| On the
day Ellen Reasonover walked out of Chillicothe Correctional Center in northwest
Missouri last August, Cheryl Pilate and Charles Rogers were there to meet
her. Squeezing into Rogers's convertible, the trio set out for a victory
party in Kansas City, Mo. The next day the lawyers would lead a caravan
across Missouri to the St. Louis home that Reasonover had not seen in 16
years.
Pilate had never
been prouder of winning Reasonover's case than at that moment at the prison
gates. She was also immensely relieved for not having failed her client.
Pilate had come to believe fervently in Reasonover's innocence. In fact,
she wouldn't otherwise have jumped into the case at an early stage in her
legal career, and at great expense to her small firm and her family, for
what turned out to be four-plus years of grinding litigation. Not only
was she convinced that Reasonover had been wrongfully convicted, but she
had proven it to a federal judge who might have been expected to side with
the state. To get the case all the way to that point, Pilate and her colleagues
had faced down two impossibly demanding deadlines -- one time with less
than a day to spare before Reasonover's last-chance appeal might have been
permanently blocked.
What with all of
this pride and relief, Pilate had to wonder why she didn't feel better
about it. She had won, and done right by her client. Wasn't that enough?
It wasn't enough for Pilate, nor should it be for anyone who studies this
case.
The chance of innocent
people being convicted has, of course, received enormous attention -- particularly
in just the past few months, as death row horror stories sow doubts and
change public perceptions about guilt and punishment.
But what Pilate found
in her introduction to the wrongful-conviction world is perhaps the best
kind of teacher. By the time she led Reasonover away from the prison gates,
Pilate never again would be able to swallow the usual platitudes about
how the system works, albeit tardily, undoing the unfortunate but merely
careless mistakes made by police and prosecutors.
Now Pilate knew better.
Inheriting the case long after it went through several rounds of fruitless
appeals, she and several other lawyers and investigators -- backed by a
huge (but still inadequate) budget -- had performed a miracle. That is
how unlikely Reasonover's eventual release was, as Pilate thought back
on the years of fighting and maneuvering and lucky breaks that exposed
the truth. Pilate knew that wasn't going to happen in enough other cases
to change a basic fact: Wrongful convictions -- especially when prosecutorial
misconduct is involved -- are far too easy for the state to win, and unimaginably
difficult for defense counsel to reverse.
When Pilate took
her first look at the case file -- in late 1994, almost 12 years into Reasonover's
sentence -- the signs of a wrongful conviction seemed unmistakable. But
she wasn't going to jump into Reasonover's second run at a habeas writ
without asking tough questions first.
If not for her caution,
Pilate would make the perfect true believer in a case like this. She is
a former newspaper reporter and social worker whose idealism wasn't dampened
yet by decades of experience, having gotten her law degree only four years
earlier at age 35. There's knee-jerk idealism, and then there's a deeper
sort.
"Lawyers want to
make up their own minds," Pilate says. "I had to know for myself that Ellen
was innocent."
In fact, an actual-innocence
claim was Reasonover's only hope. Persuading a judge to reconsider on those
grounds is a strategy that rarely succeeds, and this case offered hints,
but little solid proof yet. Pilate saw slim reason for optimism, even though
Centurion Ministries -- the group that seeks to free innocent inmates and
was paying her firm to take the case -- had investigated it and found it
more promising than most of the nearly 1,000 cases that pour in from prisoners
and their relatives each year.
If Reasonover truly
was innocent, there is a rich irony in how she had stumbled into the case.
On January 3, 1983, police in Dellwood, in metropolitan St. Louis, received
a phone call from a woman identifying herself as Sheila Hill. She had information
about the murder of a service station attendant that had occurred one day
before. "Hill" kept her promise to meet with a police captain the next
day at the station, where she revealed her real identity -- Ellen Reasonover,
a 24-year-old single mother from the neighborhood -- and told detectives
that she had seen a report of the murder on TV and was answering their
plea for information.
