Rule 91 Cert Petition and Appendix

No.
_______
IN THE SUPREME COURT OF THE UNITED STATES
CECIL CLAYTON
Petitioner,
v.
STATE OF MISSOURI
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO

THE MISSOURI SUPREME COURT
APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
COMES NOW the petitioner and moves the Court for its order permitting
him to file the attached petition for a writ of habeas corpus in forma pauperis.
Petitioner has proceeded in forma pauperis at all stages of this proceeding in the
courts of the United States, and is represented by undersigned counsel Carlyle and
Hunt pursuant to the Criminal Justice Act. He is representated by counsel Willibey
and Carter by designation of the Missouri Public Defender System.
Respectfully submitted,
/s/ Elizabeth Unger Carlyle
Elizabeth Unger Carlyle
*Counsel of Record
P.O. Box 866
Columbus, MS 39703
(816)525-6540
FAX (866) 764-1249
ATTORNEY FOR PETITIONER
No._______
IN THE SUPREME COURT OF THE UNITED STATES
*****
CECIL CLAYTON
Petitioner,
v.
STATE OF MISSOURI
Respondent.
*****
ON PETITION FOR WRIT OF CERTIORARI TO
MISSOURI SUPREME COURT
*****
CAPITAL CASE: EXECUTION SCHEDULED
FOR MARCH 17, 2015 AT 6:00 P.M. CDT
PETITION FOR WRIT OF CERTIORARI
IN A CAPITAL CASE
*****
ELIZABETH UNGER CARLYLE
(Counsel of Record)
6320 Brookside Plaza #516
Kansas City, Missouri 64113
(816) 525-6540
elizabeth@carlyle-law.com
(Additional counsel on next page)
Susan M. Hunt
Livestock Exchange Building
1600 Genessee, Suite 806
Kansas City, MO 64102
Missouri Bar No. 36130
816-221-4588
FAX (816) 222-0856
Jeannie Willibey, Mo Bar No. 40997

Office of the Public Defender
920 Main Street, Suite 500
Tel: 816-889-7699
Fax: 816-889-2001
e-mail: Jeannie.Willibey@mspd.mo.gov
Pete Carter, #31401
Woodrail Center
1000 West Nifong, Bldg. 7, Ste. 100
Columbia, MO 65203
Phone: 573-777-9977
Fax: 573-777-9973
email: Pete.Carter@mspd.mo.gov
ATTORNEYS FOR CECIL CLAYTON
QUESTIONS PRESENTED
Petitioner Cecil Clayton, who is seventy-four years old, lost one-fifth of his
frontal lobe in an accident at a sawmill twenty years before the alleged offense,
when he was 32 years old. The injury caused a precipitous drop in his IQ and left
him totally disabled. Mr. Claytons IQ is consistent with intellectual disability. A
psychologist and psychiatrist have recently explained that his brain damage and
dementia have rendered him Ford incompetent. Without a hearing, the Missouri
Supreme Court denied relief. The case thus presents the following questions:
I. Having presented expert opinions of incompetence and a substantial
history of brain damage and resulting mental impairment, has Mr. Clayton met the
substantial threshold requirement to litigate his competence to be executed?
II. May the Missouri Supreme Court resolve the ultimate question of
competence on a paper record without giving Mr. Clayton the opportunity to present
or cross-examine witnesses?
III. Does the Cruel and Unusual Punishment Clause of the Eighth Amendment
prohibit the execution of an individual rendered intellectually disabled by a severe brain
injury suffered after the age of eighteen but before the commission of the homicide for
which he was convicted?
TABLE OF CONTENTS
Table of Contents ........................................................................................................... ii
Table of Authorities ....................................................................................................... v
Opinion below ................................................................................................................ 1
Jurisdiction .................................................................................................................... 1
Statutory and Constitutional Provisions Involved ....................................................... 1
Statement of the Case ................................................................................................... 2
History of Mr. Claytons impairment before trial .............................................. 2
Mental health evidence through the end of habeas proceedings ...................... 7
Evidence of ineligibility to be executed ............................................................ 10
Assertions of ineligibility to be executed.......................................................... 13
Reasons for Granting the Writ .................................................................................... 15
I. Mr. Clayton has met the Ford/Panetti threshold and is entitled to a
hearing on his competence to be executed ................................................... 15
II. The Missouri Supreme Courts ruling unconstitutionally narrows the
definition of incompetence to be executed.. ................................................. 22
A. Incompetence under Ford and Panetti.. .......................................... 22
B. Mr. Clayton has a liberty interest in Missouris definition of
competency, and has made a threshold showing under that
standard. ................................................................................................. 27
III. Mr. Clayton is Entitled to Present Evidence that His Low Intellectual
Functioning and Deficits in Adaptive Functioning Bar his Execution... ... 31
Conclusion .................................................................................................................... 37
ii
Appendix
Decision of the Missouri Supreme Court ......................................................... 1a
State v. Clayton, 995 S.W.2d 468 (Mo. banc 1999) ........................................ 48a
Clayton v. State, 63 S.W.3d 201 (Mo. banc 2001) .......................................... 81a
Clayton v. Luebbers, 4:02-CV-8001-NKL order ............................................. 96a
Clayton v. Roper, 515 F.3d 784 (8th Cir........................................................ 178a
Reports of Dr. John Tsang, January 24 & 26, 1972 .................................... 194a
Ozark Clinic evaluation January 24, 1979 .................................................. 198a
Letter from Dr. George Klinkerfuss, January 30, 1978 .............................. 201a
Extracts from Post-Conviction testimony of Dr. Daniel Foster .................. 204a
Southwestern Human Services evaluation, October 31, 1983 ................... 207a
Letter from Dr. James Bright, March 20, 1984 ........................................... 211a
Affidavit of Post-Conviction Counsel Laura Martin .................................... 212a
Report of Dr. Lea Ann Preston, USMCFP January 18, 2005 ..................... 215a
Report of Dr. William Logan, Nov. 3, 2008 .................................................. 247a
Report of Dr. William Logan, August 28, 2013 ............................................ 250a
Report of Dr. William Logan, January 7, 2015 ............................................ 254a
Report of Dr. Daniel Foster, November 17, 2008......................................... 258a
Report of Dr. Daniel Foster, November 24, 2013......................................... 260a
Report of Dr. Daniel Foster, January 15, 2015............................................ 264a
2009 Mandamus ............................................................................................ 279a
2012 Response to Motion to Set Execution Date ......................................... 391a
2014 Mandamus ............................................................................................ 419a
2014 Supplemental Show Cause Response .................................................. 455a
2015 Supplemental Show Cause Response .................................................. 487a
Petition for Writ of Habeas Corpus .............................................................. 491a
Wood v. Thaler, WDTX, unpublished order ................................................. 541a
iii
TABLE OF AUTHORITIES
Cases
Atkins v. Virginia, 536 U.S. 304 (2002) ................................................... 2, 31, 32, 33, 34, 35
Coker v. Georgia, 433 U.S. 584, 597 (1977) ................................................................................ 33
Danforth v. Minnesota, 552 U.S. 264 (2008) ...................................................................... 28

Ford v. Wainwright, 477 U.S. 399 (1986) ............... i, 2, 14, 15, 16, 17, 18, 19, 22, 23, 24, 27
Graham v. Florida, 560 U.S. 48, 62 (2010) ................................................................................. 34
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10 (1979) ...................................... 28
Gregg v. Georgia, 428 U.S. 153, 183 (1976) ............................................................................... 32
Hall v. Florida, 134 S.Ct. 1986 (2014)...................................................................... 2, 31, 32, 36
Hewitt v. Helms, 459 U.S. 460, 471-472 (1980) ................................................................. 28
Panetti v. Quarterman, 551. U.S. 930 (2007).... 2, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25,
27, 29, 37
Roper v. Simmons, 543 U.S. 551, 563 (2005) ......................................................................... 10, 33
State ex rel. Simmons v. Roper, 112 S.W.3d 397 (2003) ........................................................ 34, 35
State ex. rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014) ................. 22, 25, 29
Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009) ........................................................... 20, 22
Trop v. Dulles, 356 U.S. 86, 101 (1958) ....................................................................................... 31
Vitek v. Jones, 445 U.S. 480, 488-491 (1980) ..................................................................... 28
Weems v. United States, 217 U.S. 349, 378 (1910) ...................................................................... 31
Wood v. Thaler, 787 F.Supp.2d 458 (W.D. Tex. 2011)................................................ 21, 22
Statutes
28 U.S.C. 1257 ........................................................................................................................... 1
Mo. Rev. Stat. 552.060 ................................................................................................. 2, 27, 28
Mo. Rev. Stat. 565.030.6 ............................................................................................................ 34
United States Constitution, Amend. VIII ...................................... i, 1, 10, 15, 22, 24, 31, 33
United States Constitution, Amend. XIV.............................................................................. 1
Other Authorities
Am. Assn on Intellectual and Developmental Disabilities, Intellectual Disability: Definition,
Classification, and Systems of Support, 27 (2010) ................................................................... 32
John H. Blume, et al., An Empirical Look at Atkins v. Virginia and Its Application in Capital
Cases, 76 Tenn. L. Rev. 625, 636 (2009) ................................................................................. 34
iv
PETITION FOR WRIT OF CERTIORARI TO

THE MISSOURI SUPREME COURT
The Petitioner, Cecil Clayton, respectfully prays that a Writ of Certiorari
issue to review the judgment and opinion of the Missouri Supreme Court, rendered
in these proceedings on March 14, 2015.
OPINION BELOW
The Missouri Supreme Court denied Mr. Claytons petition for writ of habeas
corpus without an evidentiary hearing. The opinion is not yet published. It is
reprinted in the appendix to this petition at page 1a. Three of the seven justices of
the Missouri Supreme Court dissented. App. pp. 36-48a.
JURISDICTION
The Missouri Supreme Court entered its judgment on March 14, 2015.
The jurisdiction of this Court is invoked under 28 U.S.C. 1257.
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution, Amend. VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
United States Constitution, Amend. XIV, sec. 1
No state shall . . . deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of
the laws.
STATEMENT OF THE CASE

This capital case is before the Court on the petition of Missouri state prisoner
Cecil Clayton, seeking relief from a decision of the Missouri Supreme Court denying
him a writ of habeas corpus and a hearing on the issues of whether he is ineligible
for execution either because he is incompetent to be executed or because he is
intellectually disabled. Ford v. Wainwright, 477 U.S. 399 (1986); Atkins v. Virginia,
536 U.S. 304 (2002); Panetti v. Quarterman, 551. U.S. 930 (2007); Mo. Rev. Stat.
552.060; Hall v. Florida, 134 S.Ct. 1986 (2014).
History of Mr. Claytons impairment before trial.
Mr. Clayton suffered severe brain damage when, at his saw mill, a piece of
wood broke off the log he was working on and pierced his head. App. p. 194a. When
he arrived at the hospital, he was semi-conscious. Bone was imbedded inside his
skull and could only be removed surgically. Id. Mr. Clayton spent nine days in the
hospital. The frontal lobe damage from the injury, depicted here, is indisputable.
Nonetheless, Mr. Clayton received no long-term therapy. App. p. 197a. As depicted

above, Mr. Claytons brain injury resulted in a loss of 20 percent of the frontal lobe
and 7.7 percent of his entire brain. App. pp. 205-206a.
Mr. Clayton came from a poor family farm in rural Purdy, Missouri. When he
was a child, his home had neither electricity nor running water. All of the children,
including Cecil Clayton, sang and played guitar. He grew up, married, and had five
children. Around 1968, he received Jesus as his savior, stopped drinking, and
became a preacher. He traveled with his family around the country, and sang gospel
songs and played the guitar. According to another local minister, Carl Giesendorfer,
as a minister Mr. Clayton was Very talented, when it comes to singing and
delivering the Word of God and being effective. Mr. Claytons day job was a logger
and sawmill operator.
3
After the 1972 sawmill injury, Mr. Claytons personality changed drastically
and immediately. He suffered memory loss. He separated from his wife, returned to
abusing alcohol and became depressed, impatient, and prone to violent episodes.
After the accident, according to his ex-wife, it was hard to keep him on target in a
conversation.
Ozark Psychiatric Clinic records reflect the depth of his despair and
desperation after the accident. After checking himself into the clinic, Mr. Clayton
told Dr. William F. Clary, M.D. on January 24, 1978, I cant get ahold of myself. Im
all tore up. The doctor described his extreme anxiety and inability to cope with
my own family. His wife was unable to understand why he cant stand to be
around anyone because people make him nervous. He is sure his children dont
like him and his wife only puts up with him because she has to. Dr. Clary noted
that Mr. Clayton appeared to be talking to himself in my presence rather than
actually communicating. The doctor found that Mr. Clayton displayed a schizoid
disposition and blunting of affect and suffered from severe ideas of reference and
borderline paranoid delusions as well as spells of overpowering playing of
emotion. Dr. Clary concluded that Mr. Clayton was incapacitated and totally
disabled by his disability. and just barely making it outside of the institution.
Mr. Clayton also suffered from visual and auditory hallucinations, hearing
voices and seeing visions of a man in the room with him. He also heard doors and
drawers open and close when no one was there. At times when he was alone, he
4
would see a man and woman next to his side. These images frightened him and he
frequently followed his wife around from room to room to avoid being alone with his
visions. He suffered severe vertigo and had accidentally driven through a neighbors
mailbox and walked through a shower door. He would sit for long periods of time
and stare, his wife uncertain whether he was even conscious. He also experienced
profound memory loss and excitement with any outside stimuli. During this time
doctors prescribed Mr. Clayton with antidepressant and antipsychotic medication.
App. p. 198a.
In 1983, testing completed in connection with social security disability placed
Mr. Clayton in the range of Intellectual Disability, revealing a full scale score of 76
and a memory quotient of 62. They also found he had extreme paranoia and suicidal
ideation:
He admits to daily depression and frequently ruminates
about shooting himself. He began crying as he talked
about how it bothered him that no one will come around
his family. He realizes that it is because of him. He feels
very uncomfortable around people and avoids any social
interaction. He states that he knows people will take
advantage of him and that they are out to get him. He
admits to ideas of reference when he hears people
whispering. He also admits to feeling as if others are able
to control his behavior.
App. pp. 207-210a.
Testing revealed that Mr. Clayton suffers from chronic brain syndrome with
some associated psychosis. He read at the fourth grade level, and spelled at a third
grade level. Neuropsychological testing revealed severe deficiencies across the
5
board. Historical testing showed that Mr. Clayton suffered from both a chronic
brain syndrome, with demonstrated deterioration in intellectual functioning,
manifested by a marked memory defect for recent events (memory quotient of 62)
and impoverished, slow, perseverative thinking with confusion, as well as a
psychotic disorder, characterized by thought disorganization, depression, agitation,
hallucinations and delusions, regressive behavior and some inappropriateness of
affect. App p. 201a.
Historical observations demonstrate the extent of impairment. He continued
to have auditory and visual hallucinations. . . . I do not think Mr. Clayton is
employable due to his psychiatric symptoms. App. p. 211a. There is presently no
way that this man could be expected to function in the world of work. Were he
pushed to do so he would become a danger both to himself and to others. App. p.
210a. He will not be able to work any time in the next twelve months. He will not
be able to work doing anything. He will not be able to work doing any low stress
jobs. He cannot work. He cannot work. App. p. 211a. Mr. Clayton received
disability benefits because of his brain damage.
Throughout his life after the accident, Mr. Clayton struggled to cope. He
obtained employment as a police officer, but had to quit. In 1996, he shot and killed
Deputy Christopher Castetter, a patrolmen in Purdy, Missouri. Deputy Castetter
had been dispatched on a call that Mr. Clayton was trespassing on the property of
his girlfriends mother. Deputy Castetter was found in his patrol car at the bottom
6
of the driveway, the engine running, the car against a tree. Mr. Clayton was
apprehended at his residence, and officers recovered a weapon after they saw him
get out of his truck and place something in the yard. Interviewed after the offense,
Mr. Clayton stated that Deputy Castetter probably should have just stayed home
and that he shouldnt have smarted off to me. Mr. Clayton then added but I don't
know because I wasnt out there.
Mental health evidence through the end of habeas proceedings
While Mr. Clayton was in jail, a physicians assistant observed him to be
depressed and irritable. Mr. Clayton was neglecting basic hygiene and smeared
feces on the wall of his cell. Trial counsel was informed of this behavior, but did not
request a competency exam.
However, trial counsel did offer expert testimony at trial, that, as a result of
his brain injuries, Mr. Clayton when agitated was incapable of deliberating or
otherwise coolly reflecting on a murder, as required for a first degree murder
conviction. However, trial counsel made the disastrous decision to offer this defense
only as an alternative to an argument that the state had not proved that Mr.
Clayton committed the murder. After the trial, counsel wrote to an expert death
penalty litigator whom he had consulted, It was not until the trial had been
completed and some days had passed before I fully realized how inadequate and
inept I was in attempting to spare Cecil from the death penalty. As you pointed out
to me, but I was unwilling to listen, our chances of succeeding in the first phase
were minimal.
During post-conviction proceedings, Mr. Claytons counsel had serious
concerns about Mr. Claytons competence. One of his lawyers described Mr.
Claytons poor memory and inability to focus on topics relevant to the
representation. I noticed a deterioration of [Mr. Claytons] limited ability to focus
and [his] memory. For example, there were more and more occurrences of Mr.
Clayton not recalling what I had recently told him. In addition, I noticed that his
inability to focus, or his off days, became more frequent. App. p. 212a.
During federal habeas corpus proceedings, at the request of the state, the
district court ordered an examination of Mr. Clayton at the U.S. Medical Center for
Federal Prisoners (USMCFP), Springfield, Missouri. Mr. Clayton was evaluated at
the facility for approximately six months. The evaluating team, led by Dr. Lea Ann
Preston, found that Mr. Clayton was not competent to participate and assist his
attorneys in the federal habeas corpus proceedings. App. p. 215a. The observations
about Mr. Claytons interactions with them are revealing:
[H]e frequently did not directly answer the question at
hand. For example, when asked about medical history he
denied any medical problems. However, a couple of
minutes later, he began to speak of his open heart surgery
two years ago and his high blood pressure. Additionally,
he initially denied any mental health history, including
hospitalizations. Later in the interview, he described
psychotic symptoms he presently experiences, as well as
past evaluations at a mental hospital. He did not appear
to be attempting to deny symptoms and did not appear to
8
be responding to hallucinations during the evaluation.

Rather, he appeared to have little insight that his
answers were relevant to questions asked several minutes
beforehand, but not to the question at hand.
...
His judgment also appeared to be impaired. For example,
he appeared irritated during a task when he was asked to
explain What is the Koran? Mr. Clayton stated, Thats
where I split with them (Muslims). They were raised over
there in the Arab Nations. They are taking over the
prison. Additionally, while the examiner was explaining
testing instructions to Mr. Clayton. he stated that he did
not mean to be disrespectful, but proceeded to instruct the
examiner on the need to rub both sides of his forehead on
a regular basis. Mr. Clayton stated that the rubbing
would bring back hair growth, for what he perceived to
be a receding hair line. Overall, it appeared that Mr.
Clayton had significant difficulty remaining on task and
inhibiting the expression of his thoughts even during
structured testing and interview sessions.
App. pp. 230-231a.
Mr. Claytons 2005 intelligence testing at USMCFP revealed a full-scale IQ of
71, which is actually below 68 when assessed for error. App. p. 536a. His reading
level was that of a fourth grade child. Mr. Claytons school records indicate an IQ in
the normal range. The USMCFP neuropsychologist in 2005 believed, His current
WAIS-III score of 71 likely reflects a decrease in intellectual efficiency secondary to
the traumatic brain injury. App. p. 235a.
With respect to Mr. Claytons executive functioning, which involves
planning, reasoning, concept formation, and judgment, the neuropsychologist
noted, Mr. Clayton's testing results indicate severe executive dysfunction.
9
Specifically, During a. . . test of concept formation, the Wisconsin Card Sorting

Test, he was unable to complete even one category correctly. Rather, he
perseverated on an incorrect response 125 times in a row, despite feedback that his
responses were incorrect. This score is considered severely impaired. App. pp. 237238a.
Dr. Preston concluded: Mr. Claytons tangential speech, impaired judgment,
and impaired reasoning abilities, will negatively affect his ability to communicate
effectively with his counsel, testify relevantly, and make rational decisions
regarding his habeas proceedings. Consequently, it is my opinion he is likely not
competent to proceed. App. p. 246a.
Without granting an evidentiary hearing, or allowing Mr. Claytons counsel
to obtain a full evaluation and report from their own expert, the district court
denied Mr. Claytons claim that he was incompetent to proceed in habeas. 1 The
Eighth Circuit affirmed. Clayton v. Roper, 15 F.3d 784, 789 (8th Cir. 2008).
Evidence of ineligibility to be executed.

The first opinion attempting to address Mr. Claytons competence to be
executed is found in the 2006 report of Dr. Preston. Mr. Clayton raised a claim of
incompetence to be executed in his initial habeas proceeding. Therefore, when she
The district court and Eighth Circuit assumed, without deciding, that Mr. Clayton
had a right to competence during his habeas proceedings. Since then, this Court has
decided otherwise. Ryan v. Gonzales, 133 S. Ct. 696, 702 (2013).
10
sent Mr. Clayton to USMCFP, the district court included among her reference
questions the following: Does Mr. Clayton understand that he is to be executed and
the reason for the execution (i.e., the killing of Officer Christopher Castetter)? App.
p. 246a. However, the district judge ordered the USMCFP evaluators not to discuss
the facts of the offense with Mr. Clayton. Dr. Preston responded to this reference
question as follows: Yes. Mr. Clayton was fully aware of the fact that he had been
convicted of murdering Officer Christopher Castetter. Additionally, he expressed
the understanding that he had been sentenced to death for this crime. According to
Mr. Clayton, the method of execution for the state of Missouri is lethal injection.
App. 246a.
However, Dr. Preston qualified this opinion because she had not been able to
discuss Mr. Claytons version of the offense with him, or review investigative
material about the offense. She noted, These two types of information are critical
because they can reveal whether an individual possesses a rational appreciation of
the evidence in the case, deficits in the ability to recall what occurred, or delusional
beliefs about the offense. App. p. 245a. She also observed, Although Mr. Clayton
did not express delusional ideation about his legal situation, he typically provided
rationales for his answers which were irrational or failed to support his position.
Id.
Over the past seven years, two other psychologists have evaluated Mr. Clayton.
Dr. William Logan, M.D., evaluated Mr. Clayton in 2008, 2013 and 2015. Dr. Logan
11
concluded each time that Mr. Clayton is incompetent. He found that Mr. Clayton suffers
from dementia and brain damage resulting in significant memory impairment, decreased
judgment, decreased ability to process information or to grasp abstract concepts, a
disorganized thought process, and delusions. App. pp. 247-248. Dr. Daniel Foster Psy.D,
also examined Mr. Clayton in 2008, 2013 and 2015. Like Dr. Logan, Dr. Foster found
Mr. Clayton incompetent each time he saw him. He also found that Mr. Clayton suffered
from significant frontal lobe damage, which caused subsequent cognitive impairment
with significant deficits in judgment, problem solving, mental flexibility, processing
speed, and verbal disinhibition. Additionally, he noted that Mr. Clayton suffered from
depressive episodes, insomnia, visual and auditory hallucinations, delusions, and
paranoia. App. p. 258a. Both doctors found Mr. Claytons delusions surrounding his
execution to be noteworthy. Specifically, Mr. Clayton believes that he was convicted
because of a conspiracy against him and that he will be spared the death penalty when
God intervenes on his behalf, after which time he will travel the country playing the
piano and preaching the gospel. App. p. 255a.
The doctors findings are corroborated by other prisoners incarcerated with Mr.
Clayton who observe him daily. Two former cellmates of Mr. Clayton, John Johnston,
149663, and Brandon Swallow, 1140694, both have witnessed Mr. Claytons repeated
inability to follow simple directions in the prison. For example, both have observed Mr.
Claytons inability to order commissary from a kiosk on his own. Mr. Clayton needed to
remember to enter his DOC number, hit okay, then enter a four-digit PIN number, but
12
he could not follow the prompts and complete these steps. Mr. Johnston showed Mr.
Clayton several times how to use the system, however, Mr. Clayton remains unable to
use the system. Both prisoners also noted that Mr. Clayton had severe memory problems.
He was very impulsive and would change subjects frequently when he spoke. He would
forget they were watching a movie and would change the television channel.
Both men also observed Mr. Claytons delusions. When they talked about other
inmates who had been executed, Mr. Clayton would tell Mr. Johnston that God would
free him. Mr. Clayton would sit and think daily about how God would get him out of
prison. Mr. Clayton told Mr. Johnston that he planned to come back to the prison and
minister and sing to the inmates.
Mr. Clayton believes his conviction, sentence, and execution is a conspiracy
against him. He does not believe he will be executed. Rather, he believes divine
intervention will set him free, so that he can travel the country preaching and
singing the gospel.
Assertions of ineligibility to be executed.

Mr. Clayton first asserted his incompetence to be executed in his federal
habeas corpus petition, filed in 2003. Since that time, he has asserted it in the
Missouri Supreme Court a total of six times. On June 1, 2009, he asked the
Supreme Court for a hearing on competency, providing the court with the reports of
Drs. Logan and Foster. App. p. 279a. On May 22, 2012, in response to the states
13
motion to set an execution date, Mr. Clayton again provided the Missouri Supreme
Court with the reports of Drs. Logan and Foster and alleged his incompetence to be
executed. App. p. 416a. On February 10, 2014, Mr. Clayton filed a second writ of
mandamus before the Missouri Supreme Court, requesting a hearing on his
incompetence and attaching updated reports from Dr. Logan and Foster. App. p.
451a. On February 11, 2014, in response to the Missouri Supreme Courts order to
show cause why he should not be executed, asserted his incompetence and asked for
a hearing. App. p. 486a. On January 9, 2015, Mr. Clayton filed supplemental
suggestions in response to the Missouri Supreme Courts order to show cause why
an execution date should not be set, providing the court with the updated reports of
Drs. Logan and Foster. App. 487a. Finally, on March 9, 2015, Mr. Clayton filed this
cause of action.
Following the filing of the state habeas corpus petition, the state responded
with evidence allegedly showing Mr. Claytons competence to be executed, including
the report of Dr. Reynolds.
The Missouri Supreme Court, in a 4-3 decision, held that Mr. Clayton was
not entitled to a hearing on his competence to be executed because he had not met
the substantial threshold showing required by Ford and Panetti and that the
State of Missouri is free to execute Mr. Clayton because he is not intellectually
disabled. This petition follows.
14
REASONS FOR GRANTING THE WRIT

I. Mr. Clayton has met the Ford/Panetti threshold and is
entitled to a hearing on his competence to stand trial.
In Ford v. Wainwright, 477 U.S. 399 (1986), this Court held that the Eighth
Amendment to the United States Constitution forbids the execution of the insane.
Justice OConnor, concurring, pointed out that the Florida statute at issue in that
case also creates a liberty interest in not being executed when the criteria of the
Florida statute are met. Ford v. Wainwright, 477 U.S. 339, 428-429 (1986)
(OConnor, J., concurring.)
The Court went on to hold that a prisoners right to due process of law
extends to the issue of competency to be executed. The Ford opinion found that
Floridas procedure for determining competency to be executed did not meet basic
due process requirements because it permitted the determination to be made by a
member of the executive branch, rather than an impartial factfinder, and because it
did not contain safeguards allowing the prisoner a full opportunity to present his
own evidence of incompetence. To avoid frivolous, last-minute claims of
incompetence, the Ford court found it appropriate to require a substantial
threshold showing of insanity before a prisoner could invoke his due process right
to a determination of incompetency.
In Panetti v. Quarterman, 551 U.S. 930, 950 (2007), this Court clarified what
a substantial threshold showing means, describing how Mr. Panetti had met this
standard:
15
He made this showing when he filed his Renewed Motion To

Determine Competencya fact disputed by no party, confirmed by the
trial courts appointment of mental health experts pursuant to Article
46.05(f), and verified by our independent review of the record. The
Renewed Motion to Determine Competency included pointed
observations made by two experts the day before petitioners scheduled
execution; and it incorporated, through petitioners first Motion To
Determine Competency, references to the extensive evidence of mental
dysfunction considered in earlier legal proceedings.
Mr. Clayton has clearly met the Panetti requirements, and is therefore
entitled to no further proceedings to determine his competency to be executed.
Mr. Claytons six filings in the Missouri Supreme Court each included expert
reports based on recent observations, and incorporated or attached references to
extensive evidence of mental dysfunction considered in earlier legal proceedings.
Panetti at 950. While the state has presented what it considers to be countervailing
evidence, balancing the states evidence against that of Mr. Clayton would not be
consistent with the purpose of the threshold requirement. Rather, Mr. Clayton is
now entitled to a hearing, consistent with due process, at which an impartial factfinder can hear evidence from both sides and determine the ultimate question of Mr.
Claytons competence.
It is clear from this Courts decisions that the substantial threshold
showing is just thata prerequisite to a full determination of competency. This
Court explained the requirement in Ford as a necessary means to control the
number of nonmeritorious or repetitive claims of insanity. Ford at 417. The
16
Missouri Supreme Court, however, essentially required Mr. Clayton to prove his
incompetency in order to obtain a hearing on his incompetency.
After incorrectly citing the Ford/Panetti standard, the Missouri Supreme
Court then rejected Mr. Claytons evidentiary offerings as not establishing the
substantial threshold. It characterized the evidence as showing
[A] man who suffers from some cognitive impairment but who
understands that he has been found guilty of killing Deputy Castetter
and sentenced to death for that act. . . . neither the fact that Clayton
believes he should not have been convicted nor the fact that he believes
he will be spared execution are sufficient to make a threshold showing
that he is incompetent.
App. p. 18a.
The court explained that this Courts rational understanding requirement
in Panetti does not apply where the inmate knows he has been convicted of firstdegree murder and sentenced to death but labors under the genuine (even
delusional) belief that he will not be executed because some outside force whether
judicial, gubernatorial, or supernatural will intervene and save him. App. p. 18a,
emphasis added.
Turning to the expert opinions, the court rejected the statement of Dr. Daniel
Foster, saying,
Dr. Fosters opinions are not credible because the issue is not whether
Clayton is competent in the sense of whether he can care for himself,
or even whether Clayton suffers from deficits in comprehension,
judgment, memory, or intelligence. The issue is whether Clayton can
comprehend the reasons for his death sentence and its implications.
App. p. 21a.
17
The court also rejected the statement of Dr. Logan that Mr. Clayton believes
he is the victim of a conspiracy. . . He still engages in delusional denial that his
execution will take place. . . . because Dr. Logan acknowledges that God may work
through Mr. Claytons defense team. App. p. 24a. Finally, the court credits the six
month old evaluation of Dr. Reynolds, not referring to his own qualification of his
opinion as only his impression as of the time of his evaluation. App. p. 28-29a.
Joined by two other judges, Judge Laura Stith dissented. She began by
explaining that the holding of the majority was incorrect as to the competency
standard established by this Court:
[T]he majority acknowledges that Ford requires a competency hearing
when the defendant makes a showing that he does not understand the
reason for his execution. But, it says, that is the only circumstance in
which Ford or Panetti require a competency hearing. The majority
opinion is wrong.
In Panetti, the Supreme Court explicitly held that merely being aware
of the rationale for the execution a murder is not adequate to meet
the required standard of competency, the prisoner must also
understand the rationale for his execution.
App. p. 45a.
Judge Stith went on,
The record before this Court presents reasonable grounds to believe
that Mr. Clayton can meet the Panetti or section 552.060.1 standard.
As Dr. Logan noted after his examination of Mr. Clayton in January of
this year:
Mr. Clayton due to his delusional denial, lacks the capacity to
understand matters in extenuation, arguments for executive
clemency or any reasons his attorneys might present as to why
his sentence should not be carried out.
18
Another report states:

While Mr. Clayton knows the State plans to execute him for
killing Deputy Castetter, he believes his legal situation is
instead a test of his faith and that God will not allow the
punishment to occur as God has chosen him for another mission.
Hence, he has no concept of a need for clemency, or capacity to
clemency or rational reasons why the sentence should not be
carried out.
And Dr. Foster, whose testimony the majority much discusses, states
that Mr. Clayton:
remains, as he has been since I first met him, unable to fully
participate, cooperate or comprehend his legal status, process
and final, pending deliberations. While he can superficially seem
intact, extended contact or observation exposes his multiple
deficits, which continue their slow deterioration, despite the
structured, secure setting in which he has resided over the past
two decades. He is not simply incompetent legally, he would be
unable to care for himself or manage basic self care, were he not
in a structured environment that takes care of him. He can
shower, groom, eat, walk, it is his comprehension, judgment,
memory, limited intelligence and social deficits that plague him.
I do not find him competent to appreciate the purpose of his
pending execution as addressed in Panetti v. Quarterman and
Ford v. Wainwright, should it not be stayed by the State of
Missouri or the Federal Court. He can replicate elements of the
fact that an execution follows a conviction for first degree
murder, though still does not comprehend, appreciate nor
understand its approaching date for him.
The special master may or may not believe these experts, or Mr.
Claytons other evidence and experts, but Dr. Fosters expert opinion,
particularly as supported by Mr. Claytons 2004 IQ score of 71,
presents reasonable grounds for a hearing. Mr. Clayton should be
allowed the opportunity to convince the special master that he is
ineligible for execution because he is intellectually disabled or because
he does not have a rational understanding of the reasons for his
19
execution and does not have the capacity to understand matters in

extenuation, arguments for executive clemency or rational reasons why
the sentence should not be carried out. The denial of such a hearing
deprives Mr. Clayton of a fair opportunity to show that the
Constitution prohibits his execution.
App. p. 47a.
As the dissent points out, the Missouri Supreme Courts analysis of Mr.
Claytons competence goes far beyond the substantial threshold requirement. In
Panetti, this Court held that a combination of expert opinions and historical
evidence of mental instability unquestionably met that requirement. Mr. Clayton
has presented that and moreconcrete evidence that his incompetence is due to a
brain injury over which he cannot conceivably have any control.
The Missouri Supreme Courts ruling that Mr. Clayton did not meet the
substantial threshold requirement is in conflict with the decisions of other courts.
In Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009), the court held,
Regardless of whether Thompsons incompetency petition should be
granted, his evidence has at least created a genuine issue about his
competency, and therefore warrants an evidentiary hearing. Thompson
included extensive evidence of his incompetency in his petition,
including (1) the reports of three medical experts, two of whom had
recently examined Thompson on multiple occasions; (2) a long
documented history of delusions and psychosis; and (3) the states
previous effort to appoint a conservator to make medical decisions on
his behalfessentially an acknowledgment by the state that
Thompson was mentally ill. The conservatorship was terminated less
than five months prior to Thompsons competency petition filing, and
only because a court found Thompson had become voluntarily
compliant with his drug program. The evidence Thompson submitted
was undoubtedly a substantial threshold showing, and therefore an
evidentiary hearing should have been held.
20
Mr. Clayton has likewise met the substantial threshold requirement. Like
Mr. Thompson, he has submitted the reports of medical experts who had recently
examined him as well as a documented history of delusions and psychosis. His
historical showing, which the court in Thompson explicitly held relevant to the
threshold requirement, is even stronger that Mr. Thompsons. Mr. Clayton
presented to the Missouri Supreme Court graphic evidence that he has a large piece
of his brain missing.
An example of the correct application of this Courts decisions is found in the

unpublished order of the U.S. District Court for the Western District of Texas. Wood
v. Thaler, 787 F.Supp.2d 458 (W.D. Tex. 2011). In Wood, the district court
ultimately found that Mr. Wood was competent to be executed. But, before doing so,
it found that he had met the substantial threshold requirement. After describing
the evidence presented that Mr. Wood had emotional difficulties as a child, had at
one point been found incompetent to stand trial, and had made delusional
21
comments to prison medical staff and his lawyers, the court explained that this
evidence was sufficient to trigger due process protection even though it was not
sufficient to establish incompetence. App. p. 552a.
The contrast between the approach of the Missouri Supreme Court in State
ex. rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014), and in Mr. Claytons
case and that of the courts in Thompson and Wood makes clear the need for this
Court to again address the threshold requirement, and to find that Mr. Clayton is
entitled to the full protection of the due process right established in Ford and
Panetti.
II. The Missouri Supreme Courts ruling

unconstitutionally narrows the definition of incompetence
to be executed.
A. Incompetence under Ford and Panetti.
The Missouri Supreme Court cited its decision in State ex. rel. Middleton v.
Russell, 435 S.W.3d 83 (Mo. banc 2014), in defining competence to be executed:

In Panetti, the Supreme Court explains that the gravamen of an
Eighth Amendment incompetence claim is not that an inmate is
delusional, but that the inmate suffers from some mental illness that
is the source of gross delusions preventing him from comprehending
the meaning and purpose of the punishment to which he has been
sentenced. Id. at 960. The delusions must be such that they so
impair the prisoners concept of reality that he cannot reach a rational
understanding of the reason for the execution. Id. at 958.
In Panetti, the inmate had a genuine delusion involving his
understanding of the reason for his execution .... [that] recast
petitioners execution as part of spiritual warfare ... between the
demons and the forces of the darkness and God and the angels and the
22
forces of light. Id. at 954 (citations omitted). As a result, even though

petitioner claims to understand that the state is saying that [it
wishes] to execute him for [his] murder[s], he believes in earnest that
the stated reason is a sham and the State in truth wants to execute
him to stop him from preaching. Id. at 95455[].
App. p. 16a.
In Panetti, this Court held, Petitioners submission is that he suffers from a
severe, documented mental illness that is the source of gross delusions preventing
him from comprehending the meaning and purpose of the punishment to which he
has been sentenced. This argument, we hold, should have been considered. Panetti
at 960. The Missouri Supreme Court seized on this language as a limitation on the
definition of incompetence, rather than an example of it. But this Court did not hold
that incompetence could only be established by the showing of delusions like Mr.
Panettis. It simply held that the Fifth Circuit had erred in not considering whether
his delusions rendered him incompetent. And this Court so held only after finding
that Mr. Panetti had made the required threshold showing. The Missouri Supreme
Court, on the other hand, used this language to find that Mr. Clayton had not made
the threshold showing.
The Missouri Supreme Courts ruling unconstitutionally narrows the
standard of Ford and Panetti to those with gross delusions preventing him from
comprehending the meaning and purpose of the punishment to which he has been
sentenced. At a minimum, the Missouri Supreme Court must re-examine whether
23
Mr. Clayton has made a substantial threshold showing in light of the correct
definition of incompetence.
In Panetti v. Quarterman, 551 U.S. 930 (2007), this Court held that the
record showed that Mr. Panetti suffered from delusions. Id. at 956. The legal
inquiry was whether those delusions rendered him incompetent to be executed. The
Fifth Circuit Court of Appeals held they did not because Mr. Panetti knew he had a
death sentence and knew the offense of which he had been convicted. The United
States Supreme Court concluded that the Fifth Circuits analysis was too
restrictive, rested on a flawed interpretation of Ford, and did not afford Mr. Panetti
the protections guaranteed by the Eighth Amendment. Id. at 957-958. The Court
explained:
The Court of Appeals standard treats a prisoners delusional belief
system as irrelevant if the prisoner knows that the State has identified
his crimes as the reason for his execution. . . .Yet the Ford opinions
nowhere indicate that delusions are irrelevant to comprehen[sion] or
aware[ness] if they so impair the prisoners concept of reality that he
cannot reach a rational understanding of the reason for the execution.
If anything, the Ford majority suggests the opposite.
Id. at 958.
The Court held that [a] prisoners awareness of the States rationale for an
execution is not the same as a rational understanding of it. Ford v. Wainwright does
not foreclose inquiry into the latter. Id. at 959.
Under Panetti, it is not enough for a condemned prisoner to be able to
identify the stated reason for his execution. To be competent, he must have a
24
rational understanding of the real interests the state seeks to vindicate. Id. at 959.
The Court observed that executing an insane person serves no retributive purpose:
[I]t might be said that capital punishment is imposed because it has
the potential to make the offender recognize at last the gravity of his
crime and to allow the community as a whole, including the surviving
family and friends of the victim, to affirm its own judgment that the
culpability of the prisoner is so serious that the ultimate penalty must
be sought and imposed. The potential for a prisoners recognition of the
severity of the offense and the objective of community vindication are
called into question, however, if the prisoners mental state is so
distorted by mental illness that his awareness of the crime and
punishment has little or no relation to the understanding of those
concepts shared by the community as a whole.
Id. at 958-959.
While gross delusions like those of Mr. Panetti are one way in which a
prisoners mental state might be so distorted by mental illness that his awareness
of the crime and punishment has little or no relation to the understanding of those
concepts shared by the community as a whole, the Panetti opinion does not say
that gross delusions are required for a prisoner to be incompetent. The Missouri
Supreme Courts opinion in State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo.
banc 2014), suggests that Panetti actually narrowed the definition of incompetence
to be executed. It did not. This Court overturned the Fifth Circuits finding of
competence because it was narrowly based on the answers to two questions: Does
Mr. Panetti know he has been convicted? and Does Mr. Panetti know he has been
sentence to death? This Court held that a person might be able to provide the
25
correct answers to these questions without being competent to be executed, and that
a rational understanding of the underlying concepts was required for competence.
Mr. Clayton is entitled to show that, in addition to his delusions, his general
confusion renders him unable to appreciate the process in which the state is
engaged to try to kill him, or the fact that execution will actually occur. For
example, Dr. Foster found in 2013,
His thinking is disorganized and he is easily distracted, making
assessment difficult. He seldom responded to questions directly,
becoming tangential and addressing topics of personal interest. He was
cheerful and pleasant. His memory is inconsistent, with some long
term memory intact, albeit inconsistently accessed. He often inserted
decades old information inappropriately into his monologue, as if it
were germane.
App. p. 261a.
Dr. Foster concluded after his most recent interview with Mr. Clayton
earlier this year,
He is unable to inform me of his current medications, his current
medical conditions, his presiding Judge at his trial and at his Appeal,
the legal strategy presented by [trial] Attorney Rhodes at his initial
trial, the current status of his case, what has been done on his behalf
and what fate awaits him. He cheerfully leaves it in the Lord's and his
Attorneys hands. He remains, as he has been since I first met him,
unable to fully participate, cooperate or comprehend his legal status,
process and final, pending deliberations. While he can superficially
seem intact, extended contact or observation exposes his multiple
deficits, which continue their slow deterioration, despite the
structured, secure setting in which he has resided over the past two
decades. He is not simply incompetent legally, he would be unable to
care for himself or manage basic self care, were he not in a structured
environment that takes care of him.
App. p. 265a.
26
It is clear that these symptoms are relevant to whether Mr. Clayton has a
rational understanding of what will happen to him, absent court interference or
clemency, on March 17. But the Missouri Supreme Court refused to consider them,
holding that Mr. Clayton must be competent because he knows that he has been
sentenced to death for killing Christopher Castetter. This action violates the United
States Constitution, and will result in the execution of one who is incompetent.
B. Mr. Clayton has a liberty interest in Missouris definition of competency,

and has made a threshold showing under that standard.
In addition to misstating the Ford/Panetti standard, the Missouri Supreme
Court misconstrues Missouris requirement that a prisoner not be executed if he
lacks capacity to understand the nature and purpose of the punishment about to be
imposed upon him or matters in extenuation, arguments for executive clemency or
reasons why the sentence should not be carried out. Mo. Rev. Stat. 552.060.
While this criterion for competence to be executed is not included in the
definition of insanity set out in Ford v. Wainwright, 477 U.S. 339 (1986), it is still
binding upon the Supreme Court of Missouri and upon this Court. The United
States Constitution mandates that when a state statute requires, with language of
an unmistakable mandatory character, that state action adverse to an individual
will not occur absent specified substantive predicates, the statute creates a liberty
interest protected by the Due Process Clause. Hewitt v. Helms, 459 U.S. 460, 47127
472 (1980); See also Vitek v. Jones, 445 U.S. 480, 488-491 (1980); Greenholtz v.
Nebraska Penal Inmates, 442 U.S. 1, 10 (1979) (liberty interest created where state
law provides there is [a] set of facts which, if shown, mandate a decision favorable
to the individual). See Ford v. Wainwright, 477 U.S. 339, 428 (1986) (OConnor, J.,
concurring.) It is difficult to imagine language of a more unmistakable mandatory
character than No person condemned to death shall be executed. . . . See also
Danforth v. Minnesota, 552 U.S. 264 (2008) (State may grant broader rights than
U.S. Constitution).
The Missouri Supreme Court examined this standard as though it related to
competence to assist counsel. the court finds that Clayton provides no evidence
that. . . his counsel have been unable to prepare a clemency application on his
behalf. App. p. 29a. The court then analyzed the standard of Mo. Rev. Stat.
552.060 as if it referred to a prisoners competence to assist in his defense, rather
than his appreciation of what is about to happen, citing the ruling of the United
States District Court on the question of whether Mr. Clayton was competent to
proceed in habeas corpus:
As the District Court held, the question of whether an inmate is
competent to assist in his defense must be analyzed in light of the
proceedings underway at the time and the demands those proceedings
place on the inmates memory and ability to communicate.
Competency Order, at 13-15. Greatest prior to and during trial, these
demands fall off markedly throughout the appellate, post conviction,
and federal habeas proceedings. At the end of this process, when the
issue turns to clemency, there is very little that depends on the
defendant suddenly recollecting some new fact that will result in a new
argument or ground for clemency.
28
App. p. 30a.
But the Missouri standard does not say that a prisoner shall not be executed
if he is unable to assist his counsel in presenting matters in extenuation,
arguments for executive clemency or reasons why the sentence should not be
carried out. It says that a prisoner who does not have this understanding shall not
be executed. As the dissenting judge notes, the majority simply ignores this
requirement. App. p. 45a.
Prior to Mr. Claytons case, the Missouri Supreme Court has never addressed
this requirement of Missouri law. The issue was apparently not raised in State ex
rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014). And while Missouri is free
to interpret its own laws, it may not simply read language into them that is not
there. [cites needed] Moreover, the Missouri Supreme Courts interpretation of this
language is inconsistent with this Courts rationale for the requirement that an
insane prisoner may not be executed. This is not because an insane prisoner may
not be able to assist his counsel, but because
The potential for a prisoners recognition of the severity of the offense
and the objective of community vindication are called into question,
however, if the prisoners mental state is so distorted by mental illness
that his awareness of the crime and punishment has little or no
relation to the understanding of those concepts shared by the
community as a whole.
Panetti at 958-959.
29
Mr. Clayton has certainly presented evidence to meet the substantial

threshold showing that he does not understand matters in extenuation,
arguments for executive clemency or reasons why the sentence should not be
carried out. As early as 2005, Dr. Preston noted that Although Mr. Clayton did not
express delusional ideation about his legal situation, he typically provided
rationales for his answers which were irrational or failed to support his position.
App. p. 241a. She concluded, Mr. Claytons tangential speech, impaired judgment,
and impaired reasoning abilities, will negatively affect his ability to communicate
regarding his habeas proceedings.
The same is clearly true now with respect to the clemency process. Both Dr.
Logan and Dr. Foster observed Mr. Claytons tangential and uninhibited speech,
which make it impossible to conduct a focused, rational conversation with him.
They, along with his counsel and fellow prisoners, have also observed his irrational
paranoia of others. As a result, he does not understand the purpose and nature of
the punishment to be inflicted, or why it might be possible for extenuating
circumstances to exist. The lack of general competence observed by Dr. Foster is
particularly relevant to these rather technical aspects of the execution end process.
Mr. Clayton has thus made a threshold showing that he meets both the
federal and Missouri standards for competence to be executed. He is entitled to a
hearing.
30
III. Mr. Clayton is Entitled to Present Evidence that His

Low Intellectual Functioning and Deficits in Adaptive
Functioning Bar his Execution.
Atkins v. Virginia, 536 U.S. 304, 321 (2002), recognized the national consensus
against the death penalty for those suffering from, as the condition was then known,
mental retardation. Hall v. Florida, 134 S.Ct. 1986, 1990 (2014), repeated that the Eighth
Amendments prohibition against the infliction of cruel and unusual punishment is not
fastened to the obsolete but may acquire meaning as public opinion becomes enlightened
by a humane justice. Id. at 1992, quoting Weems v. United States, 217 U.S. 349, 378
(1910). Hall expressly considers that in order [t]o enforce the Constitutions protection
of human dignity, this Court looks to the evolving standards of decency that mark the
progress of a maturing society. Hall, 134 S.Ct. at 1992, quoting Trop v. Dulles, 356
U.S. 86, 101 (1958) (plurality opinion).
Hall presented the question of how intellectual disability must be defined in order
to implement these principles and the holding of Atkins. Hall, 134 S.Ct. at 1993. Atkins
noted three traditional criteria for the medical communitys definition of mental
retardation and these were recapitulated in Hall:
[T]he medical community defines intellectual disability
according to three criteria: significantly subaverage
intellectual functioning, deficits in adaptive functioning (the
inability to learn basic skills and adjust behavior to changing
circumstances), and onset of these deficits during the
developmental period.
Id. at 1994.
31
The age of onset was not at issue in Hall. Id. In contrast, the present petition
raises just that issue: for the purposes of the Cruel and Unusual Punishment Clause: Does
the age of onset have any proper bearing on whether the states are prohibited from
executing the functionally intellectually disabled?
The age of onset is simply a diagnostic criterion used in the medical community in
order to distinguish intellectual disability with childhood onset from otherwise
indistinguishable disability that arises after the developmental period. The age of onset
requirement has simply served the medical community in determining the course of
clinical treatment for individuals. See Am. Assn on Intellectual and Developmental
Disabilities, Intellectual Disability: Definition, Classification, and Systems of Support, 27
(2010). The concerns driving the medical communitys reliance on an age of onset are
wholly divorced from the rationale behind the legal prohibition on executing the
intellectually disabled.
Underlying the prohibition of executing the intellectually disabled is the
recognition that doing so would serve neither of the recognized purposes of capital
punishment: retribution and deterrence. Gregg v. Georgia, 428 U.S. 153, 183 (1976)
(joint opinion of Stewart, Powell, and Stevens, JJ). Unless the death penalty measurably
contributes to one or both of these goals, it is nothing more than the purposeless and
needless imposition of pain and suffering, and hence an unconstitutional punishment.
Atkins, 536 U.S. at 318 (internal quotations omitted). In Atkins, this Court prohibited
executing the intellectually disabled because doing so would not further either of these
32
goals.
Executing someone who, but-for the age of onset of his disabilities, is Atkins
ineligible for execution does not serve any legitimate goals of capital punishment. The
impairments are what make the intellectually disabled undeserving of death.
Just as the characteristics of the intellectually disabled make them less culpable
and therefore eliminate any retributive basis heretheir characteristics also undermine
any deterrence rationale. That rationale for the death penalty does not apply to the
intellectually disabled with the force it does for the able-minded offender:
The theory of deterrence in capital sentencing is predicated
upon the notion that the increased severity of the punishment
will inhibit criminal actors from carrying out murderous
conduct. Yet it is the same cognitive and behavioral
impairments that make these defendants less morally
culpablefor example, the diminished ability to understand
and process information, to learn from experience, to engage
in logical reasoning, or to control impulsesthat also make it
less likely that they can process the information of the
possibility of execution as a penalty and, as a result, control
their conduct based upon that information.
Atkins, 536 U.S. at 320, 122 S. Ct. at 2252. Whether this impairment manifested before
age eighteen or, as with Mr. Clayton, as the product of a tragic accident in adulthood,
makes no difference for the total absence of any deterrent value in executing him.
[T]he Constitution contemplates that in the end our own judgment will be
brought to bear on the question of the acceptability of the death penalty under the Eighth
Amendment. Roper v. Simmons, 543 U.S. 551, 563 (2005) (quoting Atkins, 536 U.S. at
312 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality opinion). Following
33
this Courts decision in Atkins, the states have used age of onset as part of their
prohibition on executing the intellectually disabled. Nonetheless, it is the rare and
isolated case that does not receive exemption from the harshest punishment our nation
hands down simply because of a lack of evidence of pre-eighteen age of onset. John H.
Blume, et al., An Empirical Look at Atkins v. Virginia and Its Application in Capital
Cases, 76 Tenn. L. Rev. 625, 636 (2009). 2 Thus, the lack of an actual practice of
executing persons with intellectual disability, regardless of age of onset, indicates a
rejection of the death penalty for such persons. Graham v. Florida, 560 U.S. 48, 62
(2010) (few life without parole sentences for nonhomicide offenses by juveniles, despite
legislative authorization, demonstrates consensus against such sentence).
In Simmons, the Court affirmed the Supreme Court of Missouris decision
embracing that the reasoning of Atkins established that the Constitution prohibits the
execution of a juvenile who was under 18 when the crime was committed. Simmons,
543 U.S. at 559, citing State ex rel. Simmons v. Roper, 112 S.W.3d 397 (2003) (en banc)
(Stith, J.).
In the present case, the four-judge majority below relied on the Missouri statute,
Mo. Rev. Stat. 565.030.6, to deny Mr. Clayton relief, finding that it considers
This study examined every case making a claim of Atkins ineligibility from 2002 to
2008. It found only two petitioners lost an Atkins claim based on age of onset. Those
petitioners lost because they lacked IQ scores prior to age eighteen. The study described
these two cases as patently wrong, but . . . thus far, isolated. Id. Executing Mr.
Clayton would add a third case to this grim list.
34
intellectual disability as an immutable characteristic which manifests at or shortly

following birth and, therefore, is necessarily present at the time the defendant committed
the crime. App. p. 34a. The sawmill accident that caused the loss of a considerable
portion of Mr. Claytons brain occurred decades before the crime in question, but after
age eighteen. Because of the tragic accidents timing, Mr. Clayton arbitrarily faces
execution.
However the author of State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo.
2003), Judge Stith, writing in dissent and joined by Judges Draper and Teitelman,
forcefully explained the irrelevance of the age of onset criterion to the very reasons for
prohibition: The Atkins mandate that it is unconstitutional to execute someone who is
intellectually disabled does not depend on when an intellectual disability manifested, but
on whether an intellectual disability exists. App. p. 44a. (emphasis in original). Further,
the dissent pointed out that:
the presumptive purpose of requiring a disability to manifest
itself by age 18 is to preclude later faking of intellectual
disability. Here, there is no factual dispute that Clayton
suffered a brain injury and lost 20 percent of his frontal lobe,
and that his IQ went down thereafter and long prior to the
murder, so those concerns are not present.
Id.
Thus, this Court is faced, perhaps for the first time, with the question of whether a
person who otherwise meets the definition of intellectual disability may nonetheless be
executed, simply because, through no fault of his own, that impairment manifested after
35
age eighteen. Four basic facts are uncontroverted. First, Mr. Clayton has severe brain
damage as a result of the sawmill accident. Second, Mr. Clayton has IQ scores that could
make him ineligible for the death penalty. Third, Mr. Clayton has deficits in adaptive
functioning. And, fourth, Mr. Claytons impairments did not arise until after the age of
eighteen. Thus, the question for this Court is whether Mr. Clayton, who, like the famous
Phineas Gage in 1848, suffered a major change in personality and functioning as the
product of a major brain injury, is the worst of the worst.
At a minimum, Mr. Clayton should be provided with an opportunity to present
evidence of his impairments at a hearing. As the dissent recognized Mr. Claytons score
of 71 is within the standard error of measurement and Hall constitutionally requires that
he be given a hearing to present evidence of impairments in both his intellectual and
adaptive functioning. Id. at 8. As to his intellectual functioning, Mr. Clayton argued in
the court below that, when evaluated under the Flynn effect and the measurement of
error, his IQ scores fall below 70. The majority did not address his argument. 3 Nor did
they address the evidence of his adaptive deficits. Mr. Clayton has been incarcerated on
death row for nearly two decades. Nevertheless, he is consistently unable to adapt to
multiple routines of daily living in prison. App. pp. 511-512a.. As Mr. Clayton argued
The majority incorrectly asserts that Mr. Clayton does not make a margin of error
argument. App. (Opinion at 35n5). In fact, Mr. Claytons petition to the Missouri
Supreme Court included a lengthy discussion of the standard measurement of error
and the Flynn effect. App. pp. 533-538a. He argued that, when assessed for error,
his IQ scores fall below a 70 and that he deserved the right to present such evidence
at a hearing. App. p. 537a.
36
below, his inability to recall or follow simple instructions is evidence of his adaptive
deficits under the DSM and AAID Diagnostics Manual. App. p. 538a. This Court should
remand this case and afford Mr. Clayton the opportunity to prove [his] intellectual
disability before a fact-finding body . . . at which he is entitled to present other factors
regarding an individuals adaptive functioning that must be considered in addition to IQ,
such as evidence of past performance, environment, and upbringing. App. 43a.
CONCLUSION
For these reasons, a Writ of Certiorari should issue to review the judgment of
the Missouri Supreme Court. Alternatively, this Court should grant certiorari,
reverse the decision of the Missouri Supreme Court, and remand for reconsideration
in light of Panetti v. Quarterman 551 U.S. 930 (2007).
Respectfully submitted,
/S/ ELIZABETH UNGER CARLYLE
(816)525-6540
elizabeth@carlyle-law.com
/s Susan M. Hunt
Susan M. Hunt
816-221-4588
37
/s/ Jeannie Willibey

Tel: 816-889-7699
/s/ Pete Carter
Pete Carter, #31401
Attorney for Appellant
Woodrail Center
Columbia, MO 65203
Phone: 573-777-9977
E-mail: Pete.Carter@mspd.mo.gov
38
SUPREME COURT OF MISSOURI

en banc
STATE EX REL. CECIL CLAYTON,

Petitioner,
v.
CINDY GRIFFITH, in her capacity as
WARDEN, POTOSI CORRECTIONAL
CENTER,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
No. SC94841
ORIGINAL PROCEEDING IN HABEAS CORPUS

On February 6, 2015, this Court scheduled the execution of Petitioner Cecil
Clayton (Clayton) for March 17, 2015. On March 10, 2015, Clayton filed a petition for
writ of habeas corpus claiming that he is not competent to be executed under Ford v.
Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007), and
section 552.060.1, RSMo 2000. Addressing the merits of Claytons petition, this Court
finds that he has failed to make the threshold showing required by Ford and Panetti to
justify staying his execution so that his competence can be determined after an
evidentiary hearing.
Background
Claytons conviction and death sentence were affirmed by this Court in State v.
Clayton, 995 S.W.2d 468, 472 (Mo. banc 1999) (Clayton I). His motion for
post-conviction relief was overruled, and this Court affirmed that decision as well.
Clayton v. State, 63 S.W.3d 201 (Mo. banc 2001) (Clayton II). The United States District
Court for the Western District of Missouri, Judge Laughrey presiding, denied Claytons
federal petition for a writ of habeas corpus, Clayton v. Luebbers, 2006 WL 1128803
(April 27, 2006) (Clayton III), and that decision was affirmed by the United States Court
of Appeals in Clayton v. Roper, 515 F.3d 784 (8th Cir. 2008) (Clayton IV).
I.
Claytons Crime
Claytons petition does not claim that he is innocent of the crime for which he has
been sentenced to death. In 1996, Clayton became angry at his girlfriend in a

convenience store in Purdy, Missouri. Clayton I, 995 S.W.2d at 473-74. When Clayton
pushed his girlfriend, a clerk in the store phoned the sheriffs department. The Purdy
police chief arrived and waited there until Clayton and his girlfriend left separately. Id. at
473. Within an hour, Clayton drove his truck to his girlfriends residence. She was not
there, but her sister called the sheriffs department when she saw Clayton sitting in his
truck in their driveway. Id. Deputy Castetter was dispatched and arrived at the residence
at 10:03 p.m. Three or four minutes later, two other deputies arrived to help Deputy
Castetter deal with Clayton. When they arrived, however, they found Deputy Castetter in
his patrol car, bleeding profusely from a point-blank gunshot wound to his forehead. Id.
His gun was still in his holster. Deputy Castetter was taken to the hospital but soon died
of his wound. Id. at 474.
Within 15 minutes of this murder, Clayton arrived at a friends house, brandished
a pistol, and exclaimed would you believe me, if I told you that I shot a policeman,
would you believe me? Id.
Clayton told his friend he needed him to provide an alibi.
Clayton then drove his friend to Claytons house. Less than a half hour after the crime,
the two arrived at Claytons home just as the police were arriving there to question him
about Deputy Castetters murder. Clayton asked his friend should I shoot them? His
friend answered No. Id. Clayton got out of his truck and, claiming he could not hear
the officers, walked away from them and toward the side of his house with his right hand
in his pocket. The officers saw him take something out of the pocket and put it in a stack
of concrete blocks next to his house.
The officers arrested Clayton and later found his gun among the concrete blocks.
Id. In a subsequent interrogation, Clayton stated that Deputy Castetter probably should
have just stayed home and that he shouldnt have smarted off to me. Clayton added,
however, I dont know because I wasnt out there. Later, Clayton admitted his
involvement in Deputy Castetters murder to a cellmate. Clayton II, 63 S.W.3d at 204.
II.
Claytons Brain Injury

Clayton was 56 years old in 1996 when he killed Deputy Castetter.
Approximately 24 years before he committed that crime, Clayton was injured while
working in a sawmill. A piece of wood broke off a log he was sawing and lodged in
Claytons head. Surgery was required to remove the object, and this procedure resulted
3
in the loss of nearly eight percent of Claytons brain and 20 percent of a frontal lobe.
Clayton II, 63 S.W.3d at 205. At trial, Claytons brother Marvin testified that, after the
injury, Clayton changed. He broke up with his wife, began drinking alcohol and became
impatient, unable to work and more prone to violent outbursts. Id. at 204. Another
brother, Jerry, testified during the penalty phase about Claytons childhood and life as a
part-time pastor and evangelist prior to the sawmill accident and, after the accident, his
marital breakup, drinking alcohol and his antisocial personality. Id.
III.
Impact of Claytons Injury on his Culpability and Competence

From the beginning of this prosecution, Clayton has argued that the effects of his
1972 accident left him blameless for the 1996 murder of Deputy Castetter and/or
incompetent to proceed in some but not all stages of his case.
A.
Trial
During the guilt phase of his trial, Clayton argued that the accident rendered him
incapable of deliberating or forming the intent necessary for the jury to find him guilty of
first-degree murder. Clayton II, 63 S.W.3d at 204. In addition to the testimony from his
brother, two experts testified that he was not capable of deliberating, planning, or
otherwise coolly reflecting on a murder when agitated and that his inculpatory
statements to the police should be discounted because his injury made him unusually
susceptible to suggestion. Id. The jury rejected this evidence and found Clayton guilty
of first-degree murder. In the penalty phase of his trial, Clayton argued that his injury
was a mitigating factor that should make the death penalty inappropriate in his case. Id.
at 209-10. The jury rejected this as well and recommended that Clayton be sentenced to
death.
Clayton did not argue at trial that he was insane at the time of the murder or that
he was incompetent to stand trial. When he later claimed that his trial counsel was
constitutionally ineffective for failing to challenge his competence to be tried, this Court
held: Counsel has no duty to investigate a clients mental condition where the client
appears to have the present ability to consult rationally with the attorney and understand
the court proceedings. Id. at 209. Because Clayton was able to intelligently discuss his
legal options with his attorney, and even carry on correspondence with him about the
case, [his] attorney could reasonably conclude that [Clayton] was competent to stand
trial. Id.
In addition, this Court held there was no evidence that Clayton actually was
incompetent. Noting that the motion court had good reason to reject Claytons expert
witnesss testimony in denying Claytons motion for post-conviction relief, this Court
stated that Dr. Fosters determination is especially questionable because even though he
said Clayton was incompetent at the time of his trial, he admitted that Clayton understood
the role of the prosecutor, the judge, the juror, and even his own attorney in the process.
Id. More important, when this expert examined Clayton three years after his trial, Dr.
Foster admitted that Clayton knew what he was charged with, that he was facing the
death penalty, and that he was able to discuss his various options with his attorney. Id.
Accordingly, this Court held: The judge, who had also presided during Claytons trial,
had more than a reasonable basis to concluded [sic] that Dr. Fosters testimony was not
credible and that Clayton was competent at the time of his trial. Id.
B.
Federal Habeas
Clayton raised numerous claims in his federal petition for a writ of habeas corpus,
including many based on the impairments created by his 1972 accident and resulting
brain injury. Though not conclusive of the question now before this Court, these claims
and the District Courts rejection of them are relevant because Claytons competence
argument relies on a condition that existed throughout his legal proceedings and even
though his experts refer to the condition worsening with age neither Clayton nor his
experts identify any evidence to support the fact that his competence is materially worse
now than in 2005 and 2006 when his federal habeas petition was litigated and rejected.
1.
Dual Defense Theories
In 2006, as part of his petition for habeas relief in the federal courts, Clayton
claimed that his trial counsel was ineffective for arguing both that Clayton was not the
murderer and that, even if Clayton did kill Deputy Castetter, Claytons brain injury
precluded him from forming the necessary intent and deliberation. Clayton III, 2006 WL
1128803, at *5-8. The District Court noted that this Court had rejected this claim, in part,
because this Court earlier had reached the conclusion that Clayton did not have a good
defense under either theory. Id. at *7 (citing Clayton II, 63 S.W.3d at 206-07). The
District Court held there was ample evidence to support this conclusion. Id. at *8.
2.
Additional Evidence of Impairment at Trial
The District Court also rejected Claytons claim that his trial counsel should have
introduced voluminous records from his extended hospital stay after his injury. The
records Clayton now complains about would have complicated [the simple] picture [that
counsel wanted to present] and shown the jury that Clayton was also a violent man with a
criminal record even before the accident occurred. Clayton III, 2006 WL 1128803, at
*8 (quoting Clayton II, 63 S.W.3d at 208). Similarly, the District Court agreed with this
Courts decision that Claytons counsel was not ineffective for electing not to present a
witness who, on cross-examination, would have had to admit that Clayton had a violent
temper even before his accident, undercutting Claytons diminished capacity defense.
Id. at *11 (quoting Clayton II, 63 S.W.3d at 209).
3.
Clayton was Competent to Stand Trial
The District Court also agreed with this Courts conclusion that Claytons counsel
had no reasonable basis to challenge Claytons competence to stand trial. Noting that,
even though Claytons expert psychologist had not been retained specifically to evaluate
his competence, Claytons expert testified that defense counsel had asked her to let him
know if there was a problem with Claytons competency. Clayton III, 2006 WL
1128803, at *12. Dr. Back stated that she believed in June 1997 that Clayton was
competent to stand trial and that, had she thought otherwise, she would have told [defense
counsel] he was not competent. Id.
Not only was counsel reasonable in relying on this expert, the District Court
agreed with this Courts holding that Clayton failed to show that he actually was
7
incompetent to be tried. Id. at *14. Claytons claim was based on the testimony of
Dr. Foster, but the District Court held that the Missouri courts decision to give no
weight to Dr. Fosters testimony is well supported by the evidence in the record[.] Id.
Dr. Foster testified that Clayton understood the proceedings, the charges against him and
that he faced the death penalty, that he had the right not to testify, and the role of different
participants in the trial, including his attorneys, the prosecutor, the judge, and the jury.
The District Court concluded that these concessions contradicted Dr. Fosters assertion
Clayton was not competent and justified this Courts (and the post-conviction motion
courts) decisions not to give any weight to it. Id.
4.
Clayton was not Mentally Retarded
The District Court also rejected Claytons claim, based on Atkins v. Virginia, 536
U.S. 304 (2002), that due process prohibited his being sentenced to death. Even though
Atkins holds that the constitution prohibits the execution of mentally retarded criminals,
the District Court noted that Atkins is limited to mentally retarded individuals who
satisfy state standards for retardation. Clayton III, 2006 WL 1128803, at *43 (citing
Atkins, 536 U.S. at 317). The District Court held that Claytons claim must fail,
therefore, because he has not presented evidence that any of his symptoms manifested
before the age of eighteen a necessary requirement under the [Missouri] statutory
definition. Id. (citing 565.030.6, RSMo Supp. 2013).
In addition to this shortcoming, the District Court also noted that Dr. Back,
Claytons expert during his post-conviction proceedings, admitted that Clayton was not
retarded when she evaluated him in 2000. Id. at *44. Dr. Back evaluated Clayton less
8
than one year after he killed Castetter and his IQ scores placed Clayton within the low
average range of intellectual functioning. Id. Dr. Blacks conclusion was reinforced by
the 2005 psychiatric evaluation that the District Court ordered be conducted by Dr.
Preston of the Medical Center for Federal Prisoners. When given tests designed to show
the degree of impairment among mentally retarded persons, Clayton received scores that
were consistent with presumed competent individuals without mental retardation. Id.
(citing Dr. Prestons Report at p. 26). Accordingly, the District Court held that the
record refutes his claim that at the time of the murder, or at any time since, [Clayton]
functioned at the level of a mentally retarded person. Id. at *43.
5.
Clayton was not Insane at the Time of the Offense
The District Court rejected Claytons claim that his conviction and death sentence
violate due process because his brain injury meant he could not be criminally responsible
for the murder of Deputy Castetter under section 552.030.1, RSMo 2000, which provides
that a person is not responsible for criminal conduct if, at the time of such conduct, as a
result of mental disease or defect such person was incapable of knowing and appreciating
the nature, quality, or wrongfulness of such persons conduct. Clayton III, 2006 WL
1128803, at *41. Again, Clayton based this claim on the opinions of Dr. Foster but, after
reviewing this experts testimony, the District Court held it is unlikely the jury would
give it substantial weight. Id. Even assuming that Dr. Fosters testimony was credible,
the District Court found that his testimony contradicted rather than supported Claytons
claim because Dr. Foster testified that Clayton knew his conduct was wrong and
understood the quality and nature of his act. Id. Moreover, at Claytons trial Dr. Back
testified that Clayton had the ability to distinguish between right and wrong. Id. In
short, Claytons own experts testimony shows that he did not meet the criteria for
insanity set forth in section 552.030.1. Id.
6.
Clayton was Competent During his Habeas Proceeding
Even though the District Court rejected Claytons claims that the brain injury he
suffered in the 1972 accident absolved him of criminal liability for the 1996 murder of
Deputy Castetter and/or rendered him incompetent to be tried for that crime, the District
Court ordered that a new psychiatric evaluation be performed in 2005 to assist it in
determining: (1) whether Clayton was competent to understand and assist with his federal
habeas proceedings; and (2) whether Clayton was competent to be executed under the
Eighth Amendment standard set forth in Ford. This psychiatric evaluation was
performed by Dr. Preston of the Medical Center for Federal Prisoners, who prepared a
forensic report for the District Court. Dr. Prestons report concluded:
Clayton demonstrated a good factual and rational understanding of the legal
system and the process of adjudication. More specifically, during clinical
interviews, he demonstrated an adequate rational understanding of the
habeas corpus proceedings. He understood the roles of the various
individuals involved in this process as well as the possible outcomes. His
cognitive deficits did not appear to negatively impact his ability to
understand his present legal proceedings.
District Court Order dated April 27, 2006 (the Competency Order) at p. 15
(quoting Dr. Prestons report at p. 30).
Regarding Claytons ability to communicate with counsel and make
rational decisions, the District Court noted that Dr. Preston also acknowledged
10
that Clayton is capable of communication with his lawyer, but emphasized that it
takes more time and effort than with a fully functioning client. Competency
Order at p. 15. See also Clatyon IV, 515 F.2d at 791 (Clayton has the ability to
understand the legal proceedings and communicate with counsel provided that his
counsel is patient in eliciting information). Moreover, neither Claytons federal
counsel nor the two prior counsel who submitted affidavits complained they were
unable to obtain relevant factual information from Clayton. In fact, Dr. Preston
concluded that Dr. Backs earlier diagnosis of dementia was not correct and she
did not find Clayton to have any significant impairment in memory.
Competency Order at p. 17 (citing Dr. Prestons Report at pp. 26-28). The District
Court noted that Clayton consistently was found to be functioning above the level
for a mentally retarded person, and his performance on tests assessing memory,
although weak at times, did not suggest severe impairment. Id.
Accordingly, based on Dr. Prestons Report, the District Court concluded
that even though Claytons judgment is impaired, he has failed to show that the
impairment requires a stay on the ground that he is incompetent to proceed. Id. at
p. 18. This decision was affirmed. Clatyon IV, 515 F.2d at 790. The District
Court reached this conclusion notwithstanding Dr. Prestons ultimate conclusion
that Clayton was incompetent to proceed. Competency Order at p. 18. As the
District Court explained, competency is a legal determination that must be made
by the court and not by experts. Id. See also Clatyon IV, 515 F.2d at 791 (expert
opinion on competency rises no higher than the reasons on which it is based).
11
Because Dr. Prestons objective observations and the tests which she reviewed
show that Clayton is competent to proceed with his habeas corpus action, the
Court is not persuaded by Dr. Prestons ultimate conclusion. Competency Order
at p. 18. See also Clatyon IV, 515 F.2d at 791 (the court placed more emphasis
on the objective findings from the tests the doctor performed than on her ultimate
conclusion)
7.
Clayton was Competent to be Executed
Regarding Claytons claims that he was not competent to be executed, the District
Court first compared the standard for competence to stand trial, see Cooper v. Oklahoma,
517 U.S. 348, 354 (1996) (a rational as well as functional understanding of the
proceedings against him and a sufficient present ability to consult with [the
defendant]s lawyer with a reasonable degree of rational understanding), with the
standard for competence to be executed, which the District Court stated required only
that the convicted defendant be aware of the punishment the defendant was about to
suffer and why the defendant was going to suffer it. Competency Order at p. 11 (citing
Ford, 477 U.S. at 422). The District Court concluded that, assuming competence is even
an issue in federal habeas proceedings (an assumption proved wrong by Ryan v.
Gonzales, 133 S. Ct. 696, 702 (2013)), the standard for such competence must require
greater abilities than the standard for competence to be executed but fewer abilities than
required by the standard of competence to stand trial originally. Id. at 11, 14.
Accordingly, because Clayton was competent to proceed with his federal habeas petition,
12
the District Court needed no additional analysis to reject Claytons claim that he was
incompetent to be executed:
Clayton asserts that he is incompetent to be executed under the standard set
forth in Ford v. Wainwright, 477 U.S. 399 (1986). His recent competency
examination shows that he is competent to be executed. Claytons thirtieth
claim is denied.
Clayton III, 2006 WL 1128803, at *44.
C.
Claytons Current Petition Alleging He is Incompetent to be Executed
Clayton filed this action on March 10, 2015, more than four weeks after this
Courts February 6 order scheduling Claytons execution for March 17. This delay is not
attributable to any need to gather evidence because the most recent of Claytons exhibits
is dated in early January 2015. Instead, this delay is due to the tactical decisions of
Claytons counsel seeking to avoid litigating this claim in this Court. On January 9,
2015, Clayton filed a civil rights action and motion for a stay of execution in federal
court claiming that he was not competent to be executed. This case was assigned to the
same District Court that, in 2006, denied Claytons habeas petition and found that he was
competent to be executed.
Last year, John Middleton sought to litigate his competence in the federal courts
without first raising the issue in this Court. The Eighth Circuit rejected that approach:
The Missouri courts are the proper forum in the first instance for
Middletons claim of incompetency to be executed. The likelihood of
success of a Ford claim in a federal habeas petition depends on how the
Missouri courts dispose of such a claim. See 28 U.S.C. 2254(d); Panetti,
551 U.S. at 948, 127 S.Ct. 2842. Middleton thus far has declined, perhaps
for tactical reasons in light of 2254(d), to advance a Ford claim before the
Supreme Court of Missouri. But that is where the claim must be presented
in the first instance. Whatever might be said about possible justifications
13
for Middletons failure to bring a Ford claim until fewer than 48 hours
before the scheduled execution, there is no reason why Middleton cannot
present a Ford claim and a motion for stay of execution to the Missouri
courts in light of this courts decision of July 15.
Middleton v. Roper, 759 F.3d 867, 869, (8th Cir. 2014) (Middleton II). Thereafter,
Middleton filed his competency action in this Court, and that petition was denied for lack
of merit. State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014)
(Middleton III).
Here, finding no meaningful distinction between Claytons tactic and Middletons
approach that was rejected by the Court of Appeals, the District Court dismissed
Claytons federal suit on February 24, 2015:
Clayton seeks a stay of the March 17, 2015 execution date set by the
Missouri Supreme Court. In [Middleton v. Roper, 759 F.3d 833 (8th Cir.
2014) (Middleton I),] the Eighth Circuit held that the district court abused
its discretion by staying the inmates execution for the purpose of holding a
hearing on a Ford claim that had not been presented in the first instance to
the Missouri state courts. 759 F.3d at 835-36.
In [Middleton II)], issued the following day, the Eighth Circuit held
that the district court had abused its discretion in granting an indefinite stay
of execution, because the inmate had not shown a substantial likelihood of
success on the merits of a Ford claim in his federal habeas petition. 759
F.3d at 869. And the likelihood of success in federal habeas depended on
how the Missouri courts disposed of such a claim. Id. There was no reason
why the inmate could not present both his Ford claim and motion for stay
of execution in the state courts. Id.
In view of Middleton I and II, and this Courts dismissal of
Claytons case, Claytons motion for a stay of execution is denied, without
prejudice.
Clayton v. Lombardi, Case No. 4-15:cv-04003-NKL (order of dismissal) (Feb. 24, 2015),
at pp. 5-6.
14
Even though only three weeks remained until Claytons execution, his counsel
chose not to file his competency claim in this Court, as the District Court held he must.
Instead, Claytons counsel waited until March 2 and then filed a Motion to Alter or
Amend the District Courts judgment dismissing his suit. Only when that motion was
denied (on March 9) did counsel file the present petition.
Analysis
Claytons petition asserts three claims: (1) that Clayton is incompetent to be
executed under Ford and Panetti and section 552.060.1, RSMo 2000; (2) that
section 552.060.2, RSMo 2000 is unconstitutional insofar as it permits the director of
the Department of Corrections, a member of the executive branch who is charged with
conducting the execution, to determine a prisoners competence to be executed; and
(3) that Clayton is intellectually disabled and cannot be executed under Atkins. In
support of these claims, Clayton relies principally on the evaluations performed by Dr.
Foster and Dr. Preston, referred to above, as well as those performed by Dr. Logan.
I.
Clayton is Competent to be Executed

The standard for an Eighth Amendment claim that a prisoner is not competent to
be executed is found in Ford and Panetti. [T]he Eighth Amendment prohibits a State
from carrying out a sentence of death upon a prisoner who is insane. Ford, 477 U.S. at
409410. See also Panetti, 551 U.S. at 934. This constitutional protection prohibits
execution of one whose mental illness prevents him from comprehending the reasons for
the penalty or its implications [or is] unaware of the punishment they are about to
15
suffer and why they are to suffer it. Panetti, 551 U.S. at 957 (quotation marks and
citations omitted).
This standard applies despite a prisoners earlier competency to be held
responsible for committing a crime and to be tried for it, and earlier findings of
competency do not foreclose a prisoner from proving he is incompetent to be executed
because of his present mental condition. Panetti, 551 at 934. Under Ford, however, a
prisoner is not entitled to an adjudication to determine a claim of incompetence on the
eve of his execution unless he makes a sufficient threshold showing that his current
mental state bars execution. Id.
In Middleton III, this Court analyzed the requirements of Ford and Panetti in
greater detail.
In Panetti, the Supreme Court explains that the gravamen of an Eighth
Amendment incompetence claim is not that an inmate is delusional, but that
the inmate suffers from some mental illness that is the source of gross
delusions preventing him from comprehending the meaning and purpose of
the punishment to which he has been sentenced. Id. at 960[]. The
delusions must be such that they so impair the prisoners concept of reality
that he cannot reach a rational understanding of the reason for the
execution. Id. at 958.
In Panetti, the inmate had a genuine delusion involving his understanding
of the reason for his execution .... [that] recast petitioners execution as
part of spiritual warfare ... between the demons and the forces of the
darkness and God and the angels and the forces of light. Id. at 954
(citations omitted). As a result, even though petitioner claims to
understand that the state is saying that [it wishes] to execute him for [his]
murder[s], he believes in earnest that the stated reason is a sham and the
State in truth wants to execute him to stop him from preaching. Id. at
95455[].
16
Nothing in Dr. Logans[ 1] statement, or in the other proof submitted with

Middletons petition, even approaches a substantial threshold showing that
Middleton suffers from such delusions. Instead, at most, they show that
Middleton is delusional as to his innocence and his chances of escaping
execution. Middleton plainly understands he is to be executed as
punishment because he was found guilty of murdering his three victims; he
simply believes he should not have been convicted. Nothing in Panetti or
Ford suggests that an inmate is incompetent to be executed only if he both
understands why he is being executed and agrees that the sentence is
justified.
Instead, the Court in Panetti stated:
The mental state requisite for competence to suffer capital
punishment neither presumes nor requires a person who would be
considered normal, or even rational, in a laypersons
understanding of those terms. Someone who is condemned to death
for an atrocious murder may be so callous as to be unrepentant; so
self-centered and devoid of compassion as to lack all sense of guilt;
so adept in transferring blame to others as to be considered, at least
in the colloquial sense, to be out of touch with reality. Those states
of mind, even if extreme compared to the criminal population at
large, are not what petitioner contends lie at the threshold of a
competence inquiry. The beginning of doubt about competence in a
case like petitioners is not a misanthropic personality or an amoral
character. It is a psychotic disorder.
Id. at 95960 (emphasis omitted).
Middleton III, 435 S.W.3d at 85-86 (all emphasis in the original).
Claytons petition fails for the same reasons expressed in Middleton III. The
deficiencies in Claytons evidentiary offerings are discussed below, but even if the Court
gives them more weight than they are due, they show no more than what the District
Court saw in 2006, i.e., a man who suffers from some cognitive impairment but who
understands that he has been found guilty of killing Deputy Castetter and sentenced to
Dr. Logan, on whom Clayton relies, also opined that Middleton was not competent to be
executed.
17
death for that act. As in Middleton III, neither the fact that Clayton believes he should
not have been convicted nor the fact that he believes he will be spared execution are
sufficient to make a threshold showing that he is incompetent. Id. at 85. Claytons
beliefs in these respects are likely mistaken. They may even be delusional. But they are
not the sort of delusions described in Panetti, and they do not constitute a threshold
showing of incompetence as required by Ford.
Panetti allows for the possibility that an inmate may admit that according to his
jailers he is to be executed for some criminal act even though he actually is laboring
under the genuine (albeit delusional) belief that he is going to be executed for some
different, likely bizarre, but utterly unrelated reason. Such circumstances are
qualitatively different from the circumstances in Middleton III and the present case where
the inmate knows he has been convicted of first-degree murder and sentenced to death
but labors under the genuine (even delusional) belief that he will not be executed because
some outside force whether judicial, gubernatorial, or supernatural will intervene and
save him. The latter is sad, but it is not unconstitutional. Accordingly, Clayton is not
incompetent to be executed.
Seeking to discount the similarity between Claytons condition and Middletons,
Claytons counsel and his experts argue that Clayton meets the Ford and Panetti standard
for incompetence because Clayton is delusional in believing God will spare him from
execution and Middleton was delusional in believing he would be spared by the courts or
the governor. This argument fails. Clayton posits that religious faith and delusion are
not mutually exclusive, Petitioners Reply Suggestions, at p. 25, but his argument
18
implies that they are synonymous. What made the delusions in Panetti sufficient to
trigger a full hearing on the inmates competence was not that the religious themes of the
delusions. Instead, it was the fact that there was reason to believe the inmate genuinely
believed the true purpose behind his execution was not as punishment for a crime, but to
stop him from preaching. The experts on whom Clayton relies admit that Clayton
understands that his death sentence was imposed as punishment for killing Deputy
Castetter and that it will be carried out for that purpose if not stayed, vacated, or
commuted. As explained below, the evidence from these experts (and the other evidence
before the Court) falls short of the required threshold showing that Clayton is not
A.
Dr. Foster
Dr. Foster testified during Claytons post-conviction proceedings that Claytons

brain injury rendered him insane at the time he murdered Deputy Castetter and left him
incompetent to stand trial. The motion court gave no weight to his opinion because it
was conclusory and internally inconsistent. This Court affirmed on the same basis.
Clayton II, 63 S.W.3d at 209.
When Clayton was given an execution date in 2008, Dr. Foster again opined that
Clayton was not competent to be executed. This time, he relied heavily on Dr. Prestons
report from 2005. In addition, Dr. Foster noted:
Despite the approaching date of execution, he [Clayton] remains resolute
that he is called to preach the gospel and will be released from prison by a
miraculous act of God. He continues to practice his gospel singing in
preparation for his ministry once freed, rather than bothering with requests
for clemency or extenuation. Concepts beyond him perceptually, not
19
intellectually. By now he fancies himself wrongly convicted, though does

not have an alternative theory of the crime for which he is convicted.
In November 2013, Dr. Foster reassessed Clayton. He concedes Clayton
seemed aware of his current prison status and the outcome of intervening years (his trial
and conviction, the birth of his grandchildren, the death of his son, the loss of his
property and estate in the payment to his Attorney at his trial, etc.). However, Dr.
Foster again opined that Clayton did not meet the requirements of competency for
purposes of the final appellate proceedings. He stated:
His [Claytons] dementia, medically substantiated and described now for 44
years, is of sufficient severity that, to paraphrase Dr. Preston from her
Report of January 18, 2005, he lacks the capacity to communicate
effectively with his counsel, to testify relevantly if called upon, and to make
rational decisions regarding his habeas proceedings. I found the same
problems in 2000 and testified to those findings in September of that year
[in Claytons post-conviction proceedings]. His Dementia had progressed
by the time I reassessed him in 2008, and his deterioration the past five
years has further lessened his capacity for meaningful participation in his
legal proceedings.
Finally, Dr. Foster updated his report in January 2015. Again, he relies on and
quotes from Dr. Prestons report from January 2005. Though he mentions Claytons agerelated health problems that have occurred since being incarcerated (e.g., hearing loss,
vision deficits, coronary artery disease resulting in a triple coronary bypass in 2001,
hypertension, arthritic spine, hips, and knees, and a surgically repaired broken leg in
2013), Dr. Foster does not opine that any (or all) of these conditions are what make
Clayton incompetent to be executed. Instead, that opinion is based on the 1972 head
injury and its effects, which Dr. Foster says cause Clayton to exhibit poor judgment,
problem solving, mental flexibility, and verbal disinhibition[.] He opines that Clayton is
20
not simply incompetent legally, he would be unable to care for himself or manage basic
self care, were he not in a structured environment . [because even though he] can
shower, groom, eat, walk, it is his comprehension, judgment, memory, limited
intelligence and social deficits that plague him.
Dr. Fosters opinions are not credible because the issue is not whether Clayton is
competent in the sense of whether he can care for himself, or even whether Clayton
suffers from deficits in comprehension, judgment, memory, or intelligence. The issue is
whether Clayton can comprehend the reasons for his death sentence and its implications.
Panetti, 551 U.S. at 957. Put another way, the issue is whether Clayton has a rational
understanding of the punishment he is about to suffer and why he is to suffer it. Id. This
is because the Eighth Amendment only prohibits Claytons execution if he suffers from
gross delusions that impair his concept of reality [such] that he cannot reach a rational
understanding of the reason for the execution. Id. at 958. Dr. Foster does not opine that
Clayton suffers from the gross delusions of the sort described in Panetti. In fact, the
only thing Dr. Foster says about Claytons understanding of his impending execution is in
the penultimate paragraph of his 2015 letter in which Dr. Foster asserts: I do not find
him competent to appreciate the purpose of his pending execution as addressed in
Panetti[.] Dr. Foster does not attempt to substantiate this assertion, and it is not
supported by the remainder of his January 2015 letter. 2
Regarding Dr. Fosters reliance on Dr. Prestons 2005 conclusions as to Claytons inability to
assist his counsel, Dr. Foster fails to note that the District Court specifically rejected those
conclusions and found them to be inconsistent with the remainder of Dr. Prestons report.
21
B.
Dr. Preston
Dr. Preston examined Clayton in 2005 at the request of the District Court in which
Claytons federal habeas petition was being heard. As discussed above, the District
Court thoroughly reviewed Dr. Prestons report and relied heavily upon it in reaching the
conclusion that Clayton was competent to participate in federal habeas proceedings. In
so holding, the District Court reasoned that the standard for competence to proceed with
habeas must require greater abilities than the minimal standard for competence to be
executed. Dr. Prestons report exhibits this same understanding because, even though Dr.
Prestons ultimate opinion was that Clayton was not competent to proceed with his
habeas petition, she had no doubt that Clayton was competent to be executed.
5) Does Mr. Clayton understand that he is to be executed and the reason for
the execution (i.e., the killing of Officer Christopher Castetter)?
Yes. Mr. Clayton was fully aware of the fact that he had been convicted of
murdering Officer Christopher Castetter. Additionally, he expressed the
understanding that he had been sentenced to death for this crime.
According to Mr. Clayton, the method of execution for the state of Missouri
is lethal injection.
Dr. Prestons report at p. 68.
Based on this conclusion, as well as the objective test results and subjective
studies of Clayton described throughout Dr. Prestons report, the District Court rejected
Claytons claim that he was not competent to be executed. The District Court denied a
certificate of appealability on this claim, holding that no reasonable jurist could disagree
about this conclusion.
22
This Court agrees. Though the District Courts decision that Clayton was
competent to be executed in 2006 does not dispose of the question now before this Court,
Dr. Prestons concessions and the other data in her 2005 report are still applicable and
have been endorsed in the last two months by Dr. Foster and Dr. Logan. With no
compelling evidence of any material change in his competence, this Court can reach no
different conclusion from the one reached by the District Court in 2006.
C.
Dr. Logan
Like Dr. Foster, Dr. Logan was brought in to render an opinion as to Claytons
competency to be executed in light of his execution date in 2008. Unlike Dr. Foster,
however, Dr. Logan was not involved in Claytons federal habeas or earlier state
proceedings. After spending three and a half hours with Clayton and reviewing the
voluminous mental health records amassed in earlier proceedings, Dr. Logan opined that
Clayton was not competent to be executed. Like the other experts, however, the details
of Dr. Logans 2008 report do not support and in some places contradict this
conclusion. In particular, he states:
Mr. Clayton believes his conviction was the result of a conspiracy by the
legal system against him and that someone else killed Deputy Castetter.
Furthermore, despite knowing he is facing his last appeal, he firmly
believes God will intervene and his execution will not occur. While
Mr. Clayton knows the State plans to execute him for killing Deputy
Castetter, he believes his legal situation is instead a test of his faith and that
God will not allow the punishment to occur as God has chosen him for
another mission.
In 2013, Dr. Logan was asked to update his findings. He first summarized his
findings from 2008, stating that Clayton only knew concretely that the State planned to
23
execute him for killing Deputy Castetter, but belives [sic] this is only a test of his faith
and would not occur. Because Claytons head trauma, documented on MRI, will never
change, and because Claytons delusional ideas are fixed and unchangeable,
Dr. Logan found no reason to change my previous 2008 opinion[.] He stated:
When examined on September 14, 2012 Mr. Claytons thoughts were
tangential. He still believed God would intervene and he would one day be
a gospel singer and evangelist. He continues to believe he was unjustly
convicted and will never be executed. He just tries to get along with others
and has asked God to work on his case. He does know his attorneys are
working to get him off the capital punishment unit and then have a new
trial. Past this point he has no understanding of the issues in his
proceedings.
On January 7, 2015, Dr. Foster again stated that Mr. Claytons mental state has
changed little since my earlier evaluations in 2008 and 2013.
His view of his conviction is that he is the victim of a conspiracy. His
mood varies from anxiety to paranoia. He still engages in delusional denial
that his execution will take place relying on divine intervention in some
form so he can pursue a gospel ministry as a preacher and sing with the best
pianist in Missouri with whom he will tour the nation.
Even though he concludes that Clayton lacks the capacity to understand matters in
extenuation [or] arguments for executive clemency, Dr. Logan admits that, [i]n this
regard, he [Clayton] accepts that God may choose to work through his defense team[.]
Dr. Logans opinions about Clayton are not credible for the same reasons that the
Court refused to credit the substantially similar opinions he offered in Middleton III.
There, too, Dr. Logan opined that Middleton was incompetent to be executed because,
even though Middleton can recite the reason it [his death sentence] was imposed, he in
fact believes his conviction was the result of a conspiracy. Furthermore, he shows
24
little to no emotional reaction to his impending execution date but instead believes he will
not die while incarcerated but will be cleared on the charges and return to the
community. Middleton III, 435 S.W.3d at 84. Dr. Logans opinions about Middleton,
however, did not even purport to describe the sort of gross delusions that would
prevent Middleton from comprehending the meaning and purpose of the punishment to
which he has been sentenced. Id. (quoting Panetti, 551 U.S. at 960). Accordingly, this
Court held:
Nothing in Dr. Logans statement, or in the other proof submitted with
Middletons petition, even approaches a substantial threshold showing that
Middleton suffers from such delusions. Instead, at most, they show that
Middleton is delusional as to his innocence and his chances of escaping
execution. Middleton plainly understands he is to be executed as
punishment because he was found guilty of murdering his three victims; he
simply believes he should not have been convicted. Nothing in Panetti or
Ford suggests that an inmate is incompetent to be executed only if he both
understands why he is being executed and agrees that the sentence is
justified.
Id. at 85.
Even though Clayton has a severe brain injury and Middleton did not, Dr. Logans
assessment of the effects of Claytons injury on his competence to be executed is
fundamentally the same as his assessment of Middletons competence to be executed.
Dr. Logan concluded they were both incompetent because they both believed they were
wrongfully convicted and they both believed their sentences would never be carried out.
But being delusional as to his innocence and his chance of escaping execution did not
mean that Middleton was incompetent to be executed. Id. Accordingly, those same
25
delusions do not constitute a sufficient threshold showing that Clayton is incompetent to

be executed.
D.
Other Evidence
The Court has reviewed the remaining evidence submitted in support of Claytons
petition, nearly all of which was reviewed by, described, and relied upon by one or more
of Claytons three experts (i.e., Drs. Foster, Logan and Preston). None of this other
evidence, either singly or in combination with the opinions of Claytons experts,
establishes the sort of threshold showing required by Ford and Panetti. This evidence
confirms the facts the experts describe, i.e., that Clayton continues to suffer effects from
his 1972 brain injury but Clayton also understands that he was convicted of murdering
Deputy Castetter and that he is to be executed for that crime.
For example, during telephone calls to his relatives, Clayton poignantly explains
that his execution is being scheduled and that unless that execution is stopped he will
die for murdering Deputy Castetter. He explains that he will appear before a parole board
as part of his clemency process and that he understands that the purpose of that
appearance is to explain why he should not be executed. Clayton then recites those
circumstances surrounding the crime which he believes demonstrate his innocence. Even
though Clayton does not believe he is guilty, and even though he believes he will be
spared execution, these calls confirm that Clayton knows if he is not spared that he is
going to be executed for this murder.
In addition, in September 2014, at the request of the director of the department of
corrections, the director of the department of mental health had James Reynolds, M.D., a
26
forensic psychiatrist, perform an evaluation of Claytons competence to be executed. Dr.

