The Latest in the Life of My Case: Questions surround Kenny Hulshof’s tactics in murder prosecutions

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Questions surround Kenny Hulshof’s tactics in murder prosecutions

By TONY RIZZO, The Kansas City Star

Kenny Hulshof once excelled at asking tough questions in Missouri courtrooms.

But this spring, the former star prosecutor and congressman found himself in the hot seat of the witness stand answering pointed inquiries from an attorney and a judge.

Across the courtroom sat Mark Woodworth, a former farm boy who has spent most of his adult life imprisoned for a murder that he says he didn’t commit.

Hulshof prosecuted Woodworth as an assistant attorney general in 1995 after already having built a statewide reputation as an aggressive and skilled legal tactician in trials for other accused killers.

Most, like Woodworth, ended up in a prison cell — some on death row.

But today, years after Hulshof tried his last criminal case, Woodworth is the latest inmate to pose what have become persistent questions.

Did Hulshof push the rules to win? And in doing so, did he sometimes convict innocent people?

Woodworth and his attorney contend in court documents that he did. They are seeking exoneration.

If Woodworth succeeds, it will mark the third time in as many years that a Hulshof-prosecuted murder defendant won his freedom after enduring roughly 15 years behind bars.

In their rulings, two judges have criticized Hulshof’s courtroom tactics. In court filings, several attorneys have accused Hulshof of making improper arguments to juries, misstating evidence or, in some cases, telling juries things that he knew, or should have known, weren’t true.

In one case, he argued there was blood on a defendant’s clothes even though scientific testing had not confirmed that. In another, he assured jurors that a crucial prosecution witness would be locked up for a decade for his role in a killing — but then the witness got off with probation.

And in some cases, including Woodworth’s, attorneys have claimed evidence was withheld from the defense.

In at least 13 murder cases, defense lawyers have alleged misconduct by Hulshof or others involved in prosecutions that he either assisted or led. In six of those, courts have thrown out convictions or overturned death sentences. In a seventh case, Missouri’s governor commuted the defendant’s death sentence to life in prison.

Hulshof vigorously defends his record. He said that he never withheld evidence personally, did not intentionally mislead jurors and always adhered to ethical standards.

“It’s your career. It’s your professionalism. It’s your reputation,” he said. “Those things were, and continue to be, very important to me.”

Though he spearheaded some prosecutions, Hulshof points out that he only assisted in others. Many of the prosecutorial misconduct accusations involve actions other than his own, he said. The same goes for claims of withheld evidence. Though prosecutors are responsible for forwarding all potentially useful evidence to the defense, Hulshof said he was as surprised as others to learn, sometimes years later, that investigators hadn’t given him everything that needed to be forwarded.

No court has found that Hulshof personally withheld evidence.

Hulshof notes that probably no Missouri prosecutor tried more murder cases during the six-plus years he was an assistant attorney general and that appellate lawyers employ “any and all means” to make their case.

“So in that regard, it comes with the territory,” he said of facing so many accusations.

Although he has not studied the specific allegations in Hulshof’s cases, Bennett Gershman, a nationally recognized authority on prosecutorial misconduct, said the number of reversals from Hulshof’s six-year tenure was “significant.”

“I don’t think this is something innocuous. … The numbers are pretty glaring,” said Gershman, a law professor at Pace University in New York who has written textbooks on prosecutorial ethics and lectured to prosecutors across the country, including in Missouri.

A 2003 study by the Washington-based Center for Public Integrity, a nonprofit investigative journalism center, found 77 Missouri cases dating to 1970 where judges cited, among other things, prosecutorial misconduct in reversing convictions or sentences.

Hulshof prosecuted or helped prosecute three of them.

The study’s authors called such reversals relatively rare and noted that any prosecutor who has more than one “belongs to a select club.”

Because so many questions have been raised in his cases, Hulshof’s mere involvement has become fodder for appeal.

“The actions of Mr. Hulshof are clearly part of a shocking pattern of deliberate disregard for the rights of many persons he has prosecuted,” Bob Ramsey, Woodworth’s current attorney, wrote in a court filing.

