Case Facts: The Chain of Rocks Bridge is a highway bridge over the Mississippi River that formerly permitted traffic to travel between Illinois and Missouri before authorities closed the bridge to vehicular traffic. Julie and Robin Kerry arranged to take their visiting cousin, Thomas Cummins, to the bridge to show him a graffiti poem they had painted there several years earlier. On April 4, 1991, at approximately 11:25 p.m., the two sisters and Cummins went to the bridge.

Earlier that evening, Reginald Clemons, along with Marlin Gray, Daniel Winfrey, and Clemons cousin, Antoino Richardson, met at a mutual friend’s home. They drank beer and smoked marijuana. Gray suggested that they go to the Chain of Rocks Bridge. About 11:00p.m., Clemons, Richardson, Gray and Winfrey drove in two separate cars to the bridge. Parking near the Missouri end of the bridge, the foursome went through a hole in the fence, over a pile of rocks blocking the bridge entrance to vehicles, and onto the bridge deck. They attempted to smoke a joint of marijuana, but found the marijuana too wet to light. The group walked back toward their cars. They left behind a long metal flashlight that Richardson brought to the bridge.

The Kerry sisters and Cummins arrived at the bridge sometime after Clemons and his friends. The Kerrys and Cummins made their way onto the bridge deck and walked toward the Illinois end of the bridge. They encountered Clemons and his companions, who were headed back toward the Missouri side. The two groups briefly chatted. One of the Kerry sisters gave Winfrey a cigarette. Gary showed the Kerrys and Cummins how to climb over the bridge railing and come back up through a manhole in the bridge deck. He told Cummins that the manhole was "a good place to be alone, and take your woman." The two groups parted, heading in opposite directions. Cummins and the Kerry sisters stopped to look at the graffiti poem and then continued walking toward Illinois.

In the meantime, Clemons and his friends had returned to the Missouri end of the bridge. As they lingered there, Clemons suggested to his companions, "Let’s rob them." Gray replied "Yeah, I feel like hurting somebody." Richardson suggested they rape the girls. Clemons agreed. The foursome walked back toward the Illinois end of the bridge. As they walked, Winfrey saw Gray talk to Clemons, after which Gray came to Winfrey and handed him a condom. Winfrey put the condom in his pocket and stated that he "wasn’t going to do it." Clemons grabbed Winfrey, pushed him toward the rail of the bridge, and threatened him until Winfrey agreed to "do it."

They caught up with the Kerry sisters and Cummins and ordered Cummins to lie on the ground. They raped the sisters and eventually ordered them into a manhole.

On the metal platform under the bridge, Cummins laid down next to Julie and Robin Kerry. They were ordered to get up and go towards the concrete pier below the platform. Julie was pushed off first, then Robin. Cummins was ordered to jump. He did. When he surfaced after his seventy-foot fall, he saw Julie nearby in the water and called for her to swim. Fighting the current and rough water, Julie grabbed Cummins, dragging them both below the surface. Cummins broke free. Julie did not reappear. Cummins eventually reached a steep riverbank and came ashore by a wooded area near the Chain of Rocks waterworks. Authorities recovered Julie’s body from the river near Caruthersville, Missouri, about three weeks later. Robin’s body is still missing.

St. Louis Post-Dispatch

"Gray is executed for Kerry murders," by Robert Patrick. (Tuesday, Oct. 25 2005)

BONNE TERRE - With a sheet covering him to his neck, Marlin Gray was executed by Missouri state employees early this morning for his role in the 1991 murders of two young women on the old Chain of Rocks Bridge.

Gray died by injection at 12:07 a.m. Before the drugs were applied, he smiled and appeared to mouth the words, "I love you" at witnesses. As the first drug took effect, he either smiled or grimaced, then he gasped and lay still.

Prosecutors said Gray was the mastermind of the robbery and murder that claimed the lives of Julie and Robin Kerry, who were thrown off the bridge. Robin's body has never been found.

Their cousin, Tom Cummins, was ordered to jump off the bridge, but he survived and testified at the trial of the three men and one teenager who were also on the bridge that night.

Daniel Winfrey, who was 15 at the time of the murders, is serving a 30-year sentence after pleading guilty to nine charges, including two counts each of second-degree murder and forcible rape, and agreeing to testify against the other men. Reginald Clemens is on death row. The Missouri Supreme Court reduced Antonio Richardson's death sentence to life in prison because he was sentenced to death by a judge, not a jury.

After the U.S. Supreme Court turned down Gray's final appeals Tuesday night and Missouri Gov. Matt Blunt denied clemency, one of Gray's lawyers issued a statement just before 6:30 p.m. "I continue to believe that he is innocent and that the imposition of the death penalty in his case is completely unjust and inappropriate," Joanne Martin Descher wrote. "I am deeply saddened over the outcome."

Blunt had released a statement about an hour earlier. "Missouri's highest courts and a jury of Marlin Gray's peers determined unequivocally that he should be held accountable for Julie and Robin Kerry's deaths," Blunt said. "I support the sentence issued and affirmed by both Missouri and U.S. Courts and believe justice has been served. My thoughts and prayers are with family and friends who mourn the loss of Julie and Robin."

In the days prior to the execution, Blunt received letters, e-mails, faxes and phone calls opposing the execution from campaigns run by Amnesty International and Missourians to Abolish the Death Penalty. A busload of Gray's supporters drove to Blunt's office Tuesday, and U.S. Rep. William Lacy Clay Jr., D-St. Louis, sent Blunt a letter Monday echoing those concerns. Blunt said in a statement following the execution, "Marlin Gray was found responsible for these deaths. The events of that night were heard before a jury and judges at every level, all of whom affirmed this just punishment...I carefully reviewed applications for clemency, and the legal proceedings' history and found no cause to justify pre-empting previous judicial proceedings."

Gray's advocates and opponents of the death penalty have argued that the 38-year-old was not on the bridge when Julie, 20, and Robin, 19, were pushed to their deaths. There were 67 opponents and 4 in favor of the death penalty outside the prison.

At his 1992 trial, Gray told jurors that he left the bridge to smoke pot, and that Reginald Clemens told him, "Man, I just robbed that guy and threw the girls into the river," when he returned.

In an interview Thursday, Gray said that when he returned to the bridge, Antonio Richardson said there had been an accident and the girls had fallen in the river.

Gray's supporters have also argued that Nels Moss, who prosecuted Gray, withheld potentially exculpatory evidence and unfairly swayed the jury by comparing Gray to Charles Manson.

In an e-mail message to the Post-Dispatch on Tuesday, Moss took issue with Gray's version of events that night and the statements of his supporters. "What Gray fails to say is he told his co-defendants that he 'felt like hurting someone that night,' and passed out condoms, according to Winfrey," Moss wrote. Moss said Gray also shared the money taken from the Kerrys and Cummins, congratulated Richardson on his bravery, and threatened to shoot Cummins if he resisted.

Moss said an internal affairs investigation did not substantiate Gray's allegation of a police beating, and that appellate courts have consistently failed to find misconduct in Gray's trial. "The Missouri Supreme Court in its opinion found that the jury had ample evidence to believe that Marlin Gray aided, encouraged and assisted in these rapes, robberies, assault and murders," Moss wrote.

Gray is the 66th man to be executed by injection in Missouri since the state resumed carrying out the death penalty in 1989.

Missouri Department of Corrections spokesman John Fougere said Gray declined a last meal and a sedative. He had told officials that no one would be present as a witness on his behalf, but it appeared that he had witnesses. The witnesses on behalf of Gray were a female cousin and her minister. Fougere declined to name either one.

The only victims' witness was Kevin Cummins, who is the girls' uncle according to Fougere.

In an interview Thursday, Gray said: "This is murder to me. I will not participate or let my family participate." Fougere said Gray, " was extremely calm and relaxed the whole day." In his final statement, Gray said, "I go forward now on wings built by the love and support of my family and friends. I go with a peace of mind that comes from never having taken a human life. I forgive those who have hardened their hearts to the truth and I pray they ask forgiveness for they know not what they do. This is not a death, it is a lynching."

ProDeathPenalty.Com

The Missouri Supreme Court has set an Oct. 26 execution date for Marlin Gray, one of four convicted for the April 1991 murder of two sisters on the Chain of Rocks Bridge in St. Louis. The office of Attorney General Jay Nixon represented the state against Gray’s appeals.

On the night of April 4, 1991, Gray and three companions — Reginald Clemons, Daniel Winfrey and Antonio Richardson — encountered the two sisters, Julie and Robin Kerry, and their cousin, Thomas Cummins. The two groups chatted briefly, then parted. After a few minutes, Gray and his group returned and sexually assaulted the sisters. The sisters and their cousin were pushed off the bridge. Cummins survived the 70-foot fall and swam ashore; Julie’s body was recovered in Caruthersville three weeks later. Robin’s body was never found.

"The brutal murder of these two sisters shocked the community, and the sensibilities of all decent Missourians," Nixon said. "A jury determined that the death penalty was appropriate in this case, and it is our duty to see that the sentence is carried out." A St. Louis Circuit Court jury found Gray guilty of two counts of first-degree murder and imposed two death sentences on Dec. 9, 1992. Winfrey, who was 15 at the time, received a 30-year sentence. Clemons was sentenced to death on April 9, 1993, and remains on death row awaiting execution. Richardson, who was also sentenced to death, had his sentence overturned on appeal to life in prison.

UPDATE: Marlin Gray, convicted of two counts of first-degree murder as an accomplice to the killings of two sisters in April 1991, was executed early Wednesday. Gray lifted his head off a gurney just before the first of three drugs was injected into his body and mouthed words to a few witnesses, then fell silent. He previously had said he didn't want any family members or friends to witness the execution. He was pronounced dead at 12:07 a.m.

Gray, 38, maintained his innocence in the deaths of sisters Julie and Robin Kerry on an abandoned Mississippi River bridge in St. Louis on April 4, 1991. He was convicted in 1992. Late Tuesday, the U.S. Supreme Court and Missouri Gov. Matt Blunt turned back appeals for Gray within minutes of each other. Gray's attorney, Joanne Descher, said she had received a call from the Supreme Court denying her motion to stay the execution and another request to review the entire case. "It's all been denied," she said.

Blunt issued a statement saying he had denied the clemency request, and said the Board of Probation and Parole had recommended clemency be denied. He said he carefully reviewed the case and found no reason to set aside earlier judicial decisions. "I support the sentence issued and affirmed by both Missouri and U.S. Courts and believe justice has been served," he said in a statement.

The Kerry sisters, Julie and Robin, were raped and pushed from the old Chain of Rocks Bridge the night they brought their 19-year-old cousin, Thomas Cummins, visiting from Maryland, to the youth hangout. Gray said that he, his friend Reginald Clemons and their acquaintances Antonio Richardson and Daniel Winfrey encountered the three couisins that night on the bridge and talked for a while. He claimed they left the bridge, but Richardson went back alone to retrieve a lost flashlight. When Richardson returned, he reported he'd seen Cummins acting frantic on the bridge, the sisters in the river, and spoke of an accident. Frightened, the four left. Nels Moss, who prosecuted the case, said Gray never did not present this version of the events at trial. He called Gray a "sociopath" who was unable to accept responsibility.

National Coalition to Abolish the Death Penalty

Do Not Execute Marlin Gray!

Missouri - Marlin Gray - Oct. 26, 2005

Marlin Gray, a black man, faces execution in Missouri on Oct. 26, 2005 for the deaths of Julie and Robin Kerry in St. Louis. On April 4, 1991 the Kerry sisters took their cousin Thomas Cummins to the nearby Chain of Rocks Bridge. While on the bridge the three cousins met Marlin Gray, Reginald Clemons, Daniel Winfrey, and Antonio Richardson. The two girls were reportedly raped and then pushed off the bridge. Cummins was then reportedly told to jump, which he did. Marlin Gray was 23 years old at the time of the murders and had never been convicted of a felony before. There are many questionable circumstances regarding the events of that night and Gray’s sentence.

One of the more disturbing facts about Gray’s case regards his interrogation. From the beginning Gray has consistently held that he was physically abuse during police interrogation. Thomas Cummins also maintained that he was beat during interrogation. Cummins received a settlement of $150,000. Gray’s accusations were disregarded. However both men’s stories of abuse were similar. Why did the system believe one man and not the other?

Another major problem with Gray’s case is that the prosecuting attorney did not, at first, disclose the evidence of Cummins’ settlement. The prosecution also made inappropriate allusions to the Manson murders and suggested ways in which Gray was similar to Charles Manson. The effect that such inappropriate comments can have on a jury is clear. The prosecutor used this language in Gray and Clemons’ cases and both men received death sentences. He did not use allusions to Charles Manson in Richardson’s first trial, which led to a hung jury.

