Brian Dorsey is a “rare case where those of us who sit in judgment of a man convicted of capital murder got it wrong,” according to a former judge who upheld his death sentence.
Brian Dorsey's appointed trial lawyers were paid a flat fee of $12,000 to represent him. Against the advice of another lawyer, they advised Dorsey to plead guilty without a deal from prosecutors to take the death penalty off the table.
Missouri executed 52-year-old Brian Dorsey on Tuesday, despite pleas to spare his life from more than 70 correctional officers, a judge who upheld Dorsey’s death sentence on appeal, several jurors on the case and some of the victims’ family members.
The state carried out Dorsey's death sentence by lethal injection at Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri's Department of Corrections said in a statement. He was pronounced dead at 6:11 p.m. local time.
Dorsey was killed with a lethal injection of pentobarbital, punishment for killing his cousin and her husband in 2006 after bingeing crack cocaine, a drug that caused him to experience psychosis.
Following the advice of his appointed lawyers, who were paid a flat fee, Dorsey pleaded guilty without securing a deal from the state to take the death penalty off the table. After a two-day sentencing trial, a jury sentenced him to death.
As more details came to light about Dorsey’s case, a flurry of surprising supporters lined up to urge Missouri Gov. Mike Parson (R) to grant Dorsey clemency and commute his death sentence to life without parole. Parson declined the request on Monday, allowing the execution to go forward.
“To all of the family and loved ones I share with Sarah and to all of the surviving family and loved ones of Ben, I am truly deeply overwhelmingly sorry,” Dorsey wrote in his final statement, referring to his victims. “Words cannot hold the just weight of my guilt and shame. I still love you. I never wanted to hurt anyone. I am sorry I hurt them and you. To my family, friends, and all of those that tried to prevent this, I love you! I am grateful for you. I have peace in my heart in large part because of you and I thank you. To all those on ALL side[s] of this sentence, I carry no ill will or anger, only acceptance and understanding.”
After the drug was injected, Dorsey took a few deep breaths, followed by several shallow, quick breaths, The Associated Press reported. He raised his head from the pillow, blinked hard, and eventually stopped moving. He was pronounced dead at 6:11 p.m.
‘Financial Conflict Of Interest’
Dorsey began drinking and using crack cocaine as a teenager, an attempt to cope with a treatment-resistant major depressive disorder, according to a petition for writ of habeas corpus, asking the state supreme court to either overturn his death sentence or order evidentiary development on his claim. Because often experienced paranoid delusions during drug binges, he preferred to use alone, the petition said.
Two days before Christmas in 2006, two drug dealers showed up at Dorsey’s apartment, demanding money. When Dorsey called family members to request money, they declined, but went to the apartment and got the drug dealers to leave. His cousin, Sarah Bonnie, and her husband, Ben Bonnie, took Dorsey back to their place for the evening. By then, Dorsey had spent the previous two to three days drinking and smoking crack, with no sleep or food, according to the petition. While drinking and playing pool with his relatives, Dorsey spotted a gun in the Bonnies’ home and thought about suicide, he would later testify at trial.
The next morning, Sarah Bonnie’s parents found her and Ben Bonnie dead in their bedroom. After speaking with his parents, Dorsey turned himself in to the police days later. Dorsey has never denied killing the Bonnies, but his memory of the evening is spotty, and he is unable to describe what happened the night of the crime or why he did it, he testified. Still, the state charged him with two counts of first-degree-murder — the crime of “knowingly” causing the death of another person “after deliberation upon the matter” — and sought the death penalty.
Dorsey, like most people on death row, couldn’t afford to hire a lawyer for a death penalty trial so the Missouri State Public Defender’s Office contracted two private attorneys to represent him. The attorneys, Christopher Slusher and Scott McBride, were each paid a flat fee of $12,000, regardless of how much time they spent on the case. Between 1998 and 2004, defense lawyers on death penalty cases spent an average of 3,557 hours per trial, according to a 2010 report. Had Dorsey’s lawyer put in that much time on the case, they would have been paid about $3 per hour.
Slusher declined to comment. McBride did not respond to a request for comment.
Before Dorsey’s trial, Slusher called Janet Thompson, then an appellate lawyer in the public defender’s office, to ask for her opinion about his plan to advise Dorsey to plead guilty without a deal from prosecutors to remove the death penalty.
“I told him it was a really bad idea, that every time anybody had done that kind of procedure, the result had been abominable,” Thompson testified at a 2011 post-conviction evidentiary hearing.
American Bar Association guidelines advise defense lawyers to be “extremely reluctant” to waive trial rights without a guarantee of no death sentence. But Dorsey’s lawyers continued with their approach. “I think the idea was, is that we were hoping for some credit for acceptance of responsibility … from the jury,” Slusher testified at the post-conviction evidentiary hearing.
