Moss Testifies in Clemons Case: White Prosecutor Re-wrote Police Report, Withheld Evidence in Black Man's Murder Trial

From [HERE] Fittingly, for a prosecutor who was very sluggish in producing evidence to defense lawyers in the original Reginald Clemons trial, Nels Moss was very slow to appear on the witness stand yesterday. Josh Levine, lead attorney for Clemons in the evidentiary hearing being conducted by the Special Master in the case, called Moss to the stand, but Judge Michael Manners was forced to call a lengthy recess before a sheriff could produce the witness. Moss then remained on the stand most of the afternoon.

At issue were two pieces of evidence in the Clemons case that Moss failed to produce to defense lawyers in his 1993 jury trial in St. Louis: a draft police report that Moss annotated by hand (mostly instructing police to omit information damaging to Moss’ star witness, Thomas Cummins) and a forensic report on the corpse of the only victim retrieved from the river in the 1991 Chain of Rocks Bridge Case.

The draft police report dated May 6, 1991 contains testimony from Cummins and experts who visited the crime scene the night of the apparent murders of Robin Kerry and Julie Kerry on April 4, 1991. Though by May 6 Cummins no longer was considered a suspect, the draft report is full of evidence gathered when Cummins was the only suspect.

Moss repeatedly wrote “omit” on the margins of the police report, apparently ordering the detective sergeant preparing the final report to omit evidence that would be damaging to the person who was by then Cummins’ “star witness,” as Levine noted in court. In fact, the final police report prepared on May 31, 1991 did omit that evidence and made many other changes ordered by Moss.

The May 6, 1991 draft police report includes damaging elements from Cummins’ confession, which he later recanted, claiming it was coerced (the City of St. Louis settled Cummins’ claim of police brutality for $150,000 after Clemons was sentenced to death).

Police reported that Cummins originally claimed he tried to have sex with Julie Kerry, who was his cousin, then pushed her off the bridge when she refused. Cummins then claimed he argued with Robin Kerry and “accidentally pushed her in the river.”

Moss ordered this report revised to state that detectives suggested to Cummins his intentions were sexual but “in his mind the overt act was not sexual,” as the final police report introduced as evidence at trial states. The final report states Cummins blacked out and assumed Robin jumped in the river to save her sister, not that he pushed her in.

The May 6 draft report also includes testimony from witnesses and experts on the crime scene who doubted the truth of statements Cummins made the night of the incident. It notes that Cummins “hair appeared clean and well groomed” though he claimed initially that he had been ordered to jump in the river by Clemons and his codefendants. It also noted that combing his hair “did not remove any river silt.” Experts on the scene also said Cummins would have broken bones and likely drowned if he jumped from the bridge, though he was not injured.

Moss ordered police to omit all this from the final police report, and it was omitted.

Indeed, Cummins’ apparently false claim that he jumped off the bridge and tried to save his cousins in the swirling river was used by Moss melodramatically at trial to portray his star witness as a hero.

The May 31, 1991 police report was introduced as evidence at trial; the May 6 draft police report with Moss’ annotations was withheld, though defense lawyers repeatedly asked Clemons for “all exculpatory evidence,” all evidence likely to help the defense case, and specifically asked for the annotated May 6 draft report in a pre-trial motion.

Levine quoted from Moss speaking at that pre-trial hearing, saying untruthfully, “Look at the (final) police report. It’s in there. Nothing was edited. Nothing was omitted.”

As Levine argued, the annotated May 6 draft police report that was withheld from trial was crucial evidence showing that the prosecution’s “star witness” was an unreliable witness who kept changing his story. He said it also showed that the prosecutor was willing to tamper with evidence to improve his case.

Moss said he asked police to omit Cummins’ statements because he “doubted such statements had been made.”

Levin responded, “In your experience, was it routine for St. Louis police to put things in reports that are not accurate?” Moss said no.

Levine said, “Somebody wasn’t telling the truth, either Thomas Cummins or the police.”

Of course, other than Cummins, the state’s most damaging witnesses in the Clemons trial were St. Louis police.

Levine said, “Either the detectives or your star witness perjured themselves.”

Clemons remains sentenced to death for the murders of the Kerry sisters. He was convicted as an accomplice at the age of 19 with no prior criminal record. Clemons claimed he confessed – to rape of one girl, but not murder – under coercion, alleging identical brutality that Cummins claimed.

On June 12, 2009, the Missouri Supreme Court ordered a Special Master to review the Clemons case and conduct a new evidentiary hearing less than two weeks after the same court has ordered his execution. That execution was halted by a federal stay because Clemons’ had a federal appeal pending.