The prosecuting attorney also erred when he assured the jury that their’s was not the final word in the case, alluding to the appeals process. Such statements may give jurors false confidence that they will not be responsible if they wrongly sentence the defendant. Finally, much of Gray’s conviction was based on the testimony of Gray’s co-defendants. Clearly such testimony is not reliable.

This is not guilt beyond a reasonable doubt and yet Gray has been sentenced to death. Marlin Gray was 23 years old at the time of the crime which was his only felony conviction. He has never had a problem with violence during his 12 years on death row and he has steadily remained employed during his many years in prison.

Gray’s case is too fraught with procedural issues and doubts. Death penalty is not an appropriate punishment. Please write to Gov. Matt Blunt requesting that he commute Gray’s death sentence.

Columbia Missourian

"Execution is fifth of year; Marlin Gray was executed for his role in the 1991 deaths of sisters Julie and Robin Kerry," by Emem Offong. (October 26, 2005)

Marlin Gray, 38, was put to death at the Eastern Reception Diagnostic & Correctional Center in Bonne Terre. He died by lethal injection shortly after midnight today. Gov. Matt Blunt denied a grant for clemency, and the U.S. Supreme Court rejected the appeal filed on Gray’s behalf. He was the fifth person executed in Missouri this year.

Gray was put to death for his role in the murders of sisters Julie and Robin Kerry. In 1991, he and three other young men, Reginald Clemons, Daniel Winfrey and Antonio Richardson, met the sisters and their cousin, Thomas Cummins, on the Chain of Rocks Bridge in St. Louis. Afterward, Gray, Richardson and Clemons raped the girls and later pushed them off the bridge into the Mississippi River. Gray was convicted of two counts of first-degree murder as an accomplice.

Eugene Cummins, father of Cummins and uncle of the deceased sisters, said Wednesday that Gray’s execution would not affect him because his family was already at peace. “I don’t mean to sound callous or uncaring, but Marlin Gray, for example, is to be executed tonight and he has made his own bed and he must lie in it,” he said. “What he did hurt my family years ago, but he no longer has the power to hurt my family.”

Gray, who maintained his innocence until the end, had urged people to intervene on his behalf. “If you don’t get involved, the state will execute an innocent man,” he said.

Gray’s supporters were in Jefferson City on Tuesday afternoon to protest his death sentence. About 50 members of the St. Peter AME Church from St. Louis, Gray’s home church, along with members of Missourians to Abolish the Death Penalty met in the rotunda of the Capitol building for a service, praying for Gray. The group held their meeting just under Blunt’s office and called for the governor to stay the execution. Anti-death penalty advocates held signs, one of which read, “Execution is not the solution.” Ed Doss and the Rev. Mark Williams, Gray’s father and brother, came with the group to protest the execution. Williams, an associate pastor at the church, said Gray had two appeals pending at the U.S. Supreme Court. Williams said the family did not plan to be present for the execution. Asked what he planned to do instead, Williams said, “Pray.”

MADP and other Gray supporters also held vigils around the state in Springfield, St. Louis, Jefferson City, Cape Girardeau and Columbia. In Columbia, supporters met at the Boone County Courthouse on Wednesday evening, followed by a chapel service at the Newman Center. A candlelight vigil was also held outside the prison just before Gray was executed.

Reuters News

"Bridge killer put to death in Missouri." (Wed Oct 26, 2005 2:15 AM ET)

ST. LOUIS, Missouri (Reuters) - A Missouri man who killed two women by pushing them off a bridge spanning the Mississippi River was put to death early Wednesday, a Missouri prison official said. Marlin Gray, 38, died at 12:07 a.m. CDT after workers at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri, injected him with a series of lethal drugs, stopping his heart. Gray was convicted and sentenced to death for his role in the April 1991 rapes and murders of two young women who Gray and his friends encountered by chance after a night spent drinking and smoking marijuana.

In his final statement, Gray denied having committed the murders. "I go with the peace of mind of never having taken a human life," Gray said. "This is not a death it is a lynching."

The women, Julie Kerry and her sister Robin Kerry, were showing a cousin a poem they had written on a bridge, which spans the Mississippi River between Missouri and Illinois, when they ran into Gray and his three friends shortly before midnight. The men raped the sisters then pushed them off the bridge, a fall of about 70 feet, officials said. Julie Kerry's body was later found, but Robin Kerry's body was never located. The cousin, Thomas Cummins, survived the fall.

One of Gray's accomplices, Reginald Clemons, is on death row awaiting execution. Another accomplice, Antonio Richardson, was sentenced to death but had his sentence commuted two years ago to life without parole. A fourth accomplice, Daniel Winfrey, avoided the death penalty through a plea agreement.

Gray was the 66th inmate executed in Missouri since the death penalty was reinstated in 1976.

Kansas City Star

"Supreme Court, Gov. Matt Blunt turn back appeals," by Charyl Wittenauer. (Associated Press Posted on Tue, Oct. 25, 2005)

ST. LOUIS - Within minutes of each other late Tuesday, the U.S. Supreme Court and Missouri Gov. Matt Blunt turned back appeals for convicted murderer Marlin Gray, freeing the state to execute him by injection at 12:01 a.m. Wednesday.

Gray's attorney, Joanne Descher, said she had received a call from the Supreme Court denying her motion to stay the execution and another request to review the entire case. "It's all been denied," she said.

Blunt issued a statement saying he had denied the clemency request, and said the Board of Probation and Parole had recommended clemency be denied. He said he carefully reviewed the case and found no reason to set aside earlier judicial decisions. "I support the sentence issued and affirmed by both Missouri and U.S. Courts and believe justice has been served," he said in a statement.

Gray, 38, maintained his innocence in the deaths of sisters Julie and Robin Kerry on an abandoned Mississippi River bridge in St. Louis in April 1991. He was convicted in 1992 of two counts of first-degree murder as an accomplice.

Gray's lawyers argued the state didn't present sufficient evidence to convict him of first-degree murder, failing to show he participated in the crimes, or planned and directed them. The state conceded Gray was not on the bridge when the women died. The appeal also alleged Gray's confession was coerced by police, prosecutorial misconduct and withholding of evidence.

On Monday, Rep. William Lacy Clay, D-Mo., wrote Blunt imploring him to prevent "another wrongful execution in Missouri," citing Larry Griffin, executed in 1995, whose case was reopened earlier this year. He said the appeal "raises serious doubts" that the case was handled fairly. Amnesty International also urged Blunt to grant clemency.

The state maintained that the Kerry sisters - Julie, 21, and Robin, 19, of north St. Louis County - were raped and pushed from the old Chain of Rocks Bridge the night they brought their 19-year-old cousin, Thomas Cummins, visiting from Maryland, to the youth hangout.

Gray told The Associated Press that he, friend Reginald Clemons and acquaintances Antonio Richardson and Daniel Winfrey encountered the three that night on the bridge and talked for a while. They left the bridge, but Richardson went back to retrieve a lost flashlight. When Richardson returned, he reported he'd seen Cummins frantic on the bridge and the sisters in the river, and spoke of an accident. Frightened, the four left.

Nels Moss, who prosecuted the case, said Gray never stated that at trial. Cummins, originally a key suspect, was never prosecuted, although police reports indicate he changed his story several times, and failed a lie-detector test. He initially told police Julie lost her balance when he reached out to her on the railing and fell into the river, and that Robin had jumped in to save her. Cummins became a chief witness in the others' murder trials, later settling for $150,000 over claims police abused him during interrogation.

Gray also maintained St. Louis police had coerced his confession with beatings and threats, and refused requests for a lawyer. Moss said Cummins later denied the oral statement implicating himself, and made a taped statement corroborating that of Winfrey, who testified against the others. Moss rebuffed accusations of prosecutorial misconduct, saying the courts never found that to be true. He called Gray a "sociopath" who was unable to accept responsibility.

Hip Mama

Help Stop the Murder of Marlin Gray

St. Louis, MO-The Organization for Black Struggle, Affiliate of the Black Radical Congress, is making an urgent plea to all justice-seeking friends to stop the state murder of Marlin Gray. Gray has an execution date of Wednesday, October 26 at 12:01 am. The recent discovery of the 1995 execution of Larry Griffin is hovering over us as a grim reminder of what can happen. We must mount an mammoth offensive before another innocent black man is murdered in Missouri.

Marlin Gray’s case may be another example of being at the wrong place at the wrong time. In 1991, Gray and three teen-agers visited a well-known hang out called Chain of Rocks Bridge. They encountered Julie and Robin Kerry and their out-of-town cousin, Tom Cummins, all white. Before the dawn, Julie and Robin end up in the Mississippi River; Julie’s body was never recovered. Cummins was the original suspect and was arrested and charged with the murders. His story had conflicting and incredulous facts, like alleged jumping 80 feet into the cold water and swimming against the mighty currents in attempts to save his cousin. When found by the Coast Guard, Cummins’ hair was completely dry and contained no river silt. He also failed a polygraph test.

Another scenario, pieced together based on documents, is that Cummins had a romantic thing for Julie. As she was sitting on the bridge guard rail, Cummins made an advance towards her, perhaps a kiss. She leaned backward to avoid him and fell into the water. Her sister jumped in to try and save her.

Guilt shifted from Cummins when it was discovered that Gray and others were also on the bridge that fateful night. In short order, the sole white member of their group, was used to turn state’s evidence against the three young, black men. Charges were then dropped against Cummins who eventually sued the St. Louis Police Department and walked away with $150,000. The black youth all received the death penalty in one of the most high-publicized murder cases of the 1990’s.

If we can stop Pepsi Cola from canceling Kanye West’s contract, surely we can halt the lethal execution of a black man who has proclaimed his innocence from the start. No physical evidence, beaten confessions by police, prosecutorial misconduct, deals cut in exchange for false testimony—all have been ignored at this point by the racist judicial system. The only way to get justice for Marlin Gray, co-defendant Reginald Clemons and the Kerry family is to get to the real truth. The only way to stop the execution is to put pressure on Missouri’s Governor.

Stop the death machine! What you can do in the next 48 hours:

1. Call, write or email Governor Matt Blunt (R) to stop the execution of Marlin Gray. Contact information is 573-751-3222 (phone); 573-751-1495 (fax); mogov@mail.state.mo.us (email).

2. Circulate this announcement to your email contacts and listservs immediately.

3. Sign Marlin’s petition at http://www.petitiononline.com/alive205/petition.html

4. For those in Missouri, visit the OBS website for updates and information on vigils, etc. at www.obs-onthemove.org. Hit “Future Actions” page on left-hand navigation bar.

Marlin Gray Clemency Application

BEFORE THE GOVERNOR OF THE STATE OF MISSOURI
THE HONORABLE BOB HOLDEN

In the matter of MARLIN GRAY, CP#99, Applicant. <

APPLICATION OF MARLIN GRAY TO GOVERNOR BOB HOLDEN FOR EXECUTIVE CLEMENCY FOR COMMUTATION OF TWO SENTENCES OF DEATH

COMES NOW the applicant, Marlin Gray, by and through his attorneys, Joanne Martin Descher and Kent E. Gipson, and petitions the Governor for his order appointing a Board of Inquiry, pursuant to Mo. Rev. Stat. §552.070, and for his Order commuting the sentences of the Circuit Court of the City of St. Louis from death to life without parole.

I. SUMMARY.

Marlin Gray was convicted as an accomplice and sentenced to death in the notorious Chain of Rocks Bridge double homicide case. The state conceded he was not present at the time the murders were committed, and no witness testified Marlin directed anyone to kill – or that he even knew any murder was about to take place. Instead, the state proceeded on a theory that Marlin was the “ringleader”, even comparing him repeatedly to Charles Manson. Despite the utter lack of evidence that Marlin Gray intended that anyone be killed, and in spite of the fact that he was not present when the killings occurred, he was sentenced to be executed and has lived on Potosi’s death row since 1992.

This case has presented many confusing and unresolved issues from the beginning. Thomas Cummins, cousin of the victims Julie and Robin Kerry, was the original suspect and gave conflicting accounts of the night’s events to the police, including one in which he never mentioned the four young men eventually charged with the crimes. Pictures of Cummins taken shortly after he claimed to have jumped from the bridge spanning the Mississippi River showed his hair to be clean and dry (trial exhibits 200-204); the police report authored at the time also reported his hair to be “dry and neatly combed” and Cummins to be “dry from the neck up”; and the police laboratory technician who testified at trial did not find any river silt or residue in Cummins’ hair. No weapon was used to commit the crimes; nevertheless, Cummins, self-described as a firefighter, paramedic, and expert in lifesaving techniques, offered no resistance and admitted he pushed away Julie Kerry when she attempted to hold on to him in the water.

