It was two days before Christmas in 2006 and 34-year-old Brian Dorsey was in trouble: Two drug dealers were at his apartment, demanding money.
Despite repeatedly seeking addiction treatment, Dorsey had been drinking daily for years and routinely binged crack cocaine, a drug that caused him to experience psychosis and left him feeling deeply ashamed.
And now he was in a position where he had to call several family members and ask them for cash. They declined but went to Dorsey’s apartment and convinced the drug dealers to leave. Dorsey’s cousin, Sarah Bonnie, and her husband, Ben Bonnie, invited Dorsey to spend the night at their place. He took them up on the offer, and spent the evening drinking and playing pool with his relatives.
The next morning, Sarah Bonnie’s parents found her and Ben Bonnie dead in their bedroom. Their 4-year-old daughter sat on the couch in the living room. Dorsey turned himself into the police two days later. Following the advice of his appointed counsel, he pleaded guilty to two counts of first-degree murder without securing any deal from prosecutors to take the death penalty off the table. After a two-day sentencing trial, a jury sentenced him to death. On April 9, the state of Missouri plans to execute Dorsey, using a lethal injection of pentobarbital.
Like most people on death row, Dorsey couldn’t afford to hire a lawyer for the resource-intensive work of a death penalty trial. Instead, the Missouri State Public Defender’s Office, which has faced chronic underfunding, contracted with two private attorneys, Christopher Slusher and Scott McBride. They were each paid a flat fee of $12,000 to represent Dorsey. Between 1998 and 2004, defense lawyers for people facing the death penalty spent an average of 3,557 hours per trial, according to a 2010 report. If Dorsey’s lawyers had put in that much time on his case, they would have been paid about $3 per hour.
“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 current lawyers wrote in 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.
“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 petition continued.
Former Missouri Supreme Court Judge Michael Wolff, one of the judges who upheld Dorsey’s death sentence during his 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 Gov. Mike Parson (R), urging him to grant Dorsey clemency.
In a separate letter to the governor recommending clemency, Missouri Public Defender director Mary Fox noted that her office no longer uses flat fees in death penalty cases because it incentivizes spending a minimal amount of time on a case. The American Bar Association’s guidelines describe the use of flat fees as “improper in death penalty cases.”
Slusher declined to comment. McBride did not respond to a request for comment.
Dorsey, whose father struggled with alcoholism throughout Dorsey’s childhood, began drinking and using crack cocaine as a teenager, according to the habeas petition. He suffered from treatment-resistant major depressive order and survived multiple suicide attempts. He tried addiction treatment programs, but was unable to stay sober. He preferred to isolate during drug binges because he often experienced paranoid delusions, the petition said.
When Sarah and Ben Bonnie brought Dorsey to their home on Dec. 23, 2006, he had spent the previous two to three days drinking and smoking crack, with no sleep or food. When he got to their home, he noticed a gun in the barn when they were playing pool, and thought about how easy it would be to kill himself, he would later testify during his sentencing trial. Although he has never denied killing the Bonnies, his memory of the evening is spotty, he testified, leaving him unable to describe exactly what happened or why.
Dorsey called his mother late on Christmas night and said he wanted to end his life. He ultimately agreed to have his parents pick him up and spend a final night together in a motel room. He turned himself into the police the next day.
Dorsey was charged with two counts of first-degree murder — the crime of “knowingly” causing the death of another person “after deliberation upon the matter.” The state sought the death penalty.
Ahead of Dorsey’s trial, Slusher called Janet Thompson, who, at the time, was an appellate lawyer in the state public defender’s office. Slusher told her he planned to have Dorsey plead guilty even though there was no deal from prosecutors to take death off the table and he wanted her opinion.
“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.
ABA guidelines similarly advise defense lawyers to be “extremely reluctant” to waive a client’s trial rights without a guarantee that the death penalty will not be imposed.
But Dorsey’s lawyers did not change 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 they spoke with Dorsey about pleading guilty was on March 10, 2008, the morning of his plea hearing, his current lawyers wrote in his habeas petition. With no time to consult with his parents about this life-or-death decision, Dorsey trusted his lawyers. He pleaded guilty.
At the time, Slusher and McBride had done no investigation into alternative defense strategies, according to the habeas petition. Although the trial lawyers had the option of requesting funding to staff their team, they declined to hire a dedicated investigator or mitigation specialist, as ABA guidelines recommend in capital cases.
