Nixon spokesman Scott Holste said the governor "will make a determination after a full and fair review."

Missouri News Horizon writer Rebecca Townsend contributed to this report.