Hulshof record revisited

Hulshof record revisited
Statewide campaign spurs new scrutiny.

By ALAN SCHER ZAGIER Of The Associated Press

Published Sunday, June 8, 2008

As a star prosecutor, Kenny Hulshof’s commanding presence and oratorical skills led to convictions in some of the state’s most gruesome death penalty cases - and paved the way for six terms in Congress.

Cases in question

Here is a look at five of the homicide cases Hulshof prosecuted where his courtroom conduct was either called into question, the sentence was overturned or the guilt of the convicted murderer remains in doubt:

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WALTER TIMOTHY STOREY

St. Charles County man who broke into his neighbor’s apartment in February 1990 after finding out his wife wanted a divorce. Storey was convicted in November 1991 of the first-degree murder of Jill Frey, whose throat was slit. He was sentenced to death.

In 1995, the state Supreme Court ordered a new trial after finding that Hulshof committed four “egregious errors” during the trial:

● Arguing facts outside the record. Hulshof told jurors that “this case is about the most brutal slaying in the history of this county.” He was also cited for injecting his personal opinions.

● Personalizing arguments asking jurors to “try to put yourself in Jill Frey’s place. ... to have your head yanked back by its hair and to feel the blade of that knife slicing through your flesh, severing your vocal cords, wanting to scream out in terror but not being able to. Trying to breathe, but not being able to for the blood pouring down into your esophagus.”

● Suggesting that Frey’s brother — who did not witness the murder — would have been justified in killing Storey had he seen his sister die.

● Weighing the value of lives and “seriously misstating the law” by asking jurors “whose life is more important,” the victim’s or the defendant’s.

Storey was resentenced in 1997 but again had his conviction overturned, this time over a procedural error by the judge. He was sentenced to death a third time in September 1999 and remains behind bars.

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FAYE COPELAND

Livingston County great-grandmother convicted in 1991 and sentenced to death, along with her husband, Ray, for the murder of five transient farmhands from 1986 to 1989 in a cattle fraud scheme.

A federal judge commuted her sentence to life without parole in August 1999 after noting Hulshof’s “completely improper” comparison of Faye Copeland to Los Angeles street gang members killing each other for turf in the crack cocaine wars. A federal appeals court upheld that decision one year later.

Copeland died in December 2003, at 82, while in a nursing home on medical parole after a stroke.

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SHIRLEY JO PHILLIPS

Greene County woman convicted of first-degree murder and sentenced to death in April 1992 for the 1989 murder of a woman whose dismembered body was found near Springfield.

The Missouri Supreme Court ruled in 1997 that defense attorneys never received a tape recording of a witness who said Phillips’ son — a butcher — told her he had dismembered Wilma Plaster’s body while his mother drove a car. In his closing arguments, Hulshof repeatedly argued that Phillips deserved to die because she personally had cut up the victim’s body.

Hulshof says he didn’t know about the tape at the time of the trial. In a 2001 interview with the St. Louis Post-Dispatch, the presiding judge agreed.

Phillips was resentenced to life in prison without parole in October 1998. Now 71, she is still behind bars.

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RICHARD CLAY

Bootheel man convicted in September 1995 by a Callaway County jury for the 1994 murder for hire of businessman Randy Martindale in New Madrid County. Martindale’s wife allegedly had an affair with Clay’s friend Chuck Sanders.

In 2001, Sanders came forward and testified that he lied — at the urging of Hulshof and New Madrid prosecutor H. Riley Bock — about the 10-year sentence he expected to receive as a plea bargain. Sanders eventually received five years’ probation for his involvement.

Citing that new evidence, a federal judge threw out Clay’s conviction in 2001. A federal appeals court reinstated Clay’s death sentence 2004. He is imprisoned and awaiting an execution date. Both Bock and Hulshof filed sworn affidavits disputing Sanders’ account of the plea deal. So did Sanders’ trial attorney.

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DALE HELMIG

Osage County man convicted in May 1996 for the July 1993 murder of his mother, Norma. Sentenced to life in prison without parole. During closing arguments, Hulshof alluded to a pillow to show the jury how a victim could be suffocated. But no pillow was introduced into evidence during trial, and investigators didn’t determine Norma Helmig’s cause of death.