Despite the fake
name and a family history at society's margins -- two half-brothers had
committed violent crimes, and the father of Reasonover's child had been
murdered -- Reasonover at first appeared to be nothing more than a Good
Samaritan. She had no criminal record, seemed uninterested in the $3,000
reward, and said she had come forward at her mother's urging.
Reasonover told detectives
that on the night of the murder, she needed change to do her laundry and
stopped after midnight at the Vickers service station where the 19-year-old
attendant, James Buckley, later was found shot to death. Reasonover knocked
on the cashier's window to get the attention of a man she assumed was the
attendant. He didn't respond. She described for the detectives some other
men and a car she saw in the parking lot. Reasonover said she left, got
her change at a nearby convenience store, and returned to the laundromat,
unaware of any trouble.
At first, detectives
took her story at face value.
They showed her mug
shots. They asked her to identify any men who had similar features to the
men she had seen at the Vickers station in the dark, and she obliged. But
two men she pointed out were in custody already on unrelated charges when
Buckley was killed. Police wondered: Could Reasonover be deflecting suspicion
from herself? They gave Reasonover a stress test -- a modified lie detector
-- and she passed. But gradually the detectives were changing how they
viewed Reasonover. Maybe what was turning her into a suspect was the number
of circumstances that a detective might see as suspicious: the fake name,
the troubled family, the failure to pick out a mug shot of a plausible
suspect. Or maybe there was pressure on police to solve a highly publicized
murder quickly. Whatever it was, Reasonover had somehow crossed a line.
The noose tightened
further when police learned that a few days before the murder, Reasonover
had filed a police report against a boyfriend, Stanley White, for breaking
her car windows. White's car matched the description of one that Reasonover
said she saw at the Vickers station. Loose threads were coming together
in the detectives' minds. Was Reasonover setting up White for a murder
rap? Were they both in on it?
Then police learned
that Reasonover had worked at a different Vickers station in 1978, and
had been accused by its manager of robbery. She was never charged, but
police and prosecutors interpreted this as damning. They gave Reasonover
a second stress test. This time, police said, she failed.
Thus far, the "evidence"
against Reasonover wasn't enough for an indictment, much less a conviction.
But, barely five days after Buckley's body was found, Reasonover was under
arrest and the state's machinery was in motion, searching for enough proof
to make a case stick.
As Pilate leafed
through the case file in late 1994 in her comfortable thirteenth-floor
office in Kansas City, she observed Reasonover's descent into prison as
it played out in police reports, trial transcripts, and pleadings like
one of those nightmares where everything goes wrong and keeps getting worse.
Whatever Reasonover said or did, no matter how innocent, was turned against
her. As doubts about her hardened into suspicion, and suspicion into accusation,
as the case moved through indictment and trial to appeals, nothing seemed
to knock the prosecution off course.
The mug shots that
helped put Reasonover on the slippery downward slope? Reasonover had only
done as she was told -- point out facial characteristics that resembled
those of the people she'd seen -- and yet she was held accountable when
those faces belonged to people with alibis. Two other witnesses had pointed
to the same or similar faces, but Pilate couldn't help noticing that they
were not in the same predicament. What about the strong hints that the
victim, Buckley, had been in disputes with some tough players? And what
about the similar robberies in the area? There was no sign that the police
seriously considered alternative theories or suspects. Police and prosecutors'
minds had closed quickly, Pilate thought: Another open case "solved." Then
there was the most troubling of all the signs that Reasonover might have
been railroaded: the extensive reliance on jailhouse informants, who materialized
as soon as Reasonover was jailed on suspicion of murdering Buckley. Two
cellmates, each of whom bargained for leniency (and later misrepresented
the deals they cut), claimed that Reasonover had confessed to them in separate
conversations, one month apart. Now prosecutors had supposedly direct evidence
-- the only direct evidence -- of her guilt.
Informants' testimony
about jailhouse "confessions," especially when acquired with a favorable
plea bargain, is notoriously unreliable. But what made this affair even
more fishy to Pilate were indications that the prosecution had also been
selective, to say the least, about turning over exculpatory evidence to
the defense. Recordings were secretly made of Reasonover protesting her
innocence to other inmates, but in every case the tape was later "lost"
or the conversation was never revealed in the first place. When Reasonover
supposedly unburdened her guilty conscience to informants, however, that
somehow always occurred when the tape recorders were turned off. The informants'
word was all the cops had. What was going on here? Pilate wondered.
