By Wally Kennedy
Globe Staff Writer
PINEVILLE, Mo. —
The Missouri Supreme Court will hear arguments Feb. 28 in the appeal of Sheena Eastburn.
A brief in support of the appeal for Eastburn — a McDonald County woman who at age 17 was charged with first-degree murder in her ex-husband’s death and then in 1995 was sentenced to life in prison with no chance for parole — was filed last week.
Her attorney, Kent Gipson, of Kansas City, filed a motion to expedite the hearing and put it on the same track as a similar case on appeal from St. Louis. The court granted that motion. The cases will be heard on the same day.
Gipson said the St. Louis case is a direct appeal case that does not ask the court to rule on the issue of “retroactivity” with regard to a June 2012 decision by the U.S. Supreme Court in Miller v. Alabama. The court ruled that the Eighth Amendment forbids sentencing that mandates life in prison without the possibility for parole for juvenile homicide offenders. The court’s decision found a Missouri statute and similar statutes in other states that permitted that sentencing to be unconstitutional.
After the ruling, a spokeswoman for Missouri Attorney General Chris Koster said the attorney general’s office was taking the position that the court’s decision does not apply retroactively. The attorney general’s office will represent the state at the Feb. 28 hearing.
A decision from the court could be expected 60 days or so after the hearing.
Gipson said he will argue that Eastburn’s first-degree murder conviction should be vacated and that she should be found guilty of second-degree murder. Such a ruling could open the door for Eastburn, a prisoner at Chillicothe Correctional Center, to be sentenced to life in prison with the possibility of parole.
Gipson said the Eastburn case will pose that question to the court, and that was the reason the court approved the motion to expedite the hearing. The court, he said, will spell out what the remedy and re-sentencing should be, and whether the U.S. Supreme Court ruling should be considered as retroactive.
“These cases are interrelated. It is in everybody’s interest to resolve these issues for our juveniles without parole if we can,” Gipson said. “The procedure to be followed will be the same in both cases. The only difference is the issue of the retroactivity of the decision. The court has moved this along, which is a good thing.”
The appeal to the high court was filed after Circuit Judge Tim Perigo in McDonald County denied a motion for a new trial that was based on claims of ineffective counsel during Eastburn’s 1995 trial.
Citing a technicality, Perigo said his ruling in September “was procedural in nature because the Supreme Court ruled last year that it is the court’s duty to follow the rules of the Supreme Court. Those rules say a court shall not entertain a successive motion.
“This was a successive motion in that the original motion for a new trial was appealed in 1997 and denied. Any motion after that would be successive. I shall not entertain a successive motion in this case.”
If the appeal before the Missouri Supreme Court is upheld, the matter would revert to Perigo, who would be tasked with deciding whether a new trial is warranted or whether Eastburn’s conviction on the first-degree murder charge should be overturned because of the U.S. Supreme Court ruling.
With regard to the claim of ineffectiveness of counsel in 1995, Gipson said the jury in Eastburn’s trial did not hear that she allegedly was raped two times by a jailer while being held in the McDonald County Jail. The jury also was not told that Eastburn allegedly became pregnant while in jail and that her pregnancy allegedly was aborted.
The jailer, Terrie Zornes, of Pineville, was charged in the Eastburn rape case after new evidence came to light in 2011. In a plea bargain in September 2011, he obtained dismissal of the rape charge involving Eastburn in exchange for pleading guilty to making sexual advances toward a 14-year-old girl in 2010. He is serving four years in a state prison.
The motion for a new trial, citing ineffective counsel, was filed in September 2010. The court held evidentiary hearings in which witnesses gave conflicting testimony about Eastburn’s 1995 trial in McDonald County.
Prosecutors alleged that Sheena Eastburn, then 17, lured her ex-husband, Tim Eastburn, into the kitchen of his home near Rocky Comfort on Nov. 19, 1992, setting him up to be shot by Terry Banks and Matthew Myers. After a plea bargain, Myers was sentenced to 67 years on a reduced charge of second-degree murder. Banks was convicted of first-degree murder and was sentenced to life without parole.
Gipson contends that Sheena Eastburn was “under the substantial domination” of the two other defendants who participated in the murder.
Sheena Eastburn has testified that she had “no understanding of what was happening in court” at the time of her trial.