Despite his inconsistent stories to the police, the state’s case featured Cummins as the star witness. Following his testimony in the trials of Marlin Gray and two others charged as the principal actors in the crimes, Reginald Clemons and Antonio Richardson, Cummins filed a civil lawsuit against the City of St. Louis and the individual police officers who interrogated him. He claimed the police had beaten him into making a statement, threatened him, and denied him his right to counsel. The defendants paid Cummins $150,000.00 in a confidential settlement to resolve that case. The record is undisputed that the same police who interrogated Cummins interrogated Marlin Gray, who has maintained since the day after his arrest and interrogation in early April 1991 that he was beaten into giving a statement to the police.

Marlin Gray’s case was prosecuted by Nels Moss, who repeatedly crossed the line of ethical conduct. As will be explained in more detail below, it is undisputed that Marlin’s trial counsel requested all exculpatory material required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), early in the case; that Moss knew of Cummins’ claims of police brutality prior to the Brady request but did not disclose that evidence to defense counsel; and that the trial court held its hearing on Marlin’s motion to suppress his statement, all without the Cummins evidence being disclosed to the court or defense counsel. The trial court overruled Marlin’s motion to suppress, and the coerced confession (in which he admitted to raping the victims, but not to any role in their murder) became a key piece of evidence against him at trial.

The record is similarly clear with respect to another critical point: Marlin Gray filed a complaint with the Internal Affairs Division of the St. Louis Police Department within a day of his interrogation, in which he gave a detailed account of his beating by the same police officers later accused of interrogating and beating Thomas Cummins. In Marlin’s case, however, there was no $150,000.00 cash payment. Instead, despite investigation by the Federal Bureau of Investigation, Moss failed to disclose the strikingly similar Cummins allegations. The FBI closed its investigation, finding no violation of Marlin Gray’s civil rights.

Marlin Gray simply did not receive anything close to a fair trial, particularly when he was charged with acting as an accomplice. In addition to the Brady violation, Moss made repeated, and egregious, errors in both the guilt and penalty phases of his closing arguments. For instance, after assuring the trial court judge that he was not going to call Marlin “Manson”, he referred instead to members of the Manson family by name. He referred to the race and physical attractiveness of Marlin’s friends, when race was not an element of any crime charged and was therefore not relevant to any issue in the case. He told the jury he (Moss) knew what it was like to almost drown, and described the “slow, agonizing” death of the victims as if he had lived it himself. He quite improperly, and incorrectly as a matter of law, advised the jury that Marlin simply had to be involved in the events preceding the murder to be convicted of first degree murder, thus eliminating the crucial element of intent required under Missouri law to render Marlin eligible for first degree murder and the death penalty.

According to a study of prosecutorial misconduct released June 26, 2003 by the Center for Public Integrity, Moss’ “record of 8 reversals due to misconduct and 17 other findings that he committed prosecutorial error is extreme”. Steve Weinberg, “Breaking the Rules – Who Suffers When a Prosecutor is Cited for Misconduct?” Harmful Error – Investigating America’s Local Prosecutors, The Center for Public Integrity, Washington, June 26, 2003. As apparently he has in many prior cases, Moss engaged in outrageous conduct in his closing arguments in both the guilt and sentencing phases of Marlin’s trial. Predictably enough, the result was a “victory” for Moss and a denial of due process for the defendant.

Prior to his convictions in this case, Marlin Gray had never been convicted of a felony – in fact, he had never previously been charged with a crime of violence. Approximately one month before the Chain of Rocks murders, he saved a man’s life by resuscitating him after a car ran over him. Marlin continued to care for the man after his release from the hospital, until the day he was arrested. He has had the support of his family and his church since his arrest, with Bishop Garnett Henning of the African Methodist Episcopal Church testifying on his behalf at trial. The state’s interest in punishment surely cannot extend to executing Marlin Gray, who was not present when the killings occurred, has no history of violent behavior, and whose trial was so infected with prosecutorial misconduct that the state truly can have no confidence whatsoever in its outcome.

II. THE STATE’S BRADY VIOLATION REQUIRES THAT MARLIN GRAY’S DEATH SENTENCES BE SET ASIDE.

On April 8, 1991, at approximately 5:10 a.m., Marlin Gray gave an audiotaped statement to the St. Louis Police Department. The tape was made in the presence of detectives Chris Pappas and Joseph Brauer. It is undisputed that Detectives Pappas and Richard Trevor interrogated Gray for hours prior to the tape being made.

Marlin Gray has consistently maintained that he was beaten by Detectives Passas and Trevor of the St. Louis Police Department’s homicide sction. He reported immediately to the Internal Affairs Division that he was slapped across the head with Pappas’ open hand; struck repeatedly across the back and side of the head, by both detectives, with thick log books; threatened with the death penalty if he did not make a statement; told to sit on his hands, after which he was punched repeatedly in the chest; grabbed from behind by Pappas, who jerked his head to the right and said he would “snap his neck” if he did not talk, and then applied more pressure in a vice-like grip; forced to stand while Pappas punched him repeatedly in the chest and stomach; verbally threatened and abused, including being told he would be beaten to within an inch of his life; and thrown into another interview room, causing him to fall and injure his knee. (Transcript of Marlin Gray statement to Internal Affairs Division, St. Louis Police Department, L.F. 373-399). Throughout this ordeal, Marlin Gray asked for an attorney no fewer than four times. At no time was he allowed to consult with an attorney.

Marlin’s trial counsel filed a motion to suppress the coerced statement prior to trial, which was denied by the trial court after hearing but without explanation in a memorandum order dated July 24, 1992. (L.F. 240.) Prior to the hearing, she properly requested all exculpatory material from the prosecution. (L.F. 362-64.) No information regarding Thomas Cummins’ interrogation was disclosed. Marlin’s testimony at the hearing on the defense motion to suppress his statement on July 22, 1992 was essentially identical to his statement to the Internal Affairs Division over a year earlier.

In October 1992, Cummins testified for the state against Marlin Gray. During cross-examination, Cummins attempted to explain why the police attributed various incriminating statements to him in their reports, statements which he denied making at the time of trial: “They told me to sit on my hands while I was sitting in the chair and one of the detectives took my head and turned it very sharply to one side and held it there.” (Tr. 1285). By his description, the detective turning his head “very sharply to one side” was Chris Pappas, the same detective who interrogated Marlin Gray in precisely the same manner.

The similarities in Gray’s and Cummins’ descriptions became even more striking as Cummins was asked if anything else was done to him: Q: Did they do anything else to you? A: They slapped me in the back of the head. Q: What did they use? A: An open hand. Q: Which one of the detectives did that? A: I don’t know. It was someone standing – it wasn’t Lieutenant Jacobsmeyer and it wasn’t the foreign looking detective [Pappas]. It was another detective who was in the room who again I don’t remember his name. … Q: And he hit you in the back of the head? A: Yes, he did right across where the hairline is up here. Q: Up here say approximately? A: Top of the head. … Q: Did they ever tell you they would hurt you if you didn’t tell them what you wanted to hear – what they wanted to hear? A: Yes, they did. Q: What did they say? A: They told me, Lieutenant Jacobsmeyer told me that if I didn’t tell them what he wanted to hear, that he was going to put me in the hospital that night and he had witnesses that said I resisted arrest. (Tr. 1286; 1287-88) Cummins then testified that he told prosecutor Nels Moss about the beating a year and a half before the trial: Q: Have you ever told anybody about this police brutality before today? A: Yes. Q: Who have you told? A: Mr. Moss. Q: When did you tell him that? A: May the 8th. Q: 1991? A: That’s correct. (Tr. 1290)

In August 1991, four months after Cummins testified he told Moss of the brutality, Moss was contacted by an FBI agent investigating Marlin Gray’s claim that his civil rights had been violated by the St. Louis Police Department. The record counsel has been able to obtain under the Freedom of Information Act contains several redactions, but clearly establishes that Moss was contacted by the FBI in August 1991, long before the July 1992 hearing on the motion to suppress the incriminating statement.

After he had testified against Marlin Gray, Reginald Clemons and Antonio Richardson, Thomas Cummins filed a civil suit in the United States District Court for the Eastern District of Missouri, Eastern Division, against various members of the St. Louis Metropolitan Police Department and others, including Chris Pappas and Richard Trevor. The claims included assault, battery and false imprisonment. The specific allegations against Pappas and Trevor, as well as Steve Jacobsmeyer, included the following:

Thereafter defendants Jacobsmeyer, Pappas and Trevor interrogated plaintiff in an interrogation room in the Homicide Division at the Central Police Headquarters located at Clark and Tucker in the City of St. Louis. Plaintiff asserted his innocence, whereupon all three defendants threatened and verbally abused plaintiff, and defendants Pappas and Trevor physically assaulted plaintiff at the direction of Jacobsmeyer and all three defendants attempted to coerce him into implicating himself in the crimes on the bridge. Defendants caused plaintiff to be in apprehension of bodily harm. Defendants Jacobsmeyer, Pappas and Trevor intentionally struck plaintiff and twisted his head and neck, thereby causing him bodily harm and injury. In the interrogations by Guzy and again by Jacobsmeyer, Pappas and Trevor, plaintiff repeatedly requested that he be permitted to have the advice of a lawyer, but plaintiff’s said request for counsel was denied by defendants. First Amended Complaint filed in Thomas Patrick Cummins v. David A. Robbins, et al., Cause 4:93CV00822, United States District Court for the Eastern District of Missouri, Eastern Division, pages 8-9 (emphasis added.)

In April 1995, six months after the Missouri Supreme Court affirmed Marlin Gray’s conviction and death sentences, Thomas Cummins’ suit was passed for settlement, then dismissed with prejudice. According to news reports, the parties reached a confidential settlement. Marlin through his counsel requested discovery on this and other issues during his federal court habeas proceedings, and the motions for discovery were denied in their entirety.

Through discovery allowed in the federal court habeas proceedings of his co-defendant Reginald Clemons, Marlin finally obtained proof of the significant payment made to Cummins, but only after his First Amended Petition for Writ of Habeas Corpus before the federal court had been denied in its entirety. The settlement check and voucher were submitted in support of his Rule 59(e) motion but not addressed by the federal court in its denial of the motion. Marlin Gray was not granted a certificate of appealability with respect to his claims, raised in his First Amended Petition for Writ of Habeas Corpus, that his statement should have been suppressed as the result of police coercion, or that the state violated the rules mandated by Brady by not disclosing Thomas Cummins’ claim of a nearly identical beating by the same detectives. Thus, no court has ever addressed the effect of all the evidence presented here, corroborating that Marlin Gray’s confession was coerced.

In its order of July 24, 1992, the trial court did not provide a basis for its decision to deny Gray’s motion to suppress. It is probably safe to assume, however, that it was based upon the judge’s weighing of the credibility of the detectives versus that of Marlin Gray. Evidence from Thomas Cummins, one of two chief witnesses for the state, that he was subject to the same abuse by the same detectives could hardly have been more relevant to the trial court’s determination of the witnesses’ credibility, and the court and Marlin Gray were entitled to have that evidence presented. The state apparently found Cummins’ claims worthy of belief, as it decided to pay him the substantial sum of $150,000.00.

The evidence of Cummins’ beating, and the state’s failure to disclose it, was extremely critical to Marlin Gray’s right to a fair trial. Missouri law requires evidence of cool, deliberative intent on the part of the accomplice, not another actor, for a conviction of first degree murder. In other words, when the state is proceeding on a theory of accomplice liability, the intent to commit first degree murder cannot be implied from the act of another. State v. O’Brien, 857 S.W.2d 212 (Mo. banc 1993). The trial court and prosecutor repeatedly advised the jury, however, that Gray simply had to be involved, in some way, in the events on the bridge to be guilty of first degree murder as an accomplice. Therefore, once Marlin admitted any involvement in his statement, the road was paved in the jurors’ minds to a first degree conviction.