Evidently none of
this had been enough to pique the curiosity of the many judges who had
already looked at the case after Reasonover was convicted and her appeals
were exhausted. Pilate, and the rest of Reasonover's team, had their work
cut out for them.
Back in 1983, the
first jailhouse "confession" was not enough, by itself, so Reasonover was
released without charges after a day. A month later she was back in jail,
but for a separate robbery, a case that looked just as shaky, as far as
Pilate was concerned. How convenient, Pilate thought as she reviewed the
file years later. By drawing Reasonover back into the system, the prosecution
could take another run at her for the more serious murder case.
The prosecutor in
both cases was Steven Goldman, a St. Louis native and career public servant
who had gone on to a state court judgeship five years after packing Reasonover
off to prison. But donning the black robes had not prevented Goldman from
attacking doubts about Reasonover's guilt when the conviction was challenged
in the press or the courts. Goldman felt certain that Reasonover was guilty,
and that he and the police had done their duty, nothing more.
According to the
file, the two cases that Goldman was compiling against Reasonover during
1983 had one thing in common: a new jailhouse informant, acquired during
Reasonover's second incarceration. This one claimed that Reasonover had
blurted out a confession to both crimes, the murder of James Buckley and
the subsequent gas station robbery. First Goldman made the robbery charge
stick, getting Reasonover sentenced to seven years in prison. Then he took
the capital murder case to trial in November 1983, with a case that rested
almost entirely on the testimony of the two informants.
Reasonover's private-practice
lawyers put on little evidence at the murder trial. They failed to call
other cellmates of Reasonover's to contradict the informants' stories.
They also did little to probe whether the informants' criminal histories
and the deals they cut for their testimony had been fully disclosed. Much
of the evidence that would later turn up in Pilate's investigation was
simply overlooked or undisclosed in time to help at the trial.
It was not completely
for lack of trying. After Reasonover's indictment in 1983, Madeline Franklin
-- an associate of chief defense lawyer Forriss Elliott -- made the obligatory
request to Goldman's team for all the statements, surveillance records,
and exculpatory evidence in the state's possession. They didn't get everything
-- critical evidence was withheld -- but they didn't know that then.
In his closing argument,
Goldman turned his own paucity of material on its head. "[It] isn't often
you get this much evidence in a crime," he told the jury. After winning
a guilty verdict, he told the same jury in the sentencing phase, "You know
what she deserves. ... Somewhere in Ellen Reasonover's life she decided
that killing a person is like taking a drink of water. ... That's what
it means for her." He demanded a death sentence.
The jurors came within
one vote of granting the prosecutor's wish. Because of the 11-to-1 split,
the judge sentenced Reasonover to life in prison. Eleven months after Reasonover
voluntarily stepped into the Buckley murder case with a phone call to the
police, she was facing at least 50 years before the possibility of parole.
Another 16 years
would pass before she joined Cheryl Pilate at the gates of the state prison
at Chillicothe. During that time, the Missouri appellate courts affirmed
her conviction and a postconviction petition in the state courts was aborted
after a pro bono lawyer missed a deadline. In November 1989 a federal district
court judge denied Reasonover's habeas petition. Then, for another six
years, Reasonover sat in prison while seemingly nothing significant was
being attempted on her behalf.
While she languished
in prison, however, Centurion Ministries was preparing for a showdown.
Because of its backlog, that was taking a very long time. In 1987 Reasonover
had read a magazine article about Centurion, the New Jersey non-profit
that sits at the heart of the wrongful conviction community. She sent a
letter. The organization's founder, former minister James McCloskey, did
some preliminary research and pegged her case as a priority. "It was the
only case I have ever seen," he says, "where the conviction is rooted solely
in jailhouse confessions."