In 2005, a federal judge tossed out Helmig’s first-degree murder conviction because jurors were provided a map during deliberations that also had not been introduced as evidence.

The map was used to support Hulshof’s contention that Helmig drove from a Fulton motel to his mother’s home in Linn, south of the Missouri River, dumped her body in the Osage River and returned to Fulton by the next morning — all in the midst of the 1993 floods that caused the Missouri River to spill over the Highway 54 bridge near Jefferson City for much of the night.

A federal appeals court reinstated the conviction in 2006. The U.S. Supreme Court declined to hear an appeal of that decision.

Now Hulshof wants to be governor of Missouri, a job that includes the ability to grant a pardon or commute a death sentence.

In the midst of a Republican primary campaign against state Treasurer Sarah Steelman, Hulshof is campaigning on a seven-year record as a state prosecutor specializing in small-town murder cases. His televised campaign ads cite his courtroom experience, and just last week he was in Columbia to tout his anti-crime package.

Now Hulshof’s prosecutorial experience is coming under added scrutiny.

An Associated Press review of court dockets, state and federal appellate decisions and other legal records shows that in four cases, prosecutorial errors by Hulshof led to death sentence reversals.

Another accused murderer won acquittal by a new jury at a second trial after his Hulshof-prosecuted conviction was rejected on appeal. A sixth defendant sentenced to life in prison without parole briefly won a bid for freedom when a federal judge tossed out the conviction, although it was later restored.

And in southeast Missouri, a sheriff who helped Hulshof convict a man in the 1992 killing of a 19-year-old college student has reopened the investigation into her violent death.

Hulshof’s errors cited by appeals courts often occurred during closing arguments, or in a trial’s penalty phase. Judges said that Hulshof too readily embellished arguments with his own opinions or with facts outside the court record.

In one case, a murder conviction was tossed because jurors were given a map during deliberations that hadn’t been introduced as evidence.

In another, an undated note from a woman allegedly killed by her husband describing the couples’ marital troubles was rejected as hearsay by an appeals court after Hulshof introduced it as evidence.

Critics say that Hulshof’s record reflects a lawyer who crossed the line from zealous representative of the people to a politically ambitious prosecutor willing to bend the rules for the sake of a conviction.

"This is kind of the way he operates," said Sean O’Brien, a University of Missouri-Kansas City law professor who represented Faye Copeland and Dale Helmig - two of the six defendants whose Hulshof-led sentences were overturned - as an appellate defense lawyer.

"He’s always very aggressive. He is extremely skilled. And he creates suspicion out of no evidence."

Hulshof offers a different explanation. Taken collectively, the seven disputed cases merely show that the legal system and its inherent checks and balances worked as intended.

"The tension of the system working is that you have an aggressive defense attorney and you have a tough but fair prosecutor," he said. "And once you walk into the courtroom ... you have equal adversaries presenting a case to a jury. The judge is the referee. And then whatever the jury says is justice."

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Hulshof, 50, began his legal career in 1983 as an assistant public defender fresh out of the University of Mississippi law school. He remained with the office for three years, representing indigent defendants unable to pay for private attorneys.

Among his clients was Jerome Mallett, who was convicted in 1986 of murdering a state trooper during an Interstate 55 traffic stop in Perry County. Mallett was put to death in July 2001, with Hulshof - by then an incumbent congressman - viewing the execution at his own request as a state’s witness.

Hulshof joined the office of Cape Girardeau Prosecutor Morley Swingle when he was recruited by the newly-elected Swingle in November 1986. He remained there for three years as Swingle’s top assistant before joining the attorney general’s office.

Swingle called his protégé a tenacious courtroom advocate with a flair for connecting with the jury. With his boyish good looks and southeast Missouri drawl, Hulshof could have jurors hanging on nearly his every word, Swingle and others recall.

"Kenny was one of the best trial lawyers I had ever seen," Swingle said. "He is such a persuasive speaker. He could really get a jury to see the facts his way. He could tell a suspenseful story and keep people’s attention."