The first time Dorsey’s lawyers discussed pleading guilty with him was on the morning of his plea hearing, according to the habeas petition. With no time to consult with his family, Dorsey took his lawyers’ advice and pleaded guilty.
“It’s hard to put into words what I — what I’ve done to my family and Ben’s family,” Dorsey testified at his sentencing trial. “It just breaks my heart … [I’m] very, very angry with myself. I — I — I’ve never ever wanted to hurt anybody in my life, much less people that I love and care for.”
ABA guidelines also state that death penalty defense teams should have an investigator and a mitigation specialist, in addition to two qualified attorneys. Although Dorsey’s lawyers could have requested funding to staff their team, they declined to hire a dedicated investigator or mitigation specialist. Ahead of trial, Dorsey’s lawyers did no investigation into alternative defense strategies, the habeas petition alleged.
“Had counsel investigated and completed an expert evaluation of their client, they would have learned that Mr. Dorsey was not guilty of first-degree murder, as he was neurologically incapable of deliberation,” Dorsey’s habeas lawyers wrote. “Yet, Brian Dorsey was sentenced to death because counsel was laboring under a financial conflict-of-interest, and pressuring Mr. Dorsey to plead guilty to a crime he could not have committed was a sound financial strategy for counsel,” the lawyers continued, referring to the time saved by forfeiting a guilt-innocence trial.
Thompson, who went on to represent Dorsey during his direct appeal, was so disturbed by Slusher and McBride’s work on the case at trial that she advised they not be hired to work on death penalty cases again, she wrote in a 2015 affidavit.
The Missouri Public Defender’s office no longer uses flat fees in death penalty cases because it incentivizes lawyers to minimize time spent working on the case, the office’s director, Mary Fox, wrote in a letter to Parson, urging the governor to commute Dorsey’s sentence.
Last week, Dorsey asked the Supreme Court to block his execution and consider whether his trial lawyers’ flat fee arrangement created a conflict of interest in violation of his constitutional right to effective assistance of counsel.
The Court denied that request as well as a separate petition arguing that it would be unconstitutional to execute someone who has been “fully rehabilitated.”
Appellate Judge Says Court ‘Got It Wrong’
In the weeks leading up to Dorsey’s death, some of the people who helped send him to death row and people who typically support the death penalty joined abolitionists in trying to save his life.
Former Missouri Supreme Court Judge Michael Wolff, one of the judges who upheld Dorsey’s death sentence on direct appeal described it as a “rare case where those of us who sit in judgment of a man convicted of capital murder got it wrong.
“At the time, none of us on the Court were aware of how compromised and ineffective his trial lawyers were,” Wolff wrote in a letter to Parson, recommending the governor grant clemency.
Five of the jurors who sentenced Dorsey to death submitted letters for his clemency application expressing support for a life sentence. Several family members, including people who are related to the victims, indicated they did not want to experience another loss.
“We are devastated and disheartened by the final failure to save the life of our cousin, Brian Dorsey,” Jenni Gerhauser, Dorsey and Sarah Bonnie’s cousin, said in a statement on Tuesday. “We are not so blinded by our love for him that we don’t understand that he was convicted of committing a terrible crime against someone we loved just as deeply as we do Brian, but nor are we capable of rewriting history to convince ourselves that Brian still isn’t the same loving, compassionate, helpful person he always was. We know that if he had been in control of his thoughts and actions whatsoever, none of us would be in this position today.”
“The death penalty isn’t punishment for the convicted,” Gerhauser said. “This evening, Brian will be set free. His punishment will end, and for all of us only guilty of loving him, ours will begin. That is not the life sentence we sought.”
Dorsey, who never received a disciplinary infraction during his 16 years on death row, lived in the “honor dorm” and worked as a barber in the prison, cutting the hair of other prisoners, staff and even wardens.
More than 70 current and former Missouri correctional officers wrote in a letter to Parson that although “we believe in the use of capital punishment,” “we are in agreement that the death penalty is not the appropriate punishment for Brian Dorsey.” Some of the signatories wrote additional notes, describing their observations of Dorsey’s remorse and accountability.
“Mr. Dorsey has accepted what he did and taken accountability for his crime,” one correctional officer wrote. “It is my impression that he has spent his time since then trying to do his best by being a role model to other inmates and providing a valuable service to staff.”
Dorsey becomes the first inmate to be put to death this year in Missouri and the 98th overall since the state resumed executions in 1989. Only Texas (587), Oklahoma (124), Virginia (113), and Florida (105), have carried out more executions since the death penalty was re-instated on July 2, 1976, and a 4-year moratorium.
Dorsey becomes the 5th inmate to be executed this year in the USA, and 1,587th overall since the nation resumed executions on January 17, 1977.
Sources: Huffington Post, Jessica Schulberg; Rick Halperin, CBS News, April 10, 2024
