EASTERN DIVISION John E. Winfield, ) ) Plaintiff, ) ) vs. ) Case No. 14-1022 ) Troy Steele, Warden, Potosi ) Correctional Center, ) This is a capital case ) Terry Russell, Warden, Eastern ) Execution scheduled June 18 Reception Diagnostic & ) Correctional Center, and ) ) George Lombardi, Director, ) Missouri Department of ) Corrections, ) ) Defendants. ) CIVIL COMPLAINT AND REQUEST FOR INJUNCTIVE RELIEF UNDER 42 U.S.C. 1983 For his causes of action, plaintiff John E. Winfield, by and through counsel, states and alleges as follows. NATURE OF THE ACTION 1. Plaintiff is a Missouri prisoner under sentence of death, and he is scheduled to be executed on June 18, 2014, at 12:01 a.m. 2. This Court appointed undersigned counsel to represent Mr. Winfield for the purpose of seeking executive clemency, pursuant to 18 U.S.C. 3599. See Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 1 of 16 PageID #: 1 Winfield v. Roper, E.D. Mo. Case No. 4:03-cv-192. 3. Officials within the Potosi Correctional Center have intentionally obstructed Mr. Winfields and counsels efforts at seeking executive clemency, by threatening and intimidating a staff member who has worked extensively with Mr. Winfield; who describes him as among the elite one percent of all inmates; who offers a superlative account of Mr. Winfields work habits, kindness to other prisoners, and respect among prisoners and staff; and who wishes to make a written statement in support of Mr. Winfields clemency petition. The staff member now fears that he will lose his job if he offers his statement. 4. Mr. Winfield prays the Court to restrain the defendants from intimidating or otherwise threatening any prison personnel from speaking or writing in support of Mr. Winfields clemency petition, and for the Court to stay the scheduled execution so that Mr. Winfield may petition for clemency unencumbered by the defendants violations of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. See Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). PARTIES 5. Plaintiff John E. Winfield is a citizen of the United States and a resident of the State of Missouri. 6. Plaintiff Winfield is a person within the jurisdiction of the State of -2- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 2 of 16 PageID #: 2 Missouri. 7. Plaintiff Winfield was convicted in the Circuit Court of St. Louis County of two counts of first-degree murder, two counts of first-degree assault, and four counts of armed criminal action. He was sentenced to death on both of the murder convictions. On May 9, 2014, the Missouri Supreme Court scheduled Mr. Winfields execution for June 18, 2014. 8. Defendant Troy Steele is the Warden of the Potosi Correctional Center, where Mr. Winfield has been incarcerated since shortly after his sentencing in 1998. He is being sued solely in his official capacity. 9. As Warden of the Potosi Correction Center, Defendant Steele has ultimate responsibility and authority over matters of employee discipline within Potosi and proceedings in which the conduct of the prisons employees are investigated and occasionally sanctioned with punishments that may include an employees termination. 10. Defendant Terry Russell is Warden of the Eastern Reception, Diagnostic, and Correctional Center in Bonne Terre, Mo. He is being sued solely in his official capacity. 11. Defendant George Lombardi is the Director of the Missouri Department of Corrections, with supervisory authority over Defendants Steele and Russell, as well as authority under state law to oversee and implement the process -3- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 3 of 16 PageID #: 3 governing Missouri executions. See Mo. Rev. Stat. 546.720. He is being sued solely in his official capacity. 12. The Missouri Department of Corrections plans to execute Mr. Winfield at ERDCC on June 18, 2014, and to transfer him from Potosi to ERDCC on an undisclosed date before the execution. 13. Defendants Steele, Russell, and Lombardi are employed by the State of Missouri, and the actions they take and supervise as described in this complaint are taken under color of state law. JURISDICTION 14. Plaintiff brings this action to enforce and protect rights conferred by the Fourteenth, Eighth, and First Amendments to the United States Constitution. 15. This Court has jurisdiction under 28 U.S.C. 1331, in that it arises under the Constitution of the United States; under 28 U.S.C. 1343(a)(3), in that it is brought to redress deprivations, under color of state authority, of rights, privileges, and immunities secured by the United States Constitution; under 28 U.S.C. 1343(a)(4), in that it seeks to secure equitable relief under an act of Congress, specifically 42 U.S.C. 1983, which provides a cause of action for the protection of civil rights; under 28 U.S.C. 2201(a), in that, one purpose of this action is to secure declaratory relief; and under 28 U.S.C. 2202, in that one purpose of this action is to secure permanent injunctive relief. -4- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 4 of 16 PageID #: 4 16. This Court also has jurisdiction, pursuant to 28 U.S.C. 1651, to enjoin the defendants from obstructing Mr. Winfields clemency efforts in this case and to enjoin them from executing Mr. Winfield until all his clemency witnesses have been fully and fairly heard, and to grant such other equitable relief that is appropriate under the circumstances. VENUE 17. Venue is proper in this federal judicial district under 28 U.S.C. 1391(b)(1)-(3) in that (1) Defendants Steele and Russell reside in its territorial jurisdiction, and all defendants are Missouri residents; and (2) a substantial part of the events described within this