Hulshof said his work in the Mallett case caught the attention of his courtroom adversary in that trial, state Special Prosecutor Tim Finnical, who was known as "Dr. Death" for his success at death penalty cases.

Finnical recommended that then-Attorney General Bill Webster, a Republican, hire Hulshof as his successor. When Democrat Jay Nixon won the attorney general’s office in 1992, the new attorney general kept the Republican attorney, Hulshof, on board. He did the same after Hulshof’s first unsuccessful bid for Congress two years later - much to the chagrin of some Democratic party leaders.

Nixon, who remains attorney general, is the likely Democratic nominee for governor. His role as Hulshof’s former boss makes it unlikely that the Republican’s prosecutorial record will become a campaign issue, Hulshof acknowledged.

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In his state job, Hulshof traveled Missouri from one small-town courthouse to the next, aiding overmatched local prosecutors who in some cases had never tried a first-degree murder case and needed the state’s help. Or they lacked the investigative resources to build a case based on circumstantial evidence or recalcitrant witnesses.

"If it was the proverbial shooting-fish-in-a-barrel case," Hulshof said during a 90-minute interview, "we wouldn’t get the call."

Hulshof offers explanations for each of the cases where his courtroom conduct was later questioned.

In the case of Walter Timothy Storey - a St. Charles man who broke into his neighbor’s apartment and slit her throat - Hulshof noted that the state Supreme Court had then yet to consider a prosecutorial tactic he learned at a national conference.

In Storey, the high court cited four "egregious errors" committed by Hulshof in the trial’s penalty phase. The tactic he picked up at the prosecutors’ conference - asking jurors whose life was more important, the victim’s or the defendant’s - was just one of the four excesses identified on appeal.

In the case of Shirley Joe Phillips, a Greene County woman convicted of murdering a woman whose dismembered body was found near Springfield, the state Supreme Court later ruled that defense attorneys never received a tape recording of a witness who said Phillips’ son dismembered the body while she drove a car.

The reason: The tape did not surface until after trial, when it was found in the desk drawer of a sheriff’s deputy who had taken ill during the initial investigation. Hulshof said he didn’t know about the tape until later; the trial court judge supported Hulshof’s account.

Phillips was later resentenced to life in prison without parole.

Tomorrow, Hulshof’s prosecutorial record will come under yet another judicial review when a Cole County judge hears a request for a new trial by Joshua Kezer, who has been imprisoned for 14 years for the 1992 killing of a 19-year-old college student in southeast Missouri.

Kezer was convicted almost entirely on the testimony of Mark Abbott, who initially suggested that he saw Kezer at a gas station near where Angela Mischelle Lawless’ body was found. In an interview with Scott City police, he later backed off that statement. Kezer’s appellate attorney said that potentially exculpatory evidence was never shared with his original defense attorney.

Inconsistencies in the Kezer case have led Scott County Sheriff Rick Walter - a former reserve deputy who responded to the Lawless murder scene - to reopen his own investigation. Hulshof said he wasn’t aware of Abbott’s subsequent interview, and unlike some of the other disputed cases, no appeals court has faulted Hulshof’s conduct.

In southwest Missouri, banker George Revelle was convicted in February 1996 of killing his wife, Lisa, while she slept to collect on a $500,000 insurance policy. One year later, the state Court of Appeals reversed the conviction and ordered a new trial, calling an undated note from Lisa Revelle about marital trouble inadmissible hearsay. A second jury acquitted George Revelle in December 1998.

Hulshof’s prosecutorial record was a campaign issue in his first two bids for Congress - but not because of concerns he was too tough on criminal defendants.

Instead, both winning Democratic incumbent Harold Volkmer in 1994 and Republican primary challenger Harry Eggleston two years later ran ads slamming Hulshof for his failure to respond to a petition for a speedy trial by accused killer Vance Roy Clark. The defendant was subsequently released from jail.

Hulshof says his courtroom conduct, like his 12-year congressional record, is fair game for scrutiny as he runs for governor. He’s confident that any such inquiry would reveal nothing less than a fair and impartial advocate.