But it wasn't until
1993 that he and an investigator, former Pulitzer Prize-winning journalist
Paul Henderson, would kick into high gear. They went to Missouri and met
with Reasonover to assure themselves that she was worth fighting for. McCloskey
and Henderson kept digging for new evidence, and by the following year
they believed they had the case far enough along to see it tested in court.
Now they needed Missouri lawyers.
They had money to
spend. McCloskey wants a lawyer's full attention, and in the wars of attrition
that actual-innocence claims can become, a pro bono lawyer can't always
be counted on. So McCloskey, armed with tax-exempt donations, has the ability
to be choosy. Not finding what he wanted in St. Louis, he used the recommendation
of a California lawyer to contact someone on the opposite side of Missouri:
prominent Kansas City criminal defense lawyer James Wyrsch, of the 13-lawyer
firm now called Wyrsch, Hobbs, Mirakian & Lee.
Wyrsch had decades
of experience with postconviction remedies, but had never handled an actual-innocence
plea. He found McCloskey's pitch intriguing, but would it be responsible
to take a case that seemed so hopeless? Then there was the financial risk
to the firm that was inherent in the deal Centurion was offering: a $25,000
retainer plus as much beyond that as Centurion could afford, all at discounted
hourly rates.
Finally Wyrsch relented.
He would turn much of the work over to his associate, Pilate. Later, Charles
Rogers joined her. Rogers had recently come to the firm with 18 years of
public defender and death penalty defense experience. They would be able
to tap Henderson and other Centurion investigative resources, as well as
hire their own experts.
From late 1994 into
1995, they dug into the files to get to know the case. In the process,
Wyrsch, Pilate, and Rogers grew convinced of Reasonover's innocence. And
they liked her. Twelve years of prison had depressed Reasonover, but had
not hardened her. Easygoing, with a childlike naïveté, and
not prone to jailhouse lawyering, she was easy to warm to.
It was not until
early 1996 that the team got its first big break with new evidence. While
interviewing a prosecution witness, Henderson, the Centurion investigator,
learned more about a tape of a secretly recorded conversation between Reasonover
and White, her ex-boyfriend, shortly after they were jailed on suspicion
of murder. (White never was charged.) The witness had heard the tape at
the police station before the trial. But the defense had not. It might
contain proof that the prosecution had not disclosed exculpatory evidence.
First they'd have
to get it, if it still existed. They asked the Missouri attorney general's
office to look for it. But the AG, which was handling all the appeals,
said it couldn't find the recording. Besides, the contents were unimportant,
one state lawyer told Pilate. Goldman had said so.
The next place to
go was to Goldman's successors in the St. Louis prosecutor's office. Pilate
made the request during a trip to St. Louis, and while she was there, decided
to have lunch near the courthouse with Judge Goldman. He was pleasant enough,
she thought. Maybe he had not been the prosecutor from hell after all.
Still, there was
an undercurrent that bothered Pilate. Goldman was exerting lots of mental
energy trying to persuade her that Reasonover was guilty. He wasn't giving
up.
Pilate couldn't believe
it when she first heard the news: A St. Louis County prosecutor, John Evans,
had found the tape in boxed storage, and had turned it over to Reasonover's
lawyers. Pilate had grown so distrustful after working on the case so long,
she almost found it surprising that Evans had been diligent and truthful.
Two paralegals in
the Wyrsch firm started transcribing. There was a lot of street slang and
rough language. Reasonover did her best from afar to help decipher words
and explain their context. A forensic tape specialist enhanced the sound.
Sentence by sentence, the transcript was pieced together, and Pilate felt
a thrill as she saw each line appear on the screen: Everything Reasonover
the prisoner had said, without knowing she was being monitored, was consistent
with what Reasonover the Good Samaritan had told the police.
How could the state
oppose Reasonover's release now? But it did. The AG's office wouldn't even
discuss the case. That left only one possibility: persuading a judge to
grant a habeas petition, even though Reasonover had already hit that dead
end in 1989, and it was now early 1996.
