The Joplin Globe, Joplin, MO

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April 30, 2013

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

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.

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