CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, December 28, 2004

Missouri Supreme Court: OK to Pay Cash to Victim's Family to Avoid Death Penalty

Mosct The Missouri Supreme Court overturned Brandon Hutchinson's death sentence in a case where co-defendant Freddy Lopez received 10 years based on ineffective assistance of counsel in the penalty phase.  However, the court also noted that during the trial, Lopez's  sister won the lottery, and used $230,000 of her winnings to settle a wrongful death action with the victims' family, in exchange for their agreement to recommend that the prosecutors accept a 10 year sentence.  According to the court, which found no error on this ground, "Under the settlement agreement entered into evidence at the hearing, Lopez would pay the victims' family $230,000.00 if: the family recommended to the prosecutor that Lopez receive no more than ten years in prison and the judge actually sentenced Lopez to a prison term not to exceed ten years."  The prosecution and court went along; Lopez got 10 years, Hutchinson was sentenced to death.  Some people can afford to hire better lawyers than others, and the sentence can turn on that, but can it really be that death can turn on how much you have to pay the family?  Here's the decision. [Jack Chin]

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» Court Okays Buying Way Out of Death Penalty from TalkLeft: The Politics of Crime
Does this pass the smell test? The Missouri Supreme court has ruled that the payment of $250k from a killer's family to a victim's family, conditioned on the killer not getting the death penalty did not provide a basis... [Read More]

Tracked on Dec 27, 2004 11:51:46 PM

» Appeasing the Family from Soccer Dad
Instapundit mentions a case where two men convicted of murder got disparate sentences. One got the death penalty; the other 10 years. Why the difference? The sister of the one receiving the lesser sentence paid $230,000 to the victim's family... [Read More]

Tracked on Dec 28, 2004 6:11:55 AM

» Missouri Supreme Court: OK to Pay Cash to Victim's Family to Avoid Death Penalty from
Via CrimProf Blog: The Missouri Supreme Court overturned Brandon Hutchinson's death sentence in a case where co-defendant Freddy Lopez received 10 years based on ineffective assistance of counsel in the penalty phase. [Read More]

Tracked on Dec 30, 2004 11:05:18 AM


On the one hand this seems to be rather unfair. On the other hand, who better to help decide the punishment of the perpetrator than the family of the victim?

Posted by: Nick | Dec 28, 2004 6:52:55 AM

What the stories in the press and blogosphere are not mentioning is that Hutchinson's attorneys were found to be ineffective in failing to prepare for the penalty phase of the trial and had no prior experience in trying murder cases and had no capital experience.

I suspect the court addressed the IAC issue in the case so they did not have to address the blood money issue that could have resulted in language hurtful to the victim's family. This avoidance of the difficult issue means there is nothing sexy for another court (such as the SCOTUS) to examine and they put off ruling on the the difficult issue until another day (a later court could argue that the "blood money" issue in Hutchinson is merely dicta).

- k

Posted by: K | Dec 28, 2004 7:36:08 AM

K (and others) suggest the blood money issue is dicta; I think this is incorrect. The decision is a holding because it affected the outcome. If the court had accepted the blood money argument, there could be no remand--a death sentence would simply be unavailable under the circumstances. This is why the Court addressed it (as the first point); they couldn't say, as appellate courts often do, "we don't need to reach issues B-F because we reverse on issue A." If issue B would result in greater relief, they can't fairly treat it as moot.

Further suggesting that the decision is a holding is that the issue is not open on remand. The blood money argument cannot be raised in the trial court (at least the trial court is not free to grant relief on it).

Nor could the court have simply said that the defendant didn't have standing to challenge a third party's sentence. It affected the defendant because of the implication that if he had had $230,000, he could have had the 10 year sentence. (Obviously the rich defendant didn't DESERVE a 10 year sentence on the merits; if he did, he would have gotten it for free.) In addition, one person getting a light sentence makes it more likely that the prosecutor will be incentivised to make sure others get a more severe sentence (and more likely to suggest that those who didn't get the deal are more culpable).

