By Allison Retka
Missouri Lawyers Weekly
JEFFERSON CITY, Mo. — Last Tuesday, as word flew across the state about a 45-page ruling clearing defendant Joshua Kezer of the 1992 murder of a young southeastern Missouri woman, one person remained in the dark.
Kezer sat in his cell at the Jefferson City Correctional Facility, going about his usual routine.
For several hours after Cole County Circuit Judge Richard B. Callahan’s opinion came down, Kezer had no idea the judge had exonerated him and dismissed the evidence from his 1994 trial as “extremely weak. “
His Bryan Cave attorneys, who had been working on his case for three years for free, dialed him at the prison as soon as they heard about the ruling, but prison officials wouldn’t put the call through.
Finally, Bryan Cave lawyer Charlie Weiss made contact with his client.
“We’ve got great news,” Weiss said he told Kezer, who has been sitting in prison for 16 years. Not only had Callahan set aside his conviction on constitutional grounds, blasting police and prosecutors for withholding evidence and endorsing the lies of jailhouse snitches. But the judge went a step further and granted Kezer’s actual innocence claim.
Weiss said the revelation was met with stunned silence on the other end of the line.
From there, things happened quickly. News outlets spread word about the exoneration, especially Callahan’s sharp words for the conduct of former U.S. Congressman and Republican gubernatorial candidate Kenny Hulshof, a special prosecutor at Kezer’s trial.
Hulshof responded by standing behind the jury’s verdict and saying he remains convinced Kezer gunned down the victim, Angela Mischelle Lawless.
The next morning, Scott County Prosecuting Attorney Paul R. Boyd announced he had no plans to further prosecute Kezer and sent a letter to the Missouri Department of Corrections requesting his release.
Hours later, Kezer pushed open the doors of the Jefferson City prison and, with his mother at his side, stepped into the frigid air.
It was a hopeful, effusive moment for Kezer, his attorneys and other legal advocates who fight tooth and nail to exonerate the wrongfully convicted.
But others read Callahan’s ruling as a nauseating dose of reality: police and prosecutors made mistakes in Kezer’s case and sent the wrong man to prison. These mistakes are still happening today, they say.
Two exonerations in one year
When prison officials stymied Weiss’ initial efforts to contact Kezer, the attorney happened to have a remarkable resource at his side - Darryl Burton, another defendant whom Callahan exonerated last year.
Burton was at Bryan Cave’s St. Louis offices on Tuesday morning for a meeting of people trying to start up an Innocence Project in St. Louis to assist other wrongfully convicted defendants.
When he heard about Weiss’ struggle to reach his client, Burton, who spent more than 20 years at the same facility, called up some of his contacts at the prison and got word to Kezer that he needed to call his lawyers.
It was last August that Burton made his own tearful exit from the Jefferson City prison after Callahan ruled his process rights were violated when prosecutors failed to disclose the full extent of a witness’s criminal history during a trial in St. Louis Circuit Court.
Like in Kezer’s case, prosecutors at Burton’s trial presented no physical evidence tying him to the murder. In both cases, Callahan described the evidence against the defendants as “extremely weak. “
Callahan’s rulings in the wrongful conviction cases have caught the attention of prosecutors and defense attorneys alike.
A longtime Cole County prosecutor and past president of the Missouri Association of Prosecuting Attorneys, Callahan’s criticism of police and prosecutorial work carry considerable weight.
“For him to write something that strong tells me there was something there that clearly concerned him,” said Darrell Moore, the Greene County prosecuting attorney.
Mistakes in the Kezer case
In Kezer’s case, Callahan faulted prosecutors for failing to turn over critical exculpatory evidence to Kezer’s defense attorneys, including police notes that name another suspect.
That suspect, Mark Abbott, was a key prosecution witness; the person who first discovered Lawless’ body and claimed he saw Kezer driving in a car near the murder scene.
The Missouri Attorney General’s Office argued in Kezer’s habeas corpus case that it’s not uncommon for a person who found a murder victim to show up on an early list of suspects.
“That would be true except for the fact that the prosecutor, in an effort to bolster Abbott’s credibility, elicited the untrue fact that Abbott had never been considered a suspect” from a police witness, Callahan wrote.
At trial, prosecutors presented specks of fluid found on Kezer’s leather jacket and insisted they were the victim’s blood. They made this claim while knowing the fluid could be other substances, like vegetable stains, the judge wrote.
Callahan also slammed Hulshof for “endorsing the obvious lies” of several men who were jailed with Kezer before his trial and claimed he confessed to the killing.
Hulshof declined to be interviewed last week but issued a statement through a spokeswoman at Polsinelli Shughart. The longtime congressman joined the Kansas City-based firm earlier this year.
“Today’s opinion goes to great lengths to cast doubt on the credibility of the state’s witnesses,” Hulshof said in the statement. “But twelve jurors looked these witnesses in the eye, dispassionately listened to their testimony, and found them to be credible. “
He called Callahan’s ruling a “travesty of justice” for Lawless’ family.
‘Cool Breeze’ makes his mark
Albert Lowes, a Cape Girardeau attorney with Lowes & Drusch, represented Kezer at his 1994 trial.
Lowes, a 50-year veteran of the law with the boisterous personality of a Bootheel native, refers to Hulshof as “Cool Breeze,” the congressman’s nickname among lawyers in southeastern Missouri.
“Cool Breeze did everything under the sun wrong on that case,” Lowes said. “He continues his hot-dogging ways. “
He said it was Hulshof who backed the theory that Kezer was a member of the violent Latin Kings gang and confessed to the murder while partying at a friend’s apartment. The investigation on the killing was stalled until jailhouse informants gave police Kezer’s name.