Reynolds report confirms the Courts conclusions set forth above. For example, he
concludes that Mr. Claytons religious beliefs, and his faith that God will intervene in
some fashion to prevent his execution, do not represent delusional thinking.
Respondents Exhibit A at p. 9. Despite his beliefs, Dr. Reynolds explains that Clayton
understands God may not spare him from execution, and Clayton is comfortable with that
possibility. Clayton told Dr. Reynolds that, if he [God] dont, it wont be his fault. I
will take my chances with God. Id.
Dr. Reynolds also explains that, not only is Clayton aware of the implications his
death sentence holds for him, Clayton has grown weary of the stress of waiting and not
knowing. Viewed in that context, Dr. Reynolds concludes that Clayton has a realistic
understanding that God may not spare him and, therefore, his faith that He can (and may)
do so is not delusional.
We were discussing the efforts of his attorneys to help him avoid the death
penalty and the role that my evaluation and those of others might play in
that process. Mr. Clayton stated if it [my report] dont help me then it
dont matter to me. I want an honest evaluation. He then added it
matters a lot to get off of capital punishment. Ive had that hanging over
my head for years. It would give me some relief in other words. Its been
seventeen or eighteen years. You wouldnt want them to take a needle and
put it in your arm and kill you, would you? In my opinion, an individual
who is delusional about the certainty of God rescuing him from the death
penalty would not likely show so much feeling when discussing his fear of
the sentence being executed.
Id. at 9-10.
Similarly, Dr. Reynolds recounts Claytons description of the circumstances of
Deputy Castetters murder in 1996, as well as Claytons explanation regarding those facts
27
which he believes demonstrate his innocence. In the end, however, Dr. Reynolds
concluded: Mr. Claytons words to me in this area of discussion did not have the
character of a delusional belief about his being falsely accused of the crime. He
merely claimed that he did not harm the deputy. Certainly it is not uncommon for
criminal defendants to deny their guilt even in the face of overwhelming evidence. Such
denial does not equate to delusional mental illness. Id. at 11.
Dr. Reynolds does not opine and this Court does not believe that Clayton is
perfectly normal or that his 1972 brain injury does not affect him to this day. Clearly it
does. Dr. Reynolds diagnosed Clayton as having several disorders in accordance with the
Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV),
including DSM 294.1 (Dementia Due to General Medical Condition, i.e., traumatic
brain injury, a small stroke, and possible age-related decline); DSM 296.32 (Major
depression currently mild to low-moderate in severity); DSM 293.82 (Psychotic
Disorder Due to General Medical Condition, i.e., traumatic brain injury). Id. at 8.
But, on the question of whether any single one, or a combination, of these mental
diseases, giv[es] reasonable cause to believe that Mr. Clayton is lacking in capacity to
understand the nature and purpose of the punishment he is under sentence to receive,
Dr. Reynolds responds: It is my opinion, to a reasonable degree of medical certainty,
that they do not. Id. at 10. He states unequivocally that Clayton clearly is aware that
he is under sentence of death for being convicted of shooting and killing Deputy
Castetter. He indicated to me in what I consider an unequivocal fashion during the
[initial] interview of June 26, 2014, that he understands that he is under the threat of
28
execution, that this will result in his death, and he communicated this to me with
considerable feeling. Id. at 11.
E.
Matters in Extenuation and Clemency
Clayton also claims that, even if he is competent to be executed under Ford and
Panetti, he does not meet the standard for competence in section 552.060.1, RSMo 2000,
which requires that he be able to understand matters in extenuation, arguments for
executive clemency or reasons why the sentence should not be carried out. The Court
rejects this claim.
As described above, this Court found in Clayton II that there was no basis to
suspect that Clayton was unable to assist counsel appropriately at (and prior to) his
original trial. Clayton II, 63 S.W.3d at 209. During his federal habeas proceedings, the
District Court found that Clayton was competent to assist counsel with those proceedings.
Competency Order at 15-18. This finding was based on the extensive testing and
evaluation by Dr. Preston, who found that Claytons cognitive deficits did not appear to
negatively impact his ability to understand his legal proceedings. Dr. Prestons Report,
at p. 30. The District Court relied extensively on Dr. Prestons conclusions that Clayton
had no significant impairment in memory and could with some work communicate
effectively with counsel. Competency Order at pp. 17, 15 (citing Dr. Prestons report at
pp. 26-28).
Clayton provides no evidence that these capabilities have declined materially since
2006 and that, as a result of that decline, his counsel have been unable to prepare a
clemency application on his behalf. As the District Court held, the question of whether
29
an inmate is competent to assist in his defense must be analyzed in light of the

proceedings underway at the time and the demands those proceedings place on the
inmates memory and ability to communicate. Competency Order, at 13-15. Greatest
prior to and during trial, these demands fall off markedly throughout the appellate,
post-conviction, and federal habeas proceedings. At the end of this process, when the
issue turns to clemency, there is very little that depends on the defendant suddenly
recollecting some new fact that will result in a new argument or ground for clemency.
Certainly this is so in this case. Claytons life has been chronicled exhaustively by
counsel in the nearly two decades since his crime. Counsel have thoroughly mined the
original trial for every conceivable legal and factual argument. As the petition in this
case shows clearly, there is nothing about Clayton or this crime that has not been known
and debated at multiple stages of his legal proceedings. And, as noted above, Claytons
telephone records and the evaluations of Drs. Foster, Logan and Reynolds show that
Clayton recalls the salient details from 1996 quite clearly and is aware that both he and
his counsel continue to search for arguments to preclude his execution.
Accordingly, even though the effects of his brain injury and increasing age make it
more difficult for Clayton, there is no evidence that he is not capable of understanding
matters in extenuation, arguments for executive clemency or reasons why the sentence
should not be carried out as required by section 552.060.1 2000.
F.
Clayton is Competent to be Executed
For the reasons set forth above, the Court finds that Clayton is competent to be
executed. The Court has considered all of the evidence he has submitted and concludes
30
that this evidence by itself and in light of the evidence submitted by the state neither
satisfies the threshold showing requirement in Ford and Panetti nor shows that Clayton is
incapable of understanding arguments for extenuation or clemency as required by section
552.060.1, RSMo 2000.
II.
Section 552.060.2 is Not Unconstitutional

Clayton claims that section 552.060.2, RSMo 2000, is unconstitutional insofar as
it permits the director of the Department of Corrections, a member of the executive

branch who is charged with conducting the execution, to determine a prisoners
competence to be executed. This claim is denied on the merits.
Clayton misperceives the function of section 552.060.2. This subsection provides
that, if the director of the department of corrections has reasonable cause to believe an
inmate who is sentenced to death is not competent to be executed, he shall immediately
notify the governor who shall forthwith order a stay of execution of the sentence if there
is not sufficient time between such notification and time of execution for a determination
of the mental condition of such person to be made in accordance with the provisions of
this section without such stay. By its plain language, this statute only pertains to what
the director and the governor shall do under certain circumstances. It does not
establish, define, or enforce any right belonging to the condemned inmate.
When this Court issues an execution warrant, the director and the warden of the
particular institution are obligated to carry it out. Anytime the director has reasonable
cause to believe that a condemned inmate is not competent to be executed, the director
can and indeed must invoke the procedure in section 552.060.2. The fact that the
31
director does not need this statute to pursue the same course when no execution warrant
is outstanding demonstrates that the purpose of section 552.060.2 focuses on when there
is a warrant and the inmate, though incompetent to be executed, does not seek to protect
himself. Without section 552.060.2, the director and the warden would be trapped
between their duty to comply with the warrant by executing the prisoner and their
independent constitutional duty not to execute an incompetent inmate. Section 552.060.2
resolves this dilemma and requires the governor to stay the execution.
Section 552.060.2 is irrelevant, however, when an inmate claims he is not
competent to be executed. As this Court noted in Middleton III, a condemned inmate has
a right to raise that issue directly in this Court by filing a petition for writ of habeas
corpus. This is the procedure by which a condemned prisoner is permitted to litigate this
question, and Clayton does not contend that it is constitutionally deficient to meet that
end. Section 552.060.2, on the other hand, is only intended to be invoked by a different
party under different circumstances. Accordingly, the Court now expressly holds what
was implied in Middleton III, i.e., that section 552.060.2 is not unconstitutional because it
does not permit the director to determine whether a prisoner is competent to be executed
to the exclusion of (or even as a predicate to) an inmates ability to seek a judicial
determination on that issue.
32
III.
Clayton is not Intellectually Disabled under Atkins

Claytons final claim is that, because of his significantly sub-average IQ and lack
of adaptive skills, he is intellectually disabled 3 and, therefore, categorically ineligible

for the death penalty under Atkins. As noted above, Clayton already has litigated this
claim in his federal habeas proceedings. There, the District Court denied this claim and
did not allow an appeal. Clayton III, 2006 WL 1128803, at *43 (noting that Claytons
expert, Dr. Back, testified that Clayton was not retarded when she evaluated him in
2000).
Assuming (without deciding) that Claytons lack of any intellectual disability is
not res judicata based on the decision in the District Court, this Court rejects Claytons
claim on the merits. Atkins holds that the constitution prohibits the execution of an
intellectually disabled person, but Atkins also recognizes that the question of what
constitutes intellectual disability is a question of state law. 4 Atkins, 536 U.S. at 317.
Missouri law on this issue is established by section 565.030.6, which provides:
As used in this section, the terms intellectual disability or intellectually
disabled refer to a condition involving substantial limitations in general
functioning characterized by significantly subaverage intellectual
functioning with continual extensive related deficits and limitations in two
or more adaptive behaviors such as communication, self-care, home living,
social skills, community use, self-direction, health and safety, functional
3
Originally, the United States Supreme Court used the term mentally retarded to refer to
persons with intellectual disability. In keeping with changes by the American Psychiatric
Association and others, the Supreme Court now uses the phrase intellectual disability to
describe the same condition. See Hall v. Florida, 134 S.Ct. 1986, 1989 (2014) (explaining the
change in terminology).
4
The Supreme Court, in Hall, recognizes, however, that the Court determines whether the state
standard for "intellectual disability" meets constitutional scrutiny, after being informed by the
medical community's diagnostic framework. Hall, 134 S.Ct. 1999-2000.
33
academics, leisure and work, which conditions are manifested and

documented before eighteen years of age.
565.030.6, RSMo Supp 2013.
The school records and other evidence provided by Clayton in this case show that
he was of average intelligence or better before age 18, and this continued at least until
his brain injury in 1972. Accordingly, he cannot be intellectually disabled as that term
is defined in Missouri law.
Section 565.030.6, like the analysis Atkins, considers intellectual disability as an
immutable characteristic which manifests at or shortly following birth and, therefore, is
necessarily present at the time the defendant committed the crime. Ford and Panetti, on
the other hand, analyze incompetence as a disease or defect which can arise after the
crime and, therefore, must be evaluated separately at each stage of the proceedings. See
Ford, 477 U.S. at 406-07 (if, after judgment, he [the inmate] becomes of nonsane
memory, execution shall be stayed). See also Goodwin, 191 S.W.3d 20, 33 n.9 (Mo.
banc 2006) (holding that, even though Goodwin was not intellectually disabled, he could
still claim he is not competent to be executed when his execution date is set).
Clayton would eliminate this distinction by arguing that even though his brain
injury does not render him incompetent to be executed under section 552.060.1 or the
Eighth Amendment standard under Ford and Panetti the continuing effects5 of that
After his injury in 1972, Claytons various Full Scale IQ scores are: 75 (in 1980, using the
Wechsler Adult Intelligence Scale), 86 (in 1997, using the Wechsler Adult Intelligence Scale
Revised), and 71 (in 2005, using the Wechsler Adult Intelligence Scale Third Edition). These
scores all are in the low average range of intellectual functioning. Clayton recognizes that
these scores all are above the generally recognized cutoff for intellectual disability of 70, and
34
injury nevertheless exempt him from execution because they are as if he was
intellectually disabled under Atkins. Clayton offers no authority for such an expansion
of Atkins, and this Court is not persuaded that such an expansion is justified.
Accordingly, the Court finds that Clayton is not intellectually disabled under
Missouri law and holds that because Atkins does not apply to conditions not recognized
as intellectual disabilities under state law Clayton is not categorically excluded from
eligibility for the death penalty. All conditions other than those which constitute an
intellectual disability under section 565.030.6 must be analyzed in terms of their effect on
an inmates competence to be executed. As held above, Clayton fails to make a threshold
showing that his lacks such competence.
Conclusion
For the reasons set forth above, Claytons petition for a writ of habeas corpus is
denied on its merits and Claytons accompanying motion for a stay of execution is
overruled as moot.
_________________________________
Paul C. Wilson, Judge
Russell, C.J., Breckenridge, and Fischer, JJ., concur; Stith, J., dissents in separate opinion
filed; Draper and Teitelman, JJ., concur in opinion of Stith, J.
Clayton does not make a margin of error argument of the sort addressed in Hall, 134 S.Ct. at
2001. See also Goodwin, 191 S.W.2d at 31 n.7 (recognizing that IQ test scores are not applied
mechanically because IQ scores are only one part of the statutory definition). Moreover, when
Dr. Preston administered the competency assessment tests designed for use with intellectually
disabled persons, Claytons scores were consistent with presumed competent individuals
without mental retardation. Dr. Prestons report at p. 26.
35
SUPREME COURT OF MISSOURI

en banc
STATE EX REL. CECIL CLAYTON,

Petitioner,
v.
WARDEN, POTOSI CORRECTIONAL
CENTER,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
No. SC94841
DISSENTING OPINION
Mr. Clayton has a traumatic brain injury that has resulted in the loss of 20 percent
of his frontal lobe and has presented reasonable grounds to believe his overall mental
condition has deteriorated and he is intellectually disabled under Atkins v. Virginia, 536
U.S. 304, 317, 320 (2002), and Hall v. Florida, 134 S.Ct. 1986, 2001 (2014).
Mr. Clayton also has presented reasonable grounds to believe that he is incompetent to be
executed and so, under Ford v. Wainwright, 477 U.S. 339 (1986), and Panetti v.
Quarterman, 551 U.S. 930 (2007), is entitled to a hearing at which his competence will
be determined. This Court, nonetheless, rushes to reject his request for a hearing before a
special master at which he can attempt to prove his incompetency claim and his claim
that he is intellectually disabled. As explained in more detail below, the majoritys
decision to proceed with the execution at this time and in these circumstances violates the
Eighth Amendment ban on cruel and unusual punishment.
A.
Timeliness of Petition for Habeas Relief
The majority opinion suggests that one of the reasons why the Court refuses to
allow him a hearing is that the request has come so close to the date of execution. But the
Ford claim can be made only once an execution date is set, as it is the defendants
competency at the time of execution that is relevant. This Court set the execution date
only on February 6, 2015. Counsel sought relief in federal court and then in this Court
during the succeeding 33 days. Counsel can hardly be said to have tarried.
As to Mr. Claytons claim that he is intellectually disabled, part of his claim is that
his brain injury has combined with the lack of treatment while in prison to render him
more disabled over time. As time goes on, therefore, his condition has deteriorated. He
most recently was examined in January 2015. This Court did not give notice it would
decide to start setting executions almost monthly. Counsel could not know which clients
they needed to get examined first or whose execution would be set when. But counsel
had acted before this Court notified Mr. Clayton on February 6, 2015, that he would be
executed just 39 days later. If that execution proceeds as scheduled, it will be the 14th
execution this State will have carried out since November 2013 the Court set three
other persons executions, but those orders were later stayed by this Court or by the
federal courts.
All of these executions have been carried out with less than 60-days notice. The
same group of half a dozen lead counsel, aided by fewer than a dozen co-counsel,
2
represent nearly all of those who have been executed, as well as others as to whom the
attorney general of Missouri has filed motions to set execution dates. Recently, this
Court has been asked to consider giving six-months notice of execution dates because of
the difficulties posed by the fact that the same small group of counsel represent nearly all
of the death penalty petitioners, making it difficult for them to competently prepare
pleadings or to recover from the death of one client, when they are unsuccessful, before
turning to the next.
Ms. Carlyle, lead counsel for Mr. Clayton, has been lead counsel for three
executed defendants in the last year alone Michael Taylor, executed February 26, 2014;
John C. Middleton, executed July 16, 2014; and Leon Taylor, executed just four months
ago on November 19, 2014. Two of her other clients have received orders to show cause
why execution dates should not be set. To suggest in these circumstances that these
dedicated counsel are at fault for not filing papers a few weeks earlier is just plain
unreasonable. It is also unreasonable to expect counsel to anticipate and have the ability
to file pleadings and conduct needed medical and mitigation research and investigation
simultaneously in the face of Missouris sudden rush of executions.
I turn to a discussion of the substance of Mr. Claytons claim. 1
B.
Reasonable Grounds to believe Mr. Clayton is Intellectually Disabled
In Atkins the United States Supreme Court held that no legitimate penological
purpose is served by executing a person who is mentally retarded. 2 Therefore, Atkins
I do not respond to the majoritys sua sponte decision to revisit Mr. Claytons trial,
appeal and earlier post-trial proceedings because the issues now raised by Mr. Clayton do
not involve those proceedings.
3
held, to execute an intellectually disabled person would violate the Eighth Amendment.
536 U.S. at 317, 320. Atkins left to the States the task of developing appropriate ways
to enforce the constitutional restriction. Id. at 317.
But the constitutional restriction
bars execution of the disabled; the constitutional protection is not narrowed just because
some states may not enact a statute that encompasses all intellectually disabled persons.
Missouri, like other states, passed legislation to comply with Atkins mandate.
Missouris statute bars the execution of persons with an intellectual disability, which
section 565.030.6, RSMo Supp. 2014, defines as:
[A] condition involving substantial limitations in general functioning
characterized by significantly subaverage intellectual functioning with
continual extensive related deficits and limitations in two or more adaptive
behaviors such as communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics,
leisure and work, which conditions are manifested and documented before
eighteen years of age.
Florida also passed legislation to comply with Atkins mandate.
Florida law
defines intellectual disability as significantly subaverage general intellectual functioning

existing concurrently with deficits in adaptive behavior and manifested during the period
from conception to age 18, and defines significantly subaverage general intellectual
functioning as performance that is two or more standard deviations from the mean
score on a standardized intelligence test, with the mean IQ test score as 100. Id. at
1994.
Being found mentally retarded now is referred to as being intellectually disabled,

and the latter term will be substituted for mentally retarded for the remainder of this
opinion.
4
In Hall, Mr. Hall committed a murder in Florida for which he was subject to the
death penalty. 134 S. Ct. at 1991. But Mr. Hall claimed that he was ineligible for the
death penalty because he was intellectually disabled. He had an IQ test score of 71. The
question was whether this qualified him for a hearing as to whether he was intellectually
disabled. The Florida Supreme Court interpreted the meaning of its statute narrowly. It
held that a score of 70 was two standard deviations below a score of 100, and this made
70 a strict IQ cut-off. Therefore, Florida held, a person whose test score is above 70,
including a score within the margin for measurement error, does not have an intellectual
disability and is barred from presenting other evidence that would show his faculties are
limited. Id. at 1994. In fact, Florida held:
Pursuant to this mandatory cutoff, sentencing courts cannot consider
even substantial and weighty evidence of intellectual disability as measured
and made manifest by the defendants failure or inability to adapt to his
social and cultural environment, including medical histories, behavioral
records, school tests and reports, and testimony regarding past behavior and
family circumstances. This is so even though the medical community
accepts that all of this evidence can be probative of intellectual disability,
including for individuals who have an IQ test score above 70.
Id.
The United States Supreme Court reversed and remanded. Id. at 2001. In doing
so, the Supreme Court explained that the Florida Supreme Court disregarded established
medical practice in two ways. Id. at 1995. First, the Florida Supreme Court took an IQ
score as final and conclusive evidence of a defendants intellectual capacity, when
experts in the field would consider other evidence. Id. This was error. In determining
whether an individual is intellectually disabled, the Supreme Court stated, other factors
regarding an individuals adaptive functioning must be considered in addition to IQ, such
5
as evidence of past performance, environment, and upbringing.
Id. at 1995-96.
Therefore, when a defendants IQ test score falls within the tests acknowledged and
inherent margin of error, the defendant must be able to present additional evidence of
intellectual disability, including testimony regarding adaptive deficits. Id. at 2001.
Second, and interrelated with the first reason, the Florida Supreme Court relied
on a purportedly scientific measurement of the defendants abilities, his IQ score, while
refusing to recognize that the score is, on its own terms, imprecise. Id. at 1995. The
Supreme Court said that many medical professionals agree that an IQ score should be
considered a range rather than a fixed score, and such a range reflects the standard error
of measurement. Id. Although Halls score was 71, the margin of error meant his score
fell in a range between 66 and 76, creating the possibility that the defendants actual IQ
was below 70. Id. But the Florida Supreme Court used the test score as a fixed number,
thus barring further consideration of other evidence bearing on the question of intellectual
disability. Id. at 1996. Hall held this was improper, and the Supreme Court remanded
for a factual determination as to whether Mr. Hall was competent.
Here, as in Hall, Cecil Clayton most recently has posted an IQ score of 71. The
majority does not deny that if Clayton had a score of 66, or some other score below 70,
he would be entitled to a hearing as to his intellectual disability. But, because his score is
71, it says he does not. This is exactly what the Supreme Court in Hall disallowed!
The majority tries to get around this issue by saying in a footnote that the margin
of error argument was not raised. It is not clear why the majority would want to execute
an intellectually disabled man regardless of whether the claim was preserved. To do so

would be manifestly unjust.
In any event, the issue is not one that is waivable for multiple reasons. First, it is
not an error that must be raised to be preserved. It is just a scientific fact, a definition, of
what is meant by a score of 70 it means a range with 70 at its center. Margins of error
are inherent in the testing, not a legal issue to be preserved. That is what Hall was all
about.
Second, if Mr. Clayton is intellectually disabled, then the Eighth Amendment
makes him ineligible for execution. Would the majority hold that if a 14-year-old had
failed to raise his age at trial or in post-trial proceedings then it would be permissible to
execute him for a crime he committed while he was a minor? Of course not; his age
would make him ineligible for execution. So too, here, if Mr. Clayton is intellectually
disabled, then he is ineligible for execution. Hall held that: The death penalty is the
gravest sentence our society may impose. Persons facing that most severe sanction must
have a fair opportunity to show that the Constitution prohibits their execution. Hall, 134
S. Ct. at 2001 (emphasis added). Mr. Clayton deserves a hearing here.
The majority also suggests that Mr. Clayton does not need a hearing, despite Hall,
because Mr. Clayton presented evidence of his lack of competency at trial and it was
rejected. But the issue here is not whether Mr. Clayton was sufficiently competent to
assist in his defense or to be found guilty when he was convicted in 1996. The issue is
whether Mr. Clayton is sufficiently competent today to be executed. Mr. Clayton alleges
that his lack of treatment during his incarceration has worsened his condition. His 2004
7
IQ score of 71 has never been seen by a jury or considered by a Missouri court in an

evidentiary hearing, and neither have the expert opinions given since his post-conviction
hearing, opinions that support a finding of intellectual disability. Mr. Claytons score of
71 is within the standard error of measurement and Hall constitutionally requires that he
be given a hearing to present evidence of impairments in both his intellectual and
adaptive functioning.
The majority further suggests that if intellectual disability is an issue it must reach,
it factually finds, from its own review of the record, that Mr. Clayton is not intellectually
disabled and, therefore, will not give him a hearing. But that puts the cart before the
horse. He needs to have the hearing before the Court can reject (or, there is always the
possibility that the majority would accept) the evidence he presents at it. Mr. Clayton
having shown he has an IQ score of 71, within the range of a score that is below 70, is
entitled to a hearing at which he has opportunity to prove that intellectual disability
before a fact-finding body, which this Court is not, at which he is entitled to present
other factors regarding an individuals adaptive functioning that must be considered in
addition to IQ, such as evidence of past performance, environment, and upbringing.
Hall, 134 S. Ct. at 1995-96.
The majority finally suggests that a Hall hearing need not be held because it is not
mandated by Missouris statute, section 565.030.6, which defines intellectual disability
as a disability that manifests itself before the age of 18. But Mr. Claytons principal
claim is not that he is entitled not to be executed under section 565.030.6. His claim is
that he is entitled to relief under the Eighth Amendment as interpreted and applied in
8
Atkins and Hall. Section 565.030.6 simply sets out the circumstances in which the
legislature determined that a person is intellectually disabled. The legislature did not
state that no one can become intellectually disabled after age 18, for to do so would be
absurd.
Of course people can become disabled later in life.
In any event, the
presumptive purpose of requiring a disability to manifest itself by age 18 is to preclude

later faking of intellectual disability. Here, there is no factual dispute that Clayton
suffered a brain injury and lost 20 percent of his frontal lobe, and that his IQ went down
thereafter and long prior to the murder, so those concerns are not present.
Whatever section 565.060 says, it is axiomatic that the Eighth Amendment applies
to all persons, so that under it a person who becomes intellectually disabled after age 18
may also seek relief from execution. Indeed, while, as the majority notes, Atkins left to
the States the task of developing appropriate ways to enforce the constitutional
restriction, 536 U.S.at 317, Hall makes it clear that what is appropriate is limited by
the Eighth Amendment. This is because the Atkins mandate that it is unconstitutional to
execute someone who is intellectually disabled does not depend on when an intellectual
disability manifested, but on whether an intellectual disability exists. It is not merely a
statutory right and in fact this Court by rule barred the execution of individuals with
intellectual disabilities before the statute was adopted. The right of an intellectually
disabled person not to be executed is a human right protected by the Eighth Amendment.
Mr. Clayton is entitled to a hearing before a master on his claim of intellectual
disability.
C.
Mr. Clayton is Entitled to a Hearing under Ford v. Wainwright.
Clayton also invokes his right to a competency hearing prior to his execution
under Ford and Panetti.
Indeed, the majority acknowledges that Ford requires a
competency hearing when the defendant makes a showing that he does not understand the
reason for his execution. But, it says, that is the only circumstance in which Ford or
Panetti require a competency hearing. The majority opinion is wrong.
In Panetti, the Supreme Court explicitly held that merely being aware of the
rationale for the execution a murder is not adequate to meet the required standard of
competency, the prisoner must also understand the rationale for his execution. As Panetti
stated:
We find no support in Ford, including in its discussions of the
common law and the state standards, for the proposition that a prisoner is
automatically foreclosed from demonstrating incompetency once a court
has found he can identify the stated reason for his execution. A prisoners
awareness of the States rationale for an execution is not the same as a
rational understanding of it. Ford does not foreclose inquiry into the latter.
Panetti, 551 U.S. at 959 (emphasis added).
Further, Missouri has enacted a statute that spells out in greater detail what the
Ford inquiry requires. Section 552.060.1 states: No person condemned to death shall
be executed if as a result of mental disease or defect he lacks capacity to understand the
nature and purpose of the punishment about to be imposed upon him or matters in
extenuation, arguments for executive clemency or reasons why the sentence should not be
carried out. (Emphasis added).
The majority simply ignores the requirement that, unless Mr. Clayton understands
the rationale for his execution and matters in extenuation, arguments for executive
10
clemency or reasons why the sentence should not be carried out, then he is not
competent to be executed. But shutting its eyes to this requirement does not make it go
away.
The majority is also incorrect in suggesting that this Court can now decide on the
present record whether Mr. Clayton is competent and as it finds he is, he does not need a
hearing. That, again, puts the cart before the horse. The only issue for this Court is
whether Mr. Clayton has presented reasonable grounds that, if believed, demonstrate he
lacks the competency to be executed. If so, then this Court must allow a hearing at which
a factual determination can be made. No such hearing has been held in a Missouri court.
The record before this Court presents reasonable grounds to believe that Mr. Clayton can
meet the Panetti or section 552.060.1 standard. As Dr. Logan noted after his examination
of Mr. Clayton in January of this year:
Mr. Clayton due to his delusional denial, lacks the capacity to understand
matters in extenuation, arguments for executive clemency or any reasons
his attorneys might present as to why his sentence should not be carried out.
Another report states:
While Mr. Clayton knows the State plans to execute him for killing Deputy
Castetter, he believes his legal situation is instead a test of his faith and that
God will not allow the punishment to occur as God has chosen him for
another mission. Hence, he has no concept of a need for clemency, or
capacity to understand matters in extenuation, arguments for executive
clemency or rational reasons why the sentence should not be carried out.
And Dr. Foster, whose testimony the majority much discusses, states that Mr.
Clayton:
remains, as he has been since I first met him, unable to fully participate,
cooperate or comprehend his legal status, process and final, pending
deliberations. While he can superficially seem intact, extended contact or
11
observation exposes his multiple deficits, which continue their slow

deterioration, despite the structured, secure setting in which he has resided
over the past two decades. He is not simply incompetent legally, he would
be unable to care for himself or manage basic self care, were he not in a
structured environment that takes care of him. He can shower, groom, eat,
walk, it is his comprehension, judgment, memory, limited intelligence and
social deficits that plague him.
I do not find him competent to appreciate the purpose of his pending
execution as addressed in Panetti v. Quarterman and Ford v.Wainwright,
should it not be stayed by the State of Missouri or the Federal Court. He
can replicate elements of the fact that an execution follows a conviction for
first degree murder, though still does not comprehend, appreciate nor
understand its approaching date for him.
The special master may or may not believe these experts, or Mr. Claytons other
evidence and experts, but Dr. Fosters expert opinion, particularly as supported by
Mr. Claytons 2004 IQ score of 71, presents reasonable grounds for a hearing.
Mr. Clayton should be allowed the opportunity to convince the special master that he is
ineligible for execution because he is intellectually disabled or because he does not have
a rational understanding of the reasons for his execution and does not have the capacity to
understand matters in extenuation, arguments for executive clemency or rational reasons
why the sentence should not be carried out. The denial of such a hearing deprives
Mr. Clayton of a fair opportunity to show that the Constitution prohibits his execution.
For the foregoing reasons, I dissent.
___________________________
LAURA DENVIR STITH, JUDGE
12
State v. Clayton
Mo.,1999.
Supreme Court of Missouri,En Banc.
STATE of Missouri, Respondent,
v.
Cecil L. CLAYTON, Appellant.
No. 80545.
June 29, 1999.
Rehearing Denied Aug. 3, 1999.
Defendant was convicted in the Circuit Court, Jasper County, C. David Darnold, J., of firstdegree murder for killing a deputy sheriff, and sentenced to death. Defendant appealed. The
Supreme Court, Price, J., held that: (1) venireperson's statement that he was unsure whether he
could vote for death and that he could do so only in extreme cases provided basis to excuse
venireperson for cause; (2) probable cause existed for warrantless arrest of defendant for firstdegree murder; (3) photograph of victim of prior assault committed by defendant, depicting
victim's face and bloody shirt, was admissible at penalty phase to show nature and extent of
assault victim's injuries; (4) penalty phase instruction listing non-statutory mitigating
circumstances was not warranted; (5) prosecutor's closing argument during penalty phase that
punishment should fit crime amounted to proper argument in retaliation to defense counsel's
statement that punishment should fit criminal.
Affirmed.
West Headnotes
[1] Criminal Law 110
1144.13(2.1)
110 Criminal Law

110XXIV Review
110XXIV(M) Presumptions
110k1144 Facts or Proceedings Not Shown by Record
110k1144.13 Sufficiency of Evidence
110k1144.13(2) Construction of Evidence
110k1144.13(2.1) k. In General. Most Cited Cases
Supreme Court reviews the evidence presented at trial in the light most favorable to the verdict.
661
110 Criminal Law

110XX Trial
110XX(C) Reception of Evidence
2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
110k661 k. Necessity and Scope of Proof. Most Cited Cases

Criminal Law 110
1153.1
110 Criminal Law

110XXIV Review
110XXIV(N) Discretion of Lower Court
110k1153 Reception and Admissibility of Evidence
110k1153.1 k. In General. Most Cited Cases
(Formerly 110k1153(1))
The trial court is vested with broad discretion to admit and exclude evidence at trial; error will be
found only if this discretion was clearly abused.
1162
110 Criminal Law

110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1162 k. Prejudice to Rights of Party as Ground of Review. Most Cited Cases
On direct appeal the Supreme Court reviews the trial court for prejudice, not mere error, and will
reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.
1030(1)
110 Criminal Law

110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1030 Necessity of Objections in General
110k1030(1) k. In General. Most Cited Cases
Issues that were not preserved may be reviewed for plain error only, requiring the court to find
that manifest injustice or miscarriage of justice has resulted from the trial court error.
[5] Jury 230
97(1)
230 Jury
230V Competency of Jurors, Challenges, and Objections
230k97 Bias and Prejudice
Venirepersons may be excluded from the jury when their views would prevent or substantially
impair their ability to perform their duties as jurors in accordance with the court's instructions
and their oath.
[6] Jury 230
108
230 Jury
230k104 Personal Opinions and Conscientious Scruples
230k108 k. Punishment Prescribed for Offense. Most Cited Cases
A juror may be stricken for cause if it appears that he or she cannot consider the entire range of
punishment, apply the proper burden of proof, or otherwise follow the court's instructions in a
first-degree murder case.
[7] Jury 230
132
230 Jury
230k124 Challenges for Cause
230k132 k. Evidence. Most Cited Cases
The qualifications of a prospective juror are not determined conclusively by a single response,
but are made on the basis of the entire examination.
[8] Jury 230
85
230 Jury
230k85 k. Discretion of Court. Most Cited Cases
The trial court is in the best position to evaluate a venireperson's commitment to follow the law
and is vested with broad discretion in determining the qualifications of prospective jurors.
[9] Jury 230
108
230 Jury
Venireperson's statement that he was unsure whether he could vote for death and that he could
do so in only extreme cases provided basis to excuse venireperson for cause, in prosecution for
first-degree murder.
[10] Jury 230
85
230 Jury
230k85 k. Discretion of Court. Most Cited Cases
A trial court's determination whether to excuse a juror for cause is not dependent upon a
technical evaluation of the venireperson's use of magic words; instead, it is heavily weighted to
the impressions of the trial court and the exercise of the court's judgment and discretion.
108
[11] Jury 230
230 Jury
Venireperson's statement that she would require the prosecutor to prove the case beyond all
possible doubt before she could consider the death penalty and would not be able to sign a death
verdict if she were to serve as the foreperson provided basis to excuse venireperson for cause, in
prosecution for first-degree murder.
108
[12] Jury 230
230 Jury
A juror's equivocation about his ability to follow the law in a capital case, together with an
unequivocal statement that he could not sign a verdict of death, can provide a basis for the trial
court to exclude the venireperson from the jury.
[13] Arrest 35
63.4(11)
35 Arrest
35II On Criminal Charges
35k63 Officers and Assistants, Arrest Without Warrant
35k63.4 Probable or Reasonable Cause
35k63.4(7) Information from Others
35k63.4(11) k. Other Officers or Official Information. Most Cited Cases
Arrest 35
63.4(12)
35 Arrest
35k63.4(12) k. Identification or Description of Offender or Vehicle. Most Cited
Cases
63.4(13)
Arrest 35
35 Arrest
35k63.4(13) k. Personal Knowledge or Observation in General. Most Cited Cases
63.4(15)
Arrest 35
35 Arrest
35k63.4(15) k. Appearance, Acts, and Statements of Persons Arrested. Most Cited
Cases
Probable cause existed for warrantless arrest of defendant, where two of three officers who
responded to dispatch describing defendant's truck found third officer who was shot, dispatcher
advised other officers of injury and to watch for truck, another officer recognized description of
truck as belonging to defendant and arrived at defendant's home just as he arrived, officers were
familiar with defendant's reputation for violence, passenger in truck told officers defendant had a
gun, and officers located gun in stack of cement blocks where defendant was seen placing
something. U.S.C.A. Const.Amend. 4.
[14] Arrest 35
63.4(2)
35 Arrest
35k63.4(2) k. What Constitutes Such Cause in General. Most Cited Cases
Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and
circumstances is sufficient to warrant a prudent person' s belief that a suspect has committed an
offense.
[15] Arrest 35
63.4(2)
35 Arrest
Whether there is probable cause to arrest depends on the information in the officers' possession
prior to the arrest.

[16] Arrest 35
63.4(2)
35 Arrest
There is no precise test for determining whether probable cause to arrest existed; rather, it is
based on the particular facts and circumstances of the individual case.
[17] Arrest 35
63.4(11)
35 Arrest
35k63.4(11) k. Other Officers or Official Information. Most Cited Cases
Probable cause is determined by the collective knowledge and the facts available to all of the
officers participating in the arrest; the arresting officer does not need to possess all of the
available information.
[18] Sentencing and Punishment 350H
1767
350H Sentencing and Punishment

350HVIII The Death Penalty
350HVIII(G) Proceedings
350HVIII(G)2 Evidence
350Hk1755 Admissibility
350Hk1767 k. Documentary Evidence. Most Cited Cases
Photograph of victim of prior assault committed by defendant, depicting victim's face and shirt
covered with blood, was admissible at penalty phase of capital murder case to show nature and
extent of assault victim's injuries, where officer that investigated assault testified that photograph
was fair and accurate representation of victim after assault and that victim suffered only a bloody
nose and no broken bones.
1752

350Hk1752 k. Discretion of Court. Most Cited Cases
(Formerly 110k1208.1(6))
The trial court is vested with broad discretion in determining the admissibility of photographs
and other evidence offered at the penalty stage of a capital case.
1756

350Hk1756 k. In General. Most Cited Cases
(Formerly 110k1208.1(6))
The sentencer in a capital case is entitled to any evidence that assists in assessing a penalty of
death.
1760

350Hk1760 k. Defendant's Character and Conduct. Most Cited Cases
(Formerly 110k1208.1(6))
Sentencing and Punishment 350H
1762

350Hk1762 k. Other Offenses, Charges, or Misconduct. Most Cited Cases
(Formerly 110k1208.1(6))
At the penalty phase of a capital case, both the state and the defense may introduce evidence of
the defendant's character, including evidence of other crimes.
1780(3)

350HVIII(G)3 Hearing
350Hk1780 Conduct of Hearing
350Hk1780(3) k. Instructions. Most Cited Cases
(Formerly 203k311)
Penalty phase instruction listing non-statutory mitigating circumstances was not warranted in
capital murder case, where instruction given included all the statutory mitigating circumstances
to which defendant was entitled, together with a catch-all paragraph advising consideration of
other mitigating circumstances supported by evidence.
1030(1)
110 Criminal Law

110XXIV Review
110k1030 Necessity of Objections in General
To prevail on plain error review, defendant must show that the trial court's error so substantially
violated his rights that manifest injustice or a miscarriage of justice results if the error is not
corrected.
1037.1(1)
110 Criminal Law

110XXIV Review
110k1037 Arguments and Conduct of Counsel
110k1037.1 In General
110k1037.1(1) k. Arguments and Conduct in General. Most Cited Cases
Relief should be rarely granted on assertion of plain error to matters contained in closing
argument, for trial strategy looms as an important consideration and such assertions are generally
denied without explication. V.A.M.R. 30.20.
2195
110 Criminal Law

110XXXI Counsel
110XXXI(F) Arguments and Statements by Counsel
110k2191 Action of Court in Response to Comments or Conduct
110k2195 k. Summing Up. Most Cited Cases

The instructions given to the jury safeguard against harm that might otherwise result from
exaggerated closing argument by either prosecutor or defendant.
1037.1(1)
110 Criminal Law

110XXIV Review
110k1037 Arguments and Conduct of Counsel
110k1037.1(1) k. Arguments and Conduct in General. Most Cited Cases
Under plain error review, a conviction will be reversed for improper arguments only when it is
established that the argument had a decisive effect on the outcome of trial and amounts to
manifest injustice. V.A.M.R. 30.20.
1780(2)

350Hk1780(2) k. Arguments and Conduct of Counsel. Most Cited Cases
(Formerly 110k726)
Prosecutor's closing argument during penalty phase of capital murder prosecution that the
punishment should fit the crime amounted to proper argument in retaliation to defense counsel's
statement that the punishment should fit the criminal.
2167
110 Criminal Law

110XXXI Counsel
110k2164 Rebuttal Argument; Responsive Statements and Remarks
110k2167 k. Summing Up. Most Cited Cases
(Formerly 110k726)
A prosecutor has considerable leeway to make retaliatory arguments at closing.
2165
110 Criminal Law

110XXXI Counsel
110k2165 k. In General. Most Cited Cases
(Formerly 110k726)
A prosecutor may retaliate to an issue raised by the defense even if the prosecutor's comment
would be improper.
37

350HI Punishment in General
350HI(B) Extent of Punishment in General
350Hk37 k. Necessity That Punishment Be Individualized. Most Cited Cases
(Formerly 110k986.2(1))
66

350HI Punishment in General
350HI(D) Factors Related to Offense
350Hk66 k. Nature, Degree or Seriousness of Offense. Most Cited Cases
(Formerly 110k986.2(1))
Consideration of both the crime and the criminal is required to determine the appropriate
sentence.
2098(4)
110 Criminal Law

110XXXI Counsel
110k2093 Comments on Evidence or Witnesses
110k2098 Credibility and Character of Witnesses; Bolstering
110k2098(4) k. Credibility of Expert Witness. Most Cited Cases
Criminal Law 110
2117
110 Criminal Law

110XXXI Counsel
110k2102 Inferences from and Effect of Evidence
110k2117 k. Homicide and Assault with Intent to Kill. Most Cited Cases
Prosecutor's disparaging voodoo reference to testimony of defense expert concerning
defendant's inability to make good judgments was proper comment on the evidence and
credibility of witness during closing argument in guilt phase of capital murder prosecution.
2094
110 Criminal Law

110XXXI Counsel
Criminal Law 110
2098(1)
110 Criminal Law

110XXXI Counsel
Prosecutors may comment on the evidence and the credibility of witnesses, even to the point of
belittling and/or discussing the improbability of specific testimony.
1780(2)

Prosecutor's suggestion that defendant went to home at which he killed deputy sheriff who
responded to homeowner's call to commit other crimes was reasonable inference from evidence,
and not comment outside the evidence during closing argument in penalty phase of capital
murder prosecution, where homeowner was mother of defendant's former girlfriend with whom
he had violent encounter earlier in day.
1780(2)

Prosecutor's brief reference to his experience as a soldier to illustrate under what circumstances a
person might be able to kill was proper argument to encourage imposition of death penalty,
during closing argument in penalty phase of capital murder prosecution.
2159
110 Criminal Law

110XXXI Counsel
110k2158 Guilt Phase Arguments as to Potential Sentence or Punishment
(Formerly 110k713)
Urging a jury to impose the most severe penalty is proper argument.
1780(2)

Prosecutor's characterization of defense counsel's request for life sentence instead of death
penalty as preposterous was proper argument to encourage imposition of death penalty, during
closing argument in penalty phase of capital murder prosecution.
2165
110 Criminal Law

110XXXI Counsel
(Formerly 110k726)
It is proper for a prosecutor to retaliate to statements made by defense counsel, even to the point
of characterizing a defense theory as preposterous.
1780(2)

(Formerly 110k713)
Prosecutor's comment, during closing argument in penalty phase of capital murder prosecution,
that all legal niceties available to defendant were not available to deputy sheriff he killed was
proper argument to highlight defendant's disregard for law and seek most severe punishment, and
was not improper criticism of defendant for exercising his legal rights.
1036.1(8)
110 Criminal Law

110XXIV Review
110k1036 Evidence
110k1036.1(3) Particular Evidence
110k1036.1(8) k. Other Offenses and Character of Accused. Most Cited
Cases
Testimony that defendant's former girlfriend was afraid of defendant on night he killed deputy
sheriff provided a complete and coherent picture of crime charged, and thus, defendant did not
establish manifest injustice or a miscarriage of justice from its admission, as required under plain
error review.
406(1)
110 Criminal Law

110XVII Evidence
110XVII(L) Admissions
110k405 Admissions by Accused
110k406 In General
Testimony of defendant's jail-mates regarding his statements to them about circumstances
surrounding his shooting of sheriff's deputy were admissions of the crime, and thus admissible in
prosecution for capital murder.

412(3)
110 Criminal Law

110XVII Evidence
110XVII(M) Declarations
110k411 Declarations by Accused
110k412 In General
110k412(3) k. Subject Matter as Affecting Admissibility. Most Cited Cases
Testimony of defendant's jail-mates regarding his talk of escape was relevant to show defendant's
consciousness of guilt, in prosecution for capital murder.
371(12)
110 Criminal Law

110XVII Evidence
110XVII(F) Other Offenses
110k371 Acts Showing Intent or Malice or Motive
110k371(12) k. Motive. Most Cited Cases
Testimony of defendant's jail-mates regarding his dislike of jail guards and law enforcement
officers and his desire to kill them was relevant to establish defendant's motive in shooting
sheriff's deputy.
1130(5)
110 Criminal Law

110XXIV Review
110XXIV(I) Briefs
110k1130 In General
110k1130(5) k. Points and Authorities. Most Cited Cases
1789(3)

350HVIII(G)4 Determination and Disposition
350Hk1789 Review of Proceedings to Impose Death Sentence
350Hk1789(3) k. Presentation and Reservation in Lower Court of Grounds of
Review. Most Cited Cases
(Formerly 203k325)
By failing to object to jury instruction on aggravating factors at the penalty phase instruction
conference in capital murder prosecution or at any prior time and by failing to set forth the
challenged instruction in full in the argument portion of his brief, defendant did not preserve
point for review, and thus, review was for plain error only. V.A.M.R. 30.06(e), 30.20.
1678

350HVIII(D) Factors Related to Offense
350Hk1678 k. Extreme or Reckless Indifference. Most Cited Cases
1731

350HVIII(F) Factors Related to Status of Victim
350Hk1729 Public Official or Employee
350Hk1731 k. Law Enforcement Officer. Most Cited Cases
A finding of aggravating circumstance that defendant killed sheriff's deputy because he was a
law enforcement officer was not inconsistent with a finding of aggravating circumstance that he
also killed deputy at random and without regard to his identity, absent any evidence that
defendant's purpose in killing deputy was specific to his identity as a person, in prosecution for
capital murder.
1678

350Hk1678 k. Extreme or Reckless Indifference. Most Cited Cases
1731

Killing a person merely because that person is a law enforcement officer does not negate a
finding of randomness, unless a particular purpose is also found specific to the identity of the
individual victim.
1676

350Hk1676 k. Planning, Premeditation, and Calculation. Most Cited Cases
1726

350Hk1726 k. Vulnerability. Most Cited Cases
1731

Death sentence for shooting of deputy sheriff in forehead at point-blank range while sheriff was
sitting in his squad car was neither excessive nor disproportionate to the penalty imposed in
similar cases, in light of other cases imposing death penalty for execution-style shooting of a
defenseless victim, and death sentences for killings of peace officers, law enforcement, or
correction officers.
1676

350Hk1676 k. Planning, Premeditation, and Calculation. Most Cited Cases
1772

350Hk1772 k. Sufficiency. Most Cited Cases
There was sufficient evidence of deliberation to support imposition of death sentence; in addition
to testimony from defendant's jail-mates that he admitted to killing sheriff's deputy before deputy
had a chance to respond, circumstances of killing showed that deputy was shot in the forehead at
point blank range, with his own pistol still in his holster.
*472 Deborah B. Wafer,Office of State Public Defender, St. Louis, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. General, Cheryl Caponegro Nield, Asst. Atty. General, Jefferson
City, for Respondent.
WILLIAM RAY PRICE, Jr., Judge.
A jury convicted Cecil Clayton of first-degree murder for killing Deputy Sheriff Christopher
Castetter. The jury recommended, and the trial court imposed, a death sentence. Clayton now
appeals his conviction and the sentence of death. Because Clayton was sentenced to death, we
have exclusive jurisdiction over his appeal. MO. CONST. art. V, section 3. We affirm the
judgment.
I. FACTS
Cecil Clayton and Martha Ball had been involved in a romantic relationship and had, at times,
lived together. By November 1996, their relationship was coming to an end. On November 27,
1996, Martha asked Clayton to meet her at the Country Corner, a store in Purdy, Missouri. She
requested that Clayton bring some important papers she had left at his home. Clayton arrived at
the store without the papers. Clayton requested that Martha go with him to his home to obtain the
papers but she refused. He left and returned with the papers. Clayton was driving his blue Toyota
truck with wooden sides.
When Clayton returned with the papers he asked Martha to go out to eat with him. She refused.
Clayton became angry, pushed her, and the two began to argue in the store. Barbara Starkey, an
employee of the store, noticed the argument and called the Barry County sheriff's
department.*473 Jim McCracken, Purdy chief of police, responded to the call and spoke with
Clayton. He lingered in the store until after Clayton left. Martha asked Chief McCracken if he
would escort her to Cassville where she was staying with her mother, Dixie Seal. Before Chief
McCracken could arrange the escort, Martha left the store saying that she was going to a friend's
home. Martha then went to Vicky Deeter's home in Monett. Vicky testified that Martha was very
scared, pale, and shaking when she arrived at her home.
After leaving the Country Corner store, Clayton went to see his friend, Martin Cole, at around
9:40 p.m. Clayton asked Martin to go with him. Martin declined because he had to drive a friend
to work. Clayton became angry, raised his voice, and left.
Martha called Dixie Seal, her mother, at around 9:50 p.m. and advised her sister, Carolyn
Leonard, that she was at Vicky's home. Shortly thereafter, Carolyn heard a vehicle outside, its
engine running roughly. She observed the vehicle stop, back into the driveway and turn its lights
off. Because there were lights across the top of the cab Carolyn surmised that the vehicle was a
truck. She phoned Martha and verified that Clayton was driving the truck. Carolyn then
telephoned the Barry County sheriff's department and advised them that Clayton was on their
property and was not welcome. Deputy Christopher Castetter was dispatched to the Seal
residence. He contacted the dispatcher when he arrived at 10:03 p.m.
Ralph Paul, Dixie Seal's neighbor, and his son-in-law, Greg Pickert, had also heard and seen the
truck in Seal's driveway. Ralph phoned Mrs. Seal to inquire about the truck. They described the
vehicle as a truck because of the lights across the top and noticed that it was backed into the
driveway and running roughly. Shortly thereafter Ralph and Greg went back outside. The truck
was gone and the two noticed a car sitting at an angle with the engine running at a high rate of
speed and the tires spinning.
Deputies David Bowman and Jason Manning also heard the dispatch regarding the Seal
residence and decided to go by the area to assist Deputy Castetter. When they arrived, at
approximately 10:06 p.m., Deputy Castetter's patrol car was sitting at an angle against a tree in
the driveway. The car's engine was still running at a high rate and the tires were spinning and
smoking.
Deputy Manning approached the driver's side of the car. The window was rolled down about an
inch, but was not broken. He put the car in park and turned off the engine. Deputy Castetter was
leaned over in his seat. His seatbelt was not on; his weapon was still snapped in its holster; his
flashlight was no longer secured in its cradle. Deputy Manning attempted to assist Deputy
Castetter who was bleeding heavily from his head and having trouble breathing. Deputy
Bowman contacted the dispatcher at 10:07 p.m. and advised that an ambulance was needed.
Deputy Bowman went to Mrs. Seal's home and spoke with Carolyn Leonard and Dixie Seal.
Deputy Bowman then contacted the dispatcher and advised that Clayton was believed to have
been driving the truck that had been in the driveway.
Deputy Castetter was transported to the hospital by helicopter. He had suffered a gunshot wound
to the head, about the middle of his forehead. Despite medical treatments, Deputy Castetter died.
At about 10:10 to 10:15 p.m., Clayton returned to Martin Cole's house. Clayton asked Martin to
accompany him, and the two left in Clayton's truck. While in the truck Clayton asked Cole
would you believe me, if I told you that I shot a policeman, would you believe me? Clayton
described how he shot the cop in the head and how Deputy Castetter then hit the accelerator
and hit a tree. Clayton then took the weapon out of his overalls, pointed*474 it at Martin's head,
and threatened to shoot him. He asked Martin if he thought it was loaded. Clayton told Martin
that he wanted him to act as an alibi and tell the police that the two had been together all
afternoon and evening watching television.
At about 10:15 p.m. Chief McCracken heard a dispatch to be on the lookout for a blue Toyota
truck with wooden sides driven by Clayton. McCracken recognized the description of the truck
as the one driven by Clayton earlier that evening at the Country Corner store. McCracken met
Chief Clint Clark of the Wheaton police department who had also heard the dispatch. The two
confirmed Clayton's home address and then went to his residence.
Clayton was driving toward his home when he saw the two police cars approaching. He parked
in the driveway and asked Martin should I shoot them? Martin answered no.
The officers activated their car spotlights, and Clayton eventually got out of his truck. The
officers identified themselves. Clayton began walking toward the side of his house, advising the
officers that he could not hear them. He kept his right hand in his pocket. Clayton refused to
remove his hand or approach the officers. He continued toward his house, placed something in a
stack of concrete blocks, and returned to his truck. Martin complied with the officers' request to
get out of the truck and was apprehended. Clayton was then apprehended and transported to the
sheriff's department. Martin advised the officers that Clayton had a gun. The officers located the
gun in the stack of concrete blocks next to Clayton's house.
Mike Rogers of the Missouri highway patrol interviewed Clayton. Clayton's version of the
events varied from complete denial to stating that Deputy Castetter probably should have just
stayed home and that he shouldn't have smarted off to me. Clayton then stated but I don't
know because I wasn't out there.
Following an investigation, Clayton was charged by information in the Circuit Court of Barry
County with one count of murder in the first degree and one count of armed criminal action.
Venue was transferred from Barry County to Jasper County. A jury found Clayton guilty of
murder in the first degree and, finding three aggravating circumstances, recommended that
Clayton be sentenced to death for Christopher Castetter's murder. The trial court imposed the
death sentence.
II. STANDARDS OF REVIEW
[1][2] We review the evidence presented at trial in the light most favorable to the verdict. State v.
Storey, 901 S.W.2d 886, 891 (Mo. banc 1995). The trial court is vested with broad discretion to
admit and exclude evidence at trial. Error will be found only if this discretion was clearly abused.
State v. Simmons, 955 S.W.2d 729, 737 (Mo. banc 1997), cert. denied, 522 U.S. 1129, 118 S.Ct.
1081, 140 L.Ed.2d 138 (1998).
[3][4] On direct appeal we review the trial court for prejudice, not mere error, and will reverse
only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Morrow,
968 S.W.2d 100, 106 (Mo. banc 1998), cert. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d
182 (1998); State v. Hutchison, 957 S.W.2d 757, 761 (Mo. banc 1997); State v. Skillicorn, 944
S.W.2d 877, 884 (Mo. banc 1997), cert. denied, 522 U.S. 999, 118 S.Ct. 568, 139 L.Ed.2d 407
(1997). Issues that were not preserved may be reviewed for plain error only, requiring the court
to find that manifest injustice or miscarriage of justice has resulted from the trial court error.
Simmons, 955 S.W.2d at 737.
III. ISSUES OF ALLEGED TRIAL COURT ERROR
Clayton raises ten points of error in his appeal. He contends the trial court erred by: 1) sustaining
the state's challenge for cause to venirepersons Houston and Kingry; 2) overruling his motion to
suppress evidence; 3) allowing certain statements by the prosecutor during penalty phase *475
closing argument; 4) allowing testimony from three witnesses that Ms. Ball was afraid of him; 5)
allowing testimony from two of his cell mates regarding statements he made while awaiting trial;
6) admitting a photograph at penalty phase of the victim of an assault committed by Clayton; 7)
overruling his motion for a life sentence without probation or parole; 8) using Instruction 17 at
the penalty phase; 9) refusing his proposed penalty phase instruction; and 10) allowing certain
statements by the prosecutor during guilt phase closing argument.
Clayton's points 3, 4, 5, 8, and 10 are not preserved for appeal, since no objection was made at
trial. These points will be addressed separately, under plain error review.
A. Preserved Issues of Alleged Trial Court Error
1. Venirepersons Stricken for Cause (Clayton's point 1)
[5][6] In his first point, Clayton alleges that the trial court erred in sustaining the state's challenge
for cause to venirepersons Houston and Kingry. Venirepersons may be excluded from the jury
when their views would prevent or substantially impair their ability to perform their duties as
jurors in accordance with the court's instructions and their oath. State v. Rousan, 961 S.W.2d
831, 839 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998);
Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). A juror may be
stricken for cause if it appears that he or she cannot consider the entire range of punishment,
apply the proper burden of proof, or otherwise follow the court's instructions in a first degree
murder case. Rousan, 961 S.W.2d at 839; State v. Debler, 856 S.W.2d 641, 645-46 (Mo. banc
1993).
[7][8] The qualifications of a prospective juror are not determined conclusively by a single
response, but are made on the basis of the entire examination. State v. Kreutzer, 928 S.W.2d
854, 866 (Mo. banc 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997)
(citing State v. Brown, 902 S.W.2d 278, 285 (Mo. banc 1995), cert. denied, 516 U.S. 1031, 116
S.Ct. 679, 133 L.Ed.2d 527 (1995)). The trial court is in the best position to evaluate a
venireperson's commitment to follow the law and is vested with broad discretion in determining
the qualifications of prospective jurors. See Kreutzer, 928 S.W.2d at 866; Rousan, 961 S.W.2d
at 839; State v. McMillin, 783 S.W.2d 82, 91-93 (Mo. banc 1990), cert. denied, 498 U.S. 881,
111 S.Ct. 225, 112 L.Ed.2d 179 (1990). A trial court's ruling on a challenge for cause will not
be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of
discretion. Kreutzer, 928 S.W.2d at 866.
a. Venireperson Houston
[9] During the state's voir dire, venireperson Houston stated that he was unsure whether he could
vote for death, that he could do so in extreme cases only. He stated that if he did vote for death
he would not mind telling the defendant. Mr. Houston stated that he could sign a death verdict,
but only in some extreme case and he could hardly imagine it. Mr. Houston also stated:
I read the book Dead Man Walking this nun wrote down in Louisiana. And she's kind of
convincing, if you understand. Well, the death penalty is just dished out to poor people,
minorities, and such as that, and it costs the state so much more money to put somebody to
death than to hold them. That's -She's kind of convinced me of her thinking on that. That's how
I feel.
The court sustained the state's motion to strike Mr. Houston for cause.
The record supports the trial court's ruling. The totality of Houston's statements provided a basis
for the trial court to conclude that Houston's views on the death penalty would substantially
impair his ability to follow the court's instructions. See Rousan, 961 S.W.2d at 839-40;
*476 Brown, 902 S.W.2d at 285; McMillin, 783 S.W.2d at 93.
[10] A trial court's determination whether to excuse a juror for cause is not dependent upon a
technical evaluation of the venireperson's use of magic words. Instead, it is heavily weighted
to the impressions of the trial court and the exercise of the court's judgment and discretion. See
Kreutzer, 928 S.W.2d at 866; Rousan, 961 S.W.2d at 839; McMillin, 783 S.W.2d at 91-93.Here,
the trial court stated:
The Court, of course, we're down to 13 now. And the Court in observing Mr. Houston, I think
it started out he could consider. When it got down those, I heard things like: not sure, hesitant,
maybe in extreme cases, might be possible case. And I'll have to say, in looking at his
demeanor and way he was hesitant, he took his glasses off several times, I'll have to say that
the Court's impression in considering all those, I believe under Witherspoon and Witt, that I
just think it would prevent him or substantially impair his performance. You know, I have the
impression he's unable to faithfully in impartially apply the law in this case. The Court's going
to at this time strike Number - it was Number 1 here, but it was Number 3 on the list.
This careful exercise of discretion by an experienced trial judge is precisely what is required.
The trial court did not err in striking venireperson Houston for cause.
b. Venireperson Kingry
[11] During the state's voir dire, venireperson Kingry expressed doubt that she could vote for the
death penalty. She vacillated under questioning by the prosecution, then the defense, as to
whether she could follow the law in a capital case. She stated that the only way I could vote for
it is if I had no doubt, you know, in my mind and that she would require the prosecutor to prove
the case beyond all possible doubt before she could consider the death penalty. When asked if
she could sign a death verdict if she were to serve as the foreperson, she responded no, no.
The court sustained the state's motion to strike Ms. Kingry for cause.
[12] The record supports the trial court's ruling. A juror's equivocation about his ability to
follow the law in a capital case together with an unequivocal statement that he could not sign a
verdict of death can provide a basis for the trial court to exclude the venireperson from the jury.
Rousan, 961 S.W.2d at 840; see also State v. Smith, 944 S.W.2d 901, 914 (Mo. banc 1997), cert.
denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997); Kreutzer, 928 S.W.2d at 866-867.
Again, this situation required the exercise of the judgment and discretion of the trial court in
determining whether Ms. Kingry should have been stricken for cause. The trial court indicated its
judgment by stating:
I tell you what, I think I'm going to strike for cause, but let me tell you why. It is - she
vacillated. She went back and forth. And I listened. But the whole thing seems to me is she
says - And I think that probably the defense is correct, I think you rehabilitated her to the point
that she says, no, for the first stage, for guilt or innocence, it's - beyond a reasonable doubt is
fine. But if I'm going to vote for the death penalty, which is one of the authorized voting, they
would have to - I would have to have no doubt. And I don't think it requires no doubt. The
law requires beyond a reasonable doubt on even that one. So I think on that, as I have a belief
in watching her that - you know, that - I just have - you know, I have an impression that she'd
be unable to apply the law in this case when it comes to second stage in the instruction.
The trial court did not err in striking venireperson Kingry for cause. Point 1 is denied.
*477 2. Motion to Suppress (Clayton's point 2)
[13] In his second point, Clayton contends the trial court erred by overruling his motion to
suppress evidence. Clayton asserts that his arrest was not supported by probable cause and that
the evidence seized after the arrest should have been suppressed. The evidence Clayton sought to
suppress included statements Clayton made to Mike Rogers, of the Missouri highway patrol, a
.38 caliber gun seized from outside the home, a gun holster from inside his truck, and samples of
paint and rust taken from his truck.
[14][15][16][17] To determine whether the trial court properly overruled the motion to suppress,
we must determine whether the arrest was made with probable cause, since the arrest was made
without a warrant. Probable cause to arrest exists when the arresting officer's knowledge of the
particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect
has committed an offense. State v. Tokar, 918 S.W.2d 753, 767 (Mo. banc 1996), cert.
denied,519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). Whether there is probable cause to
arrest depends on the information in the officers' possession prior to the arrest. State v. Wiley,
522 S.W.2d 281, 287 (Mo. banc 1975). There is no precise test for determining whether probable
cause existed; rather, it is based on the particular facts and circumstances of the individual case.
Wiley, 522 S.W.2d at 287; State v. Pruitt, 479 S.W.2d 785, 788 (Mo. banc 1972). Furthermore,
probable cause is determined by the collective knowledge and the facts available to all of the
officers participating in the arrest; the arresting officer does not need to possess all of the
available information. State v. Mayweather, 865 S.W.2d 672, 675 (Mo.App.1993); see also
Pruitt, 479 S.W.2d at 788.
The record supports a finding that probable cause existed at the time of Clayton's arrest. Deputy
Castetter had responded to a dispatch that a blue Toyota pickup with wooden sides had been
parked in Dixie Seal's driveway. Deputies Manning and Bowman also responded to the dispatch.
Upon arriving, they found Deputy Castetter's car against a tree and Deputy Castetter bleeding.
Carolyn Leonard, Dixie Seal's daughter, advised the deputies that Clayton had been there in a
blue Toyota pickup with wooden sides. The dispatcher then advised officers to watch for the
vehicle driven by Clayton and that Deputy Castetter had been injured.
Chief McCracken heard the dispatch and recognized the description of the vehicle as the same
vehicle driven by Clayton earlier in the day when he had seen Clayton at the Country Corner
store. Shortly thereafter Clayton's address was verified and Chiefs McCracken and Clark went to
Clayton's home. The officers were familiar with Clayton's reputation as a violent person. The
officers arrived at Clayton's home just as Clayton pulled into the driveway. The officers
attempted to speak with Clayton, but he acted as though he could not hear them and refused to
walk toward the officers. Instead he went to the side of his home where it appeared that he
placed something in a stack of cement blocks. Clayton was then restrained. The passenger in
Clayton's vehicle advised the officers that Clayton had a gun in the truck. When the officers did
not locate the gun in the truck, they looked in the stack of cement blocks where they located the
gun. Clayton was then placed under arrest.
Based on these facts, probable cause existed at the time of Clayton's arrest. The trial court did not
err in overruling Clayton's motion to suppress evidence. Point 2 is denied.
3. Evidence Admitted at Penalty Phase (Clayton's point 6)
[18] As his sixth point, Clayton contends that the trial court erred by admitting a photograph of
Mr. Dotson, the victim of a 1991 assault committed by Clayton, at penalty phase. Clayton
contends that the photograph was not indicative*478 of the nature and extent of Dotson's injuries
and was prejudicial. The photograph depicts Dotson's face and shirt covered with blood.
Appellant was convicted of the assault in 1992.
[19][20][21] The trial court is vested with broad discretion in determining the admissibility of
photographs and other evidence offered at the penalty stage of a capital case. State v. Isa, 850
S.W.2d 876, 890 (Mo. banc 1993); State v. Leisure, 749 S.W.2d 366, 379 (Mo. banc 1988), cert.
denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). The sentencer in a capital case is
entitled to any evidence that assists in assessing a penalty of death. See State v. Nicklasson, 967
S.W.2d 596, 618 (Mo. banc 1998), cert. denied,525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457
(1998); State v. Chambers, 891 S.W.2d 93, 107 (Mo. banc 1994); State v. Parker, 886 S.W.2d
908, 924 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995).
At the penalty phase of a capital case, both the state and the defense may introduce evidence of
the defendant's character, including evidence of other crimes. See Nicklasson, 967 S.W.2d at
618; Chambers, 891 S.W.2d at 106; Parker, 886 S.W.2d at 924.
The trial court did not err in admitting the photograph of Dotson into evidence. Officer Jerry
Paul testified that he investigated the assault and that the photograph was a fair and accurate
representation of Dotson immediately following the assault. He testified that Dotson suffered
only a bloody nose from the assault and incurred no broken bones. Defense counsel read a
stipulation that Dotson's actual injuries consisted of bruising and a cut on his nose. Point 6 is
denied.
4. Jury Instructions (Clayton's point 9)
[22] As his ninth point, Clayton contends that the trial court erred in rejecting his proposed
penalty phase Instruction B. Instruction B included a listing of statutory and non-statutory
mitigating circumstances. Clayton contends the evidence supported the two non-statutory
mitigating factors and that the denial of the instruction prevented the jury from giving full
consideration to mitigating evidence. Clayton's claim has been repeatedly rejected by this Court.
See Rousan, 961 S.W.2d at 849; Parker, 886 S.W.2d at 928-29. The jury was given Instruction
19 that included all the statutory mitigating circumstances to which Clayton was entitled.
Instruction 19 included a catch-all paragraph stating you should also consider any other facts or
circumstances which you find from the evidence in mitigation of punishment. The trial court
did not err in refusing Clayton's Instruction B. See State v. Copeland, 928 S.W.2d 828, 854 (Mo.
banc 1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1996). Point 9 is
denied.
B. Issues of Alleged Trial Court Error Not Preserved For Appeal
[23] Clayton's points 3, 4, 5, 8, and 10 are not preserved for appeal, since he made no objection
at trial. Clayton requests review of these points for plain error. Rule 30.20. To prevail on
plain error review, [Clayton] must show that the trial court's error so substantially violated his
rights that manifest injustice or a miscarriage of justice results if the error is not corrected.
Parker, 886 S.W.2d at 917.
1. Closing Argument (Clayton's points 3 and 10)
[24][25][26] Clayton contends that the trial court plainly erred in allowing certain statements by
the prosecutor during his guilt and penalty phase closing arguments. Rule 30.20. Relief
should be rarely granted on assertion of plain error to matters contained in closing argument, for
trial strategy looms as an important consideration and such assertions are generally denied
without explication. State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998), cert. denied, 525
U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999) (citing State v. Wood, 719 S.W.2d 756, 759
(Mo. banc 1986)) (emphasis in original); State v. *479 Cobb, 875 S.W.2d 533, 537 (Mo. banc
1994), cert. denied, 513 U.S. 896, 115 S.Ct. 250, 130 L.Ed.2d 172 (1994) (citing State v. Wood,
719 S.W.2d 756, 759 (Mo. banc 1986)). Furthermore, the instructions given to the jury safeguard
against harm that might otherwise result from exaggerated closing argument by either prosecutor
or defendant. State v. Owsley, 959 S.W.2d 789, 797 (Mo. banc 1997), cert. denied,525 U.S.
882, 119 S.Ct. 191, 142 L.Ed.2d 156 (1998). Under plain error review, a conviction will be
reversed for improper arguments only when it is established that the argument had a decisive
effect on the outcome of trial and amounts to manifest injustice. State v. Lyons, 951 S.W.2d 584,
596 (Mo. banc 1997), cert. denied, 522 U.S. 1130, 118 S.Ct. 1082, 140 L.Ed.2d 140 (1998).
a. Penalty Phase Closing Argument (Clayton's point 3)
[27] As his third point, Clayton complains about two statements made in the state's rebuttal at
penalty phase. It is important to note that during its penalty phase closing argument defense
counsel stated and we live in a civilization where we should try to make the punishment fit the
criminal. In its rebuttal the state responded by stating:
I think counsel said one thing here that is interesting, in that I think it shows the fallacy of what
he has suggested to you. And that is he said the punishment should fit the criminal. You will
find that nowhere in our law, nowhere in our tradition. Punishment should fit the crime. That's
what you'll find in our law and in our tradition. The focus should not be on the criminal, but
should be on the crime, and I think that is instructive.
***
Punishment here must fit the crime, and if it doesn't, then it diminishes us all. We are not here
to judge Cecil Clayton as a person, we are here to punish him for the crime he's committed.
There is a difference. The crime calls for the ultimate penalty, and that's what I ask you for.
[28][29][30] A prosecutor has considerable leeway to make retaliatory arguments at closing.
Parker, 886 S.W.2d at 922. A prosecutor may retaliate to an issue raised by the defense even if
the prosecutor's comment would be improper. State v. Walls, 744 S.W.2d 791, 798 (Mo. banc
1988), cert. denied,488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988). The prosecutor's
argument that the punishment should fit the crime was retaliation to defense counsel's statement
that the punishment should fit the criminal since consideration of both the crime and the criminal
is required to determine the appropriate sentence. See Storey, 901 S.W.2d at 902.
b. Guilt and Penalty Phase Closing Arguments(Clayton's point 10)
As his tenth point, Clayton contends that the trial court plainly erred by allowing the prosecutor
to make a number of arguments during his guilt and penalty phase closing arguments.
(i)
[31] During the state's closing argument at the guilt phase the prosecutor made reference to the
testimony of defense expert Dr. Betty Back. Specifically, Clayton complains about the following
statements:
Well, he didn't plan in a socially acceptable manner. Well, I've never met a criminal who
did. That is not only unlikely, it's preposterous. It's absolutely preposterous.
Well, they don't have very good judgment. Well, as far as I'm concerned somebody who
buys a Toyota doesn't have very good judgment because I don't like Toyotas. That doesn't
mean there's anything wrong with their ability to reason. Folks, it's voodoo, that's all it is. It's
an excuse.
*480 * * * *
Folks, not only could he discriminate, he did. And right now, at this moment, he continues and
hopes that he can fool you. Don't be fooled.
[32] Prosecutors may also comment on the evidence and the credibility of witnesses, even to the
point of belittling and/or discussing the improbability of specific testimony. State v. Clemons,
946 S.W.2d 206, 229 (Mo. banc 1997), cert. denied,522 U.S. 968, 118 S.Ct. 416, 139 L.Ed.2d
318 (1997); see also State v. Weaver, 912 S.W.2d 499, 513 (Mo. banc 1995), cert. denied,519
U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996).
(ii)
[33] Clayton complains about statements made by the prosecutor during its penalty phase closing
argument. Clayton contends that the prosecutor's penalty phase closing argument went outside
the evidence by suggesting that Clayton went to Dixie Seal's home to commit other crimes, by
referring to his own experience as a soldier, and by stating that death was the appropriate
penalty.
And certainly if he intended some ill toward anyone else, which well may have been his intent
at Dixie Seal's drive after the argument he had with Martha Ball, that would have broken the
law as well.
During closing argument, a prosecutor is entitled to make reasonable inferences from the
evidence. Clemons, 946 S.W.2d at 229. While the prosecutor's statements may have suggested
that Clayton went to Dixie Seal's home to commit other crimes, the statement can reasonably be
inferred from the evidence presented in the case.
[34][35] Clayton also contends that the prosecutor went outside the evidence by referring to his
own experience of being a soldier.
Me, having been a soldier, I guess I can imagine reasons why a person would kill. I don't
understand killing a police officer. If you'll kill a police officer, you would kill anyone. That is
a figure of authority.
Taken in context, this statement was made by the prosecutor while encouraging the jury to assess
the most severe penalty, the death penalty. Urging a jury to impose the most severe penalty is
proper argument. Lyons, 951 S.W.2d at 596; Smith, 944 S.W.2d at 919.
[36] Clayton further contends that the prosecutor's penalty phase closing argument improperly
personalized and denigrated the defense. In its penalty phase closing argument defense counsel
stated, I ask you to impose a sentence of life, and not to impose a sentence of death simply
because he's different or because he's defective. The prosecutor responded to this statement:
Folks, what we're dealing with here is, yes, there is value in human life, and Christopher
Castetter's life had value too, a great deal of value. And he did nothing wrong. A suggestion to
you that there is something wrong with you issuing a death sentence where it is called for is
preposterous.
[37] Again, it is proper for a prosecutor to seek and request the most severe penalty. See Lyons,
951 S.W.2d at 596; Smith, 944 S.W.2d at 919. It is also proper for a prosecutor to retaliate to
statements made by defense counsel, even to the point of characterizing a defense theory as
preposterous. See Clemons, 946 S.W.2d at 229; Parker, 886 S.W.2d at 922.
(iii)
[38] Lastly, Clayton contends that the prosecutor improperly criticized him for exercising his
constitutional rights.
You cannot be compared to Cecil Clayton. You have done nothing wrong. Look at all the legal
niceties we have danced through to get to the point where you can make this decision. Those
legal niceties were not available to Christopher Castetter because one man chose to play God.
*481 Again, the prosecutor's argument seeks to obtain the most severe punishment. See Lyons,
951 S.W.2d at 596; Smith, 944 S.W.2d at 919. The prosecutor's statement does not seek to
punish movant for exercising his right to a trial by jury. Instead, the prosecutor's statement, read
in context, highlights the nature and seriousness of the crime and movant's disregard for the
law. State v. Hall, 955 S.W.2d 198, 209 (Mo. banc 1997), cert. denied, 523 U.S. 1053, 118
S.Ct. 1375, 140 L.Ed.2d 523 (1998) (citing Antwine v. State, 791 S.W.2d 403, 410 (Mo. banc
1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 769, 112 L.Ed.2d 789 (1991)); see also Kreutzer,
928 S.W.2d at 875.
Clayton has not established that any manifest injustice or miscarriage of justice resulted from the
prosecutor's closing arguments as asserted in his points 3 and 10. Those points are denied.
2. Testimonial Evidence (Clayton's points 4 and 5)
Clayton contends that the trial court plainly erred in allowing witnesses to testify that Martha
Ball was afraid of Clayton and that Clayton disliked law enforcement officials. These points are
not preserved for appeal and review is for plain error. Rule 30.20.
a. Testimony that Martha Ball feared Cecil Clayton (Clayton's point 4)
[39] Clayton contends that the trial court plainly erred by allowing the testimony of Martha Ball,
Vicky Deeter, and Carolyn Leonard that Martha Ball was afraid of Clayton on the night of
November 27, 1996. Clayton contends that the testimony suggested that he had a propensity to
do things that were bad, violent, or fearsome and may have suggested to the jury that Clayton
was involved in other crimes.
Martha Ball testified, I was scared; he pushed me one time, and he had been drinking, so I didn't
want to go with him. She also stated that she did not want to go back to her mother's home
because I was afraid. Vicky Deeter testified that when Martha arrived at her home on the
evening of November 27 she was very shook up, white as a sheet and scared. She was pretty
scared. She also stated that Martha was shaking from head to toe. She had to sit down for a
while before I could get her to talk. Like I said, she was just as pale as you could get. Lastly,
Carolyn Leonard testified that Martha was scared and she knew that Martha was scared
because she told me she couldn't come home.
The evidence presented through Ball, Deeter, and Leonard cannot be characterized as clear
evidence associating [Clayton] with other crimes. State v. Hornbuckle, 769 S.W.2d 89, 96
(Mo. banc 1989), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989). Rather, this
testimony provided a complete and coherent picture of the crime charged. See Harris, 870
S.W.2d at 810; State v. Basile, 942 S.W.2d 342, 356 (Mo. banc 1997), cert. denied, 522 U.S.
883, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997). The testimony in question also cannot be held to
have had a decisive effect on the jury, especially when coupled with Ball's testimony that she
still loves Clayton and has been to visit him since his arrest. See Basile, 942 S.W.2d at 356.
Clayton has not established that manifest injustice or a miscarriage of justice resulted from the
admission of this evidence. Point 4 is denied.
b. Testimony that Cecil Clayton disliked law enforcement officials (Clayton's point 5)
Clayton contends that the trial court plainly erred by allowing the testimony of his jail-mates,
William Rogers and Robert Compton, regarding Clayton's statements to them about the offense
and about shooting the jail guards. He contends that their testimony provides evidence of other
crimes and bad acts.
William Rogers testified that Clayton talked about his inability to obtain bond, *482 that he
wanted to get out, escape, and that he talked with Rogers about escaping. Rogers also testified
that Clayton had told him about shooting the officer, that [Clayton] walked right up to the door
of the police car and shot him and that [Clayton] took his .38 and walked right up to the car
and shot him before the other guy had a chance.
Robert Compton also testified that Clayton had talked with him about the shooting. Compton
testified that
He had told me he had shot the-- Barry County Officer.
***
He told me he had shot him through the window of his-- police car.
***
He told me it was either him or the officer, he believed that the officer was going to shoot him,
and-- he said the officer pulled up and he had to make a choice then. He had a pistol behind his
back and he said that he just shot the cop before the cop would shoot him, and then he just
made gestures, you know, acting like he had a gun in his hand.
***
He didn't tell me whether he knew him or not. He told me that the officer deserved it, that he
had been harassing a lot of people, and he said somebody should have shot him before that.
Compton also testified about Clayton's dislike of the other officers and jail guards.
Did the defendant ever say anything about any other officers?
Uh, just the officers that arrested him. His first thought was to shoot them too and go ahead and
get out of state at that time. And the officers at Lawrence County Jail.
Compton testified that Clayton wanted to escape and had attempted to unlock the turnkey with
a piece of metal, that he wanted Compton's assistance in getting out of the country, and that
Clayton stated that the jail guards deserved to, you know, have it done to them too.
[40] Clayton's statements concerning Deputy Castetter are admissions of the crime and
admissible without question. These statements have nothing to do with other crimes or
uncharged bad acts.
[41] The evidence regarding talk of escape was relevant in that it tended to show a consciousness
of guilt. See State v. Driscoll, 711 S.W.2d 512, 517 (Mo. banc 1986), cert. denied, 479 U.S.
922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986).
[42] Likewise, evidence regarding Clayton's dislike of the jail guards and law enforcement
officers does not necessarily constitute evidence of another crime. See Hornbuckle, 769 S.W.2d
at 96. This testimonial evidence was relevant to establish Clayton's motive in shooting Officer
Castetter. The state's theory of motive was that Clayton had a problem with law enforcement
officers in general and that he shot Officer Castetter to avoid arrest and the revocation of his
probation. See State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc 1987), cert. denied, 484 U.S.
933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). Wide latitude is generally allowed in the
development of evidence of motive. Mallett, 732 S.W.2d at 533.
Lastly, Clayton contends that his jail-mates' testimony about the shooting provided evidence of
the element of deliberation that was otherwise nonexistent. Direct proof of a required mental
state is seldom available. See Simmons, 955 S.W.2d at 739; State v. Turner, 623 S.W.2d 4, 7
(Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). A mental
state may be proved by indirect evidence and inferences reasonably drawn from circumstances
surrounding the slaying. Turner, 623 S.W.2d at 7; Simmons, 955 S.W.2d at 739.
Clayton has not established that admission of this evidence resulted in manifest injustice or a
miscarriage of justice. Point 5 is denied.
*483 3. Penalty Phase Instruction 17 (Clayton's point 8)
[43] In his eighth point Clayton contends that the trial court erred in submitting Instruction 17
because it contained statutory aggravators not supported by the evidence. Clayton failed to object
to Instruction 17 at the penalty phase instruction conference or at any prior time. Clayton also
failed to set forth the instruction in full in the argument portion of his brief. Rule 30.06(e); State
v. Oxford, 791 S.W.2d 396, 400 (Mo. banc 1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 769,
112 L.Ed.2d 789 (1991). This point is not preserved for appeal and review is for plain error.
Rule 30.20.
Instruction 17 provides:
In determining the punishment to be assessed against the defendant for the murder of
Christopher Castetter, you must first unanimously determine whether one or more of the
following statutory aggravating circumstances exist:
(1) whether the defendant was convicted of Assault in the Second Degree on September 14th,
1991 in the Circuit Court of Barry County of the State of Missouri.
(2) Whether Christopher Castetter was a peace officer, and whether that murder was
committed during the exercise of his official duty.
(3) Whether the murder of Christopher Castetter involved depravity of mind, and whether as
a result thereof the murder was outrageously and wantonly vile, horrible and inhumane.
You can make a finding of the depravity of mind only if you find that the defendant's
selection of the person killed was random and without regard to the victim's identity, and that
defendant's killing of Christopher Castetter thereby exhibited a callous disregard for the
sanctity of all human life.
(4) Whether the murder of Christopher Castetter was committed for the purpose of avoiding
the lawful arrest of defendant.
You are further instructed that the burden rests upon the state to prove at least one of the
foregoing circumstances beyond a reasonable doubt. On each circumstance that you find
beyond a reasonable doubt, all 12 of you must agree as to the existence of that circumstance.
Therefore, if you do not unanimously find from the evidence beyond a reasonable doubt that at
least one of the foregoing statutory aggravating circumstances exists, you must return a verdict
fixing the punishment of the defendant at imprisonment for life by the corrections without
eligibility for probation or parole.
[44] The part of the instruction about which Clayton complains is that involving depravity of
mind which could only be found if the killing of the victim was at random and without regard to
his identity. Clayton asserts that this aggravating circumstance was not supported by the
evidence; that a finding that he killed Castetter because he was a law enforcement officer and
that he killed Castetter at random and without regard to his identity are mutually exclusive and
cannot coexist.
[45] Clayton's argument is incorrect. The jury determined that aggravating circumstances
numbers 1, 2, and 3 existed beyond a reasonable doubt. The jury did not find the fourth
aggravator. Aggravator 2 merely requires a finding that Deputy Castetter was a peace officer
and was killed during the exercise of his official duty. Nothing within this finding is
necessarily inconsistent with a finding that Castetter was also killed at random and without
regard to his identity. Killing a person merely because that person is a law enforcement officer
does not negate a finding of randomness, unless a particular purpose is also found specific to the
identity of the individual victim. Even had the jury also found aggravator 4, which it did not, the
mere fact that Deputy Castetter was killed to avoid Clayton's being arrested by him might have
related solely to Castetter's duties as a law enforcement officer *484 and not to his identity as a
person. See State v. Cornman, 695 S.W.2d 443, 448 (Mo. banc 1985). Point 8 is denied.
C. Death Sentence Proportionality Review (Clayton's point 7)
As his seventh point, Clayton contends that the trial court erred in overruling his motion for a
directed verdict for life without parole and that the death sentence is disproportionate under
section 565.035.3.
Section 565.035 requires us to independently review the sentence of death to determine (1)
whether it was imposed under the influence of passion or prejudice, or any other arbitrary factor;
(2) whether there was sufficient evidence to support the finding of statutory aggravating
circumstances and any other circumstance found; and (3) whether the sentence was excessive or
disproportionate to the penalty imposed in similar cases.
There is no evidence that the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor.
We next review the trial court's findings to determine if the evidence supports - beyond a
reasonable doubt - the existence of an aggravating circumstance and any other circumstance
found. Section 565.035.3(2); Brown, 902 S.W.2d at 294. The jury unanimously found three
statutory aggravators in the murder of Officer Castetter. The evidence supports, beyond a
reasonable doubt, a finding that Clayton had been convicted of an assault in 1992, that the
murder was committed against a peace officer while engaged in the performance of his official
duty, and that the killing was random and without regard to Deputy Castetter's individual
identity. Clayton does not contest that the evidence supports a finding of the first two of these
statutory aggravating circumstances.
[46] Lastly, we must determine whether the sentence of death is excessive or disproportionate.
Section 565.035.3(3). In making this determination, we consider similar cases where the death
penalty was imposed. Section 565.035.3(3); Nicklasson, 967 S.W.2d at 622. The death sentence
in this case is neither excessive nor disproportionate to the penalty imposed in similar cases. This
Court has upheld sentences of death where the defendant commits an execution-style shooting of
a defenseless victim. See Nicklasson, 967 S.W.2d at 622; State v. Whitfield, 939 S.W.2d 361,
372 (Mo. banc 1997), cert. denied, 522 U.S. 831, 118 S.Ct. 97, 139 L.Ed.2d 52 (1997). This
Court has also upheld sentences of death in numerous cases involving killings of peace officers,
law enforcement, or correction officers. See State v. Johnson, 968 S.W.2d 123, 135 (Mo. banc
1998), cert. denied, 525 U.S. 935, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998); State v. Sweet, 796
S.W.2d 607, 617 (Mo. banc 1990), cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 270
(1991); Mallett, 732 S.W.2d at 542-43; Driscoll, 711 S.W.2d at 517-18. In light of the crime and
the strength of the evidence against him, Clayton's sentence of death is not excessive or
disproportionate.
[47] Clayton particularly asks that we overturn his sentence of death because evidence of
deliberation was supplied only by two jail-house snitches. Evidence of deliberation was also
supplied, however, by the circumstances of the case, that Deputy Castetter was shot in the
forehead at point blank range, with his own pistol still in his holster. Clayton also particularly
asks that we consider his mental disabilities in determining whether the sentence of death is
appropriate. We find that the record as a whole supports the sentence of death as recommended
by the jury and imposed by the judge. Clayton's point 7 is denied.
IV. CONCLUSION
The judgment is affirmed.
All concur.
Mo.,1999.
State v. Clayton
995 S.W.2d 468
END OF DOCUMENT
Clayton v. State
Mo.,2001.
Supreme Court of Missouri,En Banc.
CecilCLAYTON, Appellant,
v.
STATE of Missouri, Respondent.
No. SC 83355.
Dec. 4, 2001.
Rehearing Denied Jan. 22, 2002.
Following affirmance of his conviction and death sentence for first-degree murder, 995 S.W.2d
468, petitioner sought post-conviction relief, alleging ineffective assistance of trial counsel. The
Circuit Court, Jasper County, David Darnold, J., denied the petition. Petitioner appealed. The
Supreme Court, John C. Holstein, J., held that trial counsel was not ineffective in simultaneously
pursuing reasonable doubt and diminished capacity defenses, failing to present certain
witnesses and evidence, and failing to adjudicate defendant's competency to stand trial.
Affirmed.
West Headnotes
1158(1)
110 Criminal Law