What the Court should have said is something like this: "We do not approve of the trial court and prosecution's involvement in the financial transaction in this case. Victims and their families are entitled to have input into sentencing decisions, including in capital cases, and they are entitled to sue those who injure them. However, to the extent that a recommendation for or against death is influenced by a cash payment, that opinion should ordinarily not be considered by state actors, any more than a recommendation based on racial or religious bias is entitled to weight. However, [insert reason not to apply this rule to this case here.] Accordingly, we remand for resentencing."

Posted by: Jack Chin | Dec 28, 2004 12:52:03 PM


My head is reeling, I feel humbled & "schooled." I had not thought of it in the terms you had (a categeorical ban on death on remand), but had rather merely thought of it as an optional grounds on which relief could have, but was not, granted. Under my interpretation it would have been mere dicta, under yours it would clearly be binding and not merely surplussage.

You are correct.

I will now head to the corner and eat my humble pie.

- k

Posted by: karl | Dec 28, 2004 4:37:10 PM

Thank you much for the astute site. I come here a lot, and find your articles perfectly relevent, under-reported, and seriously important. This decision to allow a payment to the grieving family in exchange for lower prison terms reminds me of countries where various crimes have the established prices that have to paid, etc... The real problem lay in what kind of society do we wish to have? People already believe the wealthy are above the law -- this sort of payment for lower sentences would confirm their worst fears about Capatalism. Oh, yea, I wrote about your article, and used it on my non-commercial blog, along with a bi line and a link.

Posted by: Johnny Pain | Nov 4, 2005 12:32:04 PM

Randy Bramlett
12-30-2004, 06:40 AM

My name is Randy Bramlett I am married to Judy (Marks). We have been married for close to 14 years.

James Paul Bramlett was my youngest son by a prior marriage, and my present wife, Judy and I, have raised James Paul since he was 3 and half years old.

James Paul (J.P.) died from the neglect of the "medical staff" on duty during the early morning hours of 9-30-2004 after an auto-accident on 9-9-2004

A senior in East Prairie High School. He had already applied for College at Missouri State University in Columbia Missouri. He wanted to Major in History and Minor in music.
James Paul was guitar player, a compassionate young man, who died not through any cause of his own. He wasn't driving, but he was the only one out of three teens that was injured and died three weeks later. He was in a car accident while riding around with his drummer and his drummer's, girlfriend. They overturned and slammed into a tree at approx. 45mph. He was in the backseat, right there where they hit the tree.

This was on 9-9-2004. He was flown to St. Francis Hospital in Cape Girardeau Missouri.
Where Dr. Gibbs informed us that JP had suffered severe head trauma, two broken vertebrae in his mid-back and told us that the "odds" were against him living through the night.
A short time later my entire family and a few of my son’s friends arrived.
We prayed for Gods mercy and healing powers to "just let JP breathe" through the night.
God heard and answered our prayers.
And as each day passed we prayed for God's healing power to be shed upon my young innocent son's injuries.

My wife and I never left the hospital, only to come back home and get a change of clothes and when we did night, my son’s half-Brother, Ricky was there to watch over him, we spent one night out of three weeks at home.
Because of the emotional drain it took on our whole family, seeing other families loose their loved ones at the hospital and continuously being in that "gloom and doom" environment in the waiting room 24 hours a day, seven days a week.
It was horrific and terrifying to be constantly bombarded by death and grieving families.

And I felt guilty at times when JP was doing better, day by day, and another couple loosing their 23 year old son young son and having him "declared" brain dead, by one Dr. Staley, who is a quack in my eyes as a doctor, and that family "donated" their 23 year old son's "organs".
They kept him alive that night and we heard the helicopter arrive at 7:00am from Barnes Hospital in St. Louis.
They cut a "BEATING HEART" out of a young mans chest and "harvested" his remaining organs.

But God was truly with us all.
And I seen the "MIRACLES" that God had performed on my son and my family.
Each day we got some "bad news" and some "good news".
We thanked God for the absolute MIRACLES that I personally seen take place in my injured son. And we prayed for the "bad news" to be healed by our Lord Jesus Christ the Savior.