Hulshof still insists Kezer was in a violent gang.
But Lowes said, “This was not a gang like Hell’s Angels. It was just a bunch of silly boys that should have done other things. “
For David Rosener, another attorney who worked on Kezer’s case, the trial - and specifically Hulshof’s actions - loom much larger.
Rosener was three days out of law school at the University of Missouri when he walked into Lowes’ office and was immediately put to work on Kezer’s case. That same afternoon he was in Kankakee, Ill., interviewing witnesses who backed the 17-year-old’s alibi.
Rosener also secured critical recantations from the inmates who fingered Kezer. He prepared to testify about them. But on the eve of the trial, prosecutors filed a motion to disqualify Rosener on the basis that a lawyer cannot be a witness and an advocate for his client.
To avoid a delay in the trial, Lowes and Rosener agreed that the young lawyer would remain silent and not participate in the trial. He subsequently was powerless to challenge the claims of the inmates when they testified that they only recanted because Rosener threatened them with violence. It was a lie that Hulshof endorsed during his arguments to the jury, Callahan noted.
“It was a really awful experience to see that someone so politically ambitious could have such a blatant disregard for truth and justice and be so determined to hurt so many people to obtain a conviction,” Rosener said.
“The outcome soured me in many ways. There hasn’t been a day in the past 16 years that I haven’t thought about Josh. “
Kezer’s conviction sent Rosener into a tailspin, he said. He drank heavily and foundered for years until moving north to Jefferson County and starting his own law practice.
Rosener, who handles criminal defense cases today, said he was elated when he heard about Kezer’s exoneration. But those joyful feelings turned bittersweet.
“Sixteen years of a man’s life was stolen from him for vain glory,” he said.
Discovering misconduct
Susan W. McGraugh, a law professor at Saint Louis University, read Callahan’s ruling last week and came away with a bitter taste in her mouth.
“I can’t celebrate because it makes me sick,” she said. “You can’t give people that back. “
McGraugh teaches a criminal defense clinic and courses on forensic evidence and the death penalty. The lesson of Kezer’s case is a blazing red flag, she said.
“What concerns me most is where there’s smoke, there’s fire,” McGraugh said. “It’s hard for me to see this as an isolated incident. “
A good portion of the new evidence in Kezer’s case was dug up by newly elected Scott County Sherriff Rick Walter, who reopened the investigation in 2006. Internal investigations by police and prosecutors uncover the kind of information that defense attorneys can never get to, she said.
Kezer’s is a high-profile case. But there are many more smaller cases that involve prosecutorial or police misconduct, she said. Defendants in these cases still plead guilty because they “didn’t trust in the system’s ability to ferret out misconduct,” she said.
“You have to wonder how many people plead guilty to things they didn’t do because they knew they couldn’t convince a jury that a police officer was lying,” McGraugh said.
Still happening today?
McGraugh said Kezer’s exoneration should prompt the Attorney General’s Office to look for misconduct in similar cases from that jurisdiction or from those individual prosecutors.
A spokesman for the Attorney General Chris Koster said if credible information about misconduct comes to light, the office will consider investigating. There are no current plans to look into past convictions, he said.
Other criminal defense attorneys join McGraugh in her suspicion that prosecutors and police still cut corners and violate court rules.
In a recent case in Jackson County, Circuit Judge Edith Messina accused an assistant prosecutor of withholding 260 pages of reports and material from defense counsel. Because the prosecutor’s office “perpetrated a fraud upon the trial court,” the judge threw out the defendant’s 22-year criminal sentence.
Walter, the Scotty County Sherriff who reopened Kezer’s case, said Callahan’s ruling works as a blueprint for what not to do in a murder investigation.
“Saying, ‘I’m going to key in on one or two people and not look at anyone else,’ that seems to be what happened in this case,” Walter said. “Once that happened, it seemed like everything else went out the window. We don’t want to make those mistakes. “
Moore, the prosecuting attorney in Greene County, said Kezer’s case is an aberration and that most prosecutors don’t engage in the misconduct detailed in Callahan’s ruling.
“If it’s true, it is bad,” Moore said of the details in the ruling. “But people also need to put in perspective that the vast majority of prosecutors, day in and day out, follow the law and do the right thing. “
Eric Zahnd, the Platte County prosecuting attorney, said his office implemented electronic discovery procedures to avoid the mistakes prosecutors made in Kezer’s case. Every document looked at by prosecutors is scanned, indexed and turned over to defense counsel, he said.
Mistakes like an investigator failing to turn over notebooks to the prosecutor, which happened in Kezer’s case, are not necessarily the fault of the prosecutor, Zahnd said.
Zahnd said it’s every prosecutor’s worst nightmare to send the wrong person to prison.
“I believe it happens only in very rare situations, but those are the most egregious sorts of cases we could have,” Zahnd said. “My job as a prosecutor is to do justice, and that means exonerating the innocent just as much as convicting the guilty. “
Grisham to raise funds for innocence
News of the exoneration of Joshua Kezer hit the law offices of Bryan Cave at an opportune time. The St. Louis office of the firm was hosting a meeting of local attorneys and advocates who want to expand the Midwestern Innocence Project and set up an office in St. Louis.
Now based in Kansas City, the Midwestern Innocence Project was established in 2000 to exonerate inmates the group believes were wrongly convicted.
A committee has been formed and fundraising is underway. These efforts will be boosted on April 22, when bestselling author John Grisham visits St. Louis for a fundraising event.
The event will be held at the Renaissance Grand Hotel in downtown St. Louis. Individual tickets are $125 and reserved tables are $1,250, with money supporting expansion of the Midwestern Innocence Project.
Visit www.themip.org for more information.
Copyright 2009 Dolan Media Newswires