The Joplin Globe, Joplin, MO

April 30, 2013

VIDEO: Missouri’s high court focuses on two issues in Eastburn case

By Wally Kennedy

JEFFERSON CITY, Mo. — Two issues were dominant in the questions posed Tuesday by members of the Missouri Supreme Court to attorneys involved in the appeal of Sheena Eastburn.

The court, already briefed in writing by the attorneys, wanted to know about the March 1, 2011, agreement in McDonald County Circuit Court that reopened Eastburn’s case, which already had gone through appropriate appeal steps after the trial.

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. Perigo denied the appeal on a procedural question related to the reopening of the case as a successive motion.

Shaun Mackelprang, state assistant attorney general, said Perigo correctly found that the parties did not agree to reopen the hearing, but merely agreed to proceed on a successive post-conviction motion. The state contends that the circuit court did not have the authority under court rules to consider Eastburn’s post-conviction motion and claims.

Eastburn’s attorney, Kent Gipson, argued that Perigo and McDonald County Prosecutor Jonathan Pierce agreed to reopen the case “and six months later changed their minds. The court had signed the reopening.

“I was there, and I know what happened,” Gipson said.

The high court also wanted to know more about whether the U.S. Supreme Court’s decision in June 2012 in Miller v. Alabama should be considered as retroactive. In that decision, the Supreme Court ruled that the Eighth Amendment forbids sentencing that mandates life in prison without the possibility for parole for juvenile homicide offenders. But the court did not address what should be done with those who already had been sentenced to life without parole.

Eastburn, of McDonald County, was 17 when her ex-husband, Tim Eastburn, was shot with his own rifle by two men in her company the night of Nov. 19, 1992, at his rural residence near Rocky Comfort. Though she did not pull the trigger, Eastburn was sentenced to life in prison without the possibility of parole. Prosecutors said she was the mastermind behind the murder.

Since Eastburn was a juvenile at the time of the murder, the court asked Tuesday whether the decision in Miller v. Alabama retroactively overturned her conviction on the first-degree murder charge or whether some other course of action might be in order.

Gipson, her attorney, told the court that “the cleanest and best way” to handle the 84 cases in the state like Eastburn’s would be to overturn the convictions and let new sentencings take place, either by judge or jury, in the trial courts on the lesser conviction of second-degree murder, which holds the possibility of parole.

The state’s position on the appropriate remedy would be to vacate the unconstitutional sentence of life without parole for the offense of first-degree murder and order resentencing in which a sentence of life with parole could be considered for the same offense.

Gipson argued that the court does not have the constitutional authority to order the remedy suggested by the state because a sentence of life with parole was not included in the state’s first-degree murder statute by the Missouri General Assembly.

Missouri’s first-degree murder statute provides for only two penalties: death or life without parole. Both penalties are unconstitutional for juvenile offenders under the U.S. Supreme Court decision. Gipson said Missouri law is clear: Where a criminal statute is unconstitutional as applied to a particular defendant, the conviction must be reversed.

The Missouri Association of Criminal Defense Lawyers, in a brief to the Missouri Supreme Court, argued that the trial court in McDonald County erred, abused its discretion and abdicated its jurisdiction in dismissing Eastburn’s reopened action for post-conviction relief.

The association contends that the U.S. Constitution prohibits a sentence of life imprisonment without parole for juvenile offenders and that Eastburn should have been given a remedy for her unlawful sentence. The association said Eastburn is entitled to sentencing under the portions of the state sentencing statutes not rendered unconstitutional by the U.S. Supreme Court.

If the court throws out Eastburn’s first-degree murder conviction in favor 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.

The Missouri Supreme Court heard about 21 minutes of arguments from both Mackelprang and Gipson.

The appeal alleges that Eastburn’s trial lawyer was unaware of a mental evaluation that showed she suffered from post-traumatic stress disorder, borderline intellectual functioning and a history of sexual abuse, and that she had an IQ of 80. The evaluation, had it been presented to the jury, would have shown that Eastburn was incapable of the cool deliberation that was needed to mastermind her ex-husband’s murder, the appeal contends.

Instead, the appeal argues that Eastburn’s jealous lover at the time, Terry Banks, became enraged when he saw her kiss her ex-husband in the kitchen of his home that night. Banks used Tim Eastburn’s AK-47 rifle to shoot him through a kitchen window. His accomplice, Matt Myers, shot him again to “finish him off.”

Myers entered into a plea bargain and was assessed 67 years on a reduced charge of second-degree murder. He is eligible for parole. Banks was convicted of murder in the first degree and was sentenced to life without parole.

The jury also did not hear that Eastburn allegedly was raped by a McDonald County sheriff’s deputy while she was awaiting trial on the murder charge.

Now what?

KENT GIPSON, the attorney representing Sheena Eastburn, said the Missouri Supreme Court could decide the fate of Eastburn’s appeal when it issues a ruling in about two months.