Feb. 13, 2011
Is convicted murderer really a victim?
Washburn law students say Ronnie Rhodes' case bears hallmarks of wrong convictions
BY RON SYLVESTER
The Wichita Eagle
Ronnie Rhodes has spent 30 years in a Kansas prison for a murder he says he didn't commit. His case remained forgotten until last year, when it caught the attention of students in a class at Washburn law school studying wrongful convictions.
To them, Rhodes' conviction illustrates many of the problems found in hundreds of cases where inmates were later proven innocent through DNA — ambiguous eyewitness testimony, ineffective defense and questionable evidence.
Prosecutors with the Sedgwick County District Attorney's Office say they have reviewed the case and feel Rhodes was fairly convicted.
A Kansas City-area pastor who has worked with Rhodes for years through a prison ministry believes he's innocent.
"I am not a murderer," Rhodes said in an e-mail from prison. "I do not possess that kind of heart nor have I been able to adopt such behavior being locked up in such a violent place."
Feb. 2, 1981
Cleother Burrell, 48, died from 20 stab wounds through the neck and chest the evening of Feb. 2, 1981.
Burrell's body lay outside of Apt. 14 at 630 N. Topeka, an apartment rented by Bruce Elliott. According to case documents, Elliott said, he often let transients, including Burrell, stay at his apartment.
Rhodes, who worked for Benton Trash Service, said he went that night to see his girlfriend, Leesa Oliver, who managed the apartments.
"She wasn't there," Rhodes said in a telephone interview from the Lansing Correctional Center.
Oliver later told police she had been out shopping that afternoon.
Rhodes said he joined several other men, including Elliott and Burrell, who were drinking in Apt. 14.
As they drank whiskey and gin, Rhodes said he felt Burrell groping him. Others told police Burrell was gay.
"I told him to stop because I didn't think it was appropriate, and I didn't like it," Rhodes said during a prison interview in October.
Burrell persisted. Drunk and agitated, Rhodes said he hit Burrell over the head with a whiskey bottle and left, walking to the Chateau Lounge a block away.
Rhodes said he drank a can of Old English 800 malt liquor and returned to see whether Oliver was home. She wasn't. But Rhodes said he saw Burrell bleeding in the hall.
"Help me," Rhodes remembered Burrell saying. Rhodes knelt down to check on him.
Rhodes said he eventually called 911, but he saw blood on his clothes. Rhodes was on parole for aggravated battery.
"I panicked because I was on parole," he said in the telephone interview.
Rhodes said he found other clothes inside a vacant apartment. He changed into them and left his suit behind.
While Rhodes' clothes only had a few spots of blood, Elliott was covered in blood when police questioned him the night of the murder.
Elliott testified in court that when he heard police considered him a suspect, he fingered Rhodes.
Then he changed his mind.
In court, Elliott took the witness stand and repeatedly told the jury that Rhodes wasn't the man who killed Burrell.
Three decades later, Rhodes' lawyer still remembers hearing the jury's verdict of "guilty."
"Everyone in the courtroom was shocked," said Kiehl Rathbun, the lawyer. "There was no evidence."
Elliott's testimony and the lack of evidence intrigued the Washburn students in Rebecca Woodman's class.
The students saw several "red flags" that Rhodes' trial had in common with wrongful conviction cases they had studied:
* Inconsistent eyewitness statements.
* Incomplete investigation.
* A "murder weapon" used as evidence that none of the witnesses could identify.
* Withholding of key evidence by the prosecution: The defense didn't know until after the trial that Elliott had been convicted of theft, a crime of dishonesty that could have further diminished his credibility.
* Questionable legal representation: After receiving repeated sanctions by the legal ethics board for misconduct, beginning in 1979, Rathbun was disbarred in 2007. None of the misconduct was related to the Rhodes case.
* Issues that weren't raised on appeal.
* A cursory review by higher courts. Some issues raised on appeal weren't addressed in the Kansas Supreme Court's three-page unpublished opinion — short for a murder case.
Woodman, an adjunct professor at Washburn, said she believes Rhodes' claims of innocence because he gave such a detailed version of events.
Elliott and a woman named Vickie Carrell said Rhodes had a knife in the Chateau Lounge the night of the killing. They said it made a clanging sound as he dropped it in a booth.
After the murder, police searched the Chateau booths but found no knife.
"I didn't have a knife," Rhodes said during an interview in prison. "I dropped a lighter that was in one of those designer cases that you used to put lighters in. I showed it to police."
After Woodman saw Rhodes in prison this past October — his first outside visitor since 1984 — she said his detailed memory helped convince her he was telling the truth.
"The story about the lighter does not sound to me, in my experience, like something someone would make up," said Woodman, who also handles appeals for the state's public defender's office. "I mean, who would think of that?"
Chateau owner David Brunston found a knife on the roof of his bar a month after the killing. It was introduced as the murder weapon at trial. But none of the witnesses could identify it as the knife they saw at the bar.
"I think the investigation on both sides of this case was really lacking," Woodman said.
The investigation did not involve any current Wichita police or members of the Sedgwick County District Attorney's Office.
Roger Skinner, who prosecuted the case, and the lead detectives have since died.
Ann Swegle, who is now deputy district attorney of Sedgwick County, said she's confident of Rhodes' guilt.
"The case has been reviewed by appellate courts on several different occasions," Swegle said. "They have found he was given due process, he was not denied his right to appropriate representation, and there was sufficient evidence. I'm satisfied."
Blood on his hands
Elliott literally had blood on his hands, and clothes, on the night of the killing.
