Published Dec 7, 2008
Joshua Kezer attorneys say new evidence clears their client
Prosecution says enough evidence remains for a conviction
By Bridget DiCosmo
It's a case of technicalities. It's a case of changed stories. Of questionable evidence.
For Joshua Kezer and the attorneys representing him, it's a case of unjustified imprisonment, an unfair trial and new evidence that proves Kezer was not the right man. Cole County Judge Richard Callahan could rule as early as Thursday on those points, but he could continue to study the case and hold off on his decision. Kezer's defense team has reason to be optimistic. Callahan has thrown out a conviction before in a similar trial.
Missouri case law says that in order to prove actual innocence, someone must show clear and convincing evidence that no reasonable juror would enter a guilty verdict based on the newly discovered facts.
In 2003, a Missouri death row inmate, Joseph Amrine, was exonerated after DNA testing proved he was innocent of a stabbing in a prison rec room.
Amrine's case set the standard for proving actual innocence in the Missouri courts, and a 2003 Missouri Supreme Court opinion says an innocence claim is evaluated on whether the facts of the case can "undermine confidence in the correctness of the judgment."
Kezer was convicted of armed criminal action and second-degree murder following a jury trial in Ste. Genevieve, Mo., where the case was moved on a change of venue.
No physical evidence linked Kezer to the crime, and the witnesses who picked Kezer out of a lineup several months later, placing the then-17-year-old near the scene, has since said he could have been mistaken. Several witnesses testified he was in Kankakee, Ill., where he lived at the time, on the night of the murder.
Among the pieces of evidence that Charles Weiss, Kezer's attorney, argues were not disclosed to the defense at the time of the trial was a police report taken 10 days after Lawless was killed.
Scott County detective Branden Caid testified he found the report containing a statement by Mark T. Abbott, the state's star witness, clipped to a notebook belonging to one of the original investigators.
Caid began investigating the case in 2006 when current Scott County Sheriff Rick Walter officially reopened the investigation into Lawless' death.
In the police report Caid found, Abbott named the man he identified near the crime scene as someone he knew, a mixed-race individual. He didn't pick Kezer's picture out of a lineup until five months later.
Michael Spillane, an assistant attorney general, vigorously questioned the authenticity of the report, and his investigator, Chris Pickering, testified that the officer whose name is on the report didn't recall taking Abbott's statement.
Handwriting analysis found the signature was authentic.
"I believe the report reflected an interview that occurred. His memory isn't relevant," said Cole County Judge Richard Callahan during Pickering's testimony.
Another written statement recently uncovered shed doubt on the credibility of Shawn Mangus, a jailhouse informant whose claims that Kezer confessed the murder to him at a party led investigators to Kezer in the first place.
In the signed statement, taken by an investigator with the Scott County prosecutor's office, Mangus wrote that his statement implicating Kezer was a lie he concocted with two other informants because an investigator told him he'd get leniency on his own stealing charges in exchange for some "good information."
Mangus made the same statement to David Rosener, one of Kezer's trial attorneys, but Mangus testified at trial that Rosener threatened him with gang violence. Rosener will testify Thursday because a medical emergency kept him from appearing in court last week.
One of the informants testified during Kezer's trial that the plot had been Mangus' idea and that Kezer never confessed. The third man did not recant. All three received less than the maximum sentences for their crimes.
Al Lowes, Kezer's trial attorney, testified last week that he believes the trial "would have turned out differently" if the defense had known about the statements by Abbott and Mangus.
At Kezer's trial, the prosecution, headed by Kenny Hulshof, did not present a motive until a young woman named Chantelle Crider stepped forward. Crider, now Chantelle Carlisle, was a friend of Lawless' who had been sitting in the courtroom all week when she mentioned on the final day of testimony that she recognized Kezer as the man she'd seen argue with Lawless at a party Oct. 31, 1992.
She was allowed to testify, but three days later, two other girls who had been at the party, reading about Carlisle's testimony in the newspaper, told Scott County authorities they had never seen Kezer before and knew he had not been there.
Carlisle testified at last week's hearing that she now knows she was mistaken.
The state argued that through due diligence Kezer's defense counsel could have introduced evidence refuting Carlisle's testimony, because another friend of Lawless' gave statements to police describing the argument at the party, saying it was a local man named Todd Mayberry, now deceased.
Three other witnesses, including a Cape Girardeau detective, offered testimony at last week's hearing saying Abbott and another man confessed their involvement in the murder years later.
"The core of the case at trial remains intact," Spillane wrote in a brief filed before the hearing.
Spillane argued that although Abbott said in a recent deposition he's no longer certain of his identification of Kezer, he was able to pick Kezer from a lineup of six photographs. Because Abbott, now imprisoned in Wisconsin on federal charges related to methamphetamine, fell into drug use since the murder, his original testimony should be considered more accurate, the state argued.
Weiss argued the lineup had been suggestive because Kezer's photo is the only one with the words "police department" over it, but Spillane countered in his brief that both the trial and appeals court allowed the lineup to be admitted.
Callahan said during the hearing that marking a photo of a suspect in a lineup with the words "police" should not be considered proper procedure for law enforcement.
It is possible, the state argued, a jury would still convict Kezer on the testimony of the jailhouse informants, combined with Abbott's identification.
Last August, Callahan ordered the release of a man imprisoned for 24 years for a 1984 murder that occurred in St. Louis.
As in Kezer's case, physical evidence failed to link Darryl Burton to the homicide he was accused of committing, and the prosecution's case hinged on witness testimony.
Burton's attorneys also argued the state violated the Brady rule by failing to disclose a deal made with a witness to testify in exchange for leniency on an unrelated stealing charge.
The hearing for Kezer concludes Thursday with Rosener's testimony, and Callahan will review to the evidence in order to rule on whether keeping Kezer in prison represents a "manifest injustice" under constitutional protections.
Callahan may order a retrial in the case, throw out the conviction or deny the motion acknowledging that Kezer was wrongly convicted.