Hulshof said to consider the source: Ramsey is advocating passionately in a case he wants to win.

“The word ‘agenda’ may be too onerous,” Hulshof said. “But certainly he has a bias in favor of his client.”

Courtroom star

Words, and their power to persuade, made Hulshof a man to be reckoned with in small-town courtrooms across Missouri.

“He was a great public speaker and had a natural knack for the dramatic,” said Cape Girardeau County Prosecutor Morley Swingle, who gave Hulshof his first prosecutorial job in 1986.

Hulshof’s work in Cape Girardeau caught the eye of a lawyer with the Missouri attorney general’s office who recommended Hulshof for a job there. In 1989, he became an assistant attorney general.

He served as a troubleshooter, called in to help county prosecutors in complex cases throughout the state.

Hulshof prosecuted 58 defendants, most for murder — including the high-profile cases of Faye and Ray Copeland, the elderly couple sentenced to death for killing five transients on their Livingston County farm in the late 1980s.

In his murder cases alone, Hulshof won 28 convictions and lost only two trials. Seventeen other defendants pleaded guilty. One conviction later was overturned, and the defendant was acquitted in a second trial tried by a different prosecutor.

Attorneys sometimes drove across the state to see Hulshof deliver one of his impassioned closing arguments, a former colleague said.

“Golden-throated,” one courtroom adversary described him.

Juries loved Hulshof, say lawyers who tried cases against him. With his rural Missouri background and folksy style, he knew how to connect with the men and women he sought to persuade.

Attorney Steve Walsh from Poplar Bluff, Mo., one of the few lawyers to face Hulshof in a murder trial and win, described Hulshof as “very aggressive” and said he appeared “crushed” when he lost.

“I didn’t see him as having a bad character,” Walsh said. “But winning and putting a W in the win column meant a lot to him.”

Hulshof said he was “poignantly aware” that he was the voice of crime victims going through a terrible ordeal.

“On those occasions where the judge or jury found the prosecution’s case insufficient, it affected me personally, as I had empathy for those individuals who had looked to the legal system for justice and had found none,” he said.

Other adversaries said Hulshof was aggressive but treated them and their clients fairly.

“He was a formidable opponent,” said attorney Joel Eisenstein. “He was honest, forthright and a great lawyer.”

Like all good trial attorneys, Hulshof knew how to play to a jury and get the most from the evidence, Eisenstein said.

Some critics, however, allege in court records that Hulshof misrepresented available evidence to a jury.

Kansas City attorney Sean O’Brien, who has handled appeals for several Hulshof-prosecuted defendants, said that more than once he has uncovered instances where Hulshof elicited testimony from witnesses that was contrary to reports in the prosecutor’s file.

“Is he (Hulshof) doing it carelessly?” asked O’Brien, a law school professor at the University of Missouri-Kansas City. “Doesn’t he know the file?”

In 1996, Hulshof rode his successful record as a tough prosecutor to a seat in Congress. In 2008, he ran for governor of Missouri but lost to Jay Nixon, his former boss in the attorney general’s office. In 2009, he joined the Kansas City law firm Polsinelli Shughart, where he works in the firm’s public policy group.

Actual innocence

These days, on serene mornings fishing near Bagnell Dam along the banks of the Osage River, Dale Helmig enjoys the freedom he was denied so long.

But even that bucolic tableau can’t erase the painful memories of a man who spent nearly 15 years in prison for a killing that he says he didn’t commit. At least Helmig has someone to talk to who understands.

Josh Kezer also spent about 16 years in a Missouri prison for murder (The article mistakenly had 15 and I seen fit to correct it, as every year of my suffering mattered and still matters). Like Helmig, he was freed after a judge found he was convicted wrongfully.

Hulshof declined to say whether he still believes Helmig and Kezer are guilty, even as new evidence uncovered in recent years helped convince judges that they were not.

“I believed that when I went into court in each of those cases that we had a strong, albeit circumstantial evidence, case to prove guilt beyond a reasonable doubt,” he said.

It was about 40 meandering miles downstream from Bagnell Dam in 1993 that two fishermen discovered the body of Helmig’s mother tied to a concrete block.

