Shepard murder trial: 2 men plead guilty of murdering Shepards, 1 man continues to maintain innocence / Jury select set to begin today

When Spencer T. Anderson and Daniel Berning pleaded guilty May 9 in the deaths of Richard and Jessie Shepard, they left Lyndale D. Henderson, who has continued to assert his innocence, standing alone to face trial.

Pleading guilty to the reduced charge of second-degree murder carried the most benefit for Anderson -- it took the death penalty off the table as a punishment option.

After the May 9 hearing, when asked about the reduction of the charge from first-degree to second-degree murder, Prosecuting Attorney Donald G. Stouffer said he'd given the issue a lot of thought.

"The death penalty should be administered fairly, and I had trouble justifying the state putting Anderson to death, when his two co-defendants, within a year or 18 months of his age, were not eligible," he said.

Stouffer said he hadn't made a decision on whether to seek the death penalty for Anderson before the hearing, because that decision is usually made much closer to the trial date. Anderson had been scheduled for trial in September.

"I don't know what I would have done," he said. "But I've spent a lot of time thinking about it."

On June 6, about a month after Anderson and Berning pleaded guilty, Henderson's attorneys, George A. Batek and Kathryn N. Benson, filed a motion for delay of the trial.

Citing the plea agreements as dramatically changing their case, Batek and Benson said they did not have enough time to depose witnesses and prepare an adequate defense before the scheduled trial date in July. Judge Robert L. Koffman ruled in their favor, setting a new trial date in September.

Anderson's and Berning's guilty pleas leave Henderson as the only one of the three to stand trial on the original charges. Unlike the other two, Henderson is still charged with two counts of first-degree murder, two counts of felony armed criminal action, first-degree arson and first-degree burglary.

Henderson's trial begins today, Sept. 22, in a Clay County courthouse, where the jury of 12 and two alternates will be selected. Once selected, jurors will be brought to Saline County, where they will be sequestered for the duration of the trial, as required by Missouri law in major cases such as this one.

Despite the Constitution's Sixth Amendment guarantee of a right to a jury trial, criminal jury trials have become rare in the United States. According to U.S. Department of Justice statistics, approximately 95 percent of criminal cases end in either a plea bargain (91 percent) or a bench trial (4 percent).

Rarer still is a sequestered jury. Sequestration means that jurors cannot read the newspaper, watch television, listen to the radio, use the telephone, including a personal cell phone, or communicate by regular mail or e-mail. Reading material such as books or magazines are permitted, but must be screened by law enforcement staff ahead of time. When they are outside the jury room, jurors cannot discuss the case with anyone, including their fellow jurors.

According to Missouri's "Jury Guide," sequestration "is meant for jurors' protection. It is used to keep the jurors away from the media or others that could improperly influence a juror's decision." Jurors do not go into this situation blindly. The guide says the court will inform jurors if they will be sequestered.

Juror compensation is, at best, slight. In 1999, new laws were enacted in Missouri that set the minimum pay rate at $6 per day, with additional compensation from the county where the case is tried, if the county elects to pay it. The maximum rate is pegged at $18 per day.

Henderson has been at Saline County Justice Facility for more than two years, waiting for his day in court.

Where he spends the rest of his life hinges on the ability of his attorneys to convince the jury that he should spend it as a free man.

The forces arrayed against him are considerable -- Berning and Anderson will testify not only about their part in the crime, but what they allege was his part in it.

The list of witnesses scheduled to testify has 90 names on it. More than 100 subpoenas were issued, some by both the prosecutor and the defense attorneys to the same witness. Many of those who will testify are among the dozens of city and county emergency, law enforcement, fire and rescue personnel who were involved in the case two years ago.

There may be only five people who know with certainty what really happened that night on South Lafayette Avenue or why.

Two of them are beyond the reach of any court.

Two more already know they will spend years in prison.

Only Lyndale Henderson is still guessing, betting everything on the trial ahead.

Contact Kathy Fairchild at marshallhealth@socket.net