Marlin Gray never spoke to Thomas Cummins about his beating, nor was Cummins present at Marlin’s interview by Internal Affairs or the hearing on the motion to suppress his statement. The record counsel has been able to compile demonstrates without contradiction that prosecutor Moss knew of Cummins’ claim in May 1991; was contacted by the FBI regarding Marlin Gray’s claim in August 1991; and did not disclose to defense counsel (and likely not the FBI according to the records produced thus far) the facts reported by Cummins to Moss. After Marlin’s conviction was affirmed, it is undisputed that the St. Louis Police Department paid Cummins $150,000.00 to settle a suit based on the same claims made by Marlin, against the same detectives, in the same place and at the same time. In other words, agents for the state first vouched for the truthfulness and credibility of Thomas Cummins as a witness at three capital trials, then paid him a substantial sum to settle the same allegations of brutality made by Marlin Gray. We can have no confidence in the jury’s decision to impose the death penalty when such critical evidence impacting upon Marlin’s statement was undeniably withheld by the prosecution. Marlin Gray’s death sentences should be set aside on the basis of the state’s Brady violation.

III. MARLIN GRAY’S DEATH SENTENCES SHOULD BE COMMUTED TO LIFE IMPRISONMENT, DUE TO PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT.

The closing arguments of the state during the penalty and guilt phases of Marlin Gray’s trial were blatantly improper. Each argument was filled with references to such things as Charles Manson and his “family” and appeals to racial prejudice. A brief review of the principal errors follows.

Penalty Phase Closing Argument.
During the opening phase of his closing argument for the death penalty, Moss told the jury:

You know, as I sat here, also, yesterday listening to his witnesses and I got this strange feeling that, you know, something was wrong here. Couldn’t put my finger on it. I kept seeing the witnesses and seeing the witnesses. As I pointed out they’re white, middle class, problem, not accepted at home for some reason or another, low self esteem. I said something’s – and then I looked at, you know, I talked about this crime. And it struck me. Do you remember California? Do you remember the man that never went into the house? (Tr. 2705; emphasis added)

Marlin Gray’s counsel objected and the objection was initially sustained. However, after Moss assured the trial judge he was not going to call Marlin Gray “Manson”, the court overruled the objection. As soon as his argument resumed, however, Moss referred to Manson’s co-defendants, using infamous names forever linked to the Manson case:

Well, the names, you know, Charles “Tex” Watson came to me, Patricia Krenwinkle, Squeaky Fromme. You know, those names came to me and I said what the heck, you know, why did that jump into my mind and I couldn’t understand it. And then basically it came that people who are weaker, younger, problematic, can be manipulated and dealt with by somebody who is apparently stronger, who like their leader, you know, was a poet, played the guitar, fancied himself a songwriter, but really had a problem. (Tr. 2707)

Not content with comparing Marlin Gray to Charles Manson twice in the opening phase of his closing argument, Moss again brought the Manson case to the jury’s attention in his final remarks to the jury, after defense counsel had made her argument for a sentence of life without parole and could no longer address his remarks:

And that these ladies [witnesses for Marlin Gray] would come in here and lie. Remember the case I was referring to in California. Do you remember the young ladies who were, of course, charged and the man, young man? But do you also remember the people that came outside the courthouse and when he shaved his head they shaved their heads and sat individually – (Tr. 2719).

The prejudicial effect of comparing Gray to Charles Manson cannot be disputed. Over thirty years later, websites remain devoted to the case (ie., www.charliemanson.com and www.ohnomews.com/manson.html), and his conviction on January 25, 1971 is still the subject of news reports. The effect of referring to the infamous Manson case is amply demonstrated by comparing the three co-defendants’ trials, all of which were handled by Moss. Moss was cited for contempt and fined $500.00 in State v. Clemons for ignoring the Court’s ruling that he could not refer to Charles Manson. He did not refer to Manson in Richardson’s case. The juries sentenced Gray and Clemons to death in their cases, but hung on the issue of Richardson’s punishment.

The prosecutor’s remarks violated Marlin Gray’s due process rights and denied him a fair trial. The Eighth Circuit has previously reversed death sentences where the prosecutor referred to other notorious criminals, including Charles Manson, in Newlon v. Armontrout, 885 F.2d 1328 (8th Cir. 1989) and Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999). Inexplicably, the Eighth Circuit in this case termed these Manson references “obscure” and refused to overturn Marlin Gray’s death sentences on this basis. Gray v. Bowersox, 281 F.3d 749, 757 (8th Cir. 2002).

Marlin Gray cannot rely upon the courts to enforce the rules in his case. Failure to reverse Marlin Gray’s death sentence based upon these improper Manson comparisons sends a misguided and dangerous message to ethically-challenged prosecutors. As demonstrated by Mr. Weinberg’s study, the prosecutor’s comments in Gray’s case do not stand in isolation, but are part of a pattern and practice of improper argument that must be stopped. The only way to stop the pattern is to reverse those convictions and death sentences obtained in violation of the rules.

Nels Moss also focused in his closing argument on Marlin Gray’s friendship with women who happened to be Caucasian, implying that there was something unnatural about this association, based purely on race, and that this association justified the jury putting Marlin Gray to death:

What other things do we know about the defendant? Did you notice who came in here? Did you notice who his friends were? Is there some significance there? Think about it for awhile. Normally they were female. Normally they were white. Normally they were middle class. Normally they had a problem at home, self esteem, something else. Normally they were not physically what you would call overly attractive. Now you contrast that with the kind of people that the Kerry sisters had around them and what they did with them…. You tie in where he was at, with his mom, with his other things, all this other kind of stuff and you bring it in to see who his friends are and how they were, what their ages are, the type, and then you remember the crime of rape, okay. (Tr. 2702).

Not only are these comments personally offensive, they have absolutely no place in a courtroom where a jury is trying to determine the punishment in a highly charged, double homicide case.

Moss’ closing argument also contained this fabricated scenario, which did not track the evidence against Marlin Gray and could only have further inflamed the jury:

Understand one thing, please. Think just for a moment, just for a moment, put yourself on that bridge, that night on that deck. Put yourself fifty, a hundred feet away. Put a gun in your hand that has three bullets, four bullets in it and you’re standing there and you look and you hear a scream of terror and another scream of terror and another scream that says, “Oh, no, don’t. I’ll give you anything. Please do not hurt me.” And you’re standing there watching this. And then again “If you don’t stop screaming, I’ll throw you off the bridge right now.” And then you hear the sounds of them moaning as they’re raped repeatedly by these fellows and you’re just standing there. You have this gun. And then you stand there and you see them slowly escort one girl semi-nude, Julie, down to the platform. You see them escort Robin. You see them bring Tom Cummins and put them down there. And then you happen to see ’cause you moved up near the hole, you’re right near the top and you see them standing on the pier and the guy’s getting ready to push them off. Do you do nothing? Is there a one of you that was in the position on that bridge and had a gun in your hand, is there really, really as weak as you may think that you might, you know, you might not be, is there really one of you in your heart of hearts that wouldn’t say, stop, Marlin, you don’t have to do this. Reggie, you don’t have to do this. Antonio, stop, stop or I’ll shoot. I cannot let this happen. (Tr. 2721-22)

Moss’s comments were, again, grossly improper. The scenario he painted did not track the evidence presented to the jury: most importantly, according to the state, Marlin Gray was not even on the bridge at the point the jurors are implored to “stop” him, had no role in taking anyone to the manhole, and no gun was used at any time. Whether the jurors would have stopped the fantasy presented during closing argument is irrelevant to whether Marlin Gray deserved the death penalty, and this argument could only have further confused the jury concerning the actual evidence in the case - all of which showed that Marlin Gray was not even on the bridge when the Kerry sisters were pushed. The prosecutor may not personalize argument to the jury, and thus “taint the jury’s judgment with suggestions of personal danger to them or their families”. State v. Storey, 901 S.W.2d 886 (Mo. 1995). Yet, that is exactly what the state did in Marlin’s trial.

Finally, in an all-out effort to secure a death sentence, the prosecutor reassured the jury that others would be reviewing their decision: Now someone may tell you, well, what if I made a mistake. If we sentence him to death, oh, my God, you know, there’s no changing that. Well, we all know that there’s a long line before that happens. (Tr. 2699-2700) (emphasis added).

As with his other comments summarized here, Moss’ argument completely crossed the line of ethical conduct: arguments that lessen the burden imposed by law upon the jury to decide the defendant’s fate are improper. Caldwell v. Mississippi, 472 U.S. 320,105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (prosecutor’s assurance to the jury that there would be appellate review of the death sentence an Eighth Amendment violation because it may tend to lessen the deliberative process). Whether considered alone or in combination with the many other errors in the prosecutor’s closing argument, the state’s attempt to make the jury “feel good” that someone else would review their decision constitutes error of such magnitude that Marlin Gray’s death sentences should be commuted.

The conduct of the penalty phase of the trial created a completely unacceptable risk that the death penalty is being imposed arbitrarily in this case. The state, through one of its actors, created this risk, and now has the chance to finally right that wrong. Marlin Gray’s death sentences should be commuted for prosecutorial misconduct in the penalty phase closing argument.

Guilt Phase Closing Argument.
Although this application is directed towards commutation of Marlin’s death sentences, those sentences were obtained by the prosecution at the end of a long trial. A brief look at some of the state’s improper remarks to the jury during the guilt phase closing argument is in order, because the jury could not help but be influenced by all information presented during the trial when it deliberated upon Marlin’s fate.

One of the state’s goals apparently was to discredit Marlin’s claim that he had only given a statement after being severely beaten by the police. Prior to closing the prosecutor showed a videotape to the jury of Antonio Richardson walking the bridge with two detectives, during which one police witness was allowed to tell the jury which manhole Richardson pointed out. The prosecutor then states in closing:

The one thing you’ve got to accept from him is they’re able to get Antonio Richardson, who didn’t look like a bloody mess, played him out to the very same manhole and talk about the whole thing with him, okay. Saw the TV, saw the video. (Tr. 2469) They’re able to get Reggie Clemons within, you know, ‘cause they arrest him at 11, they bring him in at 6:30, within five hours to come in on himself, sign the pictures, et cetera, and as he said the police told him that these guys implicated him as the head murderer. ….. You know, why are they gonna stop short? These other guys have named him as the head murderer. Then they know they got the guy, okay… (Tr. 2469-70)

Again, in his rebuttal: Within five hours we know that Reginald Clemons spilled the beans and was arrested and subsequently at 2 something in the morning, 2:20 taken downstairs. We know within 5 hours this guy spills the beans and tells what he was willing to tell them because he knows he’s negotiating what he’s gonna say because he knows they’ve told him your butt’s on the line. Antonio came in on you and Reggie caved in on you …(Tr. 2532)(emphasis added)

Statements of co-defendants are clearly hearsay and inadmissible, and “[d]ue to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986). Allowing introduction of these statements, and argument about them, was extremely prejudicial to Marlin Gray. Moss has been previously reprimanded by the Missouri Court of Appeals for offering into evidence statements of co-defendants, which the Court found inadmissible:

We are dismayed by what we conclude to be a thinly veiled attempt by an experienced prosecutor to inject into appellant’s trial the fact that an accomplice had admitted his participation in the crime for which appellant was on trial, when he should have known and we believe did know that he was thereby attempting to evade the impact of a well known and fundamental rule of evidence and do indirectly what he could not have done directly. State v. Browner, 587 S.W.2d 948, 954 (Mo. App. 1979)(emphasis added).

Moss committed further error when he advised the jury of his personal view of Marlin Gray’s defense: “He has fabricated his entire defense here. And he’s one of the best I’ve seen and I’ve been doing this for about twenty years.” (Tr. 2478).

Trial defense counsel properly objected to this remark, her objection was sustained, and the jury was instructed to disregard; however, the damage had been done. Very similar remarks were held to be “highly prejudicial” in State v. Storey, 901 S.W.2d 886 (Mo. 1995), where the prosecutor called the crime at issue there “the most brutal slaying in the history of this county”. The Missouri Supreme Court reasoned that allowing a prosecutor to argue facts outside the record amounts to unsworn testimony by the prosecutor, and his assertions “are ‘apt to carry much weight against the accused when they should carry none’ because the jury is aware of the prosecutor’s duty to serve justice, not just win the case. Berger v. United States, 295 U.S. 78, 88, 79 L.Ed. 1314, 55 S.Ct. 629 (1935).” In Storey, the death penalty was reversed. Marlin Gray deserves no less, particularly in light of his alleged role as an accomplice only.

The prosecutor again argued facts outside the record and attempted to inflame the jury when he stated: “[y]ou know, they shoot at the end of my block just like they shoot at the end of yours. We got to do something about it when we’re presented with the facts of what’s going on here.” (Tr. 2485). Not only did Moss attempt to personalize and place himself alongside the members of the jury, he appealed to the prevalent fear in today’s society that crime is out of control, and urged the jurors to convict Marlin Gray as a way to deal with escalating crime. Such an argument, again, is clearly improper under the law. United States v. Lee, 743 F.2d 1240 (8th Cir. 1984); United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir. 1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985)(“A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking.”).

