By Wally Kennedy
Sheena Eastburn will have her day before the Missouri Supreme Court today in Jefferson City.
Arguments appealing her McDonald County conviction of first-degree murder in her ex-husband’s 1992 death and her sentencing in 1995 to life in prison with no chance for parole will be presented at 9:30 a.m. by her attorney, Kent Gipson, of Kansas City.
In a June 2012 decision in Miller v. Alabama, the U.S. Supreme 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 other states that permitted that sentencing to be unconstitutional.
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.
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 presents two substantive constitutional issues to the high court: whether a mandatory sentence of life without parole, imposed for Eastburn’s role as an accomplice to a homicide committed by another when she was 17, violated the Eighth Amendment; and whether Eastburn received ineffective assistance of counsel because of a trial lawyer’s failure to investigate and present available mental health evidence about Eastburn.
The appeal alleges that her trial lawyer was unaware of a mental evaluation that showed that Eastburn 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, would shoot 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 deputy of the McDonald County Sheriff’s Department while she was awaiting trial on the murder charge.
Gipson filed a motion to put the appeal on the same track as a similar case on appeal from St. Louis. The state Supreme Court granted the motion.
After the U.S. Supreme Court ruling on the Eighth Amendment question, a spokeswoman for Missouri Attorney General Chris Koster said the attorney general’s office was taking the position that the court’s decision did not apply retroactively. The attorney general’s office will represent the state before the court today.
The St. Louis case is a direct appeal case that did not ask the court to rule on the issue of “retroactivity.” The Eastburn case, according to Gipson, will address that issue. The court expedited Eastburn’s hearing for that reason.
The appeal to the high court was filed after Circuit Judge Tim Perigo in McDonald County denied a motion for a new trial based on a procedural issue.
IF THE APPEAL before the Missouri Supreme Court is upheld, the matter would revert to Circuit Judge Tim Perigo. He would decide 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.