ÁñÁ«ÊÓƵ

But there are times when a loss creates opportunity. So it was for Missouri Supreme Court Judge Robert Eldridge Seiler in October 1981. Seiler, who served 15 years on the state’s top court, found himself on the losing side of an appeal of a capital murder conviction.

The defendant in the case, Michael White of St. Louis, had been convicted in 1980 of capital murder in the 1979 shooting death of Susie Hawkins. White wasn’t present when Hawkins was killed. A teenager named Hardy Bivens killed her, using White’s gun. White had been driving Bivens around that day, and was outside in a car when the murder took place. According to testimony at his trial, White had no idea Bivens was going to kill anybody.

At trial, though, the judge told the jury that White’s state of mind didn’t matter. To convict him of capital murder, a potential death penalty offense, all the jury had to do was find that Bivens had acted with evil intent and premeditation. The jury could apply Bivens’ intent to White, the judge instructed them.

When the case came before the Missouri Supreme Court, Seiler had a problem with that standard. His dissent in the case pointed to the clear fallacy in that logic:

“Beyond question,� Seiler wrote, capital murder “requires a culpable mental state, and evil intent. This necessarily must be true of one who aids in a capital murder as well as of the one who actually does the killing. It is unthinkable that it would require less in the way of a culpable mental state to be convicted as an aider in capital murder, where the death penalty is possible, than it does to be convicted as the principal.�

White was sentenced to life without the possibility of parole. Today, he’s 61, and he’s still behind bars at the Jefferson City Correctional Center. Meanwhile, Bivens, the man who actually did the crime, is a free man. That’s because he was 17 at the time of the murder, just a few months younger than White, and the courts have realized over time the cruelty of locking people up for their entire lives for crimes committed when they were children.

The courts, like the brains of children, evolve over time. So it is for Seiler’s dissent. In 1993, in another murder appeal, State vs. O’Brien, the Missouri Supreme Court decided that Seiler was right. It changed case law to require a jury to find premeditation in an accomplice before it could convict such a defendant of murder.

It’s the only logical ruling, says Kansas City defense attorney Kent Gipson. Making it easier to convict an accomplice compared to the person who actually committed the crime makes no sense. Neither does this, Gipson says: Last month, despite the change in case law, the Missouri Supreme Court dismissed his motion to “recall the mandate,� which if approved would have led to White being released from prison.

“It’s baffling to me,� Gipson says. “I can’t imagine a more clear-cut case. It ought to be open and shut.�

In the O’Brien ruling, the court specifically says it has overturned its previous ruling in White’s case. When attorneys search the White case in legal databases, it now has a red flag by it, indicating it is no longer good law. But, according to the Missouri Supreme Court, the bad law is enough to keep White in prison.

The injustice weighs heavily on White, who has always maintained his innocence.

“I came to prison at 19 years of age, a school kid, working 40 to 60 hours a week after school, never been in trouble before and the Missouri Supreme Court has decided that 44 years later I deserve to continue to pay with my life for a crime they’ve known from day one I didn’t commit,� he told me in an email. “Everything about this case was wrong from the beginning.�

For Gipson, this renews an ongoing battle with Missouri’s top court, where even innocence is often not enough to free a defendant. In a variety of recent Missouri cases involving actual innocence — Kevin Strickland, Lamar Johnson, Christopher Dunn, Michael Politte — the court has questioned the process by which defense attorneys and prosecutors seek to overturn convictions, and thus delayed justice by months or years.

This week, Gipson plans to file a habeas corpus petition on White’s behalf in Cole County, since his direct appeal to the Supreme Court failed. It’s a longer process that could take another couple of years to reach the court again, and allow the judges to determine whether Seiler’s four decades old dissent will finally be used to free the man who inspired it.