After years of stagnation,
the case not only had to get to federal court -- it had to do so in a mad
dash. For months Pilate had used contacts in the National Association of
Criminal Defense Lawyers to monitor legislation that would restrict habeas
petitions. But it was still a shock when she got word that the legislation
was on the verge of being signed by President Clinton. If it took effect
before Reasonover filed a petition, Goldman's victory would likely be final.
Working frantically,
Pilate
and Rogers slammed out a skeletal petition in a day. Polishing and expanding
it would have to wait. They raced to the Kansas City federal court night
depository, reaching it about five minutes before closing. It turned out
they had one day to spare; 36 hours after the petition was filed, the president
signed the bill into law.
The rush to file
was merely an illusion of rapid progress. The case would continue for the
next three years to inch toward a resolution. The bare-bones habeas petition
was fleshed out incrementally, as both sides in the litigation buried each
other in paper. A transfer to St. Louis landed the case in a new judge's
court. It meant Pilate and Rogers could add several cross-state trips to
their schedules. But, they thought, at least the case wasn't assigned to
the judge who had rejected Reasonover's first habeas petition in 1989.
The slowness of the
process did produce one benefit for Reasonover. In December 1998, with
the habeas action in its third year, Pilate's team had another breakthrough.
A private investigator saw a news article about Reasonover on Christmas
Day in the St. Louis Post-Dispatch, which prompted him to call Pilate's
St. Louis co-counsel, Richard Sindel of three-lawyer Sindel & Sindel.
The investigator had worked on an earlier appeal and offered his files.
Inside was a smoking-gun
memo. It was from the public defender representing Rose Carol Jolliff --
one of the jailhouse informants who testified against Reasonover -- and
made it plain that Jolliff and Goldman had been posturing when they denied
the existence of a leniency deal. How else to explain the public defender's
memo to a colleague before Reasonover was tried, where she wrote that her
client "is going to be a witness in a capital murder case that Steve Goldman
is trying. ... After she testifies, she is going to plead guilty to this
case and be given probation. The details of the plea can be worked [out]
after she testifies. The state does not want to allow ... defense attorney
to bring up any kind of deal that might have been made in Rose's case.
I have been assured by Steve Goldman that the state isn't going to burn
her, that she will receive probation."
Pilate's pleadings
made it clear she and her colleagues believed that Goldman allowed false
testimony at trial, misled the jury in his closing argument, and made misrepresentations
to the court in a post-trial hearing. Reasonover's lawyers sought permission
to depose Goldman, the lead police detective on the case, and the informant
and her lawyer. The federal judge in the habeas case, Jean Hamilton, went
one better: There would be a full evidentiary hearing, where Reasonover's
lawyers could call witnesses. The precedents made such a hearing a long
shot, and no one on Pilate's team was confident that Hamilton, a Bush appointee
who had served as a state court judge and a federal prosecutor, was predisposed
to rule in favor of an innocence claim in a case already litigated extensively.
But there it was in an order: a real hearing. First, though, there would
be another mad dash. After years and years of delay, Reasonover's case
once again would hinge on an unnatural rush to make a deadline. The judge
had a full calendar and insisted that the hearing start on June 28, 1999
-- 12 days away. Pilate, Rogers, Sindel and their paralegals, investigators,
and assistants worked every day and most of every night, preparing for
witnesses, drawing up subpoenas, filling gaps in what they knew, and trying
to anticipate what would convince Judge Hamilton. They almost ran out of
money; a financial "angel" responded with a $60,000 infusion to Centurion
Ministries, just in time to keep the case on track.
By June 28, Pilate
still felt unprepared in key areas. But, with essential help from Sindel
and Rogers, she was ready enough.
For years, investigators,
lawyers, and reporters had picked at the loose threads of the state's remarkably
thin case against Ellen Reasonover. At the four-day hearing, it unraveled
completely.
One informant, Jolliff,
took the Fifth, refusing to answer questions about whether Reasonover had
really confessed to her and about why she had denied that she had cut a
leniency deal for her testimony. The other informant, Mary Ellen Lyner,
had committed suicide several years earlier, but her original testimony
took a direct hit from a police witness who showed that she had lied about
her record -- proving again that witnesses had been cagey or outright deceptive.
