Condemned inmate questions selection of Cape County jury

JEFFERSON CITY, Mo. -- Faulty jury selection procedures in Cape Girardeau County warrant a new trial for death row inmate Terrance L. Anderson, his attorney argued Wednesday before the Missouri Supreme Court.

Anderson's attorney said the "master list" of potential jurors compiled by the circuit court clerk contained substantially fewer names than required by law and that the clerk exceeded his authority in excusing jurors for reasons not authorized by statute.

The state's attorney countered that any problems with the county's process were merely "structural" and there was no evidence the result was a jury biased against Anderson.

A Cape Girardeau County jury convicted Anderson of two counts of first-degree murder for the July 25, 1997, shooting deaths of Stephen and Deborah Rainwater in their Poplar Bluff, Mo., home. The Rainwaters were the grandparents of Anderson's then-infant daughter.

The jury sentenced Anderson to death for Deborah Rainwater's murder and life in prison without possibility of parole for killing Stephen Rainwater. The trial was moved from Butler County.

Court documents submitted by the defense allege Cape Girardeau County Circuit Court Judge William Syler committed a litany of erroneous rulings during the January 2001 trial that should result in the convictions and sentences being overturned.

However, Wednesday's oral arguments focused solely on jury issues.

750 names on list

State law requires a randomly chosen jury pool of at least 5 percent of a county's population. Public defender Janet Thompsen said Cape Girardeau County's list of potential jurors should have included about 3,000 names.

However, the pool in this case was limited to 750 names, or 1.2 percent of the county's population. Thompsen said that limited the likelihood that a representative cross section of the county's adult residents would make the pool.

"Seven-hundred and fifty ain't 5 percent; that's the bottom line," Thompsen said. "And that is the problem with what is going on in Cape Girardeau County."

In particular, Thompsen said the smaller pool reduced the number of blacks likely to be called for jury service. Anderson is black.

Thompsen also claimed Charlie Hudson, county Circuit Court clerk, exercised "unfettered discretion on who can and can't serve" on county juries. Specifically, she said Hudson struck people from the jury pool for reasons not mentioned in law, such as those who had planned vacations, whose jobs required frequent travel or who had medical reasons for not wishing to serve. She said only a judge has the power to excuse such people.

Judge Michael A. Wolff asked if that wasn't a common practice among clerks.

"Doesn't that happen a lot around the state?" Wolff asked. "Someone says 'I'd rather be somewhere else,' and they say "Go ahead, be somewhere else.'"

Thompsen conceded it probably occurs frequently, but that doesn't mean the practice conforms with the law.

No evidence of bias

Assistant attorney general Breck Burgess said the defense offered no proof that Anderson was denied a fair trial because of the county's jury selection practices.

"I think they have to show something happened in this case, not just that there was a policy that may have affected other panels but not this panel," Burgess said.

There was no evidence Hudson or anyone else attempted to keep blacks out of the jury pool, Burgess said.

In relation to the overall population, Burgess said blacks were over-represented among those called for jury selection in this case. Of the 133 potential jurors who showed up for service, 5.2 percent were black. He said blacks constitute 4.5 percent of the county's population. The 12-member jury that heard the case included one black member.

Judge Laura Denvir Stith asked if the state's position was that the county's non-compliance with the 5 percent rule should be overlooked in this case. Stith noted the court typically doesn't ignore statutes.

"As long as the end result is fair and the defense can't show prejudice, there is no problem," Burgess said.

The court is expected to rule within 60 days.

Anderson, 26, remains incarcerated at the Potosi Correctional Center.

mpowers@semissourian.com

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