On December 15, 1988 Mildred Hodges, aged 75, and her son Richard, aged 49, were murdered in Jefferson City, Missouri. Bert Leroy Hunter, a man in his forties who had been convicted of murder in 1968 and paroled in 1980, was indicted in March 1989 with two counts of first degree murder and one count of first degree robbery. A second man, Tomas Ervin, was tried separately for the same crimes.
Hunter did something unusual in a capital case. He tried to plead guilty from the first day, and when his appointed lawyer advised against it he dismissed the lawyer and entered the pleas himself. On July 21, 1989 a judge of the Circuit Court of Cole County accepted them. After the pleas were taken, Hunter asked to withdraw them, and the court refused. In February 1990 the judge sentenced him to death on both murder counts, without a jury at any stage. The Supreme Court of Missouri affirmed in 1992, a federal appeals court affirmed in 1999, and Hunter was executed in Potosi on June 28, 2000, at the age of 53. He was apparently the first inmate in Missouri history to be executed without having had a jury trial.
Hunter was born on March 7, 1947. The Missouri Supreme Court recorded that he had been involved with the criminal justice system since the 1960s. He had been convicted of an earlier murder in 1968 and was paroled in 1980. In the later appeals the courts treated that earlier murder conviction as a conviction for a "serious assaultive" crime under section 565.032.2(1) of the Missouri statutes, and it became one of the aggravating circumstances in his sentence.
Psychiatrists who examined him after his arrest described a man of at least average intelligence. One diagnosed an antisocial personality disorder. Evidence at the later hearings showed that he had used drugs daily for about a year before his arrest in February 1989.
Mildred Hodges was 75 and her son Richard was 49. They were killed in Jefferson City on December 15, 1988.
The Eighth Circuit's 1999 opinion names Hunter and Tomas Ervin as the two men involved. Hunter later said that he and an unnamed accomplice were responsible, and he denied that Ervin had taken part.
Hunter was arrested in February 1989. The Missouri Supreme Court later rejected a claim that police had questioned him improperly after he invoked a right, holding that officers complied with the rule on limited invocations. An indictment was filed on March 28, 1989. It charged Hunter with two counts of first degree murder under section 565.020.1 and one count of first degree robbery under section 569.020.
At the arraignment on April 4, 1989 Hunter stood mute and the court entered not guilty pleas on all three counts. The judge ordered a mental examination. Hunter had a court-appointed lawyer throughout this period.
From the start Hunter wanted to plead guilty. His lawyer advised him to wait for the psychiatric report, which was filed on July 6, 1989. It found him capable of assisting in his own defense, though the examiner noted that the evaluation was incomplete because Hunter had not fully cooperated.
At a hearing on July 17, 1989 the two disagreed openly. Hunter said he had "been trying to plead guilty from day one," and that if his lawyer insisted on a trial, "then I'll have to get another lawyer." Judge Kinder postponed the matter, offered a further psychiatric evaluation, which Hunter declined, and allowed time for reconciliation. Four days later, on July 21, Hunter again asked to plead guilty over his lawyer's objection. The judge asked whether he wished to dismiss his lawyer. Hunter answered that representing himself "would be fine. That would be faster." The judge warned him that self-representation was "fraught with peril," and Hunter replied that he "somewhat" understood this. The judge allowed him to proceed on his own, with the lawyer remaining as standby counsel who was "not going to be bound by what he does here."
The judge also told Hunter plainly that "I'm the one that's going to determine what happens to you," and that he had sentenced people to death before. The court then found that Hunter's waivers of a jury at both the guilt and the punishment stages were knowing and voluntary, that the pleas were voluntary, and that a factual basis for them existed. It accepted the guilty pleas to all three counts and ordered a second psychiatric report and a presentence investigation.
On October 18, 1989 Hunter's counsel moved to withdraw the pleas. The hearing was held on November 7. Hunter's federal habeas petition later summarized his claim as depression arising from drug withdrawal and coercion from his confinement. A pharmacologist testified that withdrawal could cause depression. The second psychiatric report, by a different examiner, found Hunter competent and described his understanding of the law as "impeccable." The judge overruled the motion.