110XXIV Review
110XXIV(O) Questions of Fact and Findings
110k1158 In General
The presumption that the trial court's rulings regarding a post-conviction relief motion are correct
can be defeated only if the appellate court is left with a definite and firm impression that a
mistake has been made. V.A.M.R. 29.15(k).
641.13(1)
110 Criminal Law

110XX Trial
110XX(B) Course and Conduct of Trial in General
110k641 Counsel for Accused
110k641.13 Adequacy of Representation
110k641.13(1) k. In General. Most Cited Cases
In order to overturn a conviction or a death sentence for ineffective assistance, the defendant
must first show that his attorney's conduct fell below an objective standard of reasonableness,
and second, that his attorney's errors prejudiced his case. U.S.C.A. Const.Amend. 6.
641.13(1)
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
110 Criminal Law

110XX Trial
To constitute ineffective assistance of counsel, the attorney's conduct must be so egregious that it
undermines the proper functioning of the adversarial process to such an extent that the original
trial cannot be relied on as producing a just result. U.S.C.A. Const.Amend. 6.
641.13(1)
110 Criminal Law

110XX Trial
The defendant has a heavy burden in proving ineffective assistance of counsel.
Const.Amend. 6.
U.S.C.A.
641.13(1)
110 Criminal Law

110XX Trial
Both the deficient performance and prejudice parts of the Strickland test for ineffective
assistance of counsel must be fulfilled; if defendant fails to prove either one, no relief can be
granted. U.S.C.A. Const.Amend. 6.
641.13(1)
110 Criminal Law

110XX Trial
The reviewing court presumes that the trial attorney's conduct was reasonable and was not
ineffective. U.S.C.A. Const.Amend. 6.
641.13(1)
110 Criminal Law

110XX Trial
Reasonable choices of trial strategy, no matter how ill fated they appear in hindsight, cannot
serve as a basis for a claim of ineffective assistance. U.S.C.A. Const.Amend. 6.
641.13(2.1)
110 Criminal Law

110XX Trial
110k641.13(2) Particular Cases and Problems
Trial counsel's performance was not deficient, as element for ineffective assistance of counsel, as
to pursuing simultaneously both a reasonable doubt defense and a diminished capacity
defense, at guilt phase of capital murder trial; it was not logically inconsistent to argue that State
failed to prove that defendant was the shooter and that he did not have the mental capacity
necessary to form intent for first-degree murder, and the decision to use two defenses was a
reasonable trial strategy. U.S.C.A. Const.Amend. 6.
43.5
110 Criminal Law

110II Defenses in General
110k43.5 k. Inconsistent Defenses. Most Cited Cases
Criminal defendants have the right to present multiple defenses, even if the defenses are
somewhat inconsistent.
641.13(1)
110 Criminal Law

110XX Trial
A strategic decision is reasonable, for purposes of a subsequent claim of ineffective assistance of
counsel, if it was made with the same skill and diligence another reasonably competent attorney
would use under similar circumstances. U.S.C.A. Const.Amend. 6.
641.13(1)
110 Criminal Law

110XX Trial
It is not ineffective assistance of counsel for an attorney to pursue one reasonable trial strategy to
the exclusion of another, even if the latter would also be a reasonable strategy. U.S.C.A.
Const.Amend. 6.
641.13(6)
110 Criminal Law

110XX Trial
110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most
Cited Cases
The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in
an ineffective assistance claim. U.S.C.A. Const.Amend. 6.
641.13(6)
110 Criminal Law

110XX Trial
Cited Cases
Trial counsel's failure to present all of the witnesses and evidence that might have been used at
guilt phase of capital murder trial if the diminished capacity claim had been presented without a
simultaneous reasonable doubt defense was a matter of trial strategy, for purposes of
ineffective assistance of counsel; by deciding to use both defenses, counsel also decided not to
use all of the witnesses and evidence he might have used had he raised diminished capacity
alone. U.S.C.A. Const.Amend. 6.
641.13(6)
110 Criminal Law

110XX Trial

Cited Cases
Trial counsel's decision not to introduce defendant's school records, Nevada State Hospital
records, and Social Security Disability file, which allegedly would have provided jury with better
picture of defendant's mental capacity and his history of multiple head injuries, was reasonable
trial strategy, for purposes of claim of ineffective assistance of counsel, regarding presentation of
diminished capacity claim at guilt phase of capital murder trial; counsel wanted to keep the
picture he painted for jury a simple one regarding a man forever changed by a head injury from a
sawmill accident, and the additional evidence would have shown jury that defendant was violent
man with criminal record even before the accident. U.S.C.A. Const.Amend. 6.
641.13(6)
110 Criminal Law

110XX Trial
Cited Cases
Trial counsel was not ineffective in failing to call minister to testify at guilt phase of capital
murder trial about defendant's diminished capacity and religious faith; minister had told counsel
he couldn't help him, giving counsel reason to believe that minister did not want to testify and
that he might offer testimony harmful to defendant's case, even if minister's true reason for
making the statement was that minister distrusted counsel. U.S.C.A. Const.Amend. 6.
641.13(6)
110 Criminal Law

110XX Trial
Cited Cases
An attorney is not ineffective for failing to further investigate or call a witness to testify who is
unwilling to do so and who cannot be counted on to give testimony favorable to his client.
U.S.C.A. Const.Amend. 6.
641.13(6)
110 Criminal Law

110XX Trial
Cited Cases
Trial counsel was not ineffective in failing to call witness who could have testified, at guilt phase
of capital murder trial in which defendant claimed diminished capacity, about change in
defendant's personality after sawmill accident which had caused brain injury; the testimony was
cumulative to testimony of other witnesses, and witness would have provided prosecution on
cross-examination with opportunity to show defendant had violent temper even before his
accident, undercutting defendant's diminished capacity defense. U.S.C.A. Const.Amend. 6.
641.13(6)
110 Criminal Law

110XX Trial
Cited Cases
An attorney is not ineffective for failing to offer cumulative testimony. U.S.C.A. Const.Amend.
6.
641.13(6)
110 Criminal Law

110XX Trial
Cited Cases
It is not ineffective assistance for an attorney not to call a witness who might undermine the
defense's whole theory of trial. U.S.C.A. Const.Amend. 6.
641.13(2.1)
110 Criminal Law

110XX Trial

Trial counsel's failure to adjudicate defendant's competency to stand trial for capital murder was
not ineffective assistance of counsel; counsel had extensive prior involvement with defendant,
and defendant was able to intelligently discuss his legal options with counsel and even carry on
correspondence with counsel about the case. U.S.C.A. Const.Amend. 6.
641.13(2.1)
110 Criminal Law

110XX Trial
Counsel has no duty to investigate a client's mental condition where the client appears to have
the present ability to consult rationally with the attorney and understand the court proceedings.
1159.4(1)
110 Criminal Law

110XXIV Review
110XXIV(P) Verdicts
110k1159 Conclusiveness of Verdict
110k1159.4 Credibility of Witnesses
Criminal Law 110
1159.4(6)
110 Criminal Law

110XXIV Review
110XXIV(P) Verdicts
110k1159 Conclusiveness of Verdict
110k1159.4 Credibility of Witnesses
110k1159.4(6) k. Particular Witnesses or Grounds of Impeachment. Most Cited
Cases
Trial courts have a superior opportunity to judge the credibility of witnesses, and the appellate
court will defer to a trial court's credibility determination even on an expert witness.
641.13(7)
110 Criminal Law

110XX Trial

110k641.13(7) k. Post-Trial Procedure and Review. Most Cited Cases
Trial counsel was not ineffective in failing to call five witnesses who could have testified at
penalty phase of capital murder trial about defendant's background, his religious faith, his
religious ministry to others, and the change in his personality after sawmill accident that had
caused brain injury; such testimony was cumulative to testimony of other witnesses, and
witnesses may well have offered other testimony undercutting defense's argument that
defendant's brain injury and ensuing mental incapacity were mitigating factors. U.S.C.A.
Const.Amend. 6.
641.13(7)
110 Criminal Law

110XX Trial
110k641.13(7) k. Post-Trial Procedure and Review. Most Cited Cases
There is no requirement that an attorney present any background information on his client during
a capital trial's penalty phase.
*203 Rebecca L. Kurz,Laura G. Martin, Asst. Public Defenders, Kansas City, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for
respondent.
JOHN C. HOLSTEIN, Judge.
Cecil Clayton appeals the denial of his Rule 29.15 post-conviction relief motion by the circuit
court of Jasper County. On appeal he raises four claims, all of which allege that the motion
court should have found his trial counsel ineffective. Because the death penalty was imposed in
Clayton's original trial, this Court has exclusive appellate jurisdiction. Mo. Const. art. V, sec.
10; order of June 16, 1988. The judgment is affirmed.
The evidence that led to Clayton's conviction of first degree murder was compelling, but largely
circumstantial. On the evening of November 27, 1996, a blue Toyota*204 pickup truck with
wooden sides was observed in the driveway of the Dixie Seals' residence in Barry County,
Missouri. The truck was like one Clayton had been driving earlier that day when he had a
violent argument with his former girlfriend, the daughter of Mrs. Seals. Barry County deputy
sheriff Christopher Castetter was summoned to investigate. Shortly after the truck left, deputy
Castetter's vehicle was found sitting at an angle in the Seals driveway against a tree, its engine
running fast and wheels spinning. Deputy Castetter was in the vehicle, mortally wounded by a
single gunshot in the middle of his forehead.

Later Clayton arrived at the home of a friend, Martin Cole. He told Cole that he had shot a cop
in the head and displayed a weapon to Cole. He wanted Cole to act as an alibi. The two
proceeded to Clayton's house in the pickup truck where they were arrested, but not before
Clayton managed to step to the side of his house where a pile of cement blocks were located.
Later the police located a gun in the pile of blocks. The gun was determined to be the likely
source of the bullet that killed Castetter. Paint chips similar to the paint on the pickup were
found on the Castetter vehicle.
Though Clayton denied involvement in the murder when interrogated by police, he did say at one
point that he shouldn't have smarted off to me. In addition, Clayton later admitted his
involvement in the killing to a jailhouse snitch, Robert Compton.
As noted above, the evidence was largely circumstantial. The only direct evidence implicating
Clayton came from Cole and the snitch, both of whom had motives to fabricate testimony, as was
highlighted by the defense. There were also some weaknesses in the circumstantial evidence
that defense counsel explored. For example, no gunpowder residue was found on Clayton's
hands or clothing, though Cole had residue on his left hand, and Cole was left-handed. In
addition, defense counsel probed the uncertainty as to whether the officers actually observed
Clayton deposit the gun in the pile of cement blocks, whether the bullet recovered from the
victim was positively fired by the gun found in the pile of blocks, and whether the paint found on
the victim's vehicle was conclusively determined to be from Clayton's truck.
A second line of defense had to do with a claim of diminished capacity due to a brain injury at a
sawmill accident in 1972. Clayton's brother, Marvin, testified that after the injury, Clayton was
changed. He broke up with his wife, began drinking alcohol and became impatient, unable to
work and more prone to violent outbursts. A defense expert testified that due to his brain injury,
which involved a loss of 7.7 percent of the brain, Clayton was incapable of deliberating,
planning, or otherwise coolly reflecting on a murder when agitated. Another expert explained
that due to the brain injury, Clayton was susceptible to suggestion, thus explaining the equivocal
statements to police. Nonetheless, the jury found Clayton guilty of first-degree murder.
During the penalty phase, another brother, Jerry, was called to testify as to Clayton's childhood
and life as a part-time pastor and evangelist prior to the sawmill accident and, after the accident,
his marital breakup, drinking alcohol and his antisocial personality. A jail administrator and jail
chaplain were called to testify regarding Clayton's good behavior and care for others in the jail
while awaiting trial.
Clayton was sentenced to death. He appealed, and the conviction and sentence were affirmed in
State v. Clayton, 995 S.W.2d 468 (Mo. banc 1999).
*205 RULE 29.15 PROCEEDING
He next filed a timely Rule 29.15 motion. In contrast to the evidence at trial, the postconviction court was presented with a picture of Clayton's early life as one filled with trouble.
As a young man, he was known to have a violent, quick temper and had several run-ins with the
law. In the 1960s, Clayton got into a physical altercation with a highway patrol officer who
stopped his car and, on another occasion, was arrested for assaulting the local high school
principal in a restroom at the high school during a basketball game. While in jail for the assault,
Clayton was converted to Christianity and became devoted to his new found faith.
The evidence of Clayton's history after his conversion was more consistent with the evidence at
trial. He stopped drinking alcohol. He began to attend church regularly, eventually preaching
and singing during the services. Clayton became a part-time pastor and traveling evangelist,
going to different churches around the area preaching in revivals and performing songs with his
wife and children.
More detail was offered regarding the 1972 sawmill accident. A piece of wood apparently
broke off the log he was working on and was thrown into his head. The piece became imbedded
inside his skull and could only be removed surgically. Although Clayton spent a considerable
amount of time recuperating in the hospital after the accident, he did not receive any long-term
therapy.
Unable to work in the timber business, Clayton tried other types of work, including working for a
short time as a police officer in Purdy, Missouri. Eventually, Clayton quit looking for full time
employment. He applied for and received social security disability benefits, although he was
still able to do various odd jobs.
Clayton's personal life deteriorated. Although he continued traveling around preaching and
singing with his family for awhile, he eventually quit. He started drinking again. His wife left
him and they eventually divorced. He was violent and quick-tempered with members of his
family, once slapping one of his sisters so hard that it cut her lip and broke a tooth.
The first attorney Clayton contacted after his arrest was Ross Rhoades, who had represented him
in previous criminal cases. Rhoades initially recommended that Clayton find someone else to
represent him, even though Rhoades had previously tried a capital murder case and numerous
other felony cases. Clayton considered two other attorneys, rejecting both of them because he
did not trust them, and hired Rhoades.
As previously noted, Rhoades used two different defenses at trial. First, he built off the fact that
gunpowder residue was not found on Clayton after he was arrested but was found on Martin
Cole. Rhoades used this and other weaknesses in the state's case to hold the state to its burden
and to argue that reasonable doubt existed as to Clayton's guilt. Second, Rhoades relied on
evidence about Clayton's 1972 sawmill accident, the loss of nearly eight percent of his brain, and
expert testimony of Clayton's lack of mental capacity to deliberate to argue that Clayton could
not be found guilty of first-degree murder. This appeal follows the denial of relief in the Rule
29.15 proceeding.
[1] The Court will only overturn a trial court's ruling on a post-conviction relief motion if the
trial court's findings and conclusions are clearly erroneous. Rule 29.15(k). The presumption
that the trial court's rulings are correct can only be *206 defeated if the appellate court is left
with a definite and firm impression that a mistake has been made. State v. Link, 25 S.W.3d
136, 148-49 (Mo. banc 2000).
[2][3] In this case, all of Clayton's claims are based on ineffective assistance of trial counsel. In
order to overturn a conviction or a death sentence for ineffective assistance, the defendant must
first show that his attorney's conduct fell below an objective standard of reasonableness and
second that his attorney's errors prejudiced his case. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The attorney's conduct must be so egregious that it
undermines the proper functioning of the adversarial process to such an extent that the original
trial cannot be relied on as producing a just result. Id. at 686, 104 S.Ct. 2052.
[4][5][6][7] The defendant has a heavy burden in proving ineffective assistance. Both parts of
the Strickland test must be fulfilled; if he fails to prove either one, no relief can be granted. State
v. Kinder, 942 S.W.2d 313, 335 (Mo. banc 1996). The reviewing court presumes that the trial
attorney's conduct was reasonable and was not ineffective. State v. Stepter, 794 S.W.2d 649,
657 (Mo. banc 1990). Reasonable choices of trial strategy, no matter how ill fated they appear
in hindsight, cannot serve as a basis for a claim of ineffective assistance. See Sanders v. State,
738 S.W.2d 856, 858 (Mo. banc 1987).
Clayton fails to demonstrate that the trial court's findings or conclusions are clearly erroneous.
He first argues that his trial attorney was ineffective for pursuing simultaneously both a
reasonable doubt defense and a diminished capacity defense. Next, he argues that his attorney
was ineffective in failing to thoroughly investigate and present the diminished capacity defense
alone. Third, Clayton claims that his attorney was ineffective for failing to have Clayton's
competency to stand trial adjudicated, and that Clayton was so incompetent during the trial that
he was not able to assist the attorney in conducting his defense. Finally, he argues that his
attorney was ineffective for not presenting certain mitigating evidence in the trial's penalty phase.
These four claims fail to establish that the trial court clearly erred in finding that the conduct of
Clayton's trial attorney did not fall below the objective standard of reasonableness demanded by
law.
[8][9] Trial counsel was not ineffective in arguing that a reasonable doubt of guilt existed and a
diminished capacity defense. Missouri courts have long recognized that criminal defendants
have the right to present multiple defenses, even if the defenses are somewhat inconsistent. State
v. Wright, 352 Mo. 66, 175 S.W.2d 866, 872 (1943). In State v. Lora, the court held that a
defendant could not be prevented from offering evidence that he was feeble-minded, thus
lacking the mental capacity to commit the crime charged, even though he was also relying on the
defense of alibi. 305 S.W.2d 452, 455-56 (Mo.1957). As the Court noted, a defense of mental
incapacity and alibi are not necessarily inconsistent. Id. at 455. Proof that an individual does
not have the capacity to form intent does not negate an alibi defense. Id. The facts underling
both defenses can exist simultaneously.
In this case, asserting that a reasonable doubt of guilt exits and that the accused had diminished
capacity are not inconsistent, as Clayton alleges. It is not logically inconsistent to argue that the
state failed to prove that Clayton was the shooter and *207 that he did not have the mental
capacity necessary to form intent for first-degree murder. Both can be equally true and exist at
the same moment in time. While pursuing both defenses in one trial might hurt an attorney's
credibility with the jury in some cases, there is no per se rule against an attorney arguing both
that the state must prove guilt beyond a reasonable doubt and asserting a diminished capacity
defense. The decision to use two defenses turns solely on a question of trial strategy.
[10] Making both arguments in Clayton's case was a reasonable choice. A strategic decision is
reasonable if it was made with the same skill and diligence another reasonably competent
attorney would use under similar circumstances. Sanders, 738 S.W.2d at 858. In this case,
Clayton's attorney knew that he did not have a strong case under either theory. Even though
there was gunshot residue on Martin Cole's hands, Clayton's attorney knew that Cole had a good
alibi for the time of the murder and had no motive to kill the deputy. From his numerous years
of felony jury trial experience in the local area, he also knew that juries were very suspicious of
insanity defenses and hired experts. Finally, the attorney knew of the conflicting evidence
about Clayton's mental capacity that would make a diminished capacity defense tough to sell to
the jury.
The attorney relied on more than his own hunches and experience in deciding to pursue both
defenses. He assembled a mock jury made up people out of the same general community where
the case was going to be tried and presented the state's evidence and both defenses to them.
Most responded favorably toward the reasonable doubt defense, and the panel members did not
report a problem with him presenting both defenses. He also had numerous discussions with
two other attorneys about the issue and even discussed the matter with Clayton himself. Under
the circumstances, the attorney's decision cannot be characterized as clearly unreasonable.
The authorities Clayton cites from other jurisdictions in support of his argument are not helpful.
For example, he argues that in Ross v. Kemp, the Supreme Court of Georgia found that the
presentation of inconsistent defenses is ineffective assistance. 260 Ga. 312, 393 S.E.2d 244, 245
(1990). That is not quite the holding in Kemp.In Kemp, the defendant had two different
attorneys, one retained by his family and one appointed by the court, that were both actively
involved in questioning witnesses and arguing to the jury. Id. The attorneys never conferred
with each other about strategy prior to trial, they argued inconsistent defenses to the jury, and
one of them placed the defendant on the stand without preparing him at all to testify. Id. It was
all these factors together that resulted in the finding of ineffective assistance of counsel.
Obviously, the situation in Clayton's trial was very different.
While it may be unusual for an attorney to probe weaknesses in the state's case giving rise to
reasonable doubt and also to assert a diminished capacity defense, it is not unheard of or per se
unreasonable. In the circumstances of this case, the presentation of both arguments did not fall
below the objective standard of reasonableness required by Strickland.
[11] Clayton's attorney was not ineffective in his investigation and presentation of the diminished
capacity defense. It is not ineffective assistance of counsel for an attorney to pursue one
reasonable trial strategy to the exclusion of another, even if the latter would also be a reasonable
*208 strategy. State v. Ferguson, 20 S.W.3d 485, 508 (Mo. banc 2000). In this case, even
though using a diminished capacity defense by itself might have been a reasonable trial strategy,
it was also reasonable, as demonstrated above, to argue that a reasonable doubt of guilt existed.
The fact that the diminished capacity defense did not get as much emphasis as it might have by
itself cannot be an independent basis for an ineffective assistance claim. This was part of the
attorney's overall strategic choice, and was not ineffective assistance.
[12][13] Clayton also claims that his attorney was ineffective for failing to introduce certain
specific items of evidence and for failing to call two particular witnesses in support of the
diminished capacity defense. Clayton is incorrect on both counts. First, the selection of
witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective
assistance claim. Leisure v. State, 828 S.W.2d 872, 875 (Mo. banc 1992). By deciding to use
both defenses, the attorney also decided not to use all of the witnesses and evidence he might
have used had he raised diminished capacity alone.
[14] Clayton's attorney also had legitimate strategic reasons for not introducing Clayton's school
records, Nevada State Hospital records, and Social Security Disability file, as Clayton now
claims a reasonable attorney would have done. He argues that these records would have
provided the jury with a better picture of his mental capacity and his history of multiple head
injuries. From his pre-trial investigation and his own experience with Clayton in the past, the
trial attorney knew Clayton's history of head injuries. He knew that while the records might
give the jury insight into that history, their introduction also ran the risk of the defense getting
mired in a paper war with the prosecution, deluging the jury with hundreds of pages of
documents and confusing them.
Clayton's attorney wanted to keep the picture he painted for the jury simple; that of a man
forever changed by a sawmill accident in 1972. The records Clayton now complains about
would have complicated that picture and shown the jury that Clayton was also a violent man with
a criminal record even before his accident occurred. Also, some of the evidence cast a cloud of
doubt over claims about Clayton's mental incapacity.
Thus, the attorney's decision was
consistent with his trial strategy and was not ineffective assistance.
[15][16] The attorney was not ineffective for failing to call Les Paul, a minister, to testify about
Clayton's diminished capacity and religious faith. When the attorney contacted Paul prior to
trial about testifying about Clayton's good traits, Paul told him that he couldn't help him. An
attorney is not ineffective for failing to further investigate or call a witness to testify who is
unwilling to do so and who cannot be counted on to give testimony favorable to his client. State
v. Hall, 982 S.W.2d 675, 686 (Mo. banc 1998). Here, Paul's statement gave the attorney reason
to believe that he did not want to testify and that he might offer testimony harmful to Clayton's
case.
The fact that Paul now claims he only told Clayton's attorney he could not help him because he
distrusted the attorney is immaterial. At the time the attorney made the decision not to call him,
he was acting reasonably based on Paul's statements to him. An attorney is not required to be
omniscient and see the true reasons why a witness does not want to talk to him or testify.
[17][18][19] Similarly, Clayton's attorney was not ineffective for failing to call Carolyn*209
Dorsey. While Dorsey could have testified about the change in Clayton's personality after the
sawmill accident, the attorney presented other witness who testified about the same thing. An
attorney is not ineffective for failing to offer cumulative testimony. Skillicorn v. State, 22
S.W.3d 678, 683 (Mo. banc 2000). Also, Dorsey would have provided the prosecution on crossexamination with the opportunity to show that Clayton had a violent temper even before his
accident, undercutting Clayton's diminished capacity defense. It is not ineffective assistance for
an attorney not to call a witness that might undermine the whole theory of trial. See State v.
Richardson, 923 S.W.2d 301, 328 (Mo. banc 1996).
[20][21] Clayton's attorney was not ineffective for failing to adjudicate his competency.
Counsel has no duty to investigate a client's mental condition where the client appears to have
the present ability to consult rationally with the attorney and understand the court proceedings.
Richardson, 923 S.W.2d at 328.
In this case, Clayton's attorney had extensive prior
involvement with him before this case ever arose. From the fact that Clayton was able to
intelligently discuss his legal options with his attorney, and even carry on correspondence with
him about the case, the attorney could reasonably conclude that he was competent to stand trial.
[22] Clayton has also failed to demonstrate that he was actually incompetent during his trial.
The trial court did not find Dr. Daniel Foster, the only expert to testify that Clayton was
incompetent, credible. Trial courts have a superior opportunity to judge the credibility of
witnesses, and this Court will defer to a trial court's credibility determination even on an expert
witness. State v. Simmons, 955 S.W.2d 752, 773 (Mo. banc 1997). In this case, Dr. Foster's
determination is especially questionable because even though he said Clayton was incompetent
at the time of his trial, he admitted that Clayton understood the role of the prosecutor, the judge,
the juror, and even his own attorney in the process. He further stated that Clayton knew what he
was charged with, that he was facing the death penalty, and that he was able to discuss his
various options with his attorney. Dr. Foster's testimony is further undermined by the fact he
examined Clayton for the first time years after the original trial occurred. The judge, who had
also presided during Clayton's trial, had more than a reasonable basis to concluded that Dr.
Foster's testimony was not credible and that Clayton was competent at the time of his trial.
[23] Clayton argues that his trial counsel should have called Carolyn Dorsey, Arnold Evans, Les
Paul, Norma Mitchell, and Delores Williams to testify during the penalty phase of his trial. As
has been noted before, the selection of particular witnesses in general is a matter of trial strategy
and is virtually unchangeable on an ineffective assistance claim. Leisure, 828 S.W.2d at 875. In
this case, none of the five witnesses Clayton mentions would have added anything significant to
his case during penalty phase.
[24] Much of the testimony presented by these witnesses would have been needlessly
cumulative. Under Missouri law, an attorney is not ineffective for failing to put on cumulative
evidence. Skillicorn, 22 S.W.3d at 683. Clayton argues Evans, Dorsey, Paul, Williams, and
Mitchell all should have been called to testify about his background, his religious faith, his
religious*210 ministry to others, or the change in his personality after the accident. During the
original trial, Clayton's two brothers and the chaplain from the county jail gave similar
testimony, although sometimes they relied on different incidents. Much of the information the
witness would have provided was on Clayton's background. There is no requirement that an
attorney present any background information on his client during a capital trial's penalty phase.
Richardson, 923 S.W.2d at 329.
Their testimony may well have undercut the defense's argument that Clayton's brain injury and
ensuing mental incapacity were mitigating factors. For example, Dorsey would have testified
about Clayton's violent temper as a young man and would have helped the prosecution argue that
Clayton's brain injury was not the only reason behind his actions. Paul would have also testified
about how Clayton was still able to do complex mental tasks after his injury, like preaching in
revivals. Because the testimony of these five witnesses would have added little to Clayton's
case and in some ways may have harmed it, his attorney was not ineffective for failing to call
them.
Clayton has not demonstrated that his attorney's conduct fell below the objective standard of
reasonableness demanded of criminal practitioners. In this regard, the finding and conclusions
of the post-conviction court are not clearly erroneous. The judgment is affirmed.
All concur.
Mo.,2001.
Clayton v. State
63 S.W.3d 201
END OF DOCUMENT
Case 4:02-cv-08001-NKL
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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CECIL CLAYTON,
Petitioner,
v.
AL LUEBBERS,
Supt., Potosi Correctional Center
Respondent.
)
)
)
)
)
)
)
)
)
)
Case No. 02-MC-8001-CV-W-NKL

CAPITAL CASE
ORDER
Pending before the Court is Cecil Claytons (Clayton) Petition for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. 2254 [Doc. # 46]. The Court denies Claytons
Petition.
I.
Factual Background
A.
Claytons Pre-Offense Background
As a young man, Clayton had a violent, quick temper and had several run-ins
with the law. Clayton v. State, 63 S.W.3d 201, 205 (Mo. 2001). During the 1960s, he
underwent a religious conversion after which he stopped drinking alcohol and began to
attend church regularly. Clayton also began preaching and singing at religious worship
services.
In 1972, Clayton suffered a traumatic head injury while working at a sawmill. A
piece of wood broke off a log he was working on and became embedded in his head.
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Clayton underwent surgery to remove the wood from his head and, during the extraction
process, surgeons had to remove approximately eight percent of Claytons brain.
After his head injury, Clayton tried other types of work and briefly worked as a
police officer for a small municipality in Missouri. Eventually, Clayton discontinued full
time employment and received social security disability benefits. He continued to do
various odd jobs.
Claytons personal life took a downturn after his head injury. He stopped
preaching and evangelizing and he resumed drinking alcohol. He and his wife divorced
and he became increasingly violent and agitated with members of his extended family.
B.
The Offense
In November of 1996, Cecil Clayton and Martha Ball (Ball) were romantically
involved, but the relationship was ending. On November 26, 1996, they agreed to meet at
the Country Corner, a store in Purdy, Missouri, so that Clayton could return some papers
Ball had left at his house. Clayton arrived at the store without the papers. Clayton
requested that Ball go with him to his home to get the papers but she refused. He left and
returned with the papers.
When Clayton returned with the papers, he and Ball began to argue in the store.
The clerk, Barbara Starkey, called the police. Officer Jim McCracken, the Chief of Police
in Purdy, responded to the call. Clayton left the store after Chief McCracken arrived.
Ball was staying with her mother, Dixie Seal (Seal), in Cassville and she asked Chief
McCracken if he would escort her there. However, before the escort was arranged, Ball
2
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left the store to go to Vicky Deeters (Deeter) home in Monett.

At around 9:50 p.m., Balls sister, Carolyn Leonard (Leonard), noticed a truck at
the end of Seals driveway. She believed the truck belonged to Clayton and she called the
police.
Deputy Christopher Castetter (Castetter) arrived at Seals home at 10:03 p.m.
When Castetter did not respond to calls from the dispatcher, David Bowman (Bowman)
and Jason Manning (Manning), who were fellow officers with Castetter, went to the
scene. They found Castetter in his police car slumped over in his seat. Castetters
weapon was still snapped in its holster. Manning attempted to assist Castetter who was
bleeding heavily from his head and having trouble breathing. Bowman contacted the
dispatcher at 10:07 p.m. for an ambulance. Later that night, Castetter died from a single
gunshot to the head.
Bowman then contacted Seal and Leonard to obtain a description of the truck that
was in the driveway. Bowman contacted the dispatcher and described the truck. Chief
McCracken heard the description of the vehicle. He recognized the truck as the same
vehicle that Clayton had been driving earlier at the Country Corner store. Chief
McCracken met another law enforcement official from a neighboring jurisdiction and
they went to Claytons residence.
Around 10:15 p.m., Clayton arrived at Martin Coles (Cole) home. They drove
together in Claytons truck to Claytons home. According to Cole, Clayton said that he
had shot a police officer in the head and displayed a gun to Cole. Clayton asked Cole to
3
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tell the police that he and Clayton were together all evening watching television.
Clayton and the police arrived at his home at about the same time. Chief
McCracken saw Clayton get out of his truck. McCracken tried to engage Clayton in
conversation, but he refused to come near the officer, professing that he could not hear
Chief McCracken. Clayton kept his right hand in his pocket. Clayton walked toward the
side of his house to a pile of concrete blocks, removed something from his pocket, and
bent over. Clayton then returned to his truck. The police arrested Clayton and
impounded his truck. Chief McCracken examined the block pile and found a .38 caliber
gun, which contained four live rounds and one expended cartridge. Later testing could
neither confirm nor rule out that the bullet recovered from Castetters body was fired
from the gun.
Later that night, Clayton was questioned about Castetters murder. When
confronted with evidence that Clayton had been at the scene of the murder, Clayton
responded, He probably should have just stayed home. . . . He shouldnt have smarted
off to me. . . . But I dont know because I wasnt out there.
The police obtained paint transfer samples from Castetters patrol car and
from Claytons truck. The samples from Claytons truck were of similar color and
chemical composition to the paint transfers from the patrol car. A piece of black molded
plastic found at the crime scene fit perfectly into a damaged area of the tail-light of
Claytons truck. Clayton and Cole submitted to gunshot residue tests. Claytons test was
negative, but Coles test was consistent with having fired a weapon.
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Clayton was incarcerated in the Lawrence County Jail and shared a cell with
William Rogers (Rogers) and Robert Compton (Compton). According to these
jailhouse informants, Clayton told them that he had shot a police officer.
C.
State Court Proceedings

1.
Pretrial Period
Clayton retained Attorney Ross Rhoades (Rhoades), who was assisted by his
daughter, Christine. Before the trial, Rhoades hired Patrick Berrigan (Berrigan) to
consult on the case and help Rhoades with voir dire. Since 1990, Berrigan worked
exclusively on capital cases and represented over fifty capital defendants. To help
prepare Rhoades for voir dire, Berrigan reviewed all of the police reports concerning the
case. After Berrigan reviewed the police reports, he discussed the case with Ross and
Christine Rhoades. In the guilt phase, Rhoades wanted to assert that Clayton was not
guilty, because there was no gunshot residue on Claytons hands, but there was gunshot
residue on Coles hands. In the penalty phase, Rhoades intended to base his mitigation
theory on Claytons brain damage that he suffered after a 1972 sawmill accident.
Berrigan vehemently advised Rhoades to abandon the not guilty theory and present
a guilt phase defense of diminished capacity. In Berrigans opinion, diminished capacity
was the only viable defense. Berrigan advised Rhoades to abandon the not guilty theory,
because the evidence was fairly overwhelming that Clayton was the shooter, and
because it is a disaster to present a guilt phase defense that is inconsistent with the
mitigation theory, because the defense will have no credibility with the jury.
5
2.
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Trial
a.
Guilt Phase
Through his cross-examination of the States witnesses, Rhoades emphasized the

lack of evidence of guilt. From Bowman, one of the first officers to arrive at the scene,
he elicited testimony that Leonard, Martha Balls sister, did not tell Bowman that she saw
Clayton on the night of the shooting. Rhoades elicited testimony from Leonard that she
did not like Clayton and did not want him to have a relationship with her sister. Rhoades
also elicited testimony that the officer who arrested Clayton did not see what, if anything,
Clayton removed from his pocket while standing beside the cement blocks; he saw no gun
in Claytons possession. On cross-examination of the States ballistics expert, Rhoades
emphasized that it was impossible to determine whether the bullet recovered from
Castetter was fired from the gun recovered at Claytons home, and that the land width
measurements of the recovered bullet did not correspond to the measurement of bullets
test fired from Claytons gun. On cross-examination of the States trace evidence expert,
Rhoades emphasized that a paint match is not conclusive. Mr. Rhoades also elicited
testimony that Clayton did not have gunshot residue on his hands or clothing, but that
Cole, who is left-handed, had gunshot residue on his left hand.
The State presented the testimony of two jailhouse informants, Rogers and
Compton. They testified that Clayton had admitted to them while incarcerated that he had
shot a police officer. They further testified that Clayton told them he could not tolerate
law enforcement officers and that they all deserved to be shot.
6
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In the defenses case-in-chief, Rhoades called Claytons brother, Marvin,

to describe the sawmill accident that caused Claytons brain injury. Dr. Bettye Back, one
of Claytons experts who testified at trial, described his brain injury in detail and testified
that Claytons brain damage made him incapable of deliberating. In closing argument,
the prosecutor said Dr. Backs testimony was preposterous, voodoo, and an excuse.
In the defenses closing argument, Rhoades first argued that Mr. Clayton was
brain damaged and was incapable of deliberation. Rhoades then argued that what
happened was a mystery or puzzle, and there was reasonable doubt as to Mr.
Claytons guilt. Rhoades suggested that Clayton may have been at the crime scene, he
may have been with someone else, or he may not have been there at all.
In rebuttal, the prosecutor criticized the defense for suggesting that Cole was
the shooter and for being inconsistent. The prosecutor pointed out that Mr. Cole could
not have been the shooter, because he had an alibi. The jury found Clayton guilty of firstdegree murder.
b.
Penalty Phase
During the penalty phase, the State presented evidence that Clayton was on
probation for assault at the time of Castetters death and had a reputation for
violence in the community. Evidence concerning Claytons prior assault convictions was
admitted, including a large photograph of one of the assault victims, covered with blood.
On cross-examination, the defense developed evidence that while on probation, Mr.
Clayton paid his court-ordered restitution, attended Alcoholics Anonymous meetings and,
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as a result of his good adjustment, was placed on mail-in supervision.

The defense also presented evidence that the injuries to the assault victim in the
picture were minor, that Mr. Clayton had adjusted well to the Jasper County Jail,
including his participation in jail religious services. Claytons brother, Jerry, testified
about his brothers work as a minister, and about the change in his personality that
occurred after his head injury. After further instruction and deliberation, the jury imposed
the death penalty.
II.
Procedural Background
On June 29, 1999, the Missouri Supreme Court affirmed Mr. Claytons conviction
and sentence. State v. Clayton, 995 S.W.2d 468 (Mo. 1999). Clayton filed a timely
petition for writ of certiorari to the United States Supreme Court. Certiorari was denied
on November 29, 1999. Clayton v. Missouri, 528 U.S. 1027 (1999).
Clayton filed a timely motion for post-conviction relief pursuant to Mo. Sup. Ct.
R. 29.15. An evidentiary hearing was held in the trial court. The trial court denied relief
on Claytons post-conviction motion and the Missouri Supreme Court affirmed on
December 4, 2001. Clayton v. State, 63 S.W.3d 201 (Mo. 2001). Rehearing was denied
on January 22, 2002. A timely petition for writ of certiorari to the United States Supreme
Court was denied on June 3, 2002. Clayton v. State, 535 U.S. 1118 (2002).
After filing his pending Petition for habeas relief in this Court, Clayton moved to
stay these proceedings based on his lack of competence. The Court has denied Claytons
Motion, finding that Clayton is competent to pursue his habeas Petition. See Order [Doc.
8
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# 104].
III.
Standard of Review
State prisoners who believe that they are incarcerated in violation of the
Constitution or laws of the United States may file a petition for a writ of habeas corpus
pursuant to 28 U.S.C. 2254. Before doing so, petitioners must exhaust their state
remedies. See Coleman v. Thompson, 501 U.S. 722, 732 (1991).
Section 2254 has been amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132 (Apr. 24, 1996). Under AEDPA, federal
courts considering habeas petitions must exercise only limited and deferential review of
underlying state court decisions. See Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir.
2003). Specifically, AEDPA mandates that a federal court may not grant a writ of habeas
corpus unless the state courts decision (1) was contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the United States, (2) involved an
unreasonable application of clearly established Federal law, as determined by the
Supreme Court of the United States, or (3) was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding. Id. at 752.
A state court decision is contrary to clearly established Supreme Court precedent
if the state court arrives at a conclusion opposite to that reached by [the] Supreme Court
on a question of law or . . . decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362 (2000).
A state court decision involves an unreasonable application of clearly established
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Supreme Court precedent if the state court identifies the correct governing legal
principle from [the] Court's decisions but unreasonably applies that principle to the facts
of the prisoner's case. Id. An unreasonable application of federal law is different
from an incorrect application of federal law. Carter v. Bowersox, 265 F.3d 705, 713
(8th Cir. 2001) (quoting Williams, 529 U.S. at 410). Thus, a federal habeas court may
not issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable. Id. (quoting Williams,
529 U.S. at 411). A state decision also represents an unreasonable application of federal
law if it unreasonably extends a legal principle from Supreme Court precedent to a new
context where it should not apply or unreasonably refuses to extend that principle to a
new context where it should apply. Moore v. Purkett, 275 F.3d 685, 688 (8th Cir. 2001)
(quoting Williams, 529 U.S at 362).
Finally, a state court decision involves an unreasonable determination of the facts
in light of the evidence presented in state court proceedings . . . only if it is shown by
clear and convincing evidence that the state court's presumptively correct factual findings
do not enjoy support in the record. Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir.
2003); see also Kenley v. Bowersox, 275 F.3d 709, 711-12 (8th Cir. 2002) (the state
courts factual findings carry a presumption of correctness that will be rebutted only by
clear and convincing evidence.).
IV.
Discussion
10
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Claim 1: Ineffective Assistance of Counsel for Presenting Alternative

Theories of Defense at Trial
Clayton alleges that Rhoades provided ineffective assistance during his trial
because Rhoades presented alternative theories of defense. During the trial, Rhoades
argued that Clayton did not shoot Castetter, but he also argued that, even if Clayton had
shot Castetter, Clayton had diminished capacity because of his mental impairments.
Clayton argues it was ineffective assistance of counsel for Rhoades to present alternative
theories of defense.
To establish ineffective assistance of counsel, a movant must satisfy a two-part
test. First, the movant must prove that his counsels representation was deficient, and
second, that the deficient performance prejudiced his case. Strickland v. Washington, 466
U.S. 668, 687 (1984). A counsels performance is deficient if he or she failed to
exercise the customary skills and diligence that a reasonably competent attorney would
have exhibited under similar circumstances. United States v. Apfel, 97 F.3d 1074, 1076
(8th Cir. 1996) (internal quotation omitted).
The prejudice component focuses on the question [of] whether counsels deficient
performance renders the result of the trial unreliable or the proceeding fundamentally
unfair. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Unreliability or unfairness
does not result if the ineffectiveness of counsel does not deprive the defendant of any
substantive or procedural right to which the law entitles him. Id. Further, [w]hen
considering whether the defense suffered prejudice, [the] court must determine whether
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there is a reasonable probability (sufficient to undermine confidence in the outcome) that,

but for counsels unprofessional errors, the result of the proceeding would have been
different. Blankenship v. United States, 159 F.3d 336, 338 (8th Cir. 1998) (internal
quotation omitted).
Counsels strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. Johnston v.
Luebbers, 288 F.3d 1048, 1055 (8th Cir. 2002) (quoting Strickland, 466 U.S. at 690-91).
Trial counsels judgment is entitled to substantial deference. Bucklew v. Luebbers, 436
F.3d 1010, 1016 (8th Cir. 2006).
Claytons allegation concerning his counsels incompetence was raised in his Rule
29.15 Motion and reviewed by the Missouri Supreme Court on appeal. Clayton, 63
S.W.3d at 206. The Missouri Supreme Court rejected Claytons contention that
Rhoadess presentation of alternative theories of defense rose to the level of ineffective
assistance.
The Missouri Supreme Court stated: Proof that an individual does not have the
capacity to form intent does not negate an alibi defense. The facts underling [sic] both
defenses can exist simultaneously. Id. (citing State v. Lora, 305 S.W.2d 452, 455-56
(Mo. 1957)). Discussing Claytons specific case, the court stated,
It is not logically inconsistent to argue that the state failed to prove that
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Clayton was the shooter and that he did not have the mental capacity
necessary to form intent for first-degree murder. Both can be equally true
and exist at the same moment in time. While pursuing both defenses in one
trial might hurt an attorneys credibility with the jury in some cases, there is
no per se rule against an attorney arguing both that the state must prove
guilt beyond a reasonable doubt and asserting a diminished capacity
defense. The decision to use two defenses turns solely on a question of trial
strategy.
Id. at 206-07. The court further concluded that Rhoadess choice was reasonable in
Claytons case because he did not have a good defense under either theory. Id. The court
also pointed to Rhoadess thorough preparation for the trial--including the use of a mock
jury that did not reject his use of alternative theories of defense--as further evidence that
his trial strategy was reasonable. Id.
In support of his contention that Rhoadess assistance was ineffective, Clayton
points to the fact that Berrigan advised Rhoades to abandon his argument that Clayton did
not commit the crime and instead focus on Claytons diminished capacity. Clayton also
points to the States attack on Rhoadess approach during its closing argument and
identifies a letter that Rhoades sent to Berrigan wherein he conceded that he should not
have pursued the alternative theories. According to Clayton, Rhoades wrote, It was not
until the trial had been completed and some days had passed before I fully realized how
inadequate and inept I was in attempting to spare [Clayton] from the death penalty. As
you pointed out to me, but I was unwilling to listen, our chances of succeeding in the first
phase were minimal. The letter was presented as an exhibit during Claytons postconviction hearing. See Clayton Ex. G at p. 974.
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Rhoadess letter is not determinative of whether his conduct fell below the
standard for reasonable counsel. See United States v. Eyman, 313 F.3d 741, 743 (2nd Cir.
2002) (It is the magnitude of those errors that is determinative; trial counsels admission
that his performance was deficient is not dispositive.); Chandler v. United States, 218
F.3d 1305, 1316 n. 16 (11th Cir. 2000) (Because the standard is . . . objective . . . , that
trial counsel admits that his performance was deficient matters little.) (citing Tarver v.
Hopper, 169 F.3d 710, 716 (11th Cir. 1999)).
Moreover, there is evidence that Rhoadess letter was the product of his remorse at
the trials outcome rather than his belief about his competency as Claytons counsel.
Rhoades later admitted during the post-conviction proceeding that he absolutely felt
bad and upset after Clayton was found guilty. Id. at p. 975. He did not concede that he
believed his representation was ineffective and he merely stated, I would hope that that
is not the case. Id. He also testified that he did not believe at the time of the trial that his
representation was ineffective. Id. at p. 976. Thus, Rhoadess letter to Berrigan does not
establish that his counsel was ineffective.
Clayton has failed to demonstrate that the Missouri Supreme Courts determination
was contrary to . . . clearly established Federal law, as determined by the Supreme Court
of the United States. Lomholt, 327 F.3d at 752. To the contrary, federal courts have
found that arguing alternative theories of defense is not unreasonable. See Singleton v.
Lockhart, 871 F.2d 1395 (8th Cir. 1989) (counsel in capital case not ineffective for
arguing factual innocence and the applicability of a lesser-included offense); Hunt v.
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Nuth, 57 F.3d 1327 (4th Cir. 1995) (counsel in capital case not ineffective for arguing
both factual innocence and lack of deliberation due to intoxication); and Brown v. Dixon,
891 F.2d 490 (4th Cir. 1989) (counsel not ineffective in capital case for asserting
petitioners drunkenness and factual innocence as alternative theories for acquittal).
In Singleton, the Eighth Circuit stated, There is nothing unusual about arguing
inconsistent or alternative theories of defense. Singleton, 871 F.2d at 1400. The court
noted that, given that the petitioner was facing the death penalty, gambling on an all-ornothing defense could well have been less reasonable than arguing a fallback position in
addition to a claim of total innocence. Id.
Clayton has also failed to demonstrate that the Missouri Supreme Courts decision
was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. Id. Clayton asserts that his mental impairments
created a better case for his diminished capacity defense and that the Missouri court erred
when it stated that Claytons argument was weak under either theory, but there is ample
evidence to support the Missouri Supreme Courts contrary conclusion. The Court denies
Claytons first claim for relief.
B.
Claim 2: Ineffective Assistance of Counsel for Failure to Adequately

Investigate and Present Diminished Capacity Defense at Trial
Clayton states that Rhoades was ineffective for failing to adequately develop the
defense of diminished capacity, even though Rhoades retained an expert to explain his
brain injury and testify that Clayton could not deliberate. Specifically, Clayton argues
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that Rhoades was ineffective for not introducing records from the Nevada State hospital,
his Social Security file, and his school records. Clayton also argues that Rhoades was
ineffective for not presenting the testimony of Carolyn Dorsey (Dorsey), Arnold Evans
(Evans), and Leslie Paul (Paul) so they could testify about how Claytons behavior
dramatically changed after the 1972 sawmill accident.
1.
Records
The Missouri Supreme Court held that Rhoades did not render ineffective
assistance of counsel by failing to introduce the voluminous records now identified by
Clayton. The court stated:
Claytons attorney also had legitimate strategic reasons for not introducing
Claytons school records, Nevada State Hospital records, and Social
Security Disability file, as Clayton now claims a reasonable attorney would
have done . . . . [Rhoades] knew that while the records might give the jury
insight into [Claytons] history, their introduction also ran the risk of the
defense getting mired in a paper war with the prosecution, deluging the
jury with hundreds of pages of documents and confusing them. Claytons
attorney wanted to keep the picture he painted for the jury simple; that of a
man forever changed by a sawmill accident in 1972. The records Clayton
now complains about would have complicated that picture and shown the
jury that Clayton was also a violent man with a criminal record even before
his accident occurred. Also, some of the evidence cast a cloud of doubt
over claims about Claytons mental incapacity. Thus, the attorneys
decision was consistent with his trial strategy and was not ineffective
assistance.
Clayton, 63 S.W.3d at 208.
The Nevada State Hospital records, which date from 1974 (two years after
Claytons sawmill accident), reflect that Clayton had a high temper and was very highstrung even back in his teens, when he was always getting into fights. See Resp. Ex. K
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at p. 12. The records also state that [e]ven before the accident people were inclined to
irritate him and he didnt like to be in crowds. Id. at p. 9. They also state that Clayton
had a bad reputation for drinking and getting into fights before his marriage. Id.
Clayton contends that the foregoing is but a minor snapshot from the records and it
was ineffective assistance for Rhoades not to present the records in their entirety.
Clayton points to specific comments that reference Claytons inability to work without
getting upset and the doctors conclusion that Clayton may find himself expending a
great deal of emotional energy trying to control himself. Id. at pp. 6, 9. Clayton also
asserts the records contain evidence of head injuries that pre-dated his 1972 sawmill
accident, including being dropped on the head when he was an infant and an automobile
accident.
At best, the records identified by Clayton are contradictory about the status of
Claytons mental capacity. While some comments lend credence to Claytons argument,
the records do not overwhelmingly demonstrate that Clayton lacked the capacity to
deliberate when he shot Castetter, and there is evidence in them that would be detrimental
to Claytons defense. Thus, Clayton has failed to demonstrate that it was unreasonable
for the Missouri Supreme Court to determine that the records would not have been of
substantial help to Clayton.
Similarly, it was not unreasonable for the Missouri Supreme Court to find that
Rhoadess failure to introduce Claytons Social Security Disability file was ineffective
assistance of counsel. Both parties cite extensive evidence from the voluminous Social
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Security Disability file, which contains conflicting evidence about Claytons mental
capacity to engage in employment. Clayton concedes the records are voluminous (see
Traverse [Doc. # 65] at p. 17, n. 5), which supports Rhoadess reason for excluding them
because they might confuse the jury. Also, the records contain notations from Claytons
physicians undermining his claim of mental impairments. Moreover, the records
proffered by Clayton focus on his ability to work, making them only marginally relevant
to his claim of mental incapacity.
Finally, Clayton contends that Rhoades should have introduced his school records
to present a clearer picture of his mental challenges. Clayton asserts that the records
would have demonstrated to the jury the before and after effect of the 1972 sawmill
accident because they would have shown that Clayton previously had better mental
capacity. However, Claytons brother, Martin Clayton, testified that Clayton was a good
student and that he was fairly smart. See Resp. Ex. A-10 at p. 1518:21-22. Thus, the
fact that Clayton was a good student before the accident was admitted into evidence and
the failure to present cumulative evidence cannot constitute ineffective assistance of
counsel. See Hall v. Luebbers, 296 F.3d 685, 693 (8th Cir. 2002) (We conclude that
failure to present cumulative evidence is neither contrary to nor an unreasonable
application of the governing principles found in Strickland.); Henderson v. Norris, 118
F.3d 1283, 1288 (8th Cir. 1997) (Counsels failure to proffer evidence that was both
inadmissible and cumulative does not constitute ineffective assistance.).
Finally, counsels [decision] to introduce only some of the available evidence on
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a point [does] not, unless deficient in some significant respect, fail the first Strickland
prong. Fretwell, 133 F.3d at 628 (quoting Smith v. Armontrout, 888 F.2d 530, 535 (8th
Cir. 1989)).
2.
Witnesses
Clayton also argues that Rhoades provided ineffective assistance when he failed to
present the testimony of Dorsey, Evans, and Paul to support Claytons diminished
capacity defense.
a.
Arnold Evans
According to Clayton, Arnold Evans, a minister, could have been called at the
guilt phase to testify concerning the changes he saw in Mr. Clayton after the 1972 injury.
This testimony would have had the added benefit of placing evidence of Mr. Claytons
prior good works before the jury at the guilt phase. See Traverse [Doc. # 65] at p. 22.
In his Rule 29.15 Motion, Clayton identified Evans as a witness who could have
presented mitigating evidence during the penalty phase. He never references Evans as a
witness during the guilt phase of the trial, and the Missouri Supreme Courts Order
affirming the denial of Claytons Rule 29.15 Motion only addresses Evans as a mitigation
witness.
To the extent that Clayton now wants this Court to consider Evans as a diminished
capacity witness during the guilt phase, that claim is barred because it was never
presented to the Missouri courts for consideration. See Reese v. Delo, 94 F.3d 1177,
1181-82 (8th Cir. 1996) (en banc) (claim not properly preserved at state level is barred
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from federal habeas review) (citation omitted).

b.
Leslie Paul
Paul is a minister who worked with Clayton and Clayton states that he could have
offered testimony about Claytons diminished capacity and his religious faith. The
Missouri Supreme Court found that Rhoadess failure to call Paul as a witness was not
ineffective assistance because:
When the attorney contacted Paul prior to trial about testifying about
Claytons good traits, Paul told him that he couldnt help him. . . . Here,
Pauls statement gave the attorney reason to believe that he did not want to
testify and that he might offer testimony harmful to Claytons case. The
fact that Paul now claims he only told Claytons attorney he could not help
him because he distrusted the attorney is immaterial. At the time the
attorney made the decision not to call him, he was acting reasonably based
on Pauls statements to him. An attorney is not required to be omniscient
and see the true reasons why a witness does not want to talk to him or
testify.
Clayton, 63 S.W.3d at 208. Clayton concedes that Rhoades contacted Paul and Paul told
Rhoades he could not help him, but Clayton states that it was because Paul had a hearing
difficulty and he ha[d] a bad impression of trial counsel. See Traverse [Doc. # 65] at p.
20. Clayton further states, [w]hile trial counsel is not required to be omniscient, he is
required to have sufficient common sense to make arrangements for a face-to-face
meeting with a potential witness who has a hearing problem. Trial counsels failure to do
this was not reasonably effective assistance of counsel. Id.
The undisputed evidence is that Rhoades contacted Paul and Paul said he couldnt
help [Clayton]. There is no evidence that Rhoades knew that Paul had a hearing
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problem and Paul didnt indicate he was having problems hearing during the
conversation. Clayton has failed to show that the Missouri Supreme Court was
unreasonable when it found that Rhoades was not ineffective for failing to call Paul as a
witness.
c.
Carolyn Dorsey
Dorsey is Claytons sister. Regarding Dorseys testimony about Claytons

diminished capacity during the guilt phase, the Missouri Supreme Court stated:
While Dorsey could have testified about the change in Claytons personality
afer the sawmill accident, the attorney presented other witness [sic] who
testified about the same thing. . . . Also, Dorsey would have provided the
prosecution on cross-examination with the opportunity to show that Clayton
had a violent temper even before his accident, undercutting Claytons
diminished capacity defense.
Clayton takes issue with the Missouri Supreme Courts conclusion that Dorseys
testimony would be cumulative. Dorseys testimony concerning specific instances of
Mr. Claytons conduct which illustrated the changes in Mr. Claytons behavior over the
years was not duplicated by Marvin Clayton or by any other witness. See Traverse
[Doc. # 65] at p. 21. Clayton does not cite to any specific example nor does he outline
what Dorseys testimony would have been.
Absent some evidence that Dorseys testimony was not cumulative, the Court
cannot find that the Missouri Supreme Courts holding is an unreasonable
determination of the facts, because counsels failure to present cumulative evidence does
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not support an ineffective assistance of counsel claim. See Hall, 296 F.3d at 693;
Henderson, 118 F.3d at 1288.
In addition, the Missouri Supreme Court found that if Dorsey were called as a
witness, she would have to reveal on cross examination that Clayton assaulted his high
school principal in 1968 and went to jail, thereby undermining his defense that his violent
predilections began after the sawmill accident in 1972. If Rhoades had permitted this
evidence in, it is likely that Clayton would be claiming that Rhoades rendered ineffective
assistance of counsel by calling Dorsey to the stand. The Missouri Supreme Courts
conclusion on this issue is clearly reasonable.
In support of his claim, Clayton cites Brown v. Sternes, 304 F.3d 677 (7th Cir.
2002), for the proposition that trial counsel is ineffective when counsel decides to pursue
a defense based on mental capacity but then fails to perform an adequate investigation.
Clayton, however, ignores that Rhoades did perform an adequate investigation--he
contacted Paul who indicated he did not want to help and he contacted Dorsey, but opted
not to call her as a witness because of the harmful evidence she would have to reveal.
Rhoades cannot be found ineffective for this trial strategy. Graham v. Dormire, 212 F.3d,
437, 440 (8th Cir. 2000).
The Missouri Supreme Court evaluated Claytons second claim in its entirety and
determined that it lacked merit. This Court cannot reject that determination without some
evidence that the courts presumptively correct factual determinations do not enjoy
support in the record. Whitehead, 340 F.3d at 536. Clayton has not made such a
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showing and his second claim for relief is denied in its entirety.
C.
Claim 3: Ineffective Assistance of Counsel for Failure to Assess

Claytons Competency to Stand Trial
Clayton asserts that Rhoades provided ineffective assistance of counsel when he

failed to have Claytons competency assessed. On this issue, the Missouri Supreme Court
stated:
Claytons attorney was not ineffective for failing to adjudicate his
competency. Counsel has no duty to investigate a clients mental condition
where the client appears to have the present ability to consult rationally with
the attorney and understand the court proceedings. In this case, Claytons
attorney had extensive prior involvement with him before this case ever
arose. From the fact that Clayton was able to intelligently discuss his legal
options with his attorney, and even carry on correspondence with him about
the case, the attorney could reasonably conclude that he was competent to
stand trial.
Clayton argues the Missouri Supreme Courts determination is not reasonable
because Jeff Tichenor (Tichenor), a physicians assistant who treated Clayton from
January through March 1997, advised Rhoades to obtain a psychiatric evaluation for
Clayton. Tichenor testified during the post-conviction hearing that he told Rhoades about
Claytons symptoms, including poor hygiene, agitation, and reports of Clayton smearing
feces on the wall of his cell. See Resp. Ex. G-4 at pp. 521 and 529. Rhoades allegedly
told Tichenor that another inmate had contacted him and told him that Clayton was
sleeping all day and he was heavily sedated. Id. After this was brought to Tichenors
attention, he discovered that Claytons medication dosage had been doubled and he was
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receiving sixteen milligrams per day of Ativan, rather than the prescribed eight
milligrams. Id. at p. 530. On cross-examination, Tichenor admitted that he was not
certified under Missouri law to conduct a psychiatric evaluation, he is not a medical
doctor, and he has no specialized psychological training. Id. at pp. 532-33.
Respondent argues that the Missouri Supreme Courts determination is not
unreasonable because all other signs pointed to Clayton being competent for trial.
Rhoades retained Dr. Bettye Back to conduct a neuropsychological evaluation of Clayton
in June 1997--after Tichenors treatment of Clayton. See Resp. Ex. I at p. 3. Dr. Back is
a clinical psychologist with a specialty in neuropsychology. Id. Although she was not
retained specifically to evaluate Claytons competency, Dr. Back stated that she believed
in June 1997 that Clayton was competent to stand trial and that, had she thought
otherwise, she would have told Rhoades he was not competent. See Resp. Ex. I-1 at pp.
77-78. According to Rhoadess testimony, he asked Dr. Back to let him know if there
was a problem with Claytons competency. See Resp. Ex. G-6 at pp. 891, 967.
Similarly, Claytons first attorney was Berrigan who, at the time, worked in the
Capital Litigation Unit of the Missouri Public Defenders Office. Berrigan was initially
assigned to Claytons case until Clayton opted to retain Rhoades for his trial. See Resp.
Ex. G at p. 635. Berrigan met with Clayton after he was arraigned. According to
Berrigan, Clayton was able to provide him information and communicate with him about
his family. Id. at p. 681. Clayton also expressed an interest in switching judges. Id. at p.
678. Later in the interview, Clayton, himself, asked about obtaining a mental evaluation.
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Id. at p. 683.
Rhoades had previously represented Clayton in a 1992 assault case and Clayton
showed no signs of incompetence during that proceeding. See Resp. Ex. G-6 at p. 929.
Rhoades testified that in 1997 Clayton did not manifest anxiousness and that he had no
more than average problems with his memory. Id. at p. 896. Rhoades also testified that
in preparing for trial, he would discuss case alternatives with Clayton and Clayton would
ask him questions about them. Id. at p. 897. Rhoades and Clayton discussed whether
Clayton wanted to pursue a mental health defense and whether to seek a change of venue.
See Resp. Ex. G-6 at pp. 897, 935. After discussing possible venues, Clayton and
Rhoades agreed that Jasper County would be an acceptable venue. Id. at 936. Rhoades
also testified that he would send materials to Clayton regarding the facts of the case and
they would review them together with Rhoades asking him questions; Rhoades later
testified that Clayton answered every question I asked him. Id. at pp. 939, 943.
Ultimately, Rhoades testified that there were no indicators to suggest that Clayton did not
understand the charges against him or that he was unable to assist Rhoades. Id. at 939.
The testimony of Christine Rhoades, who served as co-counsel in the case,
supports the testimony of Ross Rhoades. She testified that Clayton provided input during
the trial about witnesses, both before and after they testified. See Resp. Ex. G-5 at 815.
She also observed Clayton and her father discuss whether he should testify during the
suppression hearing. Id. at p. 815-16.
The only evidence supporting Claytons claim that Rhoadess conduct fell below
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an acceptable standard of care is Tichenors statement in early 1997 to Rhoades that

Clayton should receive a psychological evaluation. However, the undisputed evidence
reveals that Rhoades adhered to Tichenors advice when he retained Dr. Back to evaluate
Clayton in June 1997. Having received Dr. Backs report about Clayton, with no
indication that he was incompetent to proceed, Rhoades opted not to further explore the
issue. Given that Dr. Back is a clinical psychologist with a specialty in neuropsychology,
while Tichenor is a physicians assistant with no special training in psychology,
Rhoadess decision to give more weight to Dr. Backs opinion is not unreasonable;
particularly, where Rhoades was interacting with Clayton and Rhoades did not perceive
that Clayton was incompetent to stand trial.
Even assuming Clayton can establish that Rhoadess conduct fell below a
reasonable standard, he has not satisfied the prejudice prong of the Strickland analysis
because he has not showed that Clayton was actually incompetent to stand trial. He
points to the testimony of Dr. Foster as evidence of incompetency, but the state courts
rejected that contention. The Court must presume the state courts finding of
competence is correct. Lyons v. Luebbers, 403 F.3d 585, 593 (8th Cir. 2005) (citing
Boyd v. Delo, 999 F.2d 1286, 1289 (8th Cir. 1993); Reynolds v. Norris, 86 F.3d 796, 800
(8th Cir. 1996)).
The Missouri Supreme Court held that:
Clayton has also failed to demonstrate that he was actually incompetent
during his trial. The trial court did not find Dr. Daniel Foster, the only
expert to testify that Clayton was incompetent, credible. . . . In this case, Dr.
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Fosters determination is especially questionable because even though he

said Clayton was incompetent at the time of his trial, he admitted that
Clayton understood the role of the prosecutor, the judge, the juror, and even
his own attorney in the process. He further stated that Clayton knew what
he was charged with, that he was facing the death penalty, and that he was
able to discuss various options with his attorney. Dr. Fosters testimony is
further undermined by the fact he examined Clayton for the first time years
after the original trial occurred.
Clayton, 63 S.W.3d at 209. The Missouri Supreme Court accurately characterized Dr.
Fosters testimony. Dr. Foster examined Clayton three years after his crime, which he
conceded was unusual. See Resp. Ex. G-3 at pp. 420-22. Dr. Foster testified that Clayton
understood the proceedings, the charges against him and that he faced the death penalty,
that he had the right not to testify, and the role of different participants in the trial,
including his attorneys, the prosecutor, the judge, and the jury. Id. at pp. 423; 454-56.
Dr. Foster also testified that Clayton was cooperative with his attorneys and he followed
their advice, but he worried that Clayton was too dependent on his counsel and that was
the basis of his determination that Clayton was not competent to stand trial. Id. at p. 457.
However, he also said that Clayton had a fine relationship with Rhoades. Id.
The Missouri courts decision to give no weight to Dr. Fosters testimony is well
supported by the evidence in the record, and Claytons third claim is denied.
D.
Claim 4: Ineffective Assistance of Counsel for Failure to Present

Insanity Defense at Trial
Clayton asserts that his trial counsel provided ineffective assistance when he failed
to present an insanity defense during the trial. Missouri law authorizes the use of an
insanity defense in Mo. Rev. Stat. 552.030(1), which provides that a defendant is not
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criminally responsible if the defendant was incapable of knowing and appreciating the
nature, quality or wrongfulness of the conduct at issue.
Claytons fourth ground for relief is procedurally barred because he failed to raise
it in either his Rule 29.15 proceeding or on appeal from the Rule 29.15 court. Therefore,
this Court may review the claim only if Clayton can show cause for his procedural default
and actual prejudice. See Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997), cert.
denied, 523 U.S. 1010 (1998); Forest v. Delo, 52 F.3d 716, 720 (8th Cir. 1995).
Clayton argues that his incompetence during the underlying state proceeding
constitutes cause for the procedural defect. Clayton also contends that he was provided
ineffective assistance of counsel during his post-conviction proceedings and that this too
constitutes cause for his procedural default. The Court rejects both arguments.1
1.
Claytons Competency as a Basis for Cause
Clayton is correct that mental incompetence may excuse a habeas petitioners

procedural deficiencies. In Ervin v. Delo, 194 F.3d 908 (8th Cir. 1999), the Eighth
Circuit stated:
[T]he existence of cause for a procedural default must ordinarily turn on
whether the prisoner can show that some objective factor external to the
defense impeded counsels efforts to comply with the States procedural
rule. . . . For mental illness to excuse the procedural bar arising from the
failure to pursue state postconviction remedies, the petitioner must make a
conclusive showing that he or she was incompetent at the time of the post-
Even if Clayton could establish cause, he has still failed to establish prejudice because
there is not sufficient evidence to show that he would be able to establish the requirements of
Mo. Rev. Stat. 552.030(1). See infra discussion of Claim 26.
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conviction proceedings. . . . To be deemed incompetent, the petitioner must

have been suffering from a mental disease, disorder, or defect that may
substantially affect his capacity to appreciate his position and make a
rational choice with respect to continuing or abandoning further litigation.
Id. at 915 (citations omitted). A petitioners incompetence, however, must be
conclusively supported by evidence in the record before it can constitute cause for a
procedural default. See Anderson v. White, 32 F.3d 320, 322 (8th Cir. 1994) (unsupported
allegation of incompetence insufficient); Stanley v. Lockhart, 941 F.2d 707, 710 (8th Cir.
1991) (inconclusive findings of incompetency insufficient).
In Ervin, the petitioner submitted affidavits from his post-conviction counsel and a
licensed psychologist, both of which concluded that his severe depression impeded his
ability to pursue his post-conviction remedies. Nonetheless, the district court denied
Ervins request for a hearing because Ervin had filed a pro se post-conviction motion and
there was no evidence he was unable to consult with his counsel. The Eighth Circuit
affirmed, stating: Because Ervin did not make a sufficient showing of incompetence at
the time of his state-court default, we conclude the district court did not abuse its
discretion in denying an evidentiary hearing. Id. at 916.
Claytons only evidence that he was incompetent at the time of his Rule 29.15
proceeding comes from the testimony of Dr. Daniel Foster. This testimony was given
during Claytons 29.15 hearing before the Circuit Court of Jasper County, and was not
found credible by the Missouri courts. This Court has now reviewed Dr. Fosters
testimony and cannot say that that determination by the Missouri courts was
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unreasonable.
2.
Conduct of Claytons Post-Conviction Counsel as Basis for

Cause
In Reese v. Delo, 94 F.3d 1177, 1182 (8th Cir. 1996), the Eighth Circuit held that
ineffective assistance of counsel during post-conviction proceedings at the state level
cannot be cause for a procedural default. The court stated:
There is no right to counsel in state post-conviction proceedings . . . and
thus a claim that post-conviction appellate counsel was ineffective does not
constitute cause for default.
Id. at 1182 (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991); Lowe-Bey v. Groose,
28 F.3d 816, 819 (8th Cir. 1994)). See also Armstrong v. Iowa, 418 F.3d 924, 927 (8th
Cir. 2005), cert. denied, 126 S. Ct. 1351 (Feb. 21, 2006); Anderson v. Bowersox, 262 F.3d
839, 842 (8th Cir. 2001) (Ineffective assistance of post-conviction counsel cannot be the
basis for federal habeas relief.) (citing Reese, 94 F.3d at 1182). Claytons fourth claim is
denied.
E.

Evidence of Mitigating Brain Injury During Penalty Phase of Trial
Clayton alleges that he was denied effective assistance of counsel during the
penalty phase of his proceedings because his counsel did not present mitigating evidence
regarding his brain injury and its impact on his behavior. For the same reasons that the
Court rejected Claytons fourth claim, it finds that Claytons fifth claim is procedurally
barred. Because Clayton has failed to establish cause for his procedural default,
Claytons fifth ground for relief is denied. Furthermore, even if it were not defaulted, the
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petitioner has failed to establish the prejudice required by Strickland. There clearly was
evidence of Claytons brain injury before the jury when it imposed the death penalty. It
may not have been as well developed as Clayton would now like, but the jury understood
that Clayton had a brain injury that had substantially impacted his life.
F.
Claim 6: Ineffective Assistance of Counsel for Failure to Request Jury

Instruction Regarding Life Imprisonment Without Parole During
Penalty Phase of Trial
penalty phase of his proceedings because his counsel did not request a jury instruction
regarding life imprisonment as an alternative to the death penalty. Respondent contends
that Claytons sixth claim is procedurally barred because he failed to raise it in his appeal
of the circuit courts denial of his Rule 29.15 Motion.
Clayton again states that his attorneys ineffective assistance during the postconviction proceedings constitutes cause for excusing his procedural default. As
previously explained, Clayton has no right to any counsel in a Rule 29.15 proceeding.
Therefore, Claytons sixth ground for relief is procedurally barred.
G.

Mitigating Witness Testimony During Penalty Phase of Trial
Clayton asserts that Rhoades provided ineffective assistance when he failed to call
the following individuals as mitigating witnesses during the penalty phase of the trial:
Paul, Dorsey, Evans, Norma Mitchell (Mitchell), and Delores Williams (Williams).
In evaluating this claim, the Missouri Supreme Court concluded:
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In this case, none of the five witnesses Clayton mentions would have added
anything significant to his case during [the] penalty phase. Much of the
testimony presented by these witnesses would have been needlessly
cumulative . . . . Clayton argues [the witnesses] all should have been called
to testify about his background, his religious faith, his religious ministry to
others, or the change in his personality after the accident. During the
original trial, Claytons two brothers and the chaplain from the county jail
gave similar testimony, although sometimes they relied on different
incidents. Much of the information the witness would have provided was
on Claytons background. There is no requirement that an attorney present
any background information on his client during a capital trials penalty
phase.
Their testimony may well have undercut the defenses argument that
Claytons brain injury and ensuing mental incapacity were mitigating
factors. For example, Dorsey would have testified about Claytons violent
temper as a young man and would have helped the prosecution argue that
Claytons brain injury was not the only reason behind his actions. Paul
would have also testified about how Clayton was still able to do complex
mental tasks after his injury, like preaching in revivals. Because the
testimony of these five witnesses would have added little to Claytons case
and in some ways may have harmed it, his attorney was not ineffective for
failing to call them.
Clayton, 63 S.W.3d at 209-10.
1.
Leslie Paul
For the reasons previously discussed, the Court finds that the Missouri Supreme
was not unreasonable when it concluded that Rhoades was not ineffective because he
chose not to call Paul in the penalty phase.
2.
Carolyn Dorsey
As previously found, Dorseys testimony about Claytons personality before the

sawmill accident was cumulative and would have opened the door to testimony about
Claytons violent tendencies before the accident. Her testimony that the family was
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impoverished and that Claytons dad was hard on him and very strict would have added
little, if anything, to the trial. During the defenses case in chief, Rhoades called
Claytons brother, Marvin, to the stand and he testified, Well, just my Dad was fairly
strict, you know. He wasnt abusive, but he expected us to have manners and, you
know. See Resp. Ex. A-10 at p. 1518. Dorseys testimony would have been that their
father was strict, but not abusive. Her testimony, therefore, is consistent with Marvin
Claytons testimony and would be cumulative.
The Missouri Supreme Court was not unreasonable when it found Dorseys
testimony cumulative and unhelpful.
3.
Arnold Evans
In his Petition, Clayton states that Evans is a pastor who met Clayton through
religious activities and that, Had he been called as a penalty phase witness, Mr. Evans
would have testified that if Mr. Clayton were incarcerated for the remainder of his life, he
would have had things to offer the prison community. Mr. Evans believed that Mr.
Clayton could use his musical talent in prison and help others. See Petition [Doc. # 46]
at p. 35. Clayton also argues that Evans would have presented evidence about the change
in Claytons demeanor after the sawmill accident. Id.
During the penalty phase, the prison chaplain, Thora Shaw (Shaw) testified that
Clayton ministered to other inmates and that he would be a benefit to other persons in
prison, including both guards and inmates. Shaw testified that Clayton shared his Bible
with other inmates and that he used his singing talents in the prison. See Resp. Ex. A-12
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at pp. 1808-11. Claytons brother, Jerry Clayton, testified that Clayton participated in
religious activities and he was a God-fearing man. Id. at p. 1798. Marvin Clayton
testified that Clayton suffered memory loss, a lack of patience, a worsened temper, and a
loss of self respect after the accident. Resp. Ex. A-10 at pp. 1526-28.
Given this record, the Missouri Supreme Court was not unreasonable when it
found that the testimony of Evans would be needlessly cumulative.
4.
Norma Mitchell and Delores Williams
Mitchell and Williams were Claytons elderly neighbors. According to Clayton,

they would have presented testimony that Clayton was a good neighbor and that he would
occasionally help them with projects at their respective homes. See Petition [Doc. # 46]
at pp. 38-40. They also would have presented testimony regarding Claytons religious
activities. Id.
The neighbors testimony about Claytons religious background would have been
duplicative of the testimony submitted by Shaw during the penalty phase of the hearing.
As to their testimony about Claytons good works and his general congeniality as a
neighbor, there is no evidence that would have swayed the jury, particularly where their
testimony did not go to any of the possible mitigating factors. The jury overwhelmingly
found that Clayton deserved the death penalty because it found the existence of three
aggravating factors. Given the de minimis value of the neighbors testimony, it was
reasonable for the Missouri Supreme Court to find that Rhoades was not ineffective for
failing to call Claytons neighbors.
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Claytons seventh claim is denied.

H.
Claim 8: Ineffective Assistance of Counsel for Failure to Call Carl

Guisendorfer to Testify During Penalty Phase of Trial
penalty phase of his proceedings because his counsel did not call Carl Guisendorfer
(Guisendorfer) to testify. According to Clayton, Guisendorfer was a member of the
same religious congregation as Clayton and he could have provided mitigating testimony
during the penalty phase of the trial. Respondent contends that Claytons eighth claim is
procedurally barred because he failed to raise it in his appeal of the circuit courts denial
of his Rule 29.15 Motion.
Clayton again states that his attorneys ineffective assistance during the postconviction proceedings constitutes cause for his procedural default. Because Clayton is
not entitled to any counsel at his post-conviction proceeding, the performance of his postconviction attorney cannot be cause for his procedural default. Claytons eighth ground
for relief is procedurally barred.
I.
Claim 9: Ineffective Assistance of Counsel for Failure to Object to the

States Closing Argument During Penalty Phase of Trial
penalty phase of his proceedings because his counsel did not object to the States
incorrect and misleading closing argument. This claim is procedurally defaulted because
it was not raised in Claytons appeal of the denial of his Rule 29.15 motion and Clayton
has not established cause for the default. Even if it were preserved, there is no basis for
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finding that the prejudice prong of Strickland has been satisfied. The jury was told it
must consider all mitigating circumstances and the mitigating circumstances were clearly
identified through both the instruction and argument of counsel. Claytons ninth ground
for relief is denied.
J.
Claim 10: Ineffective Assistance of Counsel for Failure to Request Jury

Instruction Regarding Claytons Failure to Testify During Penalty
Phase of Trial
penalty phase of his proceedings because his counsel did not request a jury instruction
that addressed Claytons failure to testify during the penalty phase of his trial. This claim
is procedurally defaulted because it was not raised in Claytons appeal of the Circuit
Courts denial of his Rule 29.15 motion and Clayton has not established cause for the
default. Claytons tenth ground for relief is denied.
K.
Claim 11: Ineffective Assistance of Appellate Counsel for Failure to

Raise Issue of Claytons Competency to Pursue Appeal
appeal of his post-conviction remedies because his counsel did not raise or pursue
Claytons claim of incompetency. The claim is procedurally defaulted because Clayton
failed to raise it in state court. Clayton cannot establish cause for the default because
Clayton has no right to have effective representation in a state post-conviction
proceeding. His eleventh claim for relief is denied.
L.
Claim 12: Ineffective Assistance of Appellate Counsel for Failure to

Raise Claytons Procedurally Barred Claims for Relief
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Clayton alleges that he was denied effective assistance of counsel because his postconviction counsel failed to raise those claims listed above that are procedurally barred.
In support of this claim, Clayton states:
Respondent is correct that granting relief on this claim would not, by itself,
entitle Mr. Clayton to have his conviction set aside. In an abundance of
caution, this claim was included in the petition to make clear that Mr.
Clayton asserts that he has a due process right to full and fair postconviction proceedings, as discussed more fully under Ground 4 above.
Any failure to pursue claims in state post-conviction proceedings, therefore,
should not prevent this court from reviewing those claims if the court finds
that reasonably competent post-conviction counsel would have raised them.
See Traverse [Doc. # 65] at p. 48. Because the Eighth Circuit has held that ineffective
assistance of counsel during state post-conviction proceedings cannot be the basis for
federal habeas relief, Claytons twelfth claim is denied. Clayton has no right to counsel at
the post-conviction stage, so there is no due process right to have effective counsel.
M.
Claim 13: Due Process Challenge Based on Failure of Mitigating Jury

Instruction to List Non-Statutory Mitigating Factors
In his thirteenth claim, Clayton challenges the jury instructions submitted in the
penalty phase of the trial. Specifically, Clayton challenges Instruction No. 19, which
states in its entirety:
If you unanimously find that the facts and circumstances in aggravation of
punishment, taken as a whole, warrant the imposition of a sentence of death
upon the defendant, you must then determine whether there are facts or
circumstances in mitigation of punishment which are sufficient to outweigh
the facts and circumstances in aggravation of punishment. In deciding this
question, you may consider all of the evidence presented in both the guilt
and punishment stages of trial.
As circumstances that may be in mitigation of punishment, you shall
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consider:
1.
Whether the murder of Christopher Castetter was committed while

the defendant was under the influence of extreme mental or
emotional disturbance.
2.
Whether the capacity of the defendant to appreciate the criminality

of his conduct or to conform his conduct to the requirements of law
was substantially impaired.
You shall also consider any other facts or circumstances which you find
from the evidence in mitigation of punishment.
It is not necessary that all jurors agree upon particular facts and
circumstances in mitigation of punishment. If each juror determines that
there are facts or circumstances in mitigation of punishment sufficient to
outweigh the evidence in aggravation of punishment, then you must return a
verdict fixing defendants punishment at imprisonment for life by the
Department of Corrections without eligibility for probation and parole.
See Resp. Ex. B-3 at p. 383.2 Although Clayton does not challenge it, Instruction No. 20
is relevant to the Courts discussion. It states in its entirety:
You are not compelled to fix death as the punishment even if you do not
find the existence of facts and circumstances in mitigation of punishment
sufficient to outweigh the facts and circumstances in aggravation of
punishment. You must consider all the evidence in deciding whether to
assess and declare the punishment at death. Whether that is to be your final
decision rests with you.
Id. at p. 384.
Clayton contends the trial court erred when it gave Instruction 19 and rejected his
proposed jury instruction. The proposed instruction (referred to as Instruction B) is
Instruction No. 19 adheres to the Missouri Approved Instructions. See MAI 313.44A
(3d ed.).
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exactly the same as Instruction 19, except it adds the following two categories of
mitigating circumstances:
3.
Whether the defendant acted under the influence of alcohol or other

intoxicants at the time of the offense.
4.
Whether the defendant had a mental disease or defect at the time of

the offense.
See Resp. Ex. B-3 at p. 389-90.