There were no signs of injury to Norma Helmig, and an autopsy failed to reveal how she died. A coroner testified that absent any other cause, she probably died of asphyxiation.

In 1996, when Dale Helmig went to trial, Hulshof argued to the jury that Helmig smothered her with a pillow.

“It really hurt to hear that,” Helmig said recently.

The hurt only multiplied when the jury returned after about four hours of deliberation and proclaimed him guilty.

“That took the starch right out of me,” he said. “I never really thought I’d be found guilty. I thought if you were innocent and had an attorney, that’s all you needed.”

For Helmig, it wasn’t.

And he very well may have spent the rest of his life in prison if O’Brien hadn’t taken an interest in his case.

O’Brien initially declined to take the case. He changed his mind when he heard Hulshof had prosecuted Helmig.

With the help of the Midwestern Innocence Project and a cadre of lawyers, students and investigators, O’Brien spent years researching the facts surrounding the case.

“There is no question the jury was misled,” O’Brien said.

Last November, a judge came to the same conclusion.

“Mr. Helmig is the victim of a fundamental miscarriage of justice,” DeKalb County Senior Circuit Judge Warren McElwain wrote.

He ordered Helmig freed.

McElwain found that Hulshof “knew or should have known” that testimony heard by jurors was false.

He cited testimony by a state trooper when Hulshof asked him if Helmig had denied killing his mother.

“Sir, at any time during these contacts, and particularly during this conversation which you’ve just shared with us, did Dale Helmig ever deny killing Norma Helmig to you?” Hulshof asked the trooper at trial.

The trooper answered: “No, sir, he did not.”

Yet the trooper’s written report in the prosecutor’s file said: “He (Dale Helmig) stated that he did not murder his mother.”

Hulshof told The Star that he was trying to focus the trooper’s testimony on one specific interview when Helmig didn’t deny the killing, not on other times when he did.

“The question was a bad question,” Hulshof said. “It wasn’t to try to obfuscate.”

In another instance, the judge found that jurors were left with the impression that a few days before the murder, Helmig threw a cup of coffee in his mother’s face during an argument at a restaurant. Actually, another person had thrown coffee in her face. In his ruling, the judge said prosecutors cited unproven allegations of a similar incident involving Helmig.

The judge termed it a “highly improper and prejudicial” tactic.

In his ruling, he also noted that law enforcement officers concealed information and evidence from the defense and that Helmig’s lawyer was ineffective and may have been under the influence of drugs during the trial.

Beyond his findings that the prosecution’s actions had denied Helmig a fair trial, McElwain found that Helmig presented clear and convincing evidence of actual innocence.

No direct or physical evidence tied Helmig to the scene, McElwain noted. Law enforcement officers had recanted or clarified important aspects of the case, including the coffee incident. And new evidence — involving the victim’s purse — supported Helmig’s innocence, the judge said.

The purse was found in a field seven months after the killing. The prosecution contended that Dale Helmig threw it away the night of the crime. However, a canceled check in the purse had cleared the bank after Norma Helmig’s death. It would have arrived at her home almost two weeks after her murder.

“The evidence surrounding the check establishes that Mrs. Helmig’s purse could not have been thrown into the river on the night of her death, as argued by the prosecution,” the judge wrote.

In March, the Missouri Court of Appeals upheld McElwain’s decision to throw out the conviction. And last week, the Osage County prosecutor announced that she would not retry him at this time, although she noted there is no statute of limitations for murder.

Helmig is living with his brother in Rocky Mount, near the Lake of the Ozarks, and has been looking for work without success. At least that gives him plenty of opportunities to go fishing, and he never feels freer than when he has a fishing rod in his hand on that river where some mighty big crappie swim.

He also proudly describes the accomplishments of his children, including his youngest daughter, now 16, who was a toddler when he went to prison.

“There’s such a big gap between being in diapers and 16,” he said.

Wrongfully convicted

Josh Kezer was 19 when thrown into the decrepit prison in Jefferson City once dubbed the “bloodiest 47 acres in America.”

