1. Accessory participation in the crime; murder committed by another person. Trial Judge noted:
"The defendant was an accomplice in the capital felony committed by another person and (her) participation was relatively minor." (The murder was committed by Ms. Henderson’s former boyfriend, Greg Cruzen.)
2. No prior criminal history; exceptional rehabilitation efforts (see complete listing under "Rehabilitation.); employment offers. Trial Judge noted:
"The defendant has no significant history of prior criminal activity." Prison records document exceptional behavior and rehabilitation. Ms. Henderson has been offered several employment opportunities upon release.
3. Childhood sexual abuse, spousal abuse, and other legal defenses and/or mitigating circumstances not available at the time of her conviction.
Missouri House Bill 583, passed on May 18, 2007 (now known as Missouri Statute 217.692), provides eligibility for parole after serving fifteen years for offenders given the same sentence Ms. Henderson received and whose trials commenced prior to December 31, 1990, as hers did. However, HB 583 is limited to a single criminal act: the homicide of a spouse or domestic partner. HB 583 is relevant to Ms. Henderson's case in that it recognizes that a history of physical or sexual abuse is relevant to certain crimes and can be used as an affirmative defense. Ms. Henderson meets all the criteria for release with one notable exception: she was not convicted of the homicide of a spouse or domestic partner (it was her co-defendant Cruzen who was one of her abusers).
4. Documented diminished mental capacity as a result of the history of abuse (medical reports prior to and after the crime). Judy's attorney knew of these medical records and suicide attempts but did not use them in her defense or in the penalty phase of the trial after she had been convicted (see details below, footnote 1). 5. Legal issues: Ms. Henderson’s co-defendant, Greg Cruzen, was charged with firing a .38 pistol, causing the death of Harry Klein. State’s witness Don Littlejohn testified Cruzen told him he had shot Klein “three or four times” with a .38. Littlejohn testified that Ms. Henderson admitted that she had agreed to help with a robbery but did not participate in the shooting and that she was wounded by a bullet that passed through Mr. Klein. Defense attorney James McMullin represented both Judy and her co- defendant Greg Cruzen, resulting in a "conflict of interest" as defined by law. A conflict of interest occurred when the prosecutor offered Judy a plea bargain in exchange for her testimony against Cruzen. Following the pre-trial conference on June 25, 1982, during which she learned that the State could seek the death penalty, Judy requested that McMullin seek a plea agreement. This occurred just three days before her trial was scheduled to begin. McMullin acknowledged that he had discussed a plea bargain in the prosecutor's office on the day Judy asked him to negotiate one. He testified (27.26 Post Conviction Appeal testimony) that he could not recall if he approached the prosecutor or the prosecutor approached him. Asked if Ms. Henderson had requested him to inquire about a plea bargain, he answered: "I don't recall that. I don't think so … She may have asked me to do it, I don't know." Prosecutor Tom Mountjoy testified that McMullin approached him about a plea bargain on the very day Judy said she requested that he do so. Mountjoy stated (27.26): “[McMullin] made the comment in the office when I made the offer to him that he would have to withdraw from representation on both Miss Henderson and Mr. Cruzen if she would accept that." Although Judy accepted the offer, McMullin did not withdraw as attorney for either of his two defendants. By the time he returned to Prosecutor Mountjoy’s office with her acceptance of the offer, it had been withdrawn. While McMullin was discussing the plea bargain with Judy, Prosecutor Mountjoy was meeting with a third participant in the crime, Don Littlejohn. Littlejohn was granted immunity in exchange for his testimony against Judy and Cruzen. After her conviction, when she was represented by an independent attorney acting on her behalf and in her best interest, Judy sent word to Prosecutor Mountjoy that she was still willing to testify against Cruzen. Prosecutor Tom Mountjoy testified that the plea offer (before and after her conviction) was a reduction of the charge from capital murder to first degree murder, an offense that permitted parole after about ten years, assuming a good prison record. On March 31, 1993, Taney County Prosecuting Attorney, Don Clough, wrote a letter to Governor Mel Carnahan in which he stated his support for a commutation of sentence for Judy. In that letter he wrote:
"I had an agreement worked out with Prosecutor Tom Mountjoy that Judy would testify against her co-defendant and boyfriend, and that the allegations in the 27.26 motion would be admitted by the State and her conviction would be set aside. She would then plea to an amended charge, receive a life sentence and would probably be paroled in about ten (10) years. Unfortunately, at that time, I withdrew from representing her and she obtained new counsel. I am not exactly certain what happened after that, but I do know that Judy did not testify for the State and her conviction was never set aside. "Having fully investigated this case when I represented Judy, I know that her part in the murder was minimal when compared to her boyfriend and to the State's main witness at the trial of the boyfriend." ("the State's main witness" to whom Clough referred was Don Littlejohn.) "If you will please note, in her clemency packet, along with other evidence, there is a cassette taped transcript of the oral arguments from Judy's 8th Federal Circuit Court Appeal. One of the three (3) judges on the panel asked the Assistant Attorney General, 'if he felt there was a possibility of 'sandbagging' going on in her case?' The Assistant Attorney General answered, 'that is a possibility.'"