After a lengthy sentencing hearing on February 15, 1990, Judge Kinder sentenced Hunter to death on each of the two murder counts and to life imprisonment on the robbery count. The warrant of execution found three aggravating circumstances beyond a reasonable doubt: a prior murder conviction; that the murders were committed during a robbery; and that the murder of Richard Hodges was committed while Hunter was also murdering Mildred Hodges. The judge found that these outweighed any mitigating circumstances. Evidence that drug abuse and withdrawal had produced depression was offered in mitigation, and the judge said he was "not impressed" with it. He also told Hunter: "If I really wanted to be a cruel man, I'd probably sentence you to life without parole."
Hunter's direct appeal was held while he pursued a motion for post-conviction relief under Missouri Rule 24.035, which applies to defendants who pleaded guilty. He filed it himself on April 25, 1990 and an amended motion followed on June 29, 1990. After an evidentiary hearing Judge McHenry denied relief in findings filed on July 24, 1991. A defense expert testified that drug abuse and confinement had caused severe depression, and conceded on cross-examination that Hunter had not been out of touch with reality and could reason logically at the time of the plea. The sentencing judge's deposition was also used.
The Supreme Court of Missouri, sitting en banc, decided the consolidated appeals in State v. Hunter on October 27, 1992, in an opinion by Judge Holstein, with rehearing denied and the opinion modified on November 24, 1992. Hunter had raised seven groups of claims: the voluntariness of his waiver of counsel; the voluntariness of the plea and his competence; the factual basis for it; bias in the trial judge; errors in sentencing; the proportionality of the death sentence; and ineffective assistance of counsel.
On the waiver of counsel the court said the question turned on "the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused," and found that Hunter understood the charges, the penalties and his right to a jury. It held that the statutory requirement of a written waiver did not apply because he had standby and hybrid counsel throughout, while cautioning trial courts to obtain written waivers where possible. It found no incompetence, noting that depression does not automatically bar a plea, and it rejected the claim that confinement had coerced him, since he had said he wanted to plead before he was placed in it. It held that his own admissions at the plea hearing supplied a factual basis for the charge of first degree murder, including the count concerning Mildred Hodges. It found no disqualifying bias in the judge's remarks, and no error in the use of the presentence report. It found the death sentence proportionate to those affirmed in similar cases, naming the separate case against Ervin among them. The United States Supreme Court denied certiorari in 1993.
Hunter's federal litigation was unusual because he himself repeatedly worked against it. A pro se habeas petition filed in the Western District of Missouri after the denial of certiorari was one that Hunter, over his counsel's objection, moved to dismiss, saying he had not authorized it. The district court refused, and the Eighth Circuit issued a writ of prohibition in 1994, after which the petition was dismissed without prejudice. In August 1994 Hunter filed a second petition on his own. The district court found that no authorized petition had been filed and denied a stay of execution. The Eighth Circuit granted a limited stay and returned the case. Counsel was appointed, Hunter declined to cooperate with counsel, and the district court dismissed the petition with prejudice. In Hunter v. Delo, 62 F.3d 271 (8th Cir. 1995), the Eighth Circuit reversed, giving him another opportunity to proceed on the merits.
In February 1996 an amended petition set out nine claims, among them an invalid plea, the lack of a factual basis, judicial bias, improper sentencing, ineffective assistance of counsel, a disproportionate sentence, and abandonment by post-conviction counsel. The district court denied it in November 1996 without an evidentiary hearing. The Eighth Circuit had the appeal submitted on September 21, 1998 to Judges McMillian, Loken and Hansen, and on March 22, 1999 affirmed in Hunter v. Bowersox, in an opinion by Judge Loken. It held that the state courts had found Hunter competent and that the record supported them, that the plea was knowing, intelligent and voluntary, and that his own statements at the plea hearings rejected the argument that drug withdrawal or solitary confinement had coerced him. It added that a plea need not be rational "in the sense Hunter urged." It held that three aggravating circumstances were supported by substantial evidence and that the weight given to mitigating evidence could not be reviewed on habeas. Claims of ineffective assistance failed for the period through the plea, because Hunter had discharged his counsel and pleaded guilty against their advice.
