by Chuck Sharman
Depending on who’s telling the story, Missouri prisoner Michael Tisius, 42, got either what he deserved or the last in a long line of bad breaks when he was executed on June 6, 2023, hours after the Supreme Court of the U.S. (SCOTUS) refused to hear his last appeal.
Tisius was 18 in 1999 when he tried to pawn a rented stereo and was locked up on a misdemeanor charge in the Randolph County Jail. There he met Roy Vance, then 27, who later recalled the teen was “a kid in a grown man’s body, and I knew I could manipulate him into what I wanted him to do.”
Following a plan they hatched, Tisius returned to the jail after his release with Vance’s then-27-year-old girlfriend, Traci Burlington, on June 22, 2000, under the guise of delivering cigarettes to the prisoner. The plan was to overpower guards to steal their cell keys. But instead Tisius shot and killed jail supervisor Leon Egley, 33, and guard Jason Acton, 36. However,
their keys didn’t open Vance’s cell.
Leaving him there, Tisius and Burlington fled and were captured the next day, after their car broke down 130 miles away in Kansas. All three were tried and convicted of capital murder in the killings. Vance and Burlington, both now 50, are serving life sentences. Tisius received a death sentence, which the state Supreme Court affirmed on December 10, 2002. See: State v. Tisius, 92 S.W.3d 751 (Mo. 2002).
An appeal to his conviction was denied, but Tisius received a new sentencing hearing that again resulted in the death penalty; the state Supreme Court affirmed that decision, too, on March 6, 2012. See: State v. Tisius, 362 S.W.3d 398 (Mo. 2012).
Tisius appealed for post-conviction relief, claiming ineffective assistance of counsel – who, among other alleged failings, neglected to argue that a “mental age” under 18 disqualified him for execution under Roper v. Simmons, 543 U.S. 551 (2005). That appeal was denied on April 25, 2017. See: Tisius v. State, 519 S.W.3d 413 (Mo. 2017).
Tisius then took his ineffective-assistance-of-counsel claims – 31 in all – to the federal court for the Western District of Missouri in a habeas corpus petition. He specifically objected to a book and study that were introduced at his sentencing to undermine evidence he presented of childhood abuse, by suggesting Tisius either (a) fabricated symptoms to fool psychologists or (b) could have overcome them with simple determination – like David Pelzer, the author of the 1995 book that was introduced, A Child Called It, based on his childhood abuse claims that have been disputed by other family members.
The district court, however, found no error in such sensationalistic prosecution. It denied the petition on October 30, 2020, and that decision was affirmed by the U.S. Court of Appeals for the Eighth Circuit on November 9, 2021. See: Tisius v. Jennings, 2020 U.S. Dist. LEXIS 203361 (W.D. Mo.); and Tisius v. Blair, 2021 U.S. App. LEXIS 40376 (8th Cir.).
Tisius then filed a clemency application, believing testing would reveal abnormal levels of lead in his bones that might prove his diminished mental capacity. He was willing to pay for the test, but the state wouldn’t help arrange it. The Eighth Circuit said federal courts could not force the state court to accommodate testing for a state clemency proceeding. See: Tisius v. Vandergriff, 55 F.4th 1153 (8th Cir. 2022).
At that point, with his execution scheduled, his attorneys began drafting an appeal to the clemency denial to SCOTUS. On April 28, 2023, they learned one of the jurors who sentenced Tisius to death was illiterate – a violation of state law. They filed a post-habeas petition with the district court, where the state presented evidence that the juror in question simply “cannot read or write very well.” Finding a factual dispute to resolve, the district court stayed the execution on May 31, 2023.
But the Eighth Circuit reversed that decision on June 2, 2023, finding the district court lacked jurisdiction because Tisius’ claim was a “second or successive application” for habeas relief under 28 U.S.C. § 2244(b)(3)(A), so a certificate of appealability was first needed from the appellate court. It refused to issue one, though, saying whatever the lawyers discovered “could have been timely investigated by counsel and raised in earlier habeas proceedings.” See: Tisius v. Vandergriff, 2023 U.S. App. LEXIS 14155 (8th Cir.).
That sent Titius’ lawyers to SCOTUS in a last-ditch effort to stay his execution while the juror’s literacy was fully investigated. Their application included highly unusual affidavits in support of clemency from a half-dozen jurors and alternates in Tisius’ case. But the high court refused to hear that appeal. See: Tisius v. Vandergriff, 2023 U.S. LEXIS 2418; and 2023 U.S. LEXIS 2419.
After a final meal of hamburgers and French fries, Tisius said “sorry” to the families of the dead jail guards and lay down on a gurney where he received his lethal injection.
Additional sources: Flat Rive Daily Journal, The Guardian, Kansas City Star, New York Post, New York Times
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