By Wally Kennedy
Globe Staff Writer
PINEVILLE, Mo. —
A hearing in the appeal of Sheena Eastburn before the Missouri Supreme Court has been removed from the docket and will not be heard on Feb. 28.
According to a court spokeswoman, the court did not state a reason for its action. A new date for the hearing was not set by the court.
Kent Gipson, attorney for Eastburn, said he is hopeful the court will reset the hearing date for later this spring.
A brief in support of the appeal for Eastburn — a McDonald County woman who at age 17 was charged in 1992 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 in late December.
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 state Supreme Court granted the motion. The cases were to be heard on Feb. 28. Now, neither case is to be heard on that date.
A spokeswoman for Missouri Attorney General Chris Koster also said the court did not state a reason for its action. The attorney general’s office will represent the state before the court.
The St. Louis case is a direct appeal case that did 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 statutes such as that in Missouri and similar statutes in other states that permitted that sentencing to be unconstitutional.
After the ruling, a spokeswoman for Koster said the attorney general’s office was taking the position that the court’s decision did not apply retroactively. The Eastburn case, according to Gipson, would address that issue. The court expedited Eastburn’s hearing for that reason.
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.
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.
Eastburn was accused of luring 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. Myers was sentenced to 67 years in prison on a reduced charge of second-degree murder. Banks was convicted of first-degree murder and was sentenced to life without parole.
If the appeal before the Missouri Supreme Court goes forward and is upheld, the matter would revert to Circuit Judge Tim Perigo. He would be tasked with deciding whether a new trial is warranted or whether Sheena Eastburn’s conviction on the first-degree murder charge should be overturned because of the U.S. Supreme Court ruling.