Perhaps the most blatant error occurred near the end of the first portion of the state’s closing argument, when the prosecutor told the jury what it was like to “almost” drown:

Do you understand – unlike me maybe you’ve never almost drowned, but you go under just like Tom Cummins said, you go under and you go down deep the first time and you don’t think you’re coming up. You’re trying to come up, but all you’re sucking is water and you get up on the top maybe and you’re looking for something to grab onto. But you can’t. The current is too swift. It’s taking you down. Takes you further down river. And you go under again. And again. Until finally you can’t come up any more because your lungs have no more air and then you go down and you stay down. This isn’t a bullet to the head. This isn’t a knife to the heart. This is a slow, knowledgeable, knowing, agonizing death. (Tr. 2483).

This argument is even more prejudicial than the one the Court found “grossly improper” in State v. Storey, supra. In Storey, the prosecutor argued: Think for just this moment. Try to put yourselves in Jill Frey’s place. Can you imagine? And, then – and then, to have your head yanked back by its hair and to feel the blade of that knife slicing through your flesh, severing your vocal cords, wanting to scream out in terror, but not being able to. Trying to breathe, but not being able to for the blood pouring down into your esophagus. Id. at 901.

Here, not only did the prosecutor impliedly ask the jury to put themselves in the victims’ place by graphically describing the process of drowning, he told the jury HE knew what it felt like, and vouched for the “accuracy” of Tom Cummins’ testimony. As the Storey Court stated, “The prejudice of this argument is undeniable.” Id.

The prosecutor further argued that the jury should consider Marlin Gray’s “lack of remorse” in determining his guilt or innocence: You know, it might be a different ballgame if he got up there and bawled his eyes out for what had really happened, for what really had occurred. If he said, look, things got out of control as he said on his tape, and I tried to tell them no. I tried to tell them not to do it. If he expressed some remorse, some small portion of remorse for his action and his lack of actions. If he had bothered to tell you the truth about the watch, then you could have some pity on him and maybe then you could have some compassion on him had he shown any, any compassion to these people, had he shown you any honesty about what really happened. But he’s content to try and blame it on the cousin. (Tr. 2543-44)

This argument is clearing improper, and asks the jury to punish Marlin Gray for exercising his right to a trial by jury, and maintaining his innocence, in violation of his constitutional rights.

The prosecutor’s arguments in the guilt and penalty phases so clearly violated the law, and were so egregious, that they rendered the entire trial fundamentally unfair. With error heaped upon error, no one can be sure – as sure as we must be before executing someone - that a jury would have sentenced Marlin Gray to death in a fair trial. He does not deserve to die simply because the prosecutor decided to break all the rules to secure yet another death sentence.

IV. MARLIN GRAY SHOULD NOT BE EXECUTED, BECAUSE OF THE LACK OF SOLID EVIDENCE REGARDING HIS ROLE IN THE CHAIN OF ROCKS EVENTS.

It is clear that, at the very least, substantial doubt has been cast on the reliability of Marlin Gray’s statement to the police. Without that evidence, the state’s case (as opposed to the arguments of the prosecutor) consisted primarily of the following.

The state relied on the testimony of Thomas Cummins, the surviving cousin, and Daniel Winfrey, the one white co-defendant who accepted a deal from the state and pled guilty to second-degree murder. A review of the actual testimony shows that Cummins is able to attribute only the following comments to Gray: “This isn’t your lucky night. This is a robbery. Get down on the ground.” (Tr. 1166). He then testified Gray told him to lay on the ground and not to look up at anybody. (Tr. 1168). After prompting by the prosecutor, Cummins added that Gray said he would shoot him if he looked up at anybody. (Tr. 1168-69). At the subsequent trial of Antonio Richardson, Cummins testified that he was told simply “not to look” at that point. Transcript in State v. Richardson, 923 S.W.2d 301 (Mo. banc 1996), at p. 1515. He did not know if Gray was still with him at the point he heard the girls scream, and estimated Julie was fifty feet from him at this time. (Tr. 1169-70). According to Cummins, it was “very dark” on the bridge and there were no lights, other than from the stars. (Tr. 1236).

At some point in time, someone else was with him and someone said he would be “popped” if he put his head up or tried to look. (Tr. 1171). He did not know if this voice was the same one who initially talked to him (Gray), or another voice. (Tr. 1172). In the federal habeas litigation involving Reginald Clemons, however, the state represents that the voice which ordered Cummins to jump from beneath the bridge was the same voice which earlier said he would like to “pop” Cummins. As will become clear in the discussion of Daniel Winfrey’s testimony, Marlin Gray was long gone from the bridge at that point. The only other possible reference to Marlin in Cummins’ testimony is his statement that he heard “the first voice or another voice come up and say, ‘No, I told him he could live.’” (Tr. 1176; emphasis added). Cummins, who wore glasses, did not wear them that night. (Tr. 1242).

Daniel Winfrey testified that Gray said, in response to Clemons’ suggestion of a robbery, he felt like hurting somebody. (Tr. 1680). According to Winfrey, Gray handed out condoms (Tr. 1682) and raped Robin Kerry, with Clemons’ assistance (Tr. 1688-89). Winfrey then testified that while Gray was raping Robin Kerry, Richardson forced Julie Kerry into a manhole on the bridge deck and followed her. (Tr. 1690). When he was finished, Gray went to Winfrey and asked him where Richardson had gone. (Tr. 1691). Winfrey pointed to the Missouri side of the river. Gray then ran off to the Missouri side, running past the manhole. The next reference to Gray occurs when Winfrey testifies Clemons asked where Gray had gone (Tr. 1693), and Winfrey runs to find him, off the bridge. (Tr. 1694).

Marlin Gray admitted to rape in his statement to the police, but never murder. His statement should have been suppressed for the reasons previously set forth. Without his statement, the jury would have heard that Cummins believed Gray put him on the ground and told him this was a robbery, and Winfrey, a co-defendant with inherent credibility problems due to his plea agreement with the state, testified Gray raped one of the victims and then left the bridge. It is obvious from the actual testimony presented to the jury that, at most, Gray could have been convicted of felony murder, not first degree murder.

The O’Brien requirement of evidence of Marlin Gray’s actions or intent was completely lost at trial. The trial court informally instructed the venire on the issue of accomplice liability with examples that completely eliminated the crucial element of cool, deliberative intent on Gray’s part necessary to convict him of first degree murder, and further diluted the fundamental concept of reasonable doubt. The following is illustrative of the trial court’s error in advising the potential members of the jury on these two critical concepts:

The next issue I want to talk about is how this defendant is charged in this case. The defendant is charged with acting with another. Acting with another is a, it’s another way of saying that a number of people were involved in the same crime. Let me give you an example that has nothing to do with this case whatsoever. Let me give you two examples. Bank robbery, two people drive up in front of a bank downtown. One guy keeps the car running. The other guy runs in, grabs the bag of money, comes back out, gets in the car. They’re both equally guilty of robbing the bank. Does everybody understand that? Let’s go on to a murder type case. Let’s say there’s a fistfight and it develops where there’s two individuals fighting one and the one fellow grabs the other and holds him while the second one picks up a knife and stabs him or picks up a brick and hits him or picks up a gun and shoots him. You understand they both can be found guilty of the same charge, even though the one was holding and the other was stabbing. Does anyone have a problem understanding what I’ve just explained to you? That is how this defendant is charged in this case. He is charged with acting with another. I’m sure the attorney’s will get into that in more detail, but the law in Missouri is whether you’re the holder or the shooter or stabber, you’re equally responsible if you were both doing the same act, pursuing the same ends. Understand? Okay. (Tr. 275-276; emphasis added.) The law in Missouri is very clear and, in fact, I think it’s the law all over the country. If you’re charged with a traffic ticket and the most that can happen to you is that you can get a ten dollar fine, the standard of proof is proof beyond a reasonable doubt. The state has to convince you beyond a reasonable doubt that the defendant would be guilty of speeding and, therefore, a ten dollar speeding ticket would be assessed. Same applies to the death penalty cases. Even though the punishment is certainly more severe the possibility of the punishment is more severe in a death penalty case than it would be in a ten dollar traffic ticket case, the standard of proof remains the same. The standard of proof is beyond a reasonable doubt. And I’ve defined that to you already. I read that instruction to you and you’ll get that instruction through the trial. You’ll get it at the beginning of the trial and again at the end of the trial. But my point is just because this is a very serious, potentially serious punishment type case, death penalty could be imposed, it doesn’t mean that the State is under a higher burden to prove the facts to you. The same burden applies. (Tr. 274-275; emphasis added.)

The Missouri Supreme Court reviewed the trial judge’s comments, stating “[d]espite his well-intentioned purposes, the judge said far more than was necessary in this case. The purpose of the Approved Jury Instructions is to avoid confusion among jurors. That purpose is undermined when a judge or lawyer, under the guise of voir dire, makes what seem to be comments on the law or facts in the case. …” State v. Gray, 887 S.W.2d 369, 379 (Mo. banc 1994). Despite its conclusion that the judge “said far more than was necessary in this case”, the Court refused to find “plain error” or reverse on this ground, referring to the written instructions actually given to the jurors at the conclusion of the case.

This trial, and the state’s request to execute Marlin Gray, need to be considered as a whole. The trial court gave the above inaccurate and confusing informal instructions to the prospective jurors at the very beginning of the case, when they were the most impressionable. There can be no doubt that these comments left the jurors with the impression that everyone involved in a crime can be dealt with equally, when in reality the state was required to prove deliberation on Marlin Gray’s part to convict him of first degree murder as an accomplice.

The prosecutor compounded the error when he referred to them in his closing argument in the guilt phase of the trial. First, he referred to the getaway driver example given on voir dire by the trial court as an example of acting with another (Tr. 2455-2456). After telling the jury Marlin Gray was guilty without a doubt of “a form of felony murder second” (Tr. 2455), he states, “[a]nd let’s go into murder in the first degree. All that 6 and 12 [jury instructions 6 and 12] require is that Reginald Clemons and Antonio Richardson caused the death. That is not in dispute.” (Tr. 2456). Jury Instruction 6 was the first degree murder instruction regarding Julie Kerry, which required much, much more. By the time the jury retired, however, they had heard repeatedly about getaway drivers and told all they needed to do was find others guilty of first degree murder to convict Marlin of the same charge.

After these comments, the prosecutor then blurred the lines between the conduct of the others who were actually present on the bridge, according to the state’s evidence, and Marlin Gray, who by all accounts was not on the bridge when the victims were pushed:

Secondly, that they knew that they were practically certain to cause the death of these ladies …the intent was there and they were practically certain and they succeeded in killing these two girls, they succeeded. (Tr. 2456-2457) (emphasis added)

The prosecutor next substituted intent to commit other alleged crimes for the crime of first degree murder, acting as if the following acts of “deliberation” are enough to support a conviction of first degree murder: …We’re talking about you have the time to make various decisions such as to rob or not to, to rape or not to, to rape one and not the other, to rape both . . . (Tr. 2457)

Marlin Gray’s trial counsel properly objected that this argument set forth the law on second-degree, rather than first-degree, murder. The trial court overruled her objection and the confusion continued. The prosecutor first talked about the decision to “leave them alone on the bridge” and “to rob the man”. He then covered the complete lack of evidence of any deliberation by Marlin Gray on the deaths of the victims by artfully reciting a barrage of alleged acts by others when Gray was not even present on the bridge, and without any evidence that he planned or intended that any of these acts take place:

…. The decision to walk them to the hole. The decision to lay them on the platform. The decision to get them up off the platform. The decision to put them on the pier. The decision to push one off. The decision to push the second one off. The decision to tell Thomas Cummins that he better jump or he’s gonna get shot. … We’re talking cool reflection, these are the decisions that these people have had the opportunity to make over a period of time of many minutes; many, many minutes. It wasn’t like that. It wasn’t in sudden passion. It wasn’t in anger. This was cool and calculating. (emphasis added) (Tr. 2457-2458). He knew what was going on. He’s not going to tell you the truth. He’s not gonna tell you the truth about what Reggie – and he discussed walking up there to get these people. And he’s not gonna tell the police or you the truth about what he told to Tony about getting rid of these people after we’ve done it and I’ll go down and make sure and run interference and make sure nobody comes on the bridge while you guys take care of business. (Tr. 2460)

The prosecutor’s argument here clearly misstates the evidence, for nowhere does the trial transcript reflect this participation by Marlin Gray, or any discussion at all, at any time, of a plan or an intent to kill the Kerry sisters or Tom Cummins. The prosecutor’s argument, by completely misstating the evidence, supplied the jury with what the evidence here could not - the intent on Marlin Gray’s part necessary to convict him of first degree murder, thus rendering him eligible for the death penalty.