The Missouri Supreme Court considered Claytons argument on direct appeal and
held:
As his ninth point, Clayton contends that the trial court erred in rejecting his
proposed penalty phase Instruction B. Instruction B included a listing of
statutory and non-statutory mitigating circumstances. Clayton contends the
evidence supported the two non-statutory mitigating factors and that the
denial of the instruction prevented the jury from giving full consideration to
mitigating evidence. Claytons claim has been repeatedly rejected by this
Court. [citations omitted] The jury was given Instruction 19 that included
all the statutory mitigating circumstances to which Clayton was entitled.
Instruction 19 included a catch-all paragraph stating you should also
consider any other facts or circumstances which you find from the evidence
in mitigation of punishment. The trial court did not err in refusing
Claytons Instruction B.
Id. at 478 (internal citations omitted). Clayton contends that the Missouri courts
determination is an unreasonable application of clearly established federal law.
The Eighth Circuit has previously rejected claims almost identical to Claytons. In
Powell v. Bowersox, 112 F.3d 966 (8th Cir. 1997), Powell claimed that the trial court
erred when it refused to instruct the jury to consider in mitigation whether the capacity
of the defendant to appreciate the criminality of his conduct or to conform his conduct to
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the requirements of the law was substantially impaired. Id. at 970. Powell claimed that
the evidence supported the proffered instruction because he was borderline mentally
retarded and he had consumed a large amount of alcohol before the attack. Id.
The Eighth Circuit rejected Powells claim. The court stated:
Two of the instructions that the trial court gave in this case stated that in
determining whether any mitigating circumstance existed the jury could
consider all of the evidence and any circumstances which you find from
the evidence in mitigation of punishment. Two other instructions,
moreover, indicated to the jury that it had to consider all the circumstances
in deciding whether to assess and declare the punishment at death.
***
Evidence relevant to Mr. Powells mental state was presented over the
course of several days. The instructions authorized the jury to weigh all of
the evidence presented during that time, including the evidence that Mr.
Powell complains was precluded from consideration. Although the charge
did not include the instruction at issue, the trial court did direct the jury
consider the totality of the evidence. We conclude that the charge did not
preclude the jury from considering any mitigatory evidence and therefore it
was not unconstitutional.
Id. at 970.
Similarly, in Tokar v. Bowersox, 198 F.3d 1039, (8th Cir. 1999), the Eighth Circuit
found that the trial courts refusal to instruct the jury on any mitigating factors was not
error where the trial courts instructions informed the jury that it may also consider any
circumstances which you find from the evidence in mitigation of punishment. Id. at
1050. The court found the language in the approved instruction . . . adequately covered
the jurys consideration of mitigating evidence and complied with constitutional
requirements for the submission of mitigating circumstances in death penalty cases. Id.
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As in Powell and Tokar, the jury instructions in this case included a catch-all
provision that advised the jury to consider any other facts or circumstances which you
find from the evidence in mitigation of punishment. See Instruction No. 19. Moreover,
Instruction No. 20 included a similar admonition when it stated, You must consider all
the evidence in deciding whether to assess and declare the punishment at death. See
Instruction No. 20. Thus, the jury was twice instructed to consider all the circumstances
presented during both phases of the trial to determine whether the death penalty was
appropriate--not just those mitigating factors specifically delineated in Instruction No. 19.
Eighth Circuit precedent makes it clear that these instructions pass constitutional muster.
Clayton contends, however, that the United States Supreme Court, in Penry v.
Johnson, 532 U.S. 782 (2001) (Penry II), found a similar instruction unconstitutional. In
Penry, the jury was instructed to answer three questions. [T]he jury had to determine
whether Penry acted deliberately when he killed Pamela Carpenter; whether there was a
probability that Penry would be dangerous in the future; and whether Penry acted
unreasonably in response to provocation. Id. at 789. The jury instruction went on to
explain that the jurys answer to these questions should reflect the jurys finding as to
the personal culpability of the defendant. Id. at 789.
You are instructed that when you deliberate on the questions posed . . ., you
are to consider mitigating circumstances, if any, supported by the evidence
presented in both phases of the trial, whether presented by the state or the
defendant. A mitigating circumstance may include, but is not limited to,
any aspect of the defendant's character and record or circumstances of the
crime which you believe could make a death sentence inappropriate in this
case. If you find that there are any mitigating circumstances in this case,
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you must decide how much weight they deserve, if any, and therefore, give
effect and consideration to them in assessing the defendant's personal
culpability at the time you answer the [questions posed]. If you determine,
when giving effect to the mitigating evidence, if any, that a life sentence, as
reflected by a negative finding [on a question posed], rather than a death
sentence, is an appropriate response to the personal culpability of the
defendant, a negative finding should be given to one of the [questions].
Id. at 789-90.
Given the structure of the jury instructions in Penry, the Supreme Court found that
the only way the jury could give full consideration to matters in mitigation would be to
answer the questions posed in the instructions dishonestly. For example, if the jury
believed that Penry acted deliberately, but thought that Penry should receive a life
sentence rather than death because of mitigating circumstances, it would have to answer
no to the question which asked whether Penry acted deliberately. In other words, the
jury could change one or more truthful yes answers to an untruthful no answer in
order to avoid a death sentence for Penry. Id. at 799.
Because the instruction concerning matters in mitigation had no practical effect,
the Supreme Court granted Penrys request for habeas relief. It went on to hold that [a]
clearly drafted catchall instruction on mitigating evidence . . . might have complied with
[the constitution]. Id. at 803. The Supreme Court also strongly suggested that a new
pattern instruction adopted in Texas after Penry was tried, would be sufficient. That
instruction asked the jury [w]hether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant's character and background, and
the personal moral culpability of the defendant, there is a sufficient mitigating
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circumstance or circumstances to warrant that a sentence of life imprisonment rather than

a death sentence be imposed. Penry at 803 (quoting Tex. Code Crim. P. Ann., Art.
37.071(2)(e)(1) (Vernon Supp. 2001).
There is nothing in Penry that would support a finding that Instruction 19 used in
Claytons trial is constitutionally defective. Instruction 19 requires the jury to consider
two specific issues in mitigation but goes on to say that the jury shall also consider any
other facts or circumstances which you find from the evidence in mitigation of
punishment. See Resp. Ex. B-3 at p 383. Instruction 20 then instructs the jury that they
are not required to impose the death penalty even when facts in mitigation do not
outweigh facts in aggravation. You must consider all the evidence in deciding whether
to assess and declare the punishment at death. Whether that is to be your final decision
rests with you. Id. at p. 384. These instructions require the jury to give full
consideration and effect to all issues in mitigation, whether they are specifically listed in
the instructions or not. This point was also made by both the prosecuting attorney and
Claytons attorney during closing argument in the penalty phase of the trial. See Resp.
Ex. A-12 at p 1841, 1849.
The Missouri Supreme Courts determination that the jury was properly instructed
is not contrary to clearly established Federal law. Claytons thirteenth claim for relief
is denied.
N.
Claim 14: Insufficiency of the Evidence to submit Depravity of Mind

Jury Instruction
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Clayton asserts that there is insufficient evidence to support a finding that Clayton
chose his victim at random, therefore, Instruction No. 17 was given in error. He also
claims that it was inconsistent for the jury to find that the murder was random and that the
victim was an on duty police officer. Instruction No. 17 outlined four possible
aggravating factors:
1.
Whether the defendant was convicted of assault in the second degree

on June 15, [illegible handwritten edit] in the Circuit Court of
Lawrence County of the State of Missouri.
2.
Whether Christopher Castetter was a peace officer, and whether that

murder was committed during the exercise of his official duty.
3.
Whether the murder of Christopher Castetter involved depravity of

mind and whether, as a result thereof, the murder was outrageously
and wantonly vile, horrible and inhuman. You can make a finding of
depravity of mind only if you find that the defendants selection of
the person killed was random and without regard to the victims
identity and that defendants killing of Christopher Castetter thereby
exhibited a callous disregard for the sanctity of all human life.
4.
Whether the murder of Christopher Castetter was committed for the purpose
of avoiding the lawful arrest of defendant.
See Resp. Ex. B-3 at p. 380. In its verdict, the jury found the existence of the first three
aggravating factors beyond a reasonable doubt, but not the fourth one. Id. at p. 394.
The Missouri Supreme Court rejected Claytons claim that the second and third
aggravating factors were inconsistent, stating:
Claytons argument is incorrect . . . . Aggravator 2 merely requires a finding
that Deputy Castetter was a peace officer and was killed during the
exercise of his official duty. Nothing within this finding is necessarily
inconsistent with a finding that Castetter was also killed at random and
without regard to his identity. Killing a person merely because that person
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is a law enforcement officer does not negate a finding of randomness,

unless a particular purpose is also found specific to the identity of the
individual victim. Even had the jury also found aggravator 4, which it did
not, the mere fact that Deputy Castetter was killed to avoid Claytons being
arrested by him might have related solely to Castetters duties as a law
enforcement officer and not to his identity as a person.
Clayton, 995 S.W.2d at 483-84.
The Missouri Supreme Courts holding is not contrary to clearly established
federal law. Nor does it involve an unreasonable determination of fact. Aggravator 2
does not require a finding that Clayton killed Castetter because he was a law enforcement
officer--only that Castetter was a police officer and the murder occurred during the
exercise of his official duties. Thus, a jury could find that Clayton killed Castetter
randomly and that Castetter was a police officer on duty, without being logically
inconsistent.
As to Claytons claim that there was insufficient evidence to support the jurys
finding that the murder was random, it appears to be procedurally defaulted. However,
even if preserved, and even if there was insufficient evidence, habeas relief is not
available because the jury found the existence of two other aggravating factors that
warrant the death penalty under Missouri law. The Supreme Court has held in a nonweighing state, so long as the sentencing body finds at least one valid aggravating factor,
the fact that it also finds an invalid aggravating factor does not infect the formal process
of deciding whether death is an appropriate penalty. Stringer v. Black, 503 U.S. 222,
232 (1992).
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The Eighth Circuit has held that Missouri is a non-weighing state where only one
aggravating factor need be present in order to validly impose a death sentence. See
Harris v. Bowersox, 184 F.3d 744, 750 (8th Cir. 1999). See also Ramsey v. Bowersox,
149 F.3d 749, 754-55 (8th Cir. 1998); Sloan v. Delo, 54 F.3d 1371, 1385-86 (8th Cir.
1995). Thus, the existence of two other aggravating factors precludes habeas relief for
Clayton on this claim. Claytons fourteenth claim is denied.
O.
Claim 15: Trial Court Erred When It Overruled Claytons Motion to

Suppress His Statements and Physical Evidence
Clayton alleges that probable cause was lacking for his warrantless arrest on the
night of Castetters murder and that his statements following his arrest should have been
suppressed because of the unlawful arrest.
Clayton raised this issue in his direct appeal to the Missouri Supreme Court. In its
opinion, the court held:
In his second point, Clayton contends the trial court erred by overruling his
motion to suppress evidence. Clayton asserts that his arrest was not
supported by probable cause and that the evidence seized after the arrest
should have been suppressed. The evidence Clayton sought to suppress
included statements Clayton made to [the law enforcement officer], a .38
caliber gun seized from outside the home, a gun holster from inside his
truck, and samples of paint and rust taken from his truck.
***
The record supports a finding that probable cause existed at the time of
Claytons arrest. Deputy Castetter had responded to a dispatch that a blue
Toyota pickup with wooden sides had been parked in Dixie Seals
driveway. Deputies Manning and Bowman also responded to the dispatch.
Upon arriving, they found Deputy Castetters car against a tree and Deputy
Castetter bleeding. Carolyn Leonard, Dixie Seals daughter, advised the
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deputies that Clayton had been there in a blue Toyota pickup with wooden
sides. The dispatcher then advised officers to watch for the vehicle driven
by Clayton and that Deputy Castetter had been injured.
Chief McCracken heard the dispatch and recognized the description of the
vehicle as the same vehicle driven by Clayton earlier in the day when he
had seen Clayton at the Country Corner store. Shortly thereafter Claytons
address was verified and Chiefs McCracken and Clark went to Claytons
home. The officers were familiar with Claytons reputation as a violent
person. The officers arrived at Claytons home just as Clayton pulled into
the driveway. The officers attempted to speak with Clayton, but he acted as
though he could not hear them and refused to walk toward the officers.
Instead he went to the side of his home where it appeared that he placed
something in a stack of cement blocks. Clayton was then restrained. The
passenger in Claytons vehicle advised the officers that Clayton had a gun
in the truck. When the officers did not locate the gun in the truck, they
looked in the stack of cement blocks where they located the gun. Clayton
was then placed under arrest.
Based on these facts, probable cause existed at the time of Claytons arrest.
The trial court did not err in overruling Claytons motion to suppress
evidence.
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that where the
State has provided an opportunity for full and fair litigation of a Fourth Amendment
claim, a state prisoner may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search and seizure was introduced at his trial.
Id. at 494-95. This ruling has been extended by other courts to encompass custodial
statements that were made by the defendant after an arrest. See Larrivee v. MCC, No. 931716, 1993 U.S. App. LEXIS 38072 (1st Cir. 1993); Towne v. Dugger, 899 F.2d 1104
(11th Cir. 1990). Also, the Eighth Circuit has applied Stone when a defendant claims that
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there is no probable cause for arrest. See Carlson v. State of Minnesota, 945 F.2d 1026
(8th Cir. 1991) (relying on Stone to reject petitioners challenge that his arrest lacked
probable cause); Gregory v. Wyrick, 730 F.2d 542 (8th Cir. 1984) (same). Based on the
foregoing, the Court rejects Claytons claim that Stone does not apply to his Fourth
Amendment challenge to his arrest and the statement given thereafter.
Clayton also argues that he did not have a full and fair opportunity to litigate his
claim because the Missouri court willfully misapplied federal constitutional law. See
Traverse [Doc. # 65] at p. 54. In support of his argument, Clayton cites two factually
distinguishable cases: Gamble v. Oklahoma, 583 F.2d 1161, 1165-66 (10th Cir. 1978) and
Herrera v. Lemaster, 225 F.3d 1176, 1178 (10th Cir. 2000), cert. denied 126 S. Ct. 1400
(Feb. 21, 2006).
In Gamble, the state court refused to apply the standards regarding admission of
evidence contained in Brown v. Illinois, 422 U.S. 590 (1975). See Gamble, 583 F.2d at
1165. Indeed, the court applied a standard that had been explicitly rejected by Brown. Id.
Thus, the Tenth Circuit granted habeas relief in light of the state courts direct
contravention of Supreme Court precedent.
In Herrera, the court cited to Gamble and declined to apply Stone preclusion
where the state court failed to consider the evidentiary standard set forth in Chapman v.
California, 386 U.S. 18 (1967). See Herrera, 225 F.3d at 1178.
In the two cases cited by Clayton, the court declined to apply Stone where the state
court was aware of a Supreme Court precedent and, for whatever reason, did not apply it.
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In this case, Clayton states that the Missouri court willfully misapplied federal
constitutional law but he does not identify which concept of federal constitutional law
the Missouri court failed to apply. See Traverse [Doc. # 65] at p. 54. In setting the
standard for probable cause, the Missouri court stated:
Probable cause to arrest exists when the arresting officers knowledge of the
particular facts and circumstances is sufficient to warrant a prudent persons
belief that a suspect has committed an offense . . . . Whether there is
probable cause to arrest depends on the information in the officers
possession prior to the arrest . . . . There is no precise test for determining
whether probable cause existed; rather, it is based on the particular facts and
circumstances of the individual case . . . . Furthermore, probable cause is
determined by the collective knowledge and the facts available to all of the
officers participating in the arrest; the arresting officer does not need to
possess all of the available information.
Clayton, 995 S.W.2d at 477 (internal citations omitted). This standard comports with
federal law as it is interpreted in the Eighth Circuit. See Theriault v. United States, 401
F.2d 79, 81 (8th Cir. 1968) (stating that probable cause exists if the facts and
circumstances known to the officer warrant a prudent man in believing that the offense
has been committed.); United States v. Lugo-Baez, 412 F.2d 435, 438-39 (8th Cir. 1969)
(same). See also United States v. Mendoza, 421 F.3d 663, 667 (8th Cir. 2005) (applying
same standard as Theriault and noting that collective knowledge of officers is sufficient
to establish probable cause) (citations omitted). There is no basis for finding that the
Missouri court willfully misapplied federal constitutional law. Finally, there was ample
evidence of probable cause to arrest Clayton.
The Court rejects Claytons fifteenth claim for relief.
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Claim 16: Trial Court Erred When It Admitted Testimony from

Witnesses that Martha Ball was Afraid of Clayton on the Night of
Castetters Murder
Clayton asserts the trial court violated his constitutional rights when it admitted the
testimony of Martha Ball (Ball), Vicky Deeter (Deeter), and Carolyn Leonard
(Leonard) who all testified that Ball was afraid of Clayton on the night he shot
Castetter.
The Missouri Supreme Court rejected Claytons argument in the direct appeal of
his sentence. It stated:
Clayton contends that the trial court plainly erred by allowing the testimony
of Martha Ball, Vicky Deeter, and Carolyn Leonard that Martha Ball was
afraid of Clayton on the night of November 27, 1996. Clayton contends
that the testimony suggested that he had a propensity to do things that were
bad, violent, or fearsome and may have suggested to the jury that Clayton
was involved in other crimes. Martha Ball testified, I was scared; he
pushed me one time, and he had been drinking, so I didnt want to go with
him. She also stated that she did not want to go back to her mothers home
because I was afraid. Vicky Deeter testified that when Martha arrived at
her home on the evening of November 27, she was very shook up, white as
a sheet and scared. She was pretty scared. She also stated that Martha
was shaking from head to toe. She had to sit down for a while before I
could get her to talk. Like I said, she was just as pale as you could get.
Lastly, Carolyn Leonard testified that Martha was scared and she knew
that Martha was scared because she told me she couldnt come home.
The evidence presented through Ball, Deeter, and Leonard cannot be
characterized as clear evidence associating Clayton with other crimes. . . .
Rather, this testimony provided a complete and coherent picture of the
crime charged. . . . The testimony in question also cannot be held to have
had a decisive effect on the jury, especially when coupled with Balls
testimony that she still loves Clayton and has been to visit him since his
arrest. Clayton has not established that manifest injustice or a miscarriage
of justice resulted from the admission of this evidence.
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Clayton, 995 S.W.2d at 481 (internal citations omitted).

Because the Missouri Supreme Court reviewed the claim for plain error, this Court
must as well. Graham v. Dormire, 212 F.3d 437, 439 (8th Cir. 2000) (Because state
courts reviewed Grahams contentions concerning the prosecutors closing argument
solely for plain error, so also do we.) (citing Kilmartin v. Dormire, 161 F.3d 1125, 1127
(8th Cir. 1998)). Under that standard of review, habeas relief will not be granted unless
manifest injustice resulted from a violation of due process. Thomas v. Bowersox, 208
F.3d 699, 701 (8th Cir. 2000). The evidentiary error must fatally infect the trial. See
Bounds v. Delo, 151 F.3d 1116, 1119 (8th Cir. 1998).
Clayton argues that the improperly admitted testimony was tantamount to
allegations of uncharged misconduct. The closest testimony to that effect was Balls one
statement that Clayton had pushed her. This was an isolated reference that was well short
of totally infecting the trial. Bounds, 151 F.3d at 1119. The remaining evidence merely
related that Ball was frightened the evening of Castetters murder, and there were only a
few questions in the record to that effect. Given the overwhelming evidence against
Clayton, and the fact that Ball testified she still loved him despite her fear on the evening
at issue, the Court cannot conclude that the testimony fatally infected the trial and
deprived Clayton of due process. It is not reasonable to speculate that, but for this
evidence, the jury would not have sentenced Clayton to death because, even if
characterized as domestic abuse, this evidence pales in comparison to the fact that
Clayton killed a police officer. Claytons sixteenth claim for relief is denied.
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Claim 17: Trial Court Erred When It Admitted Testimony of William

Rogers and Robert Compton that Clayton Had Made Threats of
Violence
Clayton contends the trial court erred when it admitted the testimony of his
cellmates about their jailhouse conversations regarding law enforcement. The Missouri
Supreme Court rejected Claytons claim, stating:
Clayton contends the trial court plainly erred by allowing the testimony of
his jail-mates, William Rogers and Robert Compton, regarding Claytons
statements to them about the offense and about shooting the jail guards. He
contends that their testimony provides evidence of other crimes and bad
acts.
William Rogers testified that Clayton talked about his inability to obtain
bond, that he wanted to get out, escape, and that he talked with Rogers
about escaping. Rogers also testified that Clayton told him about shooting
the officer, that [Clayton] walked right up to the door of the police car and
shot him and that [Clayton] took his .38 and walked right up to the car
and shot him before the other guy had a chance.
Robert Compton also testified that Clayton had talked with him about the
shooting. Compton testified that:
He had told me he had shot the -- Barry County Officer.
***
He told me he had shot him through the window of his -- police car.
***
He told me it was either him or the officer, he believed that the
officer was going to shoot him, and - he said the officer pulled up
and he had to make a choice then. He had a pistol behind his back
and he said that he just shot the cop before the cop would shoot him,
and then he just made gestures, you know, acting like he had a gun in
his hand.
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***
He didnt tell me whether he knew him or not. He told me that the
officer deserved it, that he had been harassing a lot of people, and he
said somebody should have shot him before.
Compton also testified about Claytons dislike of the other officers and jail
guards.
Q:
Did the defendant ever say anything about any other officers?
A:
Uh, just the officers that arrested him. His first thought was
to shoot them too and go ahead and get out of state at that
time. And the officers at Lawrence County Jail.
Compton testified that Clayton wanted to escape and had attempted to

unlock the turnkey with a piece of metal, that he wanted Comptons
assistance in getting out of the country, and that Clayton stated that the jail
guards deserved to, you know, have it done to them too.
Claytons statements concerning Deputy Castetter are admissions of the
crime and admissible without question. These statements have nothing to
do with other crimes or uncharged bad acts.
The evidence regarding talk of escape was relevant in that it tended to show
a consciousness of guilt.
Likewise, evidence regarding Claytons dislike of the jail guards and law
enforcement officers does not necessarily constitute evidence of another
crime. This testimonial evidence was relevant to establish Claytons motive
in shooting Officer Castetter. The states theory of motive was that Clayton
had a problem with law enforcement officers in general and that he shot
Officer Castetter to avoid arrest and revocation of his probation.
Clayton, 995 S.W.2d at 481-82. It does not appear that Clayton challenges the testimony
regarding the murder of Castetter. Instead Clayton argues that the evidence regarding
other law enforcement officers constituted nothing more than the admission of bad
character evidence in an attempt to prove Claytons propensity to commit this crime.
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See Traverse [Doc. # 65] at p. 58.

Clayton can be successful on this claim only if the evidence regarding other law
enforcement officers was so conspicuously prejudicial or of such magnitude as to fatally
infect the trial and deprive the defendant of due process. Bounds, 151 F.3d at 1119. It
was not, and in fact the Missouri Supreme Court accurately explained why the evidence
was admissible. Furthermore, given the overwhelming evidence against Clayton, there is
no basis for finding that the evidence infected the trial and deprived Clayton of due
process. Bounds, 151 F.3d at 1119.
R.
Claim 18: Trial Court Erred When It Admitted Photograph of Victim

from Claytons Prior Assault Charge
Clayton argues that his constitutional rights were violated when, during the penalty
phase of his trial, the trial court admitted a blown-up photograph of the victim from
Claytons earlier assault conviction. The Missouri Supreme Court considered the
argument and held:
As his sixth point, Clayton contends that the trial court erred by admitting a
photograph of . . . the victim of a 1991 assault committed by Clayton, at
penalty phase. Clayton contends that the photograph was not indicative of
the nature and extent of [the victim]s injuries and was prejudicial. The
photograph depicts [the victim]s face and shirt covered with blood.
***
The trial court did not err in admitting the photograph of [the victim] into
evidence. Officer Jerry Paul testified that he investigated the assault and
that the photograph was a fair and accurate representation of [the victim]
immediately following the assault. He testified that [the victim] suffered
only a bloody nose from the assault and incurred no broken bones. Defense
counsel read a stipulation that [the victim]s actual injuries consisted of
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bruising and a cut on his nose.

Clayton, 995 S.W.2d at 477-78. Clayton now argues that the photograph exaggerated
[the victims injuries] and impermissibly inflamed the jury. See Traverse [Doc. # 65] at
p. 59.
Even if the victims photograph did not accurately portray the victims injuries,
any defect was cured by the testimony of Paul who indicated that the victim suffered only
a bloody nose and did not suffer from any broken bones. Moreover, the stipulation read
by Claytons counsel about the extent of the injuries also remedied any misleading
conclusions that could be drawn from the picture. Because the testimony and the parties
stipulation minimized the inflammatory nature of the photograph, the Court declines to
find that the photograph alone was so conspicuously prejudicial or of such magnitude as
to fatally infect the trial and deprive the defendant of due process. Bounds, 151 F.3d at
1119.
S.
Claim 19: Due Process Challenge Based on Insufficient Evidence to

Support Jury Finding that Clayton Acted with Depravity of Mind
In his nineteenth claim for relief, Clayton asserts that he was denied due process
because there was insufficient evidence to support the finding that he randomly killed
Castetter. As the Court has previously found, even if there was insufficient evidence to
submit Depravity of Mind as an aggravating factor, it constituted harmless error
because the jury found two other valid aggravating factors, one of which is
irrefutableCastetter was a police officer and he was on duty when he was killed. See
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Stringer v. Black, 503 U.S. 222, 223 (1992); Harris v. Bowersox, 184 F.3d 744, 750 (8th
Cir. 1999).
T.
Claim 20: Due Process Challenge Based on the States Referral to

Claytons Evidence as Voodoo
Clayton argues that he was deprived of his constitutional rights when the
prosecuting attorney referred to Claytons mental competency evidence as voodoo and
called it an excuse. See Traverse [Doc. # 65] at p. 60. The Missouri Supreme Court
summarily rejected Claytons assertion. Clayton, 995 S.W.2d at 480. The prosecutors
entire statement at issue is as follows:
And in the face of all this, were told that the defendant couldnt deliberate.
Were told that by, well, Dr. Betty [sic] Back. And Ill talk about her a little
bit more.
But, folks, I think she said something, and you notice that she didnt want to
deal with the facts surrounding this incident, did she? She wanted to deal
with her nice little computer tests. She wanted to deal with her nice clean
little numbers. This isnt clean; its murder. Its dirty and its ugly, and if
you dont look at the facts, you dont know what happened.
So he couldnt plan. Well, maam, we pointed out to her, not only could he
plan, he did plan.
Well, he didnt plan in a socially acceptable manner. Well, Ive never
met a criminal who did. That is not only unlikely, its preposterous. Its
absolutely preposterous.
Well, they dont have very good judgment. Well, as far as Im concerned
somebody who buys a Toyota doesnt have very good judgment because I
dont like Toyotas. That doesnt mean theres anything wrong with their
ability to reason. Folks, its voodoo, thats all it is. Its an excuse.
See Resp. Ex. A-11 at pp. 1648-49.
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In evaluating claimed prejudice based on a prosecutors closing argument, courts

look to whether the comment in dispute by itself so infected the trial with unfairness as
to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo,
416 U.S. 637, 642-43 (1974); Darden v. Wainwright, 477 U.S. 168, 180-82 (1986). To
establish a constitutional deprivation, It is not enough that the prosecutors remarks were
undesirable or even universally condemned. Darden, 477 U.S. at 181. Examples of
prosecutorial comments that might lead to a constitutional deprivation include, but are not
limited to, comments that manipulate or misstate the evidence or those that implicate
other specific rights of the accused such as the right to counsel or the right to remain
silent. Id.
Clayton cites Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999), and Gall v. Parker, 231
F.3d 265 (6th Cir. 2000), to show that his prosecutors comments deprived him of his
constitutional rights. In Shurn, The prosecutor emphasized his position of authority and
expressed his personal opinion about the propriety of the death sentence. He attempted to
link Shurn with Charles Manson, a well-known mass murderer. He appealed to the
jurors fears and emotions and told them to kill Shurn. Shurn, 177 F.3d at 667. The
court found that the closing was filled with improper statements and it was obviously
improper and prejudicial. Id.
In Gall, the prosecutor expressed his personal opinion about the defendants
culpability and the credibility of the expert witnesses, including comments about the
prosecutors expert witness such as, I have known him for a long time and I know he is a
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fine man. Gall, 231 F.3d at 312. The prosecutor also blatantly mischaracterized the
expert witness testimony in the case. Id. He openly mocked all the insanity defense
witnesses, and the prosecutor noted that Gall was calm during the trial, which must lead
to a finding that he was sane and lucid at the time of the murder. Finally, he implored the
jury not to be hoodwinked into believing an insanity defense and pointed to the
smoking gun that was part of his case. Id.
In Claytons case, the prosecutor used terms such as absolutely preposterous
voodoo and an excuse to characterize Claytons mental incompetency defense. See
Resp. Ex. A-11 at pp. 1648-49. While this Court would not have permitted such
statements, it cannot say that the Supreme Court was unreasonable when it summarily
rejected Claytons claim. The prosecutors statements in Claytons case were isolated in
nature and substantially less inflammatory than the prosecutors statements in Gall. The
Court cannot say that Claytons prosecutors statement so infected the trial with
unfairness as to make the resulting conviction a denial of due process. Donnelly v.
DeChristoforo, 416 U.S. 637, 642-43 (1974), nor that the decision by the Missouri
Supreme Court to reject Claytons claim was unreasonable.
U.
Claim 21: Due Process Challenge Based on the States Closing

Argument During the Penalty Phase
Clayton argues he suffered a constitutional violation when, at the close of the

penalty phase, the prosecutor (1) argued that Clayton planned to commit other crimes the
night that he killed Castetter, (2) referred to his experience as a soldier; (3) argued that
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Rhoades had implied there was something wrong with the jury if they returned a death
sentence; and (4) stated that Clayton had received the benefit of legal niceties that were
not available to Castetter.
1.
Claytons alleged plan to commit other crimes
To support his contention that Clayton shot Castetter for the purpose of avoiding
arrest, the prosecutor stated:
And for whether the murder of Christopher Castetter was committed for the
purpose of avoiding lawful arrest. Well, what do we know?
We know that the defendant was on probation. We know he faced,
therefore, a prison sentence if that probation was violated.
We know that possession of a gun violated that probation, and we know that
drinking alcohol violated that probation.
And certainly if he intended some ill toward anyone else, which well may
have been his intent at Dixie Seals drive after the argument he had with
Martha Ball, that would have broken the law as well.
See Resp. Ex. A-12 at pp. 1838-39. Clayton contends that the last paragraph violated his
constitutional rights because it suggested to the jury that Clayton intended to harm other
people besides Castetter that evening. The Missouri Supreme Court rejected Claytons
contention and held:
During closing argument, a prosecutor is entitled to make reasonable
inferences from the evidence. While the prosecutors statement may have
suggested that Clayton went to Dixie Seals home to commit other crimes,
the statement can reasonably be inferred from the evidence presented in the
case.
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The record shows that Clayton arrived at Seals home with a loaded handgun,
Clayton had been arguing with Ball--Seals daughter--earlier in the day and Ball was
staying at Seals home. Clayton sat in a parked car at the end of Seals driveway drinking
beer alone rather than approaching the home. Given these undisputed facts, the Missouri
Supreme Courts determination that the prosecutor could argue the inference that Clayton
arrived at Balls home with the intent to commit some other crime is not an unreasonable
determination of the facts or an unreasonable application of federal law.
2.
Prosecutor referred to himself as a soldier
The prosecutors statement at issue is:

Me, having been a soldier, I guess I can imagine reasons why a person
would kill. I dont understand killing a police officer. If youll kill a police
officer, you would kill anyone. That is a figure of authority.
See Resp. Ex. A-12 at p. 1840. The Missouri Supreme Court summarily rejected
Claytons claim because: Taken in context, this statement was made by the prosecutor
while encouraging the jury to assess the most severe penalty, the death penalty. Urging a
jury to impose the most severe penalty is proper argument. Clayton, 995 S.W.2d at 480
(citations omitted).
Again, Clayton directs the Court to Shurn and Gall. In Gall, the prosecutor
interjected his personal beliefs into the case, but those beliefs went to the credibility of the
key witnesses in the case. The court acknowledged as much when it stated, throughout
his closing argument the prosecutor improperly expressed his personal belief about
critical matters before the jury. Gall, 231 F.3d at 312 (emphasis added). In Claytons
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case, the prosecutors comment about formerly being a soldier and not being able to
understand how someone could kill an officer did not go to a credibility determination;
the comment was isolated and there is no basis for concluding that in the absence of these
statements, the jury would have rejected the death penalty.
In Shurn, the prosecutor identified himself as the top law enforcement officer in
this county as a way to demonstrate his authority in asking for the death penalty. Shurn,
177 F.3d at 666. In this case, the prosecutors passing reference to his former service as a
soldier does not carry the same weight because his reference was in the past tense and it
did not contain the same nexus between his position of authority and the case before the
jury. Moreover, the prosecutor in Shurn committed a long litany of errors, in that, The
prosecutor emphasized his position of authority and expressed his personal opinion on the
propriety of the death sentence. He attempted to link Shurn with Charles Manson, a wellknown mass murderer. He appealed to the jurors fears and emotions and told them to
kill Shurn. Shurn, 177 F.3d at 667. The concurring opinion to Shurn characterized the
prosecutors closing argument as an appeal to blood lust and mob justice rather than a
call for the jury to return a sentence of death after a calm, reasoned deliberation. Id. at
668 (Wollman, J. concurring).
A contextual reading of the prosecutors closing argument in Claytons case
demonstrates that he walked the jury through the penalty phase jury instructions and
explained them to the jury. See Resp. Ex. A-12 at pp. 1834-42. Just a few lines after his
soldier comment, the prosecutor came to Instruction No. 19, which dealt with
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mitigating circumstances, and stated:

Mitigating circumstances, those are in Instruction 19, by the way, and
please look at them. Those--there are two mitigating circumstances that are
listed there. Now, thats not all you consider, of course. Please consider all
the evidence. There may be other factors you think are appropriate to
consider.
Id. at p. 1841. Thus, the prosecutors closing argument was not an appeal to blood lust
and mob justice that is comparable to the closing argument that was at issue in Shurn.
Given the record, the Court cannot say that the Missouri Supreme Court made an
unreasonable determination of fact or an unreasonable application of federal law when it
rejected this claim.
3.
Retaliation argument
In his closing argument during the penalty phase, Rhoades stated: I ask you to
impose a sentence of life, and not to impose a sentence of death simply because hes
different or because hes defective. See Resp. Ex. A-12 at 1853. Rhoades also
repeatedly implored the jury to consider the inherent value in Claytons life. Id. In his
rebuttal, the prosecutor stated:
Folks, what were dealing with here is, yes, there is value in human life, and
Christopher Castetters life had value too, a great deal of value. A
suggestion to you that there is something wrong with you issuing a death
sentence where it is called for is preposterous.
Id. at p. 1857. According to Clayton, the statement was improper because, Personal
attacks on defense counsel are beyond the pale of proper argument, whether they are
made in the context of asking for a death sentence or asking for a conviction. See
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Traverse [Doc. # 65] at p. 63.

The Missouri Supreme Court rejected Claytons argument. The court held,
Again, it is proper for a prosecutor to seek and request the most severe penalty. It is also
proper for a prosecutor to retaliate to statements made by defense counsel, even to the
point of characterizing a defense theory as preposterous. Clayton, 995 S.W.2d at 480.
The prosecutors statement cannot be categorized as a personal attack on
Rhoades. The comment was made in response to the substance of Rhoadess argument
that the jury should not punish Clayton because he is different or defective.
Furthermore, even if the statement should have been stricken by the trial judge, it clearly
did not fatally infect the trial. Bounds, 151 F.3d at 1119.
4.
Legal Niceties comment
Finally, Clayton argues he suffered a constitutional deprivation when the

prosecutor said the following:
You cannot be compared to Cecil Clayton. You have done nothing wrong.
Look at all the legal niceties we have danced through to get to the point
where you can make this decision. Those legal niceties were not available
to Christopher Castetter because one man chose to play God.
See Resp. Ex. A-12 at pp. 1857-58. To put this statement into context, the following
paragraph which immediately preceded the statement in dispute must be considered.
Folks, what were dealing with here is, yes, there is value in human life, and
Christopher Castetters life had value too, a great deal of value. A
suggestion to you that there is something wrong with you issuing a death
sentence where it is called for is preposterous.
Id. at p. 1857. Thus, the prosecutors reference to legal niceties is related to his
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argument that it was not wrong for the jury to impose the death penalty.
Clayton argues the statement denigrated the court proceedings and unfairly
punished Clayton for exercising his constitutional right to a trial. He also argues that the
prosecutors statements minimized the jurys responsibility for the sentence. The
Missouri Supreme Court rejected Claytons contention. Clayton, 995 S.W.2d at 480-81.
Clayton directs the Court to Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995), to
support his argument that the comments minimized the jurys responsibility for the
sentence. In Driscoll, the prosecutor told the jury that their decision regarding the death
penalty would be reviewed on appeal to ensure correctness. Id. at 712. He also instructed
them that (1) juries do not sentence defendants to death, and (2) it did not matter whether
the jury sentenced Driscoll to death because the judge could simply overrule the
decision. Id. at 713. In granting habeas relief, the court held:
[The prosecutors comments] fundamentally misrepresented the
significance of the jurys role and responsibility as a capital sentencer and
misled the jury as to the nature of the judges review of its sentencing
determination. . . . The prosecutor essentially told the jury that it could defer
the extremely difficult decision of whether or not Driscoll should be
sentenced to death. As a consequence, the jury made the decision that
Driscoll would be killed without full recognition of the importance and
finality of doing so and, therefore, without affording the decision the full
consideration it required.
Id. at 713 (internal citation omitted). Driscoll is clearly distinguishable from Claytons
case because the prosecutor never attempted to assign the responsibility for imposing the
death penalty to any other party.
To the contrary, the prosecutor stated, The decision you face is difficult. I dont
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pretend it isnt. See Resp. Ex. A-12 at p. 1858. He also stated, Im sure none of you
have asked for this job, okay. I understand that. Youve got a tough decision to make. It
shouldnt be easy. It should be hard. But the simple fact of the matter is we are dealing
here with one of the most extreme circumstances, and that is killing a police officer. Id.
at p. 1857.
There is no basis for finding that the statement about legal niceties punished
Clayton for pursuing his right to trial or inappropriately denigrated the judicial process.
The comment was made in response to Rhoadess suggestion that it would be wrong for
the jury to sentence Clayton to death, and accurately pointed out that Clayton received a
trial but the decedent had no legal process. The statements were in clear rebuttal to
Rhoadess closing argument and not to suggest that Clayton should not have had a trial.
5.
Summary
Clayton has attacked the prosecutors penalty phase closing argument on several
fronts, but the Court does not find that the comments in dispute so infected the trial with
unfairness as to make the resulting conviction a denial of due process. Donnelly, 416
U.S. at 642-43. The Missouri Supreme Court has rejected Claytons arguments in their
entirety and there is no basis for finding that the Missouri courts decision was contrary
to clearly established Federal law or that it suffers from an unreasonable determination
of the facts. Lomholt, 327 F.3d at 751. Accordingly, Claytons twenty-first claim is
denied.
V.
Claim 22: Due Process Challenge Based on the States Closing

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Argument During the Penalty Phase

Clayton also alleges he suffered a constitutional deprivation when the prosecutor
made the following argument during the penalty phase of the trial:
I think counsel said one thing here that is interesting, in that I think it shows
the fallacy of what he has suggested to you. And that is he said the
punishment should fit the criminal. You will find that nowhere in our law,
nowhere in our tradition. Punishment should fit the crime. Thats what
youll find in our law and in our tradition. The focus should not be on the
criminal, but should be on the crime, and I think that is instructive.
See Resp. Ex. A-12 at p. 1854.
Punishment here must fit the crime, and if it doesnt, then it diminishes us
all. We are not here to judge Cecil Clayton as a person, we are here to
punish him for the crime hes committed. There is a difference. The crime
calls for the ultimate penalty, and thats what I ask you for.
Id. at p. 1858. According to Clayton, the prosecutor incorrectly told the jury that the law
does not permit consideration of the defendants individual characteristics, rather the law
only permits consideration of the circumstances of the crime. See Petition [Doc. # 46] at
p. 55. Clayton alleges that the prosecutors argument violated long standing principles
that require the sentencing body to take into account the circumstances of the offense and
the character and propensities of the offender. Id.
The Missouri Supreme Court rejected Claytons claim, stating: The prosecutors
argument that the punishment should fit the crime was retaliation to defense counsels
statement that the punishment should fit the criminal since consideration of both the crime
and the criminal is required to determine the appropriate sentence. Clayton, 995 S.W.2d
at 479.
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In support of his argument, Clayton directs the Court to Romine v. Head, 253 F.3d
1349 (11th Cir. 2001), but it is inapplicable. In Romine, the defendant was on trial for
murdering his parents. During the penalty phase, the prosecutor quoted specific
scriptures from the Bible and the Fifth Commandment to suggest that a higher authority
required that Romine be sentenced to death. The prosecutor also advised the jury, You
may want to pray about that and be sure youre doing the right thing and ask for
guidance. Id. at 1361. In Romine, there was evidence that the prosecutors argument
influenced the process because one of the jurors consulted the Bible during the
deliberations and two of the jurors discussed the passages cited by the prosecutor. Id. at
1362-63.
The Eleventh Circuit condemned the prosecutors closing argument and granted
habeas relief.
[A] prosecutor misleads a capital sentencing jury when he quotes scripture
as higher authority for the proposition that death should be mandatory for
anyone who murders his parents. And that is what the prosecutor argued to
the jury: In the Bible God said that anyone who kills his parents should be
put to death, no ifs, ands, or buts about it. That may or may not be
Biblical law, but it is not post-Furman capital punishment law.
Id. at 1368. By eliminating the consideration of mercy or some other mitigating factor,
the prosecutors closing was improper. Id.
Claytons counsel did not instruct the jury to disregard the mitigating factors which
were argued by Rhoades. The prosecutor did argue that the mitigating factors did not
justify a life sentence. For example, immediately after the prosecutor made the statement
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at issue, he discussed Claytons functioning abilities of a fifth-grader and how that should
not be a factor in deciding whether to impose the death penalty. See Resp. Ex. A-12 at p.
1854. That does not mean that he asked the jury to ignore the factor. To reject it, the jury
had to consider it. Claytons argument also ignores the prosecutors directive to the jury
to consider the mitigating circumstances set forth in Instruction No. 19. Id. at p. 1841.
Additionally, the jury was properly instructed on the law in writing. Instruction
No. 19 clearly instructs the jury to consider Claytons mitigating factors, and Instruction
No. 20 similarly instructs the jury that it does not have to impose death, even if the
aggravating factors outweigh the mitigating factors. Given those safeguards, the
prosecutors comment did not so infect[] the trial with unfairness as to make the
resulting conviction a denial of due process. Donnelly, 416 U.S. at 642-43.
W.
Claim 23: Due Process Challenge Based on Trial Courts Grant of the
States Motion to Strike Venirepersons Lonnie Houston and Amy
Kingry
According to the record, the trial court struck venirepersons Lonnie Houston
(Houston) and Amy Kingry (Kingry) for cause because Houston and Kingry
vacillated and expressed doubt about their ability to impose the death penalty. In
Wainwright v. Witt, 469 U.S. 412 (1985), the Supreme Court held that a juror in a capital
case could be stricken for cause if the jurors philosophy would prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions and his
oath. Id. at 424-25. The United States Supreme Court said:
[T]his standard likewise does not require that a jurors bias be proved with
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unmistakable clarity. This is because determinations of juror bias cannot

be reduced to question-and-answer sessions which obtain results in the
manner of a catechism. What common sense should have realized
experience has proved: many veniremen simply cannot be asked enough
questions to reach the point where their bias has been made unmistakably
clear; these veniremen may not know how they will react when faced with
imposing the death sentence, or may be unable to articulate, or may wish to
hide their true feelings. Despite this lack of clarity in the printed record,
however, there will be situations where the trial judge is left with the
definite impression that a prospective juror would be unable to faithfully
and impartially apply the law. . . . [T]his is why deference must be paid to
the trial judge who sees and hears the juror.
Id.
Where a state court has determined that a venireperson cannot satisfactorily serve
on a capital jury, federal courts apply a presumption of correctness to the state courts
finding of fact. 28 U.S.C. 2254(e)(1)). Habeas courts defer to the trial judges
decisions regarding bias because the judges predominant function in determining juror
bias involves credibility findings whose basis cannot be easily discerned from an
appellate record. Kinder v. Bowersox, 272 F.3d 532, 543 (8th Cir. 2001) (citation
omitted).
1.
Houston
During the jury selection colloquy, Houston stated he was unsure whether he
could vote for the death penalty, but that he could do so in extreme cases only.
Clayton, 995 S.W.2d at 475. He further testified that he could sign a death verdict, but
only in some extreme case and he could hardly imagine it. Id. Houston also
testified:
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I read the book Dead Man Walking this nun wrote down in Louisiana.
And shes kind of convincing, if you understand. Well, the death penalty is
just dished out to poor people, minorities, such as that, and it costs the state
so much more money to put somebody to death than to hold them. Thats Shes kind of convinced me of her thinking on that. Thats how I feel.
Id. In evaluating the states motion to strike Houston for cause based on his inability to
apply the death penalty but for extreme cases, the state trial court said:
And the Court in observing Mr. Houston, I think it started out he could
consider. When it got down to those, I heard things like: not sure, hesitant,
maybe in extreme cases, might be possible case. And Ill have to say, in
looking at his demeanor and way he was hesitant, he took his glasses off
several times, Ill have to say that the Courts impression in considering all
of those, I believe under Witherspoon and Witt, that I just think it would
prevent him or substantially impair his performance. You know, I have the
impression hes unable to faithfully and impartially apply the law in this
case.
Id. at 476. The Missouri Supreme Court upheld the trial judges finding and stated:
The record supports the trial courts ruling. The totality of Houstons
statements provided a basis for the trial court to conclude that Houstons
views on the death penalty would substantially impair his ability to follow
the courts instructions.
Id. at 476.
Clayton has failed to rebut, or even call into question, the presumption that the
state courts correctly found that Houston was biased. There is ample justification for the
state courts determination.
2.
Kingry
As to Kingry, the Missouri Supreme Court said:

During the states voir dire, venireperson Kingry expressed doubt that she
could vote for the death penalty. She vacillated under questioning by the
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prosecution, then the defense, as to whether she could follow the law in a
capital case. She stated that the only way I could vote for it is if I had no
doubt, you know, in my mind and that she would require the prosecutor to
prove the case beyond all possible doubt before she could consider the
death penalty. When asked if she could sign a death verdict if she were to
serve as the foreperson, she responded no, no. The court sustained the
states motion to strike Ms. Kingry for cause.
Clayton, 995 S.W.2d at 476. Before sustaining the States motion to strike Kingry for
cause, the state trial judge said:
I tell you what, I think Im going to strike for cause, but let me tell you why.
It is - she vacillated. She went back and forth. And I listened. But the
whole thing seems to me is she says - And I think that probably the defense
is correct, I think you rehabilitated her to the point that she says, no, for the
first stage, for guilt or innocence, its - beyond a reasonable doubt is fine.
But if Im going to vote for the death penalty, which is one of the
authorized voting, they would have to - I would have to have no doubt.
And I dont think it requires no doubt. The law requires beyond a
reasonable doubt on even that one. So I think on that, as I have belief in
watching her that - you know, that - I just have - you know, I have an
impression that shed be unable to apply the law in this case when it comes
to second stage in the instruction.
Id.
Clayton has failed to rebut, or even call into question, the presumption that the
state court correctly found that Kingry was biased. There is ample justification for the
state courts determination.
X.
Claim 24: Due Process Challenge Based on the Missouri Supreme

Courts Proportionality Review
Clayton also contends that the Missouri Supreme Courts proportionality review
violates his constitutional rights. The Missouri Supreme Court conducted a
proportionality review in accordance with Mo. Rev. Stat. 565.030(3) and held:
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Lastly, we must determine whether the sentence of death is excessive or

disproportionate. In making this determination, we consider similar cases
where the death penalty was imposed. The death sentence in this case is
neither excessive nor disproportionate to the penalty imposed in similar
cases. This Court has upheld sentences of death where the defendant
commits an execution-style shooting of a defenseless victim. This Court
has also upheld sentences of death in numerous cases involving killings of
peace officers, law enforcement, or corrections officers. In light of the
crime and the strength of the evidence against him, Claytons sentence of
death is not excessive or disproportionate.
Clayton, 995 S.W.2d at 484 (internal citations omitted). Clayton now asserts the
Missouri Supreme Court violated his due process rights because they compared his case
only to other cases where a death sentence was affirmed, thereby improperly skewing the
outcome of the proportionality review.
Because the state of Missouri has created the right of proportionality review for
persons sentenced to death, the Fourteenth Amendment . . . entitles [Petitioner] to
procedures to ensure that the right is not arbitrarily denied. Foster v. Delo, 39 F.3d 873,
882 (8th Cir. 1994). However, the Missouri Supreme Court conducted the relevant
review in this case and concluded that the punishment was not disproportionate to that
imposed for similar crimes in similar cases. Foster, 39 F.3d at 873. This Court cannot
look behind the Missouri Supreme Court's conclusion or consider whether that court
misinterpreted the Missouri statute requiring proportionality reviews. Williams v. Delo,
82 F.3d 781, 785 (8th Cir. 1996) (citing LaRette v. Delo, 44 F.3d 681, 688 (8th Cir.
1995)). Indeed, the Missouri Supreme Court, in State v. Tokar, 918 S.W.2d 753, 773
(Mo. 1996), only looked to cases where the death penalty was affirmed under comparable
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factual circumstances, and the Eighth Circuit did not find that to be a constitutional
violation. See Tokar v. Bowersox, 198 F.3d 1039, 1052 (8th Cir. 1999).
Y.
Claim 25: Due Process Challenge Based on Claytons Incompetency
Clayton alleges that he was denied due process because he was forced to pursue
his trial, appeal, and post-conviction remedies, even though he was incompetent to stand
trial and pursue his post-conviction remedies. Claytons twenty-fifth claim is
procedurally barred because he failed to raise it at any time during the underlying state
proceedings.
Clayton claims that his incompetence constitutes cause for his procedural
default. For the same reasons previously given, this does not constitute cause. The
claim is procedurally barred.
Z.
Claim 26: Due Process Challenge Based on Claytons Asserted

Innocence Because of Lack of Criminal Responsibility
Clayton alleges that he was denied due process because he is actually innocent of
killing Castetter. Based on Mo. Rev. Stat. 552.030(1), Clayton contends that he lacks
criminal responsibility for the murder because of his mental impairments. Claytons
twenty-sixth claim is procedurally barred because he failed to raise it at any time during
the underlying state proceedings, including his direct appeal of his sentence and the Rule
29.15 proceedings. However, actual innocence can excuse a petitioners procedural
default. See Hall v. Luebbers, 296 F.3d 685, 697-98 (8th Cir. 2002) (evidence negating
the element of deliberation can constitute actual innocence and overcome a procedural
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bar) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)).

The first question is whether a mentally impaired defendant is actually innocent or
merely legally innocent. If the latter, procedural default is not excused. Bannister v.
Delo, 100 F.3d 610, 615 (8th Cir. 1996). The Seventh Circuit has found that a person
acquitted by reason of insanity is actually innocent. Britz v. Cowan, 192 F.3d 1101, 1103
(7th Cir. 1999). So has the Third Circuit in In re Minarik, 166 F.3d 591, 607 (3rd Cir.
1999). The Eighth Circuit has held that a petitioner who can demonstrate that a mental
defect negated the petitioners ability to deliberate has also stated a claim of actual
innocence, see Jones v. Delo, 56 F.3d 878, 883 (8th Cir. 1995), and this suggests that the
Eighth Circuit would likewise find that a defendant is actually innocent if he is able to
establish the requirements in Mo. Rev. Stat. 552.030(1). However, the Court need not
resolve the issue, because even if Claytons defense would constitute actual innocence,
Claytons evidence does not show that the requirements of Mo. Rev. Stat. 552.030(1)
have been sufficiently established to justify habeas relief.
In Schlup, the United States Supreme Court held that a claim of actual innocence is
established if the habeas petitioner has new reliable evidence that was not presented at
trial which shows that a constitutional violation has occurred and that it is more likely
than not that no reasonable juror would have convicted him in light of the new evidence.
Schlup, 513 U.S. at 327. The Eighth Circuit has held that evidence is new only if it was
not available at trial and could not have been discovered earlier through the exercise of
due diligence. Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997). Also see
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Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005).

1.
Dr. Foster
Dr. Foster testified at Claytons post-conviction hearing that Clayton had a mental
defect--specifically, dementia, secondary to traumatic injury--at the time of the murder.
Dr. Foster also testified about whether Clayton could deliberate on the evening of
Castetters murder. See Clayton Ex. G-2 at p. 363:
Q.
Are you aware of how Missouri law defines deliberation?
A.
I am.
Q.
Do you have an opinion, as to a reasonable degree of psychological

certainty, as to whether Mr. Claytons mental defect prevented him
from deliberating before he shot Officer Castetter?
A.
I could find no evidence of motive to kill anyone. I could find no

evidence of intent to kill someone. The closest would be some
suicidal ideation, but he still has some strong internalized values
opposing that. In the time that it took for the shooting to actually
occur, I - he had, at least in his recollection to me, all he had was that
startled response blank time. And now, he was on the road driving
out of that driveway, as fast as he could go. I see no, I see no
evidence in his recollection, or of the reports that reviewed, that give
him time for cool, clear reflection, no matter how brief. I see no, no
time for that.
Id. at p. 363:10 to 364:8.

Dr. Fosters testimony regarding Claytons ability to deliberate is, at best,
inconclusive. First, he states that Clayton did not have a motive for killing Castetter,
which is a separate issue from the concept of deliberation. Next, Dr. Foster states that he
does not believe Clayton had time to deliberate, but this is not a matter for expert opinion
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and does not indicate Clayton was incapable of deliberating.

Having reviewed all of Dr. Fosters testimony, the Court believes it is unlikely that
a jury would give it substantial weight. He had no persuasive explanation for his
conclusion that Clayton could not deliberate and it is understandable that the state judge
who heard Claytons Rule 29.15 Motion did not find Dr. Fosters testimony credible. See
More importantly, even if Dr. Foster were a credible witness, his testimony
undermines Claytons claim. Claytons underlying claim is that he was actually innocent
because of a mental disease or defect. Mo. Rev. Stat. 552.030, provides that: [A]
person is not responsible for criminal conduct if, at the time of such conduct, as a result of
mental disease or defect such person was incapable of knowing and appreciating the
nature, quality, or wrongfulness of such persons conduct. Mo. Rev. Stat. 552.030(1).
On cross examination, Dr. Foster testified that Clayton knew his conduct was wrong and
understood the quality and nature of his act. Resp. Ex. G-3 at pp. 464-465.
In addition, at Claytons trial Dr. Back testified that Clayton had the ability to
distinguish between right and wrong. She also gave extensive testimony about his brain
injury and her opinion that Clayton was not capable of deliberation. In short, Claytons
own experts testimony shows that he did not meet the criteria for insanity established in
Mo. Rev. Stat. 552.030(1).
2.
Dr. Merikangas
Clayton also states that the testimony of Dr. James Merikangas will support his
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claim of actual innocence, but he offers no testimony, affidavit or any other evidence
from this doctor. See Petition [Doc. # 46] at p. 29. After an independent review of the
record, the Court has not found any evidence or testimony from Dr. Merikangas at any
stage of this proceeding that would support Claytons claim of actual innocence.
3.
Hearing
Clayton has not offered any evidence to support his claim of actual innocence, but
he states, At an evidentiary hearing, Clayton can present evidence that, absent
constitutional error, it is more likely than not that he would have been acquitted. See
Traverse [Doc. # 65] at p. 68. The Court finds that a hearing is not necessary to evaluate
Claytons claim of actual innocence.
Before a petitioner is entitled to an evidentiary hearing, the petitioner must allege
facts which, if proved, would entitle [the petitioner] to relief. Bowman v. Gammon, 85
F.3d 1339, 1343 (8th Cir. 1996) (internal quotations omitted). In assessing the need for
an evidentiary hearing, a district court must evaluate the probative force of the newly
presented evidence in connection with the evidence of guilt . . . . [T]he court may
consider how the timing of the submission and the likely credibility of the affiants bear on
the probable reliability of that evidence. Barrington v. Norris, 49 F.3d 440, 441-42 (8th
Cir. 1995). A petitioner must present sufficient facts to warrant a hearing and the mere
fact that affidavits are presented does not automatically require [remand for an
evidentiary hearing]. Battle v. Delo, 64 F.3d 347 (8th Cir. 1995), cert. denied, 517 U.S.
1235 (1996)
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In Barrington, the petitioner merely identified a witness and specified what the
witnesss exculpatory evidence would be. Barrington, 49 F.3d at 441. The petitioner did
not present any affidavits nor did she proffer any newly-discovered physical evidence.
The district court refused to hold an evidentiary hearing on the petitioners claim of actual
innocence and the Eighth Circuit affirmed, stating: [W]e do not believe [petitioner] made
a sufficient showing of actual innocence to warrant a hearing on the issue. Considering
her failure to meet this threshold showing, we conclude the district court properly
declined to reach the merits of her petition. Id. at 442.
Like the petitioner in Barrington, Clayton has not offered sufficient evidence that
would justify conducting an evidentiary hearing on his claim of actual innocence.
Furthermore, given the testimony of the two experts that Clayton has already proffered, it
is unlikely that a third would be persuasive.
AA.
Claim 27: Due Process Challenge Based on Claytons Alleged

Retardation When the Death Penalty Was Imposed
Clayton alleges that he was denied due process because he was sentenced to death
even though he was mentally retarded at the time of the offense.
In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held
that executing mentally retarded criminals violates the Eighth Amendments prohibition
of cruel and unusual punishment. While this decision was made after Clayton exhausted
his state remedies, the Court will assume that Atkins is retroactive and will assume that
Claytons procedural default is excused. Nonetheless, Clayton has failed to present
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sufficient evidence that he was mentally retarded at the time of the murder to justify even
a new hearing on the subject.
Under Missouri law, the term mentally retarded:
refer[s] to a condition involving substantial limitations in general
functioning, characterized by significantly subaverage intellectual
functioning with continual extensive related deficits and limitations in two
or more adaptive behaviors such as communication, self-care, home living,
social skills, community use, self-direction, health and safety, functional
academics, leisure and work, which conditions are manifested and
documented before eighteen years of age.
Mo. Rev. Stat. 565.030(6).
In Johnson v. State, 102 S.W.3d 535 (Mo. 2003) (en banc), the Missouri Supreme
Court remanded the issue of mental retardation to the trial court so it could conduct an
evidentiary hearing regarding the petitioners mental capacity. The court noted that there
was substantial evidence that the petitioner suffered from a low IQ and that it had
manifested itself prior to age eighteen. Johnson, 102 S.W.3d at 540-41. On the other
hand, in Taylor v. State, 126 S.W.3d 755 (Mo. 2004) (en banc), the court refused to
remand a petitioners claim of mental retardation for a hearing where the petitioner
failed to present any credible evidence in support of his claim that he was mentally
retarded at the time of the offense. Id. at 763.
Because the current record clearly shows that Clayton was not mentally retarded
under Missouri law at the time he killed Officer Castetter, it is not necessary to remand
this matter to the state court for resolution.
First, Clayton has not presented evidence that any of his symptoms manifested
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before the age of eighteen--a necessary requirement under the statutory definition.
See Mo. Rev. Stat. Mo. Rev. Stat. 565.030(6). Also see Atkins, 536 U.S. at 317
(limiting its holding to mentally retarded individuals who satisfy state standards for
retardation). Indeed, it is clear he is relying on his brain injury to support this retardation
claim, and that did not occur until Clayton was an adult. Second, while he claims that he
functions at a level which, if it were congenital, would be considered mental retardation .
. . by the American Psychiatric Association, see Traverse [Doc. # 65] at p. 69, he cites
no evidence to support that conclusion. Third, the record refutes his claim that at the time
of the murder, or at any time since, he functioned at the level of a mentally retarded
person.
Dr. Back stated that Clayton was not retarded when she evaluated him in 2000.
Resp. Ex. I-1 at pp. 92-93. Dr. Back evaluated Clayton less than one year after he killed
Castetter and his IQ scores placed Clayton within the low average range of intellectual
functioning. In Claytons recent competency assessment at the Medical Center for
Federal Prisoners in Springfield, Missouri, he was administered the CAST-MR, and he
received scores that were consistent with presumed competent individuals without mental
retardation. See F.R. [Doc. # 103] at p. 26, submitted by Dr. Preston in connection with
Claytons Renewed Motion for Stay.
Based on the foregoing, neither a hearing nor a remand of this issue to the
Missouri courts is necessary to resolve Claytons twenty-seventh claim for relief. It is
denied.
80
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Claim 28: Counsel Is Unable to Prepare Other Grounds Because of

Claytons Incompetence
In his twenty-eighth claim, Clayton claims that he is incompetent to proceed, and

his lack of competency has impeded his counsels ability to develop his claims for relief.
For the same reasons discussed by the Court in its Order denying a stay [Doc. # 104],
Claytons twenty-eighth claim is denied.
CC.
Claim 29: The Cumulative Number of Errors Warrant Relief
Clayton alleges that he was denied due process because the cumulative effect of
procedural errors in his case violated his constitutional rights, even if the individual errors
themselves do not rise to the level of a constitutional violation. Claytons twenty-ninth
claim is procedurally barred because he failed to raise it at any time in state court.
Nonetheless, even assuming Claytons claim was not procedurally barred, it would
provide no relief. Under a cumulative error analysis, courts aggregate[] all errors found
to be harmless and analyze[] whether their cumulative effect on the outcome of the trial is
such that collectively they can no longer be determined to be harmless. United States v.
Toles, 297 F.3d 959, 972 (10th Cir. 2002) (quoting United States v. Rivera, 900 F.2d
1462, 1470 (10th Cir. 1990) (en banc)), cert. denied 540 U.S. 1210 (2004). According to
Toles, [O]nly actual errors are considered in determining whether a defendants right to a
fair trial has been violated. Toles, 297 F.3d at 972. The Court has not found actual error
and, therefore, Claytons cumulative error claim must fail.
Even if the court had found actual error, the evidence of Claytons guilt is
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overwhelming. In addition, the jury was given extensive evidence about Claytons brain
injury and still decided to impose the death penalty. Against this backdrop, the Court
cannot say that Claytons right to a fair trial has been impaired. The Court denies
Claytons twenty-ninth claim for relief.
DD.
Claim 30: Clayton Is Incompetent to Be Executed
In this thirtieth and final claim for relief, Clayton asserts that he is incompetent to
be executed under the standard set forth in Ford v. Wainwright, 477 U.S. 399 (1986). His
recent competency examination shows that he is competent to be executed. Claytons
thirtieth claim is denied.
V.
Conclusion
After careful consideration of each of Claytons claims for relief, the Court finds
that habeas relief is not warranted. Accordingly, it is hereby

ORDERED that Claytons Petition for a Writ of Habeas Corpus Pursuant to 28
U.S.C. 2254 in a Capital Case [Doc. # 46] is DENIED.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
DATE: April 27, 2006
Jefferson City, Missouri
82
United States Court of Appeals, Eighth Circuit.

Cecil CLAYTON, Appellant,
v.
Donald P. ROPER, Appellee.
No. 06-3260.
Submitted: Oct. 18, 2007.
Filed: Feb. 1, 2008.
Rehearing and Rehearing En Banc Denied April 8, 2008.
Background: After petitioner's first degree murder conviction and death sentence were affirmed,
995 S.W.2d 468, petitioner sought federal habeas relief. The United States District Court for the
Western District of Missouri, Nanette K. Laughrey, J., 2006 WL 1128803, denied a request for
an evidentiary hearing on petitioner's competence and his habeas petition. Petitioner appealed.
Holdings: The Court of Appeals, Smith, Circuit Judge, held that:
(1) petitioner was competent to proceed with habeas review;
(2) prosecutor's alleged statements during closing and sentencing phases of trial did not violate
due process rights;
(3) jury instructions were not erroneous; and
(4) actual innocence claim was not cognizable.
Affirmed.
Bye, Circuit Judge, filed a concurring opinion.
West Headnotes
[1] Habeas Corpus 197
843
197 Habeas Corpus

197III Jurisdiction, Proceedings, and Relief
197III(D) Review
197III(D)2 Scope and Standards of Review
197k843 k. Discretion of Lower Court. Most Cited Cases
Court of Appeals reviews district court's decision to rule on a claim of incompetency in a habeas
proceeding without holding a hearing for abuse of discretion.
846
197 Habeas Corpus

197III(D) Review

197k846 k. Clear Error. Most Cited Cases
District court's competency determination in a habeas proceeding is a factual finding, so Court of
Appeals reviews determination for clear error.
748
197 Habeas Corpus

197III(C) Proceedings
197III(C)3 Hearing
197k745 Criminal Cases
197k748 k. Mental Competency. Most Cited Cases
District court did not abuse its discretion in denying habeas petitioner a competency hearing;
district court determined that all of the relevant information was before the court, including
extensive medical data and detailed opinions from the doctors who examined petitioner.
742
197 Habeas Corpus

197III(C) Proceedings
197III(C)3 Hearing
197k742 k. Discretion and Necessity in General. Most Cited Cases
The district court has broad discretion to determine when to order a hearing on a matter in a
habeas proceeding.
[5] Mental Health 257A
432
257A Mental Health

257AIV Disabilities and Privileges of Mentally Disordered Persons
257AIV(E) Crimes
257Ak432 k. Mental Disorder at Time of Trial. Most Cited Cases
Petitioner, who sought habeas review of state court conviction for first degree murder, was
competent to proceed with habeas proceedings, notwithstanding the opinion of psychologist on
the staff at United States Medical Center for Federal Prisoners to the contrary, where objective
findings from tests the psychologist performed indicated that petitioner had the ability to
understand the legal proceedings and communicate with counsel provided that his counsel was
patient in eliciting information.
846
197 Habeas Corpus

197III(D) Review
197k846 k. Clear Error. Most Cited Cases
A finding in a habeas proceeding is clearly erroneous when, although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.
625.15
110 Criminal Law

110XX Trial
110XX(A) Preliminary Proceedings
110k623 Separate Trial or Hearing on Issue of Insanity, Incapacity, or Incompetency
110k625.15 k. Evidence. Most Cited Cases
Expert opinion on competency rises no higher than the reasons on which it is based.
883.1
197 Habeas Corpus

197III(E) Costs
197k883 Indigent Petitioners
197k883.1 k. In General. Most Cited Cases
District court did not err in refusing to provide additional funds to repeat medical tests regarding
habeas petitioner's competency to proceed with habeas review; petitioner was evaluated by two
experts, an expert of his choosing and an expert from the Federal Bureau of Prisons, who had
conducted the necessary tests to determine psychological condition, and despite the expenditure
of $7,500, petitioner had offered no report from his chosen physician. Comprehensive Drug
Abuse Prevention and Control Act of 1970, 408(q)(10)(B), 21 U.S.C.(2000 Ed.)
848(q)(10)(B).
842
197 Habeas Corpus

197III(D) Review
197k842 k. Review De Novo. Most Cited Cases
Court of Appeals reviews de novo a district court's denial of a due process claim concerning a
prosecutor's statements at trial. U.S.C.A. Const.Amend. 14.
[10] Constitutional Law 92
4629
92 Constitutional Law
92XXVII Due Process
92XXVII(H) Criminal Law
92XXVII(H)4 Proceedings and Trial
92k4627 Conduct and Comments of Counsel; Argument
92k4629 k. Prosecutor. Most Cited Cases
Constitutional Law 92
4745
92XXVII Due Process
92XXVII(H)6 Judgment and Sentence
92k4741 Capital Punishment; Death Penalty
92k4745 k. Proceedings. Most Cited Cases
Criminal Law 110
2098(4)
110 Criminal Law

110XXXI Counsel
110k2098(4) k. Credibility of Expert Witness. Most Cited Cases
Criminal Law 110
2098(5)
110 Criminal Law

110XXXI Counsel
110k2098(5) k. Credibility of Other Witnesses. Most Cited Cases
(Formerly 110k722.5)
Criminal Law 110
2144
110 Criminal Law

110XXXI Counsel
110k2140 Comments on Character or Conduct
110k2144 k. Comments on Other Misconduct by Accused. Most Cited Cases

(Formerly 110k722.5)
1780(2)

(Formerly 110k720(5), 110k722.5)
Prosecutor's alleged statements during guilt and sentencing phases of defendant's murder trial, in
which death penalty was imposed, did not violate defendant's due process rights; prosecutor had
allegedly disparaged the opinion of one of defendant's mental-health experts, mentioned
defendant's probable intent to commit other crimes, mentioned the prosecutor's time as a soldier,
described the defense argument against the death penalty as preposterous, referred to aspects of
defendant's criminal proceedings as legal niceties, and averred that the punishment should fit the
crime, not the criminal, but trial court adequately instructed the jury, and the factual case against
defendant was otherwise very strong. U.S.C.A. Const.Amend. 14.
2073
110 Criminal Law

110XXXI Counsel
110k2071 Scope of and Effect of Summing Up
110k2073 k. For Prosecution. Most Cited Cases
(Formerly 110k709)
A prosecutor is given wide latitude in making a closing argument.
4629
92XXVII Due Process
92XXVII(H)4 Proceedings and Trial
92k4627 Conduct and Comments of Counsel; Argument
92k4629 k. Prosecutor. Most Cited Cases
If a prosecutor goes too far during closing argument, there may be a violation of the defendant's
rights; such a violation occurs if the prosecutor's comments so infected the trial with unfairness
as to make the resulting conviction a denial of due process. U.S.C.A. Const.Amend. 14.
1162
110 Criminal Law

110XXIV Review
All errors of constitutional dimension do not automatically call for reversal of a criminal
conviction.
1162
110 Criminal Law

110XXIV Review
Court of Appeals will not reverse a criminal conviction unless the constitutional violation at
issue harms the defendant.
4745
92XXVII Due Process
92XXVII(H)6 Judgment and Sentence
92k4741 Capital Punishment; Death Penalty
92k4745 k. Proceedings. Most Cited Cases
1780(3)

350Hk1780(3) k. Instructions. Most Cited Cases
Trial court's jury instructions in defendant's murder trial, which included a depraved-mind or
random killing aggravating factor with a peace-officer aggravating factor, did not constitute
reversible error under the Due Process Clause or the Eighth Amendment prohibition against
cruel and unusual punishment. U.S.C.A. Const.Amends. 8, 14.
1789(9)

350HVIII(G)4 Determination and Disposition
350Hk1789 Review of Proceedings to Impose Death Sentence
350Hk1789(9) k. Harmless and Reversible Error. Most Cited Cases
Even if trial court's instructions in defendant's murder trial, which included a depraved-mind or
random killing aggravating factor with a peace-officer aggravating factor, constituted error under
the Due Process Clause and Eighth Amendment prohibition against cruel and unusual
punishment, such error was harmless, where defendant could not cite any additional facts that
came before the jury based on the inclusion of the random-killing aggravator that could not have
also come in under the peace-officer aggravator. U.S.C.A. Const.Amends. 8, 14.
477
197 Habeas Corpus

197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for Detention in General
197k477 k. Mental Competency; Examination. Most Cited Cases
Petitioner's claim of actual innocence based on his inability to deliberate was not subject to
federal habeas review of defendant's state murder conviction, absent an independent
constitutional violation that occurred in his state criminal proceeding.
*786 Elizabeth Unger Carlyle, argued, Columbus, MS, Susan M. Hunt, Kansas City, MO, on the
brief, for appellant.
Andrew W. Hassell, AAG, argued, Jefferson City, MO, for appellee.
Before BYE, BOWMAN, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Cecil Clayton was convicted of first degree murder in the Circuit Court of Jasper County,
Missouri, and sentenced to death. After Clayton exhausted his state appeals, he petitioned the
appropriate United States district court for a writ of habeas corpus. In his petition Clayton
contended that the State of Missouri violated his due process rights at trial, and he requested an
evidentiary hearing to determine his present competency to proceed further in the habeas appeal
process. Clayton also asserted an actual innocence claim. The district court FN1 denied Clayton's
request for an evidentiary hearing on his competence and his habeas petition. Clayton appeals
each of the court's rulings. We affirm.
FN1. The Honorable Nanette K. Laughrey, United States District Judge for the Western
District of Missouri.
I. Background
Clayton is an inmate at a Missouri prison, having been sentenced to death following his
conviction on one count of first degree murder for the death of Officer Christopher Castetter.
On November 27, 1996, Clayton met his estranged girlfriend, Martha Ball, at a store in Purdy,
Missouri; while at the store, the couple argued loudly. So much so, in fact, that a store employee
called police. After a Purdy police officer arrived at the store, Clayton and Ball left but not
together. After the store dispute, Clayton went to Ball's mother's house in search of Ball.
Concerned, Ball's sister, present at the house, called police and told them that Clayton was
trespassing on their property. Officer Castetter responded to the call, and arrived on the scene in
a marked patrol car. As Officer Castetter began to roll down his driver's side window, Clayton
walked up to the patrol car and shot him in the head at point-blank range. Officer Castetter's car
apparently struck Clayton's truck before striking a tree. Officer Castetter later died from the
gunshot wound at a local hospital.
After the shooting, Clayton visited his friend, Martin Cole. The two rode in Clayton's truck from
Cole's house to Clayton's house. Clayton told Cole that he had shot a policeman. Clayton
described the murder to Cole in detail, including the weapon that was used. Clayton told Cole
that he wanted Cole to be his alibi witness and threatened to kill Cole if he did not cooperate.
The police came to Clayton's home, identified themselves, and ordered Clayton to surrender.
Clayton cursed at the officers and temporarily evaded them while attempting to hide what was
later identified*787 as the murder weapon in a stack of concrete blocks. Clayton eventually
surrendered. While on the way to the police station, Clayton told officers that he had been with a
friend all evening, watching television and drinking beer.
The police investigation, including eyewitness testimony, strongly linked Clayton to the scene of
the crime. Specifically, Clayton was observed at the scene before the shooting and leaving the
scene in his truck. The gun retrieved from Clayton's property matched the murder weapon.
Damage to Clayton's truck matched debris found at the murder scene. Paint on Clayton's truck
was similar to paint observed on Officer Castetter's car. Clayton, nonetheless, insisted during
questioning that he spent the evening with a friend but offered no other details of his evening. A
few months later, while in the county jail, Clayton told his cellmate about the shooting, and
recounted the details of the murder to him.
Clayton was charged with first degree murder. At trial, Clayton presented both a reasonable
doubt and a diminished capacity defense based upon prior brain damage. Witnesses, including
Clayton's brother, testified that Clayton suffered a head injury when he worked at a sawmill. In
that accident, a piece of wood pierced his skull, and destroyed a significant portion of brain
tissue. Clayton called Dr. Michael Morris, a neurologist who testified that Clayton's brain injury
led to a mental defect. During his examination of Clayton, Dr. Morris conducted an MRI, and the
doctor explained to the jury that the MRI showed that Clayton lost just under 8% of his brain in
the sawmill accident. Clayton also called Dr. Betty Black, a clinical psychologist. Dr. Black
testified that Clayton's head injury created dementia and memory problems. Dr. Black concluded
that Clayton's brain injury coupled with his alcohol use prevented Clayton from coolly reflecting,
planning, or controlling his behavior when he is in an aggravated state. Clayton used the
testimony regarding his mental state as evidence of mitigating circumstances at his trial, but he
did not contest his competency to stand trial.
During guilt-phase closing arguments, the prosecution criticized the defense experts' testimony.
When referring to Clayton's mental health expert, the prosecutor said the following:
And in the face of all this, we're told that the defendant couldn't deliberate. We're told that by,
well, Dr. Betty [sic] Back. And I'll talk about her a little bit more. But, folks, I think she said
something, and you notice that she didn't want to deal with the facts surrounding this incident,
did she? She wanted to deal with her nice little computer tests. She wanted to deal with her
nice clean little numbers. This isn't clean; it's murder. It's dirty and it's ugly, and if you don't
look at the facts, you don't know what happened. So he couldn't plan. Well, maam, we pointed
out to her, not only could he plan, he did plan.
Well, he didn't plan in a socially acceptable manner. Well, I've never met a criminal who did.
That is not only unlikely, it's preposterous. It's absolutely preposterous.
Well, they don't have very good judgment. Well, as far as I'm concerned somebody who
buys a Toyota doesn't have very good judgment because I don't like Toyotas. That doesn't
mean there's anything wrong with their ability to reason. Folks, it's voodoo, that's all it is. It's
an excuse.
After hearing all of the evidence and the arguments, the jury returned a verdict of guilty on the
first degree murder charge.
*788 Later, during closing arguments for the penalty phase of the trial, Clayton contended that
the State had not shown that the death penalty was an appropriate punishment for Clayton's
conduct. Clayton argued that in assessing an appropriate penalty, the jury should consider that
the punishment should fit the criminal as well as the crime. When the prosecution presented its
closing, the prosecutor stated, A suggestion to you that there is something wrong with you
issuing a death sentence where it is called for is preposterous. And in rebuttal to the defense
argument that the punishment fit the crime, the prosecutor said that:
The prosecutor also referred to the criminal proceedings as legal niceties that are afforded to
Clayton and that were denied to Officer Castetter because Clayton decided to play God. In his
argument for a sentence of death, the prosecutor stated, Me, having been a soldier, I guess I can
imagine reasons why a person would kill. I don't understand killing a police officer. If you'll kill
a police officer, you would kill anyone. That is a figure of authority. The prosecutor also argued
that the evidence supported an inference that Clayton went to Ball's mother's home to commit
other crimes that night. Clayton did not object to the prosecutor's arguments.
In its instructions to the jury, the court explained that the jury could return a recommendation of
death only after considering whether any of the following statutory aggravating circumstances
existed: (1) whether Clayton had previously been convicted of second degree assault; (2)
whether the murder was committed during the exercise of the victim's official duties as a peace
officer; (3) whether the murder involved depravity of mind and, as a result, was outrageously and
wantonly vile, horrible, and inhuman; (4) whether the murder was committed for the purpose of
avoiding arrest.
Additionally, with respect to aggravating circumstance (3), the jury was told that it could make a
finding that the murder involved depravity of mind only if they determined that the defendant's
selection of the person killed was random and without regard to the victim's identity and that the
defendant's killing of the officer exhibited a callous disregard for the sanctity of all human life.
In his closing, the prosecutor argued that the murder was random. The jury returned a finding
that factors 1, 2, and 3 existed, and, as a result, the jury returned a sentence of death. The trial
court denied Clayton's request for a new trial and accepted the jury's sentencing
recommendation.
Clayton appealed his conviction on several grounds, including challenges to the prosecutor's
comments during the guilt phase and the penalty phase. On direct appeal to the Missouri
Supreme Court, Clayton's conviction and sentence were affirmed. Clayton petitioned the United
States Supreme Court for a writ of certiorari, but his petition was denied. Clayton then exhausted
all available state postconviction remedies. Then, Clayton filed this action seeking relief through
a writ of habeas corpus petition.
In his habeas petition, Clayton argued that he should be granted relief on three grounds: (1) the
prosecutor's statements *789 during the guilt and penalty phases of his trial violated his due
process rights, (2) the jury instructions were defective and violated his due process rights, and (3)
Clayton is actually innocent because he was incapable of deliberating before his actions. In
addition to these constitutional claims, Clayton also asserts that the habeas proceedings should be
stayed because he is presently incompetent to proceed.
Clayton's competency to participate in the proceedings against him first surfaced near the
inception of the state proceedings. While awaiting trial on the murder charge, jail officials
suspected psychosis and doctors prescribed him antipsychotic medication. These officials also
suggested to his attorneys that they conduct a competency evaluation, but no such evaluation was
completed. And, Clayton never raised his competency to stand trial before the State of Missouri.
Clayton did argue that his mental disabilities should be taken into account when assessing the
appropriateness of the death penalty.
Below, in the instant proceeding, Clayton argued that his brain injury impaired his ability to
communicate with counsel, understand the proceedings, and make decisions about the
proceedings rendering him incompetent to proceed. The district court allowed Clayton to retain
an expert to evaluate his competence. Initially, the district court provided $10,000 for an
evaluation of Clayton by Dr. James Merikangas. but this allotment was later reduced to $7500,
representing the maximum the district court could authorize without prior approval by the chief
judge. Dr. Merikangas told Clayton's counsel that MRI and SPECT scans were needed before he
could do a complete evaluation because Clayton's original MRI records had been destroyed.
These additional tests were not done because their cost exceeded the court's $7500 order. Dr.
Merikangas did not submit a written report to the district court.
Clayton was also evaluated by Dr. Lea Ann Preston, a psychologist on the staff at the United
States Medical Center for Federal Prisoners. Clayton was at the facility for seven months. Dr.
Preston issued an extensive report, and concluded that Clayton was not competent to assist his
attorney. In the report she stated:
Mr. Clayton's tangential speech, impaired judgment, and impaired reasoning abilities, will
negatively affect his ability to communicate effectively with his counsel, testify relevantly, and
make rational decisions regarding his habeas proceedings. Consequently, it is my opinion he is
likely not competent to proceed.
The district court denied Clayton's petition for a stay of the proceedings based on his
competence. The district court disagreed with Dr. Preston's conclusion that Clayton was
incompetent and also refused Clayton's petition for a hearing on the matter. Now Clayton appeals
the denial of his petition for relief and maintains that he is presently incompetent to proceed.
II. Discussion
Clayton raises four arguments on appeal: (1) he claims that he has a right not to proceed in
habeas if he is not presently competent, and the district court erred in denying this claim without
holding a hearing to determine whether he is presently competent; (2) Clayton asserts that the
prosecutor violated his due process rights with several comments he made during both the guilt
and penalty phases of Clayton's trial; (3) Clayton challenges the jury instructions as a violation of
the Due Process Clause; and (4) Clayton argues that the district court erred in refusing to grant
him a hearing to determine if he is actually innocent.
*790 A. Clayton's Present Competency
Clayton asserts that the district court erred in denying his competency claim without holding a
hearing and because the court did not provide sufficient funds to pay for an expert. Clayton
asserts that he has presented substantial evidence to prove his incompetence and that he has, in
fact, been incompetent throughout the post-conviction period. Clayton requests that the district
court be ordered to fully fund his competency expert and grant him an evidentiary hearing to
determine whether he is competent. Clayton claims that the court's failure to do so is a violation
of his rights under the Due Process Clause.
[1][2] We review the district court's decision to rule on Clayton's claim without holding a hearing
for abuse of discretion. Osborne v. Purkett, 411 F.3d 911, 915 (8th Cir.2005). The district court's
competency determination is a factual finding, so we review this determination for clear error.
Nooner v. Norris, 402 F.3d 801, 804 (8th Cir.2005).
[3][4] The district court did not abuse its discretion in denying Clayton a competency hearing.
The district court has broad discretion to determine when to order a hearing on a matter in a
habeas proceeding. Osborne, 411 F.3d at 915. Here, the district court determined that a hearing
was unnecessary because all of the relevant information was before the court. Extensive medical
data and detailed opinions from the doctors who examined Clayton were available to the court
when it ruled that Clayton is presently competent to proceed. Further, Clayton does not allege
that any additional evidence would be elicited at a hearing. Under these circumstances, the denial
of a hearing cannot be said to be an abuse of discretion. See Campbell v. Vaughn, 209 F.3d 280,
287 (3rd Cir.2000) (recognizing that when habeas courts exercise their discretion whether to hold
a hearing on a matter, courts focus on whether a new evidentiary hearing would be meaningful,
in that a new hearing would have the potential to advance the petitioner's claim.).
Our cases have not specifically answered the question whether an inmate must be competent to
proceed in a habeas claim. Given the nature of the district court's decision, we do not need to do
so now. Rather than resolve the question whether such a requirement exists, the district court
assumed that competency is required. The court then addressed the level of competency needed
to proceed. According to the district court, to demonstrate competency, it must be shown that
Clayton is able to understand the purpose of the habeas proceeding, ... recall and relate
information relevant to a habeas petition and make limited decisions such as filing or dismissing
his petition. FN2 The district court found Clayton met that standard. We agree.
FN2. We have not yet had the opportunity to state whether competency on the part of the
defendant is required at this level of review, or to set out the appropriate standard to
apply to determine if the defendant is presently competent. Clayton, however, does not
challenge the standard used by the district court; his arguments focus on why this
standard is not met. Therefore, for purposes of this appeal, we assume, without deciding,
that competency is required to proceed in a habeas proceeding and that the district court
applied the appropriate standard. Additionally, we note that the Seventh Circuit has
recently handed down a case regarding the competency requirements of a habeas
defendant, and that circuit's standard is substantially similar to the one applied by the
district court. See Holmes v. Buss, 506 F.3d 576, 580 (7th Cir.2007).
[5][6] The district court's finding that Clayton is competent is not clearly erroneous.*791 A
finding is clearly erroneous' when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has been
committed. United States v. Martinez, 446 F.3d 878, 881 (8th Cir.2006). The district court's
competency finding is adequately supported in the record, Dr. Preston's opinion notwithstanding.
Dr. Preston conducted objective tests that indicated that Clayton has the ability to understand the
legal proceedings and communicate with counsel provided that his counsel is patient in eliciting
information. Further, the court noted, at this stage of his habeas proceedings, Clayton's
participation does not require him to make any major decisions.
[7] Dr. Preston ultimately concluded that Clayton was incompetent, but expert opinion on
competency rises no higher than the reasons on which it is based. Feguer v. United States, 302
F.2d 214, 236 (8th Cir.1962). This does not mean that the district court is free to completely
ignore Dr. Preston's conclusions. See Mason v. United States, 402 F.2d 732, 737 (8th Cir.1968)
(stating that even though expert opinion evidence is generally advisory in nature, it cannot be
arbitrarily ignored.) (quoting Mims v. United States, 375 F.2d 135, 143-44 (5th Cir.1967)).
Here, though, the district court did not arbitrarily discount Dr. Preston's competency opinion.
Rather, the court placed more emphasis on the objective findings from the tests the doctor
performed than on her ultimate conclusion. In reviewing all of the record, we cannot say
definitively that a mistake has been made; therefore, the finding of the district court that Clayton
is competent to proceed in habeas is not clearly erroneous.
[8] Finally, the district court did not err in refusing to provide additional funds for Clayton's
expert. The district court must provide funds to procure a defendant's expert opinion if the court
determines that the services are reasonably necessary and the amount does not exceed $7500. 21
U.S.C. 848(q)(10)(B). Clayton was evaluated by two experts-an expert of his choosing and an
expert from the Federal Bureau of Prisons. The doctors conducted the necessary tests to
determine Clayton's psychological condition. Additional funds were not reasonably necessary to
evaluate his mental competence. The district court did not err in refusing to provide additional
funds for Clayton's expert who wanted them to repeat medical tests that would likely only
confirm an undisputed physical diagnosis of severe brain injury. Despite the expenditure of
$7,500, Clayton offered no report from Dr. Merikangas. We hold that the district court did not
err in declining to grant additional expert witness fees.
B. Appropriateness of the Prosecutor's Comments
Clayton next claims that his due process rights were violated by several statements made by the
prosecutor during the guilt and sentencing phases of the trial. Specifically, he challenges the
prosecutor's comments that: (1) disparaged the opinion of one of Clayton's mental-health experts;
(2) mentioned Clayton's probable intent to commit other crimes when he went to Ball's home; (3)
mentioned the prosecutor's time as a soldier; (4) described the defense argument against the
death penalty as preposterous; (5) referred to aspects of Clayton's criminal proceedings as legal
niceties; and (6) averred that the punishment should fit the crime, not the criminal. Clayton did
not object to these statements before the state trial court.
[9] We review the district court's denial of this due process claim de novo. See White v. Kautzky,
494 F.3d 677, 679 (8th *792 Cir.2007) (stating that the court reviews the legal conclusions of the
district court de novo).
[10][11][12] Clayton's due process rights were not violated by the prosecutor's comments during
the closing arguments at trial. A prosecutor is given wide latitude in making a closing argument.
See United States v. Robinson, 110 F.3d 1320, 1327 (8th Cir.1997) (stating that so long as
prosecutors do not stray from the evidence and the reasonable inferences that may be drawn from
it, they, no less than defense counsel, are free to use colorful and forceful language in their
arguments to the jury.). If a prosecutor goes too far during the argument, there may be a
violation of the defendant's rights; such a violation occurs if the prosecutor's comments so
infected the trial with unfairness as to make the resulting conviction a denial of due process.
Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). To
determine if the prosecutor violated Clayton's due process rights, we must first determine if the
prosecutor's statements were inappropriate and then decide if the comments unfairly prejudiced
Clayton. See Shurn v. Delo, 177 F.3d 662, 667 (8th Cir.1999) (Though improper, [an] argument
does not require reversal of [a] sentence unless it amounted to prejudicial error.).
Viewing each of the prosecutor's comments in context we cannot say that the comments strayed
impermissibly from the broad latitude afforded counsel in closing arguments. These comments
individually or combined did not so infect the trial with unfairness so as to deny Clayton due
process. The trial court adequately instructed the jury, and the factual case against Clayton was
very strong.
C. Jury Instructions
Clayton next claims that the jury instructions violated the Due Process Clause and the Eighth
Amendment prohibition against cruel and unusual punishment. Clayton claims that his
constitutional rights were violated when the court instructed the jury that it could consider
whether Officer Castetter was randomly selected when no evidence was presented on the point.
Clayton also claims that the jury's findings that Officer Castetter was randomly selected and that
he was killed because he was a peace officer are inherently in conflict.
[13][14] We review the district court's denial of Clayton's constitutional claims de novo. White,
494 F.3d at 679. All errors of constitutional dimension do not automatically call for reversal.
United States v. Jacobs, 97 F.3d 275, 283 (8th Cir.1996). We will not reverse unless the violation
has harmed the defendant. Id.
[15][16] We find no reversible error in the trial court's instructions. Even assuming the trial court
erred in including the depraved-mind or random-killing aggravating factor with the peace-officer
aggravating factor, Clayton does not identify any improper evidence that was introduced to the
jury because the district court included both aggravators. Under the test as set out by the
Supreme Court in Brown v. Sanders, such an error would be harmless if one of the other
sentencing factors enables the sentencer to give aggravating weight to the same facts and
circumstances. 546 U.S. 212, 220, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006). Clayton argues that
he was unfairly prejudiced by the prosecutor's use of the evidence surrounding the murder of
Officer Castetter to prove randomness. The fatal flaw in Clayton's argument is that he cannot cite
any additional facts that came before the jury based on the inclusion of the random-killing
aggravator that could not *793 have also come in under the peace-officer aggravator. Because all
of the evidence was properly before the jury to consider each aggravator, there was no prejudice
to Clayton by including both aggravators.
D. Actual Innocence
[17] Finally, Clayton argues that the district court abused its discretion in denying him a hearing
to demonstrate his actual innocence based on his inability to deliberate. This claim is not
cognizable in this federal review of Clayton's conviction. [C]laims of actual innocence based on
newly discovered evidence have never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in the underlying state criminal
proceeding. Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). In
this case, Clayton cannot point to an independent constitutional violation that occurred in his
state criminal proceeding; therefore, we are without jurisdiction to decide his claim of actual
innocence.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
BYE, Circuit Judge, concurring.
I can concur in the Court's opinion, including Section II(B), addressing the prosecutor's closing
arguments. I agree with the conclusion the prosecutor's arguments individually or combined did
not so infect the trial with unfairness so as to deny Clayton due process. Ante at 792. I do write
separately, however, to point out the impropriety of the prosecutor's argument about the law not
requiring the punishment to fit the criminal in a capital case.
The Court's opinion sets forth a portion of the prosecutor's improper argument, which bears
repeating:
The prosecutor further expounded on this point by adding:
Punishment here must fit the crime, and if it doesn't then it diminishes us all. We are not here
to judge Cecil Clayton as a person, we are here to punish him for the crime he's committed.
There is a difference. The crime calls for the ultimate penalty, and that's what I ask you for.
These comments are directly contrary to well-established Supreme Court precedent emphasizing
the importance of an individualized decision-making process in capital cases. Capital cases not
only permit, but mandate, that the punishment fit the criminal. Thus, the prosecutor's comments
were improper and inconsistent with Clayton's constitutional right to have the jury's sentencing
decision rest upon an individualized inquiry. The prosecutor should have known better than to
tell the jury this concept is not part of our law, not part of our tradition. Indeed, we have
previously recognized such comments as justifying the grant of habeas relief. See Weaver v.
Bowersox, 438 F.3d 832, 841 (8th Cir.2006) (citing Jones v. United States, 527 U.S. 373, 381,
119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Buchanan v. Angelone, 522 U.S. 269, 274-75, 118
S.Ct. 757, 139 L.Ed.2d 702 (1998); Romano v. Oklahoma, 512 U.S. 1, 7, 114 S.Ct. 2004, 129
L.Ed.2d 1 (1994); McCleskey v. Kemp, 481 *794 U.S. 279, 303, 107 S.Ct. 1756, 95 L.Ed.2d 262
(1987); Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991);
Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Zant v.
Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)).
In Weaver, however, the very focus of the prosecutor's closing argument was to persuade the jury
to disregard the individualized decision-making process required by the Constitution. My
concurring opinion therein noted [n]ot once, not twice, not thrice, but seven times the
prosecutor urged the jury to ignore the individual offender, William Weaver. Id. at 843 (Bye, J.,
concurring). Such thankfully is not the case here.
The above comments are the only instances identified by Clayton where the prosecutor
improperly told the jury the law did not require the punishment to fit the criminal. As the district
court noted, immediately after making the above comments, the prosecutor nevertheless focused
the jury upon Cecil Clayton, the individual, by discussing Clayton's functioning abilities. In
addition, the jury was properly instructed to consider the mitigating factors unique to Clayton in
determining whether to impose the death penalty.
As a consequence, although this limited portion of the prosecutor's argument was improper, I
cannot conclude the Missouri Supreme Court was unreasonably wrong when it determined the
argument did not violate Clayton's due process rights.
I therefore concur in the Court's opinion.
C.A.8 (Mo.),2008.
Clayton v. Roper
515 F.3d 784
END OF DOCUMENT
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NAMe:
Cecil Clayton
DATE OF ex.AMI:iATION:
Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM
I
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-."anuary 24, 1979
CHIEF COMP!A.!NT:
"r ca:t' t get ahold of ;nyself, r m all tore up".
Patient began to descr~~e his extreme anxiety and depression and
inability to "cope wtt~ ~Y own !amily".
He has ~ive children and
doesn't know what co do ~bout this because this is putting too
much of a load on ~~;n.
~e says his wife is unsympathetic because
she can't: understand ..;h; "le can't: stand to be around anyone.
He
can t stand t:o be .~row:-.:: anyone because ?eople make him so nervous.
PAST HISTORY:
As 3 chL.d he was a "loner".
He had marked phobias
in school, pimples, boils and acne with ~uch scarring.
This was
not: treated although !1e :-:new about plastic surgery.
He saw two skin
specialists as a ch.:.ld.
He feels that :1e may be able to 14ork if
he had treatment on h~s f3ce but feels so self conscious that he
almost is delusional aoout it:.
He has ::ad t'40 head injuries with
severe propor~ions :n :::e past.
MENTAL STATUS c::<Juu::.;T:::;:

The patient :-:as both morning and aft:ernoo'
depression and extreme anxiety around people.
He feels he is being
looked at with ~deas o: ~eference.
He is sure his children don't
like ~im and knows ~~ac ~is wife only puts up wit~ him because she
has to.
He is i:> t:<e "~s if" mode and : feel that he is talking to
himself in my presence ~ather than actually communicating.
He shuts
most people out and 30aws a schizoid disoosition.
His creneral
appearance is t~at at ~ =airly athletic ;abitus with se~ere skin
problems dressed i.n 3 c_;rtleneck shirt: 21nd slacks.
He :'inished tl1e
lOth grade in school ::~:: <iidn': ;et any":::ing :Jut -Jf i.t:.
at many jobs .:hi.c:I :.3 :;-:.;r:Jcter.!.st:ic of ;:eopl~ c: t!-li_j
used to have 1 bad ~Jm~~~ but ioesn't 3~~ ~or~.
:\.FFE'C:": ...i'"E
s:-.;:-_:.::
:-;-:~ ~~ 1::i.ent: 3hO'#S bl:.~:::i;,? :-:;f 3.f::?ct.

