Taking a Bite Out of Crime

As I was working on the introductory chapter for my monograph On The Rate of Wrongful Conviction, I stumbled across a case I figured you might enjoy, particularly if you are Mike Tyson. I'll get straight to it.

In 1997, West Virginia Judge Joseph Troisi had just denied post-conviction bond reduction for William Witten. Witten had been convicted and sentenced on two felony counts of breaking and entering.

With the magic of Present Tense, I'll take you back to the events as they happened that day.

Witten is being led from the courtroom by a state trooper. Witten mutters something about the judge being a "fucking asshole."

Judge Troisi overhears the remark and orders the trooper to return Witten to the bench.

Troisi descends from the bench. He unzips his black robe and lets it drop to the courtroom floor.

Troisi gets in Witten's face and taunts him. It looks as if Troisi is trying to bait Witten into striking a judge.

Witten puts his hands in his pockets.

Witten: "You know I can't touch you."

Troisi: "When you get out of the penitentiary, you look me up."

Witten: "I'll make a point of it."

Troisi chest-bumps Witten twice and forces him backwards against the bench.

Troisi snaps his teeth near Witten's face.

On the second snap, Trosi bites a piece of flesh from Wittnen's nose.

Troisi spits the piece of Witten's nose onto the floor.

Witten just stands there as blood runs down his face.

The state trooper, who is apparently on a first name basis with the defendant, says: "Come on, Bill." He once begins to lead Witten from the courtroom.

Troisi: "Do something about your nose."

Troisi picks up his robe, puts it back on, returns to the bench, and calls for the next case.

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For his assault, Troisi faced up to 10 years in jail and a fine of $250,000.  Even judicial immunity has its limits.

Troisi resigned from the bench, pled no contest to a charge of criminal battery, spent five days in jail for the assault, and was placed on probation. As part of his plea agreement, Troisi agreed to counseling for impulse control.

The counseling apparently didn't take. Soon after being released from jail, Troisi verbally assaulted a court clerk who had testified against him. Even though no body parts were consumed during that confrontation, ex-judge Joseph Troisi was returned to jail for six months for violating his probation.

Pickings from The Devil's Dictionary: The Letter A

Courtesy of Ambrose Bierce

ABNORMAL, adj. Not conforming to standard. In matters of thought and conduct, to be independent is to be abnormal, to be abnormal is to be detested.

ABORIGINIES, n. Persons of little worth found cumbering the soil of a newly discovered country. They soon cease to cumber; they fertilize.

ABSENT, adj. Peculiarly exposed to the tooth of detraction; vilifed; hopelessly in the wrong; superseded in the consideration and affection of another

ABSURDITY, n. A statement or belief manifestly inconsistent with one's own opinion.

ACCIDENT, n. An inevitable occurrence due to the action of immutable natural laws.

ACCUSE, v.t. To affirm another's guilt or unworth; most commonly as a justification of ourselves for having wronged him.

ACHIEVEMENT, n. The death of endeavor and the birth of disgust.

ACKNOWLEDGE, v.t. To confess. Acknowledgement of one another's faults is the highest duty imposed by our love of truth.

ACQUAINTANCE, n. A person whom we know well enough to borrow from, but not well enough to lend to.

ACTUALLY, adv. Perhaps; possibly.

ADMIRATION, n. Our polite recognition of another's resemblance to ourselves.

ADORE, v.t. To venerate expectantly.

ADVICE, n. The smallest current coin.

ALIEN, n. An American sovereign in his probationary state.

ALONE, adj. In bad company.

AMBITION, n. An overmastering desire to be vilified by enemies while living and made ridiculous by friends when dead.

APOLOGIZE, v.i. To lay the foundation for a future offence.

ARREST, v.t. Formally to detain one accused of unusualness.

The Absurd Case of Dale Helmig: Conclusion

Dale Helmig was convicted of murdering his mother based on no physical evidence and no eyewitness evidence. None. Zero.

Dale Helmig was convicted based only on his alleged inside knowledge of the crime and his alleged suspicious behavior. He was sentenced to life in prison.