The preceding examples occurred in the first phase of the state’s closing argument. The same theme pervaded Moss’s final remarks, after defense counsel had made her closing argument and thus could not address the error, other than by objection, which she did not make: So he had Reggie take the guy to the hole and lay him there. (Tr. 2541) …And this man that took Reggie aside to begin with to start the plan and the train rolling down the deck of that bridge, the man that took Tony aside right before they actually executed the rapes and the robberies and told them to get rid of these people, you know, take them to the hole that I’ve shown you afterwards, that went to the end of the bridge not to smoke a joint, not to get a piece of paper and a pencil for a phone number, but went to keep people from interrupting the murder, he knew, he knew he was going to commit. (Tr. 2541-42)

And finally, towards the end of his rebuttal, the prosecutor again lumps all those on the bridge together, impossibly blurring the crucial distinction in the evidence that Marlin Gray was not on the bridge when the Kerry sisters were pushed, and there was no evidence that he instructed anyone to take any action to cause their deaths: They took one to the hole, then they took the other to the hole, you know. (Tr. 2540) They led them to the hole and they slaughtered them without benefit of court, without benefit of attorney, without benefit of a judge, without benefit of somebody being able to speak in their behalf. These fellows executed these people as surely as they have put a bullet in their head. …These people have no regard for human life. These people, including Mr. Gray, have no compassion… (Tr. 2543) (emphasis added)

CONCLUSION

During his twelve years on death row, Marlin Gray has not been involved in any violence in the prison. He has held a job within the prison the entire time, currently working in the library. He is an assistant editor of the Compassion newsletter and an active participant in the prison’s music projects. He has written three manuscripts he is seeking to have published, and over seventy songs. He has maintained close contact with his family, friends and church, all of whom continue to support him and seek his release.

When the state decides to prosecute a defendant on charges of first degree murder as an accomplice, it has the corresponding duty to present evidence beyond a reasonable doubt that this defendant intended to kill. The state clearly failed in Marlin Gray’s case. All it established was that Marlin Gray was not present, did not tell anyone to kill, and was unaware of what others were doing (or even where they were) on an unlit bridge spanning the Mississippi River. There can be absolutely no confidence in the jury’s decision to sentence Marlin Gray to death, and therefore Marlin’s death sentences should be commuted.

WHEREFORE, Marlin Gray prays the Governor for his order appointing a Board of Inquiry, and thereafter commuting his death sentences or granting other and further appropriate relief.

Respectfully Submitted,
Joanne Martin Descher
Kent E. Gipson
Attorneys for Applicant Marlin Gray

State v. Gray, 887 S.W.2d 369 (Mo. 1994) (Direct Appeal).

Defendant was convicted in the Circuit Court of the City of St. Louis, Thomas C. Mummert, J., of first-degree murder, and was sentenced to death. On appeal, the Supreme Court, Holstein, J., held that: (1) evidence was sufficient to demonstrate defendant knowingly caused or acted with others to cause death of victims after deliberation; (2) trial court did not commit plain error during questioning of jury venire; (3) defendant was not denied effective assistance of counsel; (4) defendant failed to show prosecutor discriminated on basis of race and gender in exercise of preliminary strikes; and (5) death penalty was not disproportionate to murders committed in furtherance of brutal rape and robbery of victims. Affirmed.

HOLSTEIN, Judge.
Because of his complicity in the deaths of Robin and Julie Kerry, defendant Marlin Gray was convicted of first degree murder and sentenced to death. § 565.020. Following the convictions, a motion for post-conviction relief was filed, heard and denied. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. The judgments are affirmed.

I.

The first issue in this case has to do with the sufficiency of the evidence to support a conclusion that defendant knowingly caused the death of Julie or Robin Kerry after deliberation. The evidence is viewed in a light most favorable to the verdict, affording the state all reasonable favorable inferences and ignoring contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

Twenty-year-old Julie Kerry and her sister, nineteen-year-old Robin Kerry, made arrangements with their nineteen-year-old cousin, Thomas Cummins, to meet them shortly before midnight on April 4, 1991. Cummins, who was visiting at his grandparents' home in St. Louis, sneaked away shortly before midnight to meet the girls at a prearranged location. The Kerry sisters were intent on showing Cummins a graffiti poem the girls had painted on the Chain of Rocks bridge. The Chain of Rocks bridge had been abandoned some years earlier. It spans the Mississippi River at St. Louis and has been a site of drinking and partying by trespassers since its abandonment. The three arrived at the bridge, climbed through an opening in the fence, and went onto the Missouri side of the bridge.

Earlier that same evening, defendant Marlin Gray, Reginald (Reggie) Clemons, Antonio (Tony) Richardson and Daniel Winfrey met at the home of a mutual friend in St. Louis. The latter two individuals were juveniles, being sixteen and fifteen years old respectively. Defendant was the oldest and largest of the group. At defendant's suggestion, the four left for the Chain of Rocks bridge to "smoke a joint" that defendant had acquired from someone at the house where the four met. The defendant's group had been at the bridge sometime before the Kerry sisters and Cummins arrived.

As the two victims and their cousin were walking toward the Illinois side of the bridge, they encountered defendant and his three companions. After a brief exchange of greetings, Winfrey asked for cigarettes, which were supplied by one of the Kerry sisters. As he had done earlier for his cohorts, defendant demonstrated to Cummins and the girls how to climb down a manhole on the deck of the bridge to a metal platform which leads to a concrete pier that supports the bridge. Defendant told Cummins the platform was a good place to be "alone with your woman." The two groups then separated, with the Kerrys and Cummins walking eastward toward Illinois and the defendant's group walking toward Missouri.

While walking away, Clemons suggested that they rob Cummins and the Kerrys. Defendant smiled, clapped his hands, and replied, "Yeah, I feel like hurting somebody." The four then turned and began walking back toward the east end of the bridge. While walking, Clemons and defendant engaged in some conversation. When defendant handed Winfrey a condom, he responded to the implication by saying he "wasn't going to do anything." At that point, defendant and Clemons pushed Winfrey against the bridge railing and said, "You're gonna do it." Winfrey then agreed to "do it."

The defendant's group continued walking toward the Illinois side and again came upon the Kerrys and Cummins. The girls were watching a campfire that had been built by someone on the Illinois side of the river. Richardson went to the side of the bridge and yelled something at the people by the campfire. At that point, the Kerrys and Cummins began walking back toward the Missouri side of the bridge. The defendant and his three associates followed at a close distance. As the group passed a bend in the bridge, defendant, on a prearranged signal, put his arm around Cummins and walked him back ten to fifteen feet telling him, "This is a robbery. Get down on the ground." Cummins complied. Defendant told Cummins that if he looked up, defendant would kill or shoot Cummins. At the same time, Clemons, Winfrey and Richardson grabbed Julie and Robin Kerry. The girls screamed. One of the assailants said, "[D]o you want to die?" and ordered the girls to stop screaming or the speaker would "throw you off this bridge." This statement, if not made by defendant, was made within earshot of defendant. Winfrey held Robin Kerry on the ground, covering her face with her coat. Clemons ripped off Julie Kerry's clothing and raped her as she was held by Richardson. At some point, while Julie and Robin were being raped by Clemons and Richardson, defendant went to Cummins, who was still lying face down on the ground. Defendant stated, "I've never had the privilege of popping somebody ... if you put your head up or try to look, I'm going to pop you." Defendant then went to where Winfrey was holding Robin Kerry on the ground. Defendant told Winfrey to watch Cummins. Then, with the assistance of Clemons, defendant tore off Robin Kerry's clothing and raped her. Clemons then forced Cummins to surrender his wallet, wristwatch, some cash and keys. Clemons apparently became agitated upon finding Cummins firefighter's badge, thinking he might be a police officer. One of the assailants then forced Cummins to get up and, while holding Cummins' head down so he could not see who it was, walked him a short distance on the bridge and made him lie down again. There defendant and Winfrey warned Cummins not to talk to police. One of them showed Cummins his driver's license and said, "We know who you are and if you tell anybody, we're going to come and get you." Cummins heard two voices discussing whether he would live or die.

While defendant was in the act of raping Robin Kerry, Richardson forced Julie Kerry into the manhole and followed her. When defendant finished, he went to Winfrey, who was still watching Cummins, and asked where Richardson had gone. Winfrey pointed toward the Missouri side of the river. Defendant then ran off toward the Missouri side in search of Richardson and Julie Kerry, running past the manhole. According to defendant, he thought Richardson had taken her "to the end of the bridge, where he could take her by the river and maybe drown her or somethin'."

Clemons, after completing his rape of Robin Kerry, forced her down the same manhole where Richardson had taken Julie. Clemons then returned to Cummins and, putting Cummins' coat over his head, forced him down the same manhole where Richardson and the two girls were located. Clemons then followed, as did Winfrey. However, Winfrey was told by Clemons to go find the defendant, which he did.

Clemons ordered Cummins and the Kerry sisters to step out onto the concrete pier below the metal platform. The three were told not to touch each other. Julie Kerry and then Robin were pushed from the pier of the bridge, falling a distance of fifty to seventy feet to the water. Cummins was then told to jump. Believing his chances of survival were better if he jumped instead of being pushed, he jumped from the bridge.

Meanwhile, Winfrey caught up with defendant. The two were returning back onto the bridge and were near a rock pile at the entrance of the bridge when they were met by Clemons and Richardson. Clemons said, "We threw them off. Let's go." The group ran to their car, drove to a gas station in Alton, Illinois, and bought food and cigarettes with the money they had taken from the victims. The group then drove to an observation point over the Mississippi River called the Chair, where they sat and watched the river. While there, Clemons remarked, "They'll never make it to shore." Defendant praised Richardson for being "brave" to push the Kerry sisters off the bridge.

Later, in police custody, defendant admitted to participating in raping both of the girls but denied that he had been involved in the murders. His tape recorded statement, although he claims it was obtained by police coercion, was admitted in evidence and was consistent in most essentials with the above statement of facts. Although Cummins survived and testified at trial, Julie and Robin Kerry were killed. The body of Robin Kerry was never recovered. Julie Kerry's body was found three weeks later in the Mississippi River by the sheriff of Pemiscot County, Missouri.

II.

The defendant argues that the above evidence is insufficient to demonstrate that defendant knowingly caused or acted with others to cause the death of Julie or Robin Kerry after deliberation. "Deliberation" means cool reflection for any length of time, no matter how brief. § 565.002(3). Thus, in order to convict, there must be some evidence that defendant made a decision to kill the victims prior to the murder. State v. O'Brien, 857 S.W.2d 212, 218 (Mo. banc 1993).

The state responds by arguing that defendant's participation in planning to commit the crimes of robbery and rape together with the threats to kill the victims that were made either by defendant or in his presence in the course of the rape and robbery, and defendant's statement after the killing that those who did the acts were "brave" are sufficient facts to infer that the defendant deliberated on the killing of Robin and Julie Kerry. Deliberation may be inferred from the acts of forcing the victims into the manhole, off the metal platform onto the concrete pier and then pushing the two victims from the pier. If defendant was shown to have participated in any of those acts, deliberation on the killing might be inferred. However, he was not shown to have participated in those acts.

A distinct question is whether defendant's participation in the planning and execution of the rape and robbery are sufficient to infer deliberation of murder. Implicit in any forcible rape or robbery is that threats are made against the victim to accomplish the criminal purpose. Forcible rape and first degree robbery each require the use of force or threat of force as elements of the crime. §§ 566.030 and 569.020. A homicide committed during the perpetration of those or other felonies is second degree murder. § 565.021.1(2). Had the legislature intended to impose the most severe punishment for participating in the planning or execution of a forcible rape or robbery where death to a person results from the perpetration of those crimes, it could have so provided. However, no such provision was made. The statute requires not merely the deliberation of forcible rape and robbery, but deliberation of the killing of a person. The legislature has made the distinction between first degree murder and second degree felony-murder. To hold otherwise would mean that every homicide that occurs during a forcible rape or first degree robbery would be first degree murder and the felony/murder provisions of § 565.021.1(2) would be meaningless. However, that is not what the statute provides. We must abide by the legislatively created distinction. As O'Brien makes clear, more is required than the planning and execution of a crime involving the use of force.