This went on for 3 weeks, to the day, and JP was opening his eyes, holding our hand, turning his head, tried to talk (but had a trach-tube), he knew when we came in the room and we communicated by "blinks of his eye". One blink "YES" and two blinks "NO", he had movement in his legs and toes.

And on 9-29-2004 at 5:00pm, Dr.Gibbs gathered my family for a "progress" report and we were all told by Dr. Gibbs that in his opinion, that he thought JP was PASSED the point of life or death.
That he was doing better and out of danger from dying.
My entire family rejoiced and praised Jesus Christ, for the grace, mercy, healing, compassion, forgiveness and his Divine Powers, that he had blessed us all with, especially James Paul.

At 11:00pm on 9-29-2004, my step-son Ricky and I went up to see JP and he seemed fine other than that "puddle" around his "trach" and some "rasping" sounds coming from his chest.

Which, again, my s step-on and I, both informed the nurses of the "leakage" and inquired if a doctor had been in to check the condition of JP's trach-tube and now, the rasping in his lungs, or was ANY doctor even aware of JP's condition of his "trach-tube" or probable cause of this occurrence.

We were given the same old excuse and assurances, by the nursing staff.

The nurses kept telling us that if a "situation" arises that warrants a doctor’s attention, that they would not "hesitate" to call in a doctor to "diagnose the situation".

But at 3:15am of the 30th, (the very evening that Dr. Gibbs told my entire family "good news"), I was awaken by a strange dream, I don't recall what it involved (but I wish I could recall), but as I sat there on the edge of the couch in the waiting room, I heard over the "intercom" CODE BLUE IN SICU".
That is where my precious son was.
I ran up there as fast as I could go and found a "team" of medical staff, BEATING on my son's chest.
I grabbed JP by the arm and shook him and told him to come back to us.
But his arm was already "cool".
He was already gone.

The medical staff told me that they had "turned him" to give him a bath and he went into "cardiac arrest".

But the truth is that the "trach-tube" had been "leaking" for two days and every hour when we went up to see him, there was a "puddle" around his trach-tube.
And the nurse changed the gauze around the tube, but it still didn't slow down the "leaking" that was to be the eventual death of my son.
We had asked the nurses repeatedly, to have Dr. Kahn (the pulmonary doctor) to come and check JP to be sure that fluid that was collecting around that trach-tube, wasn't leaking back into his lungs.
But to no avail.

My sweet, young, talented Son had laid there and choked to death on the very "food" they were pumping into him.
And he could "grasp" our hand and "squeeze" it, but he couldn't move his arms to grab a "buzzer" for the nurse, nor did they have one on the bed beside him.

My sweet, innocent, young son lay there and choked to death on his own fluids.
After repeated attempts to get the nursing staff to inform ANY doctor to correct the problem he was having with his "trach-tube" before he chocked to death.

But now I face the dilemma of having a vengeful and spiteful EX-WIFE who thinks she is entitled to half of the insurance (BLOOD) money, when she never helped my son out, financially or emotionally.
And my lawyers say that "she could end up getting half" of what’s left over after the cost of the funeral, headstone and flowers.
The boy that was driving, his parents only had $25,000.00 insurance.
The funeral was $6700.00, the headstone was $1500.00, and the remainder of the flowers was $169.00.
The problem is that the friends of my son, JP, raised $1400.00 for helping my wife and I out in paying our bills.
We stayed at the hospital 24/7, for the 3 weeks JP was there. (except for 1 night)
And now my EX-wife wants that $1400.00 to be part of the settlement.
Is that legal?
I have an attorney, Kim Heckemeyer, of Burns and Taylor, which are handling my case on a "pro-bono" basis. (free of charge), because they are (WERE) long time friends of mine.
Where-as my EX-wife has a "paid" lawyer that is set out to get every nickel they can get.
I have had full custody of my son since he was 3 and 1/2 years old and have provided 100% of his needs and necessities.
Therefore, I don't see how my EX-wife can have a claim on anything.