He has
:0~~~~~=a lnd borderli~e ~3r3~oii delus~ons.
His
t:hi:--.;.c;.,;;---; ::,-:j ::::::ni+:it~ :,lnC~i.:;::,:s- i.:-t ::::er.-:=!:~1 '3.!",~ s-ddd.
:re
severe ideas
clb5t::.".3Ct
He h.J.:J 'dr?r!~ed
He
':~/pe~
~~
has spells o \).:~r ;o.vA-::~:;g [Jla~"i:-tq of -~::10t::c~ .-1hich <~"~::~ibe hL:;

ln:<.i.et:'l attacot~::; _:1 :.'-:e :".::15':.
E-fis -~bil:.-: .. :'.J ,:_1l~'ll-J.t:? <.:; '}.:j,l'!~~"h-l~
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DIAG::OSI3:
JISC~3S:J~:
:~!3 ~3~:~~~ c~ c~c-lpaci:~:ed
~:.~s disabil:...:.~:.
,. . . ..--::;_:_:_.::
...:~ :-:~l::::ul :_=
and totally
disabled~?
:-:e cct..:..lJ ;et :;;las tic surger
1n :~e ~~rm =~ ~3C~3: s~c~=a~e~:~g ~allowed by individual -lnd

~roup t~erapy. :h1s ~l=-~ ~~otaoly ~enab!lita:e h1m or offer him
~he :.::est c:1ance ~= ~:>:::~::c:c~a::cn . .'\t: presen: he is disabled for
:~ny type of .;;ain::..~l -e>rn:::::_--:en: :wd is 3ust barely making it outside
of an
instit~t~o~.
Yours ::ruly,
..
~{E'C:
ng
wdl~.,~
William F. Clary, 11.0.
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SF'RINOFII!:L.O. MISSOURI t5!5SC8
.
.
: ;G~~,;''c:s ..~CK M.C MRC:P

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.
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J'&DUAJ:T'
30, 1978
..
RECEIVED
,. ......
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F
-J l.1S7s
CLAYTON, Cecil L.
Mr. Robertson:
.
. . "'
.t
lJI.!AtJllr'f
Of'l'r.'l
your request on Janifl'~,;ai,~"'Wr~u

:.;:'."!.~........ kn.ow, he is a 37 year old man who had an injury ~-a sawmi~~
accicient at aqa Jl. 'l'his evidently remcvea part of his trent
e. He was unconscious for nine days and had a debridement ,
pair of depressed skull fracture. Since that dma he has not;
t.his left arm does not work proper~y and he has noticed
furthezo decrease in the.. visiott- of h.i.s right eye. flis riqht e~
never usetu~ ana as far back as 1959 he was told tnat he t

eye that cou~d not be helped by lenses. At the present tin
primary disabling sympto~s aJ:e .that he worr~e a ~t...clea
-~a1~~~~~..
~it~e t::hing.s.~ ha difficulty concentratiisq on one su.bje
~
his mind will go from one subjeet to anothel:". ,...He also wil
tanqential conversation when he is talxinq to people. Whe
~r""'...::-~~- U'I:J.UD~ stranqers. or eve~ his OWft family' or
number of
present tie becomes contu.secl" and becomes.. exaitefl Uct'' sit
ou: and sits and st&J:es o~ elsti.,' qoes outside. Er ma:
anqry sasU%. ot: yell. a: his family. He has not been
ically violent. He has ~ headachewhich is mild and bi!ron1
usua.lll( does not t:ake anythinq fol:" it:. It fraquan.t:J.y coma.~~~~~~i~~~; he is upset but sometimes comes for no particular reason~
~
also has nausea which comes and qoes ~ithout relationship tc
ls or nar.,ousness and it may last all day. He drives an
.utomobile but his wiie is always with hi~ and remands him abo~
~bject3 that are on the right 3~de of his visual =ield.
He has
n~yer had any convulsions or blackout spells, he has'not had
~--~~;~~~continued ~edical follow-uo due co the fact that he is unable t
X~: afford physicians or medicine.
Since his accident he has tried
:,;to ,o~orJc once a~ the sawraill bt1't: he is so unsure of himself and
.. l:~~;the.. noise of bla.des movinq made him ~Tar'/ feariul t::.hat he was
'' ...;-::.".:; .. :.;;. goinq to hurt himself. He ther~:ore quit this a.nd has not been
-'~:..:.~:-:~.able. to return.
He did '"'orJ( for 9 mont:h3 and ca.trol a job at t:
~:}: local ;;JOlice depart:::ent 1 however~ <J.qai.n h3 .-~as~ so unsure o E h irn
.. , ::-.;,;.~salE anci '"'orried .J.bout his jJdq~tr.ent to t.hf! !=Oint that ha felt
... . :he shou.ld not be in a position of responsibility. He quit smok:
.. . : ~:::~ ,.,~ll years i\qo. H~ drinks ::,o~o r:Jr '::tree "='J?S a e co t!~e ~er -:i.J.y
4
..
any
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=-r He does ~ot drinJ< now. He d.i:d drin!< modestly when he was t..
at the ?Olice job t:o see if it ~o~ould quiet his ner1es but t
~-.this was a bad idea and stopped.
His past historf is that he h~~ had ~ulti~le carbuncles and
boils lanced !or his chronic acne. He ...,as in a. car wx-ecJc in
1958 and had a fractured collar bone and chest contusion an
facial lacerations. He was unconscious for two hours at th
particular time. He had an appendectomy at aqe 15 and aa I
mentioned he has had decreased vision in his right eye all
his life,
His family history is that his mother is livinq at 65 with
good health. His father died at age 83 of a neurologic illn
at the Missouri Chest Hospital. I thought this was a consec
of having had rabies innoculations as a child. He has four
brothers and five sisters who have generally good hea~th .
Examination revealed a well developed, well nourished man wi
~ greAt~ thaft average musculature;
His blcod.pressure was
ae has had marked decreased in vision in the riqht eye and w
unable to count finger' ancf"c:ould only see vaque forms in fr
o~ nis eyes. He had a moderate amount of clumsiness in his 1
hand on fine finqer and alternating motion. There 1s a mild
hyperreflexia of the left arm and leg and there was decrease
pin prick over the left side. He had no grip of his arm and
cortical sensation was intact. His general exam revealed tel
ness over his shoulders bilaterally. There was a defect in ~
riqht supraorbital ridge: however, no other cranial defects ~
.,. palpable.
. :::.
Mental status reveals he ~s oriented to time, person and plac

He had to be frequently corrected by his wife in the course c
givinq
the history. He had no.lanquaqe def~ct. His judgement
. was intact
both in the relation of lis every day activities an
on direct testing of the story of the lost letter.
I think that ~o!r. Clayton 'is disabled and has been since !lis
.;. .;: ~-: accident from the t7pe of '4ork Efarticularly that he is tra.ine
. :' ' to do. There is a. possibility that he could benefit from Voc:a
r
: .... :.; ,Reha.bilit:ation and become ernployable again in the future.
:~. ~..
obtained an EEG due to his hypertension and anxiety. I have
:.'~ ~"
placed hi;n on Phenobarbital JO mgs. '!'!0.
! have ;,.sked that
.. c:.. t'
he retu.z::n to my otfice in one month fo"? =:Jllo.o~-uo r:tedical cart
... , ~ .He is concerned ::tat he cannot afford to go to t:he doctor u..nd
...
'"'nether ::e ...,ill :-eturn or .:1ot r do not ::no":ol.
'rhank j"QU .,ery ~..1ch for lecting :ne ~ee t!lis gantlemall.
this i.nf-:>rmation is of 1alue in '/our deli!:eration.
Since:-elr,
~~+TFif-.~~~
,
--.. - r.'RK Itt. 1 k
\oV~
GeC?rge H. Klin.'<er .:uss, :1. D.
r hopE
IN THE SUPREME COURT OF MISSOURI
STATE OF MISSOURI
CECIL CLAYTON,
Appellant,
vs.
S. Ct. No. 83355
STATE OF MISSOURI,
Respondent.
IN THE CIRCUIT COURT OF JASPER COUNTY, MISSOURI

STATE OF MISSOURI
TWENTY-NINTH JUDICIAL CIRCUIT
HONORABLE DAVID DARNOLD, JUDGE
CECIL CLAYTON,
Movant,
vs.
CV199-1768CC
STATE OF MISSOURI,
Respondent.
TRANSCRIPT ON APPEAL
Volume
On the 5th, 6th and 7th days of September, 2000, the

above-entitled cause came on special setting for hearing before
the Honorable David Darnold, Circuit Judge of the 28th Judicial
Circuit, on Supreme Court assignment, at Joplin, Missouri.
A.
Unfortunately, it is cumulative and it is also as an
explanation, when we are looking at the area of the brain that

is injured, we are not talking about the internal part, with the
internal part -- I don't know if you have seen someone after a
car accident.
People are not designed for cars or motorcycles.
So, when people are in a spinning accident, where the car is

spinning, then it suddenly stops, runs against a pole, the brain
will spin and you will have limbic system injury.
see the spasticity in the person.
And you will
They will be trembling,
basically what they call motor tone and things are lacking.
Mr. Clayton doesn't display any of those. The area of the
brain that is responsible for consciousness is the very outer
layer that we call the cerebral cortex.
That is the part that
blasts against the skull with any game, football game.
I am
clumsy, fall down the stairs, a car accident, I hit my head on

the windshield, someone punches me, I am in a fight, my brain is
slamming against the skull
and that is the area where we see
all of his head injury, except for the penetrating.

It just says seven centimeters.
Doctor Morse mentioned
that is, it is only approximately seven point eight percent of

his frontal lobe.
As I stated in the report, that is twenty
percent of the area of the most important organ in your body.

And it penetrated almost to the point of what they call the
ventricle, which is an open space that you can see on your
chart, say in the limbic system.
Q.
Did, Doctor Morse say seven percent of the brain or of the
frontal lobe?
A.
That is an extensive wound.
Seven percent of the brain.
170
Q.
You are saying which equals twenty percent of the frontal
lobe?
A.
Right.
Q.
Okay, let's continue on here.
I believe you mention the
spatial disorientation?
A.
Slowed thinking, impaired memory, motor weakness, sensory
loss, the impairment in reading and writing and math skills.
We
have a person, with his school record, who made good marks,
frankly, all the way through eighth
and math.
grade in reading, writing
We know not only that he did those, but he did those
at an average to above level, through the eighth grade.

And yet we consistently have, on all three reports, we have
a person who, since '72, evidently can't function above the
third to fourth grade, in each of these levels.
The dilemma that some people will say, he is not retarded
or whatever.
That's not the point.
The person who never has
had the capacity, you don't have the frustration of knowing you
can do it, and not being able to do it.
There is something important in your brain, to get closure.
I don't know if you have ever tried to remember someone's name.
While you are trying to remember the name, you are going to
forget.
You are not going to be able to pay attention to anything
else placed before you. You are going to keep focusing on the
name.
If other people are introducing themselves, you are not
going to be able to attend to them, as long as you are focused

on the name.
Cecil has that experience almost constantly, with the
171
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October 31, 1983
. !-!ark Martin
Attorney at taw
P. 0. Drawer 1968
~J~ii~~~-Fayettevil1~, AR
72071
Re:
Cecil L. Clayton
496-44-4843
Dear Mr. Marti:l:
-
...........
Cecil Clayton ~as seen for psychological, neuropsychologica ~

and
vocational
e'taluation on September 30, 1983.
He is a 43 yeaJ
........ r,J
~. ~"'!'";
old white male with a lOth grade education.
He reports that he
._ .._,
. _........,_
---~ ..
-..........- worked as a laborer in a rendering plant, then working as a laboz
.: ~~j;,i..
in the log woods =or 15 years.
Other than timber work, he attem~
~~..:~~l.;.~ to do some laboring jobs but could not stand the mental stress an
;..-.; '~'.;:::;; : would quit.
His 0 nly relevant work has been saw O?erator and tim
. :'-~~~~I!.J
-.- ....................... ~orker. He states that he was injured in 1972 and has been unabl
:..::~~~
-.:-.~-;-....- . K
to work since that time.
He does mention that he has done some
#~~..:.:: -~brief
light
tree
trimming
that was simple and routine.
For perio
.!..17~~~- --~~
........- . of a few weeks he would work approxi~ately one-half to one day pe.
week.
He could not sustain activity for more than one day at a
:;-i~.l time.
He
would blow up and ~... alk off if pushed to work more than
~.~37.::.:.
~r-:.~~c~ one day a wee.lt.
,.. , .~ ,.~-... ~-
_:.;.;.;r
~: ~!~ ~
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In 1972 he states that he was struck by a flying wood sliver,
!~!!' thrown by a saw. The sliver penetrated his skull above the right
~~~~~~r eye and drove bone fragments into the brain tissue. surgery was
-- --s-;;: done and he has continued to experience the residuals of this
--~-- ~ : .. injury.
He has an increased EJroblem ,.,ith nervousness and has had
~~.-:_:-:~~;- . great difficult/ ._...i th impulse centro 1.
He states that ha takes
:::;::;;~;:.;~: : medic.:1tions :or-- ::is e motional c ondit:.on, in dicating tha t .,.,ithout
J-l~~-~- , _.. ...._. ___ ~hese he is hi'f:erJ.ct.:. -;e, u nable to sleep and periodically violent.
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- ' -i l .. si'":.J.ation u::set
,.,. - ~_!-;f_7f..- He i ces r.o c l..:...:.:e : o l:e around tl":e .:.:1mily or others, is .rery ner ...ro u.
-!-t-~~-:~-:- bites h is .:i:1ge c:13. i 1 s , a nd :::ericdical l: exo lo d e s.
He h as no t oler
<rr~-1~ for stress or f:t"essure.
He. becomes .ery angry and says thing~ tha
:...::~~..:~::-; h e later :-et;re':s.
:!e ;, .:1s ::J.d ?iolent: .:..:;;cul s es but: ha s been aole t
.;j..:;:}i.
.
~lar:::ely c ontr::l ~ :-:e:-:1.
He st :!te s tha t !": i s d o c:: o r told h im he ..:ould
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Cecil :.
:vtar4t-:
::~rt:::-1
~1.s irrascibility.
Physica ~
right eye and that he has
arm will sometimes become nt
In questioning nim more about the emotional situation he say

if his ~ife is gone for long he begins climbing the walls.
~~~ He does notlike her to be out of his sight for long.
It left
alone he begins hallucinating both visually and auditorially.
He
admits to daily depression and frequently ruminates about shootin
~~~~~~~~himself.
He began crying as he talked about how i t bothered him
;'that no one will come aroun_d his family.
He realizes that i t is
... =~~~
- - =--~.t.:. ::because of !":.im.
He f eels very uncomfortable around people and
- ~S~avoids any social interaction.
He states that he knows people wi J
,.-,:;~
~...........~.-~ . take advantage of him a nd thae they are out to get him.
He admit~
.
.
; ~,~
t. ~ _,:_. to 1.deas
of reference \vhen he hears :;:eople whisperl.ng.
He also
..:...e~.;-- admits to f eeling as i..! others are able to control his behavior .
:~.:~~:. -~e has times .-~hen sleep is very difficult for him
..
...
0 '.:.
._..::~';.~1 :
Along . ;it!1 this i njury to his head he has been in several mot
..:~~~.:.-vehicle accicents and received closed head injuries.
When asked
- ~~~-.: about the ;:robler.! s he experiences, relative to his head injury, he
~~~:~ ... notices that his thinking is sloher, impaired memory, spatial dis. .. ~:~~;. orientation, motor weakness and sensory loss in the left arm and
-~~t~~~~leg, impai~ent in his reading, ~riti~g and arithmetic skills,
.t~::.. . increased i::l?ulsi vi t y and impatience, a lack of inhibitory behavio l
- ~ _ con~rol, feelings of ~iolent explosiveness to even minor criticism.
e .')" . ,~~~~-:~: :~
day~
:-iedical reports indicate that he was unconscious for nine

. . ~.~ h_and had a cebridement and repair of a depressed sku~l fr~ctura
.__; .~;,Part of the frontal lobe was remo;re~.
~ince th~t t~~e h1.s left arrr
. ~ .. :..
..-has not worked properly and his v1.s~on 1.9 dafic1.ent 1.n the right
~ ~Oye.
Kis doctor feels that he is disabled and has been since the
..;;_
,:~acciden t.
He mentions that he finds impaired sensation and motor
..:!.:...
:function . in the left arm and leq alent)' with severe visual impairmen
. .. - .. ~..7:; .-~in the r.lght ~ye.
H'e states that he develops confusion and excite--~~p:~~;me.
n
t
-,...ith a:oy sort o f ou tside stimul . ;s a nd has been physically
-~~, --
.' __
...;.- .,-,_:_ a ggres s1.. ;e i :1 t!": e ~a. s:.
He continues to have hallucinations and
~:~~;f :-;.~.'unable to sec .J.:::-::l:e- t !":e se ::-on real.!.<.:.-.
8oth the re n ort of ~1r. Clay
: ::::7
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d
!"'.is
r.~.J.:-;1
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3 ..-ooo .... i n d i,_.,. _ ,;s ~ha .- h~ suf !'e rs fra n a
......
::. ~;~....~~~: ch roni::: b:-a.:..n ::.:;; ::!r ::::-:e ;;i:."l some ::.ssc c iated psychosis .
... . ' - .. . .
. ? ~ i=l. ~ .-:.._
-~~:;,~ .
Curi::; :e sc : ;; ] t !":e .'!innesota :tulti:ohasic Personality Inventory
:: ;:~::: :...:. ..tas qi:en.
-:"!ie :irst ..-a s -;i ven i:t a s t~ nd ardi zed fa shion, t hough
~:- ~1_ :. ,-:.. the
scale _.:"3. s :::: 0 h i;hly ele1ated -::-:at it .-~ a s a g ain rep~ated usinr;
i"- . the :'3:-b.:d ::'J r::l.
7he ;? ra:i le ,.;as e ssenti.J.ll y the same "..tl.th th e
.:. ~.-. . .- . schizcpnre::.!.~ , ~a r:1noi.-:i a n d depress i :e sc a l es hi qhly elevat e d.
Thi
> , . ?atte.:-n is r:s ns 1s t:ent: ..,i t h :Jaranoid s chi zo oh re n ia. toqether '"' ith
: .. - - "l eo r essio:-.
:ihe n -:he ~ .:1-a."'o- 1.. , , - c h; ..,....,~ ;.,io '-"' ""nic
-cc.. l ~., s a -e .., le!ated,
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Cecil :.
- - ~----- .. To
' ;N'!'!..~ . ... . .
. , '-'~-- .. age.
. :;;~~~
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..
~lark
~:~ytcn
:-tart:.:-.
Three
. ,:;_: :::~ the F scale may J.lso be elevated and not invalidate the profile
.;;ti~~:rndividuals show~r.g ~his pattern usually have paranoid delusions.
, ~~{f_,Depression, emotional inappropriateness, over ideation and fears
-'~1if.often are present.
They spend much time in daydreams, are shy
..:;.;>~~,J.:cand anxious and kee;> others at a distance.
They show difficulty
.:~~~:in i:::oncentr.ating and their thinking is often autistic . The conten
,"f:''".'f:'j:/ of theJ.r thqught ~s almost always unusual and unconventJ.ona1.
:~,1-~i'-' Suspicion, distrust and grandiosity are typical.
Their behavior
... ~;:,.;:;:;::..:.is unpredictable.
They are usually unable to function due to
.:::, .. ;:,.~.;;.~.fatigue and inefficiency. An organic brain syndrome may be presen
,: ,....,.~;=~.with this oat tern and is present in this case
~~~ .. ...
W~de
The
Ranqe Achievement Test was given and he =ead at a
,,:,:~.[:: .middle fourth grace level, spelled at an early third qrade level.
--..:"'""?- and did arithmeeic at an early fourth grade level. This indicated
: :. -:-, .:~ marginal achievement:. On the iTonderlic Personnel Test he answered
.:;;:,;~ nine questions cor=ectly, placing him at the 6th-%ile !or all job
~ . '' -~ applicants.
This is average for a man of his age with a seventh
7-;-1:5;),.- grade education. ::he i'lechsler Memory Scale was given and he attair
:. ~ti;: .a memory quotient a f 6 2, placing him in the mentally retarded cates
....~f!'~,t. Mental control ,.;as t:ot:ally absent and he was very weak on visual.
~.;-..1: memory, nemory for ;erbal passages and digit span.
The N'echsler
,~ .~:: '-' .. Adult Intelligence Scale was then given and he attained a verbal.
--."r~
IQ of 75, a perfor~ance IQ of 76 and a full-scale I'2 of 76.
The
:;:;,..<: ... pattern on this test: ,.;as reflective of both his cognitive impairmen
;1:~.: due to his schi zo:::~renic disorder, paru-.oid type, and ~o his organi
...,"~.ti:
"'tl.;.:,: brain
syndrome. T~e ;:oat tern of tests suggested a trau.":tatic head
..
?rt~"'"'
~n Jury.
<."
C)
r~tt:.
;~,:, .
Neuropsychological testing was then done.
On the Trail Mak.ing
..~;:.::~;,,Test he was severely deficient.

On the Sensory-Perceptual Examinat
:;.g;,.;,"'11<~~-:.-ne had no usable vision in the right eye, manifested ~upressions
.
. - ---~-'- :~f s~nsation on his ri'?ht si~e, <;tnd fingertip perceptJ.on was def.ic~
.. -.:.
"; :-J.n hJ.s left hand.
AudJ. tory J.mpaJ.rment .-~as noted bilaterally, ,o~ith
_"i ,:::. l?oorer audition in the right ear though more difficulty i~ locali.za
.,::;~ ~n the left ear.
:'he Sensory Test suggests that he exper~ences
~:-::;M-,.;,.' -cerebral impai=en:: i.n both ~emistJheres.
The Aphasia Screening
,-z~;.': Test: ,.;as gi?en :1nd C.:e ;:,anifest:ed both constructional a:td StJelling
.. '!!;
;.~~-.~ . ~ dyspraxias a.nd :.:en~.:-.:11 dysa:-thria...

The :-!alstead-Rei tan ~reuro
-~_;:;.~~....~psychological 3at:.~r: ..:as then gi~.ren.
He -;-.ra.s deficien-.: on five
~~~ ..-. of t:::e seven s:lb- -::=s~s,
achievir.g an i.::1pai~ent index
'J= . 7.
This
.:;:. :_; is '.4ell abo;e the ::ritical level for an o=-ganic brain syndrone.
~
;:_;.:~..;. ..
~
~ ~-- ..
;,~7;:_
..... .: ..
-. .,....
-
'
He
f..vas :.n the c::i. t.lc.J.l :c:1nge for im?ai=~ent i:1 s9eech !?er::epticn,
tac~:.1.3l :::ercectL:~ 2nd localization, =aoid :::otor =unc~:.on and Herd
fluencf.- The-:-es..:.l~s suggested bilater3.l i::1~airment, :,;ith more.
~ate= i.7.oair:::en~ 1ssoci..1ted .1ith left cerebral hemizor.::re fJnctl.oni
~<~it:t :-:-:ore senscc:: ::7:;;air::-::ent in ~:he ::-i..ght ::emis_?her~:
a roan ci
A.l.\
Re:
To:
. - . Page:
;~: ~--~
--
Cecil :. Claytcn
:-iark .'~artin
Four
:''
.,.,ho has a li::~i :ed to marginal educational acnl.eV'enent level. He

has sustained a head injury that has resulted in brain damage.
This
has not only impaired sensory, motor and cognitive function~
'
but also has resulted in a psychotic component, best described as
a schizophrenic disorder, paranoid type.
ais most severe impairn
'"
is his chronic brain syndrome (12. 02), ,o~ith demonstrated deteriox
':': :::;. in intellectual functioninq, manifested by a marked memory defect
,..,;;,~;:- for recent events (memory quotient of 62) and impoverished, slowe
',-.;,:;.:,.:. perseverative thinking with confusion. Also there is very labile
:,..;;.-:__.affect. Secondary to this he has a psychotic disord'!r (12.03)
_ -'-' characterized by thouqht disorqanization, depression, agitation,
..,--.
hallucinations and delusions, regressive behavior, and some
>;:::::, inappropriateness of affect. The combination of this results in
" ... .;_,. marked restriction of daily activities, a constriction of interes
:~:
a deterioration in personal habits and a seriously impaired abili
to relate to other people.
His chronic brain syndrome with psych
.is
of
such
severity
as
to
neet
the listings in the determination <
._.T"
disability. There is presently no way that this man could be
expected to function in the world of work.
Here he pushed to do '
he would become a danger both to hL~self and to others. He has h<
both suicidal and homicidal impulses, so far controlled, though
... under pressure they <vould be expected to exacerbate.
He is best
left alone and allowed to exist at his present marginal level of
functioning.
!:~_-,:_~ -~
..
....
:~-j~
I._.,._
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......
~dx:/
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.
.........
..
Douglas A. Stevens, ?h. D

Clinical Psychologist
. ,
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C-I!;RRY STREET
;.P~INGF11LC. ~AISSOL.'~I
t
..iOMN
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417\
15'!5ao8
~.H5!5-2S82
i3ROOKS ....iB. MI"ICFJ
00AQE M. Kt..!NKCR,..U5S, M 0.
'-'tC:JoofACt. ....
\...wZCCK.V
"A.C,
July 16, 1980,

(die. July lll
JUL Z 1 10130.
Paul Markstrom; Counselor

Disability Determinations
P.O. Box 8187
H.S. Jewell Station
Springfield, MO
RE:
.ECEIVED
'.
-- .....:..
...
CLAYTON, CECIL L.
Dear Mr. Markstrom:
"9
Mr. Clayton is continued to be seen in :ny office.

was June 27, 1980.
His last visit
In March, he described episodes where he had true vertigo. lte had

fallen through a shower door, driven into a neighbor's mailbox. lte
had also had episodes where he would sit and stare and his. wife was
not really certain whether he was conscious or not.
!tis examination showed left sided hyperreflexia at that time and was
otherwise normal. The patient ad_mitted tpat he was. hearinq voices
and sa.inc;r_visions o~_a
th rQ01JL../. He....wa.a..,a.lsa bearinq drawers
open and doors close, etc.and it appeared that he was havinq auditory
and visual hallucinations. He continued to have ve~~~~C.O~
dispositic;J~.,- trfed"'"t!cr"ayoi~ P!9~ and wanted to strike out at peopl-e
whe.ti_ they. became obnoxious to him.
In:a followup visit in June, he had no longer had any more episodes of
falling and severe .rertigo. His disposition ;~as unchanged and he
continued to have auditory.~visual hallucinationr.
lte was startec
on Triavil at that time instead ot Haldol.' I placed him on Dilantin
in March prior to the sensation of his episodes of vertigo and this
was continued. At this point, :t. do not;. think Mr. Clayton is
employable due to his psychiatric symptoms.
Sincerely,
GHK:an
~~~~-"-0
EXHIBIT NO.
PAG~ I OF j"".tiPGS.
~-- JQ)
Psychiatric L\: Psychological Associates. Inc.

Birch free (o~nrre ~003 E.n t S.;:1snm~ ,-Suale
J -; :mnoii
!ll 7 ) 982-3000
.
... ~ld ..'1issoura 65504
..
JAMES E. BRIGHT, M.D.
DAN I El~-
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CAVIO L. URRASCH'17E"d:D-'2
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?,ycnology I'
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CHARLES F. C::LLe.~ .
C.Jun'lnq
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One Ea.6t Moun..UU.tt

FalJe.tvill.e., Alt.ka.lt..~ cw
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Cecil. !. Cl.a.JftO rt
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Oea..t Mil Ma/t.Ci,t :
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hru
been -~ een : 0 1t .i.rt..i-t:J..a.i.. e.va.lu.a.U.ort ctnd a. ~ u~ equ.e.nt

6otlow-up v~.U. u.port .dte --:.~ ~ 2/t..'t.a..t o o Oil. Geo~tge. KUthe/l~tU.4 . Ert.c.to.& e.d ~ a c.~pt.j o .5 rr.!f <_,u_c;_.u_ e.va.tua..ci.ort.
Mit. Cla.ytorr.
84 ~ h~ plte.u..n.U, .t;ta. ~~c.t:.wa.&: a 6 an oJtgan.i.c. ;::vw ona.l.LC!f c:i<AoJtdeJt

oo.Uow.i.n9 a hea.d .i.nju.t~' -~ LW -t..U:ne.d .Ut 197Z.
..
'.
U .W my op.i.rU.on .tha.c hz. ..::..~ ::.v.tA.ULJ. diAab.le.d and 'u.d..l be pe.ltJI'rl.ne.Yt.ti.y

.tow.l1.1J d.Wa.blz.d. He c.::.nn;;,. ~ :.J:o.itlt; He tui.il ~o.C be .::.!;.l.e to wo.Jth. any '
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.\FFIDAVIT
I, Laura Martin, being duly sworn, hereby assert on my oath and

affirmation the following facts:
I. I am employed as an attorney with the State of Missouri Office of the
Public Defender, Appellate/Postconviction Division, 920 Main Street,
Suite 500, Kansas City, MO 64105.
2. During my employment with the Office of the Public Defender, I
represented Mr. Cecil Clayton in a post-conviction proceeding and
appeal from the denial of post-conviction relief. In the post-conviction
case, Mr. Clayton challenged his conviction for first degree murder and
his sentence of death.
3. I began representing Mr. Clayton in April 1999, and my representation
of him concluded in January 2002.
4. During the time that I represented Mr. Clayton, he was incarcerated at
Potosi Correctional Center. I visited with him at Potosi Correctional
Center approximately once every two to three months during my
representation. I also spoke with Mr. Clayton over the phone. I also
observed Mr. Clayton at the evidentiary hearing held in the postconviction case on September 5-7, 2000.
5. During my meetings with Mr. Clayton, I noticed that Mr. Clayton had
difficulty staying focused on the topic at hand. For example, I might
ask Mr. Clayton whether he provided the name of a witness to his trial
attorney, and Mr. Clayton might respond by talking about an occurrence
at the prison or with a story unrelated to the question that I had asked. It
was difficult to obtain a relevant answer from Mr. Clayton, and it
usually required several attempts to obtain an answer to a question.
Oftentimes, I was never able to obtain a relevant answer at all.
6. I also noticed that Mr. Clayton did not appear to grasp or retain the legal
issues raised in the post-conviction case. For example, if any detailed
issue or legal procedure was explained at one meeting and then asked
about at a later visit, Mr. Clayton appeared to be learning of the issue
for the first time and did not appear to have remembered what had been
previously explained to him at a prior visit. There were several visits
where I went over with Mr. Clayton what I had explained to him at the
previous visit.
7. I noticed that Mr. Clayton, while pleasant, did not ask specific questions
about his case. For example, during the post-conviction hearing, he did
not ask anything related to his case or offer any input regarding his case.
Mr. Clayton appeared incapable of asking anything other than very
general questions, such as "will I get a new trial," "are you going to help
me," "when am I getting out," "when am I going home?''
fx.
~~
l noticed that Mr. Clayton was very religious and cngaged in "magical
thinking." On more than one occasion, Mr. Clayton expressed that God
would work a miracle in his case and he would be set tree trom prison.
Mr. Clayton believed that if he continued to pray to God, everything
ultimately would work out for him and he would go home.
9. I noticed that Mr. Clayton did not possess verbal inhibition and would at
times bring up topics inappropriate and irrelevant to the meeting. For
example, if we discussed an issue that was raised or a witness, Mr.
Clayton would start talking about God or the prison conditions. Mr.
Clayton did not appear to be aware that he was changing the topic or
bringing up something completely off the topic that we were discussing.
I 0. During my representation of Mr. Clayton, I noticed a deterioration of
his limited ability to tbcus and memory. For example, there were more
and more occurrences of Mr. Clayton not recalling what I had recently
told him. In addition, I noticed that his inability to focus, or his "off'
days, became more frequent.
ll. I never saw any indication of malingering.
12. Although I represented Mr. Clayton more than seven years ago, I
specifically recall having concerns, due to my contacts with Mr.
Clayton, regarding his competency. I also specifically recall having
such concerns very early on in my representation of Mr. Clayton.
Further, Affiant sayeth not.
Date
a.
8u..r
IN TESTIMONY WHEREOF, I have hereunto set my hand aftixed

my official seal, at Yar~ ~-!;::J Missouri, the day and year tirst
written above.
My commission expires: _..J7-.~-/_,_t_,_ll-j..J,J.<::....~D.LLILI__
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, notary public in S chh.:S6...j,
County, Missouri, hereby aftirrn that Laura Martin appeared personally
before me and veri tied that the information above is true and accurate, and
aftixed his signature thereto.
UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS
U.S. MEDICAL CENTER FOR FEDERAL PRISONERS
SPRINGFIELD, MISSOURI 65807
FORENSIC REPORT
CLAYTON, Cecil
Reg. No. 16884-045
Criminal Case Number:
02-8001 -MC-NKL
Date of Birth:
April16, 1940
Dates of Evaluation:
May 6, 2004, through January 6, 2005
Date of Report:
January 18. 2005
IDENTIFICATION AND REASON FOR REFERRAL

Cecil Clayton is a 64-year-old white man who was referred to the United States Medical
Center for Federal Prisoners (USMCFP) in Springfield, Missouri, by the United States
District Court for the Western District of Missouri, W estern Division, for a mental health
evaluation to determine his competence to proceed with his fed eral habeas corpus
proceedings and his competency to be executed. In 1997, Mr. Clayton was convicted
of First Degree Murder in Jasper County, M issouri, and sentenced to death.
Mr. Clayton was advised of the purpose of this evaluation during his initial clinical
interview. He was informed that information he chose to provide during interviews. any
of his statements or actions while at the Medical Center, and any other information
obtained about him during the course of the evaluation would not be confidential. In
addition, he was repeatedly instructed not to discuss his version of the offense. It was
explained a report would be prepared, submitted to the referring court, and distributed
to both the defense and prosecuting attorneys. Mr. Clayton acknowledged and
appeared to understand the information presented.
SOURCES OF INFORMATION
This evaluation was conducted in the Mental Health Evaluation Unit of the United
States Medical Center for Federal Prisoners. Mr. Clayton was routinely observed
throughout the evaluation by clinical and correctional staff. He participated in numerous
individual clinical interviews with the undersigned evaluator. An MRI and SPECT study
ware completed. In addition, a neuropsychological consultation, which induded an
interview and the administration of several psychological and neuropsychological
Sens itive Limited Official Use
Forensic Report - Page 2

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
assessment measures, was completed by Robert L. Denney, Psy.D., Staff
Psychologist, and Leah M. Osborn, M.A., Psychology Intern.
The following competency assessment instruments were administered:
1.
2.
3.
MacArthur Competency Assessment Tool-Criminal Adjudication (MacCAT-CA)

Competence Assessment to Stand Trial for Defendants with Mental Retardation
(CAST-MR)
Evaluation of Competency to Stand Trial-Revised (ECST-R)
As part of the neuropsychological consultation, the following psychological tests were

administered:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Wechsler Adult Intelligence Scale-Third Edition (WAIS-111)

Wechsler Memory Scale - 3td Edition (WMS-111)
Wechsler Test of Adult Reading (WTAR)
Halstead-Reitan Neuropsychological Test Battery
A.
Booklet Category Test (BCT)
B.
Trail Making Test, Parts A & B (TMT)
C.
Tactual Performance Test (TPT)
D.
Speech Sounds Perception Test (SSPT)
E.
Seashore Rhythm Test (SRT)
F.
Finger Tapping Test
G.
Grip Strength Test
Reitan-KI0ve Sensory Perceptual Test
H.
I.
Reitan-lndiana Aphasia Screening Test
Grooved Pegboard Test
Peabody Individual Achievement Test-Revised (PIAT-R), Reading
Comprehension
Boston Naming Test
Rey Complex Figure Test, Copy, Immediate Recall, Delayed Recall, &
Recognition
Rey 15-ltem Memory Test with Recognition Trial
Word Memory Test, Oral Administration (WMT)
Computerized Assessmen t of Response Bias (CARB)
Test of Memory Malingering (TOMM)
Validity Indicator Profile (VIP)
Wisconsin Card Sorting Test
Minnesota Multiphasic Personality lnventory-2 (MMPI-2)
Sensitive Limited Official Use
Forensic Report- Page 3

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
Other sources of information:
1.
2.
3.
4.
5.
6
7.
8.
9.
10
11 .
12.
13.
14.
15.
16.
17
18.
19
20.
The U.S. District Court Order requesting this evaluation.

School rranscripts, grades 1-8.
Inpatient medical records from St. John's Hospital in Springfield, Missouri, dated
January 24 through February 3, 1972, including but not limited to: a Neurological
Surgeon Report, Progress Notes, and Disch arge Summary.
Nevada State Hospital records, dated July 25, 1974, through October 29, 1975.
Neurological Surgeon Report. completed by John L. K. Tsang, M.D., dated
October 26, 1976.
EEG Report, completed by George Klinkerfuss. M.D., dated January 30, 1978.
Medica l Report, completed by George Kfinkerfuss, M.D., to Dale Robertson.
Disability Determination Counselor, dated January 30, 1978.
Opthamology Report completed by George Paddock, M.D., to Kathy Stephens,
Disability Determination Counselor, dated May 2, 1978.
Psychiatric Evaluation Report, completed by Jack Eardley, M.D. to Kathy
Stephens, Disability Determination Counselor, dated May 6, 1978.
Psychiatric Evaluation Report, completed by William F. Clary, M.D., of the Ozar1<
Psychiatric Clinic, dated January 24, 1979.
Social History Report, completed by Pamela J. Denton, B.S., of the Ozar1<
Psychiatric Clinic, dated January 24, 1979.
Medical Report, completed by George Klinkerfuss, M.D., to Kathy Stephens,
Disability Determin ation Counselor, dated January 31 , 1980.
Psychiatric Evaluation Report, completed by Jack Eardley, M.D., to Kathy
Stephens, Disability Determination Counselor, dated February 22, 1980.
Psychological Report, completed by Clifford Whipple, Ph.D. to Kathy Stephens
Disability Determination Counselor, dated March 19, 1980.
Medical Report, completed by George Klinkerfuss, M.D., to Kathy Stephens,
Disability Determination Counselor, dated March 31, 1980.
Medical Report, completed by George Klinkerfuss, M.D., to Paul Markstrem,
Disability Determination Counselor, dated July 16, 1980.
Psychiatric Report, completed by Jim H. Earls, M.D., to Dale Robertson, Disability
Determination Counse lor, dated May 16, 1983.
EEG Report, completed by Chi-His Lin, M.D. to Dale Robertson, Disability
Determination Counselor, dated June 9, 1983.
Neurological Report, completed by Chi-His lin, M.D., to Dale Robertson, Disability
Determination Counselor, dated June 10, 1983.
Medical Report, completed by George Klinkerfuss, M.D., to Mark Martin, Esquire,
dated September 1, 1983.

CLAYTON Cecil
Reg. No. 16884-045
January 18, 2005
21. Psychological, Neuropsychological, and Vocational Evaluation Summary,
completed by Douglas A Stevens, Ph.D., to Mark Martin, Esquire, dated
October 31, 1983.
22. Psychiatric Evaluation, completed by James E. Bright, M.D., dated February 9,
1984.
23. Psychiatric Report, completed by James E. Bright, M.D., to Mark Martin, Esquire,
dated March 20, 1984.
24. Social Security Administration Administrative Law Hearing Report, completed by
Donald E. Marrs, Administrative Law Judge, dated April 26, 1984.
25. Freeman Hospital Records, dated September 28 through October 26, 1987.
26. Lawrence County Jail Records, dated January 15 through March 13, 1997.
27. Jasper County Jail Records, dated April 4 through December 7, 1997.
28. Missouri Department of Corrections Records.
29. Neuropsychological Assessment Data, administered and recorded by Bettye Back,
Ph.D., dated July 10, 1997:
a. Halstead Reitan Neuropsychological Battery
b. Wech sler Memory Scale-Revised (WMS-R)
c. Wechsler Adu lt Intelligence Scale (WAIS)
d. Bender Gestalt
e . Wide Range Ach ievement Test, Third Revision (WRAT-111)
f. Minnesota Multiphasic Personality Inventory (MMPI)
g. Neuropsychological Deficit Scale
h. Impairment Scattergram
30. Deposition of Bettye Back, Ph.D., dated September 16, 1997.
31 . Deposition of Sharon K. Rogers, dated January 6, 2000.
32 Deposition of Bettye Back-Morse, Ph.D, dated August 31 , 2000.
33. Deposition of Bettye Back-Morse, Ph.D., dated November 2, 2000.
34. Original Petition for Writ of Habeas Corpus.
35. Petitioner's Traverse to Respondent's Response to Order to Show Cause in a
Capital Case.
36. Slip Opinion, Supreme Court of Missouri.
37. Telephone interviews with defense counsel, Elizabeth Unger Carlyle, on May 17,
2004, and October 6, 2004.
38. Neuropsychological Consultation Report, completed by Robert L. Denney, Psy.D.,
Staff Psychologist, and Leah M. Osborn, MA., Psychology Intern, dated
August13, 2004.
39. Neuropsychological Consultation Addendum, completed by Robert L Denney,
Psy.D., Staff Psychologist, and Mary A Martin, Psychology Intern, dated
January 4, 2005.

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
SOCIAL HISTORY
Mr. Clayton was born on April16, 1940 in Purdy, Missouri. He was the second of
seven children born to his parents. He also has three older maternal half-siblings. He
described his parents as good providers but noted that they were not affectionate. His
father was reportedly a strict disciplinarian, but he denied ever experiencing physical
abuse. He also denied a childh ood history of sexual abuse. His father died in 1973, at
age 83, reportedly due to complications from a rabies infection contracted when he was
in his twenties. His mother continues to reside in Missouri but is in poor health.
Mr. Clayton was married from 1960 unbl1988, when the marriage ended in divorce.
This union produced five children, two daughters and three sons. He remains in
contact with three of his child ren but has not had contact with two of his sons since his
incarceration in 1997.
EDUCATIONAL HISTORY
Mr Clayton described himself as a good student during elementary school. He denied
a history of special education classes or being required to repeat a grade. He also
denied a significant history of truancy or behavioral problems. The available records
confirm his self-report. He reportedly related well to his teachers and peers during
elemen tary school. However, his peer relationships reportedly became more difficult for
him as an adolescent due to his self-consciousness related to his severe acne. During
th1s time, he reportedly often engaged in physical altercations. He reportedly \vithdrew
from school after completing the tenth grade. He has not obtained a GED.
EMPLOYMENT HISTORY
Mr. Clayton reported he worked in the saw mill industry "off and on for 40 years.
According to the available records, he owned his own saw mill business from 1967 until
1972. Following his head injury in 1972, he reportedly had difficulty maintaining
consistent employment. In the mid-1970's, he reportedly worked as a police officer for
the City of Purdy, Missouri, for approximately nine months. According to Mr. Clayton,
he had difficulty maintaining this position as he <ound it to be difficult and stressful.
Although he had reportedly been sober for a number of years prior to working as a
police officer, he reportedly began drinking again during this time period in an effort 1o
calm his nerves. After leaving this position, he reportedly worked briefly at a tire
company and a tree trimming business. He was eventually awarded Social Security
Disability benefits on November 18, 1977.

CLAYTON, Cecil
Reg. No. 16884-045
January 18. 2005
SUBSTANCE ABUSE HISTORY
Mr. Clayton described a long history of alcohol dependence, beginning in his early
adolescence. He stated th at he often became violent when intoxicated and engaged in
behavior that he later regretted. He related that he has received three convictions for
Driving While Intoxicated and has been court-ordered to participate in substance abuse
treatment on at least two different occasions. He indicated he has also used cocaine,
marijuana, and amphetamines, but he denied ever being addicted to these substances.
HISTORY OF HEAD INJURY
Mr. Clayton reported that he has incurred a number of head injuries of varying degrees
of severity over the years. In 1950, he was reportedly rendered unconscious for a brief
period of time after he fell out of a large tree and hit his head. He did not receive
medical tre atment for this injury. In 1958, he was again ren dered unconscious after
being "thrown through the wi ndshield of a car" during a head-on collision. He indicated
that he incurred lacerations to his face and a broken nose during this accident. He
stated he left the hospita l against medical advice the day after the accident In the early
1960's, he was reportedly hit in the head with a state trooper's "blackjack." He stated
that he was not rendered unconscious but claimed he experienced "severe headaches
and "ringing in his ears" following this incident.
On January 24, 1972, Mr. Clayton's most serious head injury occurred. According to
the available information, while working at his sawmill, a splinter of wood penetrated his
skull and lodged in the right frontal area of his brain. Following this injury, he was
initially taken to St. Vincent's Hospital in Monett, Missouri, but given the severity of his
injury, he was quickly transferred to St. John's Regional Hospital in Springfield,
Missouri. Radiographic studies, completed at St. John's Hospital, showed "extensive
shattered fracture of upper border of right orbit and depressed skull fracture right frontal
region mea suring 3 em by 1.5 em at the depth of 1 em. John L. K. Tsang, M.D.,
subsequently performed emergency surgery with debridement and closure of the
frontal laceration. A neurological surgery report, completed by Dr. Tsang, dated
January 26, 1972, noted there was "approximately 3 cc of bra in tissu e loss in that area
after the wood and bon e fragments were removed .
MEDICAL HISTORY
According to the available information, Mr. Clayton is blind in his right eye. The exact
etiology of this condition is unknown. Mr. Clayton also has documented hearing loss in
both ears. In May 2001, he wa s tra nsferred to Capital Region Medical Center in
Jefferson City, Missouri, after suffering from a myocardial infarction. He was diagnosed
Sensitive Limited Offic ial Use

ClAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
with severe coronary artery disease and underwent triple bypass surgery. For the last
several years, he has been prescribed anti-hypertensive medication.
MENTAL HEALTH HISTORY
Following his head injury in 1972, Mr Clayton reportedly demonstrated significant
impairment in social and occupational functioning. Mental health records document
fuat he experienced cognitive deficits (i.e., forgetfulness, impaired concentration,
impulsivity, and tangential speech), as well as psychiatric symptoms (i.e., anxiety,
depression, and hallucinations). The available mental health records are summarized
below.
On July 25, 1974, Mr. Clayton was voluntarily admitted for inpatient mental health
trea tment at the Nevada State Hospital in Nevada, Missouri. At the time of his
admission, he complained of being irritable and "fearful that he might lose his temper
beyond control." More specifically, he stated, "I can't work without getting upset. I get
despondent. I don'tlike to be around my family because it upsets me ... I don't
remember very well and I feel confused a lot of the times." According to his wife,
Mr. Clayton had always possessed a high temper," but his spells (of) shortremperedness appeared to be getting worse since his head injury in 1972. No overt
symptoms of psychosis were reported or observed during this hospitalization. He was
trea ted with the anxiety medication Valium (5 mg daily) and milieu therapy. His
intelligence, as assessed by the Peabody, was in the average range of intellectual
abilities. He was discharged on October 29, 1975. His diagnoses at discharge
included organic brain syndrome and neurosis.
In January 1978, he was evaluated by George H. Klinkerfuss, M.D., at Springfield
Neurological Associates, in Springfield Missouri. Dr. Klinkerfuss opined that
Mr. Clayton was disabled due to impairments resu.ting from his 1972 head injury. He
noted that Mr. Clayton appeared to be experiencing significant anxiety for which he
prescribed phenobarbital (30 mg three times daily). No psychotic symptoms were
reported or observed at that time.
In May 1978, Mr. Clayton was evaluated by Jack Eardley, M.D. In his psychia tric
report, dated May 6, 1978, Dr. Eardley described Mr. Clayton as "very tangential" and
"slightly depressed." He diagnosed Mr. Clayton with organic brain disease, mild with
pares is of right upper and lower extremity; and anxiety reaction, chronic, severe,
secondary to trauma. He concluded "vocational rehabilitation for a job that would be a
quiet. solitary kind of work, reasonable repetitive, and not require significant
complicated interpersonal relations or a high level of memory performance might be
possible. His high level of tangentia l kinds of thinking will m ake this also very difficult to
Forens:c Report - Page 8

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
sustain. In the opinion of this interviewer, Mr. Clayton is currently unemployable, is
disabled, and very likely is permanently so disabled. He is considered competent to
handle his own funds."
A psychiatric evaluation, dated January 24,1979, completed by William F. Clary, M.D.,
noted that Mr. Clayton displayed "severe ideas of reference and borderline paranoid
delusions." However, a second psychiatric evaluation, dated February 22, 1980,
comoleted by Jack Eardley, M.D., noted, no special preoccupation of delusions,
haDucinations, or confusion."
On March 19, 1980, Mr. Clayton was evaluated by Clifford I. Whipple, Ph.D.
Dr. Whipple administered the Wechsler Adult Intelligence Scale (WAIS), the GrahamKendall Memory for Design Test, the Wechsler Memory Scale (WMS), and the Wide
Range Achievement Test (WRAT). On the WAIS, Mr. Clayton obtained a Full Scale IQ
of 75 (borderline range), with a VerbaiiQ of 76 (borderline range), and a Performance
IQ of 73 (borderline range). His read ing level was assessed at the 5.6 grade level, and
his spelling at the 4 .1 grade level. His memory functioning, as assessed by the WMS.
was in the low average range.
In a report dated March 31 , 1980, Dr. Klinkerfuss noted that Mr. Clayton was convinced
ihat others were talking about him. He also described experiencing visual
hallucinations (e.g., people walking beside him and entering his bedroom at night) and
auditory hallucinations (e. g., people talking, a door slamming, and drawers opening and
closing). Dr. Klinkerfuss concl uded, "[Mr. Clayton] has an organic brain syndrome and
also marked paranoid ideation with hallucinations and delusions." He also speculated
that Mr. Clayton was experiencing seizures given his wife's self-report that she had
observed him staring into space and was unable to arouse him. Dr. Klinkerfuss
prescnbed the anti-seizure medication Dilantin and the anti-psychotic medication
Haldol.
On May 16, 1983, Mr. Clayton was evaluated by Jim H. Earls, M.D. According to
Dr. Earls's psychiatric report, 'Mr. Clayton is \villing to endorse a wide variety of
psychiatric symptoms. . . But when asked to describe what the sensations were like he
could not do so. Such a readiness to over endorse symptomatology casts some
questions upon the presence of any of these symptoms." Dr. Earls opined Mr. Clayton
was not psychotic and offered the following diagnoses: organic personality, secondary
to brain injury; chronic alcohol abuse, in remission; and probable histrionic personality
disorder. He concluded Mr. Clayton's highest level of adaptive functioning in the past
year was "marginal."

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
Mr. Clayton was seen by Douglas A. Stevens, Ph.D. at Southwestern Human Services
Institute, for a psychological, neuropsychological, and vocational evaluation, on
September 30, 1983. During this evaluation, Mr. Clayton reported experiencing
significant depressive and psychotic symptoms. In addition, he perfo rmed poorly on
neuropsychological measures leading Dr. Stevens to conclude:
In summary, we are dealing with a man of younger vocationa l age who has a
limited to marginal educational achievement level. He has sustained a head
injury that has resulted in brain damage. This has not only impaired sensory,
motor, and cognitive functions, but also has resulted in a psychotic
component. best described as a schizophrenic disorder, paranoid type. His
most severe impairment is his chronic brain syndrome, with demonstrated
deterioration in intellectual functioning, manifested by marked memory defect
for recent events and impoverished, slowed, perseverative thinking with
confusion. Secondary to this, he has a psychotic disorder characterized by
thought disorganization, depression, agitation, hallucinations and delusions,
regressive behavior and some inappropriateness of affect. . . There is
presently no way that this man could be expected to function in the world of
work. Whe re he push ed to do so, he would become a danger both to himself
an d others. He has had both suicida l and homicidal impulses, so far
controlled, th ough under pressure they would be expected to exacerbate. He
is best left alone and allowed to exist at this present marginal level of
functioning.
In February 1984, he was referred to Psychiatric and Psychological Associates for
mental health treatment. He was seen by James Bright, M.D., who diagnosed him with
organic personality disorder. Dr. Bright noted the presence of psychotic symptoms and
prescribed the anti-psychotic medication Thorazine (chlorpromazine) (50 mg four times
daily). In March 1984, Dr. Bright wrote a strongly-worded letter opining, "[Mr. Clayton] is
totally disabled and will be permanently totally disabled. He cannot work. He will not be
able to work any time in the next twelve months. He will not be able to work doing
anything. He will not be able to work doing any low stress jobs. He cannot work. He
cannot work."
According to the available information, Mr. Clayton began to abuse alcohol very heavily
during the mid-1980's. In 1986, he was charged with Driving While Intoxicated (OWl)
and lost his driver's license. In 1987, his vlife fi!ed for divorce due to his alcoholism.
This reportedly prompted him to voluntarily admit himself to a 28-day inpatient alcohol
treatrneu program at Freeman Hospital in Joplin. Missouri. According to records from
this facility, Mr. Clayton presented as anxious but not psychotic during this
hospitalization. Progress notes described him as :solative and quiet. His diagnoses
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CLAYTON. Cecil
Reg. No. 16884-045
January 18, 2005
upon discharge included alcoholism, history of chronic anxiety, and history of
pen etrating brain injury.
No m ental health records were available to review covering the time period from 1987
until his arrest for murder of Officer Castetter in November 1996. Records from the
Lawrence County Jail indicate that Mr. Cla yton was periodically seen by a physician
while housed at that facility. Progress notes from January 1997 described Mr. Clayton
as extremely anxious and agitated but not psychotic. Consequently, he was prescribed
the anti-anxiety medication Lorazepam (2 mg each morning and afternoon and 4 mg
each evening). However, in February 1997. it was noted that others were reporting that
he had smeared feces around the walls of the bathroom and various other ar eas of the
institution. Upon interview, Mr. Clayton vehemently denied engaging in this type of
behavior. However, he acknowledged that he had begun experiencing auditory
hallucinations. He was subsequently prescribed the anti-psychotic medication
Thorazine (chlorpromazine) ( 10 mg four times daily), and his attorney was reportedly
contacted and informed that a psychiatric evaluation was indicated. According to the
Forensic Psychological Consultation Repo rt, completed by Daniel V. Foster, Psy.D.,
Mr. Clayton's defense coun sel "refused such an evaluation, leaving the impression that
it was not in Mr. Clayton's best interest
In June 1997, Mr. Clayton was subsequently referred to Bettye Back, Ph.D., for a
neuropsychological evaluation. According to the available information, Dr. Back was
not specifically asked to address the issue of competency to stand trial in her
evaluation. According to her testimony during deposition on September 16, 1997, as
part of her neuropsychological evaluation, she reviewed Mr. Clayton's prior medical
records, interviewed Mr. Clayton, and administered neuropsychological testing. She
testified that it was her opinion that Mr. Clayton suffered from "brain damage...
maximized in the right hemisphere of the frontal area. She noted that on the Wechsler
Adult Intelligence Scale-Revised (WAIS-R), he obtained a Full Scale IQ Score of 86, a
Performance IQ Score of 84, and a VerbaiiQ Score of 88, which placed him in the low
average range of intellectual functioning. On the Wechsler Memory Scale (WMS), his
overall memory quotient was 76 which placed him in the borderline range of memory
functioning. In her opinion, his performance was suggestive of significant memory
impairment. In addition, she testified that on the Halstead-Reitan Battery of tests, he
obtained an Impairment Index score in the mild to moderate range of impairment. In
her opinion, Mr. Clayton met the diagnostic criteria for dementia, due to head trauma;
alcohol abuse (maybe dependence); and antisocial personality disorder. When asked if
she had an opinion regarding whether Mr. Clayton was capable of assisting in his own
defense, she replied, "Well, I think he can assist them somewhat That's a hard
question. His judgement's not good. He's not very bright . . I don't think he's going to
be a - Thars - that's a very difficult question and maybe, again, sort of goes into a legal
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term or a legal question more than a psychological question. You know, in te rmsLegally, I'm not sure how to answer that. From a psychological point of view I don't
think he would be a great deal of help to anyone in making any kinds of decisions about
things. . . I don't know that he would be a lot of nelp, but I'm sure - Maybe you need 10
tell me what the legal requirements for that - Although she never provided an opinion
regarding his competency, sh e later testified that he was capable of differentiating
between right and wrong but unable to "control his behavior in certain circumstances."
In January 2000, more than two years following his conviction and death sentence,
Mr. Clayton was referred to Daniel V. Foster, Psy. D., for a men tal health evaluation to
assess whether: 1) Mr. Clayton suffered from a mental disease or defect that made him
incapable of deliberation before the homicide, 2) Any aspect of Mr. Clayton's mental
health mitigated the crime, 3) Mr. Clayton was competent to stand trial, and 4)
Mr. Clayton was competent at the time of the offense. Dr. Foster reportedly met with
Mr. Clayton for a total of 4 .3 hours, cutting the interview short "due to Mr. Clayton's
inability to meaningfully proceed." During this interview, Mr. Clayton reportedly
demonstrated an adequate factual understanding of his legal situation and the roles of
courtroom parJcipants. However, Dr. Foster noted, his thoughts and speech were
"somewhat rambling and disorganized ... [and) He was irrational in some respects,
alluding to vague plots and devout in his assertion that 'Christ will see me through.'" In
the opinion of Dr. Foster, "his distractibility, emotional lability, and poor concentration
preclude his meaningful participation in procedures that last for hours or days ... His
impairment is not one of base intelligence but frequent and random interference both by
scar tissue present and even more so by the brain tissue no longer present . . He is
inconsistently competent. .. It is his inability to recall facts on demand th at impairs his
competency." After reviewing the available information, Dr. Foster also opined,
"Mr. Clayton did not have the capacity to form intent or appreciate the seriousness of
his act at the time of the shooting.
Dr. Bettye Back-Morse was deposed a second time on October 31 , 2000. During this
deposition, Dr. Back-Morse again testified that she had not assessed Mr. Clayton's
competency to stand trial during her evaluation in 1997. However, upon further
questioning, she stated, "If I felt he could- was not competent to stand trial, I would
have told him [Mr. Clayton's defense attorney)." She then stated that she believed
Mr. Clayton had been competent to stand trial, saying, "I fe lt like he was able to assist
Mr. Rhoades and to tell him what had happened to the best of his ability. I didn't - He
was not mentally retarded. He was not actively psychotic at the time." However, when
asked to state the standard for competency. she incorrectly stated, "the ability to
understand the difference between right and wrong and to be able to conform your
behavior to that and to the standard of the law." When informed that this was incorrect
as it referred more closely to the standard of insanity, she then answered, "Competency

CLAYTON, Cecil
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January 18 2005
is to be able to assist your attorney in your defense, to understand the meaning of the
charges against you. I think basically that's what I remember about it. It's been awhile
since I've done those."
As far as I know, no further forensic evaluations have been completed until the present
evaluation. Records from the Missouri Department of Corrections consistently
described Mr. Clayton as functioning adequately on death row. Although no psychotic
symptoms were ever reported or observed, Mr. Clayton was noted to periodically report
depressive symptoms. As a result, he has been prescribed several different antidepressant medications over the past several years. including Doxepin (Stnequan),
Efavil (amitriptyline), Paxil (paroxetine), and Trazadone (desyrel). He has also been
periodically prescribed the anti-anxiety medication Ativan (lorazepam), as well as
Tegretol (carbamazepine), an anti-seizure medication which is often used to treat
symptoms of mood disturbance. Just prior to his transfer to this facility, his working
diagnosis according to Missouri Department of Corrections records was anxiety
disorder, not otherwise specified; major depressive disorder; and organic dementia,
mild.
BEHAVIORAL OBSERVATIONS AND HOSPITAL COURSE
Mr. Clayton was admitted to a locked housing unit of the Mental Health Evaluation Unit
of the United States Medical Center on May 6. 2004. At the time of his admission, he
was prescribed the following: atenolol (50 mg daily), a blood pressure medication:
isosorbide dinitrate (60 mg daily), a coronary vasodilator; triamterene/HCTZ, a diuretic;
niacin (500 mg daily), a vitamin B complex component, Paxil (paroxetine) (30 mg daily),
an antk!epressant medication; and Trazodone (desyrel) (100 mg daily), an antidepressant medication. The day following his admission, Mr. Clayton was interviewed
by Staff Psychiatrist James Wolfson, M.D. During this interview, Mr. Clayton initially
presented as irritable, complaining about the manner in which his hand restraints had
been applied. However, after this initial irritability subsided, he presented as friendly
and coopera tive. He reported a history of a penetrating head injury in 1972, and
related that since this injury, he has periodically experienced depressive symptoms as
well as auditory and visual hallucinations. He also reported a history of blindness in his
right eye and difficulty hearing. His mood appeared euthymic, and he denied currently
experiencing suicidal ideation or intent. He agreed to contact staff if this changed, and
he was not judged to be at imminent risk for self-harm. No overt psychotic symptoms
were observed during this interview.
Mr. Clayton remained on a locked housing unit throughout his evaluation course.
Correctional and nursing staff from his housing unit consistently described him as
friendly and cooperative. He showered and recreated regularly and maintained good

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
grooming, hygiene, and room cleanliness. He was consistently compliant with his
medications and cooperative with both psychological and medical evaluative
procedures.
During his evaluation course, Mr. Clayton was generally seen by the undersigned
evaluator on at least a weekly basis. Given his hearing deficits, it was necessary for me
to speak loudly and clearly in order for him to hear and comprehend my queries and
statements. He consistently presented as friendly and cooperative. However, he
displayed significant difficulty in remaining focused on the topic at hand and would often
go on tangents telling stories about topics which were completely irrelevant a nd
unre!ated to the topic being discussed. For example, on one occasion when asked
about the strength of the evidence against him, he began to answer relevantly but then
ended up telling a story about how his defense counsel was from Minnesota. On
another occasion, when asked to explain the role of his defense counsel, he initially
began to provide the correct answer but then began te lling a ram bling story about a
"baby killer." When reminded of the original question, Mr. Clayton would again attempt
to respond relevantly. However, he would often end up going off on a different tangenl
In addition to displaying tangential speech, Mr. Clayton also displayed an impaired
ability to inhibit the expression of his thoughts. For example, on several different
occasions, he made inappropriate comments regarding my appearance (i.e., You sure
have pretty blonde hair. I can tell you're a natural blonde because it's got streaks in it
from the sun). In addition, despite being instructed that he was not to discuss his
version of the offense, on several different occasions, he began to provide his version
of what occurred and had to be told to stop. In each of these situations, Mr. Clayton
subsequently verbalized that he was aware that he should not have made these
statements. However, he was unable to inhibit the expression of his thoughts when he
was in the moment.
Mr. Clayton appeared to respond best to a highly structured interview. However, even
during the administration of highly structured competency assessment instruments, he
required frequent re-direction in order to obtain relevant responses. Through repeated
interviewing it soon became apparent that he was generally more focused in the
mornings. In addition, he appeared to become increasingly more tangential as the
length of the interview progressed and he became tired.
Throughout his evaluation course, Mr. Clayton's behavior was well-organized and goaldirected. No bizarre, threatening, or aggressive behaviors were reported or observed.
Although Mr. Clayton occasiona lly reported experiencing auditory and visual
hallucinations. he was never observed to engage in behavior suggestive of attending to
hallucinations during clinical interviews. His mood generally appeared euthymic, and he
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CLAYTON, Cecil
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January 18, 2005
displayed a full range of emotional expression. He frequently expressed his faith in
Jesus Christ and quoted scripture. No overt delusional ideation was ever expressed.
NEUROLOGICAL TEST RESULTS
Mr. Clayton underwent a MRI study of the brain. The radiologist provided th ese
findings:
There is moderate atrophy of the anterior corpus callosum involving the genu
and anterior body. Pituitary gland is unremarkable. There is a small to
moderate-sized area of encephalomalacia invoMng the anterior right frontal
lobe. Surrounding high FLAIR signal intensity most likely represents gliosis .
Ventricles are within normal limits in size. Flow voids in th e carotid and
basilar arteries are intact. A small amount of T2 and FLAIR high signal
intensity is also seen in the white matter of the anterior left frontal lobe. The
brain stem an d cerebellum are unremarkable. There appears to be [an old)
lacunar infarct in the right caudate nucleus. The diffusion-weighted images
are unremarkable. The post-contrast images of the brain show no abnormal
enhancement. MRIImpression: 1) Traumatic changes invoMng both frontal
lobes, worse on the right; 2) old, small lacunar infarct in the right caudate
nucleus.
The SPECT study report provided these findings:
The patient was injected with the radiopharmaceutical agent in a sensory
neutra environment with subsequent high resolution tomographic imaging
performed at approximately one hour was reviewed in three-dimensional
whole-brain rotating planar and orthogonal view tomographic slices in
transaxial, parasagittal, and coronal projections with data subsequently fused
to the current MRI examination of 6/ 17/04.
Findings are of marked decrease of blood flow in the right anterior frontal
lobe which precisely corresponds to the extensive area of encephalomalacia
and gliosis demonstrated on MRI imaging. No definite abnormality of brain
perfusion is observed in the left frontal area or elsewhere in the brain.
Impression: Abnormal stu dy demonstrating marked decreased absence of
blood flow in their right anterior frontal lobe co rresponding to the region of
injury identified on MRI imaging. Brain blood flow is otherwise unremarkable.

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
NEUROPSYCHOLOGICAL CONSULTATION RESULTS
As noted previously, as part of the evaluation process, Mr. Clayton was referred for a
neuropsychological consultation which was completed by Robert L. Denney, Psy.D.,
Staff Psychologist, and Leah M. Osborn, M.A , Psychology Intern. The following
information was taken from their Neuropsychology Consultation Report:
BEHAVIORAL OBSERVATIONS
During the interview and testing sessions, Mr. Clayton was pleasant and
cooperative. His reports were generally consistent with records. However,
he frequently did not directly answer the question at hand. For example,
when asked about medical history he denied any medical problems.
However, a couple of minutes later, he began to speak of his open heart
surgery two years ago and his high blood pressure. Additionally, he initially
denied any mental health history, including hospitalizations. Later in the
interview, he described psychotic symptoms he presently experiences, as
well as past evaluations at a "mental hospital." He did not appear to be
attempting to deny symptoms and did not appear to be responding to
hallucinations during the evaluation. Rather, he appeared to have little
insight that his answers were relevant to questions asked several minutes
beforehand, but not to the question at hand. This may be indicative of slow
processing speed, which he also displayed during written tests.
Mr. Clayton does have a hearing deficit, which required that test instructions
often be repeated. Additionally, he frequently asked for further clarification of
the instructions. Once he heard and comprehended the instructions, he was
able to complete all tasks. However, he was easily distracted by tangential
thinking, and it was often necessary to redirect him. For example, during the
Picture Completion subtest of the WAIS-111, he looked at a picture of bread
and a bread knife. Instead of identifying the missing part of the picture, he
stated, "That's the way some people are-leaving sliced bread on an open
table." Similarly, on the Vocabulary subtest, when asked to define the word
"confide," Mr. Clayton told a lengthy, and somewhat inappropriate, story
about an experience he had in Wai-Mart when he offered bubble gum to a
little boy. During the Picture Arrangement subtest, he stated, "I raised five
children," which was irrelevant to the task at hand. He also exhibited this
tangential thinking during interviews. Rather than answering questions
directly, he began to tell a story to illustrate his answer. However, he would
often get lost in the story and lose his focus. When asked about employment
experience, for example, he started to speak about "hauling hay," but

ClAYTON, Cecil
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January 18 , 2005
progressed into a description of a meal he once ate after work. When he was
directed back to the topic at hand, he would focus for a brief time before his
statements again became tangential.
His judgment also appeared to be impaired. For example, he appeared
irritated during a task when he was asked to explain "What is the Koran?
Mr. Clayton stated, That's where I split with them (Muslims). They were
raised over there in the Ara b Nations. They are taking over the prison."
Additionally, while the examiner was explaining testing instructions to
Mr. Clayton. he stated that he did not mean to be disrespectful, but
proceeded to instruct the examiner on the need to rub both sides of his
forehead on a regular basis. Mr. Clayton stated that the rubbing would "bring
back" hair growth, for what he perceived to be a receding hair line. Overall, it
appeared that Mr. Clayton had significant difficulty remaining on task and
inhibiting the expression of his thoughts even during structured testing and
interv1ew sessions.
MENTAL STATUS
Mr. Clayton was alert, appropriately groomed, and oriented to date, place.
time. and person during all evaluation sessions. His eye contact was good.
His speech was clear and coherent, with appropriate volume and rate. His
memory seemed adequate for both past and recent events. Mood appeared
euthymic, with consistent affect. Mr. Clayton appeared to be easily
distracted, and his attention and concentration appeared to waiver. His
thought process seemed disorganized. as he would often offer tangential
explanations to interview questions. and 1nterject irrelevant information. He
did not appear to be acutely psychotic. However, he stated that he sees
"specks on the walls that look like they're moving." and "visions" that look like
a being." The visions reportedly disappear when he approaches them.
Mr. Clayton also reportedly has heard voices since his saw mill accident. He
sta:ed sometimes it's a good voice and calms me down; but at other times,
he hears satan's voice." He said lha! Satan's voice tells him, "They will kill
you; referring to the death penalty. According to the defendant, the voices
seem to be in the room, and he occasionally asks them to "show
themselves." He denied experiencing auditory or visual hallucinations prior to
the saw mill accident. Mr. Clayton's s:atemen!s did not appear to be
paranoid, although records indicate that he initially refused to give his blood
for routine laboratory tests. Reports stated that he appeared suspicious," but
that he even tually gave his blood after talking furth er with medical staff.

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January 18, 2005
He did not appear clinically depressed, anxious, or to be experiencing acute
symptoms of mood disorder. Mr. Clayton denied a history of suicide
attempts, although he admitted to suicidal ideation on occasion. He denied
current or recent suicidal ideation, intent, or plan.
NEUROPSYCHOLOGICAL TEST RESULTS
Validjtv Issues: Effort and Motivation
A variety of tests sensitive to attempts to exaggerate or fabricate true level of
cognitive impairment vrere administered to Mr. Clayton. His performance on
these measures, as well as on other clinical tests, demonstrated no dear
intention to exaggerate deficiTs or to otherwise appear extremely impaired on
all tasks. However, his performance on some tasks reflected impairment
significantly greater than would be expected. For example, Mr. Clayton
recalled only 8 of 15 items on a simple test of visual memory, which is
suggestive of malingering. He recognized only 2 of the fifteen items when 30
items were shown to him. It is very unusual for memory in the form of free
recall (with no visual cues) to exceed recognition memory (with visual cues
presented). Further, he produced odd, additional shapes during the free
recall that violated the basic grouping rule of stimuli; such a performance is
not consistent with legitimate memory impairment
On the VIP, results of both the verbal and nonverbal subtests suggested that
Mr. Clayton probably intended to answer some items correctly, but that his
performance was compromised by insufficient effort. This may be indicative
of fatigue or distraction from the task. On the CARB, Mr. Clayton's pattern of
responding also suggested poor effort or some form of negative response
bias. Three blocks of stimuli were presented consecutively to Mr. Clayton on
a computer screen. It is expected, according to the normative sample, that
his performance would be consistent over the three blocks. However, his
response pattern indicated a decrease in perform ance across blocks, where
the score on the first block was higher than the score on the second, and the
second was higher than the third. This pattern suggests a possibility of
attention and distraction difficulties; however, his overall performance on the
task was 6.6 standard deviations below the average performance of severely
rraumatically brain injured patients, a deviation which cannot be sufficiently
explained by lack of attention. Rather, this pattern suggests that
Mr. Clayton's functioning may indeed be impaired, but that he was
exaggerating the extent and nature of clinical symptoms to appear more
impaired than is truly the case. Additionally he performed on the cut-off for

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
negative response bias on the Word Memory Test. This poor score becomes
meaningful when one realizes the index is not sensitive to brain injury in all
but the most severely compromised individuals, and his score fell over tv1o
and one-half standard deviations below the average performance of severely
brain injured patients. Such a performance was not consistent with good
effort, even in the presence of demonstrable brain injury.
There were other test validity indicators where he performed in the expected
range as well as the suspicious range. Overall, these results suggested an
inconsistent effort pattern . Occasionally, Mr. Clayton put forth good effort,
but occasionally he exaggerated his deficits. Consequently, the following test
results likely do not reflect his true abilities. Some of the scores appeared
consistent with past evaluations (prior to the current charge) and, therefore,
suggested more reliable results. Other scores appeared to be indicative of
exaggerated deficit Rather than disregarding all the test results as invalid,
we will attempt to provide descriptions of test results and note whether or not
they are consistent and reasonable or more likely due to poor effort.
Summarv Indicators
The Halstead Impairment Index of .7 was suggestive that the overall test
battery \'VCIS positive for neurocognitive compromise, although when using age
and education corrected demographic norms, the score fell in the average
range. The other three most sensitive indicators of neurocognitive
compromise in the battery (Booklet Category Test, Trail Making Test-Part B,
and Ta ctual Performance Test-Localization) were indicative of impairment,
ra nging from the extremely low to the low average range of functioning.
Overall, these results suggest moderate to severe neurocognitive impairment.
Further discussion of specific strengths and weaknesses follow.
Attention and Concentration
Neuropsychological test results sugges~ed deficits in attention and
concentration. Mr. Clayton exhibrted difficulty with sustained attention during
auditory tasks, especially when the tasks were lengthy. For example, his
perform ance during th e SRT, a relatively short test involving listening to
pattern s of tones, was in the average range. During a longer task that
involved discriminating speech sounds (SSPT), his score was in the
borderline range. His Working Memory Index Scores on both the WAIS-111
and the WMS-111 were in the borderline range . On the WAIS-111, the score
was comprised of auditory tasks. Mr. Clayton \'VCIS able to accurately repeat
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ClAYTON Cecil
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January 18, 2005
only three verbally-presented digits in a row. When asked to recite a string of
digits backwards from the way they were presented, he could recite only
strings through a total of four digits. This very poor Digit Span performance
was suspicious for weak effort, but ta ken together, these performances
suggested fu nctioning in the borderline range . His ability to solve verbal
arithmetic problems wa s in the extremely low range. Only his ability to
organize strings of numbers and letters on the Letter-Number Sequencing
subtest was in th e average range. His performance on this subtest on the
WMS-111, however, was in the borderline range. This significant difference
between performances on very similar tasks suggests that Mr. Clayton did not
exert his best effort on that subtest of the WMS-111.
Mr. Clayton does have bilateral hearing Joss, which may partially account for
his poor performance on auditory tasks. However, his performance on tests
of visual scanning and sustained attention for visual stimuli was also
impaired. On the Trail Making Test, Part A , for instance, his score was in the
range of mild impairment. His ability to touch blocks in forward and backward
sequence was also in the borderline range. Scores on the Digit Symbol and
Symbol Search subtests of the WAI S-111 were both in the extremely low
range. On Trail A and Digit Symbol, he did not make careless errors.
However, his processing speed was very slow, as evidenced by the
Processing Speed Index of the WAIS-111 placing in the extremely low range.
Not only was his processing speed slow on Symbol Search, as evidenced by
his completion of only 14 items in 120 seconds. but he also made three
errors.
Overall resuHs suggest substantial variabdity with attention, concentration,
and mental processing speed. Some of the resuHs were quite poor, yet other
tests were normal. For example, the Letter-Number Sequencing subtest is
given twice, once during the WAIS-111 and again during the WMS-111. During
the WAIS-111, he achieved a normal score (Aged Scale Score of 10), yet on
the WMS-111, his score fell to Age Scale Score of 5- a substantially impaired
score. The fact he could produ ce a Letter-Numbering Sequencing score in
the normal range demonstrates he has acceptable concentration skills,
regardless of his very poor scores on the above attention/concentration
measures. In addition, these poor results must be looked at critically due to
the poor validity test resuHs. One could argue that these poor
attention/concentration scores are the cause of his poor performance on
effort tests, but his performance on the WMT was below the average
performance of 10-year-old children with Attention Deficit-Hyperactivity
Disorder. These resuHs, in addition to a normal Letter-Number Sequencing
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CLAYTON, Cecil
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score. make it unlikely that his poor performance on the validity measures
was due to poor attention and concentration.
Intellectual Functioning and Reading Abil ity
Mr. Clayton's performance on the WAIS-111 was consistent with his scores on
the WAIS during prior psychological eva!uations. His Full Scale IQ score
placed in the borderline range (71), with VerbaiiQ of 75 (borderline range)
and Performance IQ of 72 (borderline range). His verbal and nonverbal
scores are not significantly different. They likely reflect his true current
intellectual efficiency. On individual subtests of the WAIS-111, Mr. Clayton's
scores ranged from the extremely low ra nge to th e average range . In the
verbal domain, he demonstrated relative strengths in vocabulary and
knowledge of general info rmation, which was also consistent with his
performance during past evaluations. Relative strengths were also evidenced
in his ability to mentally organize letters and numbers and designs (average
range), as well as his capacity to manually manipulate blocks into specified
designs (low average range). Relative weaknesses were noted in verbal
arithmetic, identifying missing parts of common objects, and organizing
pictures into stories. These scores were in the extremely low range.
Mr. Clayton's score on the WTAR was 78, which was significantly lower than
the score (94) predicted by his demographic information in a normative
population. His current WAIS-111score of 71 likely reflects a decrease in
inte llectual efficiency secondary to the traumatic brain injury. Add itionally, his
score on the Reading Comprehension subtest of the PlAT -R placed his
reading comprehension ability at a fourth grade level. However, these scores
are consistent with past findings that Mr. Clayton's reading ability is weak.
Learning and Memory
Mr. Clayton's performance produced a WMS-111 Immediate Memory Index
Score of 74, which placed in the borderline range. This score is customarily
indicative of weak learning. It was better than the Memory Quotient score of
62 obtained in 1983. There was no significant difference in his ability to learn
information verbally and visually.
His General Memory Index Score on the WMS-111 of 86 fell in the low average
range. Mr. Clayton recalled auditory information in the average range (Index
Score 92) and, with auditory cues. also recognized the stimuli to the average
degree (Index Score 95). His ability to encode and reproduce visual

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
information on the WMS-111 was relatively, although not significantly, weaker
than his memory for auditory information (Index Scores of 81 and 92,
respectively).
On the Rey Complex Figure Test, his immediate memory of the figure was in
the borderline range; his recall after a 30-minute delay was in the low average
range; and his recogn ition memory (with visual cues) was in the average
range. This is further evidence that Mr. Clayton's propensity for learning
visual information is low, but he can retain the information he does learn.
This pattern suggested adequate effort and likely reflects his approximate
!rue abilities.
He was able to recall six out of 10 shapes during the TPT, a score which fell
in the low average range for a man of his age and education. He could not
remember any of the proper locations, however, which fell in the mildly
impaired range for his demographic group.
Sensory Perceptual Functioning
The total number of errors Mr. Clayton made on the Sensory Perceptual
Examination suggested moderate to severe impairment on both sides of his
body. The time required for him to recognize shapes by touch was
significantly greater on his right side, as compared to his left. Results
showed that Mr. Clayton was unable to detect soft sound in his right ear. His
hearing in his left ear appeared adequate. Furthermore, his vision on his
right side was severely impaired. He demonstrated an inability to detect
movement in the right lower visual quadrant This suggested a right inferior
quandrantanopia. His ability to detect touch on each of his fingers was within
normal limits. He demonstrated increased slowness in identifying shapes
with his right hand compared to his left, with a score in the mildly impaired
range .
Motor Functioning
Mr. Clayton performed in the average range on the Finger Tapping Test with
both his dominant hand (right), and in the above average range with his
nondominant hand (left). His grip strength in his dominant hand was also
within normal limits, although his strength in his nondominant hand was
moderately impaired. His performance on a motor task that required him to
exhibit more complex motor movement (Grooved Pegboard), was modera tely
impaired on both the dominant and nondominant sides. Likewise, his ability

CLAYTON, Cecil
Reg. No. 168~5
January 18, 2005
to place blocks in their corresponding shapes on a board was in the low
average range on his dominant side and mildly impaired on his nondominant
side.
Language Functioning
When compared to the normative sample, Mr. Clayton's ability to
spontaneously generate, and write, words according to simple rules, was in
the average range. This finding is despite his tendency to perseverate on
words he had written previously. During confrontational naming, however, he
demonstrated that he recognized the object, by stating its purpose. However
his ability to name the object was well below average, suggesting moderate
dysnomia. He also demonstrated spelling dyspraxia and central dysarthria.
Visuospatial Functioning
Mr. Clayton's overall score on the Perceptual Organization Index of the
WAIS-111 was in the high borderline range. His performance on Block Design
and Matrix Reasoning subtests were in the low average to average range of
functioning. On the Rey Complex Figure, his drawing was inaccurate, but the
relationship of the parts to each other and to the whole figure were adequate.
In addition, his strategy and organization in constructing the figure became
increasingly more logical as he constructed the figure during the two memory
trials. His drawing of two crosses, in close proximity, were spatially correcl
His copy of a key was spa tially correct. but somewhat impoverished.
Executjve Functioning
Executive functioning involves planning, reasoning, concept formation, and
judgment, which are functions commonly attributed to the frontal lobes.
Consistent with MRI findings of frontal atrophy, Mr. Clayton's testing results
indicate severe executive dysfunction. On the Trail B, Mr. Clayton
demonstrated extreme difficulty with mental flexibility, as he attempted to
alternate between consecutive numbers and letters. He easily lost track of
his strategy and made multiple errors during the test The Booklet Category
Test is a measure of non-verbal complex reasoning, problem solving, and
concept formation. Mr. Clayton's performance on this test was in the mild to
moderately impaired range. even when correcting for age and education. He
demonstrated significant difficulty arriving at the correct strategy, especially
during the more complex subtests. During a simpler test of concept
formation, the Wisconsin Card Sorting Test. he was unable to complete even
Fore nsic Report - Page 23

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
one category correctly. Rather, he perseverated on an incorrect response
125 times in a row, despite feedback that his responses were incorrect This
score is considered severely impaired.
Mr. Clayton also exhibited deficits in abstract reasoning and judgment during
ve rbal tasks. On the Similarities subtest of the WAIS-111, which asks the
participant to tell how two objects or concepts are alike, Mr. Clayton
performed in the low borderline range. His performance was also in the low
borderline range on the Comprehension subtest, where he was asked to give
answers to common social problems. His responses demonstrated rigid
thinking and poor judgment.
Emotional Functioning
To assess em otional functioning, Mr. Clayton was administered the MMPJ-2,
which is a 567-item self-report inventory. He read all items and recorded his
responses without assistance. His response time was long, and he said he
had difficulty due to eye strain. which resulted in his requiring several hours to
complete the test.
Test results indicated that his responses to the items were consistent,
con firming his ability to read and to comprehend the items. Mr. Clayton
endorsed a large number of items related to severe psychopathology.
However, the frequency with which he endorsed items related to psychosis
was not higher than that which truly psychotic people endorse. He endorsed
a very high number of items related suspiciousness and paranoia, but most
of these items are true given his legal situation. His profile is indicative of
someone who appears to experience hallucinations and extreme suspicion.
Such persons typically feel mistreated by others and, consequently, feel
angry and resentful. They also tend to be shy, introverted, and socially
withdrawn, but may become aggressive when drinking alcohol. Mr. Clayton
did endorse items suggesting problems with substance abuse . Such persons
often harbor intense feelings of inferiority and may withdraw from activities.
Mr. Clayton endorsed items suggesting that he is ineffective in dealing wrth
the problems of daily life. His profile also suggests that he over-endorsed
items related to somatic concerns.
TEST RESULTS OF COMPETENCY ASSESSMENT INSTRUMENTS
On December 6 , 2004, Mr. Clayton was administered the ECST-R and CAST-MR.
These two assessment instruments were administered. scored. and interpre:ed by Mary

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
A. Martin, M .S. Psycho logy Intern, and Robert L. Denney, Psy.D., Staff Psychologist.
The following information was taken from their Neuropsychological Consultation
Addendum report, dated January 4, 2005:
ECST-R
The ECST-R is a semi-structured interview designed to assess the
psycholegal domains relevant to the legal standard for competency to stand
trial. The ECST-R contains items pertaining to four areas of competency:
Factual Understanding of the Courtroom Proceedings (FAC), Rational
Understanding of the Courtroom Proceedings (RAC), Con sult with Counsel
(CWC), and Overall Rational Ability. Standard questions are followed by
optional probes and unstructured queries in order to clarify questions and to
gather additional case-specific information .
Mr. Clayton achieved T scores of 45 for FAC, 44 for RAC, 45 for ewe. and
44 for Overall Rational Ability. These scores all fell within the normal range,
well below the cu t off suggested for impairment. Results indicated he
evidenced an adequate overall level of rational understanding, to the extent
he was able to reason through alternatives in his case and to sufficiently
assist his attorney.
Mr. Clayton provided his atlorneys name and evinced that he clearty
understood the role of his attorney in his case. He understood what IS meant
by a plea bargain and identified the possible harm in discussing his case with
anyone other than his defense attorney. He stated his willingness to assist
his attorney in all aspects of his defense. He reported his intentions to rely on
his attorney in the decision as to whether he should testify and identified the
risks involved in testifying. He knew what would be considered appropriate
and inappropriate behavior in the courtroom. He demonstrated the capacity
to conform himself to expectations of appropriate behavior. He provided
information relating to the appeals procedures and the possible outcomes,
including acquittal, a new trial, and an affirmation of his conviction. He sta~ed
his belief that the most likely outcome was a new trial, and he described the
possible risks involved in proceeding with a new trial. It was difficult to
ascertain whether he could recall and relate pertinent information regarding
his offe nse beh avior to his attorney , due to our inability to discuss the
offense . However, there was no evidence obtained during th e present
evaluation or the neuropsychological evaluation to suggest he would be
unable to do so.