Sixteen years late,
the prosecution's core witnesses had been thoroughly discredited. Then
it was Goldman's turn. An assistant attorney general testified that Goldman
had made inconsistent statements about whether he had heard the tape that
had been made of the jailhouse conversation between Reasonover and her
ex-boyfriend shortly after their arrests. Even Captain Dan Chapman, the
lead police witness, wouldn't share the blame with Goldman for the suppressed
evidence.
When yet another
piece of exculpatory evidence came to light at the hearing -- this time
a grand jury transcript -- Judge Hamilton let her irritation show. "Are
there any other documents you haven't disclosed?" she asked an assistant
AG. "This is a little startling."
Goldman's testimony
was crucial. Sindel, who regularly appears in Goldman's court, knew the
former prosecutor better than Pilate did. It would have been tempting for
the St. Louis lawyer to practice self-preservation by steering clear of
Goldman, but he took on the task himself. On the stand, Goldman admitted
that back in 1983, he wasn't exactly an expert on the fine points of Brady
v. Maryland, with its constitutional requirement to turn over certain evidence
to the other side. He conceded that he should have disclosed the Reasonover-White
tape and that he had never asked if it truly had been destroyed, as he
had claimed.
Goldman's past defiance
-- the passionate defense of his honor, the zealous recitation of the evidence
and denunciation of doubters -- was replaced by an uneasiness. After 11
years as a judge, Goldman was in the witness chair looking up at another
judge, and hardly anyone was openly siding with him. A reporter for a St.
Louis weekly newspaper later recounted one trial observer's whispered quip
from the back of the spectator seats: "It's STA time -- 'save thy ass'
time."
One month later,
Hamilton ruled. Peppering her opinion with references to previous wrongful
conviction cases involving prosecutorial misconduct, Hamilton focused on
the withheld evidence, the informants' plea bargains, and the role of police
and prosecutors in coaching witnesses and willfully ignoring false testimony.
Calling the tapes "devastating" to the prosecution's case and the cumulative
effect of the Brady violations "fundamentally unfair," Hamilton recounted
the story of the undisclosed tapes and witness deals. Hamilton stopped
short of declaring Reasonover innocent -- that wasn't the issue in this
habeas action -- but she left little doubt that the state had absolutely
no case left. The judge ordered Reasonover released and the conviction
vacated. The state did not appeal.
Since her release
one year ago, Reasonover has struggled to readjust to life on the outside.
The 2-year-old toddler she left behind is now 19 years old. Reasonover
is 42. But she displays remarkably little bitterness. "Dan Chapman and
Steve Goldman," she says, "they're going to have to answer to God for what
they did to me." And possibly to a more earthbound authority; Reasonover
might file a civil rights suit, with Pilate as her lead counsel, or seek
compensation for the lost years of her life from the Missouri General Assembly.
No one has ever formally
apologized to Reasonover or conceded that the actual murderer might not
have been caught. And no one was ever disciplined for their handling of
the investigation and prosecution. Neither Goldman nor Chapman will comment
for the record on Hamilton's decision, but all indications are that both
men still believe Reasonover is guilty and see nothing worthy of apology
or opprobrium.
Wyrsch estimates
that his firm wrote off at least $150,000 in billable time for the discounts
that the firm gave to Centurion during the nearly five years that Pilate,
Rogers, and the rest of the staff spent on Reasonover's case. The brutal
hours and trips across Missouri, after the case was transferred to Hamilton's
court in St. Louis, were a severe drain on the 13-lawyer firm. All told,
Centurion spent about $400,000 on the case, much of that going to Wyrsch,
Hobbs. The rest was paid to Sindel's firm and to investigators and experts.
After taking Reasonover
from prison to her family in St. Louis, Pilate returned to Kansas City
and to a caseload that now has several other wrongful conviction claims.
In her ninth year of practice, Pilate has become a committed soldier in
the wrongful conviction movement.
Steve Weinberg
is a freelance writer in Columbia, Mo. |