But when this entire ordeal FINALLY after 6 month’s of delays and such, it was “heard” in court. (all this time my son’s grave had no headstone, even though we had it ordered at the time of his funeral.)

They Judge in the case was more interested in my divorce from my ex-wife, than he was in all the 15 years of evidence I produced for him to view.
Pictures, school awards, report cards.
Everything showing that I had raised my son since he was 3 years old and I got full custody of him.
And my ex-wife was never made to pay child support or did she ever offer.
And here it is a year and a half later and I am still upset about the way the judge allowed questions that no more than a “smear” campaign against me and my present wife of 15 years.
There was questions asked by my ex-wife’s lawyer, that I just plainly told him, “That has absolutely no bearing on who raised my son” and the judge “ordered” me to answer or be held in “contempt of court”!!!!
And my worthless lawyer just stood there like she had never seen the inside of a court room before.
Here are just a few of the courts records.

(my son’s best friend who was driving their car when the accident occurred)
Plaintiff represented by ROTH , DAVID J II ,
BRAMLETT , RANDY , Defendant represented by
Defendant represented by JAMES MICHAEL MCCLELLAN ,
Text: Hearing continues. Rule on Witnesses granted at request of Mr. McClellan.
Docket Entry: Motion In Limine
Text: Motion in Limine Directed to Defendant, (Randy) Bramlett filed and granted as to hearsay.
(as if everything my son had told me about his mom was lies, and the judge upheld it!)

Docket Entry: Motion Granted/Sustained
Text: Motion in Limine granted as to hearsay.
Docket Entry: Hearing Held
Text: Witnesses sworn. Testimony presented.
Parties announce settlement has been reached.
Cause passed for Order. 03/23/2005
Docket Entry: Order
Order and Judgment signed and filed herein.
Court orders check payable to East Prairie Flower Shop in the amount of $161.21 be distributed.
That the check payable to Bell Monument in the amount of $1,476.76 be distributed.
That 58% of the balance or $9,736.66 be paid to Randy Bramlett and that 42% of the balance or $7,050.69 be paid to Janet Denise Bramlett.
Each party is responsible for their own attorney fees and costs.

And to top that off, my worthless lawyer charged me $3600.00, after her telling me she was going to represent me “PRO-BONO”

I “copy and pasted” the results of the “trial” on my late son’s website I made for him and told everyone that read it to “vote NO to Judge David Dolan in the 2006 elections”.
There was NOTHING “THREATNING” on there!
As the Judge “claimed”
I was arrested for “threatening a government official”
Two days later I was served a summons to appear in front of Judge Dolan.
And when my wife and I, arrived at the courthouse, the sheriff’s dept. had me go through a metal detector. (which is normally not used) and Judge Dolan informed me that HE was wearing a “38 side-arm” just because of “violent” people like me!
That afternoon I was served a warrant for my arrest and handcuffed in front of my entire late son’s friend’s, which always come over to our house.
That was the most humiliating thing I had ever seen the police do to some one that has just lost their youngest son (of only 2 children) at the age of 17, and they placed me in “solitary-confinement” in Mississippi County Jail. They wouldn’t give me any of my medications and I had a seizure while I was incarcerated. I stayed there for 11 long days.
That alone cost me over $2000.00 in bail and attorney fees.
The only point that should have been EVIDENT in the entire ordeal, is that I raised my son for all those years and the Judge stripped me and my wife of any and all dignity in the town we live in. (only 2600 people)
In my case, it is my belief that a “MALPRACTICE” suit be brought against my worthless lawyer.

This entire year and a half, has made me want to just give up on life itself.

For all the details go here: and do a “search” in the 33rd judicial district and my name, “Randy Bramlett”.

My Son “James Paul Bramlett’s” website.

Randy Bramlett

Posted by: Randy Bramlett | Feb 25, 2006 5:52:04 PM

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