And just to be clear, this happened right here in The United States of America. You can read the details in my three previous posts here, here, and here.

Missouri's case against Dale Helmig was absurd from the beginning, and it has finally crumbled.

But on Monday [December 13], DeKalb County Senior Judge Warren McElwain wrote that Helmig was innocent by clear and convincing evidence, and he was released from the Crossroads Correctional Facility in Cameron.

"This morning I had a feeling something was going to happen today," said Helmig, who was released after changing out of his prison jumpsuit and into his street clothes and a brief, 10-minute meeting with Judge McElwain. "I never gave up good and bad days, never gave up."

In response to this turn of events, the Attorney General for Missouri said:

As the chief legal representative of the State of Missouri, I am always pleased to see an innocent person set free. This case only highlights the need for us to accelerate our efforts to identify those we have wrongfully incarcerated, and see that they too are freed."

I'm only kidding. As expected, Missouri fought tooth and nail to keep the evidence of Helmig's guilt from even coming before Judge McElwain during the evidentiary hearing. Even now, after Judge McElwain has declared Helmig innocent and set him free, Missouri does not want to discuss the evidence. Instead, they intend to appeal on the basis that Judge McElwain did not have the authority to free Helmig.

As is usually (almost always) the case, a wrongfully convicted person is freed in spite of the State, freed only because of the unrelenting, selfless actions of our citizenry. In this case, I offer my congratulations to Sean O'Brien and all the attorneys, paralegals, and students working with the Midwestern Innocence Project. Amazing work!

Of the many, many, many cases out there, I chose to write of Dale Helmig because his case is not too distant from one that is very important to me. Dale Helmig spent his 14 years of wrongful imprisonment at Crossroads Correctional Center. That is the same "correctional center" where Byron Case is scheduled to undergo correction for the remainder of his days.

Byron Case knew Dale Helming in passing. During one of our phone conversations, Byron told me about Dale being featured on America's Most Wanted, not as a criminal, but as the first ever innocent person to be featured on the show.

“America’s Most Wanted,” scheduled for broadcast [in May 2009] will devote an hour to the investigation and trial of Helmig, now 53, who in 1996 was convicted of murdering his mother. He was sentenced to life in prison without parole.

The show is designed to capture bad people and put them away,” said producer Dave Bolton. “This case jumped to our attention because it looked like a huge miscarriage of justice because the bad guy who did the crime was still out there and the innocent guy was put in prison for a crime he did not commit.”

I continue to work with Byron in the hope that some day he too may be freed from his wrongful imprisonment.

The Absurd Case of Dale Helmig: Part III

In my original post of this series, I discussed the incredibly lame evidence on which Dale Helmig was convicted of killing his mother, Norma. There was no forensic evidence. There was no eye-witness evidence. Dale Helmig was convicted because he could not prove he was elsewhere at the time of the murder, because he had recently quarreled with his mother over money, because he acted suspiciously, and because he had inside knowledge of the murder.

In my previous post, I explained that Dale Helmig's father, Ted, was a far more likely suspect. Ted Helmig could not prove he was elsewhere at the time of the murder. Ted was nearing the end of hostile divorce proceedings with Norma. He benefited economically because Norma died before that divorce was final. If Dale acted suspiciously, then Ted certainly did as well. Finally, of the two, Ted and only Ted could have known of evidence found in Norma's purse, evidence that exculpated Dale.

The police, prosecution, defense attorney, trial judge, and a whole bunch of appellate judges all whiffed on this case. Unfortunately, that doesn't surprise me. Our voracious judicial system provides scant protection for the innocent culled from the herd.

The jurors also whiffed on this case. In one sense, however, I have some empathy for them. I know that critical information never found its way into the jury room. I know that false information made its way in there instead. I know also that the prosecution played to the emotions of the jurors. I know that unskeptical jurors were manipulated by people who manipulate for a living.

Let's consider some examples.

Confession

Police and prosecutors love confessions. I won't even bother to defend that claim. Instead, I'll simply repeat it. Police and prosecutors love confessions.

In the Central Park jogger case, the police extracted four rape confessions implicating five people. DNA testing after the trials excluded all five who were convicted, and identified the actual rapist.