In late June 2000 Hunter's lawyers applied to Governor Mel Carnahan for a stay, an investigation and a reprieve. They argued that Hunter had been incompetent to plead guilty or to waive counsel, that the factual basis for the count concerning Mildred Hodges was weak, and that a third party might have been responsible. They said the judge at the plea hearing had himself expressed doubt about the factual basis for that count, and that Hunter had been suicidal and depressed at the time. These were the arguments of his lawyers; the courts had rejected the corresponding claims.
Dozens of United Methodist ministers signed a letter asking the governor to halt the execution, and the bishop of the Missouri conference wrote separately asking that executions be suspended while a study was made of whether the state should keep the death penalty. The governor's spokesman said that he "has to make a decision based on the facts of this case and Missouri law." Carnahan said he believed the safeguards in the system were enough to catch any mistake if Hunter were innocent. On June 27, 2000 the United States Supreme Court denied Hunter's application for a stay of execution and his petition for a writ of habeas corpus. The governor declined to intervene.
Bert Leroy Hunter was executed in Potosi, Missouri, on June 28, 2000. He was 53.
Ervin was tried in Callaway County after a change of venue from Cole County and was also sentenced to death.
Under Missouri law first degree murder is defined in section 565.020, and a death sentence depends on the finding of at least one statutory aggravating circumstance under section 565.032. In Hunter's case the judge found three. A defendant who pleads guilty in Missouri may challenge the plea and the lawyering around it through a post-conviction motion under Rule 24.035, which Hunter used, and the Supreme Court of Missouri reviews a death sentence for proportionality against similar cases, as it did here. Federal review of a state death sentence is by a habeas petition, and the Eighth Circuit applied the pre-1996 standards of review to Hunter's case, ruling that the federal statute of 1996 limiting such petitions did not alter the standards for his pending capital appeal, although it applied its requirement of a certificate of appealability.
Hunter gave different accounts of who took part in the murders. He admitted taking part in the robbery but said an unnamed accomplice was responsible for the killings, and he later said Ervin had no part and that he had named Ervin falsely because Ervin had turned him in. Ervin was convicted by a jury.
His lawyers argued in 2000 that a third party might have been responsible and that the factual basis for one count was weak. The Supreme Court of Missouri found a factual basis for both counts in Hunter's own admissions at the plea hearing, and the Eighth Circuit upheld the state courts' findings that he was competent.
The place of the 1968 conviction and the course of the investigation between December 15, 1988 and February 1989 are not on record.
March 7, 1947: Bert Leroy Hunter is born.
1968: Hunter is convicted of an earlier murder; he is paroled in 1980.
December 15, 1988: Mildred Hodges, 75, and her son Richard, 49, are murdered in Jefferson City.
February 1989: Hunter is arrested.
March 28, 1989: Indictment on two counts of first degree murder and one count of first degree robbery.
April 4, 1989: Arraignment; not guilty pleas entered after Hunter stands mute.
July 6, 1989: First psychiatric report filed.
July 17, 1989: Hearing at which Hunter and his lawyer disagree.
July 21, 1989: Hunter dismisses his lawyer, waives a jury and pleads guilty to all three counts.
October 18, 1989: Motion to withdraw the pleas; denied after a hearing on November 7.
February 15, 1990: Sentenced to death on each murder count and to life imprisonment on the robbery count.
April 25, 1990: Motion for post-conviction relief filed; amended June 29, 1990.
July 24, 1991: Post-conviction relief denied.
October 27, 1992: Supreme Court of Missouri affirms; opinion modified November 24, 1992.
1993: Certiorari denied.
1994: The Eighth Circuit issues a writ of prohibition in the first federal proceeding; Hunter files a second petition in August.
1995: Hunter v. Delo, Eighth Circuit, reinstates the federal proceedings.
November 1996: District court denies the amended petition.
March 22, 1999: Eighth Circuit affirms in Hunter v. Bowersox.
June 27, 2000: U.S. Supreme Court denies a stay and the habeas petition.
June 28, 2000: Hunter is executed in Potosi, Missouri.