“Ultimately, this meant the jury was never presented with an alternative narrative — much less the truth: that Brian Dorsey was experiencing drug psychosis and not guilty of first-degree murder,” the habeas petition read.
Indeed, Robert Lee Smith, the clinical psychologist who testified for the defense during Dorsey’s sentencing trial, described Dorsey as having “diminished capacity.” However, that testimony was struck since Dorsey had already pleaded guilty, the habeas petition noted.
Even if Dorsey’s trial lawyers hadn’t been able to convince jurors Dorsey was innocent of first-degree murder, going through the guilt-innocence stage of the trial would have presented an opportunity to “front-load” mitigation evidence for the penalty phase, said Arin Melissa Brenner, a federal public defender who is currently representing Dorsey.
Mitigation evidence is information, such as evidence of family trauma, addiction or mental illness, that can reduce a defendant’s culpability. It is a key part of the sentencing stage, but it can also be introduced during the first stage of trial to give jurors a fuller picture of the defendant’s life and the events that led to the crime.
“You’re kind of getting the jury ready to hear about what went wrong here,” Brenner told HuffPost. “Yes, maybe they are guilty, but you are framing how the jury should receive all the information they are about to get overloaded with — and that’s especially true for experts. If you are introducing a lot of brain science to jurors, it helps to pave the way for it in the guilt phase, so it’s more readily understandable and applicable in the penalty phase.”
Presenting a strong defense during the guilt-innocence phase of trial can also impact the penalty phase by leaving jurors with “residual doubt” about what happened, Brenner said. “If there isn’t any concrete proof of what actually happened at a crime scene, or what the defendant was actually thinking or doing, I have seen that residual doubt translate into life without parole sentences instead of death.”
During the sentencing phase, prosecutors argued that Dorsey had sobered up by the time of the killings. They portrayed him as a calculated murderer who lied to the jury about having a spotty memory of the night of the crime.
“Despite defense counsels’ supposed strategy of putting all their eggs into the sentencing phase basket, they made no effort to counter the government’s erroneous assumptions and allegations,” Dorsey’s current lawyers wrote, citing research showing that cocaine-induced psychosis can last for days.
Although the state never charged Dorsey with sexual assault, they claimed at trial that he raped Sarah Bonnie, and used that allegation as an argument in favor of the death sentence. The state’s evidence of rape was thin, but their narrative went largely unchallenged at trial, according to court documents. When the jury announced their verdict, they cited the rape as one of the aggravating factors in support of their decision.
“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.”
Thompson, the appellate public defender who advised Slusher against pleading guilty without a deal to remove the death penalty, went on to represent Dorsey during his direct appeal. After speaking with Dorsey and learning that the plea idea was sprang on him with little time to consider, she reported her concerns to her supervisor.
“I further opined that the System should not hire Mr. Slusher nor Mr. McBride for death penalty cases again,” Thompson wrote in a 2015 affidavit.
During Dorsey’s 16 years on death row, he has never had a single disciplinary infraction, a rare feat in a place where guards can issue infractions for something as minor as a prisoner’s tone of voice or the number of pieces of paper they have in their cell. He lives in the prison’s “honor dorm” and is entrusted to work as a barber, cutting the hair of other prisoners, staffers and even wardens.
More than 70 prison staffers, including a former warden, signed an extraordinary letter urging Parson to commute Dorsey’s sentence to life without parole. “We are part of the law enforcement community who believe in law and order,” they wrote. “Generally, we believe in the use of capital punishment. But we are in agreement that the death penalty is not the appropriate punishment for Brian Dorsey.”
A handful of the signatories wrote additional personal notes, describing their observations of his remorse and accountability. “It would be a loss to the state if he were executed,” one signatory wrote. “I have never written a letter like this before, and I doubt that I ever will again. Brian Dorsey is just different.”
Last month, Dorsey filed another state habeas petition, arguing that it would violate Eighth Amendment protections against cruel and unusual punishment to execute someone who had been rehabilitated.
Dorsey also asked a federal court to delay his execution, arguing that the state’s lethal injection protocol risks causing Dorsey “serious, torturous, physical and psychological pain” and could prevent him from any meaningful spiritual discussion with his spiritual adviser during his final moments. Because the prison staffers setting the IV lines are not trained medical professionals, they sometimes resort to “cut-downs,” a procedure that involves slicing into an individual’s skin to access the veins.
Dorsey’s clemency request is currently pending. The Missouri Probation and Parole Board will issue a nonbinding and nonpublic recommendation to Parson, who makes the final determination about whether to allow Dorsey to live.