Messenger: Jury foreman pleads for leniency in case where law, not facts, dictated outcome | Tony Messenger

Jason Cummings voted to convict an “innocent” man of second-degree murder.

So did the other jurors he led as foreperson in a trial in St. Louis in February.

That’s what Cummings wrote to Circuit Court Judge Katherine Fowler in a letter asking her to go easy when she sentences 52-year-old Robert D. Smith on May 10.

“The jury’s hands were tied and had no choice but to convict an innocent man of second degree murder,” Cummings wrote in his April 27 letter. “This felt so wrong and still feels wrong … . While I know you did not create the law, I can firmly say that this particular law is completely broken, and as a result, an innocent man will lose a substantial portion of his life, simply due to a mistake that was made 20 years prior . ”

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The law in question is known as felony murder. It is often charged when a person — say somebody robbing a bank — kills another person in the process of committing another felony. The statute that allows a felony murder charge in Missouri (which is charged as second-degree murder) does not allow a person to plead self-defense. The theory behind it is that the person committing a home invasion, for instance, can’t get away with murder if he shoots a homeowner after the homeowner pulls a gun to defend their home.

Robert Smith, 49, of St. Louis was charged Friday, Nov. 30, 2019 with murder and armed criminal action in the Nov. 28, 2019 shooting of Todd Toston Sr., 69, of St. louis

That’s not what happened in Smith’s case. In November 2019, he was cooking in the kitchen of the Hamilton Heights home he shared with two other men. One of the men, Todd Toston Sr., came at Smith with a knife and started stabbing at him. Toston, according to court records, was high on drugs, including cocaine and fentanyl.

Pinned to the ground, Smith grabbed a gun he carried for protection and shot Toston, who died.

Circuit Attorney Kim Gardner charged Smith with first-degree murder. But when it became clear before trial that public defender Josh Lohn would argue self-defense, and likely had the evidence to win such a case, the circuit attorney’s office added the felony murder charge.

That’s because 20 years ago, when he was dealing with his own struggles with substance abuse, Smith was convicted of felony driving under the influence. That means he was a felon in possession of a gun, which, under Missouri law, would allow the felony murder charge.

“The prosecutor effectively used the felony murder law as an end-run around a legitimate self-defense claim and the shameful thing is that the law allows him to do it,” Lohn says. “This law is bad. It just is. It erodes self-defense rights and allows for miscarriages of justice.”

Steven Drizin agrees. He’s the co-director of the Center for Wrongful Convictions at Northwestern University’s Pritzker School of Law. Drizin says he states open themselves to prosecutor abuses if they do n’t limit the use of a felony murder charge to only the most egregious crimes.

“Most states have recognized how that kind of felony murder law divorces criminal liability from criminal blameworthiness and results in sentences that are disproportionate to the defendant’s crime,” Drizin says. “This is really the worst of both worlds. I would bet that very few prosecutors would do what happened here.”

Of the countries that created their judicial systems based on the old English common law, the United States is the only one left that still has a felony murder charge on the books. Various legal advocates have been arguing for years — with some success — that it should be limited in its use. Illinois, for instance, added more restrictions to the felony murder rule last year.

Cummings’ letter to the judge makes it clear the jury believed that Smith was acting in self-defense, but because he committed a DUI two decades ago, that defense could not be applied to the felony murder charge. He and his fellow judges are hoping for probation, so Smith doesn’t go to prison. He has been held in jail with no bond since his arrest in November 2019.

When it comes to sentencing, had the shooting place a year later, probation wouldn’t even be a possibility, because the Missouri Legislature in 2020 made the punishment for felony murder even worse than it was already. Smith faces up to life in prison for a crime that the jury says he didn’t really commit.

“The reaction of the jurors in this case should send a signal to the General Assembly that the law as it exists on the books in Missouri makes no sense,” Drizin says. “It needs to be changed.”


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