In the Norfolk Four case, the police extracted four murder/rape confessions implicating seven people. DNA testing before the trials excluded all seven, but four were nonetheless convicted.

In the Michael Ledford case, the police extracted a confession that Michael Ledford killed his one-year-old son via arson, though his confession was falsified by the evidence found at (and not found at) the scene.

If the police can't manage a signed confession, they can always claim the defendant confessed to them in private but denied the confession in public. Such seems to have been the case with Johnny Frank Garrett.

If the police don't want to sully themselves that much, the prosecution will gladly use someone who is pre-sullied. They'll bring in a snitch to say that the defendant opened his soul and confessed behind bars.

Such was the case with Cameron Todd Willingham. Willingham refused to confess, so the prosecution brought in a snitch. That snitch was given a get-out-of-jail-early card by the prosecutor, though the prosecutor denied there was ever any deal.

Such was also the case with David Wayne Spence. Spence refused to confess, so he prosecutor brought in seven snitches. One turned out not to have even shared time with Spence. Three others recanted and explained how their testimony had been purchased with cigarettes, TV privileges, alcohol, and conjugal visits in the privacy of the prosecutor's office.

If the prosecution is unable to obtain a confession in any fashion yet described, they might be forced to rely on a tacit confession. It's not as good as a false or trumped up confession, but it's not bad.

Such was the case with Byron Case. When asked about the murder of Anastasia Witbolsfeugen, he twice said "We should talk about this." In the transcription of that conversation, his response was twice changed to "We shouldn't talk about this." That was ruled a tacit admission and presented as evidence against him during his trial. He's serving life without parole.

The tacit admission of Dale Helmig was even more subtle. The officer who interrogated Dale Helmig testified, right there in front of the jurors, that Dale Helmig never denied killing his mother. Here's the trial transcript.

Q. Sir, at any time during these contacts and particularly during this conversation that you've just shared with us, did Dale Helmig ever deny killing Norma Helmig to you? 

A. No sir, he did not.

The prosecutor was clearly on board with such testimony, because he asked the question that elicited the testimony. Clearly, the prosecutor felt that such testimony would help persuade the jurors to convict Dale Helmig of first-degree murder.

(To cover my all my bases, I hereby deny killing Norma Helmig.)

The use of the non-denial tacit admission would have been bad Constitutional form, even if the testimony about that non-denial had been true. That's right: even if it had been true.

It turns out that the very officer who sat there and told the jury Dale Helmig never denied killing his mother, wrote otherwise in his police report of that interview:

"[Helmig] stated that he did not murder his mother and that the sheriff was after him."

During questioning at a recent evidentiary hearing, he answered differently than he did in front of the jury.

Q. Yes or no, did Dale Helmig ever deny killing his mother?

A. Yes.

Suspicious Behavior

The prosecution told the jury that Dale Helmig demonstrated his guilt by not being present at his mother's house while the authorities were searching for her. All the other members of the family were there, the prosecution argued. Why not Dale?

The suggestion was that Dale wasn't anxiously waiting at his mother's house to learn of her condition because he already knew she was dead. I don't know if that logic seems flawed to you. It certainly seems like a pile of processed Purina to me. The jury, however, ate it up. And so did the appellate court. They cited that suspicious behavior specifically when summarizing the State's evidence against Helmig.

What the jury didn't hear was that Dale did not wait at his mother's house with the rest of the family because the police asked him not to do so. Dale was scheduled to have his first visitation with his children in a year. At the evidentiary hearing, but not at the trial of course, a sheriff's deputy acknowledged that he advised Dale not to have the children at the mother's home at that time. The house was a potential murder scene.

A. I told him I didn't think it was a good idea to bring his kids down there.

Inside Knowledge

The prosecution argued that Dale Helmig must have murdered his mother because Dale suspected too soon that his mother had been murdered. Even before her body was found, he told a girlfriend "You know, somebody got crazy drunk and killed my mother."

According to the prosecution, the only way Dale Helmig could have had that insight at that time was if Dale himself was the murderer.