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
Mr. Clayton's performance on the ECST-R indicated he has a basic
knowledge of the nature and consequences of the charges against him. He
was able to identify the charge againsl him {'first degree premeditated
murder" and armed crim1nal action"). When tnitially asked to define that
charge, Mr. Clayton attempted to relay his defense ("The bullet doesn't match
the gun"), vaguely describe the charg e ("It's a vile action, sometimes selfdefense"), or provide an illustration ("You keep someone, looking for his
weaknesses, psych him out, like a coyote or wolf'). After repeating the
question several times, he was able to demonstrate an understanding of the
nature of the charge ("Someone's lost his life ... Killed a man."}. He
demonstrated an understanding of the consequences of this charge, stating
he has been sentenced to death and is currently participating in the "habeas
corpus process in an attempt to appeal this decision.
Mr. Clayton knew the roles and responsibilities of courtroom personnel as
well as basic courtroom procedures. He initially identified the bailiff as the
person managing the judge's responsibilities but was able to correctly identify
the judge after he was educated by the examiner. He knew the roles of the
defense attorney and the prosecuting attorney. Mr. Clayton also provided an
adequate description of the jury's responsibilities (i.e., "They listen to
evidence, go to a room , select one man or woman to talk ...They deliberated
less than two hours in my case").
CAST-MR
The CAST-MR is a competency assessm ent tool designed for use with
mentally retarded individuals. Two thirds of the instrument is comprised of
multiple choice questions. These "closed-ended" questions are better suited
for individuals who have difficulty with "open-ended" questions, a common
difficulty for those with mental reta rd ation. The multiple choice portions cover
understanding basic legal concepts and skills to assist in a defense. The last
portion of the test is comprised of open-ended questions that measure the
evaluee's understanding of their own case events (this portion was omitted
for Mr. Clayton). While not validafed on brain injured individuals, per se, it
should provide information about Mr. Claytons understanding without
penalizing him for having tangential difficulties with open-ended questions.
The manual indicates that when not administering the "Understanding Case
Events" portion (section Ill), the average score for th e first two sections
should be used. In this manner we obtained a pro-rated total score for
Mr. Clayton in order to compare to the instrument's normative base.

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
Mr. Clayton obtained a raw score of 24 (96%) for section 1: Basic Legal
Concepts. This score was consistent with presumed competent individuals
without mental retardation. He obtain ed a raw score of 13 (87%) on section II:
Skills to Assist Defense. This score was also consistent with the performance
of presumed competent individuals without mental retardation. Prorating the
total test based on the overall performance on sections I and II provided an
overall score of 46 (92%). This score was consistent with presumed
competent individuals without mental retardation as well.
Again, the CAST -MR is not validated on individuals with brain injury;
however, it provides us with a score for comparison purposes (albeit
confounded by prorating). Mr. Clayton's performance was consistent with
presumed competent, neurologically normal individuals. His scores were
higher than those scores produced by mentally retarded individuals who were
considered competent to proceed.
On December 9, 2004, Mr. Clayton was administered the MacArthur Competence
Assessment Tool - Criminal Adjudication (MacCAT -CA). This instrument was
administered, scored, and interpreted by the undersigned evaluator. Given the
subjective nature of the scoring, I consulted with a colleague, Richart DeMier, Ph.D., to
ensure accuracy in scoring.
The MacCA -CA consists of 22 items that measure three competency-related abilities:
Understanding (Items 1-8), Reasoning (Items 9-16), and Appreciation (Items 17-22).
The first 16 items are structured around a vignette that describes a hypothetical crime.
More specifically, these items assess the defendant's capacities to understand and
reason about the prosecution of a hypothetical defendant The last six items assess
appreciation by asking the defendant about hisfner attitudes and beliefs concerning the
process involved in their own cases. The wording of some of these items were altered
slightly 10 m ake them relevant to Mr. Clayton's legal status. For example, the question
compared to other people found guilty of this kind of crime, do you think you will gel
more punishment, less punishment, or about the same punishment if you are found
guilty? was changed to read, "Compared to other people found guilty of this kind of
crime, do you think you received more punishment, less punishment, or about the same
punishment?"
Mr. Clayton obtained a score of 10 out of a possible 16 on items which assessed the
concept of Understanding. This score is indicative of an adequate factual
understanding of the legal proceedings associated with adjudication. More specifically,
it indicates he is able to adequately comprehend legal terms. the roles of the various
participants in the courtroom. and the basic parameters and features of the different

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
stages of adjudication. He obtained a score of 8 out of a possible 16 on items which
assessed the concept of Reasoning. This score was indicative of impaired reasoning
abilities. Two types of items comprise the Reasoning measure: recognizing relevance
and evaluating alternatives. Mr. Clayton's performance on these items indicated that he
was able to recognize relevant information. However, he displayed significant difficulty
in being able to reason between two legal options. Mr. Clayton obtained a score of 3
out of a possible 12 on items which assessed the concept of Appreciation. This score
is indicative of significant impairment. Although Mr. Clayton did not express delusional
ideation about his legal situation, he typically provided rationales for his answers which
were irrational or failed to support his position.
CLINICAL FORMULATION
Mr Clayton has a history of severe brain rrauma. secondary to a sawmill accident in
1972. Following this head injury, he reponedly demonstrated significant impairment 1n
social and occupational functioning. Mental health records document that following his
head injury he displayed cognitive deficits (i. e., forgetfulness, impaired concentration,
impulsivity, and tangential speech), as well as psychiatric symptoms (i.e., anxiety,
depression, and hallucinations). In the late 1970's and early 1980's, he was typically
diagnosed with organic brain syndrome and/or organic personality disorder, terms
which are no longer utilized in the current version of the Diagnostic and Statistical
Manual of Mental Disorders. More recently, he has been diagnosed by Dr. Bettye
Back-Morse as meeting the diagnostic cmeria for dementia, due to head trauma;
alcohol abuse (maybe dependence); and antisocial personality disorder.
According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition,
the essential feature of dementia is "the development of multiple cognitive deficits that
include memory impairment and at least one of the following cog nitive disturbances:
aphasia, apraxia, agnosia, or a disturbance in executive functioning." Additionally, the
cognitive deficits "must be sufficiently severe to cause impairment in occupational or
social functioning and must represent a decline from a previously higher level of
functioning: When individuals present with some but not all of the symptoms of
dementia, then the diagnosis of cognitive d isorder not otherwise specified, is to be
used.
Neuropsychological testing completed during the present evaluation indicated that
Mr. Clayton has moderate to severe, diffuse and static, bilatera l brain damage that has
a significant effect on his ability to function in both sensory and motor realms. His most
prominent deficits were functional impairments customarily considered frontal lobe in
nature. More specifically, he demonstrated significant deficits in judgement, problemsolving, mental flexibility, processing speed and inhibition. His most incapacitating
Sen s itive Limited Official Use

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
deficits were likely his impaired judgment and inability to inhibit the expression of
thoughts. His disinhibition is likely a significant factor in his difficulty in attending to and
concentrating on even highly structured tasks. These impairments are consistent with
the MRI resus showing bilateral fronta l lobe abnormality and SPECT resus
suggesting hypometabolism in the right frontal area . Frontal damage of this type tends
to impair attention by heightening the level of arousal, such that specific relevant
perceptions are not distinguish ed from irrelevant or inappropriate one s. Relative
cognitive strengths included his knowledge of vocabulary, despite a low reading level,
and his visuospatial constructional abilities. His ability to learn new material was weak,
although he did exhibit the ability to retain information when it was repeated several
times. He was able to accurately reproduce auditory and visual information that had
been presented to him with repetition, even after a delay. Ahough it is certainly
understandable why he has been given the diagnosis of dementia in the past, the
current neuropsych ological testing results suggest that the diagnosis of cognitive
disorder, not otherwise specified, is more appropriate. As noted previously, significant
impairment in memory is a requirement for the diagnosis of dementia. During the
current evaluation, his performance on tests assessing memory, although weak at
times, did not suggest severe impairment.
As described above, Mr. Clayton has a well-documented history of periodically
experiencing visual and auditory hallucinations since his brain injury. His description of
these hallucinations appear genuine in that they are consistent with the type of
hallucinations that can be created by significant brain damage. Consequently, the
diagnosis of psychotic disorder, with hallucinations, due to traumatic brain injury,
appears indicated.
Mr. Clayton also has a history of periodically experiencing depressive symptoms.
Throughout the present evaluation, he was compliant \vith the anti-depressant
medications of Paxil (paroxetine) and Trazadone (desyrel), and he consistently denied
currently experiencing symptoms of depression. More specifically, he denied
experiencing feelings of sadness, hopelessness, or helplessness . No disturbances in
sleep or appetite were reported or observed. His energy level appeared to be within
normal limits He consistently denied suicidal ideation or intent. Consequently the
diagnosis oi major depressive disorder, in remission with anti-depressant medicabon
appears aporopriate.
Although some clinician s in the past have diagnosed Mr. Clayton as su ffering from
antisocial person ality disorder, I did not have enough information to support th is
diagnosis. According to the Diagnostic and Statistical Manual of Mental Disorders.
Fourth Edition. antisocial personality disorder is characterized by a pervasive pattern of
disregard for and violation of the rights of others occurring since age 15 years." In
Sens itive Limited O fficial Use

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
addition. there must be evidence thai the individual met the diagnostic criteria for
conduct disorder prior to the age of 15. In the case of Mr. Clayton, I am unaware of any
information to suggest that he met th e criteria for conduct disorder as a child.
Lastly, it is also importan t to note that during the present evaluation, Mr. Clayton's
performance on tests sensitive to exaggeration wa s variable, which may render the test
results less reliable than if he had given his best effort on all tests. Given Mr. Clayton's
legal situation, however, exaggeration on some tests in order to appear impaired is not
surprising. Behavioral observations during this evaluation, as well as consistent
documentation of similar functional impairment in the records, support the concluson
that Mr. Clayton has signifiCant brain damage with legitimate deficits in judgement.
problem-solving, mental flexibility. processing speed, and thought inhibition.
DIAGNOSES
Based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition,
Mr. Clayton warrants these diagnoses:
Axis 1:
Cognitive disorder, not otherwise specified.

Major depressive disorder. in remission with anti-depressant medication.
Alcohol dependence, in a controlled environment.
Psychotic disorder, with hallucinations, due to traumatic brain injury.
Axis II:
Adult antisocial behavior.
Axis Ill:
History of traumatic brain injury.

History of myocardial infarction.
History of triple bypass surgery.
Hypertension.
OPINION REGARDING COMPETENCY TO PROCEED

The following opinion will be organized according to th e specific questions delineated
by the Court.
1) Is Petitioner Clayton presently suffering from a mental disease or defect?

Yes. Behavioral observations, neuropsychological testing, and MRI and SPECT results
aU support the conclusion that Mr Clayton is suffering from a mental disease or defecL
More speci;jcally, he currently meets the diagnostic criteria for cognitive disorder, not
otnel\vise specified; major depressive disorder, in remission with anti-depressant

CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
medication; alcohol dependence, in a controlled environment; and psychotic disorder,
with hallucinations, due to traumatic brain injury. However, the presence of a mental
disease or defect does not necessarily render an Individual incompetent. Rather, it is
the manner and extent to which a mental disease or defect impacts an individuars
competency-related abilities that is critJcal.
2) Does Mr. Clayton's mental disease or defect render him incapable of a rational
understanding of these habeas corpus proceedings?
No. Consistent across all three competency assessment measures, Mr. Clayton
demonstrated a good factual and rational understanding of the legal system and the
process of adjudication. More specifically, during clinical interviews, he demonstrated
an adequate rational understanding of the habeas corpus proceedings. He understood
the roles of the various individuals involved in this process -as well as the possible
outcomes. His cognitive deficits did not appear to negatively impact his ability to
understand his present legal proceedings.
3) Does Mr. Clayton's mental disease or defect render him incapable of communicating
with and assisting his counsel or testifying in these proceedings if necessary?
Although the term "incapable is too strong of a word, Mr. Clayton's cognitive deficits will
negatively impact his ability to commu nicate effectively with his defense counsel. assist
property in his defense, and testify relevantly. His performance on the ECST-R
demonstrated that he has a positive view of his defense counsel and rational
expectations regarding her abilities. In addition, his performance on this measure
suggested that he has an adequate knowledge of his attorney's expectations of his role,
and he denied experiencing significant disagreements with her. However, his
performance on the MacCAT-CA and his presentation during cli nical interviews
illustrated that his tangential speech, poor thought inhibition, and poor reasoning skills
will negatively impact his ability to relay information to his defense counsel in a coherent
and meaningful manner. Similarly, it is expected that these cognitive deficits will also
impa 1r his ability to testify in a relevant manner. As described above. Mr. Clayton
demonstra:ed extreme difficulty remaining focused during clinical interviews as well as
during the administration of structured assessment instruments. His responses to
queries were often irrelevant and tangential. When re-directed, he would attempt to
respond relevantly but generally would lose focus and begin discussing irrelevant topics
again. With repeated questioning, it was generally possible to obtain accurate factual
information from Mr. Clayton. However, this was a time-consuming process which
required a great deal of patience and persistence. Detailed knowledge of the topic
being discussed was extremely helpful because it facilitated the development of
appropriate follow-up questions necessary to obtain the desired information . Wnen I
-. "
CLAYTON, Cecil
Reg. No. 16884-045
January 18, 2005
attempted to interview Mr. Clayton regarding the content of his petition for Writ of
Habeas Corpus prior to having obtained my own copy of this document, I experienced a
great deal of difficulty understanding his responses and obtaining useful information. It
is likely that his defense counsel would face similar difficulties if trying to obtain
information from him about his case which is not available from other sources.
Additionally, it is important to note that my assessment of this question was limited by
the fact that I was prohibited from questioning Mr. Clayton regarding his version of the
offense or reviewing investigative materials regarding the offense. These two types of
informa tion are critical because they can reveal whether an individual possesses a
rationa l appreciation of the evidence in the case, deficits in the ability to recall what
occurred, or delusional beliefs about the offense. Neuropsychological testing during the
present evaluation suggested that Mr. Clayton did not possess significant memory
impairment. However, without these two types of informat:on, I am unable to state with
certainty that he has a rational appreciation of the evidence in his case and that he
does not possess delusional ideation regarding the offense.
4) Does Mr. Clayton's mental disease or defect render him unable to make rational
choices with respect to habeas proceedings?
Mr Clayton s ability to make rational choices with respect to his habeas proceedings is
also impaired as a result of his mental disease or defect. As detailed above,
neuropsychological testing indicated that he has significant impairments in problemsolving, judgement, and reasoning abilities. On the MacCAT-CA, he demonstrated
significant difficulty in being able to reason between two legal options. As noted
previously, this assessment instrument is comprised of questions about a vignette that
describes a hypothetical crime. Initially. when asked what plea he would recommend to
the hypothetical defendant, he chose the alternative of guilty. However, just a few
minutes later, he chose the alternative of not guilty and did not appear to recognize that
he had contradicted himself. On each occasion when asked to explain why he chose a
particular option, he failed to explain clear advantages or disadvantages of one option
over the other. Similarly, I believe it is likely that his deficits in executive functioning will
also negatively impact his ability to weigh the advantages and disadvantages related to
his current legal options.
Additionally, I should once again note that my ability to fully answer this question is
limited by the fact that I was prohibited from questioning Mr. Clayton regarding his
version of the offense or reviewing investigative materials regarding the offense. During
clinical interviews, Mr. Clayton reported that if given the choice between a new trial with
the chance of an acquittal or receiving a life sentence, he would choose to go to trial.
Ordinarily, I would review investigative matenals related to the offense and question the
,....
CLAYTON, Cecil
Reg. No. 16884-045
January 18 2005
defendant regarding their ve rsion of the offense and their appreciation of the evidence
in the case in order to assess whether they were making a rational decision to go to
trial.
5) Does Mr. Clayton understand th at he is to be executed and the reason for the
execution (i.e., the killing of Officer Christopher Castetter)?
Yes. Mr. Clayton was fully aware of the fact that he had been convicted of murdering
Officer Christopher Castetter. Additionally, he expressed the understanding that he had
been sentenced to death for this crime. According to Mr. Clayton, the method of
execution for the state of Missouri is lethal injection.
CONCLUSION
The issue of competency as it relates to Mr. Clayton is complex. As explained above,
he meets the diagnostic criteria for cognitive disorder, not otherwise specified, a
condition which has been present since his head injury in 1972, which negatively
impacts some, but not all, of his competency-related abilities. The ultimate
determination of whether he is competent to proceed depends a great deal on what
demands will be placed on him during the habeas proceedings. If demands placed
upon him are limited to his ability to understand the process and information his
attorney provides hirn, then I believe it is unlikely his cognitive deficits will hinder his
competency. However, the more participation that is required of him during his legal
proceedings, the more his cognitive deficits will nega tively impact his competency. As
de1ailed above, Mr. Clayton's tangential speech impaired judgement, and impaired
reasoning abilities, will negatively effect his ability to communicate effectively with his
counsel, testify relevantly, and make rational decisions regarding his habeas
proceedings. Consequently, it is my opinion he is likely not competent to proceed.
Report prepared by:
lea Ann Presion, Ph.D.

Clinical Psychologist
FORENSIC. ADOLESCENT ANO AOUL.T PSYCHIATRY
WILUAM S. LOGAN, MD
STEPHEN E. PETERSON, MD
:,) 428 WEST 42ND STREET
KANSAS CITY, MISSOURI 8"111
TELEPHONC: 18181 822500
FAX:
18181 829980
:J
231 S. 8EMISTON, SUITE 800

CLAYTON, MISSOURI 83108
TELEPHONE: (31.., 23-91 ..
FAX:
(31.., 23-922
November 3, 2008
Ms. Jeannie Willibey, Esq.

and Pete Carter, Esq.
Assistant Public Defender
Appellate I PCR Division
920 Main Suite 500
Telephone: 816-889-7699
Fax:
816-889-2088
Re:
Cecil Clayton (Dob: 4/ 16/40)
Dear Ms. Willibey and Mr. Carter:

I am writing to convey my preliminary findings concerning Mr. Clayton's
competency to be executed for the November 27, 1996 killing of Deputy
Castetter. I examined Mr. Clayton for 3.25 hours at Potosi Correctional Center
on October 16, 2008. I also have reviewed Mr. Clayton's medical, neurological
and mental health records, including prior evaluations and his MRI scan of the
brain. In addition, I have reviewed testimony transcripts of Mr. Clayton's
girlfriend, family members and those familiar with him.
,\Jr. Clayton has experienced several episodes of head trauma, the most
sig;nili<.:ant of which occurred in 1972 and produced a large area of brain death
1n his right frontal lobe. Mr. Clayton has an established diagnosis of dementia.
:\lr. Clayton's bruin damage constitutes a mental defect creating symptoms of a
signiticant memory impairment, decreased judgment and decreased ability to
process information or to grasp abstract concepts.
AI
UJG,\N & Pt;'fERSON., I'C
expound at length on marginally related topics and needs redirection to remain

on topic. His memory for many details of his history is poor, as is his more
immediate recall.
\!r. Clayton additionally has a mental disease, a delusional disorder consisting

uf persecutory and grandiose ideas that directly focus on his pending execution.
Mr. Clayton believes his conviction was the result of a conspiracy by the legal
system against him and that someone else killed Deputy Castetter.
Furthermore, despite knowing he is facing his last appeal, he firmly believes
God will intervene and his execution will not occur.
As his execution
approaches, he shows no concern and has an inappropriately elated mood. He

cannot describe any issues on which his appeal is based or any way other than
through the miraculous intervention from God that his execution will be
averted. Instead he plans to walk out of prison, sue those who have unjustly
confined him and live comfortably on the proceeds of future compensation for
his erroneous confinement. He believes his mission is to sing gospel music and
that he has been "anointed" by God to touch others hearts.
Mr. Clayton's psychosis, paranoia, religious preoccupation, memory loss and

thought disorganization are consistent with previous examinations,
radiographic findings, the observation of family and others, and the location of
his brain loss. Mr. Clayton is not producing these symptoms voluntarily to
avoid the death penalty.
\lr. Clayton's delusional ideas resulting from a mental defect and disease
prevent him from having a rational understanding or comprehending the
meaning and purpose of his punishment. While Mr. Clayton knows the State
plans to execute him for killing Deputy Cas tetter, he believes his legal situation
is instead a test of his faith and that God will not allow the punishment to
occur as God has chosen him for another mission. Hence he has no concept of
c1
need for clemency, or capacity to understand matters in extenuation,
A'>
\!r. Clayton's thought process is rambling and disorganized. He digresses to
,tr~untcnts
fnr txccutlve
clt'r11enc~
or r;ltional reasons why the sentence should
not be carried out.
SincerelY,
4~~~71?-~'
William S. Logan, MD
Diplomate, American Board of Psychiatry and Neurology 1982

Diplomate, American Board of Forensic Psychiatry l'J87
Subspecialty in Forensic Psychiatry by the
American Board of Psychiatry and Neurology 1994 and 2003
WSL/sg
'
I"OftllNSIC. A.DOL&aCilNT AND ADULT P'.TCHIA'TJIIY
WIWAM S. LOGAN, MD
STEPHEN 1L PETERSON, MD
0 231 S. SEMISTON, SUITE 800
.J ..aa WEST ..aND STRitltT

p KANSAS CITT, MISSOURI 84111
CLAYTON, MISSDURI83108
TELEPHONIC Ol.oll 23..... 1..
FAJC
(31.oll 23.....a2
TELEPHONE: (818} 8"'221100

I"AX:
(818} ...a-11880
August 28, 2013
Elizabeth Unger Carlyle, Esq.

P.O. Box 30418
Telephone:
816-764-1249
Fax:
866-764-1249
Email: elizcar@alumni.neu.edu
Re: CecU Clayton
Dear Ms. Carlyle:

At your request and that of Assistant Public Defender, Jeanie Willibey, I am
writing to provide an update on Mr. Clayton's mental status since my previous
evaluation letter dated November 3, 2008. I most recently examined Mr.
Clayton at Potosi Correctional Center for 2.75 hours on September 14, 2012. I
also have reviewed Dr. Foster's 2008 report and talked to Dr. Foster by
telephone in July 2012. Additionally I have reviewed the Petition for Writ of
Mandamus and Mr. Clayton's administrative, medical and mental health
records from1999 through August 2, 2012. I also reviewed Dr. Preston's report
of January 18, 2005.
Mr. Clayton experienced head trauma in 1972 which has produced a dementia
with decreased judgment and reduced ability to process information or grasp
abstract concepts. Mr. Clayton also has a psychoses or Delusional Disorder
with persecutory delusions, paranoia and religious preoccupation.
fv..
J~
LOGAN & PETERSON, PC::
..;.:.:.::,1Ceth Jnyer ...-:J.rlyl8,
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.::::;>'--1
Cec:l Clayton
Page: 2
~e:
Mr. Clayton's delusions focused on his pending execution in 2008 as he

believed his conviction was a conspiracy by the legal system as someone else
killed Deputy Castetter. His mood was inappropriately elated as he believed
,God had a special purpose for him and would intetvene to prevent the
execution from occurring. He believed he would walk out of prison, sing gospel
music and receive compensation for his erroneous confinement. He could not
focus on any of the issues raised in his appeal. He had no concept of a need for
clemency or capacity to understand matters in extenuation, any arguments that
could be presented for executive clemency or rational reasons why his death
sentence should not be carried out. He only knew concretely that the State
planned to execute him for killing Deputy Castetter, but believes this is only a
test of his faith and would not occur.
Thus my opinion in 2008 was that Mr. Clayton's mental defect and disease
prevented him from having a rational understanding or comprehending the
meaning and purpose of his punishment.
Dr. Preston in 2004/05 found Mr. Clayton was not competent to proceed in
Habeas proceedings and diagnosed a Cognitive Disorder, NOS; a Major
Depressive Disorder, in remission; Alcohol Dependence and a Psychotic
Disorder with hallucinations, which Dr. Preston attributed to Mr. Clayton's
traumatic brain injury. Dr. Foster in 2008 found Mr. Clayton's mental state
similar to that which he obsetved in 2000. Dr. Foster described Mr. Clayton
was cheerfully delusional and believed God would miraculously release him
from prison to sing and preach the gospel. He had isolated himself and
practiced gospel singing. Dr. Foster opined Mr. Clayton was incompetent to be
executed.
In the Missouri Department of Corrections Mr. Clayton is diagnosed with
generalized a11xiety which resolved in 2005, and a mood disorder. He is not in
mental health treatment and refused to be interviewed for his annual review on
12/19/11. It was noted he did not desire or require mental health services and
no diagnoses was made. Mr. Clayton receives no psychotropic medication. He
-v
~~
{\-l\;0
~-:.Li::J.Le:h Unger Carltle,

~~cil
Page:
Esq.
Cl3yton
has refused physical examinations, but does take medicine to lower his blood
pressure and cholesterol.
When examined on September 14, 2012 Mr. Clayton's thoughts were tangential.
He still believed God would intervene and he would one day be a gospel singer
and evangelist. He continues to believe he was unjustly convicted and will
never be executed. He just tries to get along with others and has asked God to
work on his case. He does know his attorneys are working to get him off the
capital punishment unit and then have a new trial. Past this point he has no
understanding of the issues in his proceedings. He periodically hears Satan's
voice, but states "If God is for you, who can be against you." He believes the
deputy might have been set up to shoot him. While he heard a gunshot he
states he did not shoot the deputy. He has told God he needs to get back to the
streets and bring people to Christ. He does not understand the reason for his
proposed execution. He still believes "God will do well for me.
Mr. Clayton's head trauma, documented on MRI, will never change. Likewise
his delusional ideas are not being addressed and are ftxed and unchangeable.
There is no reason to change my previous 2008 opinion that Mr. Clayton
remains not competent to be executed as he does not understand or
comprehend the reason and purpose of his pending execution.
Likewise based on his dementia and delusional disorder his ability to follow
conversations, retain information and rationally consider Ms. Carlyle's advice
concerning the method of execution is non-existent. When last interviewed, Mr.
Clayton knew Ms. Carlyle represented him but could not differentiate her role
from that of Ms. Willibey or Mr. Peter Carter. Therefore, it is my additional
opinion he is not competent to participate in upcoming mediation concerning
the method of carrying out his death sentence.
All
;"o:
Rd:
S~~=Jbeth Ur1ger Cdrlyle, Esq.

Cecil Clayton
?age: ~
Sincerely,
tv.du~ ~et-a-{ ?tJ-<9

Diplomate, American Board of Psychiatry and Neurology 1982
Diplomate, American Board of Forensic Psychiatry 1987
WSL/sg
.0:
Je:
...
FORENSIC::, ADOI..tSCENT AND ADULT PSYCHI"TRV
WIUJAM S. LOGAN, MD
STEPHEN E. PETERSON, MD
428 WEST 42ND STREET

KANSAS CITY, MISSOURI 64111
TELEPHONE: 1816) 842-2500
f' AX:
(8 I 61 842-9980
FAXED JAN 07201'5
l;l 231 S. BEMISTON, SUITE 600

CLAYTON, MISSOUR163105
TELEPHONE: (3141 23&4914
FAX:
(314) 2311-4922
January 7, 2015
Ms. Jeannie Willibey, Esq.
And Pete Carter, Esq.
Appellate/PCR Division
920 Main Suite 500
Telephone: 816-889-7699
Fax: 816-889-2088
Re:
Cecil Clavton
(Dob: 4/16/40)
Dear Ms. Wi!libey, Mr. Carter and Ms. Carlyle:

I am writing to provide an update to my earlier evaluations of Mr. Clayton on
11/3/08 and 8/25/13. Referral questions include the following issues:
>
Whether Mr. Clayton has a mental disease or defect.
Whether his brain injury prevents him from having a rational

understanding or comprehending the meaning and purpose of his
punishment.
>
Whether Mr. Clayton has the capacity to understand and believes his
execution will be carried out.
>-
Whether Mr. Clayton has the capacity to understand matters in

extenuation arguments for executive clemency or reasons why his
sentence should not be carried out.
I most recently examined Mr. Clayton at Potosi Correctional Center on January

3, 2015 with Ms. Carlyle in attendance. Additionally I reviewed his correctional
and medical file from the MDOC since 2012 to the present.
e5ed
"".
Re: Cecil Lee Claytcn

Page 2
Mr. Clayton's mental state has changed little since my earlier evaluations in
2008 and 2013. His view of his conviction is that he is the victim of a
conspiracy. His mood varies from anxiety to paranoia. He still engages in
delusional denial that his execution will take place relying on divine
intervention in some form so he can pursue a gospel ministry as a preacher and
sing with the best pianist in Missouri with whom he will tour the nation.
In regards to the efforts of his defense team, he is not oppositional but is
instead completely passive with no real understanding of pending procedures or
any legal issue that could further the progress to his execution or prevent it.
When he becomes anxious, he retreats to delusional denial that through divine
intervention his execution will be thwarted.
Mr. Clayton's abnormal mental state is largely due to a catastrophic traumatic
brain injury in 1972 which severely limits his ability to process or grasp
information or to exercise normal judgment about his legal situation.
Consequently my opinions are unchanged and are as follows:
1. Mr. Clayton has a mental disease and defect.
2. Consequently Mr. Clayton's brain injury prevents him from having a
rational understanding of his situation or comprehending the actual
meaning and purpose of his proposed punishment, seeing the proposed
execution as a test from God of his faith.
3. Mr. Clayton continues to believe he will not be executed and that his
death from execution will not occur due to divine intervention so he can
pursue his true calling.
4. Mr. Clayton, due to his delusional denial, lacks the capacity to
understand matters in extenuation, arguments for executive clemency or
any reasons his attorneys might present as to why his sentence should
not be carried out. In this regard he accepts that God may choose to
e5ed
0866<:1789 ~8
'J'd 'uosJe+d 1? ue6ol WV9 ~:go g ~Oc 80 uer
Re:
Cecil Lee Clayton
Page 3
work through his defense team, but has no capacity to understand the
actual issues to be presented or why his input would be of value.
Sincerely,
Dipiornate, American Board of Psychiatry and Neurology 1982

Diplomate, American Board of Forensic Psychiatry 1987
WSL/sg
E e5ed
0866<:1789 ~8
'J'd 'uosJe+d 'l? ue6ol WV9 ~:go g ~Oc 80 uer
AFFIDAVIT
County of Jackson
) ss.
State of Missouri
I, William S. Logan, M.D., being oflawful age and having been sworn, do
hereby state under oath that the facts alleged in the foregoing report are true to the
best of my knowledge and belief.
In witness whereof! have hereunto subscribed my name and affixed my

official seal this 1 H) day of (;;:z ncca ll.tj. , 2015.
()
Seal
'CAAOLYN S. GALLAMORE
110t1ry
My commission expires:
PUI!Iic-Notary Seal
-:t~====~~ou~rt~,
C~ta;y~co;llllly:iit:l~
COIIIIIIiNICIII Ex;res Mn 22. 2017
My
e5ed
0866<:1789 ~8
'J'd 'uosJe+d 'l? ue6ol WV9 ~:go g ~Oc 80 uer
November 17, 2008

Ms. Jeannlt! Willibey, E.q.
and Pete Carter, Esq.

AppeHate/PCR Division
920 Main Suite 500

Kansas City. MO 64105
Telt!phone: 816-889-7699
Re:
Fax: 816-889-2088
Cecil Clayton (DOB: 4/16/40,
Dear Ms. Wilfibt!y and Mr. Colrter:

Please find enclosed, my preliminary report regarding Mr. Clayton's competency for his scheduled
execution for the November 27. 1996 slaying of DepU1'( Sheriff Castetter. In preparation for previous
testimony in regard to Mr. Clayton, I met with Mr. ClaytOn and reviewed more than a thousand pages of
Medical Records, Criminal investigation Reports, Jail Records and Trial Transcripts specific to Mr.
Clayton's medical, education!, sodal and criminal histories. I then testified over portions of twO days
before Judge David Darnold, Circuit Judge of the 28"' Judicial Circuit, on Supreme Court assignment (he
also presided over Mr. Clayton's Criminal Trial and Sentencing) in Joplin, MO, September 6'" and 7'".
2000. More recently, I met again with Mr. Clayton for several hours at the Potosi Correctional Center on
November 1". 2008. I also reviewed more than one thousand additional pages of his medical records
since incarcerated in the Missouri State Prison System, Depositions of various relatives. friends and
acquaintances, and the Transcript of the Appeal Ht!aring for Mr. Clayton, Septembt!r s"' through the 7,.
of 2000.
Mr. Clayton previously suffered several head Injuries, the most severe of which (1/26/72) resulted In
significant frontal lobe damage and subsequent cognitivl! impairment with significant deficits In
judgement, problem solving, mental flexibility, processing speed and verbal dl$inhlbitlon. Major
Depressive episodes accompanied by Insomnia and visual and verbal hallucinations have also been
r~portl!d rt!pl!atedly in th<! "nsuing 36 years, along with delusional nd paranoid qualities. As was
pointed out in the thorough Neuropsychological Report prepared by Lee Ann Preston, Ph.D., Clinical
Psychologist at the U.S. Medical Center for Federal Prisoners, Springfield, MO, January 18, 2005, "... the
presence of a mental dl~ease or defect does not necessarily render an '"dlvldual incompetent. Rather it
is the manner and extent to wh1ch a mental disease or defect 1m pacts n individual/s competency
related abilities that Is criticaL" I concur,"' does the hody of l.r.v I al~o concur with Dr. Preston's
conclusion: ... Mr. Clayton's tangential speech, impaired judgement, Jnd Impaired reasonin!J abilities,
wdl negatively effect his ability to communicate effectively with his counsel, testify relevantly, and make
rational decisions r~~ardi~g his habeas pmceedings. Consequently, it is my !lplnion he i! lik~ly not
competent to proceed. ''
Foster Forensic Consulting Services
Cecil Clayton
Preliminary Report, Dr. Foster, ll/17/08
Papl
Despite being sober the eight years since we met and within a controlled, structurl!d prison
environment, Mr. Cl<tyton continues to dispj;Jy the signs ind svmotom5 whl~h haV!I PJ'OII'I!Sstvely been
described by multiple medical and psychological professionals In the years since 1912. He spends most
of his time in secluded status where he feels safest and free of the stimulation, interaction and noise of
fellow deith row inmates. He has bel!n off psychotropic ml!dic.ation since his hl!art attack and
subsequent open heart surgery in 2001 and has been functioning at an even affective level so long as
the environmental stimulation and mental demands art minimal and the routine consistent.
Dl!spite the ipproachlng date of execution, he remains resolute that he Is called to prtech the gospel
and wUI be released from pri'SOn by a miraculous act of God. He was cheerful and personable
throughout our interview on November 1". Consistent with our 2000 assessment, he was tangential, at
times Irrational, cheerfully delusional, sufficiently paranoid that he persistently removes himself from
inmate and staff company, refusing annual medical assessments, flu shots and other routine medical
procedures. He continues to practice his gospel singing in prepar.Hion for his ministry once freed, rather
than botherlns with requests for clemency or extenU<Jtion. Concepts beyond him perceptually , not
intellectually. By now he fancies himself wrongly convicted, though does not h<IVI! an altematlve theory
of the crime for which he is convicted. I reviewed again Panetti v. Quarterman and Ford v. Wainwright.
His impairment, consistently descrlbl!d and '"'ported for 38 years, continues to bl!! sufficiently profound
and sustained so as to render him incompetent to be executed.
Respectfully,
Daniel V. Foster, Psy.D.

1'011197
Rorre'IIIMI, SO 57570.0197
(H) 605-74715811
(C) 406 23103:13
F'ostenl202lillllotmall.com
Clinical and Fontnsic PsydlologbJt
Nov/2512013 4 0643 PM
Rosebud IHS Behav1ora1 Health 605-747-5092
2/7
Foster and Foster Consulting

Forensic Clinical and Health Psychology
POB 197
Rosebud SD 57570
406-231-0323
24, 2013
Carter,
Jeannie Willibey, Esq.
Assistant Public Defenders
Appellate/PeR
200
Scarritt Building,
818 Grand Avenue
Kansas
64106
Dear Mr.
Ms. Willibey:
Please note
executed
assessment regarding
Clayton's Competency to be
to his conviction for the November 27, 1996 killing of Deputy
Clayton at
Center on November 8,
In preparation for meeting with Mr. Clayton and for thls interim Report, I
reviewed the following records:
Potosi Medical Records from 2008 through July of

Potosi Mental Hill,>~tn Records
Records/Reports
Clayton has a well documented Medical Record
include an incident occurring in 1972 which resulted
267 Pages
54 Pages
35 Pages
prior head injuries, to
scarring and loss of brain
Rosebud IHS Behavioral Health
NOV/25/2013 4:0643 PM
605~ 747 ~5092
3/7
Clayton Interim Report

Page 2
tissue in his right frontal lobe. Though he has a long established diagnosis of
Dementia, this diagnosis is not identified in many of his Potosi Medical Records.
His Brain Damage and resultant Dementia is a
defect which results in
impaired memory, particularly short term, difficulty processing information,
especially
under
and impaired judgement and decision making
deaf and spoke so loudly throughout our session that I am

adjoining rooms heard
word, despite our being
provided private meeting accommodations. He did not display the least concern
over our lack privacy secondary to his
me over the duration of our
meec~ng.
Mr. Clayton was shackled at his wrists and one leg was shackled to a wheel chair,
were
in a
had recently injured his
ankle in a fall
informs he is awaiting surgery to have pins placed to increase
sagging on
has aged
has lost
which had previously
since our last contact. While

and mass. His flesh was
muscled.
His thinking is disorganized and he is easiiy

making assessment
difficult He
responded to questions
becoming tangential and
addressing
of personal interest.
was cheerful and pleasant. His
memory is inconsistent, with some long term memory intact, albeit inconsistently
accessed. He often inserted decades old information inappropriately into his
mo,nologue, as if it were germane.
He was friendly and verbal. While responsive to
questions, he responded
I was unable to keep him on task
with whatever came
from the start.
did not perform even basic calculations (for example: " ... how
knew the current year, and
many years has it been since you were arrested?"
stated the
his arrest correctly, though
not subtract the latter from
~Jov/25/2013 4:06-43 PM
Rosebud IHS Behav1ora1 Health 605-747-5092
4/7
the former. He could not subtract 7 from his current age. He could not recall the
colors nor the clothing I was wearing, etc). He chatted on without seeming
concern, appearing relaxed and at ease.
was quite racist and
speech,
topic and
was consistent with his
educational
socioeconomic background 1n
to grammar, syntax, and
vocabulary.
rambled
topic to topic,
a primary focus on his
frequent expletives and coarse,
fundamentalist Christian beliefs (supported
vulgar expressions). Though he denies racial prejudice, his content was surely
r,ffAn<:hio tn mfit:t
n~r:::nn.::::
11-e:.t;::.r!fncr in 't;::;ff
lnm~tp
\Mhitp;
hl~rk- i-Hc;n~nir
Asian or American indian. He undoubtedly rr~"'"''e frktlnn and conflict with his
racist, unfiltered speech,
is an equal
offender, should his listeners
have beliefs or viewpoints differing from
own.
switched topics randomly,
in a rambling, sociaiiy superficial manner.
Though rapport seemed readily established, he did not grasp, nor display concern
about the purpose of our visit He expressed full confidence in his Attorney,
ne
of suostantJve
nnl-"nr!::>l outcomes of his case.
appellate process, nor
He put his
"in
Lord", informing
ministry Is to the Inmates and
did
at
respond to
his various institutional
infractions and their inconsistency with his ministerial aspiration(s).
the day or
His attention span was
tended to speak of
events and
prior to his arrest and
as If they were
contemporary, though seemed aware of his current prison status and the
outcomes of the intervening years (his trial and conviction, the birth of his
grandchiidren,
death of his
and estate in the
payment to
Attorney at his trial, etc.),
Nov/25/2013 4 06 43 PM
Rosebud IHS Behavioral Heaith 605-747-5092
5/7
Clayton Interim Report

Page4
As discussed, he displays impairments in orientation, attention, concentration/
memory, abstract abilities, fund of general knowledge/ judgement and decision
making. He is not considered a reliable historical or current informant secondary
to his
His inte!ligence is
by the above.
His dementia
worsened secondary to aging

his long term cardiovascular
disease, for
he has been treated
including heart surgery.
His insight and judgement are significantly impaired and he is not considered to
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proceedings,
Respectfully Submitted,
fJnd tJ.~~A~ !11. ~

Daniel V. Foster; Psy.D., M.S.
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J eannie Willibey, Esq., Pete Carter, Esq.

and Elizabeth Unger Carlyle, Esq.
RE
<..
to
( )O >
Dear Mr. Carter, Ms. Willebey and Ms. Unger Carlyle

Please note my most recent Assessment regarding Mr. Clayton's Competency to be executed secondary to his
conviction for the November 27, 1996 death of Deputy Sheriff Castetter. I met again with Mr. Clayton at Potosi
Correctional Center, Potosi, Missouri, on Friday, january 2, 20 15 for two hours. In preparation for this meeting
and this updated Competency Report, I reviewed 396 pages of his Medical Record from Potosi Corrrectional
Center, 2012 through 2014. I also reviewed 17 pages of Correctional Reports covering the same time period.
On January 26, 1972, Mr. Clayton suffered a penetrating injury to his brain, resulting in significant frontal lobe
damage and subsequent cognitive impairment. He has displayed significant deficits, including poor judgement,
problem solving, mental flexibility, and verbal disinhibition since that injury, through the present time. In 2005,
after an extensive and thorough evaluation at the US Medical Center for Federal Prisoners, in Springfield Missouri,
Dr. Lee Ann Preston, Clinical Psychologist, Uanuary 18, 2005), noted the following: " ... the presence of a mental
disease or defect does not necessarily render an individual incompetent. Rather it is the manner and extent to
which a mental disease or defect impacts an individual's competency related abilities that is critical... ... Mr.
Clayton's tangential speech, impaired judgement, and impaired reasoning abilities will negatively effect his ability to
communicate effectively ... , tesify relevantly .. .and make rational decisions regarding his habeas proceedings.
Consequently, it is my opinion he is likely not competent to proceed."
Foster Interim Psychological Report

Page 2
In review of his Correctional Record, I note that, despite arriving at Potosi on December 8, 1997, and leaving for
his open heart surgery, for his USMCFP Evaluation at Springfield, and for a more recent Competency Evaluation by
the State of Missouri, he has remained there. He also had bone surgery following a fractured ankle in November
of 20 13, though I believe it was by Corizon Health at Potosi, or nearby. Yet the deficits which have plagued him
since his traumatic brain injury, continue. For example, despite his call to preach the gospel to fellow inmates and
staff, on I 1/1/13, he is quoted saying to staff "Fuck you bitch ... get the fuck out of here.." He has had lengthy
sojourns on Disciplinary Segregation and Administrative Segregation, in that he cannot successfully manage socially
since his head injury. This was true prior to his conviction, with his ex-wife and children, and has been true since
his conviction with staff and inmates. Despite all the years, the corrections, redirections, he still cannot socially
negotiate the structured setting of the prison. He does not and cannot learn, even from years of experience, basic
social and self monitoring skills. His brain injury does not allow him the capacity.
His two most recent State of Missouri, Department of Corrections, AICS Reclassification Behavioral Checklist
Reports include the following problematic findings ( 1130112, Jacqueline Howard, Badge I09338, 2/6/13, Anita
Meyer 114205): Acts before thinking; Socially Withdrawn; Quick tempered; Tries but cannot seem to follow
directions; Argues with or questions staff; Jittery, jumpy, unable to relax, seems afraid; Seems dull and
unintelligent; Demands immediate satisfaction; Moody, temperamental; Not respectful of other; Afraid of other
inmates; Stirs up trouble among inmates... Hardly the behaviors of a mature, competent senior citizen who
believe himself called to preach the gospel of jesus Christ to inmates and staff alike. He is somewhat puzzled about
the "Lord's timing" in regard to his belief that he will be released from prison, once his mission is complete.
All of these and additional problematic behaviors are also found in his Medical Records prior to his conviction and
following his Head Injury injury in 1972. By now he also lives with additional chronic, severe medical conditions,
which have further eroded his capacity to manage his life. These include significant hearing loss, partial blindness. a
three vessel bypass in 200 I secondary to chronic Coronary Artery Disease. He has been treated for essential
hypertension for many years, and has chronic pain from progressing osteoarthritis to his lower spine, both hips
and both knees. He added the fractured left lower leg with surgical repair in November of 20 13. He has been
treated for hyperlipidemia also for many years. Finally, he has chronic foot problems, to include bunions,
hammertoes, and ingrown nails bilaterally for many years.
Despite the seriousness of his Coronary Artery Disease for example, he continues to regularly refuse physicals,
refuses labs, does not seek medical attention except for pain at that moment. He simply does not "get it". I noted
that following his surgery with Corizon Health, he was monitored by medical staff over a several week period.
Nursing repeatedly identified confusion at night, going back to November of 20 13, the day after his ankle injury,
and continuing through january 8, 20 14. The confusion was sufficiently significant for nursing to repeatedly note it.
He was unable to figure out how to utilize crutches after his injury, hence was assigned a walker for many weeks.
He is unable to inform me of his current medications, his current medical conditions, his presiding Judge at his trial
and at his Appeal, the legal strategy presented by Attorney Rhodes at his initial trial, the current status of his case,
what has been done on his behalf and what fate awaits him. He cheerfully leaves it in the Lord's and his Attorney's
hands. He remains, as he has been since I first met him, unable to fully participate, cooperate or comprehend his
legal status, process and final, pending deliberations. While he can superficially seem intact, extended contact or
observation exposes his multiple deficits, which continue their slow deterioration, despite the structured, secure
setting in which he has resided over the past two decades. He is not simply incompetent legally, he would be
unable to care for himself or manage basic self care, were he not in a structured environment that takes care of
Page 2
him. He can shower, groom, eat. walk. it is his comprehension, judgement. memory, limited intelligence and social
deficits that plague him
I do not find him competent to appreciate the purpose of his pending execution as addressed in Panetti v.
Quarterman and Ford v. Wainwright. should it not be stayed by the State of Missouri or the Federal Court. He
can replicate elements of the fact that an execution follows a conviction for first degree murder, though still does
not comprehend, appreciate nor understand its approaching date for him.
Thank you for your referral of Mr. Clayton. Do not hesitate to contact me with concerns or questions.
Respectfully
!~I)~~~fj
/JIS
Daniel V. Foster, Psy.D., M.S.

Clinical and Forensic Psychologist
[Type the sender company name]

(Pick the date]
Page 3
.Jererniah V. (Jay) Nixon
2729 Plaza l)rive

P. 0. Box 236
Jefferson City, MO h1O2
Telephone: 573-751-238q
Governor
George A. Lombardi
Fax: 573-75-4O99
TDD A ailable
Director
State of Missouri
DEPARTMENT OF CORRECTIONS
Ad Excelleum Conamur
We Strive Towards Excellence
December 17, 2014

Jeannie Willibey
Missouri State Public Defender System
AppellateIPCR Division
Re: Cecil Clayton #990141
Dear Ms. Willibey:
Pursuant to your request of December 17, 2014, please find enclosed a copy of the letter of
September 2, 2014, from Richard Gowdy, Deputy Director, Missouri Department of Health to
George Lombardi, Director, Missouri Department of Corrections, with attachment, regarding your
client, Cecil Clayton #990141.
By copy of this letter, I am also providing a copy of the letter and attachment to Assistant Attorney
General Stephen Hawke of the Missouri Attorney Generals Office.
Richard G. Williams
General Counsel
Cc: Stephen Hawke, Assistant Attorney General
JEREMIAH W. (JAY) NIXON
KEITH SCHAFER, Ed.D.
GOVERNOR
DIRECTOR
MARK STRINGER
DIRECTOR
DIVISION OF BEHAVIORAL HEALTH

(573) 751-9499
(573) 751-7814 FAX
STATE OF MISSOURI
DEPARTMENT OF MENTAL HEALTH
1706 EAST ELM STREET
P.O. BOX 687
JEFFERSON CITY, MISSOURI 65102
(573)751-4122
(573) 751-8224 FAX
SEP
3 2014
C
iS
www.dmh.mo.gov
September 2, 2014
George A. Lombardi, Director
Department of Corrections
2729 Plaza Drive
Jefferson City, MO 65102
RE: Cecil Clayton #990141
Dear Director Lombardi;
Pursuant to your request to Director Schafer of March 12, 2014, in reference to
Offender Cecil Clayton, Director Schafer instructed me to cause a Department of Mental
Health psychiatrist to examine Mr. Clayton to assist you with your responsibilities under
section 552.060 RSMo. Attached you will find the examination completed by James B.
Reynolds, M.D., F.A.P.A.
I trust this evaluation by Dr. Reynolds will answer the question you posed in your
letter and be of assistance to the Department of Corrections.
SreIy,
Richard N. Gowdy, PhD

Deputy Director
Division of Behavioral Health
Missouri Department of Mental Health
RNG:lh
Attachment
An Equal Opportunity Employer services provided on a nondiscriminatory basis.
Denise Norbury
JeremiahW, (Jay) Nixon
Rooorra Exocji ye Qffcor
,rror
Mary Attebury, M.S.
Keith Schafer, Ed.D.

State of Missouri
Department of Mental Health
Behavioral Health
Cr of Opeai rg Ocor
Mark Stringer
Northwest Missouri Psychiatric Rehabilitation Center
James B. Reynolds, M.D.
Ocor Ovyorol
Borrv.ora iioaii,
3505 Frederick Avenue

St Joseph, MO 64506
(816) 387-2300
FAX (816) 387-2329
Ro: Dora rr
Mor,v FiOOI9
MeCcal Orocior
TO: Richard N. Gowdy, Ph.D., Deputy Division Director

RE: CECIL CLAYTON
DOC#990141
REPORT DATE:
August 29, 2014
INTRODUCTION:
Pursuant to a request from George A. Lombardi, Director, Missouri Department of Corrections, to Dr. Keith
Schafer, Director, Missouri Department of Mental Health, dated March 12, 2014, this examiner. James B.
Reynolds, M.D., was assigned to perform a forensic evaluation on Cecil Clayton, DOC inmate #990141. The
request from Mr. Lombardi to Dr. Schafer was for an evaluation to determine whether there is reasonable cause
to believe offender Clayton who has been sentenced to be executed, has a mental disease or defect such that he
lacks the capacity to understand the nature and purpose of the punishment he is under sentence to receive. This
examiner was in turn assigned to perform the evaluation by Dr. Richard N. Gowdy, then Director of Forensic
Services for the Missouri Department of Mental Health. Pursuant to that assignment, I have performed an
evaluation to render an opinion on this issue, to a reasonable degree of medical certainty, and details of my
findings are included in the body of this report, as well as my forensic conclusion. For the purpose of this
evaluation I have performed a psychiatric interview of Mr. Clayton as well as reviewed a considerable volume of
evidence provided both by Dr. Gowdys office and the Office of the Public Defender, representing Mr. Clayton.
SOURCES OF INFORMATION:
1. Clinical Interview of Cecil Clayton on June 26, 2014. at the Crossroads Correctional Center in Cameron,
1,4
hours. It was noted that for the purpose of the clinical
MO. This interview lasted approximately 2
interview Mr Clayton was transferred from his assigned prison facility at the Potosi Correctional Center to
Crossroads. He was transported on the same day as the interview, being awakened and on the road
shortly after 1 a m. that morning and arriving shortly before 9 am.
of
2. Department of Corrections, mental health, and inmate records on Cecil Clayton totaling hundreds
pages and spanning a range of dates from approximately 1997 to 2013.
3. A voluminous file provided by the public defenders office consisting of records of prior court proceedings
of Mr. Clayton
the clinical
4 Several conversations with defense attorney Jeannie Willibey primarily regarding arranging
me to
wished
Willibey
Ms
information
of
sources
various
providing
well
as
interview with Mr. Clayton as
consider during my evaluation
the forensic
5 Conversations with attorneys Rick Williams and Matt Briesacher of Missouri DOC clarifying
Corrections.
of
question being asked by the Director of the Department
over the years by
6. A number of forensic and clinical reports and documents on Cecil Clayton authored
members of the
from
affidavits
and
offense.
index
the
on
information
various professionals, discovery
defense team over the years, including but not necessarily limited to
Preliminary Findings by William S Logan M D., and Affidavit
Preliminary Findings by Dr Daniel V. Foster
Neurological Surgery report by Dr John Tsang dated 1/26/72
Neurological Surgery report by Dr Tsang dated 1/26/72
latory basis
Ar Fquai Opportunity Ernpioyer serv ces provided on a nondscrimif
Clayton 829-20 14
Page 2 of 10
7,
8.
9.
St. Johns Hospital Discharge Summary dated 2/3/72

Letter from Dr. George Klinkerfuss dated 1/30/78
Statement of Dr. Klinkerfuss stamped received on 4/24/78

Psychiatric Evaluation dated 1/24/79, Ozark Psych. Clinic, Inc
Letter from Dr. Klinkerfuss dated 1/3 1/80
Letter from Dr. Klinkerfuss dated 7/16/80
Letter from Dr. Klinkerfuss dated 9/1/83

Letter from Dr. Douglas A. Stevens dated 10/31/83
Psychiatric Evaluation dated 2/9/84
Letter from Dr. James E. Bright dated 3/20/84
Dept.
of Health and Human Services, Decision of 4/6/84

Affidavit
of Julie Eilers, Investigator, Fed. Public Defender

Affidavit of Laura Martin, Attorney, MO Public Defender
Affidavit of Rebecca Kurz, Attorney, Morgan and Pilate
Forensic Report by Dr. Preston, U.S. Dept. of Justice
Updated Findings by William S. Logan, M.D., 8/28/13
Updated Findings by Daniel V. Foster, Psychologist, 11/24/13
Affidavit of Attorney Elizabeth Unger Carlyle, 2/10/14

Ford v. Wainwright 477 U.S. 399 (1986)
Pauietti v. Quarterman 551 U.S. 930 (2007)
RSM0552.060
IDENTIFYING INFORMATION:
Mr. Cecil Clayton is now a 74 year old Caucasian male who is facing sentence of death for the November 27,
1996, murder by gunshot of Barry County Sheriffs Deputy Christopher Castetter. He currently resides at the
Potosi Correctional Center in Mineral Point, MO.
BACKGROUND INFORMATION:
Mr. Cecil Clayton was convicted in October of 1997 of the crime of Murder in the 1 Degree in the Circuit Court of
Jasper County, Missouri. He was sentenced to death. This examiner possesses a volume of records provided by
the defense on legal proceedings that have taken place surrounding and subsequent to the trial and conviction,
although a detailed recitation of this information is not necessary in order to answer the question I have been
asked to address.
Mr. Clayton was born in Purdy, MO, one of seven children to his married parents. He has described his
upbringing as strict, but he has denied a history of physical or sexual abuse. He reportedly had no significant
history of truancy or behavioral problems as a child, and no history of special education needs. He is reported to
have engaged in physical altercations with others as he grew older, however, and he eventually withdrew from
school without obtaining a diploma or GED.
Mr. Clayton reportedly had a considerable history of alcohol dependence beginning in early adolescence, He has
admitted to becoming violent while intoxicated and he has had multiple convictions for driving under the influence.
Although he has admitted to using other drugs including cocaine, marijuana, and amphetamines, he has not
reported a dependence on them.
Mr. Clayton has reported a number of head injuries over the years. In 1950, he reportedly was knocked
unconscious after falling from a large tree and hitting his head. In 1958, he is reported to have been rendered
unconscious in the course of a motor vehicle accident. Although he was reportedly treated in the hospital for that
njury, he apparently left against medical advice the day after the accident. He suffered from another head injury
in the 1960s when he was hit in the head with a state troopers blackjack and suffered headaches and ringing in
the ears after that injury.
On January 24, 1972, Mr. Clayton suffered his most serious head injury. This occurred at his employment at a
saw mill. He was loading logs into the saw with the assistance of another worker and he recalls that the other man
let one of the logs slip. A splinter of wood was apparently ejected at high speed from the mechanism and
(la ton 829-2014

Page 3 0110
penetrated his head over the right temple. This resulted in a severe injury which fractured his skull and actually
exposed extruded brain tissue. He suffered leakage of spinal fluid. Contemporary medical records indicate that he
was stabilized and quickly taken to the operating room where an emergency craniotomy (opening in the skull) was
performed to relieve pressure, remove bone fragments. and evacuate clotted blood. Approximately 3 cubic
centimeters of destroyed brain tissue was debrided (removed). He was unconscious for several days but did
stabilize and was able to be discharged from the hospital for rehabilitative care. A neurology note from Dr. George
Klinkerfuss, dated January 30, 1978, documented that Mr. Clayton subsequently suffered deficits in the
functioning of his left arm, further decreased vision in his right eye (which had chronically been weak before then),
and mental status and personality changes. For example, Mr. Clayton was quoted as complaining about
excessive anxiety, difficulty with concentration, confusion, and emotional lability. He was noted to have tangential
(off track, derailed) thinking. Mr. Clayton reported that he was unable to maintain work for any length of time and
while he did work for 9 months for the local police department, he subsequently had to leave that position
because he could not fulfill his responsibilities. Dr. Klinkerfuss opined that Mr. Clayton was disabled with respect
to his prior occupational skills, although he did advise that it might be possible that he could be retrained. A
subsequent examination in January of 1979 by a Dr. William Clary opined that Mr. Clayton was suffering from
extreme anxiety and depression and was unable to cope with the stressors of his family. He went on to state that
due to a diagnosis of borderline personality, classical schizoid type, Mr. Clayton was incapacitated and totally
disabled.
A psychological and vocational evaluation was performed by psychologist Douglas Stevens in October 1983. Dr.
Stevens advised that Mr. Clayton experienced great difficulty with anxiety and impulse control which caused him
difficulty within the family and also difficulty in maintaining employment. Dr. Stevens noted that Mr. Clayton
complained of visual and auditory hallucinations and severe depression with suicidal thoughts. Intellectual testing
showed an intelligence quotient in the below average range with a full scale I.Q. of 76. The Wechsler memory
scale was also administered and Mr. Claytons score of 62 placed him in a mentally retarded category. Serious
deficits were noted also on neuropsychological testing. A chronic brain syndrome was diagnosed with paranoia,
deterioration in intellectual functioning and memory, impoverished thinking with confusion, and a very labile
affect (mood swings). Dr. Stevens opined that Mr. Clayton also showed thought disorganization, hallucinations
and delusions, and inappropriateness of affect (display of emotion). Subsequent examinations in 1984 by Dr.
James Bright, gave similar findings.
Brain imaging studies over the years have consistently demonstrated damaged brain tissue in the areas affected
by the saw mill injury in 1972. The report of Dr. Preston from 2005 notes an MRI demonstrated the old area of
damage from the sawmill injury in the frontal lobes, right greater than left, signs of moderate atrophy in the
anterior corpus callosum, as well as a small lacunar infarct (sometimes described as a silent stroke), age
undetermined, in the right caudate nucleus.
MENTAL STATUS EXAMINATION:
Mr. Clayton was evaluated at the Crossroads Correctional Center on June 26, 2014. He had been awakened
around 0100 that morning at Potosi and traveled by car to Crossroads, arriving shortly before the interview began
likely
at 0900. A lengthy car trip after being awakened in the wee hours of the morning, if it had any effect, would
mental
focused
and
alert
most
in
his
being
result in an elderly man with brain damage and health problems not
state This may be a soft factor to note, but it is my opinion that this factor likely represents that my opinion
capability.
regarding his mental faculties on the day of the interview is, if anything, an underestimation of his true
y 5
approximatel
Additionally, several personnel were present in the room during the interview, including
to
assent
my
given
previously
correctional officers (3 from Potosi) as well as defense council Ms. Willibey. I had
respectful
completely
was
She
Gowdy.
Dr.
Ms. Willibeys presence in the interview room, with the concurrence of
the process to
of the process at all times, sitting out of direct eyeshot of the prisoner and not noticeably affecting
correctional
the
of
presence
the
about
Clayton
Mr.
questioned
I
any degree Prior to beginning the interview
for the
note
must
I
presence.
their
to
objection
any
made
council
defense
nor
he,
officers in the room. Neither
affect
theoretically
least
may
at
record, however, that the presence of others in the room not involved in the case
the process in some fashion.
give his best effort to
Mr Clayton was pleasant and appeared to be cooperative during the session. seeming to
kempt. His voice was
answer my questions. He was dressed in standard jail garb and seemed reasonably well
comments. He did
fluent and non-pressured. He laughed freely on several occasions at appropriate humorous
Clayton 820-2014
Page 3 of 10
complain of difficulty hearing and at times asked me to repeat my question. His affect (display of emotions) was
broad in range. When asked his mood he replied that he has bad emotions. He added Im tired, anything
concerning prison is depressing. In fact, shortly before I began the formal mental status portion of the interview,
Mr. Clayton had spontaneously stated I dont want life without parole. Im tired of prison. Im in my 70s. Let me
put it this way, I still think God will save me [he became teary eyed]. Mr. Clayton stated that his sleep pattern at
times is not good, and stated that he had not slept well in the last 2 or 3 days. He added that he sometimes has
bad dreams but tries not to worry about stuff. He claimed that his appetite is pretty good and his weight hovers
around 185, with no major recent changes. When asked his energy level and interest in activities he indicated that
it was up and down. He added I used to walk at Rec, but now my leg hurts (Mr. Clayton suffered a fractured
ankle in late 2013). He has quit playing cards. He does read the Bible, and he likes watching westerns on
television, He also said that he follows the Royals baseball team. He added, and I enjoy my coffee.
Thought form was generally goal directed with tight associations. There was no tangential (irrelevant, flying off
track> thinking that was significant enough to disrupt the process of the interview. I did notice a commonly
reported tendency of Mr. Clayton to circumstantiality, in which Mr. Clayton at times would tend to give a
roundabout or over-inclusive answer to questions, telling stories or adding extraneous information, but he was
redirectable to the topic at hand during my interview. I recognize that some previous examiners have reported that
it was all but impossible to hold a meaningful conversation with him, but that was not at all my experience in my
interview. I detected no signs of psychosis with respect to his thought form, observing neither thought blocking,
signs of attention to internal stimuli, nor meaningless speech.
Thought content was negative for any admitted suicidal ideation. Mr. Clayton stated that he would not like to
contemplate the rest of his life in prison without the possibility of parole. However, when asked about suicide he
stated you cant get forgiveness for that. When challenged about the possibility of a life without parole outcome,
he replied well, I dont know..., and fell silent. He denied having any violent or homicidal ideations against
anyone else. He was asked directly about hallucinations in any sensory sphere. He stated once in a great while I
see something like somebody walking by. I have seen people at the window, but when I go up there no one is
there He was asked if he felt anyone was out to get him. He stated well, I figure if something gets you, you cant
blame anybody. There is nobody out to get me. I dont bother anyone, and no one bothers me. He was then
asked about black people (records document him as having friction with black prisoners) and he admitted I wont
cell with a black man. But I dont have issues with them. I think the white people ought to cell together and black
people cell together. He added I cell with a guy about 16 years younger than me. Hes been in for 40 years. He
stated I had a cellmate recently taking some stuff. I didnt get in a fight or nothing, you might lose your position,
th
17
what cell youre in, what wing. When you get out of the hole (admin segregation) you get 3-B, sliding doors,
century. I used to fight and go to the hole. I dont want that now. Age makes a difference. Mr. Clayton then
digressed into a story about going to the hole once because a sergeant didnt like him and wrote him up for saying
him
nigger. He added I didnt do it. I didnt do anything. But 1 didnt want it to get back to him. You cant strike
cellmate.
different
a
wanted
if
he
do
could
he
what
Clayton
Mr.
I
asked
point
this
s.
At
(the Sgt), bad consequence
He stated well, theres a young case worker in 3-A. I could go to him. I asked if that always works and he replied
the
well, no. You gotta know how to talk to them. If I didnt get along with (a cellie) Id make an appointment with
I
Once,
moved.
get
can
you
usually
and
out,
caseworker. Id make my case, before we get in a knock down drag
fight.
a
into
get
want
to
I
didnt
caseworker
the
I
told
man.
told them to take me to the hole, I wont cell with the
When asked what would happen if he had a bad caseworker he replied there is nothing you can do about it.
25 or June 26,
Cognitively Mr. Clayton appeared generally alert and oriented. He knew the date was either June
three
remember
to
asked
was
He
s.
2014, He knew his name, his birth date, and his place and circumstance
tricks
plays
mind
my
added
and
laughed
He
minutes.
unrelated objects, but could not recall any of them after 5
When asked again
on me. He was asked to spell the word w-o-r-l-d backward and he first answered d-l-r-t-s.
and recited past
with
Obama
began
he
and
presidents
past
name
to
asked
he answered, d-l-r-o-w He was
do if he were
would
he
what
presidents as George W. Bush the 2nd, George Bush, and Clinton. When asked
hand. His
hired
tell
a
would
1
watching a movie in a crowded theater and smelled some smoke he answered
demonstrate
to
appeared
years
recent
in
account of addressing grievances and dealing with difficult cellmates
experience over the years.
good judgment in his current circumstances, judgment learned undoubtedly from hard
two interviews I have had
with
cooperative
been
has
Clayton
Mr.
Also in terms of real-life judgment I note that
May 14, 2014. That brief tele
with him, this one on June 26, 2014, and a brief tele-video session conducted on
and held for the purpose of
video interview was conducted in the presence of two of his defense attorneys
(layton 8-2-20 14
Page 5 oI 10
introducing me to Mr. Clayton and seeking his cooperation with my evaluation. Mr. Clayton, on that date, gave his
assurance that he would be fully cooperative He carried through with that promise on June 26, 2014, During this
interview he was questioned as to why he had refused recent requests from Department of Corrections
psychologists to do annual mental status examinations. He answered why would I do an assessment? I said no,
my lawyer said I dont need to be doing that. If you want to, you can call my lawyer. Any of that information you
want. my lawyer can give it to you. I followed up that question with a question about helping his attorneys. He
answered I trust them pretty good. I believe they are trying to help me on my case. I then followed with an
additional question, what do you want help with? He answered I really want to get a church. I cant get one
setting [sicj in prison. First thing, get out of prison. It will work or it wont work. I questioned what will work? He
answered getting me out. Theres nothing certain in anything. I believe God opens doors. I believe he will deliver.
If he dont, it wont be his fault. Ill take my chances with God. God has a way of talking with people. Not just
blowing a hole in the wall.
Overall intellectual functioning during my clinical interview appeared to be in the below average range and likely
affected by his relative lack of formal education. I do not myself administer neuropsychological testing but I have a
number of prior psychological test results to review from the file. Intellectual testing over several years of time by
different examiners has tended to give him intelligence quotient scores generally from the low 70s to the mid80s, which places him in the below average to borderline range of intellectual functioning. Tests of memory have
tended to show varying degrees of memory impairment, often described as significant or severe. Detailed
neuropsychological testing has also shown deficits across various neurological domains presumably resulting
from his brain injury, although testing by Dr. Lea Ann Preston in 2005 did reveal some scores that in her opinion
may have been partly attributable to weak effort However, Dr. Preston also noted in her 2005 report that tests
were administered to determine malingering and Mr. Claytons performance on those measures did not
demonstrate any clear intention to exaggerate his deficits or to try to appear extremely impaired.
PSYCHOTROPIC MEDICATIONS:
To my knowledge, Mr. Clayton takes no psychotropic medications at the present time He did state that he takes
medications for blood pressure, fluid buildup, and an aspirin (presumably for cardiac health). He also advised that
he takes a 5 medication, but could not recall the purpose. In his early years in the Department of Corrections he
was prescribed anti-depressant medications as well as anxiety medications. The anxiety medications, including
Lorazepam (Ativan) and Clonazepam (Klonopin) appeared to become a source of conflict between himself and
care providers over the years. These medications are Federally controlled substances and can be addictive. The
effects of these medicatIons on the brain are similar to the effects of alcohol. At various times Mr. Clayton is
documented as requesting additional dosages of these anxiety medications, and at times his prescribers have not
shared his opinion that he needed them. [On that note it is fair to say also that there were some instances in early
records where Mr. Clayton himself refused these medications.] Nevertheless, there was at times conflict between
an
Mr. Claytons insistence on these medications and his care providers feeling he did not need them. As
Declares
meds.
seek
to
continues
as
described
was
he
example, during one provider visit on February 4, 2004,
2004,
PaxIl (an antidepressant and not addictive) not helpful, asks for Klonopin and Valium. A note on March 3,
documented Clayton as being apprehensive about execution issues.
his psychotropic
ifl the summer of 2005, notes document that Mr. Clayton began to refuse to take any of
He began
Klonopin.
getting
not
at
angry
was
he
that
medications and a note from August 18, 2005, indicates
off of his
remain
to
intended
he
that
stated
reportedly
he
2005,
of
refusing other medications and in October
14,
October
from
Notes
psychotropic medications and then would not have to deal with mental health anymore.
be
could
he
when
meds)
(off
2005, and October 19, 2005, report him as counting down the 90 day period of time
refusing
began
Clayton
Mr.
that
free of mental health follow up. A note of February 17, 2006, documents
the record Mr. Clayton is
medications after being told he would not be put on Klonopin. It is noted that at times in
as diligently putting
docum,ented
is
he
times
other
at
but
documented as refusing his medical medications as well,
of June 26. 2014. he
in requests about needing refills of various medications by certain dates. in the interview
However, I then
with.
work
advised me that his medical provider, a Dr. McKinney(?) is a good guy and good to
Mr. Clayton
2005.
from
presumably
questioned him about the last psychiatrist he had received prescriptions from,
t think I
didn
If
he
yeah.
answered
He
referred to him as that foreign doctor (I believe a Dr. Basheer Ahmed?).
should
You
him.
to
going
for
need
any
see
didnt
needed the Klonopin, I didnt see I needed it [psychiatric care], I
as
anecdote
an
told
Clayton
[Mr.
row.
death
on
I
was
have seen the look on his face when that secretary told him
was
if
he
meds)
ine anxiety
to how this psychiatrist told him that he could only get such medications (benzodiazep
Cla ion $-2Q-20 4

[ae 6 of 10
on death row. Mr. Clayton triumphantly recalled, with a broad smile, the look on the doctors face when his
secretary informed him that Mr. Clayton was, indeed, a death row inmate. Nevertheless, Dr. Ahmed dId not deem
him needing these medications and the relationship with Mr. Clayton and psychiatrists appears to have ended
around that time frame. He did intermittently cooperate with required annual mental health examinations over the
next few years, but on December 30, 2010, he advised one such examiner that his lawyer told him not to
participate in any mental health evaluations.
DIAGNOSIS: Per Diagnostic and Statistical Manual of Mental Disorders, 4 ed-TR (DSM-IV-TR)
AXIS I:
Dementia Due to General Medical Condition traumatic brain injury,

small old infarct (stroke), and possible age-related decline
294.1
Major depression recurrent, by historycurrently mild to low-moderate in severity
296.32
Psychotic Disorder Due to General Medical Condition-traumatic brain injury
293.82
Alcohol Dependence
by history, inactive in controlled environment
303.90
V71.09
AXIS II:
No diagnosis
AXIS Ill:
Traumatic brain injury with damage to frontal lobes- January, 1972

Small lacunar infarct right caudate nucleus- old, but age undetermined
Status/Post Myocardial Infarction with Coronary Artery Bypass Graft May, 2001
Left fibula fracture with open reduction and internal fixation
November, 2013
Hypertension
Psoriasis
The primary psychiatric diagnosis, in my opinion, is Dementia Due to a General Medical Condition. This is
manifested by deficits in memory, concentration, and other areas of intellectual functioning that have been well
documented by examiners since 1972, when Mr. Clayton suffered a severe penetrating head injury with loss of
brain tissue. Imaging studies have consistently demonstrated a significant area of damaged and non-functional
brain tissue, primarily in his right frontal area. Numerous examiners using a variety of testing instruments and
clinical evaluations have considered the brain injury to be the primary cause of his intellectual and neurological
deficits. In addition, MRI testing in 2005 reportedly showed a small Iacunar infarct (area of damage generally
referred to as a stroke) in the right caudate nucleolus. This is an area that does have functions tied in with the
executive centers of the brain, including the frontal lobes. Therefore, it is possible that some of his deficits, since
whenever this undetermined brain infarct occurred, may be attributed to or aggravated by this small stroke.
Additionally, Mr. Clayton is now age 74 and it is certainly possible that some age related cognitive decline may be
entering the picture as well, and some brain atrophy was also noted on his 2005 MRI.
Mr. Clayton has complained of symptoms of depression for many years before, and also since, his arrest on the
index charge. He has been treated in the correctional environment with anti-depressant medications as well as
anti-anxiety medications. Since mid-2005, he has been free of psychotropic medications for mental illness. Mr.
Clayton continues to report symptoms of depression to this day, which he at least in part attributes to being
incarcerated and facing a penalty of death. However, he claims to be coping adequately with these symptoms at
this time without psychotropic medication treatment. He does pursue some interests and activities of enjoyment
including reading his Bible and watching television, although he is unable to enjoy the degree of physical activity
he used to exercise due to pain in his recently broken leg.
Clayton 8-29-2014
Page 7 of I 0
The diagnosis of psychotic symptoms is manifested by self-reported complaints that he sometimes experiences
visual hallucinations. He did not report these to me in any fashion that would indicate severe distress, basically
discussing them in a matter of fact fashion. However, there have been times in the past when he has reported
more frequent visual, and at times auditory hallucinations. These symptoms have been a focus of treatment from
various caregivers as far back as 1980 (3-31-80, Dr. Klinkerfuss). A traumatic brain injury of the severity suffered
by Mr. Clayton could produce hallucinations. Visual hallucinations in particular are more commonly seen in
neurological conditions than in primary psychiatric conditions. More recent forensic psychology reports such as
that of Dr. Logan from November 3, 2008, also document delusional thinking including persecutory and
grandiose ideas relating to his pending execution Dr. Logan reported that Mr. Clayton believed his conviction
was a result of a conspiracy by the legal system against him and that someone else killed Deputy Castetter. Dr.
Logan also opined that Mr. Clayton exhibited religious pre-occupation that was of delusional intensity and that he
inappropriately believed that his execution would be averted by a miraculous intervention from God and that this
belief was evidence of delusional thinking. Paranoid symptoms are reported in the record as far back as 1974,
during disability evaluations, This would of course have been well before his index offense in 1 996. It is extremely
difficult to measure where faith in ones religious beliefs, or ones cynicism towards the justice system, ends and
psychotic delusions begin. Religious preoccupation of delusional intensity is not uncommonly seen in psychotic
mental disorders. However, during the session I held with Mr. Clayton on June 26, 2014, I did not perceive his
beliefs about religion, or that God may intervene to save his life, to be of a delusional character or intensity. Mr.
Clayton is a religious man, and has been reported to be so by numerous observers both professional and lay. It is
certainly understandable that a person facing execution who has lost many avenues of appeal over the years
might psychologically rely on divine intervention as a last resort. When I discussed his religious beliefs with
respect to his pending execution, Mr. Clayton appeared to have a belief in divine intervention that in my opinion
does not rise to a level of delusional intensity. For example, Mr. Clayton, in his own words, stated the following:
I still think God will save me.

