Before the news of the death of the Kerry sisters was released, it is undisputed that Tony phoned the police the next morning to tell them what had happened. Tony was taken into custody and volunteered information to the authorities. He fully cooperated, in a forthcoming manner, with the police investigation. Tony made a complete confession detailing the actions of Gray and Clemons, and explaining his own involvement, and he led police onto the Chain of Rocks Bridge, giving them an on-the-scene re-enactment of the crime. Tony was then released by the police.

Richardson has steadfastly denied having pushed either of the Kerry sisters off the bridge. He has also denied ever intending that anyone would be killed. Further, he has consistently denied having aided or encouraged Gray or Clemons in the commission of the killings. In his statements to the police, Richardson explained that it was Gray and Clemons who pushed the Kerrys from the bridge and that Gray threatened Richardson with bodily harm if he did not "cooperate", or, if he told anyone about what happened on the bridge. Winfrey also testified at the trials of Gray, Clemons and Richardson that Gray made the same threats to him.

As set forth below, there are several powerful reasons why clemency should be granted to Tony Richardson. The first, and perhaps most compelling reason, lies in the fact that Richardson has consistently tested in the IQ range of 70, considered by all experts in this case to place Tony in the mildly mentally retarded category. Second, there is a steadily growing consensus both in this country and abroad, that juvenile offenders should not be executed under any circumstances.

Third, a juror from the trial has stated under oath that the jury never found Richardson eligible for the death penalty, thereby mandating a punishment of life imprisonment under Missouri law. Fourth, Richardson was unwittingly led down a suicidal path of rejecting a plea agreement, contrary to the advice of counsel, by persons who held themselves out as Tony's confidants. One individual in particular preyed upon Tony's youth and mental retardation in pursuit of a misguided political agenda. Also, critical breakdowns by defense counsel at trial cast serious doubt as to the propriety of the infliction of the ultimate punishment in this case.

Various intelligence tests were conducted by the Special School District in December 1987. The results conclusively indicated that Tony had a full scale IQ of seventy (70), giving him an "overall level of cognitive functioning ... in the Borderline range of intelligence." An evaluation report indicates that Tony "is easily led by others," and that reading and spelling skills are developed to a late first grade level (1st percentile)." The Special School District Diagnostic Team found:

[B]ased on the results of this evaluation, [the Team] finds this student to be Learning Disabled, Language Impaired and Behavior Disordered. Cognitive skills fluctuate between the mentally retarded to average range.... Reading is basically on a high first grade level.
* * *

Antonio demonstrates an inability to concentrate, can be on task but appears confused. These behaviors are understandable in light of his academic deficits. Inappropriate peer relationships, evidences of extreme paranoia and acting out behaviors toward peers have been displayed and continue even after counseling interventions.

After his arrest and incarceration, Richardson underwent a battery of intellectual and neuropsychological testing. For example, Dr. Eric Engum, a clinical neuropsychologist, tested Tony in the areas of general information, reading recognition, reading comprehension, mathematics, spelling, and written language. Dr. Engum found that:

In terms of speech and language skills, Mr. Richardson demonstrates severe to profound impairments.
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Overall, Mr. Richardson obtained a Grade Equivalent of 2.9 which reflected profound impairments in his acquisition of basic information, reading recognition, reading comprehension, arithmetic skills, spelling, and written language skills.

* * *

In terms of general information, Mr. Richardson did not know the difference between an ocean and a lake, did not know the season that came after winter, did not know what made a sailboat move through the water, did not know simple nursery rhymes, did not know the country or even the state in which he lived, and did not know that one obtained green when mixing blue and yellow paint together.

* * *

It is quite apparent from the test results that Mr. Richardson is significantly compromised in all four of the basic functional units involved in all complex mental activity. Most noteworthy are severe impairments in attention and concentration, memory, learning, higher level problem solving, sequencing, speech and language skills, spacial and perceptual skills, and motor speed and coordination.