complaint and which give rise to Plaintiff Winfields claims occurred within this judicial district; Defendant Steeles actions, whether individually or through his underlings, were made within this Courts territorial jurisdiction. EXHAUSTION OF ADMINISTRATIVE REMEDIES 18. Though exhaustion is not required, Mr. Winfield has properly exhausted the administrative remedies available to him. He has properly grieved his complaint that personnel within the Potosi Correctional Center are obstructing his clemency efforts by threatening and coercing Potosi employees from giving statements in support of Mr. Winfield. FACTUAL BASIS FOR CLAIM -5- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 5 of 16 PageID #: 5 Background 19. Clemency is a part of the process that Missouri has adopted for the determination of whether a person convicted of a crime shall be executed. 20. The Missouri Constitution gives the Governor the power to grant reprieves, commutations and pardons: The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to provisions of law as to the manner of applying for pardons. The power to pardon shall not include the power to parole. Mo. Const. art. IV, 7. 21. The Missouri General Assembly, in furtherance of the Governors constitutional powers, has provided as follows: In all cases in which the governor is authorized by the constitution to grant pardons, he may grant the same, with such conditions and under such restrictions as he may think proper. Mo. Rev. Stat. 217.800. The Governor also has discretion to convene a Board of Inquiry to gather information, whether or not admissible in a court of law, bearing on whether or not a person condemned to death should be executed, reprieved or pardoned, or whether the persons sentence should be commuted. Mo. Rev. Stat. 552.070. The statute imposes a duty on all persons to cooperate with the Boards investigation, and imposes on the Board a duty to receive and hold information in strict confidence. -6- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 6 of 16 PageID #: 6 22. This Court appointed counsel for plaintiff Winfield, and issued an order authorizing appointed counsel to receive compensation under 18 U.S.C. 3599, for representing him in seeking executive clemency. In the course of their federal court appointed representation of Mr. Winfield, counsel have been investigating and developing evidence in support a clemency petition. 23. Mr. Winfields case is not the first in which employees of the Missouri Department of Corrections and the Potosi Correctional Center have obstructed clemency efforts by limiting counsels access to prison staff who wish to speak in support of clemency. On August 20, 2008, the Missouri Supreme Court vacated the then-pending execution date of Dennis Skillicorn on account of such obstruction. A copy of the courts order is attached to this complaint as Exhibit 1. In the course of its order, the court stated as follows: In support of his clemency petition Appellants attorneys are entitled to gather information from prisoners and prison staff, on a voluntary basis, consistent with the institutions need for security and the individual interviewees need for safety. State v. Skillicorn, Mo. Sup. Ct. Case No. SC78864 (amended order of Aug. 20, 2008). Counsels Investigation 24. On May 18, 2014, counsel Jessica Sutton approached a current staff member at Potosi Correctional Center and former employer of Mr. Winfield to discuss the staff members impressions of Mr. Winfield as an inmate, as an -7- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 7 of 16 PageID #: 7 employee, and as a person. Sutton Declaration 1. The staff member was eager to support Mr. Winfields clemency efforts, and on May 22, 2014, the staff member signed a declaration in support of clemency for Mr. Winfield. Id. 2. [Attorney Suttons declaration, which accompanies this complaint as Exhibit 2, is filed under seal and ex parte in order to protect the staff members identity, in light of the threats that have been made against him.] 25. In his declaration, the staff member explained that he has been an employee of the Department of Corrections for over twenty years. Id. At the beginning of his long career, he was a strong supporter of the death penalty and was even a member of several execution teams. Id. After over twenty years of service, however, he has met a few exceptional individuals who have been sentenced to death, but who have become changed men. Id. This staff member counts Mr. Winfield as one of those people, and described him as a compassionate and generous person who has the ability to mentor young inmates and change their lives. Id. 26. At Potosi Correctional Center, the staff member employed Mr. Winfield for several years and they spent eight hours a day working together. Id. As an employee, the staff member described Mr. Winfields strong work ethic, initiative, and ability to take direction. Id. The staff member could rely on Mr. Winfield, and in turn, Mr. Winfield was a lead employee, which entailed -8- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 8 of 16 PageID #: 8 additional responsibility. Id. 27. This longstanding working relationship revealed Mr. Winfields character to the staff member, who saw that Mr. Winfield wants to be there for his family and cries when he cant do anything to help those he loves on the outside. Id. While Mr. Winfield struggled to provide for his loved ones at home, he also cared for younger and weaker inmates at the prison. Id. He took a special interest in looking after the inmates in the Special needs Unit, who have disabilities, going so far as to press their clothes so that they can take pride in themselves. Id. Other