In 1994, a jury found him guilty of second-degree murder for the 1992 killing of Mischelle Lawless along a highway exit ramp in Scott County, Mo.

Kezer claimed he’d never met her. No murder weapon was found and no physical evidence linked Kezer to the crime, though at trial Hulshof argued that it did.

As he did in Mark Woodworth’s murder trial the next year, Hulshof appealed to the jury’s sense of justice.

“You are our only hope,” he told them.

A judge’s order freed Kezer in 2009.

In his ruling, Circuit Judge Richard Callahan, now the U.S. attorney in St. Louis, said the entire criminal justice system failed in Kezer’s case, from the investigation through the trial and the appellate process. That included when investigators withheld police reports and notes favorable to Kezer’s defense, he ruled.

Callahan also noted that evidence presented at trial and cited by Hulshof in his closing argument has since been refuted or proved false.

Hulshof summarized the evidence against Kezer this way: “We put him at the scene. We put a gun in his hand. We put the victim with him. We have got blood on his clothes.”

In ordering Kezer’s release, Callahan wrote: “We now know that none of what Mr. Hulshof said in that final summary was true.”

Hulshof says that phrase has been unfairly reported in the news media. Later, Callahan wrote a letter to Hulshof in which he apologized for the way the media had portrayed the ruling.

“I never believed that you personally withheld any evidence,” Callahan wrote.

In his ruling, Callahan noted that the jail inmates who testified that Kezer confessed to them later had recanted.

A man who testified that he saw Kezer in a car near the murder scene was himself a suspect — although a sheriff’s deputy testified he wasn’t. That man also gave conflicting accounts of who was in that car. That was among the information not provided to the defense before trial, court records say.

And the woman who testified that she saw Kezer and Lawless argue at a party shortly before the murder later admitted she was wrong. The party’s host came forward after the trial to say that Kezer didn’t even attend the party.

When Hulshof told jurors there was blood on Kezer’s clothes, he was referring to several spots that reacted to a preliminary test for blood. He described how the test “glows like a Christmas tree.” Only years later did lab workers conduct a test that determined the spots were not human blood.

In his ruling, Callahan said the prosecution knew at trial that the testing did not prove the presence of blood, yet argued that it did.

“The prosecutor also knew there was no evidence linking any of it, whatever it was, to Mischelle Lawless or Josh Kezer,” the judge wrote.

Hulshof said recently that jurors knew from expert testimony that the test was only presumptive and that based on the evidence, it was a “reasonable inference” to argue that the substance was blood.

For Kezer, it was an example of how Hulshof operated in the courtroom.

“Hulshof’s tactic is smoke. Juries see smoke and think there’s fire,” Kezer said. “He creates the smoke.”

Kezer sued the county and several law officers over his wrongful conviction because they had withheld information. He settled the case, reportedly for several million dollars. Hulshof was not named in the suit and in fact aided Kezer by testifying that the information also was withheld from the prosecution.

Kezer, who now lives in Columbia, said he refused to allow the anger and bitterness over his situation to fester during his prison years. And he now works to support others prosecuted by Hulshof. He recently donated $10,000 to a defense fund for Rick Clay, who, like Kezer, Helmig and Woodworth, maintains that he is innocent of murder.

Still fighting

Clay was one day and 15 feet away from death.

This January, cloistered in a glass and cinder block holding cell next to Missouri’s death chamber, he waited for word from the governor on whether he would live or die.

It seemed a forlorn hope.

As attorney general, Nixon vigorously had advocated capital punishment. Throughout Clay’s appeals, Nixon’s office had fought to keep him locked up. And Nixon had been Hulshof’s boss when he won the conviction and death sentence against Clay for a 1994 killing in New Madrid County, Mo.

As Clay’s execution hour drew near, his attorneys argued for more time to pursue Clay’s innocence claim. To bolster their argument, they invoked Hulshof’s involvement.

“Also significant to the heightened need for a thorough clemency process for Mr. Clay is the fact that the overriding reason alleged for his wrongful conviction is prosecutorial misconduct by Kenny Hulshof,” they wrote. “Hulshof has a track record of misconduct that cannot be ignored.”