It will work or it wont work. [What?J (God) getting me out. Theres nothing certain in anything.
I believe God opens doors. I believe he will deliver. If he dont, it wont be his fault.
Ill take my chances with God. God has a way of talking with people.
(He) wont just blow a hole in the wall.
I would tell a person, [who believes in the death penalty] since when is it your right to be God?
U..
To a reasonable degree of medical certainty, it is my opinion that Mr. Claytons religious beliefs, and his faith that
God will intervene in some fashion to prevent his execution, do not represent delusional thinking. It is unfortunate
that medical science is not advanced to a degree that a definitive test can distinguish delusion from strongly held
beliefs to an unequivocal degree of certainty. Nevertheless, there are techniques that mental health clinicians can
use to assist in their evaluation of such beliefs. For example, one technique is to ask the patient to figuratively
take a step back and view the belief from outside their own point of view. Delusional patients have difficulty
doing this, and will often persist with their fixed false belief despite any proof given to them to the contrary. If
necessary, they will bring in more elements of their delusional thinking to back up their belief, or even grab for
extraneous bits of information, real or imagined, to support their delusion. They will typically resist even
hypothetically reviewing their delusion as not accurate. On the other hand, persons with even strongly held beliefs
that are not delusional can generally step outside their point of view and discuss their belief, at least in a
hypothetical fashion, with more impartiality. In the case of Mr. Clayton, I note that he does not appear to have a
magical view of Gods ability to rescue him from his fate. For example, he indicated in his own words that his
religious faith holds that God will likely work through other people such as his defense attorneys to spare his life.
In fact, he spontaneously stated that God will not simply blow a hole in the wall. He also appeared, again without
prompting, to allow for the possibility that God might not deliver. He added if he dont, it wont be his fault. I well
take my chances with God. It is my opinion that a truly delusional individual would not so readily admit that his
belief might not come true.
Another factor that leads me to opine that Mr. Claytons views about God are not delusional is the emotion with
which he stated, at one point in the interview, that spending years with the threat of capital punishment over his
head has been a heavy burden. In fact, it was at this point in the interview that Mr. Clayton showed the most
emotion, in my opinion, of the session. We were discussing the efforts of his attorneys to help him avoid the death
penalty and the role that my evaluation and those of others might play in that process. Mr. Clayton stated if it [my
report] dont help me then it dont matter to me. I want an honest evaluation. He then added it matters a lot to get
C li\ ton 82920 14

Page of 10
off of capital punishment. Ive had that hanging over my head for years. it would give me some relief in other
words. Its been seventeen or eighteen years. You wouldnt want them to take a needle and put it in your arm and
kill you. would you? In my opinion, an individual who is delusional about the certainty of God rescuing him from
the death penalty would not likely show so much feeling when discussing his fear of the sentence being executed.
Finally on this question, I look to some examples of indirect evidence that Mr. Clayton is not delusional in his
religious faith. Mr Clayton clearly, throughout a voluminous record, has sought medical care for various illnesses
and injuries. At times, admittedly, he has seemed to irrationally reject such care, but in my review of the record it
appears that these incidents have tended to be associated with anger that he has over some factor of his life at
the moment, For instance, he rejected psychiatric medication prescriptions when he was denied a prescription for
an abusable substance he felt he needed. At other times he has declined medical appointments even when
suffering from uncomfortable symptoms on account of his reluctance to be shackled for the trip. The record
contains several instances of his refusal to accept medical care that would require him to outcount and cuff up.
However, there are many other instances of Mr. Clayton seeking medical care for problems, both minor and
major, and being quite persistent in his efforts to obtain that care. He is quoted in many instances as detailing to
staff exactly when he is due to run out of a certain medication and need a refill, and as best as I could check in
the record, he would often be accurate down to the day He sought care for his chest pains when he was having
heart disease and orthopedic care when he suffered a fractured leg. Admittedly, pain is a great motivator and
even some of my most psychotic patients will usually seek relief of their suffering through conventional medical
care. Nevertheless, Mr. Clayton certainly did not appear to preferentially rely on any delusional belief that God
would rescue him from heart disease or a fractured limb, much less more chronic and inconvenient issues such
as psoriasis, hypertension, and ingrown toenails. Likewise, the record indicates that Mr. Clayton is an individual
who despite his intellectual and neurologic deficits, can be quite savvy at working the prison bureaucracy to get
his needs met, such as a more desirable housing setting or a different cellmate. Again, he does not appear to be
someone who simply relies on the magical intervention of God to meet his needs. And he is quite open about his
reliance on his attorneys for help, and that God tends to work through people, not by magical (i.e. delusional)
means. No one factor in my evaluation can be positive proof that Mr. Claytons beliefs about religion never rise
higher than simply a person of faith facing a terminal end, but the overall picture in my opinion, to a reasonable
degree of medical certainty, is not consistent with a delusional disorder.
DISCUSSION OF REFERRAL QUESTION:

I was engaged to perform this evaluation in response to a request from the Director of the Department of
Corrections to the Director of the Department of Mental Health, to determine whether there is reasonable cause
to believe offender Clayton, who has been sentenced to be executed, has a mental disease or defect such that he
lacks the capacity to understand the nature and purpose of the punishment he is under sentence to receive.
Mr. Lombardis question includes whether or not Mr. Clayton has a mental disease or defect. Mr. Clayton has
suffered
undisputed brain damage from a severe head injury with open brain trauma and brain loss which was
that Mr.
certainty,
medical
many years before the index offense. It is my opinion, to a reasonable degree of
Major
Condition,
Medical
General
Clayton suffers from three mental diseases, namely Dementia Due to a
diagnoses
these
of
Each
Condition.
Medical
Depression-Recurrent, and Psychotic Disorder Due to a General
That would be
could in some cases qualify as a mental disease or defect as defined in Missouri criminal statutes.
any single
involves
threshold
second
The
case.
this
in
question
the first threshold in answering Mr. Lombardis
is
lacking in
Clayton
Mr.
one, or a combination of these mental diseases, giving reasonable cause to believe that
It is my
receive.
to
sentence
capacity to understand the nature and purpose of the punishment he is under
opinion, to a reasonable degree of medical certainty, that they do not.
a man who often
The record indicates that Mr. Clayton has been viewed by many observers over the years, as
my opinion to a reasonable
references his religious faith and discusses his possible fate in religious terms. It is
within the spectrum of
degree of medical certainty that his religious beliefs are not psychotic in quality, but are
where a mortal
setting
other
any
or
non-psychotic beliefs of faith not uncommonly seen in prisons, foxholes,
who
professionals
other
of
reports
the
ndvidual is facing a high likelihood of danger. Although I have reviewed
God
about
beliefs
particular
Claytons
Mr.
that
may disagree with me on this point, I cannot reach a conclusion
would consider delusional a
intervening in his execution are representative of a mental disease any more than I
fire.
brave fighter pilot who has faith that God will carry him through a barrage of anti-aircraft
Qla\ton 8-29-2014
Page 9 of 10
g or the fact that he

Mr. Clayton does not appear delusional about the fact of Deputy Castetters death by shootin
crime, and during
the
of
guilt
actual
his
was convicted of that crime and sentenced to death for it. He does dispute
the wrong place
in
was
I
fair.
not
Its
do.
didnt
ing
I
our interview on June 26, 2014, stated they say I did someth
d my hands
scrape
they
words,
plain
in
it
put
to
added
He
ipt
at the wrong time and I can prove it in my transcr
gun powder
had
Cole.
and found no gun powder residue, no DNA. And they found that crippled guy, Martin
alleging
was
he
if
n
Clayto
Mr.
residue on his left hand. That crippled guy. But he can still shoot. When I asked
hand. I
his
on
ce
eviden
bad
had
some
that Mr. Cole did the crime he answered I dont know if he did it, but he
area
this
in
me
to
words
ns
Clayto
Mr.
know.
I
had some dealings with him. Why he would turn against me, dont
Please
crime.
the
of
d
accuse
falsely
being
his
about
belief
nal
of discussion did not have the character of a delusio
very firm degree in their
refer to my previous comments about delusional individuals typically being certain to a
the possibility of being
to
delusional point of view, versus persons who are not delusional being open at least
before the time the
shortly
time
in
wrong. He did acknowledge being in the vicinity of the deputy at some point
not uncommon for
is
ly
it
Certain
.
deputy
the
crime must have occurred. He merely claimed that he did not harm
not equate to
does
denial
ce.
Such
eviden
elming
overwh
of
face
criminal defendants to deny their guilt even in the
er some
chamb
the death
delusional mental illness, Denial is not unusual among defendants and even in
with
faced
that
er
consid
might
individuals maintain their innocence of the crime up to the moment of death. One
the
with
clean
come
and
ence
consci
the imminent certainty of death in moments, one might wish to clear ones
nce
innoce
claim
falsely
fact
in
might
person
a
truth at the end. Clinically, however, I must allow the possibility that
decide and proceedings have
even as he undergoes execution. Mr. Claytons guilt has been for the courts to
Claytons claims of innocence
been conducted on that question over many years of time. It is my opinion that Mr.
illness, nor do they. He quotes
do not in and of themselves have to equate to the presence of a delusional mental
r to determine with certainty
manne
fic
facts in his case that he claims point to his innocence. I know of no scienti
in
the record before (e.g. Dr.
noted
been
has
whether he in fact truly believes he is innocent of the crime. As
moment of the crime. In
the
at
d
agitate
and
d,
terrifie
,
Foster report, 1-8-2000), he may well have been drunk
challenge their guilt, to later
such a state, it is not uncommon for murder defendants, even ones who do not
dably a factor of clinical judgment
apparently honestly claim not to recall committing the act. There is unavoi
t him may carry some degree
agains
ce
involved here, but it is my opinion that the positions he takes on the eviden
they are not so outside the
but
ant,
irrelev
or
istent,
of accuracy or they may in fact be mistaken, foolish, incons
bounds of reality that they are delusional in character.
persons which rises to a level of
As for paranoia, which certainly can be a psychiatric symptom in some
certainty, that in this case it does
l
delusional intensity, it is my opinion, again to a reasonable degree of medica
against the death penalty were
were
who
and
not. Mr. Clayton alleges that some people who were potential jurors
not want them on the jury. He
l
did
Genera
ey
Attorn
nt
eliminated from the jury pool. He alleged that the Assista
al defendants to allege bias against them
stated they might have hung the jury. It is not uncommon for crimin
ce of that bias. It is my opinion
from the prosecutor, and to interpret adverse turns in the proceedings as eviden
that he was not given a fair
ions
ns allegat
that in this case, to a reasonable degree of medical certainty, Mr. Clayto
that of a delusional mental
than
rather
ants
trial have the quality of such all too common claims by criminal defend
illness,
tly and ones I do not necessarily dispute, the
Finally, the psychotic symptoms Mr. Clayton does endorse presen
for many years even prior to the index crime,
fleeting visual hallucinations that have been described in the record
relevant to his comprehension of the nature and
are relatively innocuous and not in my opinion of a character
purpose of the punishment he has been sentenced to receive
sentence of death for being convicted of shooting and
Mr. Clayton, in my opinion, clearly is aware that he is under
an unequivocal fashion during the interview of June
killing Deputy Castetter. He indicated to me in what I consider
he
of execution, that this will result in his death, and
26, 2014, that he understands that he is under the threat
stress
nal
nts, with feeling, concerning the emotio
communicated this to me with considerable feeling. His comme
A
ve level, of his appreciation of his potential fate.
cogniti
as
of facing execution are evidence, on a visceral as well
and
s,
worrie
with
helmed
es Mr. Clayton as overw
mental health note from Dr. Ahmed of March 3. 2004, describ
l care in general, aside from some occasional
medica
with
ation
cooper
His
apprehensive about execution issues.

he
over extraneous issues, is another indicator that
examples of non-cooperation due to frustration and anger
Mr.
point
ate in his medical care to avoid it. At one
appreciates the concept of death and wishes to cooper
, It S
Im taking (his meds). When asked why, he replied
Clayton told me, I like to read the instructions of what
health.
important to know Im not taking something harmful to my
(layton 8-29-2014
Page 1 0 a 10
do wish to advise the reader that traumatic brain injuries can lead to mental syndromes that might in fact
fluctuate from time to time in terms of character and/or severity. Stressors such as medical illness, traumatic
injury, psychological suffering, etc. can have additive adverse effects on a persons mental faculties who already
suffer from a traumatic brain injury. There are instances in the record where Mr. Clayton is described by medical
authorities as confused and irrational For example, on November 2, 2013, following an outpatient appointment
which diagnosed him with a fracture of the leg, Mr. Clayton was documented by a nurse as having difficulty
following verbal ques. It is noted that he was likely in considerable pain and he was taking pain medication
(Tramadol) at the time. On November 3, 2013, another nurses note documented Mr. Clayton as confused with
He was also documented as having a difficult time following
some questions, laughs inappropriately
directions. Other notes contemporary to care for his broken leg in November of 2013 document that he was
confused at times and on one occasion he was not sure what crutches were for. In Mr. Claytons more remote
history, Dr. Klinkerfuss noted in his report of 1978 that he was tangential, had decreased concentration, and
showed confusion. Dr. Fosters deposition from 9-6-2000 indicates that in his observation, Mr. Clayton cant
focus on even the simplest of things. He added that Mr. Clayton has marked memory deficits for recent events.
He also reported that around family Mr. Clayton would tend to sit confused, and stare. It is noted in the same
deposition, however, that in Dr. Fosters opinion Mr. Clayton understood that he was facing the death penalty and
that death is permanent.
I also note that there are many instances in the record where Mr. Clayton carries a very accurate memory for
details such as the dates that he needs prescriptions refilled, the types of medical care he needs and prefers, the
periods of time that have elapsed since he requested help of various sorts, and his appreciation of the ways in
which one can go about manipulating the prison bureaucracy to meet ones perceived medical needs and living
preferences. He has sometimes suffered adverse consequences from his attempts to so manipulate, but mental
illness is not required to account for the sometimes self-defeating behavior of prison inmates. And from his
comments during our interview, he can apparently learn from past consequences.
The bottom line, however, is that my opinion below is offered at the present time to the best of my clinical ability,
but the future mental status of an individual who is 74 years of age, who suffers from a traumatic brain injury, and
who is chronically challenged with a number of medical problems cannot be predicted with certainty.
FORENSIC CONCLUSION:
It is the opinion of this examiner, to a reasonable degree of medical certainty, that there is not reasonable cause
to believe offender Clayton, who has been sentenced to be executed, has a mental disease or defect such that he
lacks the capacity to understand the nature and purpose of the punishment he is under sentence to receive.
Respectfully submitted.
James B. Reynolds, M.D., F.A.P.A.

Diplomate, General and Forensic Psychiatry, ABPN
Certified Forensic Examiner, Missouri DMH
Northwest Missouri Psychiatric Rehabilitation Center
IN THE MISSOURI SUPREME COURT
STATE OF MISSOURI,
Respondent,
vs.
CECIL CLAYTON,
Appellant.
)
)
)
)
)
)
)
)
)
No. SC80545
SUGGESTIONS IN OPPOSITION TO MOTION TO SET EXECUTION

DATE, PENDING A DETERMINATION OF MR. CLAYTONS
COMPETENCY TO BE EXECUTED1
Appellant, Cecil Clayton, objects to the States motion for this Court to set
a date for Mr. Claytons execution on the grounds that granting the motion would
deprive Mr. Clayton of his rights to due process and to be free from cruel and
unusual punishment under the Eighth and Fourteenth Amendments to the United
States Constitution and Article I, Sections 10 and 21 of the Missouri Constitution.
In opposition to the States motion, Mr. Clayton states as follows:
The Missouri State Public Defenders Office is representing Mr. Clayton in
investigating and filing a Petition for Writ of Mandamus to Compel the Missouri
Department of Corrections to Invoke the Provisions of Section 552.060, RSMo,
and oppose the States motion on the basis that Mr. Clayton is incompetent to be
executed. Other counsel will be opposing the States motion on other grounds.
1
Background and History of the Case

1. Mr. Clayton was convicted in the Circuit Court of Jasper County of first
degree murder and sentenced to death. State v. Clayton, 995 S.W.2d 468, 472
(Mo. banc 1999). His conviction and sentence were affirmed on direct appeal.
2. Mr. Clayton timely filed a Rule 29.15 post-conviction motion, which
was denied. Clayton v. State, 63 S.W.3d 201, 203 (Mo. banc 2001). The denial of
post-conviction relief was affirmed on appeal. Id. at 210.
3. Thereafter, Mr. Clayton filed a petition for writ of habeas corpus in
federal district court, which was denied. Clayton v. Roper, 515 F.3d 784, 789 (8th
Cir. 2008). The Eighth Circuit affirmed the denial of habeas relief. Id. at 793.
4. During the guilt and penalty phases of his capital jury trial, Mr. Clayton
adduced evidence regarding his mental health, including the following:
Mr. Clayton suffered a head injury as a result of a sawmill accident in 1972.
Clayton v. State, 63 S.W.3d at 204. Mr. Claytons brother, Marvin Clayton,
testified that after the injury, Mr. Clayton was changed. Id. He broke up with his
wife, began drinking alcohol and became impatient, unable to work and more
prone to violent episodes. Id. A defense expert testified that due to his brain
injury, which involved a loss of 7.7 percent of the brain, which equaled 20 percent
of the frontal lobe (PCR Tr. 227), Mr. Clayton was incapable of deliberating or
otherwise coolly reflecting on a murder when agitated. Id.
During the penalty phase, another brother, Jerry, was called to testify as to
Mr. Claytons childhood and life as a part-time pastor and evangelist prior to the
sawmill accident and, after the accident, his marital breakup, drinking alcohol and
troubling behavior. Id.
5. During the state post-conviction proceeding, Mr. Clayton adduced
additional evidence concerning his mental health, which included more detail
regarding the 1972 sawmill accident. Id. at 205. A piece of wood broke off the
log he was working on and pierced his head. Id. The piece became imbedded
inside his skull and could only be removed surgically. Id. Although Mr. Clayton
spent a considerable amount of time recuperating in the hospital after the accident,
he did not receive any long-term therapy. Id.
Thereafter, Mr. Clayton was unable to work in the timber business or
consistently maintain other types of full time employment. Id. Mr. Clayton quit
looking for full time employment. Id. He was only able to work part time
occasionally and eventually applied for and received social security disability
benefits. Id.
Mr. Claytons personal life deteriorated. Id. Although he continued
traveling around preaching and singing with his family for a while, he eventually
quit. Id. He started drinking again. Id. He was violent and quick-tempered with
members of his family. Id. His wife left him, and they eventually divorced. Id.
In the state post-conviction proceeding, Mr. Clayton called Dr. Daniel

Foster as a witness. Id. at 209. He testified that Mr. Clayton was not competent to
proceed during his trial. Id.
Mr. Clayton also called Mr. Jeff Tichenor, a physicians assistant who
treated Mr. Clayton from January through March 1997 while he was in jail for the
charged homicide. Clayton v. Luebbers, 2006 WL 1128803, p. 12 (W.D. Mo.).
Mr. Tichenor advised trial counsel to obtain a psychiatric evaluation for Mr.
Clayton and told trial counsel of Mr. Claytons psychiatric symptoms, including
poor hygiene, agitation, and reports of Mr. Clayton smearing feces on the wall of
his cell. Id.
The post-conviction claim that Mr. Clayton was not competent to proceed
during trial was rejected by the motion court and the Missouri Supreme Court.
Clayton v. State, 63 S.W.3d at 209.
6. During the federal habeas proceeding in the federal district court, Mr.
Clayton asserted that he was not competent to be executed. Clayton v. Luebbers,
2006 WL 1128803 (W.D. Mo). In denying the allegation without a hearing, the
federal district court relied solely on the report of Dr. Lea Ann Preston, who was
appointed to examine Mr. Clayton. Id. at 44. Dr. Preston found that Mr. Clayton
was aware of the fact that he had been convicted of murdering Deputy Castetter
and that he had been sentenced to die (Ex. 20, p. A68).
However, Dr. Prestons report was dated January 18, 2005 (Ex. 20, p. A37).
At the time that she evaluated Mr. Clayton, she would not have considered the
4
holding in Panetti v. Quarterman, infra, 127 S.Ct. 2842 (2007), which was issued
two years later in 2007.
The Panetti Court held that a prisoners delusional belief system was
relevant to comprehen[sion] or aware[ness] if the delusions so impair the
prisoners concept of reality that he cannot reach a rational understanding of the
reason for the execution. Id. at 2861. The Court held that [a] prisoners
awareness of the States rationale for an execution is not the same as a rational
understanding of it and it was not enough for a condemned prisoner to be able to
identify the stated reason for his execution. Id. at 2862.
It appears from Dr. Prestons report that, in considering the issue of
competency to be executed in 2005, she considered only whether Mr. Clayton was
able to identify the stated reason for his execution. (Ex. 20, p. A68). It does not
appear that she considered the issue in any more depth, including whether
religious delusions and hallucinations suffered by Mr. Clayton affected his
understanding of the reason for the death sentence or whether the sentence would
be carried out. This is true, even though she acknowledged Mr. Claytons mental
health issues, including hallucinations respecting the death sentence. Dr. Preston
included the following in her report:
Mr. Clayton appeared to be easily distracted, and his
attention and concentration appeared to waiver. His thought process
seemed disorganized, as he would offer tangential explanations to
interview questions, and interject irrelevant information. He did not
5
appear to be acutely psychotic. However, he stated that he sees

specks on the walls that look like theyre moving and visions
that look like a being. The visions reportedly disappear when he
approaches them. Mr. Clayton also reportedly has heard voices
since his sawmill accident. He stated, Sometimes its a good voice
and calms me down, but at other times, he hears Satans voice.
He said that Satans voice tells him, They will kill you, referring
to the death penalty.
(Ex. 20, p. A52). Later, as to Mr. Claytons emotional functioning, Dr. Preston
wrote, His profile is indicative of someone who appears to experience
hallucinations and extreme suspicion. (Ex. 20, p. A59).
Based on the above, undersigned counsel asserts that had Dr. Preston had
the benefit of the Panetti decision at the time of her evaluation of Mr. Clayton, she
would have found that Mr. Clayton was not competent to be executed.2
In addition to the above, Dr. Preston was not able to consider whether Mr.
Clayton had any delusions regarding the underlying murder. (Ex. 20, p. A67).
Undersigned counsel previously attempted to speak with Dr. Preston. However,
pursuant to 28 CFR Sec. 16.22, Dr. Preston was prohibited from disclosing
information regarding Mr. Claytons evaluation. If a hearing is held on Mr.
Claytons competency to be executed, counsel will obtain a court order or
subpoena, and Dr. Preston would be able to testify regarding the evaluation.
6
Specifically, she was prohibited from questioning Mr. Clayton regarding his
version of the offense or reviewing investigative materials regarding the offense.
(Ex. 20, p. A67). These two types of information are critical because they can
reveal whether an individual possesses a rational appreciation of the evidence in
the case, deficits in the ability to recall what occurred, or delusional beliefs about
the offense. (Ex. 20, p. A67). Delusional beliefs about the offense can affect
ones perception of the sentence for the offense.
As such, along with not having the benefit of the Panetti decision, Dr.
Preston also did not have all relevant factual information in reaching her
determination that Mr. Clayton was competent to be executed. Dr. Preston wrote:
without these two types of information, I am unable to state with certainty that
he has a rational appreciation of the evidence in his case and that he does not
possess delusional ideation regarding the offense. (Ex. 20, p. A67).
Because Dr. Preston is employed with the U.S. Department of Justice,
Federal Bureau of Prisons, Dr. Preston also did not review the Missouri statute,
Section 552.060, RSMo, or make a determination of Mr. Claytons competency to
be executed under the standard set forth in that state statute.
Dr. Preston was also asked to determine whether Mr. Clayton was suffering
from a mental disease or defect and whether he was competent to proceed in his
federal habeas case. (Ex. 20, p. A37). She found that Mr. Clayton was suffering
from a mental disease or defect and that he specifically met the criteria for:
cognitive disorder, not otherwise specified; major depressive disorder, in
7
remission with anti-depressant medication; alcohol dependence, in a controlled

environment; and psychotic disorder, with hallucinations, due to traumatic brain
injury. (Ex. 20, pp. A65-66).
Ultimately, she found that Mr. Clayton was likely not competent to proceed
in his federal habeas proceeding (Ex. 20, p. A68).3 In reaching that determination,
she considered many of Mr. Claytons cognitive deficits, including the following:
[H]is performance on the MacCAT-CA and his presentation
during clinical interviews illustrated that his tangential speech, poor
thought inhibition, and poor reasoning skills will negatively impact
his ability to relay information to his defense counsel in a coherent
and meaningful manner. Similarly, it is expected that these
cognitive deficits will also impair his ability to testify in a relevant
manner. As described above, Mr. Clayton demonstrated extreme
difficulty remaining focused during clinical interviews and well as
during the administration of structured assessment instruments. His
responses to queries were often irrelevant and tangential. When re-
This illustrates deterioration in Mr. Claytons mental health, since it had been
previously determined that trial counsel was not ineffective for failing to
adjudicate Mr. Claytons competency to stand trial. Clayton v. State, 63 S.W.3d at
209.
8
directed, he would attempt to respond relevantly but generally would

lose focus and begin discussing irrelevant topics again.
(Ex. 20, p. A66).
Although Dr. Preston found that Mr. Clayton was likely not competent to
proceed in the federal habeas case, the district court denied the claim without a
hearing. Clayton v. Roper, 515 F.3d 784, 790 (8th Cir. 2008).
7. The issue of competency to be executed was not raised in the appeal
from the denial of the federal habeas case (without a hearing). Clayton v. Roper,
supra. The Eighth Circuit did review the issue of whether the district court erred
in denying, without a hearing, Mr. Claytons claim that he was not competent to
proceed in the federal habeas case. Id. at 789-791. The Eighth Circuit held that
the district court placed more emphasis on the objective findings from the tests
[Dr. Preston] performed than on her ultimate conclusion and we cannot say
definitively that a mistake has been made. Id. at 791.
8. Subsequently, Mr. Claytons federal attorney contacted the Missouri
State Public Defenders Office. In September 2008, undersigned counsel retained
Dr. William Logan, M.D., and Dr. Daniel Foster to evaluate Mr. Clayton for
purposes of determining whether he was competent to be executed. Dr. Logan and
Dr. Foster issued findings that Mr. Clayton was not competent to be executed.
(Exs. 1, 2, pp. A1-4, A5-6).
9. Specifically, Dr. Logan found that:

- Mr. Clayton has experienced several episodes of head trauma, the most
significant of which occurred in 1972 as a result of a sawmill accident, after which
a part of Mr. Claytons right frontal lobe was removed;
- Mr. Clayton has an established diagnosis of dementia;
- Mr. Claytons brain damage, including the missing part of his right frontal
lobe, constitutes a mental defect creating symptoms of significant memory
impairment, decreased judgment, and decreased ability to process information or
to grasp abstract concepts;
- Mr. Claytons thought process is rambling and disorganized;
- In addition, Mr. Clayton has a mental disease, a delusional disorder
consisting of persecutory and grandiose ideas that directly focus on his pending
execution;
- Specifically, despite knowing that he is at the end of his appeals, he firmly
believes that God will intervene, save him from execution, and free him from the
prison, so that he can preach the gospel; and
- Mr. Clayton also believes that his conviction was the result of a
conspiracy by the legal system against him and that someone else killed Deputy
Chirstopher Castetter. (Ex. 1, pp. A1-2).
Dr. Logan concluded that Mr. Claytons delusions, which result from a
mental defect and disease, prevent him from having a rational understanding or
10
comprehending the meaning and purpose of his punishment. (Ex. 1, p. A2). Dr.
Logan found:
While Mr. Clayton knows the State plans to execute him for
killing Deputy Castetter, he believes his legal situation is instead of
test of his faith and that God will not allow the punishment to occur
as God has chosen for him another mission. Hence, he has no
concept of a need for clemency, or capacity to understand matters in
extenuation, arguments for executive clemency or rational reasons
why the sentence should not be carried out.
(Ex. 1, pp. A2-3).
10. Dr. Foster found that:
- Mr. Clayton suffered several head injuries, the most severe of which
occurred as a result of the sawmill accident on January 26, 1972, resulting in
significant frontal lobe damage;
- The frontal lobe damage, as a result of the sawmill accident, caused
subsequent cognitive impairment with significant deficits in judgment, problem
solving, mental flexibility, processing speed, and verbal disinhibition;
- Depressive episodes accompanied by insomnia and visual and verbal
hallucinations have also been reported repeatedly in the ensuing thirty-six years,
along with delusional and paranoid qualities;
11
- Despite the approaching date of execution, Mr. Clayton remains resolute

miraculous act of God; and
- Mr. Clayton continues to practice his gospel singing in preparation for his
ministry once freed, rather than bothering with requests for clemency or
extenuation --- concepts beyond him perceptually, not intellectually. (Ex. 2, pp.
A5-6).
Dr. Foster concluded that Mr. Claytons impairment is sufficiently
profound as to render him incompetent to be executed. (Ex. 2, p. A6).
11. On November 20, 2008, undersigned counsel wrote to Mr. Larry
Crawford, then Director of the Missouri Department of Corrections, and asked that
Mr. Crawford invoke the provisions of 552.060, RSMo. (Ex. 21, pp. A69-71).
12. Pursuant to Section 552.060, RSMo:
No person condemned to death shall be executed if as a result
of mental disease or defect he lacks capacity to understand the nature
and purpose of the punishment about to be imposed upon him or
matters in extenuation, arguments for executive clemency or reasons
Section 552.060.1, RSMo.
Section 552.060, RSMo, requires the director of the Missouri Department
of Corrections to take the following actions, if he has reasonable cause to believe
12
that any inmate, who has been sentenced to death, has a mental disease or defect
excluding fitness for execution:
immediately notify the governor who shall forthwith order
a stay of execution of the sentence if there is not sufficient time
between notification and time of execution for a determination of the
mental condition of such person to be made in accordance with the
provisions of this section without such stay. The director shall also,
as soon as reasonably possible, notify the director of the department
of mental health and the prosecuting or circuit attorney of the county
where the defendant was tried, the attorney general and the circuit
court of the county where the correctional facility is located.
Section 552.060.2, RSMo.
After the notification, set forth above, the circuit court of the county is
required to conduct an inquiry into the mental condition of the offender after first
granting any of the parties entitled to notification an examination by a physician of
their own choosing on proper application made within five days of such
notification. Section 552.060.3, RSMo.
13. Dr. Logans and Dr. Fosters findings, referred to above, were attached
to undersigned counsels letter to Mr. Crawford.
14. Several of Mr. Claytons mental health and medical records were also
attached, including: Neurological Surgery report by Dr. John Tsang dated 1/26/72
(Ex. 3, p. A7); Neurological Surgery report by Dr. Tsang dated 1/26/72 (Ex. 4, p.
13
A9); St. Johns Hospital Discharge Summary dated 2/3/72 (Ex. 5, p. A10); Letter
from Dr. George Klinkerfuss, Springfield Neurological Associate, Inc. to Mr. Dale
Robertson, Counselor, dated 1/30/78 (Ex. 6, p. A11); Statement of Dr. Klinkerfuss
stamped received by Disability Determinations on 4/24/78 (Ex. 7, p. A13);
Psychiatric Evaluation dated 1/24/79, Ozark Psychiatric Clinic, Inc. (Ex. 8, p.
A14); Letter from Dr. Klinkerfuss to Kathy Stephens, Counselor, dated 1/31/80
(Ex. 9, p. A16); Letter from Dr. Klinkerfuss to Paul Markstrom, Counselor, dated
7/16/80 (Ex. 10, p. A17); Letter from Dr. Klinkerfuss to Mark Martin, Attorney at
Law, dated 9/1/83 (Ex. 11, p. A18); Letter from Dr. Douglas A. Stevens,
Southwestern Human Services Institute, Inc., to Mark Martin dated 10/31/83 (Ex.
12, p. A19); Psychiatric Evaluation, Psychiatric and Psychological Associates,
Inc., dated 2/9/84 (Ex. 13, p. A23); Letter from Dr. James Bright, Psychiatric and
Psychological Associates, Inc., to Mark Martin dated 3/20/84 (Ex. 14, p. A25);
Department of Health and Human Services, Decision of 4/6/84 (Ex. 15, p. A26).
These records documented the removal of a portion of Mr. Claytons right
frontal lobe in January 1972 and the deterioration of Mr. Claytons mental health
after the removal of his right frontal lobe. The records further documented Mr.
Claytons attempts to obtain help for his mental problems and his psychiatric
issues, which included: anxiety and nervousness, depression, irritability and
agitation, hallucinations and delusions, paranoia, and confusion. (Exs. 6, 7, 8, 10,
11, 12, 13, 14, pp. A12-14, 17-25). Dr. Douglas Stevens wrote in October 1983:
14
[Mr. Clayton] has sustained a head injury that has resulted in

brain damage. This has not only impaired sensory, motor and
cognitive functions, but also has resulted in a psychotic component,
best described as a schizophrenic disorder, paranoid type. His most
severe impairment is his chronic brain syndrome (12.02), with
demonstrated deterioration in intellectual functioning, manifested by
marked memory defect for recent events (memory quotient of 62)
and impoverished, slowed perseverative thinking with confusion.
Also there is a very labile affect. Secondary to this he has a
psychotic disorder (12.03) characterized by thought disorganization,
depression, agitation, hallucinations and delusions, regressive
behavior, and some inappropriateness of affect. He has had both
suicidal and homicidal impulses, so far controlled, though under
pressure they would be expected to exacerbate. He is best left alone
and allowed to exist at his present marginal level of functioning.
(Ex. 12, p. A22).
The records also documented various medications prescribed to Mr.
Clayton, including Phenobarbital, Triavil, Dilantin, Thorazine, Inderal, and a
disability determination based on Mr. Claytons psychiatric issues after the
accident. (Exs. 10, 11, 13, 15, pp. A17-18, 23-24, 26-28).
15. Undersigned counsel asserted in the letter to Mr. Crawford that these
records, in addition to Mr. Claytons delusions that God would miraculously save
15
him from the upcoming execution, demonstrated reasonable cause to believe that
Mr. Clayton has a mental disease or defect excluding fitness for execution.
Counsel requested a meeting with Mr. Crawford, so that they could bring
additional records and show a MRI scan of Mr. Claytons brain, which depicted
the missing portion of Mr. Claytons right frontal lobe. (Ex. 21, pp. A69-70).
16. On December 11, 2008, Mr. Crawford responded to counsels letter
and wrote that the records sent were being reviewed.
17. Undersigned counsel did not hear again from Mr. Crawford. In
January 2009, Governor Nixon nominated Mr. George A. Lombardi as Director of
the Missouri Department of Corrections. Thereafter, on March 11, 2009, counsel
wrote to Mr. Lombardi, and asked that he invoke the provisions of 552.060,
RSMo. (Ex. 22, pp. A72-74). Counsel requested that Mr. Lombardi review Mr.
Claytons case and respond by May 1, 2009 to let counsel know if he would
consider invoking Section 552.060, RSMo or to meet to discuss Mr. Claytons
case. (Ex. 22, p. A74).
18. Undersigned counsel attached all the aforementioned documents to the
letter to Mr. Lombardi. In addition, counsel attached a copy of a slide from the
MRI scan taken at St. Johns Regional Hospital on June 17, 2004, which depicts
the missing portion of Mr. Claytons right frontal lobe. (Ex. 16, p. A29). Slides
from an earlier MRI scan of Mr. Claytons brain are also on file with this Court in
State v. Cecil Clayton, 995 S.W.2d 468 (Mo. banc 1999), which was Mr.
16
Claytons direct appeal case. Those slides also depict the missing portion of his
right frontal lobe. State v. Cecil Clayton, SC No. 80545, Def. Exs. J, K, and I.
19. Undersigned counsel also attached affidavits from: the attorneys that
represented Mr. Clayton in the state post-conviction proceedings, Ms. Rebecca
Kurz and Ms. Laura Martin; and the mitigation specialist that worked with Mr.
Clayton in the state post-conviction proceeding, Ms. Julie Eilers. (Exs. 17, 18, 19,
pp. A30-31, 32-34, 35-36). Each set forth her observations of Mr. Claytons
cognitive deficits and how that affected his understanding of his case, his
conviction, and his sentence.
20. After counsel received no response from the Director of the Missouri
Department of Corrections, she left two telephone messages for the director, one
on May 1, 2009, and one on May 11, 2009. On May 12, 2009, Ms. Gail
Vasterling called on behalf of the director and stated that no meeting was
necessary and that the director would make a decision.
21. Counsel never received any decision or further response from the
Director of the Missouri Department of Corrections or any representative of the
Missouri Department of Corrections.
22. On June 1, 2009, undersigned counsel filed a Petition for Writ of
Mandamus to Compel the Director of the Missouri Department of Corrections to
Invoke the Provisions of Section 552.060, RSMo and Motion Not to Set an
Execution Date, or in the Alternative, Petition for Declaratory Judgment Finding
17
that Section 552.060, RSMo is Unconstitutional with this Court. Clayton v.

Lombardi, Director of Missouri Department of Corrections, SC90175.
23. On September 1, 2009, this Court entered the following Order:
Petition for Writ of Mandamus Denied Without Prejudice as Premature.
Clayton v. Lombardi, SC90175.
24. On May 17, 2012, the State moved to set an execution date for Mr.
Clayton.
25. Because the State has moved to set an execution date, undersigned
counsel intends to request that Dr. Logan and Dr. Foster evaluate Mr. Claytons
current mental health status and competency to be executed. Undersigned counsel
then expects to request the Director of the Missouri Department of Corrections to
invoke the provisions of Section 552.060, RSMo. If the Director again does not
respond, undersigned counsel then intends to re-file the aforementioned Petition
for Writ of Mandamus, which was previously denied without prejudice by this
Court.
Mr. Clayton has a right to a hearing to determine his competency to be
executed, under Section 552.060, RSMo, Ford v. Wainwright,
and Panetti v. Quarterman.
26. Section 552.060, RSMo, requires the director to take the following
actions, if he has reasonable cause to believe that any inmate, who has been
sentenced to death, has a mental disease or defect excluding fitness for execution:
immediately notify the governor who shall forthwith order a stay of execution of
18
the sentence; notify the director of the department of mental health and the
prosecuting or circuit attorney of the county where the defendant was tried; and
notify the attorney general and the circuit court of the county where the
correctional facility is located. Section 552.060.2, RSMo.
After notification, the circuit court of the county shall conduct an inquiry
into the mental condition of the offender. Section 552.060.3, RSMo.
27. In the case at bar, Mr. Clayton previously provided the Director of the
Missouri Department of Corrections with two experts opinions that Mr. Clayton
was not competent to be executed. (Exs. 1, 2, pp. A1-4, 5-6). Mr. Clayton also
provided the director with a copy of a MRI scan, which established that Mr.
Clayton is missing part of his right frontal lobe (Ex. 16, p. A29). Mr. Clayton also
provided records that document Mr. Claytons history of mental problems, which
included: anxiety and nervousness, depression, irritability and agitation,
hallucinations and delusions, paranoia, and confusion. (Exs. 3-15, pp. A7-28).
Mr. Clayton also provided records that document various medications prescribed
to him in the past, including Phenobarbital, Triavil, Dilantin, Thorazine, Inderal,
and a disability determination based on Mr. Claytons psychiatric issues after the
sawmill accident. (Exs. 10, 11, 13, 15, pp. A17-18, 23-24, 26-28).
The experts findings, along with documentation of Mr. Claytons mental
health history, were sufficient to invoke the provisions of Section 552.060, RSMo.
(Exs. 1-16, pp. A1-29).
19
28. Further, in Mr. Claytons prior state cases, competency to be executed

was not addressed. State v. Clayton, 995 S.W.2d 468 (Mo. banc 1999); Clayton v.
State, 63 S.W.3d 201 (Mo. banc 2001). In addition, there has been no evidence
adduced heretofore of Mr. Claytons delusions as set forth in the findings of Dr.
Logan and Dr. Foster or of any experts opinion that Mr. Clayton is not competent
to be executed.
In light of the above, Mr. Clayton is entitled to a hearing under the
provisions of Section 552.060, RSMo.
29. In addition to the above, Mr. Clayton also has a right to a hearing,
pursuant to the 8th and 14th Amendments to the U.S. Constitution. In Ford v.
Wainwright, the Supreme Court held that the Eighth Amendment prohibited
infliction of the death penalty on a prisoner who is insane. 477 U.S. at 410. The
Court also held that the Eighth and Fourteenth Amendments require that a prisoner
receive procedural due process in the determination of his competency. Id. at 417,
424. In considering what process is due a prisoner, Justice Powells concurrence
is the controlling opinion, as it offered a more limited holding than the plurality
opinion authored by Justice Marshall. Panetti v. Quarterman, 127 S.Ct. 2842,
2856 (2007).
Justice Powell concluded that a prisoner who has made a substantial
threshold showing of insanity must have a fair hearing and an opportunity to be
heard. Ford, 477 U.S. at 424. In finding the Florida statute in question to be
deficient, Justice Powell observed that the statutory procedure invited arbitrariness
20
and error because the prisoners sanity was determined solely on the basis of
examinations performed by state-appointed experts. Id. To satisfy due process
concerns, the prisoner must be allowed to explain the inadequacies of the states
examination and offer contrary medical evidence. Id. The basic requirements of
due process include an opportunity to submit evidence and argument from the
prisoners counsel, including expert psychiatric evidence that may differ from the
States own psychiatric examination. Id. at 427.
The plurality opinion concluded that the prisoner or his counsel must be
permitted to present material relevant to his sanity, and the statutory scheme must
provide an opportunity to challenge or impeach the state-appointed experts
opinion. Id. at 415. Without this protection, the fact finder cannot be expected to
reach a reliable decision as to the prisoners competency. Id.
Finally the decision cannot rest wholly with the Executive Branch. Id. at
416. In the Florida scheme that the Court held invalid in Ford, as here, the
ultimate decision maker is a member of the Executive Branch. Id. In Ford, the
ultimate decision maker was the Governor, the head of the executive branch
whose members have been responsible for initiating every state of the
prosecution of the condemned from arrest through sentencing. Id. For this
reason, the procedure fails to provide the neutrality that is necessary for
reliability in the fact-finding proceeding. Id.
In the case at bar, a psychiatrist and a psychologist have opined that Mr.
Clayton is not competent to be executed. Mr. Clayton is entitled to present the
21
experts testimony, along with other evidence material to his sanity, to a neutral
finder of fact.
Further, Section 552.060, RSMo, similarly to the statute deemed defective
in Ford, provides the ultimate decision to be made by a member of the Executive
Branch. The Director of the Missouri Department of Corrections is appointed by
the Governor of the State of Missouri and is a member of the Executive Branch.
30. By providing two experts recent findings that he is presently not
competent to be executed, records that document his psychiatric problems, and a
MRI scan depicting his missing right frontal lobe, Mr. Clayton has met the
requisite preliminary showing that his current mental state would bar his
execution.
31. Similar to the petitioners in the Ford and Panetti cases, Mr. Clayton
has provided expert findings that he is not competent to be executed. In fact, Mr.
Clayton has provided more than what Mr. Panetti initially provided in order to
obtain a hearing Mr. Panetti filed a motion to determine his competency to be
executed and attached a letter and a declaration from two individuals, a
psychologist and a law professor. Panetti, 127 S.Ct. at 2850. Mr. Clayton has
provided findings that he is not competent to be executed by two experts, a
psychiatrist and a psychologist. (Exs. 1, 2, pp. A1-6).
32. Mr. Claytons case is also similar to the facts underlying the Ford and
Panetti cases, in that Mr. Claytons delusions prevent him from rationally
understanding his sentence.
22
The underlying facts of Ford included that after his death sentence was
imposed, Ford began to manifest gradual changes in behavior. Ford, 477 U.S. at
402. They began as an occasional peculiar idea but became more serious over
time. Id. Ford developed an increasingly pervasive delusion that he had become
the target of a conspiracy by the Ku Klux Klan and others, designed to force him
to commit suicide. Id. Counsel for Ford hired two doctors, Dr. Amin and Dr.
Kaufman. Id. at 402-403. Dr. Kaufman concluded that Ford had no
understanding of why he was being executed, made no connection between the
homicide of which he had been convicted and the death penalty, and believed that
he would not be executed because he owned the prisons and could control the
Governor through his mind waves. Id. at 403.
In the case at bar, Mr. Clayton also has suffered from a deterioration of his
mental faculties since his incarceration under sentence of death. Mr. Claytons
continued deterioration has led to deeply-held delusions, including that his
conviction was the result of a conspiracy and someone else killed Deputy Castetter
and that God will intervene and save him because God wants him to be released to
preach the gospel. (Exs. 1, 2, pp. A2, 6). Mr. Clayton perceives his legal situation
as a test of his faith in God. He has no real understanding that he has been
sentenced to death because the State seeks retribution for the death of Deputy
Castetter. He perceives his sad life as imposed on him by God, who is testing him
and making him suffer before setting him free to preach the gospel.
23
Similarly to Mr. Ford, Mr. Claytons mental health issues (the removal of
part of his frontal lobe, dementia, and delusional disorder) prevent him from
having a rational understanding of the meaning and purpose of his punishment.
(Exs. 1, 2, 16, pp. A1-4, 5-6, 29).
33. In Panetti v. Quarterman, the Court held that Panetti met the requisite
preliminary showing that his current mental state would bar his execution. Id. at
2855. Panetti filed a renewed motion to determine his competency to be executed
and attached a letter and a declaration from two individuals, a psychologist and a
law professor. Id. at 2850. The federal district court held an evidentiary hearing.
Id. at 2851. Panetti called a psychiatrist, a professor, and two psychologists, and
the State called two psychologists and three correctional officers. Id. Panetti was
found not competent to be executed by four experts. Id. at 2859. Their testimony
included that Panetti had schizo-affective disorder, and although he understood
that the State was saying it wanted to execute him for the murders, he believed in
earnest that the stated reason from the State was a sham and the State really
wanted to execute him to keep him from preaching. Id. The States experts
acknowledged his mental problems but found him competent to be executed. Id.
The U.S. Supreme Court wrote that there was much in the record to support
that Panetti suffered from delusions. Id. at 2860. The legal inquiry was whether
those delusions rendered him incompetent to be executed. Id. The Court of
Appeals, Fifth Circuit held that they could not. Id. The U.S. Supreme Court
concluded that the Fifth Circuits analysis was too restrictive, rested on a flawed
24
interpretation of Ford, and did not afford Panetti the protections guaranteed by the
Eighth Amendment. Id. at 2860. The Court explained:
The Court of Appeals standard treats a prisoners delusional
belief system as irrelevant if the prisoner knows that the State has
identified his crimes as the reason for his execution. Yet the
Ford opinions nowhere indicate that delusions are irrelevant to
comprehen[sion] or aware[ness] if they so impair the prisoners
concept of reality that he cannot reach a rational understanding of
the reason for the execution. If anything, the Ford majority suggests
the opposite.
Id. at 2861. The Court held that [a] prisoners awareness of the States rationale
for an execution is not the same as a rational understanding of it. Ford v.
Wainwright does not foreclose inquiry into the latter. Id. at 2862.
Although the Court did not attempt to provide a definite rule to govern
issues of competency to be executed, the Court did indicate that it is not enough
for a condemned prisoner to be able to identify the stated reason for his execution:
to be competent, there must be a demonstration that he has some rational
understanding of the real interests the state seeks to vindicate. Id. at 2861. The
Court observed that executing an insane person serves no retributive purpose:
[I]t might be said that capital punishment is imposed because it
has the potential to make the offender recognize at last the gravity of
his crime and to allow the community as a whole, including the
25
surviving family and friends of the victim, to affirm its own

judgment that the culpability of the prisoner is so serious that the
ultimate penalty must be sought and imposed. The potential for a
prisoners recognition of the severity of the offense and the objective
of community vindication are called into question, however, if the
prisoners mental state is so distorted by mental illness that his
awareness of the crime and punishment has little or no relation to the
understanding of those concepts shared by the community as a
whole.
Id. at 2861.
The U.S. Supreme Court also held that the Due Process Clause of the
Fourteenth Amendment required the state to provide, at a minimum, an
opportunity to submit evidence and argument from the condemned persons
counsel and expert mental health evidence which may differ from whatever mental
health examination the prosecutors or jailers might tender. Id. at 2856.
The Court remanded the case for further findings consistent with its
opinion. Id. at 2863.
In the case at bar, Mr. Claytons delusions have so impaired his concept of
reality that he is not able to rationally understand his sentence. (Exs. 1, 2, pp. A16). His perception of reality is so distorted by mental illness that his awareness of
the crime and punishment has little or no relation to the understanding of those
26
concepts shared by the community as a whole. He has no rational understanding

of the real interests the State seeks to vindicate.
Pursuant to Ford and Panetti, Mr. Clayton is entitled to a hearing on this
issue.
WHEREFORE, Appellant respectfully objects to the States motion for this
Court to set a date for Appellants execution, pending a determination of
Appellants competency to be executed.

Tel: 816-889-7699
Fax: 816-889-2001
/s/ Pete Carter

Pete Carter, #31401
Woodrail Center
Columbia, MO 65203
Phone: 573-882-9855
Fax: 573-882-9468
e-mail: Pete.Carter@mspd.mo.gov
27
Certificate of Service
I hereby certify that Mr. Andrew Hassell, Office of the Attorney General, is
a registered user of the electronic filing system and, on May 22, 2012, a complete
copy of this document was delivered to Mr. Andrew Hassell through the electronic
filing system.
Jeannie Willibey
28
Electronically Filed - SUPREME COURT OF MISSOURI - February 10, 2014 - 04:25 PM
SC93976
STATE OF MISSOURI,
Respondent,
vs.
CECIL CLAYTON,
Appellant.
)
)
)
)
)
)
)
)
)
No. SC80545
RESPONSE TO ORDER TO SHOW CAUSE WHY

AN EXECUTION DATE SHOULD NOT BE SET1
COMES NOW Appellant, Cecil Clayton, by and through undersigned
counsel, and hereby asserts that setting an execution date in this case, while Mr.
Claytons Petition for Writ of Mandamus (filed on June 1, 2009 in SC90175 and
filed on February 10, 2014 in SC93976) is pending in this Court, and before there
is a determination as to Mr. Claytons competency to be executed, would deprive
Mr. Clayton of his rights to due process and to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 10 and 21 of the Missouri Constitution. As
1
The Missouri State Public Defenders Office is representing Mr. Clayton in this
Response and in the Petition for Writ of Mandamus to Compel the Missouri
Department of Corrections to Invoke the Provisions of Section 552.060, RSMo, on
the basis that Mr. Clayton is incompetent to be executed. Attorney Elizabeth
Unger Carlyle will be filing a Response asserting additional grounds.
1
follows:
Background and History of the Case
1. Mr. Clayton was convicted in the Circuit Court of Jasper County of first
degree murder and sentenced to death. State v. Clayton, 995 S.W.2d 468, 472
(Mo. banc 1999). His conviction and sentence were affirmed on direct appeal.
2. Mr. Clayton timely filed a Rule 29.15 post-conviction motion, which
was denied. Clayton v. State, 63 S.W.3d 201, 203 (Mo. banc 2001). The denial of
post-conviction relief was affirmed on appeal. Id. at 210.
4. During the guilt and penalty phases of his capital jury trial, Mr. Clayton
adduced evidence regarding his mental health, including the following:
Mr. Clayton suffered a head injury as a result of a sawmill accident in 1972
at the age of 32. Clayton v. State, 63 S.W.3d at 204. Mr. Claytons brother,
Marvin Clayton, testified that after the injury, Mr. Clayton was changed. Id. He
broke up with his wife, began drinking alcohol and became impatient, unable to
work and more prone to violent episodes. Id. A defense expert testified that due
to his brain injury, which involved a loss of 7.7 percent of the brain, which
cause why this Court should not set an execution date, Mr. Clayton states as
of deliberating or otherwise coolly reflecting on a murder when agitated. Id.

During the penalty phase, another brother, Jerry, was called to testify as to
Mr. Claytons childhood and life as a part-time pastor and evangelist prior to the
sawmill accident and, after the accident, his marital breakup, drinking alcohol and
troubling behavior. Id.
5. During the state post-conviction proceeding, in support of his claim that
he was incompetent to stand trial, Mr. Clayton adduced additional evidence
concerning his mental health, which included more detail regarding the 1972
sawmill accident. Id. at 205. A piece of wood broke off the log he was working
on and pierced his head. Id. The piece became imbedded inside his skull and
could only be removed surgically. Id. Although Mr. Clayton spent a
considerable amount of time recuperating in the hospital after the accident, he did
not receive any long-term therapy. Id.
Thereafter, Mr. Clayton was unable to work in the timber business or
consistently maintain other types of full time employment. Id. Mr. Clayton quit
looking for full time employment. Id. He was only able to work part time
occasionally and eventually applied for and received social security disability
benefits. Id.
Mr. Claytons personal life deteriorated. Id. Although he continued
traveling around preaching and singing with his family for a while, he eventually
equaled 20 percent of the frontal lobe (PCR Tr. 227), Mr. Clayton was incapable
members of his family. Id. His wife left him, and they eventually divorced. Id.
Dr. Daniel Foster testified at the state post-conviction hearing that Mr.
Clayton was not competent to proceed during his trial. Id. at 209.
Jeff Tichenor, a physicians assistant who treated Mr. Clayton from January
through March 1997 while he was in jail for the charged homicide, also testified at
the post-conviction hearing.
Clayton v. Luebbers, 2006 WL 1128803, p. 12
(W.D. Mo.). Mr. Tichenor advised trial counsel to obtain a psychiatric evaluation
for Mr. Clayton and told trial counsel of Mr. Claytons psychiatric symptoms,
including poor hygiene, agitation, and reports of Mr. Clayton smearing feces on
the wall of his cell. Id.
6. During the federal habeas corpus proceedings, Dr. Lea Ann Preston, a
clinical psychologist who was appointed by the federal court to examine Mr.
Clayton and evaluated him from May 6, 2004 through January 6, 2005, found that
he was NOT competent to proceed in the habeas corpus proceedings. (Ex. 20, pp.
A37-68). Dr. Preston determined: Mr. Claytons tangential speech, impaired
judgment, and impaired reasoning abilities, will negatively effect his ability to
communicate effectively with his counsel, testify relevantly, and make rational
decisions regarding his habeas proceedings. Consequently, it is my opinion he is
likely not competent to proceed. (Ex. 20, p. A68). In determining that Mr.
Clayton was not competent to proceed, Dr. Preston noted that Mr. Clayton had
many cognitive deficits:
4
quit. Id. He started drinking again. Id. He was violent and quick-tempered with
presentation during clinical interviews illustrated that his tangential

speech, poor thought inhibition, and poor reasoning skills will
negatively impact his ability to relay information to his defense
counsel in a coherent and meaningful manner. As described above,
Mr. Clayton demonstrated extreme difficulty remaining focused
during clinical interviews as well as during the administration of
structured assessment instruments. His responses to queries were
often irrelevant and tangential. When re-directed, he would attempt
to respond relevantly but generally would lose focus and begin
discussing irrelevant topics again.
(Ex. 20, p. A66).
7. After federal habeas corpus proceedings in Mr. Claytons case were
completed, the Missouri State Public Defender System designated undersigned
counsel to represent Mr. Clayton in state proceedings regarding his competency to
be executed. In September 2008, undersigned counsel retained Dr. William
Logan, M.D., and Dr. Daniel Foster, Ph.D. to evaluate Mr. Clayton for purposes of
determining whether he was competent to be executed. Dr. Logan and Dr. Foster
issued findings that Mr. Clayton was not competent to be executed. (Exs. 1, 2, pp.
A1-4, A5-6).
8. In a report after Dr. Logan examined Mr. Clayton in 2008, Dr. Logan
found that:
5
[H]is performance on the MacCAT-CA and his

execution;
- Despite knowing that he is at the end of his appeals, he firmly believes
that God will intervene, save him from execution, and free him from the prison, so
that he can preach the gospel; and
Christopher Castetter. (Ex. 1, pp. A1-2).
Dr. Logan concluded that Mr. Claytons delusions, which result from a
Logan found:
6
Deputy Castetter, he believes his legal situation is instead a test of

his faith and that God will not allow the punishment to occur as God
has chosen him for another mission. Hence, he has no concept of a
need for clemency, or capacity to understand matters in extenuation,
arguments for executive clemency or rational reasons why the
(Ex. 1, pp. A2-3).
9. Dr. Foster, who also examined Mr. Clayton in 2008, found that:
While Mr. Clayton knows the State plans to execute him for killing
extenuation--concepts beyond him perceptually, not intellectually. (Ex. 2, pp. A56).
Dr. Foster concluded that Mr. Claytons impairment is sufficiently
profound as to render him incompetent to be executed. (Ex. 2, p. A6).
10. Pursuant to Section 552.060, RSMo:
No person condemned to death shall be executed if as a result of
mental disease or defect he lacks capacity to understand the nature
and purpose of the punishment about to be imposed upon him or
matters in extenuation, arguments for executive clemency or reasons
Section 552.060.1, RSMo. (Ex. 27, pp. A95-96).
Section 552.060, RSMo, requires the director of the Missouri Department
of Corrections to take the following actions, if he has reasonable cause to believe
that any inmate, who has been sentenced to death, has a mental disease or defect
. . .immediately notify the governor who shall forthwith order a stay
of execution of the sentence if there is not sufficient time between
notification and time of execution for a determination of the mental
condition of such person to be made in accordance with the
provisions of this section without such stay. The director shall also,
8
of mental health and the prosecuting or circuit attorney of the county

where the defendant was tried, the attorney general and the circuit
court of the county where the correctional facility is located.
Section 552.060.2, RSMo. (Ex. 27, pp. A95-96).
After the notification, set forth above, the circuit court which receives the
notification is required to conduct an inquiry into the mental condition of the
offender after first granting any of the parties entitled to notification an
examination by a physician of their own choosing on proper application made
within five days of such notification. Section 552.060.3, RSMo.
11. On November 20, 2008, undersigned counsel wrote to Mr. Larry
Crawford, then Director of the Missouri Department of Corrections, and asked that
Mr. Crawford invoke the provisions of 552.060, RSMo. (Exs. 21, pp. A69-71).
12. The reports of Dr. Logan and Dr. Foster referred to above were
attached to the letter to Mr. Crawford.
13. Several of Mr. Claytons mental health and medical records were also
attached, including Neurological Surgery report by Dr. John Tsang dated 1/26/72
(Ex. 3, p. A7); Neurological Surgery report by Dr. Tsang dated 1/26/72 (Ex. 4, p.
A9); St. Johns Hospital Discharge Summary dated 2/3/72 (Ex. 5, p. A10); Letter
from Dr. George Klinkerfuss, Springfield Neurological Associate, Inc. to Mr. Dale
Robertson, Counselor, dated 1/30/78 (Ex. 6, p. A11); Statement of Dr. Klinkerfuss
stamped received by Disability Determinations on 4/24/78 (Ex. 7, p. A13);
9
as soon as reasonably possible, notify the director of the department
A14); Letter from Dr. Klinkerfuss to Kathy Stephens, Counselor, dated 1/31/80
(Ex. 9, p. A16); Letter from Dr. Klinkerfuss to Paul Markstrom, Counselor, dated
7/16/80 (Ex. 10, p. A17); Letter from Dr. Klinkerfuss to Mark Martin, Attorney at
Law, dated 9/1/83 (Ex. 11, p. A18); Letter from Dr. Douglas A. Stevens,
Southwestern Human Services Institute, Inc., to Mark Martin dated 10/31/83 (Ex.
12, p. A19); Psychiatric Evaluation, Psychiatric and Psychological Associates,
Inc., dated 2/9/84 (Ex. 13, p. A23); Letter from Dr. James Bright, Psychiatric and
Psychological Associates, Inc., to Mark Martin dated 3/20/84 (Ex. 14, p. A25);
Department of Health and Human Services, Decision of 4/6/84 (Ex. 15, p. A26).
These records documented the removal of a portion of Mr. Claytons right
frontal lobe in January 1972 and the deterioration of Mr. Claytons mental health
after the removal of his right frontal lobe. The records further documented Mr.
Claytons attempts to obtain help for his mental problems and his psychiatric
issues, which included: anxiety and nervousness, depression, irritability and
agitation, hallucinations and delusions, paranoia, and confusion. (Exs. 6, 7, 8, 10,
11, 12, 13, 14, pp. A12-14, 17-25).
14. The records also documented various medications prescribed to Mr.
Clayton (including Phenobarbital, Triavil, Dilantin, Thorazine, Inderal) and a
disability determination based on Mr. Claytons psychiatric issues after the
accident. (Exs. 10, 11, 13, 15, pp. A17-18, 23-24, 26-28).
10
Psychiatric Evaluation dated 1/24/79, Ozark Psychiatric Clinic, Inc. (Ex. 8, p.
the governments determination that Mr. Clayton was disabled, wrote in October
1983:
The Wide Range Achievement Test was given and he read at
a middle fourth grade level, spelled at an early third grade level and
did arithmetic at an early fourth grade level. The Wechsler
Memory Scale was given and he attained a memory quotient of 62,
placing him in the mentally retarded category. Mental control was
totally absent and he was very weak on visual memory, memory for
verbal passages and digit span. The Wechsler Adult Intelligence
Scale was then given and he attained a verbal IQ of 75, a
performance IQ of 76 and a full-scale IQ of 76. The pattern of
tests suggested a traumatic head injury.
[Mr. Clayton] has sustained a head injury that has resulted in brain
damage. This has not only impaired sensory, motor and cognitive
functions, but also has resulted in a psychotic component, best
described as a schizophrenic disorder, paranoid type. His most
11
15. Dr. Douglas Stevens, who examined Mr. Clayton in connection with

(Ex. 12, pp. A21-22, italics added).
16. Likewise, in 1984, Dr. James E. Bright found that Mr. Clayton
presents the picture of an organic personality disorder following a head injury in
1972. It is my opinion that he is totally disabled. He will not be able to work
doing anything. He will not be able to work doing any low stress jobs. He cannot
work. He cannot work. (Ex. 14, p. A25).
17. In 1984, an Administrative Law Judge for the Department of Health
and Human Services found that: Mr. Clayton was disabled within the meaning of
the Social Security Act beginning November 18, 1977; the medical evidence
established that Mr. Clayton has severe chronic brain syndrome; Mr. Claytons
impairment continues to be disabling; and the medical evidence demonstrates that
Mr. Claytons condition has not improved. (Ex. 15, p. A28).
18. Undersigned counsel asserted in the letter to Director Crawford that
these records, in addition to Mr. Claytons delusions that God would miraculously
save him from the upcoming execution, demonstrated reasonable cause to believe
12
Counsel requested a meeting with Mr. Crawford, so that they could bring
additional records and show a MRI scan of Mr. Claytons brain, which depicted
the missing portion of Mr. Claytons right frontal lobe. (Ex. 21, pp. A69-70).
19. On December 11, 2008, Mr. Crawford responded to counsels letter
and wrote that the records sent were being reviewed.
20. Undersigned counsel did not hear again from Mr. Crawford. In January
2009, Governor Nixon nominated Mr. George A. Lombardi as Director of the
Missouri Department of Corrections. Thereafter, on March 11, 2009, counsel
wrote to Mr. Lombardi, and asked that he invoke the provisions of 552.060,
RSMo. (Ex. 22, pp. A72-74). Counsel requested that Mr. Lombardi review Mr.
Claytons case and respond by May 1, 2009 to let counsel know if he would
consider invoking Section 552.060, RSMo or to meet to discuss Mr. Claytons
case. (Ex. 22, p. A74).
21. Undersigned counsel attached all the aforementioned documents to the
letter to Mr. Lombardi. In addition, counsel attached a copy of a slide from the
MRI scan taken at St. Johns Regional Hospital on June 17, 2004, which depicted
the missing portion of Mr. Claytons right frontal lobe. (Ex. 16, p. A29). Slides
from an earlier MRI scan of Mr. Claytons brain are also on file with this Court in
State v. Cecil Clayton, 995 S.W.2d 468 (Mo. banc 1999), which was Mr.
Claytons direct appeal case. Those slides also depict the missing portion of his
right frontal lobe. State v. Cecil Clayton, SC No. 80545, Def. Exs. J, K, and I.
13
that Mr. Clayton has a mental disease or defect excluding fitness for execution.
represented Mr. Clayton in the state post-conviction proceedings, Ms. Rebecca

Kurz and Ms. Laura Martin; and the mitigation specialist that worked with Mr.
Clayton in the state post-conviction proceeding, Ms. Julie Eilers. (Exs. 17, 18, 19,
pp. A30-31, 32-34, 35-36). Each set forth her observations of Mr. Claytons
cognitive deficits and how that affected his understanding of his case, his
conviction, and his sentence.
23. After counsel received no response from Mr. Lombardi, she left two
telephone messages for the director, one on May 1, 2009, and one on May 11,
2009. On May 12, 2009, Ms. Gail Vasterling called on behalf of the director and
stated that no meeting was necessary and that the director would make a decision.
However, Ms. Vasterling would not state when the director would make a
decision. Counsel heard nothing further from the Missouri Department of
Corrections regarding any decision.
24. On June 1, 2009, counsel filed a Petition for Writ of Mandamus to
Compel the Director of the Missouri Department of Corrections to Invoke the
Provisions of Section 552.060, RSMo, and Motion not to set an Execution Date.
State ex rel. Clayton v. Lombardi, SC90175. On September 1, 2009, this Court
denied the Petition for Writ of Mandamus without prejudice as premature.
25. On May 17, 2012, the State filed a Motion to Set an Execution Date in
Mr. Claytons direct appeal case. State v. Clayton, SC80545. On May 22, 2012,
undersigned counsel filed Suggestions in Opposition to Motion to Set Execution
14
22. Undersigned counsel also attached affidavits from the attorneys that
State filed its Reply on June 1, 2012.

26. On August 28, 2013, after re-examining Mr. Clayton and reviewing
additional records, Dr. William Logan found that Mr. Claytons mental status had
not changed and that Mr. Clayton was not competent to be executed. (Ex. 23, pp.
A75-78). Dr. Logan found:
-Mr. Clayton experienced head trauma in 1972 which has produced a
dementia with decreased judgment and reduced ability to process information or
grasp abstract concepts;
-Mr. Clayton has a psychosis, Delusional Disorder with persecutory
delusions, paranoia and religious preoccupation;
-When examined on September 14, 2012 Mr. Claytons thoughts were
tangential. He still believed God would intervene and he would one day be a
gospel singer and evangelist. He continues to believe he was unjustly convicted
and will never be executed. He does know that his attorneys are working to
get him off the capital punishment unit and then have a new trial. Past this point,
he has no understanding of the issues in his proceeding. He does not
understand the reason for his proposed execution. He still believes God will do
well for me. (Ex. 23, pp. A75, 77).
Dr. Logan concluded that Mr. Claytons head trauma, documented on MRI
scans, will never change. Likewise his delusional ideas are fixed and
unchangeable. There is no reason to change my previous 2008 opinion that Mr.
15
Date, Pending a Determination of Mr. Claytons Competency to be Executed. The
comprehend the reason and purpose of his pending execution. (Ex. 23, p. A77).
27. On November 24, 2013, after re-examining Mr. Clayton and reviewing
additional records, Dr. Foster found that Mr. Claytons mental status had not
changed and that Mr. Clayton was not competent to be executed. (Ex. 24, pp.
A79-82). Dr. Foster found:
-Mr. Clayton has a well documented Medical Record of prior head injuries,
to include an incident occurring in 1972 which resulted in scarring and loss of
brain tissue in his right frontal lobe. Though he has a long established diagnosis of
Dementia, this diagnosis is not identified in many of his Potosi Medical Records.
His Brain Damage and resultant Dementia, is a mental defect which results in
impaired memory, particularly short term, difficulty processing information,
especially when under duress, and impaired judgment and decision making
(impaired executive functioning);
-Mr. Clayton displays impairments in orientation, attention, concentration,
memory, abstract abilities, fund of general knowledge, judgment, and decision
making. He is not considered a reliable historian secondary to his dementia;
-Mr. Claytons legal competency is clearly compromised. His dementia has
worsened secondary to aging and to his long term cardiovascular disease. His
insight and judgment are further impaired (since the 2008 Report) and he is not
considered to meet the requirements of competency for the purposes of the final
appellate proceedings. (Ex. 24, pp. A79-82).
16
Clayton remains not competent to be executed as he does not understand or
standards of competence required for execution and addressed in Panetti v.

Quarterman and Ford v. Wainwright. (Ex. 24, p. A82).
28. On January 29, 2014, the Missouri Supreme Court requested Mr.
Clayton to show cause why an execution date should not be set. In addition to
filing this Response, undersigned counsel has filed a Petition for Writ of
Mandamus in State ex rel. Clayton v. Lombardi, SC93976.
29. On February 3, 2014, undersigned counsel wrote to Mr. George
Lombardi, Director of the Missouri Department of Corrections and forwarded a
copy of all the aforementioned records, including Dr. Logans and Dr. Fosters
most recent reports. (Ex. 25, pp. A83-85). Undersigned counsel asserted in the
letter to Mr. Lombardi that the records, in addition to the experts findings,
demonstrated reasonable cause to believe that Mr. Clayton has a mental disease or
defect excluding fitness for execution. (Ex. 25, pp. A83-85). Counsel requested
that Mr. Lombardi review Mr. Claytons records and invoke the provisions of
Section 552.060, RSMo. (Ex. 25, p. A84). Counsel also asked Mr. Lombardi to
let her know by February 10, 2014, whether he would invoke the provisions of
Section 552.060, RSMo. (Ex. 25, p. A84). Counsel did not receive any response
from the Director.
17
Dr. Foster concluded: I do not believe he can meet the minimal legal
executed, under Section 552.060, RSMo, and the United States Constitution
30. Section 552.060, RSMo, requires the director to take the following
actions, if he has reasonable cause to believe that any inmate, who has been
sentenced to death, has a mental disease or defect excluding fitness for execution:
immediately notify the governor who shall forthwith order a stay of execution of
the sentence; notify the director of the department of mental health and the
prosecuting or circuit attorney of the county where the defendant was tried; and
notify the attorney general and the circuit court of the county where the
correctional facility is located. Section 552.060.2, RSMo. (Ex. 27, pp. A95-96).
After notification, the circuit court of the county shall conduct an inquiry
into the mental condition of the offender. Section 552.060.3, RSMo.
31. In the case at bar, Mr. Clayton previously provided the Director of the
Missouri Department of Corrections with two experts opinions that Mr. Clayton
was not competent to be executed. (Exs. 1, 2, 23, 24, pp. A1-4, 5-6, 75-78, 7982). Mr. Clayton also provided the director with a copy of a MRI scan, which
established that Mr. Clayton is missing part of his right frontal lobe. (Ex. 16, p.
A29). Mr. Clayton also provided records that document Mr. Claytons history of
mental problems, which included: anxiety and nervousness, depression, irritability
and agitation, hallucinations and delusions, paranoia, and confusion. (Exs. 3-15,
pp. A7-28). Mr. Clayton also provided records that document various medications
prescribed to him in the past, including Phenobarbital, Triavil, Dilantin,
18
Mr. Clayton has a right to a hearing to determine his competency to be
psychiatric issues after the sawmill accident. (Exs. 10, 11, 13, 15, pp. A17-18, 2324, 26-28).
The experts findings, along with documentation of Mr. Claytons mental
health history, were sufficient to invoke the provisions of Section 552.060, RSMo.
(Exs. 1-16, 23, 24, pp. A1-29, 75-78, 79-82).
Mr. Clayton has now provided additional documentation to the Director,
including the reports of Dr. Logan and Dr. Foster after their 2013 examinations of
Mr. Clayton and additional prison records. (Exs. 23, 24; pp. A75-78, 79-82).
32. Also attached to this pleading is the affidavit of Elizabeth Unger
Carlyle, who has been appointed by the U.S. District Court, Western District of
Missouri, to represent Mr. Clayton in clemency and other post-habeas corpus
proceedings in state and federal court. (Ex. 28, pp. A97-98) Ms. Carlyle explains
the deterioration in Mr. Claytons mental status during the 11 years of her
representation, and states: Mr. Clayton has not been able to assist me in
developing evidence in mitigation that might be relevant to clemency. [He]
does not appear to understand that, as a result of his sentence of death, he may be
executed. (Ex. 28, p. A98).
33. This Court has not previously determined Mr. Claytons competency to
be executed. State v. Clayton, 995 S.W.2d 468 (Mo. banc 1999); Clayton v. State,
63 S.W.3d 201 (Mo. banc 2001).
19
Thorazine, Inderal, and a disability determination based on Mr. Claytons
In light of the evidence that Mr. Clayton is not competent to be executed,
he is entitled to a hearing under the provisions of Section 552.060, RSMo.
34. Mr. Clayton also has a right to a hearing, pursuant to the Eighth and
Fourteenth Amendments to the United States Constitution. In Ford v. Wainwright,
the Supreme Court held that the Cruel and Unusual Punishments Clause of the
Eighth Amendment prohibited infliction of the death penalty on a prisoner who is
insane. 477 U.S. at 410. The Court also held that the Eighth and Fourteenth
Amendments require that a prisoner receive procedural due process in the
determination of his competency. Id. at 417, 424. In considering what process is
due a prisoner, Justice Powells concurrence is the controlling opinion, as it
offered a more limited holding than the plurality opinion authored by Justice
Marshall. Panetti v. Quarterman, 551 U.S. 930, 949 (2007).
Justice Powell concluded that a prisoner who has made a substantial
threshold showing of insanity must have a fair hearing and an opportunity to be
heard. Ford, 477 U.S. at 424. In finding the Florida statute in question to be
deficient, Justice Powell observed that the statutory procedure invited arbitrariness
and error because the prisoners sanity was determined solely on the basis of
examinations performed by state-appointed experts. Id. To satisfy due process
concerns, the prisoner must be allowed to explain the inadequacies of the states
examination and offer contrary medical evidence. Id. The basic requirements of
20
There has been no evidence of any experts opinion that Mr. Clayton is
prisoners counsel, including expert psychiatric evidence that may differ from the
States own psychiatric examination. Id. at 427.
The plurality opinion concluded that the prisoner or his counsel must be
permitted to present material relevant to his sanity, and the statutory scheme must
provide an opportunity to challenge or impeach the state-appointed experts
opinion. Id. at 415. Without this protection, the fact finder cannot be expected to
reach a reliable decision as to the prisoners competency. Id.
Finally the decision whether a prisoner is incompetent to be executed
cannot rest with the Executive Branch. Id. at 416. In the Florida scheme that the
Court held invalid in Ford, as here, the ultimate decision maker is a member of the
Executive Branch. Id. In Ford, the ultimate decision maker was the Governor, the
head of the executive branch whose members have been responsible for initiating
every state of the prosecution of the condemned from arrest through sentencing.
Id. For this reason, the procedure fails to provide the neutrality that is necessary
for reliability in the fact-finding proceeding. Id.
In the case at bar, a psychiatrist and a psychologist have found that Mr.
Clayton is not competent to be executed. If the director does not determine that he
is incompetent, Mr. Clayton is entitled to present the experts testimony, along
with other evidence material to his sanity, to a neutral finder of fact.
Section 552.060, RSMo, like the statute held unconstitutional in Ford,
provides that the ultimate decision as to the prisoners competency is to be made
21
due process include an opportunity to submit evidence and argument from the
of Corrections is appointed by the Governor of the State of Missouri and is a

member of the Executive Branch.
35. By providing two experts recent findings that he is presently not
competent to be executed, records that document his psychiatric problems, and a
MRI scan depicting his missing right frontal lobe, Mr. Clayton has met the
requisite preliminary showing that his current mental state would bar his
execution.
36. Like the petitioners in the Ford and Panetti cases, Mr. Clayton has
provided expert findings that he is not competent to be executed. In fact, Mr.
Clayton has provided more than what Mr. Panetti initially provided in order to
obtain a hearing Mr. Panetti filed a motion to determine his competency to be
executed and attached a letter and a declaration from two individuals, a
psychologist and a law professor. Panetti, 551 U.S. 930, 938 (2007). Mr.
Clayton has provided findings that he is not competent to be executed by two
experts, a psychiatrist and a psychologist. (Exs. 1, 2, 23, 24, pp. A1-6, 75-78, 7982).
37. Mr. Claytons case is also similar to the facts underlying the Ford and
Panetti cases, in that Mr. Claytons delusions prevent him from rationally
understanding his sentence.
After Mr. Fords death sentence was imposed, Mr. Ford began to manifest
gradual changes in behavior. Ford, 477 U.S. at 402. They began as an occasional
22
by a member of the Executive Branch. The Director of the Missouri Department
increasingly pervasive delusion that he had become the target of a conspiracy by

the Ku Klux Klan and others, designed to force him to commit suicide. Id.
Counsel for Mr. Ford presented evidence that an expert, Dr. Kaufman, concluded
that Mr. Ford had no understanding of why he was being executed, made no
connection between the homicide of which he had been convicted and the death
penalty, and believed that he would not be executed because he owned the prisons
and could control the Governor through his mind waves. Id. at 403.
Like Mr. Ford, Mr. Clayton has suffered a deterioration of his mental
faculties since his incarceration under sentence of death. His continued
deterioration has led to deeply-held delusions, including that his conviction was
the result of a conspiracy and someone else killed Deputy Castetter and that God
will intervene and save him because God wants him to be released to preach the
gospel. (Exs. 1, 2, 23, 24, pp. A2, 6, 75-78, 79-82). Mr. Clayton perceives his
legal situation as a test of his faith in God. He has no real understanding that he
has been sentenced to death because the State wants to punish him for the death of
Deputy Castetter. He perceives his sad life as imposed on him by God, who is
testing him and making him suffer before setting him free to preach the gospel.
Mr. Claytons mental health issues (the removal of part of his frontal lobe,
dementia, and delusional disorder) prevent him from having a rational
understanding of the meaning and purpose of his punishment. (Exs. 1, 2, 16, 23,
24, pp. A1-4, 5-6, 29, 75-78, 79-82).
23
peculiar idea but became more serious over time. Id. Mr. Ford developed an
Panetti met the requisite preliminary showing that his current mental state would
bar his execution under the Eighth and Fourteenth Amendments. Id. at 948. Mr.
Panetti filed a renewed motion to determine his competency to be executed and
attached a letter and a declaration from two individuals, a psychologist and a law
professor. Id. at 938. At an evidentiary hearing in federal district court, Mr.
Panetti offered the testimony of a psychiatrist, a law professor, and two
psychologists, and the State called two psychologists and three correctional
officers. Id. Mr. Panetti was found not competent to be executed by four experts.
Id. at 954. The experts testified that Mr. Panetti had schizo-affective disorder, and
although he understood that the State was saying it wanted to execute him for the
murders, he believed in earnest that the stated reason from the State was a sham
and the State really wanted to execute him to keep him from preaching. Id. The
States experts acknowledged his mental problems but found him competent to be
executed. Id.
The United States Supreme Court wrote that the record showed that Mr.
Panetti suffered from delusions. Id. at 956. The legal inquiry was whether those
delusions rendered him incompetent to be executed. Id. The Court of Appeals,
Fifth Circuit held that they could not. Id. The United States Supreme Court
concluded that the Fifth Circuits analysis was too restrictive, rested on a flawed
interpretation of Ford, and did not afford Mr. Panetti the protections guaranteed by
the Eighth Amendment. Id. at 957-958. The Court explained:
24
38. In Panetti v. Quarterman, 551 U.S. 930 (2007), the Court held that Mr.
system as irrelevant if the prisoner knows that the State has

identified his crimes as the reason for his execution. Yet the
Ford opinions nowhere indicate that delusions are irrelevant to
the opposite.
Id. at 958. The Court held that [a] prisoners awareness of the States rationale
for an execution is not the same as a rational understanding of it. Ford v.
Wainwright does not foreclose inquiry into the latter. Id. at 959.
Although the Court did not attempt to provide a definite rule to govern
issues of competency to be executed, the Court did indicate that it is not enough
for a condemned prisoner to be able to identify the stated reason for his execution:
to be competent, there must be a demonstration that he has some rational
understanding of the real interests the state seeks to vindicate. Id. at 959. The
Court observed that executing an insane person serves no retributive purpose:
[I]t might be said that capital punishment is imposed because it
has the potential to make the offender recognize at last the gravity of
his crime and to allow the community as a whole, including the
25

whole.
Id. at 958-959.
The United States Supreme Court also held that the Due Process Clause of
the Fourteenth Amendment required the state to provide, at a minimum, an
opportunity to submit evidence and argument from the condemned persons
counsel and expert mental health evidence which may differ from whatever mental
health examination the prosecutors or jailers might tender. Id. at 2856.
In the case at bar, Mr. Claytons delusions have so impaired his concept of
reality that he is not able to rationally understand his sentence. (Exs. 1, 2, 23, 24,
pp. A1-6, 75-78, 79-82). His perception of reality is so distorted by mental illness
that his awareness of the crime and punishment has little or no relation to the
understanding of those concepts shared by the community as a whole. He has no
rational understanding of the real interests the State seeks to vindicate.
Pursuant to Ford and Panetti, Mr. Clayton is entitled to a hearing on this
issue.
26
competent to be executed under the Missouri standard or under the standard set
forth by the United States Supreme Court in Panetti. During the federal habeas
proceeding in the federal district court, Mr. Clayton asserted that he was not
competent to be executed. Clayton v. Luebbers, 2006 WL 1128803 (W.D. Mo).
However, in determining that Mr. Clayton was competent to be executed in 2005,
the federal district court: 1) did not consider the Missouri standard for
competence; 2) did not allow Mr. Clayton funding to obtain his own full
examination or present evidence of his incompetence; 3) did not permit Dr. Lea
Ann Preston to question Mr. Clayton about the offense; 4) did not consider
whether Mr. Claytons delusions about the facts of the offense and punishment
rendered him incompetent as required by Panetti, which was issued after the
federal habeas proceedings; and 5) did not have the benefit of the 2008 and 2013
examinations now before this Court. (Ex. 20, pp. A37-68).
It should be noted, moreover, that Dr. Prestons observations were similar
to those of Dr. Logan and Dr. Foster several years later:
Mr. Clayton appeared to be easily distracted, and his
attention and concentration appeared to waiver. His thought process
seemed disorganized as he would offer tangential explanations to
interview questions and interject irrelevant information. He does not
appear to be acutely psychotic. However, he stated that he sees
specks on the walls that look like theyre moving, and visions
27
39. No expert has ever expressed the opinion that Mr. Clayton is
approaches them. Mr. Clayton also reportedly has heard voices

since his saw mill accident. He stated, Sometimes its a good voice
and calms me down, but at other times he hears Satans voice.
He said that Satans voice tells him, They will kill you, referring
to the death penalty.
(Ex. 20, p. A52). As to Mr. Claytons emotional functioning, Dr. Preston wrote,
His profile is indicative of someone who appears to experience hallucinations and
extreme suspicion. (Ex. 20, p. A59).
The district court, without benefit of evidence offered by Mr. Clayton,
relied exclusively on the 2005 report of Dr. Preston. (Ex. 26, pp. A86-94). But
Panetti v. Quarterman, which was issued two years later, makes clear that a
prisoner must be permitted to obtain and present evidence on his own behalf
before a competency determination is made.
Further, Dr. Preston did not give an opinion about Mr. Claytons
competence to be executed under the Missouri standard or the standard set forth in
Panetti (which decision was issued after her evaluation and report), because she
was not asked by the district court to do so. Instead, the district court asked her to
determine: Does Mr. Clayton understand that he is to be executed and the reason
for the execution (i.e., the killing of Officer Christopher Castetter)? (Ex. 20, p.
A68). She responded:
28
that look like a being. The visions reportedly disappear when he
convicted of murdering Officer Christopher Castetter. Additionally,

he expressed the understanding that he had been sentenced to death
for this crime. According to Mr. Clayton, the method of execution
for the state of Missouri is lethal injection.
(Ex. 20, p. A68).
Dr. Preston qualified this opinion because she was not able to consider
whether Mr. Clayton had any delusions regarding the underlying murder. (Ex. 20,
p. A67). She was prohibited by the federal court from questioning Mr. Clayton
regarding his version of the offense or reviewing investigative materials regarding
the offense. (Ex. 20, p. A67). She noted, These two types of information are
critical because they can reveal whether an individual possesses a rational
appreciation of the evidence in the case, deficits in the ability to recall what
occurred, or delusional beliefs about the offense. (Ex. 20, p. A67). Delusional
beliefs about the offense can affect ones perception of the sentence for the
offense.
Thus, Dr. Preston did not have all relevant factual information in reaching
her determination that Mr. Clayton was competent to be executed. She wrote:
without these two types of information, I am unable to state with certainty that he
has a rational appreciation of the evidence in his case and that he does not possess
delusional ideation regarding the offense. (Ex. 20, p. A67).
29
Yes. Mr. Clayton was fully aware of the fact that he had been
competent to be executed. But, as set forth above, that opinion is flawed for
several reasons and should not be given deference by this Court.
First, the district court did not address Missouris requirement that, in order
to be executed, a defendant must have the capacity to understand the nature and
purpose of the punishment about to be imposed upon him [and] matters in
extenuation, arguments for executive clemency or reasons why the sentence
should not be carried out. Sec. 552.060.1, RSMo. The court focused exclusively
on whether Mr. Clayton knew he had been convicted and sentenced to death.
Second, as discussed above, the factual basis for the district courts
conclusion was lacking because Mr. Clayton had no opportunity to present
evidence and because Dr. Preston was not able to consider all relevant evidence.
Third, the district did not consider whether Mr. Claytons delusions
rendered him incompetent, as required by Panetti v. Quarterman, supra. While
Dr. Preston did not identify any delusions about the offense, she cited numerous
other examiners who found Mr. Clayton to be delusional, and specifically stated
she could not determine whether he had delusions about the offense because she
could not talk to him about it. (Ex. 20, p. A67).
Finally, neither the district court nor Dr. Preston could address the changes
in Mr. Claytons condition which have occurred since Dr. Prestons examination
nearly nine years ago. Specifically, Dr. Preston did not find any evidence of Mr.
Claytons having delusions about his conviction and sentence, although she did
30
Based on Dr. Prestons opinion, the district court found Mr. Clayton
situation, he typically provided rationales for his answers which were irrational or
failed to support his position. (Ex. 20, p. A63). Drs. Logan and Foster, on the
other hand, have examined Mr. Clayton much more recently and both find clear
evidence of delusional thinking. (Exs. 23, 24, pp. A75-78, 79-82).
Competence to be executed is not a static determination, and the facts
relevant to that issue change over time. Even if Mr. Clayton had been competent
under the Missouri standard in 2005 and under the standard set forth in Panetti v.
Quarterman, supra, that does not mean that he is competent now.
WHEREFORE, Appellant respectfully asserts that without a substantive
ruling by this Court on Mr. Claytons Petition for Writ of Mandamus (filed on
June 1, 2009 in SC90175 and filed on February 10, 2014 in SC93976) and a
subsequent determination as to Mr. Claytons competency to be executed, setting
an execution date in this case would deprive Mr. Clayton of his rights to due
process and to be free from cruel and unusual punishment under the Eighth and
Fourteenth Amendments to the United States Constitution and Article I, Sections
10 and 21 of the Missouri Constitution.
31
note, Although Mr. Clayton did not express delusional ideation about his legal

Tel: 816-889-7699
Fax: 816-889-2001
/s/ Pete Carter

Pete Carter, #31401
Woodrail Center
Columbia, MO 65203
Phone: 573-777-9977
Fax: 573-777-9973
I hereby certify that Mr. Stephen Hawke, Office of the Attorney General, is
a registered user of the electronic filing system and, on February 11, 2014, a
complete copy of this document was delivered to Mr. Stephen Hawke at
stephen.hawke@ago.mo.gov, through the electronic filing system.
Jeannie Willibey
32
STATE OF MISSOURI,
Respondent,
vs.
CECIL CLAYTON,
Appellant.
)
)
)
)
)
)
)
)
)
No. SC80545
SUPPLEMENTAL RESPONSE TO ORDER TO SHOW CAUSE WHY

AN EXECUTION DATE SHOULD NOT BE SET
Appellant, Cecil Clayton, by and through undersigned counsel, asserts that
setting an execution date in this case, before there is a hearing and determination
as to Mr. Claytons competency to be executed, would deprive Mr. Clayton of his
rights to due process, to be free from cruel and unusual punishment under the
Eighth and Fourteenth Amendments to the United States Constitution and Article
I, Sections 10 and 21 of the Missouri Constitution and to be executed only if he
meets the standard of Mo. Rev. Stat. 552.060.1.
Mr. Clayton has previously filed responses to this Courts order to show
cause why an execution date should not be set. As additional cause why this Court
should not set an execution date, Mr. Clayton states as follows:
1. Mr. Clayton has filed, on this date, a civil complaint in the U.S. Western
District of Missouri, bearing case number ?. In this complaint, Mr. Clayton
contends that his civil rights would be violated if he is denied a due process
1
determination as to his competency prior to the execution of his death sentence.

The complaint is attached to this pleading as Exhibit A. The exhibits to the
complaint are attached as Exhibits 1 through 35, bearing the same numbers
assigned in federal court.
2. Attached as Exhibits B and C are the reports of Drs. Daniel Foster and
William Logan, concerning their evaluations of Mr. Clayton on January 2 and 3,
2015. Both doctors conclude that Mr. Clayton is incompetent to be executed under
the Missouri or constitutional standard.
3. While the State of Missouri informed this Court on December 18, 2014,
that the Director of the Department of Corrections has not found reasonable cause
to believe Mr. Clayton is incompetent, the state has not presented this Court with
any evidence which refutes the opinions of Drs. Foster and Logan.
For the foregoing reasons, without a constitutionally adequate hearing and
subsequent determination as to Mr. Claytons competency to be executed, setting
an execution date in this case would deprive Mr. Clayton of his rights to due
process and to be free from cruel and unusual punishment under the Eighth and
Fourteenth Amendments to the United States Constitution and Article I, Sections
10 and 21 of the Missouri Constitution.

Tel: 816-889-7699
Fax: 816-889-2001
/s/ Pete Carter
Pete Carter, #31401
Woodrail Center
Columbia, MO 65203
Phone: 573-777-9977
Fax: 573-777-9973
/s Elizabeth Unger Carlyle
(816)525-6540
FAX (866) 764-1249
e-mail: elizabeth@carlyle-law.com
Susan M. Hunt
816-221-4588
FAX (816) 222-0856
I hereby certify that Mr. Stephen Hawke, Office of the Attorney General, is
a registered user of the electronic filing system and, on January 9, 2015, a
complete copy of this document was delivered to Mr. Stephen Hawke at
stephen.hawke@ago.mo.gov, through the electronic filing system.
/s/ Elizabeth Unger Carlyle
STATE OF MISSOURI ex rel.

