Aptness of death penalty remains issue in trial

Joplin Metro

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March 15, 2010

Anonymous The Joplin Globe Mon Mar 15, 2010, 09:18 PM CDT

By Jeff Lehr

jlehr@joplinglobe.com

With his third trial little more than four months away, Gary Black’s attorneys continue to take issue with the proportionality of the Jasper County prosecutor seeking the death penalty in their client’s murder case.

At a motions hearing Monday in Jasper County Circuit Court, defense attorney William Shull asked the court to compel Prosecutor Dean Dankelson to provide a complete record of his office’s handling of first-degree murder cases.

Shull suggested that such a record was needed for the defense to determine if there was any pattern of discrimination in the office’s determination of which cases warrant the death penalty. He further suggested that the prosecutor might be continuing to seek the death penalty in Black’s 11-year-old case because of perceived racial pressures inherent in the fact that the man who died, 28-year-old college student Jason O. Johnson, was black and the defendant is white.

Dankelson bristled at the suggestion.

“It’s absolutely and categorically untrue,” Dankelson told the court.

He said his office’s track record in murder cases is a matter of public record and is available to the defense. He said the defense’s motion appeared to be an effort to get the state to do the defense’s homework for it on the proportionality issue.

“I don’t think we’re obliged to do their research for them,” Dankelson said.

Shull told Circuit Judge David Mouton that the defense has no assurance that those cases that are public record are a complete accounting of all cases in which first-degree murder charges were ever filed at some point. For instance, cases in which a jury may have acquitted a defendant would be closed, he said. Also of importance for comparison’s sake might be cases in which first-degree murder charges were later reduced, he said.

Assistant prosecutor Norman Rouse said he believes the case has already passed the proportionality test with the Missouri Supreme Court.

The state’s high court has overturned two first-degree murder convictions by juries in Black’s case. The defendant was assessed the death penalty at both trials. The Missouri Supreme Court based its decisions to overturn the convictions on matters other than proportionality, most recently ruling that Black should have been allowed to act as his own attorney at the second trial.

Mouton overruled that particular defense motion Monday. But he took under advisement defense motions to preclude the state from using as evidence or displaying to the jury any photographs of Johnson before his death that might prejudice jurors against the defendant; to compel disclosure of any exculpatory evidence the state may possess with respect to the penalty phase of the trial as well as the guilt-or-innocence phase; and to conduct jury selection in small groups of potential jurors on the issues of pretrial publicity, attitudes toward the death penalty and juror hardship.

Black is accused of pursuing Johnson on Oct. 2, 1998, from a convenience store on East Fourth Street to downtown Joplin, and stabbing him in the neck as Johnson sat in a pickup truck at a stoplight. An encounter between Johnson and Black’s girlfriend in the store preceded the alleged killing.

Third trial plan

Jury selection in Gary Black’s third trial is scheduled for July 29-30 in Harrisonville. Cass County jurors will be selected to be brought to Joplin and sequestered for the trial, scheduled for Aug. 2-6.

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Aptness of death penalty remains issue in trial

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