This is the same plea agreement Ms. Henderson accepted prior to her trial. According to testimony by Clough, Mountjoy, Detective Alexander, and Judy, Mountjoy and Clough reached an agreement about leniency for Judy in exchange for her testimony against Cruzen. That meeting was tape recorded. During the 27.26 Post Conviction Appeal, the Judge erroneously addressed attorney Ben Upp as “[Ms. Henderson's] attorney.” Every person who testified about the matter (Prosecutor Mountjoy, Ben Upp, McMullin, and Ms. Henderson) said Upp was not her attorney, and he was never listed as her Attorney of Record. He ran errands for McMullin (from Kansas City) and gave him an office in which to work. Only McMullin acted as her attorney, and he did so while he was also representing Cruzen. The Judge’s erroneous address to Upp resulted in a flawed transcript upon which all subsequent Appeals relied. Because of this major flaw, Ms. Henderson's conviction was upheld in spite of a clear conflict of interest.
1. Documented diminished mental capacity as a result of the history of abuse.
Ten months before the crime Judy Henderson was hospitalized for a suicide attempt. Her condition was summarized as follows: "… the constellation of answers were more indicative of a type of borderline psychosis. Typically, such a person does not look psychotic but their daily function varies considerably and when placed under any degree of psychological stress they may cease to test reality adequately." On September 7, 1981, just two months after the crime Ms. Henderson again attempted suicide. Following an intentional drug overdose she was air lifted to a Fairbanks hospital unconscious. The admitting nurse noted: "…bruises on face and hands" and "OD–had fight…boyfriend…" After she recovered from the overdose, she refused to speak with a counselor. The treating physician noted: "32 [Year Old white female] took O.D. of Elavil 'to kill myself.'" "Politely but firmly resisted any inquiry on my part—stated 'the only person I talk to is my boyfriend'. I would suspect that their relationship was a major factor in the O.D." (Medical Records available upon request.) Attorney McMullin, was aware of both hospital admissions and the psychological evaluation from the 1980 admission, yet he did not present them during her trial or prior to her sentencing as additional mitigating circumstances. In fact, McMullin requested that these two suicide attempts, which he characterized first as "drug overdoses," not be mentioned by the Prosecution during Ms. Henderson's criminal trial. During the pre-trial conference, Judge Keet granted that request as noted on the Docket Sheet on June 25, 1982, and in the pre-trial conference transcript. Judge Keet did not disclose this knowledge in his Trial Judge's Report, nor was her mental condition noted under “Mitigating Circumstances.” Judge Keet did not request a pre-trial psychological evaluation to determine if Ms. Henderson was competent to make appropriate decisions regarding her defense. She had been charged with capital murder, and Judge Keet permitted the State to seek the death penalty knowing of her two suicide attempts. As demonstrated by her choices and the outcome of those choices, Ms. Henderson was not competent to make appropriate decisions regarding her defense. Ms. Henderson's mental condition before and after the crime, diagnosed as "a type of borderline psychosis," was never presented at any appeal hearing subsequent to the criminal trial. It is now time prohibited.
2. Documented evidence that Ms. Henderson was not directly responsible for the death of the victim, Harry Klein.
Trial testimony by expert witnesses - medical examiner and lab technician - confirmed that Ms. Henderson could not have fired any of the bullets that struck Mr. Klein. ***
Additional indicators that Judy Henderson has earned Executive Clemency:
1. Psychological fitness:
Dr. Daniels, a psychiatrist contracted by Probation and Parole on July 13, 2004, began a psychological evaluation which concluded on August 11, 2004, attesting to Ms. Henderson's stability and readiness to become a productive member of society. (Reports in P&P files.) Ms. Henderson also received psychological testing during a June 23, 2005, two-hour consultation in St. Joseph, Missouri, by psychiatrist Dr. Hogan, an independent psychiatrist hired, she said, by the Board of Probation and Parole to conduct what she described as a "Pre- Release Evaluation." (Report in P&P files.)
2. Preparedness for gainful employment (see "Rehabilitation"). 3. Willingness to testify for the prosecution:
Ms. Henderson was willing before and after her conviction to testify for the prosecution against Cruzen. Littlejohn received immunity for his testimony, while Cruzen - who committed the murder - was acquitted. Ms. Henderson, the least culpable of the three is the only person convicted in the death of Harry Klein.
4. Excessive sentence made more egregious by current sentencing for similar crimes:
Ms. Henderson’s sentence was excessive for a person who did not personally cause the death of the victim and who did not know the victim would be killed. Her sentence was extremely disproportionate to men convicted of the same crime. It ignores the fact that her attorney also represented her co-defendant at the time he was supposed to represent her. It overlooks the mitigating circumstances from her childhood, her marriage, her relationship and fear of Mr. Cruzen, and her defense attorney's abysmal performance. It ignores her offer to cooperate with the prosecution of Cruzen for the shooting of Mr. Klein and Don Littlejohn for conspiring with Cruzen in the planning of the crime.
Judy Henderson turned sixty-five on July 1, 2014. She has served nearly thirty-three years of a “Life without Parole for Fifty Years" sentence. She has reason to believe that Governor Mel Carnahan was prepared to commute her sentence to life with parole in 2000 but died tragically before making that commutation official. The “Pre-release evaluation” in June 2005 suggests the Board of Probation and Parole recommended a commutation of sentence in 2004.
Thirty-three years for being “an accomplice in a capital felony committed by another person and her participation was relatively minor” should be sufficient to satisfy the most ardent supporter of “law and order,” especially considering the “other person” was acquitted of the crime.
Compelling Issues that Support Judy Henderson's Plea for Executive Clemency