times, the staff member sees Mr. Winfield bestow small kindnesses, such as going to the canteen and bringing back two ice creams, then giving both of them away. The staff member emphasized that Mr. Winfield is genuinely concerned about the well-being of others. Id. 28. Staff and inmates respect Mr. Winfield, the staff member explained, because of his kindness and generosity. Id. People can count on Mr. Winfield to help them if they are in need, and Mr. Winfield will give away what he has to others without asking for anything in return. Id. Mr. Winfield also has a good institutional record, has received very few violations, and is committed to the institution. He works hard and treats staff with respect, which in turn earns him respect. Id. 29. The staff member concluded that Mr. Winfield is not the same -9- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 9 of 16 PageID #: 9 person who committed the crime that sent him to death row. Id. He has changed his life, become a better person, and shows his remorse for his crime in his every day actions and the life that he chooses to live. Id. He is dedicated to helping those who are in pain. Id. Far from being the worst of the worst, the staff member stated, Mr. Winfield is in the elite one percent of all inmates, including non-capital inmates. Id. In the staff members opinion, as a long time correctional employee, Mr. Winfield does not deserve to die, and if his sentence is commuted to life without the possibility of parole, he will continue to make contributions by mentoring youth and helping those in prison. Id. State-sponsored Obstruction 30. On May 19, 2014, the day after counsels initial meeting with the staff member, he spoke with an attorney in the legal department at Potosi Correctional Center and his supervisor concerning his desire to write a declaration in support of clemency for Mr. Winfield. Id. 3, 4. Both individuals explained that there was no policy prohibiting the staff member from writing a letter in support of clemency for Mr. Winfield, so long as he expressed his personal opinion and did not act as a representative of the Department of Corrections. Id. 31. The next day, on May 20, 2014, an investigator employed at Potosi Correctional Center called for a meeting with the staff member and informed him that he was a suspect in and under investigation for overfamiliarity with Mr. -10- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 10 of 16 PageID #: 10 Winfield. Id. 5. This is a serious offense that can result in negative employment action, and while someone is under investigation for such an offense, that person is not permitted to participate in activities potentially related to the investigation. Id. Therefore, even though there is no explicit policy prohibiting the staff member from writing to the Governor in support of Mr. Winfields clemency, he is, for all practical purposes, barred from doing so while under investigation. Id. 32. During this May 20 meeting with the investigator, the staff member was questioned about his relationship with Mr. Winfields familywith whom he has no relationshipand how counsel contacted him concerning Mr. Winfields clemency efforts. Id. 6. Because the staff member had explained to the investigator that he had asked permission from his boss to sign a declaration in support of clemency for Mr. Winfield, the investigator then called a meeting with the staff members boss. Id. 7. 33. Despite having been enthusiastic about supporting clemency for Mr. Winfield at the meeting with counsel on May 18, after being charged as a suspect in the overfamiliarity investigation, the staff member requested that his name and all identifying information be redacted from the declaration. Id. 8. The staff member feared retaliation, including termination of his employment, from Potosi Correctional Center and the Department of Corrections if his identity was made public. Id. 8, 9. -11- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 11 of 16 PageID #: 11 34. On May 22, counsel met with the staff member and went through the declaration paragraph by paragraph as the staff member instructed counsel on the information that he wanted redacted. Id. 8. The staff member then signed the redacted declaration, and agreed to sign an unredacted version of the declaration. Id. 35. On May 27, 2014, the staff member contacted counsel via text message, stating: Jessica, after considerable debate an discussion with my wife, I have decided that I cannot sign the [unredacted] declaration at this time due to the current pending investigation. It is also my wish to rescind the redacted copy that I have already signed as well. Some concerns have arisen that [my wife] and I have due to this current investigation, however, once I have received a final disposition of the unmerited investigation in which is an utterly ridiculous claim of over-familiarity, I will have no problem in signing either declaration. Sorry. Id. 10. The staff member, then, has rescinded even the redacted version of his statement, for fear that he will lose his job. CLAIMS FOR RELIEF Count 1: Due Process 36. Plaintiff restates and realleges the premises in paragraphs 1-35. 37. The actions of Defendant Steele and the employees he supervises at Potosi Correctional Center, in obstructing Plaintiff Winfields clemency efforts by threatening and pressuring a staff member not to make statements in support of those efforts, violate Mr. Winfields right to due process of law. -12- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 12 of 16 PageID #: 12 38. The state-obstructed statement in this case presents compelling evidence in support of clemency for Mr. Winfield. It shows that he is an extraordinary inmate whom the state does not need to execute for the sake of public safety or institutional security. 