In May 1993, subsequent to his trial, Richardson was given the WAIS-R IQ examination, this time by Dr. Michael Armour, Ph. D. Tony tested with a full scale IQ of seventy-three (73), still within the range of borderline retardation.

Dr. Bruce Harry, a forensic psychiatrist from Fulton, Missouri, examined Richardson in July 1994. His written evaluation and testimony from the post conviction relief proceedings are attached. Dr. Harry diagnosed Tony with organic mental disorder, and again, with mild mental retardation.

The term "mild retardation," as defined by the American Psychiatric Association, aptly describes Tony:

Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of "educable." This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of mental retardation typically develop social and communicating skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without mental impairment until a later age. By their late teens, they can acquire academic skills up to approximately the sixth grade level. During their adult years they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with mild mental retardation can usually live successfully in the community, either independently or in supervised settings.

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, American Psychiatric Association, 1994, p. 41.

Dr. Robert Smith, a clinical psychologist from Cleveland, Ohio, administered the Vineland Adaptive Behavior Scales to Tony in May 1994. Dr. Smith testified at the PCR hearing in March 1995. The Vineland test measures an individual's ability to cope in everyday life in the areas of communication, daily activities and socialization skills. In the area of communication, Tony scored in the 1st percentile, with the age equivalency of seven years, two months. In the area of daily living skills, Tony ranked in the 5th percentile, with the age equivalency of twelve years, nine months. In the area of social skills, Tony also scored in the 1st percentile, with an age equivalency of seven years, ten months. Dr. Smith concluded Tony's adaptive behavior was "significantly impaired."

2. Missouri's Proposed Legislation Concerning Execution of the Mentally Retarded.

Currently, twelve states (Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, Nebraska, New Mexico, New York, Tennessee and Washington) and the federal government have passed legislation forbidding the execution of the mentally retarded. Some states, such as Nebraska, have enacted legislation prohibiting the execution of persons with an IQ of seventy (70) or below. Other states, such as New York, have adopted statutory definitions of "mental retardation."³

During last year's term of the Missouri Legislature, in the 90th General Assembly, House Bill No. 1225 was introduced by Representative Michael Schilling and co-sponsored by, among others, Criminal Law Committee Chairman Craig Hosmer. The bill would have excluded the mentally retarded from the death penalty. The language of the bill came from a "fragile coalition" of legislators, criminal defense lawyers, and prominent prosecuting attorneys.

An early draft of the legislation incorporated the definition of mental retardation from RSMo. § 630.005, which is nearly identical to that of New York and other states: "significantly subaverage general intellectual functioning which: (a) Originates before age eighteen; and (b) Is associated with a significant impairment in adaptive behavior." A later version of the bill refined the definition of mental retardation as:

a condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with related deficits and limitations in adaptive behavior such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which is manifested and documented before 18 years of age.

During this legislative session, State Senator John Schneider has sponsored Senate Bill 192, that prohibits capital punishment of the mentally retarded. Tab 9. S.B. 192 again incorporates the definition of mental retardation in RSMo § 630.005. Representative Hosmer has again sponsored proposed legislation (H.B. 265) to exclude the retarded from the death penalty, and Representative William Boucher has also introduced H.B. 369 (co-sponsored by at least a dozen legislators) to exempt the mentally retarded from death sentences. . S.B. 192 will soon be voted out of the Judiciary Committee and is likely to be enacted into law this session.

Tony Richardson would easily meet any of the generally accepted criteria used for exempting the retarded from eligibility for the death penalty, as well as the specific requirements of RSMo. § 630.005. It would undoubtedly be a miscarriage of justice for the State of Missouri to recognize that the retarded should not be executed, yet proceed with Tony Richardson's execution because the legislation has not been made retroactive to his case. Tony Richardson is an appropriate candidate for continued incarceration. He has adjusted well to the structured environment of the Potosi Correctional Center. He has benefited from the regulations of incarceration and will continue to do so if he is not executed.