In cases of accessory liability for first degree murder, evidence of at least three circumstances appears to be highly relevant in determining if accomplice deliberation may be inferred. The first circumstance is where there is a statement or conduct by the defendant or a statement or conduct by a codefendant in the presence of defendant prior to the murder indicating a purpose to kill a human. State v. Isa, 850 S.W.2d 876, 882-83 (Mo. banc 1993) (upon hearing her husband say, "[T]his is the last day. Tonight, you're going to die.", Isa continued to cooperate with her husband in the inquisition of the victim and subsequent murder); State v. Six, 805 S.W.2d 159, 165 (Mo. banc 1991) (Six held a knife to the throat of the victim's mother and later slit the throat of the victim's mother. The victim, abducted by defendant and a cohort, was later found dead with her throat cut); State v. Roberts, 709 S.W.2d 857, 860 (Mo. banc 1986) (Roberts incited a prison melee with "Let's rush them," and held the guard for others to stab to death); State v. Betts, 646 S.W.2d 94, 95 (Mo. banc 1983)(Betts and another planned a burglary and agreed anyone found home would be killed); State v. Lindsey, 507 S.W.2d 1, 2 (Mo. banc 1974) (Lindsey's partner said, "Wait here, I am going to get a bat because I am going to kill somebody tonight." On the partner's return, Lindsey agreed he was ready).

A second circumstance permitting an inference of accessory liability is evidence that the murder was committed by means of a deadly weapon and the accomplice was aware that the deadly weapon was to be used in the commission of a crime. State v. Turner, 623 S.W.2d 4, 6-7 (Mo. banc 1981) (initially planning to commit robbery, Turner knew his comrade had a gun and a knife. Turner entered the store and observed his codefendant beating and stabbing the victim); Lindsey, 507 S.W.2d at 2 (Lindsey knew his partner carried the bat intending to kill someone with it); State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980) (Strickland participated in a triple homicide by holding the victims at bay with a shotgun).

A third factual circumstance common in first degree murder cases where accomplice deliberation is found to exist is where there is evidence that the accessory either participated in the homicide or continued in the criminal enterprise when it was apparent that a victim was to be killed. Isa, 850 S.W.2d at 883 (Isa grabbed and held her daughter as the husband stabbed the daughter); Roberts, 709 S.W.2d at 860 (Roberts held the prison guard while other inmates stabbed a guard to death); Turner, 623 S.W.2d at 6-7 (Turner, upon his late arrival at the scene of a robbery, hit the victim in the head with a beer bottle after a cohort had stabbed and beat the victim); Lindsey, 507 S.W.2d at 4 (Lindsey continued in the plan to rob after he knew his partner got a bat and told of his intent to kill).

Here there were threats to kill made either by the defendant or in the defendant's presence. In addition, the defendant at one point stated he would shoot Cummins, indicating that he had ready access to a deadly weapon, even though no weapon was actually displayed or used to commit the homicides in this case. The jury was entitled to believe defendant had a gun. Defendant continued in the criminal enterprise after the threats to kill the victims were made. After the threats, he held Cummins at bay while the rapes were committed. Defendant participated in a discussion about whether Cummins should be killed, followed moments later by an attempt on Cummins' life and the two homicides. These facts, together with defendant's statement that he felt like hurting somebody, his role as a leader and enforcer in the group, and his belief before leaving the bridge that Richardson had gone to drown Julie Kerry in the river, are sufficient evidence to permit an inference by the jury that defendant had a conscious purpose of committing the acts in which he engaged so that the victims would be killed and that the homicides occurred after he coolly deliberated on the deaths for some amount of time, however short.

The facts in this case stand in stark contrast to those in O'Brien. The defendant there made an agreement with his codefendant to commit a strong-arm robbery. O'Brien's role was to lure the victim into an alley so his codefendant could commit the robbery. No deadly weapons were used or threatened to be used by O'Brien and none was displayed in his presence. No threat to kill was made by defendant or in defendant's presence. O'Brien departed the alley before the codefendant actually engaged in the egregious beating which resulted in the victim's death. O'Brien did not continue in his participation after it became apparent by threats or acts that deadly force would be used. In that case, this Court reversed the first degree murder conviction due to insufficiency of the evidence of deliberation. Id. at 220. As in O'Brien, the defendant here was not present when the victims were murdered. However, nothing in O'Brien suggests that in order to have deliberation, an accessory must actually have been present when the murder occurred. It is the threats to kill the victims made by defendant and threats of such force by others in defendant's presence that distinguishes O'Brien from this case. The totality of the evidence here permits an inference of deliberation. Thus, the claim of insufficient evidence of deliberation on the purpose to kill fails.

* * *

Defendant's next contention asserts plain error due to the trial court's failure to, sua sponte, interrupt the prosecutor's closing argument in the punishment phase which is here asserted to be racial in nature. Defendant, an African-American, claims the judge should have stopped the prosecutor from arguing he was a manipulating leader and should have prevented the prosecutor from describing the people defendant led as "normally female ... normally white ... normally middle-class ... normally they had a problem at home, self-esteem, something else ... not ... overly attractive."

Defendant claims these remarks were racist and should not have been allowed, citing United States v. Doe, 903 F.2d 16 (D.C.Cir.1990). Doe was a Jamaican defendant and the prosecutor and state's witness referred to Jamaicans as a race and to that race's role in drug trafficking. Contrary to Doe, the state in this case did not make a sweeping generalization about defendant's race.

Defendant also argues that the state's mention of race was impermissible, citing McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987). Defendant contends the state was attempting to incite racial tensions and prejudice based on interracial dating. McCleskey is not dispositive on this issue. McCleskey merely declined to accept the Baldus study on the impact of race in imposing death sentences. In this case, since the jury was evenly racially divided, defendant's argument appears somewhat disingenuous. There is no significant likelihood that racial bias influenced the jury in this case. See McCleskey at 309 n. 30, 107 S.Ct. at 1777 n. 30.

Defendant further takes issue with the prosecutor's characterization of defendant's leadership being similar to that of Charles Manson, although Manson's name was never mentioned. Defendant relies on Newlon v. Armontrout, 885 F.2d 1328 (8th Cir.1989), and State v. Whitfield, 837 S.W.2d 503 (Mo. banc 1992). The purpose of the state's argument was to explain that a person does not have to be present to commit the crime if he has participated in the planning. Using evidence adduced from the defendant's witnesses, the state made the following argument:

Well, the names, you know, Charles "Tex" Watson, came to me, Patricia Krenwinkle, Squeeky Fromme. You know, these names came to me and I said, what the heck, you know, why did that jump into my mind and I couldn't understand it. And then basically it came that people who are weaker, younger, problematic, can be manipulated and dealt with by somebody who is apparently stronger, who, like their leader, you know, was a poet, played the guitar, fancied himself a songwriter, but really had a problem.

In Newlon the state peppered its "send a message" argument with the names of Manson, Speck, and Son of Sam, even though there was no connection of those crimes to facts in the case under consideration. In contrast to Newlon, the state's reference to the Manson "family" was quite limited and relevant to explain how a leader can manipulate his followers. Additionally, the court in Newlon found error in the totality of the state's argument which also included, "If [defendant] was going to harm your child, would you kill him? ... If you think you would have, kill him now. Kill him now ... I'm talking to you as prosecuting attorney of this county--the top law enforcement officer in St. Louis County." 885 F.2d at 1342. Newlon is distinguishable.

In Whitfield, the state referred to the defendant as a mass murderer and serial killer because he had two prior homicide convictions. 837 S.W.2d at 513. Here the prosecutor did not call defendant a mass murderer, serial killer, or the like. Thus, Whitfield is inapposite. While we stop short of endorsing the argument here, the argument in this case did not rise to the level of manifest injustice, and the failure to make an objection does not constitute ineffective assistance of counsel.

Defendant makes a tangential argument that the state exceeded permissible bounds of victim impact evidence under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The evidence complained of included testimony that the victims held liberal political views, were caring, community involved, excellent students, advocates of social change, and "without a hateful bone in her body." In addition, during the penalty phase the prosecution presented a video of the Kerry family Christmas. "[The] state may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of specific harm caused by defendant." 501 U.S. at 825, 111 S.Ct. at 2608. The state is permitted to show the victims are individuals whose deaths represent a unique loss to society and to their family and that the victims are not simply "faceless strangers." Id. This point is denied.

XIV.

In defendant's next point, he claims the sentence of death was disproportionate pursuant to § 565.035.3(3). He argues that the verdict here violates the requirement of proportionality because of the uncertainty of the evidence of his guilt, the possibility of police or prosecutorial misconduct, and the absence of any evidence of his involvement in the killing, prior knowledge of the killing, use of a weapon or prior convictions.

If the case, taken as a whole, is plainly lacking in circumstances consistent with those in similar cases where the death penalty has been imposed, then a resentencing will be ordered. State v. Ramsey, 864 S.W.2d 320, 328 (Mo. banc 1993). In this case, the defendant and his companions committed the murders in furtherance of the brutal rape and robbery of the victims. The motive of defendant and his cohorts was to escape capture and identification. A number of cases may be cited in which the death penalty was assessed where the murder was committed to avoid arrest or detection. Ramsey, 864 S.W.2d 320; Six, 805 S.W.2d 159; State v. Grubbs, 724 S.W.2d 494 (Mo. banc 1987), aff'd., Grubbs v. Delo, 948 F.2d 1459 (8thCir.1991); State v. Kilgore, 771 S.W.2d 57 (Mo. banc 1989); State v. Griffin, 756 S.W.2d 475 (Mo. banc 1988). In other cases the death penalty has been imposed where the murder was committed in conjunction with other crimes involving force. Hunter, 840 S.W.2d 850; State v. Ervin, 835 S.W.2d 905 (Mo. banc 1992); State v. White, 813 S.W.2d 862 (Mo. banc 1991), rev'd. on other grounds; Six, 805 S.W.2d 159; State v. Powell, 798 S.W.2d 709 (Mo. banc 1990); State v. Reese, 795 S.W.2d 69 (Mo. banc 1990); State v. Petary, 781 S.W.2d 534 (Mo. banc 1989); Griffin, 756 S.W.2d 475; State v. Murray, 744 S.W.2d 762 (Mo. banc 1988); State v. Pollard, 735 S.W.2d 345 (Mo. banc 1987); State v. Young, 701 S.W.2d 429 (Mo. banc 1985); Betts, 646 S.W.2d 94. In addition, defendant in this case was the oldest of the group and appeared to take on the role of leader. That fact also appears in cases where the death penalty is imposed. Roberts, 709 S.W.2d 857; cf. McIlvoy v. State, 629 S.W.2d 333, 334 (Mo. banc 1982) (death penalty found to be disproportionate where defendant had limited intelligence and education and was a weakling and a follower). In addition, here there were two murders, as well as an attempted murder. The fact of multiple homicides or multiple attempts at homicide is consistent with facts in cases where the death penalty has been imposed. Ramsey, 864 S.W.2d 320; State v. Mease, 842 S.W.2d 98 (Mo. banc 1992); Hunter, 840 S.W.2d 850; Ervin, 835 S.W.2d 905; Powell, 798 S.W.2d 709; Reese, 795 S.W.2d 69; State v. Sloan, 756 S.W.2d 503 (Mo. banc 1988); Griffin, 756 S.W.2d 475; Murray, 744 S.W.2d 762; Young, 701 S.W.2d 429; State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984).

The defendant's claims of weaknesses of the evidence of his guilt and police misconduct were resolved against him by the trial judge and the jury. Those claims do not serve as a basis for finding the sentence to be disproportionate. In addition, the evidence of the defendant's absence at the time *390 of the actual killing is not dispositive of the question of proportionality. The death penalty has been sustained where there was no evidence that the defendant was present at the time of the actual murder. Six, 805 S.W.2d 159.

Defendant cites several cases in which the death penalty was imposed but which were reversed by this Court on appeal. Isa, 850 S.W.2d at 902; Whitfield, 837 S.W.2d 503; State v. Griffin, 848 S.W.2d 464 (Mo. banc 1993); State v. Wacaser, 794 S.W.2d 190 (Mo. banc 1990). Each of those cases involved a reversible error. No reversible error exists in this case. Thus, the cases relied on by defendant do not provide a reliable basis for attacking the proportionality of the death sentence.

To summarize, the circumstances of this case are consistent with similar cases in which the death penalty was imposed and nothing in this case indicates that the imposition of the death penalty is wanton or freakish. Ramsey, 864 S.W.2d at 328. Accordingly, the death sentences here were not disproportionate.

