IN THE CIRCUIT COURT OF TEXAS COUNTY STATE OF MISSOURI BRAD JENNINGS Petitioner. v. Case No.: 16TE-CC00470 JEFF NORMAN Respondent. PETITIONER BRAD JENNINGS MOTION FOR RELEASE PENDING FURTHER PROCEEDINGS COMES NOW, Petitioner Brad Jennings, by and through his counsel, Robert Ramsey and Elizabeth Ramsey, and moves this Court pursuant to Missouri Supreme Court Rules 33.01, 91.11 and 91.14 for its order setting bail, and states the following in support thereof: 1. This case is a habeas corpus proceeding in which this Court ordered the convictions of Brad Jennings for murder in the second degree and armed criminal action vacated on February 8, 2018. 2. Rule 91.11 provides that Pending determination of the issues, the court may commit the restrained person to the custody of the sheriff to make such other orders pertaining to the care or custody as circumstances may require. Mo. Sup. Ct. R. 91.11 3. Rule 91.14 provides that If the person for whose relief a writ of habeas corpus has been issued is charged with a bailable offense, the court in which the answer is to be filed shall set conditions of release pursuant to Rule 33. Mo. Sup. Ct. R. 91.14 (emphasis added 1
4. This Court s order granting habeas corpus relief returns Mr. Jennings to the status of a pretrial detainee who is eligible for release. See, e.g., Irvin v. Dowd, 366 U.S. 717, 728 (1961. (the Writ dissolves the conviction, but the underlying indictment remains in effect. 5. Rule 33.01(a provides that any person charged with a bailable offense shall be entitled to release pending trial. (Mo. Sup. Ct. R. 33.01, emphasis added The Rule further establishes a presumption that (the court shall in all cases release the accused upon his written promise to appear, unless the court determines that such release will not reasonably assure the appearance of the accused. Rule 33.01(d. 6. In determining what conditions of release will reasonably assure appearance, the court shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused s family ties, employment, financial resources, character, mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings. Rule 33.01(e 7. Rule 33.01(d states a presumption that The court shall in cases release the accused upon his written promise to appear, unless the court determines that such release will not necessarily assure the appearance of the accused. 8. In Mr. Jennings case, these factors weight heavily in favor of his release pending the outcome of these proceedings in the following respects: a. Although he is accused of serious crimes, this Court found the evidence against Petitioner to be thin, and weak and specifically that the blood evidence 2
used against Petitioner, the only forensic evidence, did not constitute strong credible evidence of guilt. (Order, pg. 14-16 b. Prior to his incarceration, Mr. Jennings lived almost his entire life in Buffalo, and only spent one year outside of Missouri to attend school in Kansas. His entire life, including his farm and business, were grounded in Buffalo. c. His sister, two children granddaughter, and his mother all still live in Buffalo. He also has three cousins and one aunt in Buffalo. d. Mr. Jennings mother is elderly and in poor health. He requests this Court grant his release on bond pending further proceedings in large part so that he can spend as much time as possible with his mother while it is still possible for him to do so. e. If released on bond, Mr. Jennings plans to reside on his farm with his adult daughter Amanda, who lives there presently. His sister and mother live only 7 miles from the farm. f. He enjoys substantial support among his family and friends in and around Buffalo, Missouri. His close friends and family all reside within the state, and most within Buffalo itself. g. Before his conviction Mr. Jennings had no serious or extensive criminal history and none involving violence. He had no felony convictions, and only one misdemeanor conviction for careless and imprudent driving in 1994. h. Mr. Jennings has always proclaimed his innocence. He also fully cooperated with the investigation against him. He came in to the station to be interviewed 3
when asked, answered every question asked of him, and gave consent for his home to the searched. i. Mr. Jennings was released on bond pending his trial only a few days after his arrest. He remained on bond for over a year. He never missed a court appearance and committed no crimes for the entire period (over a year before his conviction. j. Counsel for Petitioner, Elizabeth Ramsey, spoke with personnel at the South Central Correctional Center on February 8, 2018. Counsel was informed that Mr. Jennings has had a total of only three (3 minor conduct violations in entire 9-year stay in prison. These violations were summarized to counsel as follows: i. Disobeying an order to not take an extra scoop of ice ii. Disobeying an order not to return to his cell to obtain ice iii. Smoking in his cell k. Counsel was also informed during this phone call that Mr. Jennings qualified and is a part of the prison s Honor House for good conduct. SUGGESTIONS IN SUPPORT OF MOTION FOR RELEASE The issue of release in this case compares favorably with that in the case of Dale Helmig. Judge McElwain of Dekalb County entered a writ of habeas corpus for Mr. Helmig on November, 3 2010. Shortly following the issuance of the writ, Helmig filed a Motion for Release pursuant to Rule 91.14, which was denied by the Circuit Judge based upon his belief that the State intended to file a writ of certiorari to review his order. Once the State filed their writ, Mr. Helmig filed a Motion for Release with the Missouri Court of Appeals, Western District. The 4
