By Tony Rizzo
The Kansas City Star
KANSAS CITY, Mo. — A bullet in the brain took the life of southern Missouri Deputy Sheriff Christopher Castetter.
A chunk of wood in the brain may spare the life of Cecil Clayton, the man who killed him.
At least Clayton’s attorneys and supporters hope so.
With a March 17 execution date looming, attorneys for Clayton are arguing that residual brain damage from a 1972 sawmill accident has rendered him incompetent and he therefore cannot be executed.
Although the state is contesting that claim, Kansas City defense attorney Cyndy Short has prepared a clemency petition on Clayton’s behalf and believes Clayton fits that incompetency bill.
“He did not seem to be emotionally tracking on what was going on,” she said of a recent meeting with Clayton at the Potosi Correctional Center. “It was very inconsistent with someone looking at a pending execution.”
A psychiatrist and psychologist hired by the defense have confirmed mental incompetency findings for Clayton, who at age 74 is the oldest person serving a death sentence in Missouri, she said.
Attorney Elizabeth Unger Carlyle, who represents Clayton on pending federal and state appeals, wrote in a recent court filing that setting an execution date before affording Clayton a competency hearing is a “blatant disregard to his right to due process of law.”
Missouri law and rulings by the U.S. Supreme Court prohibit executing someone who is mentally incompetent and unable to assist his attorneys in his defense.
The Missouri law reads in part: “No person condemned to death shall be executed if as a result of mental disease or defect he lacks capacity to understand the nature and purpose of the punishment about to be imposed upon him.”
But Missouri provides no constitutional way for a defendant to obtain a competency determination, Carlyle said.
The law does say that the director of the Missouri Department of Corrections, but not an inmate, can initiate legal action to determine competency “if the director thinks he has reasonable cause to believe an inmate is unfit for execution due to mental disease or defect,” according to court documents filed by state attorneys.
Last year, the corrections director did just that.
But that psychiatrist determined “no reasonable cause” existed to find Clayton incompetent.
The crime that put Clayton on death row occurred in November 1996 in Barry County in southwest Missouri after a disturbance between Clayton and a woman he had dated.
Castetter, a Barry County deputy, was dispatched to investigate a prowler around the home of one of the woman’s relatives.
When backup officers arrived, they found Castetter still seat-belted in his patrol car with his handgun holstered. He had been shot in the head. He died at a hospital.
When questioned, Clayton denied involvement but also said, “He shouldn’t have smarted off to me.”
Then-Barry County Prosecutor David Cole, now a lawyer in private practice, said Clayton’s trial attorneys used a diminished capacity defense based on the damage to his brain from the 1972 sawmill accident.
During surgery to extricate a piece of wood embedded in Clayton’s head, doctors removed part of the frontal lobe of his brain.
But Cole said that “evidence was overwhelming” against Clayton, and jurors rejected the diminished capacity defense.
Cole said that the deputy “was a uniform that got in the way” of Clayton.
“It was a terrible tragedy,” he said. “A law enforcement officer gunned down in the line of duty.”
Cole said he believed at the time that Clayton deserved a death sentence.
“Nothing has happened since then to change my mind,” he said.
Members of Castetter’s family, contacted through the Missouri attorney general’s office, declined to comment for this story.
Barry County Sheriff Mick Epperly, who was the sheriff-elect when Castetter was killed, recalled his former co-worker as a good deputy.
He said he does not plan to attend Clayton’s execution but hopes it brings some sense of justice for Castetter’s family.
“For what he did, we can’t even stand the guy,” Epperly said.
Clayton’s attorneys say that his mental capacity has steadily diminished during his incarceration.
His IQ most recently was measured at 71, a low level and 29 points below average. In addition to the brain injury, he has dementia and other mental health issues.
“He is not simply incompetent legally; he would be unable to care for himself or manage basic self-care, were he not in a structured environment that takes care of him,” according to a doctor who recently examined him. “He can shower, groom, eat, walk; it is his comprehension, judgment, memory, limited intelligence and social deficits that plague him.”
Clayton’s daughter, Jena Clayton, made a video statement for the clemency petition, saying the family wants a fair hearing on the issue.
“He is brain-damaged, and talking with him is like talking to a child,” she said. “I do not believe we are the kind of country that executes the disabled.”
Short said that “it’s a dangerous place for us to go” to try to convict someone of a crime when they are unable to understand what’s happening to them and can’t help their lawyers to defend them.
“It’s equally dangerous to execute them,” Carlyle said.