David Hosier should get a new trial or, at least, a new sentencing hearing, his new lawyer told the Missouri Supreme Court on Tuesday.
Amy Bartholow, of the Missouri Public Defender's office, said his trial and appeals attorneys didn't give him the legal assistance he should have had.
"It's our position that no reasonably competent attorney would purposefully inject inflammatory propensity evidence, against her own client, in the guilt phase (of the trial)," Bartholow told the seven-judge court. "But that's precisely what David's attorney did."
Hosier, now 64, faces the death penalty after he was convicted in an October 2013 trial for the Sept. 28, 2009, murder of Angela Gilpin, 45, at her apartment in the 1100 block of West High Street.
Gilpin's estranged husband, Rodney Gilpin, 61, also was killed in the early morning shooting in the doorway to Angela's apartment, but Hosier was tried only for killing Angela.
During the Gilpins' separation — they never had divorced — Hosier and Angela had an affair, and Hosier told friends he was unhappy she had decided to reconcile with Rodney and revive their marriage.
After the murders, then-Cole County Prosecutor Mark Richardson charged Hosier in 2009 with two counts of first-degree murder and armed criminal action, plus burglary and illegal possession of a weapon by a convicted felon.
After Hosier's 2013 conviction, the pending charge in Rodney Gilpin's murder was dismissed. Current Prosecutor Locke Thompson told the News Tribune on Tuesday it could be refiled, if needed.
Hosier's trial attorneys were Don Catlett and Janice Zembles, from the Public Defender System's capital division, which represents people charged with murder but who can't afford their own lawyer.
Bartholow said Zembles should have accepted Richardson's offer to stipulate Hosier had been convicted of a felony in Indiana — which would justify the weapons possession charge.
However, that stipulation also would have meant the jury would not hear the details of the 1993 Indiana conviction — that Hosier had pleaded guilty to handcuffing a girlfriend, then beating her until she was unconscious and suffered a concussion, and been sentenced to serve eight years in prison.
Bartholow told the Supreme Court on Tuesday: "Ms. Zembles rejected that stipulation and, in doing so, she ensured that (Hosier's) jury would hear the underlying facts in the guilt phase of David's trial."
In cases where the death penalty is a possible punishment, jurors first must hear the case against the accused and decide whether that person is guilty or not guilty.
Only if the jury makes a guilty verdict is there a second hearing to determine whether the punishment should be life in prison without parole, or the death penalty.
However, Bartholow argued, Zembles appeared to have decided Hosier would be convicted, so she was concentrating on what might happen in the penalty phase of the trial rather than trying to convince the jury her client wasn't guilty of the murder charge.
And that wasn't a good trial strategy, Bartholow told the court.
"It contradicted their entire strategy," she argued. "From the point of the charge up until the trial, their strategy had been to keep this evidence out (and) to keep out evidence of all the weapons and to keep out the fact that there was another victim (Rodney) that was not charged in this (Angela's murder) case."
Bartholow said the state had a weak case.
"All of the state's evidence in this case (was) circumstantial," she explained. "There's no eyewitnesses. There's no confession. There's no DNA. There's no fingerprints.
"All you have is a ballistics expert saying, 'I can't say these bullets were fired from the gun.' They could never get this gun to fire accurately, without putting different bullets in it."
Bartholow acknowledged the notes and voicemail messages Hosier left with several friends — including one message saying "I'm going to end the problem" — were the state's strongest evidence in an otherwise "very weak" case.
However, those notes and messages also could have been used to show Hosier was suffering from serious mental health issues, Bartholow said, but Zembles didn't call a psychiatrist to testify about Hosier's state-of-mind — nor did she call a doctor to talk about the affects of a stroke he'd had in 2007.
"Although Ms. Zembles had an MRI done on David, she didn't even get the results of the MRI (or) read a report about the MRI and never talked with a doctor about the MRI," Bartholow argued. "It shows that David's brain is dead in places.
"It's significantly damaged."
Assistant Attorney General Greg Barnes countered Hosier was represented "by highly experienced guilt-phase and penalty-phase counsel."
And, he said, the state's case was far from weak.
"(Hosier) had announced his intentions in advance, through multiple notes and conversations with multiple friends," Barnes reminded the high court. "(He) had left a note afterward explaining his intent in the incident; was caught with the murder weapon, after fleeing to Oklahoma in the middle of the night, right after the murder; evaded the police (showing) consciousness of guilt; (and) urged the police to kill him, further evincing consciousness of guilt."
Barnes said Hosier's public defenders did follow a trial strategy, and were successful in keeping the jury from learning some of the more damaging details of his Indiana assault.
Where Bartholow said the jury might have reached a different conclusion if Hosier's trial lawyers had presented their case differently, Barnes told the court: "There was absolutely no chance that there was a reasonable probability of a different result at trial."
Barnes said the 2007 stroke came after previous violent incidents, including a 1986 assault on his wife when the family lived in Jefferson City and Hosier worked for the fire department — an assault that, eventually, led to a several-hours standoff while police and sheriff's deputies tried to serve Hosier with an order for a 96-hour mental health examination.
The 2007 stroke also "didn't explain the incident in 1993 (in Indiana), where he beat the woman unconscious" or other incidents where Hosier had threatened relatives or friends.
Where Bartholow argued Hosier had been a good employee at several jobs in Indiana and Jefferson City, Barnes countered: "It's not true that he had a good work history, at all," then listed several different jobs Hosier held but later was fired from — including the Jefferson City Fire Department.
As usual, the high court did not say how long it will take to rule on the case.
Hosier, meanwhile, remains imprisoned on death row at the Potosi Correctional Center.