Messenger: Judge follows jury advice in case that highlights Missouri’s criminal murder dilemma | Tony Messenger


Robert Smith turned to face the brother of the man he had killed.

Smith wore the orange jumpsuit of a St. Louis Justice Center inmate. The 52-year-old black man was cuffed at the ankles and hands, tight enough that when told to raise his right hand to swear he would tell the truth, he could barely lift it to the chest.

Three years ago, on Thanksgiving morning, Smith pulled out a gun and shot Todd Toston Sr. The two men shared an apartment in Hamilton Heights in a high-crime neighborhood on the city’s north side. They had an argument in the kitchen. According to the evidence in the case, Toston, high on cocaine and fentanyl, came at Smith with a knife. Smith fought back and killed the man.

Robert Smith, 49, of St. Louis, was charged on Friday, Nov. 30, 2019, with murder and felony armed felony in the Nov. 28, 2019, shooting of Todd Toston Sr., 69, of St. Louis.

The jury believed him. They found him not guilty of the first-degree murder charge sought by Circuit Attorney Kimberly M. Gardner’s office. They found him not guilty of manslaughter and second degree murder.

But shortly before trial, Gardner’s office added a felony murder charge. Under Missouri law, self-defense cannot be invoked when someone kills another person in the act of committing another crime. Smith’s crime was that he had a gun. He doesn’t have the right to have one because 20 years ago he was convicted of drunk driving.

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The jury found him guilty because, as the foreman later wrote to the judge, they had no choice.

“The hands of the jury were tied and had no choice but to convict an innocent man,” jury foreman Jason Cummings wrote in his April 27 letter. “It felt so wrong and still feels wrong.”

So here Smith was on Thursday, with Circuit Judge Katherine Fowler set to determine his sentence for a conviction that the foreman said was based on bad law. Fowler asked Smith if he had anything to say. It was then that he turned to Toston’s brother, Don, seated a few rows further down the courtroom.

“I never had a problem with your brother,” Smith said. “I really cared about Todd.”

‘loving person’

The Toston brothers grew up in the south side of town. Don, the older brother, the one sitting in the courtroom, graduated from Roosevelt High School. They lived on McRee Avenue. The two-story red-brick house with the covered porch still stands in the McRee Town neighborhood. The neighborhood has seen better days. It fell into disrepair in the 1970s after the construction of Interstate 44 cut it off from the rest of the Shaw neighborhood. Today, it faces a new challenge: the gentrification that accompanies reconstruction after urban decline and destroys the old to replace it with the new type of housing that is unaffordable for the people who lived there.

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There is a deep connection between what happens to a neighborhood that is deteriorating and the rising crime that often follows. That’s a point Fowler would make on Thursday. Housing instability and lack of jobs often increase the risk factors that lead to crime. There was a time when McRee Town to the south and Hamilton Heights to the north were strong working-class neighborhoods with little crime. Men and women were returning from work in close-knit neighborhoods where red brick houses lived side by side. St. Louis’s long history is that as neighborhoods crumble due to neglect, crime creeps in and finishes the job.

Don likes to pass the old family home when he’s in town. He’s a retired firefighter living in Kansas City. He was in St. Louis this week to visit his mother, Ozell, on Mother’s Day. She is 88 years old. Don says he learned of the conviction from the DA’s office at the last minute. He wasn’t happy about it.

“The family was not even informed of the trial,” he said. “I only found out on Tuesday.”

This is when Smith’s sentencing was to take place. He was pushed back so the Toston family could be in the courtroom.

Don and I spoke on the steps of the Civil Courts building after the sentencing. He pointed to the Ark.

“That’s where my dad worked.”

James Toston was born in 1928 in Boydell, Arkansas. He and Ozell married in 1949. They moved to St. Louis and had eight children. Toston worked in construction. His name, Don says, is on a panel somewhere in the museum under the Ark as one of the people who worked on the West Gate. The elder Toston died in 2011.

After high school, Don and Todd’s life took different directions. Don joined the Air Force and then the fire department. Todd dropped out, although he later earned his GED. He developed a drug problem. But he wasn’t violent, his brother said.

“He was a very loving person,” Don says.

The phrase

This is what he told Smith after the defendant addressed him in the courtroom.

“He would have given you the shirt he had on his back,” Don said of his brother.

Smith asked for forgiveness. Don was not ready to offer it.

At that time, Judge Fowler asked Smith to face him for sentencing. The accused had one more thing to say:

Now it was Fowler’s turn to decide.

The attorneys handling the case – Assistant District Attorney Srikant Chigurapati and Assistant Public Defender Josh Lohn had presented their arguments. Chigurapati asked for a sentence of 15 years for the crime of murder and three years for the possession of firearms. Lohn, citing the “unjust law” which did not allow an argument of self-defense to apply to the murder charge, pleaded for leniency.

Fowler expressed his sadness for the loss of Toston’s life. But she agreed that this case involved what she called “exceptional circumstances”.

“The jury found that Mr. Smith was acting in self-defence,” she said, and the sentencing report suggested he was at “low risk” of reoffending. Fowler sentenced Smith to 10 years for murder, but suspended that sentence, adding five years of probation. She sentenced him to the minimum sentence of three years for possession of firearms, but two and a half years of those years had already been served in the city jail.

Smith will go to state prison for about six months and then go on probation. One of his first stops while he’s out will be at Fowler, who said she would expect him to appear in court once a month for at least six months.

“I want you to continue inspiring others,” she told Smith, noting the mentorship work he had done in the city jail over the past two years. She wants to monitor his housing situation, make sure he gets the right support and completes the 100 hours of community service she has assigned to him. “I want you to dedicate your life to making Todd Toston’s name honored.”

unjust law

Lohn called the sentencing a “fair result,” which recognized the unjust nature of a law that prohibits a reasonable defense. Missouri has one of the broadest murder rules in the country. Many courts or state legislatures have limited their use – or allowed self-defense arguments.

Lohn plans to appeal the case. He hopes to give the Missouri Supreme Court the opportunity to send a message to the Missouri Legislature that the law needs to be changed. He might have momentum on his side.

Last December, two months before Smith’s trial began, the High Court overturned a somewhat similar murder conviction. In that case, a Jackson County man named Tyler Gates was charged with robbery-related murder. But the circuit judge did not allow Gates to present his defense that the other man was in fact robbing him because it related to his self-defense claim.

“By prohibiting Gates from presenting evidence on the ultimate issue in his case, the circuit court prevented Gates from presenting a full defense, in violation of his Sixth and Fourteenth Amendment rights,” the court ruled unanimously. Supreme of Missouri.

“This law is not fair,” Lohn says. A juror’s plea for leniency and a judge’s fairness in sentencing fuels his argument. “It was the law that convicted Robert, not the jury.”

Don Toston did not see the case that way. “Justice has not been served for our family,” he said.

Smith was grateful that the judge had mercy.

He should be home for Thanksgiving.


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