Clemmons was convicted and sentenced to death in 1987 for killing Henry Johnson, a prisoner at the Missouri State Penitentiary, when Clemmons was incarcerated there. After granting rehearing by panel, the Eighth Circuit overturned Clemmons’ conviction and death sentence.
Brady: At trial, the state withheld an inter-office memo by Department of Corrections Captain Gross detailing an interview with a prisoner (Clark) who saw two people stabbing the victim, neither of whom were Clemmons. Although “the State’s case would have remained strong even with the new evidence, and [] the jury could still have reasonably determined that Clemmons was guilty,” the Eighth Circuit found a reasonable probability that the verdict would have been different were it not for this constitutional violation. 124 F.3d at 951. “We cannot say with confidence that the jury would have reached the same verdict when presented with an eyewitness who accused a different inmate of the crime within an hour of the murder, the very same inmate that three other witnesses had also accused of the crime.” Id.
Brady, Procedural Default: Clemmons’ Brady claim was not pursued on state post-conviction appeal. Although ineffective assistance of counsel could not constitute cause to excuse the default in this pre-Martinez case, the Eighth Circuit held that claim had not been defaulted at all because Clemmons had specifically asked his attorney to raise the claim on appeal and when his attorney refused to raise it, Clemmons tried to file the claim, pro se, in a supplemental brief. The Missouri Supreme Court rejected Clemmons’ request for leave to file the pro se brief, but the Eighth Circuit concluded “We do not know what else he could have done, as a practical matter, to present the claim to that Court for decision on the merits.” 124 F.3d at 948.
Nor did the failure to call Clark as a witness at the 29.15 hearing amount to a procedural default. Clemmons did introduce Clark’s statement (in the Gross memo) in 29.15 proceedings and Missouri law did not obligate Clemmons to do any more than that to provide the factual basis of his claim. 124 F.3d at 950.
Confrontation Clause: Captain Gross testified by deposition that Clemmons had stated “I guess they got me,” shortly after the murder. The deposition, which was taken without Clemmons’ knowledge, was admitted at trial without Clemmons’ consent. 124 F.3d at 952. The State did not show that the violation was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967).
Confrontation Clause, Procedural Default: The State made several arguments for why the Confrontation Clause Claim was procedurally barred, none of which persuaded the Eighth Circuit. Clemmons’ lawyer did not raise this claim on direct appeal or in state post-conviction. In a successive motion to recall the mandate filed seven years after the rejection of his direct appeal, Clemmons claimed his appellate counsel was ineffective for failing to raise the confrontation clause claim. Because there is no regularly followed Missouri law that prohibits the filing of successive motions to recall the mandate, the Eighth Circuit declined to find that such a procedural bar existed. 124 F.3d at 953-954. The Court further held that the failure of Clemmons’ direct appeal lawyer to raise the confrontation clause claim on appeal provided cause for the default. Id. at 954.Acquitted on retrial: In February 2000, Clemmons was retried for the murder of Henry Johnson and acquitted in less than 3 hours.