What the prosecution didn't tell the jury was that the statement was taken out of context. What the prosecution didn't tell the jury was what Helmig also told that same girlfriend at the same time. The prosecution did not tell the jury that Helmig said:

"I think my dad has something to do with this. I think my dad did it."

Ted Helmig, Dale's father, had a history of abusing Norma. She had obtained a court order to keep Ted away from her. Despite the court order, Ted assaulted and threatened her. That brings us to …

The Altercation

During trial, the law enforcement officer who supervised the investigation testified that Dale Helmig had an altercation with Norma at a restaurant soon before she was murdered. The prosecution introduced such testimony, presumably, because they believed it would increase the chance the jury would convict. Recently, at the evidentiary hearing, that supervising law enforcement officer conceded he had no basis for his testimonial claim.

Q. What is the source of this information?

A. I can't provide you with that.

Q. Can you name a witness?

A. No sir, I can't.

Did the officer simply make the altercation up out of whole cloth? Seemingly not.

Recall, those of you who read the second post in this series, that it was the husband Ted, not the son Dale, who confronted Norma Helmig in the restaurant shortly before her murder. It was the husband, not the son, who threw coffee in her face and told her he was "going to put an end to all this."

Instead of simply fabricating evidence out of whole cloth, it seems as if the supervising officer simply used evidence against the more likely suspect as evidence against less likely suspect. He didn't actually lie. He simply was confused about who they had decided to convict of murder.

Not only is it likely the jury was fed perjured testimony, it's likely that there was a conspiracy to so feed them.

Conspiracy: an evil, unlawful, treacherous, or surreptitious plan formulated in secret by two or more persons. 

At the evidentiary trial, while Dale Helmig was then serving his fourteenth year in prison, the supervising officer was asked if he had coordinated his trial testimony with the prosecutor. The officer explained that the two of them did not go over the testimony he was to give, at least not line by line. He did concede, however: "Obviously I talked to the prosecutor."

I take that to be a "yes."

There's nothing wrong, of course, about talking with the prosecutor or defense attorney before trial. However, if you plan to perjure yourself and the attorney goes along with your plan, that is a conspiracy.

Disappointment

Though I feel some empathy for the jury, I find I am more disappointed in their behavior than in the State's behavior. Bees gotta buzz, and birds gotta fly. Police arrest, prosecutors prosecute, and judges …. well, judges used to be prosecutors.

Juries, however, are mandated by our Bill of Rights to form the last feeble line of defense against a State all too eager and all too capable of crushing those who act suspiciously.

Or those who seem to know too much.

Or have a motive, however imaginary.

Or can't prove where they were.

The jury failed Dale Helmig. They stole from him his presumption of innocence. They relieved the State of its burden of proof. They violated their oath and tarnished the faith put in them by our founders.

And for that, I'm deeply disappointed.

I'll wrap this sorry story up in my next post. Perhaps on Christmas Eve.

ADDENDUM:
The conclusion to this four part series is here.

The Absurd Case of Dale Helmig: Part II

In my previous post, which you should read first if you are to understand this one, I wrote of the evidence used to convict Dale Helmig of the first-degree murder of his mother. There was, as you recall, no forensic or eyewitness evidence. Dale Helmig was convicted solely on the basis of having opportunity, motive, inside knowledge of the crime, and suspicious behavior.

With respect to opportunity, he was alone at some point within the broad time-of-death range estimated by the police. Also, he could have traveled over the bridge where a hydrologist determined the victim's purse had been thrown into the river.

With respect to motive, the state claimed his long and well-established loving relationship with his mother had turned sour just before the murder and that his mother was going to cease giving him money.

With respect to his inside knowledge, he correctly predicted that his mother would be found in her nightgown, that she would not be found in the Gasconade River, and that her keys would be found in her purse.

With respect to his suspicious behavior, he seemed less concerned about his mother's disappearance than did his other relatives. Also, he acted nervously when the family was informed his mother's body had been found, and he acted nervously when he was being interrogated after his arrest. Most significantly perhaps, when (during interrogation) he was told his mother was listening from the great beyond and that he should speak to her, he said "I'm sorry, I'm just sorry."