CECIL CLAYTON,
Petitioner,
vs.
WARDEN, POTOSI
CORRECTIONAL CENTER,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
No.
CAPITAL CASE
PETITION FOR WRIT OF HABEAS CORPUS

AND SUGGESTIONS IN SUPPORT, AND
MOTION FOR APPOINTMENT OF A SPECIAL MASTER OR,
IN THE ALTERNATIVE, PETITION FOR DECLARATORY JUDGMENT
Introduction.
Petitioner, Cecil Clayton, pursuant to Missouri Supreme Court Rules 68.03,
84.24, and 91, Mo. Rev. Stat. 552.060, Ford v. Wainwright, 477 U.S. 399 (1986),
Panetti v. Quarterman, 551. U.S. 930 (2007); and Atkins v. Virginia, 536 U.S. 304
(2002), respectfully petitions this Court for a Writ of Habeas Corpus and for the
appointment of a special master to gather evidence and issue findings as to
whether Mr. Clayton is competent to be executed and whether, as a result of his
intellectual disability, Mr. Clayton is ineligible to be executed.
Mr. Clayton is incompetent to be executed. He is seventy-four years old
and is missing a large portion of his frontal lobe as a result of a sawmill accident.
1
He has dementia, major depression, and a history of psychosis. This Court has
issued its order and warrant, scheduling his execution for March 17, 2015. But
despite the fact that this Court has on five occasions been presented with expert
opinions citing evidence that Mr. Clayton is incompetent, this Court has not
ordered a hearing on Mr. Claytons competence. This Courts inaction violates Mr.
Claytons rights to due process of law and to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 10 and 12 of the Missouri Constitution. Mr.
Clayton requests that this Court appoint a special master, convene a hearing on his
competence be executed before a neutral fact-finder, and upon a finding of
incompetence, commute his sentence to life imprisonment.
The Missouri statute that defines competence to be executed for Missouri
prisoners, Mo. Rev. Stat. 552.060, does not provide a constitutional process for
determining competence. In the alternative, pursuant to Rule 87, Mr. Clayton
requests that his Court declare this statute to be unconstitutional insofar as it
permits the director of the Department of Corrections, a member of the executive
branch who is charged with conducting the execution, to determine a prisoners
competence to be executed.
Finally, Mr. Clayton is intellectually disabled1, in that he has a significantly

sub-average IQ and lacks adaptive skills. Therefore, Atkins v. Virginia 536 U.S.
304 (2002) requires that he not be executed. In the alternative, Mr. Clayton
requests the Court to appoint a special master to consider evidence of Mr.
Claytons intellectual disability, and upon a finding of intellectual disability, to
commute his sentence to life imprisonment without parole.
SUGGESTIONS IN SUPPORT
Background and History
1. Mr. Clayton was convicted in the Circuit Court of Jasper County of the
first degree murder of Barry County Sheriffs Deputy Christopher Castetter and
was sentenced to death. The offense occurred on November 27, 1996. Mr.
Claytons conviction and sentence were affirmed on direct appeal. State v.
Clayton, 995 S.W.2d 468, 472 (Mo. banc 1999).
2. Mr. Clayton timely filed a Rule 29.15 post-conviction motion, which was
denied. The denial of post-conviction relief was affirmed on appeal. Clayton v.
State, 63 S.W.3d 201, 203, 210 (Mo. banc 2001).
Previously the United States Supreme Court used the term mentally retarded to
refer to persons with intellectual disability. In their recent decision, they used
intellectual disability, the term used throughout this pleading. Hall v. Florida,
134 S.Ct. 1986, 1989 (2014) (explaining change in terminology).
3

4. During the guilt and penalty phases of his capital jury trial, as well as the
post-conviction proceedings, habeas corpus proceedings, and other proceedings in
state and federal court, Mr. Clayton adduced evidence regarding his mental health.
5. Mr. Clayton suffered a head injury as a result of a sawmill accident in
1972 when he was 32 years old. Clayton v. State, 63 S.W.3d at 204. A piece of
wood broke off the log he was working on and pierced his head. The piece became
imbedded inside his skull and could only be removed surgically. Due to his brain
injury, Mr. Clayton lost 7.7 percent of the brain, which equaled 20 percent of the
frontal lobe (PCR Tr. 227). As a result, a defense expert testified at trial that Mr.
Clayton was incapable of deliberating or otherwise coolly reflecting on a murder
when agitated. Id. Although Mr. Clayton spent a considerable amount of time
recuperating in the hospital after the accident, he did not receive any long-term
therapy.
6. Before his injury, Mr. Clayton worked and raised a family. After an early
violent episode while he was drunk, Mr. Clayton had a religious conversion. He
stopped drinking and, in addition to his lumber and farm work, became a traveling
evangelist, preaching and singing with his family around the state. All this ended
with his injury.
7. After his injury, Mr. Clayton was unable to work in the timber business
or consistently maintain other types of full time employment. He was only able to
work part time occasionally and eventually applied for and received social security
disability benefits. He began drinking alcohol and became impatient and prone to
violent episodes. As his friend Leslie Paul put it [T]here would be some times
and things that he was crying, trying to provide for his family and things and
sometimes things didn't work out as good. (PCR Tr. 83). Eventually, Mr.
Claytons wife divorced him. [I] it really tore him up, really, really bad. After
the accident, He wasnt talking the spiritual talk, if you know what I mean. He
wasnt concerned about the ministry and things like that. It was hard to keep him
on target in a conversation. (PCR Tr. 433-434).
8. Mr. Clayton desperately sought help. Medical and mental health records
document Mr. Claytons attempts to obtain help for his psychiatric issues resulting
from the accident, which included: anxiety and nervousness, depression,
irritability and agitation, hallucinations and delusions, difficulty with impulse
control, paranoia, and confusion. (Exs. 6, 7, 8, 10, 11, 12, 13, 14, pp. A12-14, 1725). The records list various medications prescribed to Mr. Clayton (including
Phenobarbital, Triavil, Dilantin, Thorazine). (Exs. 10, 11, 13, 15, pp. A17-18, 2324, 26-28).
9. In 1978, five years after the accident, Dr. George Klinkerfuss wrote:
Mr. Clayton . . . is a 37 year old man who had an injury in a sawmill
accident at age 31. This evidently removed part of his frontal lobe.
5
He was unconscious for nine days and had a debridement and repair
of depressed skull fracture. Since that time he has noticed that his
left arm does not work properly and he has noticed further decrease
in the vision of his right eye. At the present time his primary
disabling symptoms are that he worries a great deal about little
things, has difficulty concentrating on one subject, and his mind will
go from one subject to another. . . . When he is around strangers or
even his own family or any number of them is present he becomes
confused and he becomes excited and shuts everything out and sits
and stares or else goes outside. He may become angry easily or yell
at his family. He has not been physically violent.
(Ex. 6, p. A11). Mr. Clayton also reported that he was depressed and that noises
and people made him extremely anxious. (Ex. 7, p. A13).
10. In 1979, Dr. William Clary wrote that Mr. Clayton told him:
I cant get ahold of myself, Im all tore up. Patient began to
describe his extreme anxiety and depression and inability to cope
with my own family. He has five children and doesnt know what
to do about this because this is putting too much of a load on him.
He says his wife is unsympathetic because she cant understand why
he cant stand to be around anyone. He cant stand to be around
anyone because people make him so nervous.
...
6
The patient has both morning and afternoon depression and extreme
anxiety around people. He feels he is being looked at with ideas of
reference. He is sure his children dont like him and knows that his
wife only puts up with him because she has to. He is in the as if
mode and I feel that he is talking to himself in my presence rather
than actually communicating. He shuts most people out and shows a
schizoid disposition. . This patient shows blunting of affect. He has
severe ideas of reference and borderline paranoid delusions. At
present he is disabled for any type of gainful employment and is
just barely making it outside of an institution.
(Ex. 8, pp. A14-15, emphasis added).
11. Other records documented similar complaints by Mr. Clayton in the
following years, including vertigo; episodes where he would sit and stare so much
that his wife was not sure whether he were conscious; auditory and visual
hallucinations; an irritable disposition; confusion and excitement with any outside
stimulus; physical aggressiveness; inability to sustain work activity; problems with
his memory; inability to sleep; nervousness; and great difficulty with impulse
control. (Exs. 10, 11, 12, 13, pp. A17-24).
12. Due to the removal of a large portion of his right frontal lobe, Dr.
Klinkerfuss found that Mr. Claytons basic neurologic problem is stable and
would not be expected to improve. (Ex. 9, p. A16, emphasis added).
13. Dr. Douglas Stevens, who examined Mr. Clayton in connection

with the governments determination that Mr. Clayton was disabled, wrote
in October 1983:
The Wechsler Memory Scale was given and he attained a memory
quotient of 62, placing him in the mentally retarded category. Mental
control was totally absent and he was very weak on visual memory,
memory for verbal passages and digit span. The Wechsler Adult
Intelligence Scale was then given and he attained a verbal IQ of 75,
a performance IQ of 76 and a full-scale IQ of 76. The pattern of
tests suggested a traumatic head injury.
..
[Mr. Clayton] has sustained a head injury that has resulted in brain
damage. This has not only impaired sensory, motor and cognitive
functions, but also has resulted in a psychotic component, best
described as a schizophrenic disorder, paranoid type. His most
8

(Ex. 12, pp. A21-22, emphasis added).
14. In 1984, Dr. James E. Bright found that Mr. Clayton presents the
picture of an organic personality disorder following a head injury in 1972. It is my
opinion that he is totally disabled. He will not be able to work doing anything. He
will not be able to work doing any low stress jobs. He cannot work. He cannot
work. (Ex. 14, p. A25, emphasis added).
15. That same year of 1984, an Administrative Law Judge for the
Department of Health and Human Services found that Mr. Claytons impairment
continues to be disabling; and the medical evidence demonstrates that Mr.
Claytons condition has not improved. (Ex. 15, p. A28).
16. Mr. Claytons school records indicate that his IQ was in the average
range at 88 in April 1955, when Mr. Clayton was 15 years old. (Ex. 27, pp. A8790). The sawmill accident occurred in January 1972, and in October 1983, Dr.
Douglas Stevens reported that Mr. Claytons full-scale IQ score was 76, which is
in the intellectual disability range. (Ex. 12, pp. A19-22). Mr. Claytons most recent
IQ test, taken in 2004, indicated a full-scale IQ score of 71, again placing him in
the intellectual disability range. (Ex. 20, p. A56).
17. During the federal habeas corpus proceedings, Dr. Lea Ann Preston, a
clinical psychologist, was appointed by the federal court to examine Mr. Clayton.
She and her team evaluated him from May 6, 2004 through January 6, 2005. Dr.
Preston detailed Mr. Claytons numerous deficits, and found that he was NOT
competent to proceed in the habeas corpus proceedings. (Ex. 20, pp. A37-68). Dr.
Preston explained: Mr. Claytons tangential speech, impaired judgment, and
impaired reasoning abilities, will negatively affect his ability to communicate
regarding his habeas proceedings. Consequently, it is my opinion he is likely not
competent to proceed. (Ex. 20, p. A68). In determining that Mr. Clayton was not
competent to proceed, Dr. Preston noted that Mr. Clayton had many cognitive
deficits:
[H]is performance on the MacCAT-CA and his presentation during
clinical interviews illustrated that his tangential speech, poor thought
inhibition, and poor reasoning skills will negatively impact his
ability to relay information to his defense counsel in a coherent and
meaningful manner. As described above, Mr. Clayton demonstrated
extreme difficulty remaining focused during clinical interviews as
well as during the administration of structured assessment
instruments. His responses to queries were often irrelevant and
tangential. When re-directed, he would attempt to respond relevantly
10
but generally would lose focus and begin discussing irrelevant topics
again.
(Ex. 20, p. A66).
18. Dr. Preston observed:
Mr. Clayton appeared to be easily distracted, and his attention and
concentration appeared to waiver. His thought process seemed
disorganized as he would offer tangential explanations to interview
questions and interject irrelevant information. He does not appear to
be acutely psychotic. However, he stated that he sees specks on the
walls that look like theyre moving, and visions that look like a
being. The visions reportedly disappear when he approaches them.
Mr. Clayton also reportedly has heard voices since his saw mill
accident. He stated, Sometimes its a good voice and calms me
down, but at other times he hears Satans voice. He said that
Satans voice tells him, They will kill you, referring to the death
penalty.
(Ex. 20, p. A52).
19. As to Mr. Claytons emotional functioning, Dr. Preston wrote, His
profile is indicative of someone who appears to experience hallucinations and
extreme suspicion. (Ex. 20, p. A59).
20. After federal habeas corpus proceedings in Mr. Claytons case were
completed, the Missouri State Public Defender System designated undersigned
11
counsel Jeannie Willibey and Pete Carter to investigate Mr. Claytons competency
to be executed. In September 2008, Ms. Willibey and Mr. Carter retained Dr.
William Logan, M.D., and Dr. Daniel Foster, Ph.D. to evaluate Mr. Clayton for
purposes of determining whether he was competent to be executed. Dr. Logan and
Dr. Foster issued findings that Mr. Clayton was not competent to be executed.
(Exs. 1, 2, pp. A1-4, A5-6).
21. In a report after he examined Mr. Clayton in 2008, Dr. Logan found
that:
execution;
12
Christopher Castetter. (Ex. 1, pp. A1-2).
22. Dr. Logan concluded that Mr. Claytons delusions, which result from a
Logan found:
He cannot describe any issues on which his appeal is based or any
way other than through the miraculous intervention from God that
his execution will be averted. Instead he plans to walk out of prison,
sue those who have unjustly confined him and live comfortably on
the proceeds of future compensation for his erroneous confinement.
He believes his mission is to sing gospel music and that he has been
"anointed" by God to touch others hearts. . . .While Mr. Clayton
knows the State plans to execute him for killing Deputy Castetter, he
believes his legal situation is instead a test of his faith and that God
will not allow the punishment to occur as God has chosen him for
another mission. Hence, he has no concept of a need for clemency,
or capacity to understand matters in extenuation, arguments for
executive clemency or rational reasons why the sentence should not
be carried out.
(Ex. 1, pp. A2-3).
13
23. Dr. Foster also examined Mr. Clayton in 2008. Dr. Foster concluded
that Mr. Claytons impairment is sufficiently profound as to render him
incompetent to be executed. (Ex. 2, p. A6). Specifically, Dr. Foster found:
extenuationconcepts beyond him perceptually, not intellectually. (Ex. 2, pp. A56).
24. Mr. Clayton presented these findings to the Missouri Department of
Corrections, along with supporting records, and asked that the procedure for
determining competence in Mo. Rev. Stat. 552.060 be implemented. When that
14
did not happen, Mr. Clayton presented these findings and the supporting records to
this Court. State ex rel. Clayton v. Lombardi, No. SC90175. That petition detailed
the attempts counsel had made to provide the Department of Corrections with the
necessary information to begin proceedings under Mo. Rev. Stat. 552.060. See
Exs. 21-22. This Court denied the petition for writ of mandamus on September 9,
2009, saying that it was premature.
25. On May 17, 2012, the State filed a Motion to Set an Execution Date in
Mr. Claytons direct appeal case. State v. Clayton, SC80545. On May 22, 2012,
counsel filed Suggestions in Opposition to Motion to Set Execution Date, Pending
a Determination of Mr. Claytons Competency to be Executed. This pleading
included the reports and information previously supplied to this Court in
connection with the 2009 mandamus proceedings.
26. On August 28, 2013, after re-examining Mr. Clayton and reviewing
additional records, Dr. William Logan found that Mr. Claytons mental status had
not changed and that Mr. Clayton was not competent to be executed. (Ex. 23, pp.
A75-78). Dr. Logan found:
When examined on September 14, 2012 Mr. Claytons thoughts
were tangential. He still believed God would intervene and he would
one day be a gospel singer and evangelist. He continues to believe he
was unjustly convicted and will never be executed. He does
know that his attorneys are working to get him off the capital
punishment unit and then have a new trial. Past this point, he has no
15
understanding of the issues in his proceeding. He does not

understand the reason for his proposed execution. He still believes
God will do well for me. (Ex. 23, pp. A75, 77).
27. Dr. Logan concluded that Mr. Claytons head trauma, documented on
MRI scans, will never change. Likewise his delusional ideas are fixed and
unchangeable. There is no reason to change my previous 2008 opinion that Mr.
Clayton remains not competent to be executed as he does not understand or
comprehend the reason and purpose of his pending execution. (Ex. 23, p. A77).
28. On November 24, 2013, after re-examining Mr. Clayton and reviewing
additional records, Dr. Foster found that Mr. Claytons mental status had not
changed and that Mr. Clayton was not competent to be executed. (Ex. 24, pp. A7982). Dr. Foster found:
Mr. Claytons legal competency is clearly compromised. His
dementia has worsened secondary to aging and to his long term
cardiovascular disease. His insight and judgment are further
impaired (since the 2008 Report) and he is not considered to meet
the requirements of competency for the purposes of the final
appellate proceedings. (Ex. 24, pp. A79-82).
29. Dr. Foster concluded: I do not believe he can meet the minimal legal
standards of competence required for execution and addressed in Panetti v.
Quarterman and Ford v. Wainwright. (Ex. 24, p. A82).
16
30. On January 29, 2014, this Court ordered Mr. Clayton to show cause
why an execution date should not be set.
31. On February 3, 2014, undersigned counsel Jeannie Willibey wrote to
Mr. George Lombardi, Director of the Missouri Department of Corrections and
forwarded a copy of all the aforementioned records, including Dr. Logans and Dr.
Fosters most recent reports. (Ex. 25, pp. A83-85). Counsel requested that Mr.
Lombardi review Mr. Claytons records and invoke the provisions of Mo. Rev.
Stat. 552.060. (Ex. 25, p. A84). Counsel also asked Mr. Lombardi to let her know
by February 10, 2014, whether he would invoke the provisions of Mo. Rev. Stat.
552.060. (Ex. 25, p. A84).
32. On February 10, 2014, having received no response from the Director,
counsel filed a Petition for Writ of Mandamus to Compel the Director of the
Missouri Department of Corrections to Invoke the Provisions of Section 552.060
and Motion Not to Set an Execution Date. State ex rel. Clayton v. Lombardi,
SC93976.
33. On February 11, 2014, Ms. Willibey and Mr. Carter filed a Response to
Order to Show Cause Why an Execution Date Should Not be Set, also asserting
that Mr. Clayton was not competent to be executed. State v. Clayton, SC80545,
and presenting the same evidence provided to Mr. Lombardi.
34. On March 12, 2014, the Office of the Attorney General filed
Suggestions in Opposition to Petition for Writ of Mandamus in SC93976 and
Response to Court Order in SC80545. In both cases, the Office of the Attorney
17
General attached a letter dated March 12, 2014, from the Director of the
Department of Corrections to Mr. Keith Schafer, Director of the Department of
Mental Health, stating:
Issues have been raised regarding the mental capacity of Offender
Cecil Clayton #990141. I am requesting your Departments
assistance in fulfilling my responsibilities under section 552.060
RSMo, in determining whether there is reasonable cause to believe
offender Clayton, who has been sentenced to be executed, has a
mental disease or defect such that he lacks the capacity to understand
the nature and purpose of the punishment he is under sentence to
receive.
(Ex. 26, p. A86).
35. On March 25, 2014, this Court denied Mr. Claytons Petition for Writ
of Mandamus filed in SC93976 without opinion.
36. On December 17, 2014, the Attorney Generals Office filed with this
Court a Supplemental Response to Court Order, stating that the Director has
not found reasonable cause to believe that Clayton lacks capacity under sections
552.060.1 and .2, RSMo 2000, and requesting that this Court set an execution
date.
37. The response did not indicate what, if any, evidence the director
considered before declining to find reasonable cause.
38. Dr. Logan re-examined Mr. Clayton on January, 3 2015, and reported:
18
Mr. Claytons mental state has changed little from my earlier

evaluations in 2008 and 2013. His view of his conviction is that he is
a victim of a conspiracy. His mood varies from anxiety to paranoia.
He still engages in delusional denial that his execution will take
place, relying on divine intervention in some form so he can pursue a
gospel ministry as a preacher and sing with the best pianist in
Missouri with whom he will tour the nation.
...
Mr. Clayton due to his delusional denial, lacks the capacity to
clemency or any reasons his attorneys might present as to why his
(Ex. 28, pp. A91-94).
39. Dr. Foster re-examined Mr. Clayton on January 2, 2015, and reported, :
[Mr. Clayton] remains, as he has been since I first met him, unable
to fully participate, cooperate or comprehend his legal status, process
and final, pending deliberations. While he can superficially seem
intact, extended contact or observation exposes his multiple deficits,
which continue their slow deterioration, despite the structured,
secure setting in which he has resided over the past two decades. He
is not simply incompetent legally, he would be unable to care for
himself or manage basic self care, were he not in a structured
19
environment that takes care of him. He can shower, groom, eat,

walk, it is his comprehension, judgment, memory, limited
intelligence and social deficits that plague him.
I do not find him competent to appreciate the purpose of his pending
execution as addressed in Panetti v. Quarterman and Ford v.
Wainwright, should it not be stayed by the State of Missouri or the
Federal Court. He can replicate elements of the fact that an
execution follows a conviction for first degree murder, though still
does not comprehend, appreciate nor understand its approaching date
for him.
(Ex. 29, pp. A95-97).
40. Other evidence also supports a finding that Mr. Clayton is presently
incompetent.
41. John R. Johnston, Register No. 149633, was Cecil Claytons cellmate
from August 2014 through February 2015. He reports that Mr. Clayton could not
operate the kiosk to order canteen items and also needed assistance to use the
telephone. Mr. Johnston showed Mr. Clayton several times how to use the kiosk
but Mr. Clayton was unable to order anything from the kiosk on his own. Mr.
Clayton tried but could not follow directions. Mr. Johnston could tell that
something was not right with Mr. Clayton. Mr. Clayton would repeat the same
stories over and over again. He was very impulsive and would change subjects
frequently when he spoke. He would forget they were watching a movie and
20
would change the television channel. Mr. Clayton was socially withdrawn and was
often sluggish and drowsy. Mr. Clayton honestly believed that he did not kill the
deputy and that God would save him. When they talked about other inmates who
had been executed, Mr. Clayton would tell Mr. Johnston that God would free him.
Mr. Clayton would sit and think daily about how God would get him out of prison.
Mr. Clayton told Mr. Johnston that he planned to come back to the prison and
minister and sing to the inmates.
42. Brandon Swallow, Register No. 1140694, was Cecil Claytons cellmate
from January through March 2014. He observed that Mr. Claytons memory was
shot. He did not remember what he had said five minutes ago and would repeat
himself. Mr. Clayton needed a lot of help and was unable to follow instructions to
order canteen items using the kiosk and to use the telephone. Mr. Clayton needed
to remember to enter his DOC number, hit okay, then enter a four-digit PIN
number, but he could not follow the prompts and complete these steps. Mr.
Clayton was also unable to use the telephone and would seek help from other
inmates every time he used the phone. Mr. Clayton would not eat very much and
mostly ate Honey Buns that he got from canteen. He slept a lot and was socially
withdrawn. He did not want to work at a job or be assigned tasks because he was
afraid he would forget what he was supposed to do and did not want to mess it
up. Mr. Clayton talked a lot about God and read his Bible a lot. He believed that
he would be released from prison. Mr. Swallow believed that Cecil suffered from
dementia and it would be wrong to execute him. His behavior reminded Mr.
21
Swallow of the behavior of Mr. Swallows grandmother, who had Alzheimers

disease.
43. In a recorded telephone conversation with his sister in February 2015,
Mr. Clayton told his sister that he was going to be asked why the governor should
not execute him, and said that he did not know what to say. He believed that the
members of this Court are under the old law and that they would be angry if he
said they did not understand grace.
44. On March 5, 2015, Mr. Clayton refused a visit from his attorney.
45. J.D. Johnson is Cecil Claytons older brother. While in prison, Mr.
Clayton has told J.D. repeatedly that God will deliver him from prison and he will
preach the gospel.
46. Marvin Clayton is Mr. Claytons younger brother. Cecil Clayton has
also told Marvin Clayton that he will not be executed and that God will free him
from prison.2
In addition to speaking with Mr. Claytons fellow inmates and family,
investigators have attempted to interview prison staff to determine how Mr.

Clayton interacts with them and with other inmates. Those efforts have been
unavailing; no staff member has voluntarily agreed to speak with representatives
of Mr. Clayton. At a hearing in this matter, counsel for Mr. Clayton expect to
subpoena staff members whose testimony would corroborate prison records.
22
Mr. Clayton has a right to a hearing to determine his competency and mental
fitness to be executed, under Mo. Rev. Stat. 552.060 and the United States
Constitution.
47. Under Mo. Rev. Stat. 552.060, Mr. Clayton may not be executed
because he lacks capacity to understand the nature and purpose of the punishment
about to be imposed upon him or matters in extenuation, arguments for executive
clemency or reasons why the sentence should not be carried out. This definition
creates a liberty interest for Mr. Clayton in not being executed unless he meets this
standard. See Ford v. Wainwright, 477 U.S. 339, 428-429 (1986) (OConnor, J.,
concurring.)
Our cases leave no doubt that where a statute indicates with
language of an unmistakable mandatory character, that state
conduct injurious to an individual will not occur absent specified
substantive predicates, the statute creates an expectation protected
by the Due Process Clause. Hewitt v. Helms, 459 U.S. [460,] 471472 [(1980]. See also Vitek v. Jones, 445 U.S. 480, 488-491 (1980);
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10 (1979)
(entitlement created where under state law there is [a] set of facts
which, if shown, mandate a decision favorable to the individual).
That test is easily met here. Nor is it relevant that the statute creating
the interest also specifies the procedures to be followed when the
State seeks to deprive the individual of that interest. As we
23
reaffirmed last Term, [t]he categories of substance and procedure

are distinct. Cleveland Board of Education v. Loudermill, 470 U.S.
532, 541 (1985).
48. Mo. Rev. Stat. 552.060 requires the Director of the Department of
Corrections to take the following actions, if he has reasonable cause to believe that
any inmate, who has been sentenced to death, has a mental disease or defect
a. immediately notify the governor who shall forthwith order a stay of
execution of the sentence; notify the director of the department of mental health
and the prosecuting or circuit attorney of the county where the defendant was
tried;
b. notify the attorney general and the circuit court of the county where the
correctional facility is located. Mo. Rev. Stat. 552.060.
49. Mr. Clayton has repeatedly provided the Director of the Missouri
Department of Corrections with experts opinions and supporting documents
showing that Mr. Clayton is not competent to be executed. (Exs. 1, 2-16, 23, 24,
pp. A1-4, 5-29, 75-78, 79-82).
50. There has been no evidence presented to this Court of any experts
opinion that Mr. Clayton is competent to be executed.
51. In light of the evidence that Mr. Clayton is not competent to be
executed, he is entitled to a hearing under the provisions of Mr. Rev. Stat.
24
552.060.6, which provides for an inquiry by a court upon a showing of

reasonable cause to believe that a prisoner is incompetent to be executed.
52. While Mo. Rev. Stat. 552.060 does not provide details about how the
court is to conduct its inquiry into Mr. Claytons competency, the Eighth and
Fourteenth Amendments to the United States Constitution specify minimum
requirements. In Ford v. Wainwright, 477 U.S. 339, 410 (1986), the Supreme
Court held that a prisoner who has made a substantial threshold showing of
insanity must have a fair hearing and an opportunity to be heard by a neutral factfinder. Ford, 477 U.S. at 424.3 To satisfy due process concerns, the prisoner must
be allowed to explain the inadequacies of the states examination and offer
contrary medical evidence. Id. The basic requirements of due process include an
opportunity to submit evidence and argument from the prisoners counsel,
including expert psychiatric evidence that may differ from the States own
psychiatric examination. Id. at 427. Without this protection, the fact finder cannot
be expected to reach a reliable decision as to the prisoners competency. Id.
53. Ford further held that the decision whether a prisoner is incompetent to
be executed cannot rest with the Executive Branch. Mo. Rev. Stat. 552.060, like
In considering what process is due a prisoner, Justice Powells concurrence in
Ford is the controlling opinion, as it offered a more limited holding than the
plurality opinion authored by Justice Marshall. Panetti v. Quarterman, 551 U.S.
930, 949 (2007).
25
the statute held unconstitutional in Ford, provides that the ultimate decision as to
the prisoners competency is to be made by a member of the Executive Branch.
The Director of the Missouri Department of Corrections is appointed by the
Governor of the State of Missouri and is a member of the Executive Branch. In
fact, under Missouri law, he is responsible for carrying out the execution. Section
546.720.2, RSMo.
54. Mr. Clayton has met the requisite preliminary showing that his current
mental state would bar his execution. As noted earlier, Dr. Foster concluded that
Mr. Clayton remains, as he has been since I first met him, unable to fully
participate, cooperate or comprehend his legal status, process and final, pending
deliberations. I do not find him competent to appreciate the purpose of his pending
execution as addressed in Panetti v. Quarterman and Ford v. Wainwright. Dr.
Logan concurred: Mr. Clayton due to his delusional denial, lacks the capacity to
understand matters in extenuation, arguments for executive clemency or any
reasons his attorneys might present as to why his sentence should not be carried
out.
55. Mr. Claytons case is similar to the facts underlying the Ford and
Panetti cases, in that Mr. Claytons mental defects and delusions prevent him from
rationally understanding his sentence.
56. Counsel for Mr. Ford presented evidence that an expert, Dr. Kaufman,
concluded that Mr. Ford had no understanding of why he was being executed,
made no connection between the homicide of which he had been convicted and the
26
death penalty, and believed that he would not be executed because he owned the
prisons and could control the Governor through his mind waves. Ford, 477 U.S. at
403.
57. Like Mr. Ford, Mr. Clayton has suffered a deterioration of his mental
faculties since his incarceration under sentence of death. His continued
deterioration has led to deeply-held delusions, including that his conviction was
the result of a conspiracy and someone else killed Deputy Castetter and that God
will intervene and save him because God wants him to be released to preach the
gospel. (Exs. 1, 2, 23, 24, 28, 29, pp. A2, 6, 75-78, 79-82, 91-97). Mr. Clayton
perceives his legal situation as a test of his faith in God. He has no real
understanding that he has been sentenced to death because the State wants to
punish him for the death of Deputy Castetter. He perceives his sad life as imposed
on him by God, who is testing him and making him suffer before setting him free
to preach the gospel.
58. In Panetti v. Quarterman, 551 U.S. 930 (2007), the Court held that the
record showed that Mr. Panetti suffered from delusions. Id. at 956. The legal
inquiry was whether those delusions rendered him incompetent to be executed.
The Fifth Circuit Court of Appeals held they did not because Mr. Panetti knew he
had a death sentence and knew the offense of which he had been convicted. The
United States Supreme Court concluded that the Fifth Circuits analysis was too
restrictive, rested on a flawed interpretation of Ford, and did not afford Mr. Panetti
27
the protections guaranteed by the Eighth Amendment. Id. at 957-958. The Court
explained:
system as irrelevant if the prisoner knows that the State has
identified his crimes as the reason for his execution. . . .Yet the Ford
opinions nowhere indicate that delusions are irrelevant to
the opposite.
Id. at 958. The Court held that [a] prisoners awareness of the States rationale for
an execution is not the same as a rational understanding of it. Ford v. Wainwright
does not foreclose inquiry into the latter. Id. at 959.
59. Under Panetti, it is not enough for a condemned prisoner to be able to
identify the stated reason for his execution. To be competent, he must have a
rational understanding of the real interests the state seeks to vindicate. Id. at 959.
The Court observed that executing an insane person serves no retributive purpose:
[I]t might be said that capital punishment is imposed because it has
the potential to make the offender recognize at last the gravity of his
crime and to allow the community as a whole, including the
28

whole.
Id. at 958-959.
60. Mr. Claytons mental health issues (the removal of part of his frontal
lobe, dementia, and delusional disorder) prevent him from having a rational
understanding of the meaning and purpose of his punishment. His delusions have
so impaired his concept of reality that he is not able to rationally understand his
sentence. (Exs. 1, 2, 23, 24, 28, 29, pp. A1-6, 75-78, 79-82, 91-97). His perception
of reality is so distorted by mental illness that his awareness of the crime and
punishment has little or no relation to the understanding of those concepts shared
by the community as a whole. He has no rational understanding of the real
interests the State seeks to vindicate. (Exs. 1, 2, 16, 23, 24, 28, 29, pp. A1-4, 5-6,
29, 75-78, 79-82, 91-97). Pursuant to Ford and Panetti, Mr. Clayton is entitled to a
hearing on this issue, and, upon hearing, to a finding that he is incompetent to be
executed.
61. Dr. Logan and Dr. Foster concluded, after evaluating Mr. Clayton in
2015, that he was not competent to be executed. (Exs. 28, 29, pp. A91-97).
29
Whether or not Mr. Clayton has previously been competent to be executed (which
he does not concede) is irrelevant. Panetti v. Quarterman, 551 U.S. at 934.
62. This Court recently considered whether an inmate had made a sufficient
threshold showing of incompetence in State ex rel. Middleton v. Russell, 435
S.W.3d 83 (Mo. banc 2014). This Court held that Middleton did not make a
sufficient threshold showing of incompetence, under Ford and Panetti, and so was
not entitled to a hearing on his claim that he was incompetent to be executed. Id. at
86. According to this Courts opinion, Mr. Middleton initially filed a motion with
this Court suggesting that he may assert an incompetency claim in the future. Id.
at 83. In a motion filed the next week, Mr. Middleton asserted the same
information except that the forensic psychiatrist, Dr. Logan, who had not been
able to form an opinion previously, opined that Mr. Middleton was not competent
due to a diagnosis of delusional disorder. Id. at 84. The diagnosis of delusional
disorder was based in part on Mr. Middletons belief that his conviction was the
result of a conspiracy and that he would ultimately not be executed but cleared on
the charges and returned to the community. Id. This Court held that Middletons
beliefs were not unreasonable or delusional in a way that rendered him
incompetent to be executed:
[Dr. Logans] analysis does not account for the fact that Middletons
lawyers have raised a series of claims asserting that Middletons trial
and appellate counsel were ineffective and that he is an innocent
victim of over-zealous prosecutors and illicit secret deals between
30
law enforcement officers and prosecution witnesses. That Middleton

is now persuaded as to the legitimacy of these claims . . . does not
make Middleton delusional in the way that renders him incompetent
to be executed under the Eighth Amendment.
Dr. Logans other basis for his opinion is that Middleton
shows little to no emotional reaction to his impending execution
date but instead believes he will not die while incarcerated but will
be cleared on the charges and returned to the community. Even
though Middletons optimism may be misplaced, even illogical, it
hardly constitutes proof that he is delusional under Panetti and Ford
in light of the fact that Middleton has faced three or more execution
dates since his conviction nearly 20 years ago and has received a
stay each time. Moreover, it does not constitute the sort of delusion
that Panetti and Ford declare renders an inmate incompetent to be
executed under the Eighth Amendment.
Id. at 84-85.
63. Mr. Claytons mental health diagnoses have existed for more than forty
years. He has established diagnoses of brain damage and dementia, which are
listed in numerous medical and psychological records and also included in some
records of the Missouri Department of Corrections. (Exs. 1, 2, 20, 23, 24, pp. A1,
5-6, 63-65, 75-76, 79-82). He has been diagnosed with: delusional disorder;
cognitive disorder; chronic brain disorder; organic personality disorder; major
31
depressive disorder; alcohol dependence; and psychotic disorder, with

hallucinations due to traumatic brain injury. (Exs. 1, 12, 13, 14, 15, 20, pp. 2, 22,
24, 25, 27-28, 65-66).
64. Mr. Claytons present delusions concerning his execution are not based
on any assertions or legal claims by his attorneys, or on previous stays of
execution. In fact, Mr. Clayton is unable to grasp abstract concepts and is unable
to describe any issues on which his appeals have been based. (Exs. 1, 20, 23, 23,
24, 28, 29, pp. A1-2, 59, 75, 81, 91-97). Rather, Mr. Claytons religious-based
delusions have led to a rigidly-held belief that God will intervene to save him from
execution and that Gods ultimate mission for him is to preach the gospel. (Ex. 1,
2, 23, 24, 28, 29, pp. A2, 6, 76-77, 80, 91-97). And they prevent him from
understanding matters in extenuation, arguments for executive clemency or
rational reasons why the sentence should not be carried out. Mo. Rev. Stat.
552.060.1.
In the alternative, this Court should declare that Mo. Rev. Stat. 552.060 is
unconstitutional under Ford v. Wainwright and Panetti v. Quarterman.
65. In Ford v. Wainwright, 477 U.S. 399 (1986), the United States Supreme
Court noted that Mr. Fords counsel invoked the procedures of Florida law
governing the determination of competency of a condemned inmate. Id. Following
the procedures of the statute, the Governor appointed a panel of three psychiatrists
to evaluate whether Ford had the mental capacity to understand the nature of the
32
death penalty and the reasons why it was imposed on him. Id. at 403. Although the
three doctors found different mental diagnoses, each found that Mr. Ford had the
ability to understand the death penalty and why it was imposed on him. Id. at 404.
66. The Governors decision about Mr. Fords competence was announced,
when, without explanation, he signed a death warrant for Fords execution. Id. Mr.
Fords attorneys unsuccessfully sought a hearing in state court, then filed a federal
habeas petition on this issue in federal district court, which was denied without a
hearing. Id. In determining that the District Court was required to hold an
evidentiary hearing on Fords competency claim, the United States Supreme Court
determined that Floridas state court procedures were not adequate to afford a fair
and full hearing. Id. at 411. In capital proceedings, this Court has demanded that
factfinding procedures aspire to a heightened standard of reliability. Id., citing
Spaziano v. Florida, 468 U.S. 447, 456 (1984). The Court wrote:
Although the condemned prisoner does not enjoy the same
presumptions accorded a defendant who has yet to be convicted or
sentenced, he has not lost the protection of the Constitution
altogether; if the Constitution renders the fact or timing of his
execution contingent upon establishment of a further fact, then that
fact must be determined with the high regard for truth that befits a
decision affecting the life or death of a human being. Thus, the
ascertainment of a prisoners sanity as a predicate to lawful
33
execution calls for no less stringent standards than those

demanded in any other aspect of a capital proceeding.
Id. at 411-412 (emphasis added).
67. The United States Supreme Court held that although Mr. Ford received
the statutory process afforded him under Floridas statute, the procedure was
inadequate because it placed the decision entirely within the executive branch, and
did not provide the prisoner with the opportunity to impeach or refute any
evidence offered by the state as to his competence. The same infirmities are
present in the procedure provided Mo. Rev. Stat. 552.060.
68. First, like the Florida statute, that statute places the ultimate decision
about competence in the executive branch, either the governor or the director of
the department of corrections.
69. Second, there is no provision in the statute for Mr. Clayton to impeach
or controvert any evidence used by the director or governor to draw their
conclusions. Counsel for Mr. Clayton are aware that a psychiatrist appointed by
the Missouri Department of Mental Health, Dr. James Reynolds, examined Mr.
Clayton in June 2014, and opined that there is no reasonable cause to believe he is
incompetent. While the attorneys for the state recently presented Dr. Reynolds
report in federal court, they have carefully refrained from presenting it to this
Court. Thus, if indeed the director relied on this report in declining to find
reasonable cause under Mo. Rev. Stat. 552.060, Mr. Clayton has had no
opportunity to refute or impeach its conclusions.
34
70. At a hearing on this matter, Mr. Clayton would present substantial

evidence controverting this report, including evidence from his counsel who
witnessed the evaluation as well as professional opinions concerning the
conclusions drawn. Dr. Reynolds, who has not seen Mr. Clayton for almost eight
months, qualified his report by saying, The bottom line, however, is that my
opinion below is offered at the present time to the best of my clinical ability, but
the future mental status of an individual who is 74 years of age, who suffers from
a traumatic brain injury, and who is chronically challenged with a number of
medical problems cannot be predicted with certainty. Moreover, the report does
not address the criteria of Panetti v. Quarterman and Mo. Rev. Stat. 552.060.
Because the state has not relied on this report, Mr. Clayton will not present a
detailed critique here.
71. While Mr. Clayton has presented his own evidence of incompetence to
the Director of the Missouri of Department of Corrections, the statute does not
require him to consider it, and he has refused to inform Mr. Claytons counsel
whether he has done so. The Director never responded to Mr. Claytons counsels
written requests that he invoke Mo. Rev. Stat. 552.060.
72. Dissenting from the denial of relief in State ex rel. Middleton v. Russell,
Judge Draper, joined by two other judges, stated that Mo. Rev. Stat. 552.060
does not comport with the minimum due process dictates of Ford and Panetti.
435 S.W.3d at 89; U.S. Const. Amends. V, XIV; Mo. Const. Art. I, Sec. 10.
73. Under Panetti v. Quarterman, 551. U.S. 930, 949 (2007):
35
Once a prisoner seeking a stay of execution has made a substantial

threshold showing of insanity, the protection afforded by
procedural due process includes a fair hearing in accord with
fundamental fairness. Ford, 477 U.S. at 426, 424. . . This protection
means a prisoner must be accorded an opportunity to be heard, id.,
at 424, though a constitutionally accepted procedure may be far less
formal than a trial, id., at 427.
As an example of why the state procedures on review in Ford
were deficient, Justice Powell explained, the determination of sanity
appear[ed] to have been made solely on the basis of the
examinations performed by state-appointed psychiatrists. Id., at
424. Such a procedure invites arbitrariness and error by preventing
the affected parties from offering contrary medical evidence or from
even explaining the inadequacies of the States examinations. Ibid.
74. Mr. Clayton, after making the threshold showing that he was
incompetent to be executed, has been deprived of any opportunity to be heard. It is
not known whether the Director even considered or reviewed the findings of
incompetence made by a psychologist and psychiatrist retained by Mr. Claytons
counsel and other documentation provided by Mr. Claytons counsel, including
scans depicting the missing portion of Mr. Claytons right frontal lobe due to the
sawmill accident.
36
75. For the reasons set forth above, this Court should declare that the
procedures for determining competence to be executed provided in Mo. Rev. Stat.
552.060 are unconstitutional.
Mr. Claytons cognitive impairments, including brain damage and dementia,

render him ineligible for execution.
76. Mr. Clayton is missing one fifth of the frontal lobe of his brain, the part
of his brain responsible for impulse control, decision-making, and weighing and
deliberating. He also suffers from dementia, affecting his memory, ability to focus,
and judgment. Together, these cognitive limitations make Mr. Clayton ineligible
for execution under state and federal law. See U.S. Const. Amend. VIII; Mo. Rev.
Stat. 565.060.
77. Mr. Claytons limitations are materially indistinguishable from persons
with intellectual disability, persons the United States Supreme Court has held
make a person categorically ineligible for the death penalty. See Atkins v. Virginia,
536 U.S. 304, 319 (2002). According to the high court, a person is categorically
ineligible for the death penalty if the person has impaired intellectual functioning,
deficits in adaptive behavior, and an age of onset of those symptoms prior to the
age of eighteen. Id.
78. The only reason Mr. Clayton faces execution is that his impairments are
the product of age and an accident, instead of from an organic defect that emerged
during the developmental period. These distinctions are without a difference for
37
gauging rehabilitation, deterrence, and retribution, the purposes the Unites States
Supreme Court has identified for the death penalty. See Kennedy v. Louisiana, 554
U.S. 407, 420 (2008); see also Gregg v. Georgia, 429 U.S. 123, 183 (1976) (joint
opinion of Stewart, Powel, and Stevens, JJ) (identifying deterrence and retribution
as goals of the death penalty).
79. To determine whether the Eighth Amendment forbids a punishment,
courts assess the evolving standards of decency that mark the progress of a
maturing society. Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion); see
Hall v. Florida, 134 S.Ct. 1986, 1992 (2014) (The Eighth Amendments
protection of dignity reflects the Nation we have been, the Nation we are, and the
Nation we aspire to be.); Wilkerson v. Utah, 99 U.S. 130, 136 (1879). Evolving
standards can be identified via objective indicia, Roper v. Simmons, 543 U.S.
551, 572 (2005), and by the standards elaborated by controlling precedents and
by the Courts own understanding of the Eighth Amendments text, history,
meaning, and purpose. Kennedy, 554 U.S. at 421; see also Graham v. Florida,
130 S.Ct. 2011, 2021 (2011).
80. Moreover, the concept of proportionality is central to the Eighth
Amendment. Graham, 130 S.Ct. at 2021 (2011); see Miller v. Alabama, 132 S.Ct.
2455, 2463 (2012) (the Eighth Amendment prohibits the criminal justice systems
harshest punishment where there are mismatches between the culpability of a
class of offenders and the severity of [the] penalty.). Our evolved standards of
decency limit the death penalty to those offenders who commit a narrow
38
category of the most serious crimes and whose extreme culpability makes them
the most deserving of execution. Kennedy, 554 U.S. at 420 (quoting Roper, 543
U.S. at 568 (quoting Atkins, 536 U.S. at 319). An offender must truly be the worst
of the worst, Kennedy, 128 S.Ct. at 2650, to be eligible for execution; and to be the
worst, a defendant must be the most culpable of offenders. Atkins, 536 U.S. at
319 (the lesser culpability of the mentally retarded); Roper, 543 U.S. at 571
(the diminished culpability of juveniles).
81. When a defendants cognitive functioning is seriously compromised,
that defendant is not the worst of the worst. Persons with intellectual disability are
not the most culpable because they have disabilities in areas of reasoning,
judgment, and control of their impulses and do not act with the level of moral
culpability that characterizes the most serious adult criminal conduct. Atkins, 536
U.S. at 306-07. A person who has diminished capacities to understand and
process information, to communicate, to abstract from mistakes and learn from
experience, to control impulses and to understand the reactions of others, Atkins,
536 U.S. at 318, is not the most culpable.
82. Similarly, the Supreme Court held that the Eighth Amendments ban on
excessive and cruel and unusual punishments prohibits the execution of juveniles
because of their diminished culpability, their developing brains, and their
propensity for ill-considered actions and decisions. Roper, 543 U.S. at 568.
Retribution is not proportional if the laws most severe punishment is imposed on
one whose culpability or blameworthiness is diminished, to a substantial degree,
39
by reason of youth and immaturity. Id. at 570; see Baze v. Rees, 553 U.S. 35, 81
(2008) (Stevens, J. concurring) (quoting Kaufman-Osborn, Regulating Death:
Capital Punishment and the Late Liberal State, 111 Yale L.J. 681, 704 (2001)
83. Deterrence is meaningless for the cognitively impaired for reasons
identical to those underlying the bar on executing juveniles and the intellectually
disabled: the likelihood that the teenage offender has made the kind of costbenefit analysis that attaches any weight to the possibility of execution is so
remote as to be virtually nonexistent. Id. at 572 (citation omitted); see Atkins, 536
U.S. at 320 (it is the same cognitive and behavioral impairments that make these
defendants less morally culpablefor example, the diminished ability to
understand and process information, to learn from experience, to engage in logical
reasoning, or to control impulsesthat also make it less likely that they can
process the information of the possibility of execution as a penalty and, as a result,
control their conduct based upon that information.). These limits on punishment,
along with other limitations on punishing juveniles, are premised on incomplete
brain development. Graham, 130 S.Ct. at 2026 ([P]arts of the brain involved in
behavior control continue to mature through late adolescence.).
84. Mr. Clayton should not be executed because his cognitive impairments
are the product of age and a terrible sawmill accident. That is, the Atkins and
Roper categorical bans on executions ought to apply to the cognitively impaired
who exhibit symptoms of intellectual disability, regardless of the age of onset.
And without regard to whether there ought to be a per se ban on executing persons
40
with mental illnesses and/or brain dysfunction, the death penalty for Mr. Clayton
is disproportionate punishment under the Eighth Amendment.
85. Moreover, Mr. Clayton meets the other criteria for intellectual
disability: adaptive deficits and an IQ of around 70. See Hall, 134 S.Ct. at 2001.
65. In Atkins v. Virginia, the United States Supreme Court held that the Eighth
Amendments prohibition of excessive punishment. places a substantive restriction
on the States power to take the life of an intellectually disabled offender, because:
1) the social purposes for capital punishment of retribution and deterrence of
capital crimes are not served by the execution of the intellectually disabled; and 2)
the deficiencies of intellectually disabled offenders (including that they have a
diminished capacity to understand and process information, to communicate, to
abstract from mistakes and learn from experience, to engage in logical reasoning,
to control impulses, and to understand the reaction of others) diminish their
personal culpability. Atkins at 318-320. The Court left to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences. Id.
86. The prohibition of the execution of intellectually disabled offenders
applies to Mr. Clayton. While clinical definitions of mental retardation require
subaverage intellectual functioning and significant limitations in adaptive skills
that became manifest before the age of 18, id. at 2251, Mr. Clayton suffered from
the same permanent deficits as an intellectually disabled offender at the time of the
offense (in 1996) and continues to labor under those deficits. The only difference
41
is that Mr. Claytons subaverage intellectual functioning and his significant

limitations in adaptive skills became manifest after the removal of his right frontal
lobe in 1972, when Mr. Clayton was 32 years old. The sawmill accident, in effect,
rendered Mr. Clayton intellectually disabled and impulsive.
Clinical Guidelines for Determining Intellectual Disability
87. The American Association on Intellectual and Developmental
Disabilities (AAIDD), formerly the American Association on Mental
Retardation (AAMR), is the leading professional association concerned with the
diagnosis and treatment of intellectual disability. Governmental agencies and
courts use the AAIDD definitions to determine whether individuals have
intellectual disability. See, e.g., Atkins, 536 U.S. at 308, n.3. AAIDD uses the
following language in its definition: Intellectual disability is a disability
characterized by significant limitations both in intellectual functioning and in
adaptive behavior as expressed in conceptual, social, and practical adaptive skills.
The AAIDD criteria go on to explain the concepts of intellectual functioning
and adaptive behavior.
Intellectual Functioning.
88. Intelligence is a general mental ability. It includes reasoning, planning,
solving problems, thinking abstractly, comprehending complex ideas, learning
quickly, and learning from experience. DSM-5 319. The consensus among
mental health professionals is that a full-scale IQ of 70 to 75 or belowon a
standardized, individually administered IQ testsatisfies the requirement of
42
significant limitations in intellectual functioning. IQ scores are typically rendered

with three components: verbal IQ, performance IQ, and full-scale IQ.
89. The reason the upper range of mental retardation is generally set at an
IQ level of 70, is to capture in the diagnosis those individuals whose intellectual
functioning is two standard deviations below the mean, which is 100 (representing
average intelligence). An individual with an IQ score of 70 has intellectual
functioning lower than 98 percent of the population. Importantly, it is not 70 but
75 that is used as the dividing line by AAIDD and The American Psychological
Association (APA). This is necessary to account for what is called the standard
error of measurement, a principle which applies to all psychological testing.
DSM-5, p. 37.
90. While earlier versions of DSM were much more prescriptive
concerning IQ tests, DSM-5 requires only that an individual exhibit deficits in
intellectual functions, without prescribing a particular IQ requirement.
91. Additionally, older scores must be evaluated for Flynn Effect, the
generally accepted principle that collective IQ scores rise in a measurable fashion
over time. In the United States, on the Stanford-Binet and Wechsler tests, average
test scores rise 0.33 points per year. Since the intellectual functioning prong of
mental retardation is met by a test score that is two standard deviations below the
mean (70, where the mean is 100), in order to accurately calculate the relationship
of an individual clients test score to the mean, that score must be adjusted
downward 0.33 points for each year since the year the instrument was normed.
43
Likewise, where the test taker has taken prior IQ tests, clinicians must take
account of practice effect in order properly gauge the test takers score.
b. Adaptive Functioning
92. Adaptive behavior (or adaptive functioning) is the term used to
capture all the skills that are required for an individual to care for him or herself,
relate to others, and meet the demands of living in a community. An assessment of
adaptive behavior looks at the extent to which an individual can manage for
himself in all aspects of life, and includes everything from personal hygiene to
managing a budget, to maintaining friendships to exercising appropriate judgment
and more. As with IQ, there are norms for adaptive behavior, and a diagnosis of
mental retardation requires functioning that is substantially below those norms.
93. Adaptive behavior is the collection of conceptual, social, and practical
skills that have been learned by people in order to function in their everyday lives,
including communication, social participation, and independent living, and across
multiple environments, such as home, school, work, and recreation. The criterion
is met when at least one domain of adaptive functioning is sufficiently impaired
that ongoing support is needed. DSM-5 pp. 37-38.
Mr. Cecil Claytons Intellectual and Adaptive Functioning are
Significantly Impaired.
94. In 2005, Mr. Claytons intelligence testing at USMCFP revealed a fullscale IQ of 71, a score which renders him intellectually disabled. Testing further
revealed that Mr. Claytons reading level was that of a fourth grade child. Dr.
44
Denney believed, His current WAIS-III score of 71 likely reflects a decrease in

intellectual efficiency secondary to the traumatic brain injury. Ex. 20, p. A56.
95. With respect to Mr. Claytons executive functioning, which involves
planning, reasoning, concept formation, and judgment, the neuropsychologist
noted, Mr. Clayton's testing results indicate severe executive dysfunction.
Specifically, During a simpler test of concept formation, the Wisconsin Card
Sorting Test. he was unable to complete even one category correctly. Rather, he
perseverated on an incorrect response 125 times in a row, despite feedback that
his responses were incorrect. This score is considered severely impaired. (Ex.
20, pp. A58-59, emphasis added.)
96. On the Mac-CAT-CA, a test that measures understanding relevant to
competence to stand trial, the result:
was indicative of impaired reasoning abilities. Two types of items
comprise the Reasoning measure: recognizing relevance and
evaluating alternatives. Mr. Clayton's performance on these items
indicated that he was able to recognize relevant information.
However, he displayed significant difficulty in being able to reason
between two legal options. Mr. Clayton obtained a score of 3 out of
a possible 12 on items which assessed the concept of Appreciation.
This score is indicative of significant impairment. Although Mr.
Clayton did not express delusional ideation about his legal situation,
45
he typically provided rationales for his answers which were

irrational or failed to support his position.
(Ex. 20, p. A63).
97. Mr. Claytons IQ scores - 71, 75, and 76 - have never been properly
assessed to determine their error of measurement, nor have they been normed per
the Flynn effect. Though such analysis must be done by an expert (who can
calculate the rate of error for each test), when analyzed for the Flynn Effect, Mr.
Claytons 1980 score becomes a full scale score of 71.5, his 1983 score a 72.04,
and his 2005 score a 67.67. Mr. Clayton should be permitted to present this
evidence at a hearing.
98. Mr. Clayton exhibits significant impairments in all three categories of
functioning. Lay and expert witnesses alike noted Mr. Claytons inability to
function in a healthy and appropriate manner.
99. Mr. Claytons testing reveal severe deficits in conceptual skills. He
tested remarkably low in the areas of language, reading and writing. His 1983
testing put him at a fourth grade reading level and a third grade spelling level.
100. Mr. Clayton exhibits severe impairments in social skills. Dr. Foster
specifically noted the severe deficits present in Mr. Claytons social skills: He is
not simply incompetent legally, he would be unable to care for himself or manage
basic self-care, were he not in a structured environment that takes care of him. He
can shower, groom, eat, walk, it is his comprehension, judgment, memory, limited
intelligence and social deficits that plague him. Reports dating back to the
46
accident note Mr. Claytons poor hygiene. As discussed above, Mr. Claytons son
recalled his fathers poor hygiene after the accident. See also, Clayton v. Luebbers,
2006 WL 1128803, p. 12 (W.D. Mo.) (Testimony of Jeff Tichenor, a physicians
assistant who treated Mr. Clayton and advised trial counsel of Mr. Claytons
psychiatric symptoms, including poor hygiene and reports of Mr. Clayton
smearing feces on the wall of his cell). Mr. Clayton also has a difficult time
following simple rules. As discussed above, prisoners incarcerated with Mr.
Clayton note his inability to utilize the prisons commissary and phone system,
despite the simplicity of both.
101. Mr. Claytons practical skills are also significantly impaired. In the
decade following his accident, multiple doctors opined on his inability to work.
See, e.g., Report of Dr. James Bright (he is totally disabled. . . . He will not be
able to work doing anything. He will not be able to work doing any low stress
jobs. He cannot work. He cannot work. (Ex. 14, p. A25). In 1983, He scored in
the 6th-8th Percentile on the Wonderlic Personnel Test, which tests for learning
and problem solving ability. Mr. Clayton reported to his cellmate that he did not
want a job in prison because he was afraid he would get into trouble for being
unable to do it properly, a fear that is likely well-founded.
102. The United States Supreme Court has specifically rejected a strict IQ
score cutoff where there is significant evidence of deficits in adaptive functioning.
Hall v. Florida, 134 S.Ct. 1986, 2001 (2014). There is no meaningful way to
distinguish Mr. Clayton from the people protected by Atkins. The following
47
description of intellectually disabled persons fits Mr. Clayton as well as it would

any person suffering from intellectual disability: he has the diminished ability to
understand and process information, to learn from experience, to engage in logical
reasoning, or to control impulses. Atkins, 536 U.S. at 319-20. The Supreme Court
has held that executing such a person violates the Eighth Amendment. Executing
Mr. Clayton, would be anathema to the evolving standards of our Nation and
would serve no legitimate purpose. As such, Mr. Claytons execution would
violate the Eighth Amendment.
103. Mr. Claytons execution would also violate state law. As described
above, Mr. Claytons injury is a mental disease or defect excluding fitness for
execution. Mo. Rev. Stat. 552.060. Specifically, Mr. Claytons cognitive
impairmentsthe products of dementia and severe brain damagerender him
unfit to be executed. Mr. Clayton invokes this Courts authority to appoint a
special master to take evidence of those impairments, make factual findings, and
any other appropriate measures, to ensure that this state does not execute a man
with impairments materially similar to those who are intellectually disabled.
104. Mr. Clayton has demonstrated significant impairments in both
intellectual and adaptive functioning. He is entitled to a hearing at which to
present this evidence.
This Court has jurisdiction to hear these claims.
48
105. A petition for writ of habeas corpus under Rule 91 is a proper means
for an inmate to assert that he is not competent to be executed and has been used
by inmates facing execution in the past. State ex rel. Middleton v. Russell, 435
S.W.3d 83 (Mo. banc 2014). A petition for writ of habeas corpus is also a proper
means for an inmate to assert that his execution would violate the prohibition
against executing the intellectually disabled. See State ex rel. Amrine v. Roper, 102
S.W.3d 541 (2003) (Habeas corpus available for claims of constitutional error in
conviction and sentence).
106. If an inmate is held for a capital crime and a sentence of death, any
petition under Rule 91 may be filed in this Court in the first instance. Rule
91.02(b).
107. No petition for writ of habeas corpus for the relief sought herein has
been filed in a higher court.
49
CONCLUSION
Mr. Clayton prays the Court:
1. To issue a writ of habeas corpus, and appoint a special master to gather
evidence and issue findings as to whether Mr. Clayton is competent to be
executed;
2. In the alternative, to declare that Mo. Rev. Stat. 552.060 is
unconstitutional; or
3. In the alternative, to appoint a special master to gather evidence and issue
findings as to whether Mr. Clayton is ineligible for execution as set forth in Atkins
v. Virginia, 536 U.S. 304 (2002).
Tel: 816-889-7699
Fax: 816-889-2001
/s/ Pete Carter
Pete Carter, #31401
Woodrail Center
Columbia, MO 65203
Phone: 573-777-9977
Fax: 573-777-9973
50
/s Elizabeth Unger Carlyle

(816)525-6540
FAX (866) 764-1249
e-mail: elizabeth@carlyle-law.com
/s Susan M. Hunt
Susan M. Hunt
816-221-4588
FAX (816) 222-0856
I hereby certify that on March 9, 2014, a true and correct copy of the
foregoing was electronically filed with the Clerk of the Court using the electronic
filing system and a copy was sent via email to: Assistant Attorney General
Michael Spillane, Office of the Attorney General, P.O. Box 899, Jefferson City,
MO 65102; telephone: 573-751-1307; email: mike.spillane@ago.mo.gov;
Assistant Attorney General Caroline Coulter; email: caroline.coulter@agomo.gov;
and Assistant Attorney General Gregory Goodwin; email:
Gregory.goodwin@ago.mo.gov. I also hereby certify that Mr. Michael Spillane,
Ms. Caroline Coulter, and Mr. Gregory Goodwin, Office of the Attorney General,
are registered users of the electronic filing system.
Jeannie Willibey
51
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
FILED
AUG 2 1 2008
JEFFERY LEE WOOD,

TDCJ No. 999256,
Petitioner,
v.
NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal
Justice, Criminal Institutions
Division,
Respondent.
CIVIL NO. SA-01-CA-423-0G
ORDER GRANTING STAY OF EXECUTION
The matters before the Court are (1) petitioner's motion for
appointment of counsel,
docket entry no.
35,
(2)
petitioner's
motion for leave to file ex parte request for expert assistance,

docket entry no. 36, (3) petitioner's motion for stay of execution,
docket entry no. 3 7,
(4) petitioner's sealed ex parte motion for
funding to obtain expert mental health assistance, docket entry no.

39, (5) respondent's opposition to stay of execution, docket entry
no. 40, (6) respondent's opposition to motion for leave to file ex
parte request for expert assistance, docket entry no. 41, and (7)
petitioner's reply to respondent's opposition, docket entry no. 42.
All but the last of petitioner's pleadings and motions listed
above were filed electronically on August 19, 2008, less than 50
hours before petitioner's scheduled execution at 6 p.m. on August
21,
2008.
Respondent filed both his pleadings electronically
before noon on August 20,
Petitioner's final pleading,
2008.
docket entry no. 42, was filed August 20, 2008.

Background
The facts
of petitioner's capital offense and subsequent
trial, direct appeal, and state habeas corpus proceedings are set
forth in detail in this Court's opinion denying petitioner federal
habeas corpus relief. Wood v. Dretke, 386 F.Supp.2d 820, 825-35
(W.D. Tex. 2005), CoA denied, 214 Fed. Appx. 473, 2007 WL 178184
(5th Cir. January 24,
2 007) , affirmed,
2007), cert. denied, _

(2008).
U.S.
491 F. 3d 196
(5th Cir.
128 S.Ct. 1087, 169 L.Ed.2d 825
It will suffice to note the evidence at petitioner's trial
established petitioner participated in a pair of armed robberies of

convenience stores which culminated in the fatal shooting of a
store clerk by petitioner's accomplice Danny Reneau on January 22,
Immediately
1996.
following
the
fatal
assisted Reneau in removing the store's

videotape recorder.
shooting,
safe,
petitioner
cash box,
and
Petitioner also drove the get-away vehicle
used in both robberies.

On or about August 14, 2008, far less than the 20 days prior
to his scheduled execution required by applicable state law to
obtain review by the Texas Court of Criminal Appeals, 1 petitioner
In pertinent part, the Texas Code of Criminal Procedure

provides the state's highest appellate criminal court may not
review a trial court ruling on a motion challenging a convicted
capital defendant's competence to be executed if the defendant
filed his motion, as did petitioner herein, less than 20 days prior
1
filed a motion in his state trial court requesting appointment of

counsel and appointment of a mental health expert
to assist
petitioner in investigating, developing, and presenting evidence

supporting a claim that petitioner is currently incompetent to be
executed and, thereby, at least temporarily exempt from the death
penalty pursuant to the Supreme Court's recent decision in Panetti
v. Quarterman, _
u. S . _ , 12 7 u. S . 2 8 42 , 16 8 L. Ed. 2d 6 62 ( 2 0 07 ) ,
and its prior decision in Ford v. Wainwright, 477 U.S. 399, 106
S.Ct. 2595, 91 L.Ed.2d 335 (1986).
On August 17, 2008, the state trial court denied petitioner's
motion with the cryptic notation "Motion Denied.
In a per curiam opinion issued
required under 46.05 not met."

August 19, 2008,
Threshold showing
the Texas Court of Criminal Appeals dismissed
petitioner's appeal from the trial court's denial of petitioner's

motion, explaining it lacked both (1) appellate jurisdiction to
review same due to the untimeliness of petitioner's motion and (2)
direct authority under applicable state law to appoint counsel or
experts to assist petitioner in his post-conviction proceeding.
Wood v. State, AP-75,970 (Tex. Crim. App. August 19, 2008).
Motion for Stay of Execution

In support of his motion for stay of execution, petitioner
argues
(1)
his school records demonstrate he was diagnosed as
to his scheduled execution date. Tex.

Article 46.05(1 1) (Vernon Supp. 2007).
3
Code Crim.
Proc.
Ann. ,
exhibiting emotional difficulties as a child, (2) he was determined

to be incompetent to stand trial in May, 1997 (but subsequently
found competent only a few months later despite receiving no
medical treatment or medication during the intervening period), (3)
a
diagnostician
who
examined
petitioner
in
connection
with
petitioner's competency trials concluded petitioner suffered from

delusional thought patterns which interfered with petitioner's
ability to communicate effectively with his counsel, (4) a mental
health
evaluation
conducted
in
connection
with
petitioner's
original state habeas corpus proceeding shortly after petitioner's

1998 conviction, concluded, in part, "the client's understanding of
the upcoming legal process is somewhat sophisticated.
However, his
ability to appreciate the consequences of those options or behave

in a self-protective fashion is profoundly impaired and almost
delusional", (5) various prison medical staff have noted instances
of
paranoid
incarceration,
ideation
and
incarceration,
comments
(6)
made
by petitioner
petitioner has
been
treated
during
his
for
his
current
suicidal
multiple
suicide
and
petitioner has made numerous patently
(7)
attempts
during
current
delusional comments to his federal habeas counsel, attorney Scott

Sullivan, suggesting petitioner possesses a completely unrealistic
view of the manner whereby petitioner might one day obtain relief
from his death sentence and release from his current custody.
Respondent correctly points out,
and petitioner candidly
admits, the foregoing arguments do not, standing on their own,

satisfy the standard for establishing petitioner is currently so
mentally disabled as to be "incompetent to be executed."
However,
in Panetti, the Supreme Court emphasized the Constitution mandates

not only a standard of mental competence for a convicted defendant
which must be satisfied before an execution may proceed but also
guarantees certain minimal due process protections when a defendant
sentenced to death makes "a substantial showing of insanity."
Panetti v. Quarterman, ___ U.S. at
__ ,
127 S.Ct. at 2856.
The
Supreme
had
been
the
Court
concluded
Panetti
deprived
of
constitutional minimum due process requirements because the state

habeas court had failed, among other things,
proceedings,
furnish
to transcribe its
Panetti with an evidentiary hearing,
or
provide Panetti an adequate opportunity to submit expert evidence

in response to a report filed by court-appointed experts. Panetti,
U.S. at
__ ,
127 S.Ct. at 2856-57.
The initial constitutional deficiency with what transpired

during petitioner's latest state habeas corpus proceeding is that
petitioner was afforded neither court-appointed counsel nor expert
assistance
to
challenge his
own
competence
to
be
executed.
Instead, the State of Texas insisted an arguably insane death row

inmate proceeding without the assistance of court-appointed counsel
was required to satisfy the threshold requirement of Article 46. 05,
i.e. , make a "substantial showing of incompetency, ,, before the

inmate was entitled to either the assistance of counsel or the
assistance of any mental health expert.
With all due respect, a
system which requires an insane person to first make "a substantial

showing" of his own lack of mental capacity without the assistance
of counsel or a mental health expert, in order to obtain such
assistance is, by definition, an insane system.
Panetti had the
assistance of court-appointed counsel.
Petitioner was deprived of
even this much procedural protection.
It is inconsistent with the
mandates of both Panetti and Ford for the State of Texas to deny an
indigent death row inmate asserting a claim that he is incompetent
to be executed the assistance of counsel until said inmate first
satisfies
arcane
pleadings
requirements
so
intellectually
challenging they test the skill of even the most seasoned attorney.
Furthermore, the Texas statutory definition of "incompetent to
be executed" apparently applied by the state trial court during
petitioner's most recent state habeas corpus proceeding suffers
from the exact same constitutional defect identified by the Supreme
Court when it struck down as too narrow two decades of Fifth
Circuit precedent construing the Supreme Court's holding in Ford.
Under applicable Texas law,
a defendant is incompetent to be
executed if he does not understand (1) he
to be executed and his
execution is imminent and (2) the reason he is being executed. Tex.

Code Crim. Proc. Ann., Article 46.05(h) (Vernon Supp. 2007).
The
Supreme Court's opinion in Penetti makes clear a standard for

incompetence in this context which focuses exclusively upon the
defendant's awareness of his situation but which ignores the
possibility the defendant may suffer
from delusional
thought
processes which interfere with his ability to rationally comprehend

the causal link between his capital offense and his imminent
execution is unconstitutionally narrow. See Panetti v. Quarterman,
__ U.S. at __ , 127 S.Ct. at 2861 ("The potential for a prisoner's
recognition of the severity of the offense and the objective of
community vindication are called in question,
however,
if the
prisoner's mental state is so distorted by a mental illness that

his awareness of the crime and punishment has little or no relation
to the understanding of those concepts shared by the community as
a whole.").
"A prisoner's awareness of the State's rationale for
an execution is not the same as a rational understanding of it."
Panetti, ___ U.S. at ___ , 127 S.Ct. at 2862.
Petitioner's motion
presents non-frivolous arguments suggesting petitioner currently

lacks a rational understanding of the connection between his role
in his offense and the punishment imposed upon him.
Petitioner's
motion
for
stay,
particularly
the
sections
outlining petitioner's allegedly delusional statements to mental

health experts
near
the
time of petitioner's
trial
and his
subsequent statements to his state and federal habeas counsel, at

least arguably suggest petitioner lacks a rational understanding of
the causal link between his role in his criminal offense and the
reason he has been sentenced to death.
statements
to
these
individuals
At their core, petitioner's

indicate
an
inability
or
unwillingness on petitioner's part to fully comprehend the fact he

bears criminal responsibility, and can be punished, for the fatal
shooting of Kris Keeran by his accomplice.
As explained in
Panetti, a prisoner's inability to make the psychic link between
his
offense
and
the punishment
to
be
imposed upon him may
potentially render the prisoner incompetent to be executed for

Eighth Amendment purposes. Panetti, ___ U.S. at ___ , 127 S.Ct. at
2862 ("Gross delusions stemming from a severe mental disorder may
put an awareness of a link between a crime and its punishment in a
context so far removed from reality that the punishment can serve
no proper purpose.").
Texas
law
of
Mere confusion over the complexities of the
parties
does
not
delusion
make.
However,
petitioner's federal habeas counsel suggests petitioner has made

numerous statements demonstrating a complete and fundamental lack
of comprehension as to how capital punishment can be imposed upon
petitioner for a crime
(the fatal shooting of Keeran)
another
individual committed.
Admittedly, the evidence of petitioner's alleged incompetence
now before this Court is far from compelling.
Petitioner has never
been definitively diagnosed with any mental illness.
The findings
of various educational experts that petitioner displayed symptoms,
at age 12 and 15,
equivalent to those displayed by students
currently labeled with Attention Deficit Disorder
("ADD")
and
Attention Deficit Hyperactivity Disorder ( "ADHD") do not even begin

to approach the standard for establishing incompetence to be
executed.
Likewise, neither petitioner's post-conviction suicidal
ideation nor even his actual suicide attempts satisfy the standard.
Nonetheless, there are facts properly before this Court which
lend support to the conclusion petitioner has made a "substantial
threshold showing of insanity."
Petitioner's delusional thought
processes convinced at least one jury he was incompetent to stand

trial in May, 1997.
Reports of various mental health experts who
interviewed petitioner during the time frame 1997-99 suggest (1)

petitioner's intellectual functioning remained in the low average
range before and after his incarceration began,
memory
remains
in
tact,
but
(3)
(2) petitioner's
petitioner's
narcissistic
tendencies and almost delusional belief in the inevitability of his

ultimate vindication have grown more prominent since his arrest.
Moreover, as this Court explained in great detail in its opinion
denying petitioner federal habeas relief, petitioner exhibited a
bizarre, seemingly paranoid, and clearly suicidal ideation during
his capital trial.
Thus, this Court's conclusion petitioner has
satisfied the requirement necessary to entitle him to a stay of

execution in this cause is not based solely upon the limited facts
alleged in petitioner's motions filed August 19, 2008 but also upon
this Court's independent review of the records of petitioner's

state trial, direct appeal, and state habeas corpus proceedings.
This is not to suggest a capital defendant may obtain a stay
of execution, or even ultimately avoid capital punishment, merely
by displaying an obstinate refusal to accept the State's proffered
rationale for his punishment:
And we must not ignore the concern that some prisoners,
whose cases are not implicated by this decision, will
fail to understand why they are to be punished on account
of reasons other than those stemming from a severe mental
illness. The mental state requisite for competence to
suffer capital punishment neither presumes nor requires
a person who would be considered "normal," or even
"rational," in a layperson's understanding if those
terms.
Someone who is condemned to death for an
atrocious murder may be so callous as to be unrepentant;
so self-centered and devoid of compassion as to lack all
sense of guilt; so adept in transferring blame to others
as to be considered, at least in the colloquial sense, to
be out of touch with reality. These states of mind, even
if extreme compared to the criminal population at large,
are not what petitioner contends lie at the threshold of
a competence inquiry.
The beginning of doubt about
competence in a case like petitioner's is not a
misanthropic personality or an amoral character. It is
a psychotic disorder.
Panetti, _U.S. a t _ , 127 S.Ct. at 2862,

The unverified copies of petitioner's school records attached
to his motion for stay of execution amply illustrate petitioner was
identified while a child as possessing most of the characteristics
of an antisocial personality.
Thus, there is evidence before this
Court suggesting petitioner's alleged refusal to comprehend, or

perhaps possibly to admit, the connection between his role in the
fatal shooting of Kriss Keeran and the death sentence imposed upon
10
him
may
be
personality
more
than of
demonstrative
a
of
true mental
petitioner's
illness.
antisocial
However,
where
petitioner was deprived of not only the assistance of a mental

health professional to develop his Panetti/Ford claim in state
court but also the assistance of court-appointed counsel,
any
adjudication of the merits of the petitioner's incompetence claim

at this juncture is premature.
In view of petitioner's well-documented record of suicidal
ideation and behavior during his trial, 2 this Court believes the
minimal evidence of petitioner's delusional
thought processes
currently before this Court and the refusal of the State of Texas
to afford petitioner even the most minimal of procedural due
process protection,
i.e. ,
the appointment of counsel and the
assistance of a qualified mental health expert, during petitioner's

most recent state habeas corpus proceeding collectively warrant
issuance of a stay of execution for the purpose of permitting
petitioner to further develop his Panetti/Ford claim with the
assistance of qualified counsel and a qualified mental health
expert.
386 F.Supp.2d at 828-33 (quoting

extensively from the bizarre exchanges between petitioner, his
trial counsel, and the state trial judge during petitioner's
trial) .
See
Wood
v.
Dretke,
11
Motion Regarding Appointment of Counsel

For the reasons discussed at length by the Supreme Court in
Panetti, petitioner herein is entitled to the assistance of counsel
to
develop
and
present
evidence
supporting
Panetti/Ford claim herein. Panetti, ___ U.S. at
petitioner's
, 127 S.Ct. at
2856 (holding the basic requirements of due process applicable to

a hearing on a claim of incompetence to be executed include, at a
minimum, an opportunity to submit evidence and argument from the
prisoner's counsel and expert psychiatric evidence that may differ
from the State's own psychiatric examination).

due process requires, at a minimum,
Thus, fundamental
that an indigent defendant
asserting a non-frivolous Panetti/Ford claim be assisted by counsel

in any hearing before the Court.
Furthermore,
the
Supreme
Court
held
in
its
opinion
in
McFarland v. Scott, 512 U.S. 849, 855-58, 114 S.Ct. 2568, 2572-73,
129 L.Ed.2d 666 (1994), a state prisoner facing a death sentence

has a qualified statutory right pursuant to former Title 21 U.S.C.
Section 848(q) (4) (B) to the appointment of counsel in connection
with a federal habeas corpus proceeding challenging his criminal
conviction and death sentence. Sterling v. Scott, 57 F.3d 451, 454
(5th Cir. 1995), cert. denied, 516 U.S. 1050 (1996).
2006,
Congress
repealed
Title
21
U.S.C.
Section
In March,
848(q)
and
simultaneously re-enacted same in substantially similar form as

Title 18 U.S.C. Section 3599.
The Court will grant petitioner's

12
request for appointment of counsel in conformity with Section 3599

and the Supreme Court's holding in McFarland.
The Court finds attorney J. Scott Sullivan, long a member of
the bar of this Court, whose mailing address is 7800 IH 10 West,
Suite 519, San Antonio, Texas 78230, and whose telephone number is
(210)
227 6000,
qualifies for appointment as lead counsel for
petitioner herein pursuant to Section 3599(b).
Said counsel has
actively represented numerous death row inmates in Section 2254

proceedings before this Court and the Fifth Circuit in recent
years.
cause.
Said counsel also previously represented petitioner in this

This
Court
previously
granted
attorney
Jared Tyler
permission to appear pro hac vice as co-counsel for petitioner

herein.
Motions Regarding Expert Assistance
Petitioner requests appointment of a mental health expert to
assist him in developing and presenting his Panetti!Ford claim
herein.
This Court finds petitioner is entitled to such assistance
because the state court denied him any opportunity whatsoever to

present expert mental health evidence to that court when it denied
petitioner's
motion
requesting
appointment
of
counsel.
Petitioner's most recent state habeas proceeding was so lacking in

fundamental due process protections it is incumbent upon this Court
to afford petitioner a
hearing in accord with fundamental
fairness in which petitioner has a meaningful opportunity to be
13
u.s. at
heard on the merits of his Panetti/Ford claim. Panetti,

___ , 127 S.Ct. at 2856.
Petitioner is entitled to the assistance
of a mental health expert to help petitioner and his counsel

develop evidence supporting petitioner's incompetence claim.
Any request for funding for expert assistance from this Court
pursuant
to
Section 3599(f)
mandated
by
supervisory
which exceeds
judicial
officers
the
current
for
limit
investigative
expenses in capital habeas proceedings must be accompanied by a
completed CJA Form 31 filed on petitioner's behalf.
The current
limit for expert assistance established by the governing judicial

officers in capital cases is $7,500.
Petitioner has requested the
sum of $9,900 to compensate his designated mental health expert for

the work said expert will perform in this cause.
Nonetheless,
petitioner has wholly failed to support his request with the proper
documentation
required
under
CJA
Guidelines.
Accordingly,
petitioner's request for expert mental health assistance will be

granted in part to the extent permitted by CJA Guidelines.
In the
event petitioner requires additional expert assistance not covered

by the amount of funding authorized in this Order, petitioner must
file
separate motion and support
same with
the necessary
documentation.
As correctly pointed out by respondent, applicable federal law
clearly provides a federal habeas corpus petitioner has no right to
proceed ex parte when requesting expert assistance unless the
14
petitioner makes a
"proper showing"
concerning "the need for
confidentiality." 18 U.S.C. 3599(f).

Petitioner was convicted more than decade ago.
His conviction
and sentence have withstood scrutiny from both state and federal
courts during the ensuing decade-plus.
of material
There is no genuine issue
fact properly before this Court at this
juncture
regarding the circumstances of petitioner's offense, petitioner's

criminal history, petitioner's background or social history, or
petitioner's medical or mental health history.
Petitioner has been
incarcerated in the custody of the Texas Department of criminal

Justice for over a decade as well.
His medical and mental health
records during his current incarceration are equally available to

both parties.
Any documentation regarding petitioner's mental
health relevant to the issue of petitioner's Panetti/Ford claim is

ultimately going to be presented to this Court in an open, public,
hearing.
By seeking relief under Article 46. 05 from the state
courts, petitioner statutorily waived any claim of privilege with

regard to his medical or mental health records. Article 46.05(j),
Tex.
Code Crim.
attached
numerous
Proc.
Ann.
documents
(Vernon Supp.
containing
2007).
Petitioner
otherwise
privileged
information to the pleadings and motions he filed unsealed in this

Court.
Nowhere in any of his motions or pleadings currently before
this Court does petitioner imply, much less identify, any reason
15
----------
----~---------
for confidentiality exists with regard to the information contained

in petitioner's sealed motion requesting the expert assistance of
Dr. Mark Cunningham, a mental health expert with whom both the
respondent's counsel and this Court are long familiar.
nothing sacrosanct about either Dr.
Cunningham's
There is
current
fee
schedule or the estimated number of hours petitioner and Dr.

Cunningham currently believe they will need to adequately develop
petitioner's Panetti/Ford claim.
Petitioner's motion for expert assistance will be granted.
Petitioner will be granted a reasonable time within which to
investigate and develop evidence supporting his Panet
/Ford claim.
However, petitioner's motion requesting the right to proceed ex

parte in connection with his retention of Dr. Cunningham's services
will be denied.
Conclusion
Succinctly, the legal basis for this Court's decision herein
rests squarely on the state trial court's refusal to afford the
allegedly insane petitioner the most fundamental of the due process
procedural protections mandated by the Supreme Court's holding in
Panetti,
i.e.,
the state trial court's denial of petitioner's
request for legal representation.

granted that request,
Had the state trial court
along with the other procedural rights
recognized in Panetti, this Court's eleventh-hour intervention in

petitioner's execution might have been unnecessary.
16
Accordingly, it is hereby ORDERED that:

1.
Petitioner's motion requesting appointment of counsel
docket entry no. 3 5, is GRANTED as follows: in accordance with

Title 19 U.S.C. Section 3599, attorney J. Scott Sullivan, whose
mailing address is Suite 519, 7800 IH 10 West, San Antonio, Texas
78230, and whose telephone number is (210) 227-6000, is appointed
lead counsel of record for petitioner herein; attorney Jared Tyler,
whose mailing address is Suite 1150, 412 Main Street, Houston,
Texas,
77002,
and whose telephone number is
(713)
appointed co-counsel of record for petitioner herein.
222-7788 is
The Clerk
shall send to each of said counsel a copy of this Order and all
forms and vouchers necessary to permit said counsel to comply with
all requirements for obtaining reimbursement for expenses and
payment for attorneys fees for services rendered in connection with
this cause.
2.
All relief requested in petitioner's motion styled
"Petitioner's Statement of the Need for Confidentiality and Motion

for Leave to File Detailed Ex Parte Applications for reasonably
Necessary Services under Seal," docket entry no. 36, is DENIED; the
Clerk shall immediately unseal docket entry no. 39.
3.
Petitioner's motion for stay of execution, docket entry
no. 37, is GRANTED; execution of petitioner's death sentence is

hereby STAYED pending further Order of this Court.
4.
Petitioner's motion requesting authorization of funds to

17
obtain the services of a mental health expert, docket entry no. 39,
is
GRANTED
in part
consistent with
the
following
terms
and
provisions of this Order.

5.
Petitioner is authorized to retain the services of Dr.
Mark Cunningham and to incur expenses investigating the subjects

identified in petitioner's motion requesting the assistance of a
mental health expert up to the sum of $7,000.
In the event
petitioner wishes to incur additional investigative expenses beyond

this amount, petitioner shall file a separate motion and accompany
same with all the necessary CJA forms and other documentation
identified in this Order.
6.
On or before November 1, 2008, petitioner shall file an
amended federal habeas corpus petition and set forth therein the
factual and legal bases for his Panetti/Ford claim.
Petitioner
shall attach to his amended petition a report prepared by Dr.

Cunningham addressing specifically his findings and conclusions
regarding petitioner's competence to be executed.
7.
Respondent shall file his answer to petitioner's
amended federal habeas corpus petition or other responsive pleading

on
or
before
sixty
(60)
days
after
receipt
petitioner's amended federal habeas petition.
of
copy
of
Respondent's answer
or other responsive pleading shall conform to the requirements of

Rule 5 of the Rules Governing Section 2254 Cases in the United
18
States District Courts and Rule 12 of the Federal Rules of Civil

Procedure.
8.
Respondent shall serve petitioner's counsel of record
with a copy of said answer or other responsive pleading in

accordance with the provisions of Rule 5(b), Federal Rules of Civil
Procedure.
9.
Petitioner's Reply
On or before twenty (20) days after
the date respondent serves petitioner's counsel of record with a

copy
of
respondent's
answer
or
other
responsive
pleading,
petitioner shall file with the Clerk of this Court and serve on
respondent's counsel of record any reply he wishes to make to
respondent's answer or other responsive pleading.
10.
On or before January 5, 2009, counsel for both parties
shall advise the Court in writing regarding their respective

availability during the months of February and March,
2009 to
attend an evidentiary hearing in this cause and their estimates

regarding the duration of such hearing.
advisories,
In lieu of separate
counsel may file a joint advisory addressing these
subjects.
11.
Any party seeking an extension on any of the foregoing
deadlines shall file a written motion requesting such extension

prior to the expiration of the deadline
question and shall set
forth in such motion a detailed description of the reasons why that
19
party, despite the exercise of due diligence, will be unable to

comply with the applicable deadline.
12.
Once the Court has received all operative pleadings and
reviewed counsels' advisories, the Court will set an evidentiary

hearing in this cause on petitioner's Panetti!Ford claim.
SIGNED and ENTERED this
J./
day of August,
2008, at San
Antonio, Texas.
ORLANDO L. GARCIA
United States District Judge
20

Rule 91 Cert Petition and Appendix

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Rule 91 Cert Petition and Appendix

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No.

ON PETITION FOR WRIT OF CERTIORARI TO

Jeannie Willibey, Mo Bar No. 40997

Danforth v. Minnesota, 552 U.S. 264 (2008) ...................................................................... 28

PETITION FOR WRIT OF CERTIORARI TO

STATEMENT OF THE CASE

Nonetheless, Mr. Clayton received no long-term therapy. App. p. 197a. As depicted

be responding to hallucinations during the evaluation.

Specifically, During a. . . test of concept formation, the Wisconsin Card Sorting

Evidence of ineligibility to be executed.

Assertions of ineligibility to be executed.

REASONS FOR GRANTING THE WRIT

He made this showing when he filed his Renewed Motion To

Another report states:

execution and does not have the capacity to understand matters in

An example of the correct application of this Courts decisions is found in the

II. The Missouri Supreme Courts ruling

Russell, 435 S.W.3d 83 (Mo. banc 2014), in defining competence to be executed:

forces of light. Id. at 954 (citations omitted). As a result, even though

B. Mr. Clayton has a liberty interest in Missouris definition of competency,

Mr. Clayton has certainly presented evidence to meet the substantial

III. Mr. Clayton is Entitled to Present Evidence that His

intellectual disability as an immutable characteristic which manifests at or shortly

/s/ Jeannie Willibey

SUPREME COURT OF MISSOURI

STATE EX REL. CECIL CLAYTON,

ORIGINAL PROCEEDING IN HABEAS CORPUS

been sentenced to death. In 1996, Clayton became angry at his girlfriend in a

Clayton told his friend he needed him to provide an alibi.

Claytons Brain Injury

Impact of Claytons Injury on his Culpability and Competence

Dual Defense Theories

Additional Evidence of Impairment at Trial

Clayton was Competent to Stand Trial

Clayton was not Mentally Retarded

Clayton was not Insane at the Time of the Offense

Clayton was Competent During his Habeas Proceeding

Clayton was Competent to be Executed

Claytons Current Petition Alleging He is Incompetent to be Executed

Clayton is Competent to be Executed

Nothing in Dr. Logans[ 1] statement, or in the other proof submitted with

Dr. Foster testified during Claytons post-conviction proceedings that Claytons

intellectually. By now he fancies himself wrongly convicted, though does

delusions do not constitute a sufficient threshold showing that Clayton is incompetent to

forensic psychiatrist, perform an evaluation of Claytons competence to be executed. Dr.

Matters in Extenuation and Clemency

an inmate is competent to assist in his defense must be analyzed in light of the

Clayton is Competent to be Executed

Section 552.060.2 is Not Unconstitutional

it permits the director of the Department of Corrections, a member of the executive

Clayton is not Intellectually Disabled under Atkins

of adaptive skills, he is intellectually disabled 3 and, therefore, categorically ineligible

academics, leisure and work, which conditions are manifested and

SUPREME COURT OF MISSOURI

STATE EX REL. CECIL CLAYTON,

Timeliness of Petition for Habeas Relief

Reasonable Grounds to believe Mr. Clayton is Intellectually Disabled

But the constitutional restriction

defines intellectual disability as significantly subaverage general intellectual functioning

Being found mentally retarded now is referred to as being intellectually disabled,

as evidence of past performance, environment, and upbringing.

an intellectually disabled man regardless of whether the claim was preserved. To do so

IQ score of 71 has never been seen by a jury or considered by a Missouri court in an

Of course people can become disabled later in life.