Nixon surprised many people, especially Clay, when he commuted his sentence to life in prison. Nixon did not explain his reasons but stated at the time that he still believed Clay was guilty. The governor declined to comment for this story.

Hulshof said he has not spoken to Nixon about the decision, and he declined to say if he agreed with Nixon’s action.

“Our justice system in Missouri allows for the governor of the state to commute a sentence, and so the justice system has worked whether you have personal feelings or views about it or not,” Hulshof said.

Not since 1999, when Mel Carnahan commuted a death sentence after a personal request from Pope John Paul II, had a Missouri governor taken that action.

At Clay’s trial, no physical evidence linked him to the killing of Randy Martindale inside Martindale’s rural home.

The state’s case hinged on the testimony of Clay’s friend, Charles Sanders, who was having an affair with Stacey Martindale, the victim’s wife.

Initially charged with the murder, Sanders pleaded guilty to a lesser charge.

Clay contends that he and Sanders went to the house that night to sell the wife drugs and that her husband was alive when they left. The wife, who was home during the killing, claimed she didn’t see who shot him. But she stood to gain a big insurance payout from his death. Prosecutors accused all three of involvement.

In Clay’s trial, Sanders denied being with Clay that night and testified that Stacey Martindale confided in him that she was going to get Clay to kill her husband.

At trial, Hulshof asserted to the jury that Sanders would be sentenced to 10 years in prison as part of his plea agreement.

“Let there be no mistake about it,” Hulshof assured them.

The jury convicted Clay. Convicted separately, the victim’s wife was sentenced to 15 years in prison.

But Sanders received probation. On appeal, Clay claimed that his jury was misled about the state’s plea agreement with Sanders.

In 2001, a federal judge threw out Clay’s conviction, agreeing that in an attempt to bolster Sanders’ credibility, the prosecution did not disclose that its deal with Sanders was flexible and he could receive anywhere from probation to up to 10 years.

“The state needed the jury to believe Sanders to convict Clay,” the judge wrote.

But the state appealed that ruling, and a federal appeals court later reinstated Clay’s death sentence.

Hulshof said that his involvement in the case ended after Clay’s sentencing, and he was not involved in any sentencing arrangements later made with Sanders.

Clay said he now is focused on continuing his struggle for freedom.

“I just want to get my innocence proved,” he said in a recent prison interview.

The next big ruling

Mark Woodworth is awaiting a ruling in his case that could come at any time.

He wants a new trial and hopes, like Helmig and Kezer before him, that he will be found “actually innocent.”

Among allegations Woodworth’s attorney raised in a four-day hearing this spring in Columbia is that information favorable to Woodworth’s defense was withheld.

Ramsey, Woodworth’s attorney, questioned Hulshof during the hearing about a series of letters written before Woodworth was charged. Those letters showed that a key witness had implicated someone else.

Hulshof testified that he could not specifically recall if the letters were in his file before the trial or if they were turned over to the defense.

But he said it was widely known in the community and by the defense that someone else had been implicated.

Boone County Circuit Judge Gary Oxenhandler, appointed by the Supreme Court to preside over the hearing, also questioned Hulshof about the letters.

“If they were in your file, it would have been appropriate, in your opinion, to deliver those to the defense, correct?” he asked. “There wouldn’t be any excuse for not delivering them, would there?”

“No, sir,” Hulshof responded.

For 11 of his years incarcerated, Woodworth lived in the same prison as Helmig. They often discussed their cases and looked out for each other.

“I think Mark is going to be the next one to go home,” Helmig said recently.

Helmig and Woodworth both declined to offer an opinion about Hulshof.

“I’ve got some thoughts, but I don’t want to jeopardize my case,” Woodworth said.

Yet he hopes that something Hulshof once said in Congress will prove prophetic:

“The passage of time is no reason to deny justice.”

The Star’s Mark Morris contributed to this report. To reach Tony Rizzo, call 816-234-4435 or send email to trizzo@kcstar.com.

Posted on Sat, Aug. 20, 2011 10:15 PM