Elliott first said the blood came from his work at Trinity Marketing Services — a Wichita business on North Broadway that processed dog food. He said his job was to grind up frozen cattle bones.
Wichita police didn't test the clothing to determined whether the blood was animal or human.
At Rhodes' trial, Elliott admitted on cross-examination that he lied to police. It was Burrell's blood on his clothes, he said. This time, he testified it came from moving bloody sheets off the bed in the apartment.
Elliott testified that he was frightened police would suspect him. That's when he said he picked out a picture of Rhodes in a photo lineup.
But while detectives tape-recorded two interviews with Elliott, his identification of Rhodes in the photo lineup took place with the tape turned off.
That photo lineup was never produced in court so it could be challenged by Rhodes' lawyer.
Skinner, the prosecutor, tried to admit another photo lineup he had put together for court, but Sedgwick County District Judge Nick Klein said it was inadmissible.
There's no copy of any lineup in existing records.
"We don't know how that lineup was done," Woodman said. "We don't know whether it was suggestive."
Elliott said he had been drinking throughout the day and night of the murder and before talking to police. He told the jury he also had been drinking before taking the witness stand.
After Elliott said Rhodes wasn't the killer, Detective Mike Jones told the jury about the photo identification made by Elliott. It would be the main evidence linking Rhodes to the crime.
"I was convicted on the word of a drunk," Rhodes said at the October prison visit.
Attempts to locate Elliott were unsuccessful.
Garrett, the Virginia law professor, found that bad eyewitness identification is the leading cause of wrongful convictions.
"And it's very hard, years later, to unsort what went wrong, unless it's one of those rare cases where you have DNA evidence," Garrett said.
DNA testing wasn't available for Rhodes' case in 1981, although, according to police evidence logs, some possible material was available.
William Eckert, a Wichita doctor with an international reputation as a forensic expert, retrieved hair samples from Burrell's fingernails during the autopsy at St. Francis Hospital, the evidence logs showed.
The defense introduced the hairs at trial, and Eckert acknowledged they most likely came from the assailant.
All the jury could do then was look at the hairs, described in trial transcripts as long and straight — different from the short, curly hair on Rhodes' head.
In 2008, Rhodes filed a motion in Sedgwick County District Court asking for DNA testing on that evidence.
No one could find it.
An affidavit by Kelly Otis, an investigator for the District Attorney's Office, said he made calls to the Wichita police and the Kansas Bureau of Investigation. Neither had the hairs taken from Burrell's hand.
Based on Otis' inquiries, Judge Eric Yost denied Rhodes' motion.
The Eagle requested the police evidence logs, reports and remaining files through the Kansas Open Records Act.
The Wichita police documents showed that evidence in the Rhodes case had been destroyed in 1983, 1986 and 1988.
A 1970 Kansas law directs evidence to be kept until a judge says it can be disposed of. There are no orders in Rhodes' court file, nor did Wichita police produce any, authorizing destruction of evidence.
Still, there is no record of the hairs from Burrell's hands listed among the evidence destroyed.
At The Eagle's request, officials searched Courthouse evidence vaults and even a closet where Jackie Robinson — the court reporter during Rhodes' trial — said she kept bloody bedding and other evidence.
Records of evidence moved during a Courthouse remodeling in 2002 turned up nothing from Rhodes' trial.
Lt. Ken Landwehr, current commander of the Wichita police homicide squad, said the evidence could have been ruined when a garage roof collapsed during a storm in June 1990.
Evidence logs said police stored the two hairs "above the tire rack" in the garage.
More than half the states passed laws during the past decade setting standards for preserving evidence.
Colorado requires evidence to be held for the life of the convict. Missouri mandates saving evidence in all felony cases. New Mexico, Nebraska, Iowa, Oklahoma and Arkansas have similar laws.
Kansas has none.
DNA isn't always necessary to prove wrongful convictions.
A judge in Missouri overturned a 1993 murder conviction in November, and a month later set Dale Helmig free from prison. Helmig spent 17 years in prison after a jury said he killed his mother.
A police officer admitted giving false testimony.
"When you don't have DNA, you have to do things the old-fashioned way, with shoe leather, looking at records, trying to find witnesses," said Sean O'Brien of the Midwest Innocence Project, who led the investigation into Helmig's case.
"Non-DNA exonerations take more time, but they are no less reliable."
But exonerations without DNA evidence are rare, and innocence alone is not currently recognized as a valid legal claim by the U.S. Supreme Court.
"The Constitution doesn't guarantee you the right not to go to prison if you're innocent," O'Brien said. "It guarantees you the right to a fair process. It supposes if the process if fair, the outcome is reliable."
The Kansas Parole Board has turned down Rhodes seven times.
The reason: He won't take responsibility for the crime.
"I just can't admit to something I didn't do," Rhodes said during the prison visit.
Janet Weiblen, pastor of Weston Christian Church in suburban Kansas City, said she believes Rhodes is innocent.
Weiblen volunteers for a prison ministry called Reaching Out from Within. Rhodes has twice been elected chairman of the group, which promotes a nonviolent lifestyle among inmates in the maximum-security unit at Lansing Correctional Facility.
Rhodes has mentored younger inmates, she said, and helped raise money for charity by collecting aluminum cans from beverages bought by the inmates.
Weiblen said she had worked with Rhodes two years before he told her he didn't commit murder.
"I've probably encountered 1,000 prisoners," Weiblen said. "I've probably only had five of them who have ever said to me, 'I'm not guilty.'
"My gut is he's innocent."
||Truth in Justice