Too late to stop the hangman?

Certain facts of the case are not in dispute. On Oct. 18, 1985, Gary Barber, Joseph Amrine and the three witnesses who testified against Amrine at his trial -- Terry Russell, Randall Ferguson and Jerry Poe -- were all in the prison recreation room, along with several other inmates. At some point, Barber was fatally stabbed with a knife. He briefly attempted to chase his assailant, then collapsed and died.

A prison guard, John Noble, did not see the actual stabbing, but saw the chase. He told other guards that the man running from the scene of the crime was Terry Russell, who was subsequently taken into custody and read his Miranda rights. There were other witnesses who claimed they actually saw Russell stab Barber, but for reasons that remain unclear, they were not called at Amrine's trial. (One inmate, Kevin Dean, was standing in shackles in the hall outside the courtroom, ready to testify for the defense that he had seen Russell kill Barber, but he was never called.)

Russell, after first claiming that he didn't know what had happened, changed his story to say that Amrine had been the killer. Amrine had killed Barber, Russell told authorities, because Barber had been claiming he had had sex with Amrine. Although other inmates insisted that Amrine was innocent, and that he had been seated at a table with them playing cards during the incident, two other inmates, Ferguson and Poe, later joined Russell in accusing Amrine.

Cole County, Mo., prosecutors chose to charge Amrine, rather than Russell, which was the first head-scratcher in the case. Only a week before the slaying, Russell and Barber had been in a violent altercation and had only just been released from segregated detention, which would seem to make Russell a more likely suspect. And while Russell still denies that he killed Barber, he nonetheless now admits he falsely accused Amrine of the murder because he had already been informed by investigators that he himself was the prime suspect in the case, and he wanted to deflect attention onto someone else. The ploy worked for Russell: His cooperation with the prosecution in the Amrine case earned him an early parole from prison, shortly after which he killed another man.

Ferguson and Poe backed Russell's story about Amrine being the killer. Now both say they lied about it, because they were being sexually threatened by another inmate, and that prison authorities and investigators promised them protective custody if they testified against Amrine. Ferguson, who also had felony weapons possession charges dropped by the prosecutor in return for his testimony against Amrine, reportedly began regretting his role in convicting Amrine as soon as the sentence was read. He immediately began writing letters to various authorities saying he had lied and wanted to straighten things out. But he was ignored until Amrine's appellate lawyers learned years later that he'd changed his story. O'Brien says Ferguson was recently tested by a polygraph expert, who found him to be telling the truth about his recantation.

Poe, who told prison authorities that Amrine killed Barber after he saw Amrine arrested for the murder, now says that he decided to offer false testimony in hopes of getting protective custody to prevent his being accosted by another inmate who was a sexual predator within the prison. But he took 10 years to come forward, and it was his recantation that Judge Gaitan ruled wasn't credible.

Missouri is one of the nation's leading death-penalty states, with 72 inmates currently on its death row and 55 executed since the death penalty was reinstated in 1989 (placing it third, in total number of executions, behind Texas and Virginia, according to statistics compiled by the Death Penalty Information Center.) It gained international attention when Pope John Paul II succeeded in getting one man's death penalty commuted by an appeal to the late Gov. Mel Carnahan in January 1999.

As a historical footnote, it was under then-state Attorney General John Ashcroft, now the U.S. attorney general, that the initial decision was made to fight Amrine's appeal, even though witnesses had recanted. Sean O'Brien, director of the Public Interest Litigation Clinic at the University of Missouri Law School in Kansas City, says that decision was vintage Ashcroft.

"While his fingerprints aren't on this case, he set the tone in the office," O'Brien charges, "that the attorney general's office is duty-bound to oppose all applications for relief, no matter how meritorious. In other words, they would continue to press for execution even if there is some doubt about guilt."

Cole County's current prosecutor, Richard Callahan, who took office a year after the Amrine trial, says that as a matter of policy, he has never brought a murder case where all the prosecution witnesses are jailhouse snitches. He says he would not have brought this particular case, and adds that the fact that all the witnesses have since recanted is "deeply troubling to me."

"There have been so many cases of jailhouse snitches being proven to have been unreliable, and here where you have all these recantations, you really have to question the original conviction," agrees Barry Scheck of the Innocence Project. "Even many prosecutors and judges have spoken out against the use of jailhouse snitches as critical witnesses, especially in death-penalty cases." Scheck notes that a large number of the 102 cases his organization has succeeded in overturning based on DNA evidence involved jailhouse witnesses testifying for the prosecution.

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