It seems as if any half-way competent defense attorney should have been able to convince at least one of twelve jurors that the evidence presented by the state did not constitute proof beyond a reasonable doubt. I'm sorry to say that such a thought would put too much confidence in both defense attorneys and juries.

I’m certainly not suggesting all defense attorneys and all juries are incompetent. In fact, I argue elsewhere in this blog that of the major players in our justice system, juries are the least responsible for wrongful convictions. And I know directly and indirectly of many outstanding defense attorneys. I am, however, arguing that in the Helmig case, both the defense attorney and the jury whiffed.

The defense theory in the Helmig case was that the state did not prove beyond a reasonable doubt that the mother had been murdered, and the jury could not therefore rationally find the defendant guilty beyond reasonable doubt. Given that the mother was found in the Osage River, bound by a nylon cord, and tied to a rock, I suggest that was a lame defense theory.

I have no high regard for the jury in this case, either. Even if the defense theory was lame, the jury should have acquitted. Even if the defense attorney wore a bright orange wig, a bulbous red nose, and big floppy shoes, the jury should have acquitted. Even if the defense attorney spent the entire time eating Grape-Nuts and sucking a Slurpee, the jury should have acquitted. The defendant has an opportunity to defend, but has no constitutional obligation to do so. The prosecution bears the burden of proof beyond a reasonable doubt. The defense has no burden to disprove anything. The jury should have acquitted.

Had the State of Missouri merely wanted another conviction based on incredibly weak evidence, there were others they could have selected. They could have, for example, pursued Dale Helmig's father, Ted Helmig.

Ted, like Dale, had the opportunity to murder Norma Helmig. He also was alone at the time of the murder. Lots of people were alone. I may have been alone. I can't today prove otherwise.

Ted, unlike Dale, had a real motive for killing his soon-to-be ex-wife. Dale and his mother allegedly quarreled over a $200 phone bill. Ted and his wife, by comparison, were in the middle of a hostile divorce. Ted would have to pay Norma $733 per month, indefinitely. That represented about half of Ted's military pension.

Also, Norman Helmig was murdered soon before the divorce was to be final. Ted collected $5000 in life insurance, and $19,000 from her estate. Had she been murdered after the divorce was finalized, her estate would have defaulted to her children.

Ted, unlike Dale, actually did act suspiciously. Ted confronted Norma at a restaurant, told her he was "going to put an end to all this," and threw coffee in her face. He did so in spite of a court order that he not have contact with her, based on his earlier abusive treatment.

Ted was also "facing a contempt citation in his divorce over his conversion of marital property."  Allow me to translate. Ted was selling jointly-owned property that was to be divided as part of the divorce settlement. Ted was keeping the money.

Ted "acted strangely at his wife's funeral."

Finally, and most suspiciously I guess (in the eyes of our justice system), Ted invoked his Fifth Amendment rights when asked to give a statement to the sheriff.

With respect to inside knowledge, it turns out Ted may have had the most inside knowledge of all. Six months after Norma was murdered, tied to a rock, and thrown in a river, her purse was found about 1.5 miles downstream from the Missouri River bridge. Norma's keys were in the purse, just as Dale had predicted. The police took particular note of those keys. They took no particular note, however, of the cancelled checks in the purse.

Much more recently, Molly Frankel, a graduate student at the University of Missouri School of Journalism, did take note of those checks. Working as an investigator for Helmig's current attorney, Sean O'Brien, she developed information from two bank officials that normal bank processing procedures would have caused the cancelled checks to be mailed to Norma Helmig almost two weeks after she was murdered.

Though the State of Missouri explained to the jury that the purse was evidence of Dale Helmig's guilt, the purse in fact all but proved his innocence. Had the police and prosecutors bothered to investigate, they would have realized that the purse implicated the husband, not the son. Ted Helmig acknowledged that he continued to collect his wife's mail for about two weeks after her death. He denies putting the canceled checks in the purse and throwing the purse in the river.

Perhaps there's more to this story.

Perhaps Wednesday.

ADDENDUM:
Part III is available here.