XV. In his final point, defendant contends that the errors complained of above as well as a litany of additional errors that he asserts have the cumulative effect of depriving him of a fair trial. This Court has rejected such a "cumulative error" theory, stating that "Numerous non-errors cannot add up to error." Hunter, 840 S.W.2d at 869-70. Having determined that none of defendant's previous points amount to reversible error, there can be no reversible error attributable to their cumulative effect. Also, a review of the claims of error presented in defendant's final point indicates that those complaints did not deprive him of a fair trial.

CONCLUSION

The judgments are affirmed.

Gray v. Bowersox, 281 F.3d 749 (8th Cir. 2002) (Habeas).

Following affirmance of murder conviction and death sentence, 887 S.W.2d 369, state prisoner petitioned for habeas corpus. The United States District Court for the Eastern District of Missouri, Carol E. Jackson, J., denied relief, and petitioner appealed. The Court of Appeals, Arnold, Circuit Judge, held that: (1) petitioner was not prejudiced by failure of trial counsel to object to remarks made by the trial court during voir dire on accomplice liability and reasonable doubt, which were objectionable in part; (2) evidence at the penalty phase with respect to certain of the victim's activities, including their "liberal" political views, and prosecutor's reference to this evidence during closing argument, did not violate either the Eighth Amendment or the Due Process Clause; (3) petitioner was not deprived of effective assistance of counsel when counsel failed to object to an obscure reference the prosecutor made to the Charles Manson case during penalty phase closing argument; and (4) isolated remarks by prosecutor during penalty phase, referring to the fact that most of the witnesses for the black defendant were white, did not result in substantial prejudice. Affirmed.

ARNOLD, Circuit Judge.
This is a death-penalty case in which the convicted defendant challenges his conviction and sentence by petition for writ of habeas corpus under 28 U.S.C. § 2254. The defendant, Marlin Gray, has been convicted and sentenced to death in connection with the murder of two sisters, Julie and Robin Kerry, in 1991. The District Court [FN1] denied relief in a thorough opinion. This appeal is before us on four issues: three having to do with alleged improprieties in the prosecution's penalty-phase closing argument to the jury, and one ground claiming ineffective assistance of counsel in not objecting to certain general instructions given to the jury panel during voir dire.

FN1. The Hon. Carol E. Jackson, United States District Judge for the Eastern District of Missouri.

We affirm the judgment of the District Court. With respect to the penalty-phase closing argument, we hold that some of the alleged improprieties were cured by rulings of the state trial court, and that two other arguments were either not improper or not prejudicial to the defendant in any material way. As to the comments of the state trial court to the jury panel during voir dire, we hold that ineffective assistance of counsel in failing to object has not been made out. Some of the comments were proper, so an objection, even if it had been made, would have been properly overruled. As to other parts of the comments, there is no reasonable probability, in our view, that they affected the outcome of this case, and therefore defendant cannot show the requisite prejudice.

I.

Petitioner did not kill Julie and Robin Kerry himself. Instead, according to the state and the verdict of the jury, he participated in a major way with three other men, Reginald (Reggie) Clemons, Antonio (Tony) Richardson, and Daniel Winfrey, in robbing the two victims and their cousin, Thomas Cummins, and in raping the two women. Under Missouri law, a person may be guilty of first-degree murder (and therefore eligible for the death penalty) without being the actual killer.

Participation in the planning and execution of felonies, here rape and robbery, however, is not sufficient in and of itself. It must also be shown that defendant's associates committed murder, that defendant cooperated with them, and that defendant, after deliberation, acted with them to cause the deaths. Deliberation means cool reflection for any length of time, no matter how brief. Mo.Rev.Stat. § 565.002(3) (1986) (the version of the statute in effect at the time of these crimes). There must be some evidence that the defendant himself made a decision to kill the victims before the murder. State v. O'Brien, 857 S.W.2d 212, 218 (Mo.1993) (en banc). The sufficiency of the evidence to establish Gray's guilt of first-degree murder is not one of the issues before us. Nonetheless, we briefly summarize the facts, both in order to give the reader the background of the case, and because the strength or weakness of the state's evidence is material to the question of prejudice. In doing so, we draw mainly on the opinion of the Supreme Court of Missouri affirming the conviction and sentence. State v. Gray, 887 S.W.2d 369 (Mo.1994) (en banc), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995).

The crimes occurred on the night of April 4-5, 1991, on the Chain of Rocks Bridge over the Mississippi River at St. Louis, Missouri. The bridge had been abandoned for some time. It was a popular party spot for teenagers and young adults. The two victims, Julie Kerry, age 20, and her sister Robin Kerry, age 19, met their cousin, Thomas Cummins, also 19, shortly before midnight, and took him to the bridge. They wanted to show him a graffiti poem they had previously painted on the bridge deck. When they got to the bridge, the Kerry sisters and Cummins met Gray, Winfrey, Clemons, and Richardson. Richardson and Winfrey were 16 and 15 years old respectively. Gray was the oldest and largest of the group.

After some conversation, the two groups separated, the Kerrys and Cummins walking east, towards Illinois, and Gray's group walking west, towards Missouri. During this walk, Clemons suggested to his three companions that they rob Cummins and the Kerrys. Gray smiled, clapped his hands, and said, "Yeah, I feel like hurting somebody." They began walking back towards the Kerry group. During the walk, Gray and Clemons had a conversation. Gray then handed Winfrey a condom, and Winfrey said he "wasn't going to do anything." Gray and Clemons pushed Winfrey against the railing of the bridge and said, "You're gonna do it." Winfrey then agreed to "do it."

The two groups met. Gray put his arm around Cummins and walked him ten to fifteen feet away. He told him, "This is a robbery. Get down on the ground." Gray told Cummins that if he looked up, Gray would kill or shoot him. At the same time, the other three confederates grabbed the two women, who screamed. One of the men said, "[D]o you want to die?" and ordered the girls to stop screaming or the speaker would "throw you off this bridge." It is a fair inference that defendant heard these statements, if he did not make them himself.

Clemons then raped Julie Kerry. Richardson held her. Richardson raped Robin Kerry. At some point, while these rapes were occurring, defendant went back to where Cummins was lying on the ground and said, "I've never had the privilege of popping somebody.... [I]f you put your head up or try to look, I'm going to pop you." Gray then told Winfrey to watch Cummins. Gray, with the assistance of Clemons, then raped Robin Kerry. While this rape was occurring, Richardson forced Julie Kerry into a manhole on the bridge deck. The manhole led to a metal platform and a concrete pier that supported the bridge. Gray had earlier shown this location to his three associates and to the Kerry group. When he had finished raping Robin, Gray went to Winfrey and asked where Richardson had gone. Winfrey pointed to the Missouri side of the river, and defendant ran off in that direction. Clemons then forced Robin Kerry and Cummins into the manhole and told Winfrey to find Gray. Julie and Robin were then pushed into the river, a distance of fifty to seventy feet. They were killed. Cummins was told to jump, and he did. He survived to testify at Gray's trial. Meanwhile, Winfrey had found Gray, and they were returning back to the bridge. Clemons and Richardson met them. Clemons said, "We threw them off. Let's go." The group then left the bridge. Clemons said, "They'll never make it to shore." Gray praised Richardson for being "brave" to push the Kerry sisters off the bridge.

Gray himself did not do the killing or directly participate in it. He did, however, participate in the planning of the robbery and the planning and execution of the rape. He twice threatened to kill Cummins, which shows murderous intent. He continued in the criminal enterprise. He knew that the women had been threatened with death. He complimented his friends on the killings after they had occurred. There is ample evidence here of participation and deliberation to justify a verdict of guilty on charges of first-degree murder.

* * *

Next, objections are made to certain other passages in the prosecutor's closing argument in the penalty phase. The prosecutor made three references to the Charles Manson case. Objections were sustained to the first and third references, but no contemporaneous objection was made to the second one. We summarize what happened.

The prosecutor made the following statement: You know, I sat here, also, yesterday listening to his witnesses and I got this strange feeling that, you know, something was wrong here. Couldn't put my finger on it. I kept seeing the witnesses and seeing the witnesses. As I pointed out they're white, middle class, problem, not accepted at home for some reason or another, low self esteem. I said something's--and then I looked at, you know, I talked about this crime. And it struck me. Do you remember California? Do you remember the man that never went into the house?

MS. HIRZY: I'll object, your Honor, to any outside reference to any other case. THE COURT: I'll sustain the objection. MS. HIRZY: Ask the jury be instructed to disregard. THE COURT: I'll make that instruction. MR. MOSS: Can we approach the bench. (At this time a bench conference was held.) MR. MOSS: There are no restrictions in here as long as I don't call him Hitler and I don't call him-- THE COURT: What are you going to talk about? MR. MOSS: I'm going to talk about the Manson murders and how the manipulation occurred there. MS. HIRZY: There's been no evidence presented and you can't just bring in any facts. MR. MOSS: This is not an evidence matter. THE COURT: This is, look, your argument is going to be manipulation? MR. MOSS: Manipulation of women and of weaker younger people who have problems that the guy that did that-- THE COURT: You're not going to call this guy Manson, are you? MR. MOSS: No. THE COURT: I'll overrule the objection.

The objection is that nothing about the Manson case had been put in evidence, and that referring to it was irrelevant to the individual blameworthiness of the defendant and likely to inflame the emotions of the jury. We find the reference to the Manson case rather obscure. We do not know how the jury understood it, nor are we sure that we ourselves would have made the connection. In any case, the court, in the presence of the jury, sustained the objection and stated, after being asked to instruct the jury to disregard, "I'll make that instruction." Although this statement, read literally, is in the future tense, we think the jury would have understood from the context that the court had ruled the prosecution's remarks improper, and that they were not to consider them. The later colloquy among court and counsel, resulting in the statement "I'll overrule the objection," occurred at a bench conference, out of the presence of the jury.

The argument then continued: MR. MOSS: Well, the names, you know, Charles "Tex" Watson came to me, Patricia Krenwinkle, Squeaky Fromme. You know, those names came to me and I said, what the heck, you know, why did that jump into my mind and I couldn't understand it. And then basically it came that people who are weaker, younger, problematic, can be manipulated and dealt with by somebody who is apparently stronger, who like their leader, you know, was a poet, played the guitar, fancied himself a songwriter, but really had a problem. The point is here, what you've got to understand is that you don't need to be there as you told me when you push them off, not if you've done all the handiwork beforehand. You don't need, you don't need to be the last one that shoves them off and hears them screaming as they go down.

No objection was made to this particular portion of the argument. Again, however, the reference to the Manson case is obscure. Manson's name was not mentioned. We have no idea whether the jury would have connected the names that were mentioned with Manson. The overall point, that someone can be lawfully subjected to the death penalty even if he is not "the ... one that shoves them off and hears them screaming as they go down" is not at all an improper argument. We do not fault counsel for not objecting at this point. Assuming that the jury connected both the first and second passages we have quoted with the Manson case, and believed it was being invited to consider petitioner a person as evil as Charles Manson, the jury would also no doubt remember that it had just been told that a similar argument was objectionable, and should be disregarded. Counsel may have thought that the objection need not be repeated. In any case, we are not convinced that this particular reference affected the verdict in any appreciable way.

Finally, during the prosecution's penalty-phase rebuttal, the prosecutor made the following argument: And that these ladies [referring to defense witnesses] would come in here and lie. Remember the case I was referring to in California. Do you remember the young ladies who were, of course, charged and the man, young man? But do you also remember the people that came outside the courthouse and when he shaved his head they shaved their heads and sat individually-- MS. HIRZY: I'm going to object again to this, your Honor. THE COURT: Objection is sustained. Proceed. MS. HIRZY: Ask the jury to disregard. THE COURT: The jury is ordered to disregard. Proceed.

As in the case of the first passage complained of, the court told the jury, this time without even arguable equivocation, that the remarks were objectionable, and that the jury should disregard them (this time using the present tense). The court's action was unambiguous. The only thing further that could have been done was to order a mistrial, and we do not see this incident as approaching such a level of prejudice. The prosecutor was attempting, apparently, to draw some kind of parallel between Manson's coterie and the witnesses for the defendant. Maybe the jury understood this attempted inference, but, if it did, it was promptly instructed to disregard it. We routinely assume that juries follow the court's instructions. Again, an ineffective-assistance argument is made. Assuming that it falls within the scope of the certificate of appealability, we reject it. Those arguments to which counsel failed to object, in our view, had no appreciable effect on the outcome of this case.

* * *

We have considered all of the arguments included within the certificate of appealability with the seriousness and gravity that the nature of the case demands. We hold that they are without merit. We express our appreciation to court-appointed counsel for petitioner for their dedicated service. The judgment of the District Court, dismissing with prejudice the petition for writ of habeas corpus, is Affirmed.