39. Due process, at bottom, requires the opportunity to be heard by the state, and for that opportunity to be meaningful. State action that limits the testimonials on Mr. Winfields behalf effectively silences him so that he cannot make a full and complete case for executive clemency. See Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000); Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288-89 (1998) (OConnor, J., concurring); id. at 290 (Stevens, J., dissenting) (five justices recognizing due process safeguards in clemency proceedings). 40. Mr. Winfields execution, if carried out under Defendant Russells custody without Mr. Winfield having presented a full and non-obstructed clemency petition, would additionally violate due process. Count 2: Eighth Amendment 41. Plaintiff restates and realleges the premises in paragraphs 1-40. 42. The Eighth Amendment to the United States constitution forbids the imposition of cruel and unusual punishment. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference -13- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 13 of 16 PageID #: 13 in the need for reliability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carlina, 428 U.S. 280, 305 (1976). 43. Executive clemency acts as a fail-safe against the arbitrary, capricious, and cruel infliction of the death penalty. 44. The states intentional interference with clemency violates the Eighth Amendment because that interference removes an essential safeguard to constitutional application of the death penalty. Count 3: First Amendment 45. Plaintiff restates and realleges the premises in paragraphs 1-44. 46. The First Amendment guarantees the freedom of expression, as well as the right to petition the government for a redress of grievances. 47. State actors interference with Mr. Winfields clemency proceedings, as described in this complaint, prevents him from speaking fully to the Governor in support of clemency, and to explain to the Governor why the criminal judgment entered against him should not be enforced through his execution; such interference also violates the First Amendment rights of the staff member who faces threats, discipline, and even termination for speaking in support of Mr. Winfield, and who stands in Mr. Winfields shoes for purposes of the First Amendment. -14- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 14 of 16 PageID #: 14 PRAYER FOR RELIEF 48. Plaintiff seeks this Courts declaratory judgment that the actions of Defendant Steele and those who act under his authority, in obstructing the development of Mr. Winfields clemency petition by pressuring a key witness to remain silent, violates the Fourteenth, Eighth, and First Amendments, and that the state would violate these same rights of Mr. Winfield if it executed him without affording him the opportunity to petition for clemency with the benefit of any and all voluntary witnesses. 49. Plaintiff seeks this Courts permanent injunction that Defendant Steele refrain from, and direct his subordinates to refrain from, any actions that discipline, threaten, chill, or otherwise coerce any employee of the Potosi Correctional Center from making a statement on behalf of Mr. Winfields petition for executive clemency. 50. Plaintiff seeks this Courts order staying his scheduled execution until Mr. Winfield has been granted the opportunity to present a complete application for clemency free of state actors interference as described in this complaint. 51. Plaintiff seeks this Courts order granting him reasonable attorney fees pursuant to 42 U.S.C. 1988 and the laws of the United States as well as for costs of suit, and such further relief as this Court deems just and proper. -15- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 15 of 16 PageID #: 15 Respectfully submitted, /s/ Joseph W. Luby Joseph W. Luby, Mo. Bar. 48951 Death Penalty Litigation Clinic 6155 Oak Street, Suite C Kansas City, MO 64113 816-363-2795 (phone) 816-363-2795 (fax) jluby@dplclinic.com /s/ Jessica Sutton Jessica Sutton, Mo. Bar 63600 Death Penalty Litigation Clinic 6155 Oak Street, Suite C Kansas City, MO 64113 816-363-2795 (phone) 816-363-2799 (fax jsutton@dplclinic.com Attorneys for Plaintiff -16- Case: 4:14-cv-01022 Doc. #: 1 Filed: 06/03/14 Page: 16 of 16 PageID #: 16 uprtm Qlrnzrt ul 1Lwuri zn baur August 20, 2008 State of Missouri, ) ) No. SC78864 Respondent. ) vs. ) ) Dennis Skillicorn, ) ) Appellant. ) Amended Order Appellants execution date has been set for August 27, 2008. Appellants motion to vacate execution date on account of State agents obstruction of clemency advocacy asserts that his federally-appointed clemency counsel have been unable to obtain interview with prisoners and prison staff for the purpose of preparing a thorough clemency petition to the governor. In support of his clemency petition Appellants attorneys are entitled to gather information from prisoners and prison staff, on a voluntary basis, consistent with the institutions need for security and the individual interviewees need for safety. Now, therefore, it is hereby ordered that the order setting the August 27, 2008, execution date is vacated; and It is further ordered that Appellants execution will be set on the first available date following the expiration of thirty days from August 27,2008. It is further ordered that Appellants motion for stay of execution pending petition for writ of habeas corpus is overruled. DaytoDay Michael A. Wolff Acting Clief Justice Exhibit 1 Case: 4:14-cv-01022 Doc. #: 1-1 Filed: 06/03/14 Page: 1 of 1 PageID #: 17