Court granted his motion and ordered the matter remanded to Judge McElwain with instructions to order the immediate release of Mr. Helmig. A copy of the Court s order in its entirety is attached as Petitioner s Exhibit A. The Missouri Attorney General s Writ of Certiorari was later denied, and Mr. Helmig s writ of habeas corpus upheld in State ex rel. Koster v. McElwain, 340 S.W.3d 221, 258 (Mo. Ct. App. 2011. In finding that Rule 91.14 was applicable to Mr. Helmig and ordering his release, the Court noted: The State has opposed Helmig s Motion for Release Pending Further Proceedings. However, the State has not offered any compelling or persuasive argument to suggest that Helmig should not be afforded the rights to which an accused is otherwise entitled under Rule 33. Moreover, the State s argument that Rule 91.14 does not apply to an individual who secures a writ of habeas corpus following conviction and incarceration is not persuasive, and, by the analysis herein noted, is expressly rejected. IT IS THEREFORE ORDERED that Helmig s Motion for Release Pending Further Proceedings is hererby GRANTED Respondent is instructed to enter such orders and take such actions as are necessary to result in the immediate release of Petitioner Dale Helmig. Ex A, Pg 9-10. The Court rejected the argument that the writ of certiorari operates as a stay of a writ of habeas corpus, ruling that, Rule 30.17 provides that an appeal by the state shall not stay the operation of an order or judgment in favor of defendant. The rule continues to expressly exclude from the directive of no stay the State s appeals from judgments in favor of a movant under Rules 24.035 and 29.15 a writ of habeas corpus issued pursuant to Rule 91 is not expressly excluded from the scope of Rule 30.17, The Court further held that construing a writ of certiorari as a stay on the right to make bond is internally contradictory to the rules: If a writ of certiorari were permitted to stay a writ of habeas corpus as to summarily prevent consideration of a motion for release pending further proceedings, Rule 91.14, which directs a court to set conditions of release pursuant to Rule 33 for a person in whose favor a writ of habeas corpus has been issued, would be rendered illusory. (Ex A, pg. 4,5 5
Unlike the Court in Helmig, the court here did not make a determination of actual innocence. However, in determining that Petitioners who have been granted a writ of habeas corpus are eligible for release pursuant to Rule 91.14, the Court in Mr. Helmig s case used no rationale nor cited any rules requiring a finding of actual innocence. At most, the Helmig court s reference to Mr. Helmig s actual innocence is dicta. Like in Helmig, the State here can show no reason why Mr. Jennings should not be afforded the same rights as any other pretrial detainee. A writ of certiorari filed by the State, does not justify prolonging imprisonment now that [the] Court has found that [the defendant] was convicted in violation of his federal right to due process of law and must be tried again with due process removing any presumption as of now that [the defendant] is guilty as charged. Cagle v. Davis, 520 F.Supp. 297, 312 (N.D. Tenn. 1980 As a result of the writ of habeas corpus, Jennings is charged with second-degree murder and armed criminal action, but his conviction was vacated. The filing of an information charging a capital offense does not preclude release on bail. State ex rel. Thomas v. Crouch, 603 S.W.2d 53, 537 (Mo. Banc 1980 (citing Mo.Const. art I., section 20. Therefore, Mr. Jennings is charged with a bailable offense and Rule 91.14 says the court shall set conditions of release pursuant to Rule 33. Rule 33.01 creates a presumptive entitlement to release. See, e.g. United States ex rel. Barnwell v. Rundle, 461 F.2d 768, 770 (3 rd Cir. 1972 (construing the nearly identical language of Fed. R. Crim. Pro 23.01. Justice Benjamin Cardozo explained the rationale of such a presumption: It would be intolerable that custodian adjudged to be fault, placed by the judgment of the court in the position of a wrongdoer, should automatically, by a mere notice of appeal prolong the term of the imprisonment, and frustrate the operation of the historic writ of liberty. The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty. *** Certain it is, at least, that the writ may not be 6
thwarted at the pleasure of the jailer. *** Little would be left of this, greatest of all writs *** if a jailer were permitted to retain the body of his prisoner during all the weary processes of an appeal*** People ex rel Sabatino v. Jennings, 246 N.Y. 258, 158 N.E. 613, 63 A.L.R. 1458, 1459-60 (1927 (emphasis added Mr. Jennings lack of serious criminal history and the fact that the trial court permitted him to remain free on bail for over a year before his conviction weighs in favor of his release at the present time. There are no facts suggesting that he presents a danger to society that were not before the trial court at the time Mr. Jennings was out on bond before his original trial. He committed no crimes while released and made each and every court appearance required of him. He has substantial ties to his community in Dallas County including friends, family and farm property. All of the factors that courts traditionally consider in determining release weigh in favor of allowing Mr. Jennings to be free during further proceedings. WHEREFORE, for the foregoing reasons, counsel for Mr. Jennings respectfully moves this Court to enter its order releasing him on bail pending further proceedings, including his possible retrial, and to grant such other relief as the Court deems just and equitable. By: Respectfully submitted, /s/ Elizabeth Ramsey Elizabeth A. Ramsey #68342 Robert B. Ramsey, #28312 1010 Market St., Suite 1520 St. Louis, MO 63101 314-651-4757-Phone lizramseymcintosh@gmail.com Attorneys for Petitioner 7
Certificate of Service The undersigned counsel hereby certifies that a true and correct copy was delivered electronically through Case.net efiling system on this day February 8, 2018 on counsel for Respondent. /s/ Elizabeth Ramsey 8