Jan 15 2011

Joshua Kezer Awarded $4 Million For 16 Years Wrongful Imprisonment

By Hans Sherrer
Justice Denied

Joshua Kezer was convicted in 1994 of murdering 19-year-old Angela Mischelle Lawless in the southeast Missouri town of Benton in November 1992. Seventeen at the time Lawless was found dead in her car, Kezer was sentenced to 60 years in prison.

Although there were signs Lawless struggled with her assailant before she was killed, none of the physical or forensic evidence connected Kezer to Lawless’ murder, and there was no eyewitness to the crime. Scott County Sheriff Bill Ferrell admitted during his testimony that there was no evidence Kezer and Lawless knew each other.

Kezer’s alibi defense was that on the day of the murder he was 350 miles away in Kankakee, Illinois where he was living. Several alibi witnesses corroborated Kezer’s alibi.

Key prosecution evidence was testimony by Mark Abbott, a suspect in the crime who came forward four months after the murder and allegedly claimed he saw Kezer at a convenience store the night of the killing near the crime scene.

The prosecution also relied on three jailhouse informants who testified that Kezer confessed to the murder while awaiting his trial. Prior to Kezer’s trial they all recanted to Kezer’s lawyer, admitting in signed statements that they lied in the hope of getting a reduced sentence in their own cases. However, shortly before the start of Kezer’s trial the prosecutor — future U.S. Congressman Kenny Hulshof — filed a motion to disqualify Kezer’s private counsel on the basis a lawyer cannot be both a witness and an advocate on the same case. The motion also alleged that Kezer’s lawyer coerced the recantations by threatening the three prisoners. With Kezer’s family financially unable to hire a different lawyer, and Kezer having already been jailed for 15 months awaiting trail and not wanting the lengthy continuance that assignment of a public defender would involve, Kezer agreed his lawyer would not testify. So Kezer was unable to take advantage of his lawyer’s knowledge that the three jailhouse informants had willingly recanted in writing their claims he confessed.

Post-conviction investigation of Kezer’s case resulted in the discovery of new evidence, including that the prosecution had failed to disclose key documents that Abbott had in fact identified a man named Ray Ring as the driver of the car, and that at least one of the prisoners had recanted in a written statement to prosecutor Hulshof prior to Kezer’s trial. Based on the new evidence Kezer filed a writ of habeas corpus based on two claims: Brady violations by the prosecution’s failure to disclose exculpatory evidence, and his actual innocence of the crime.

Cole County Circuit Judge Richard Callahanon vacated Kezer’s conviction in a 44-page ruling he issued on February 17, 2009. Judge Callahanon ruling states in part:

“This Court concludes that the nondisclosure of the above-described exculpatory materials constituted a violation of Josh Kezer’s constitutional due process rights within the holding of Brady v. Maryland, and, consequently, for this reason alone Josh Kezer’s convictions for the murder of Mischelle Lawless and the related armed criminal action cannot stand and should be vacated, and Josh Kezer is entitled to habeas corpus relief. (p. 36)

In addition to his Brady claim, Petitioner has met the heavier burden under Amrine of demonstrating actual innocence by clear and convincing evidence that undermines this Court’s confidence in the correctness of the judgment. As such, confidence in his conviction and sentence are so undermined that they cannot stand and must be set aside.
Kezer v. Dormire , No. 08AC-CC00293 (Cole County, MO Cir Ct, 2-17-2009), p. 44.

Judge Callahanon also wrote:

“There is little about this case which recommends our criminal justice system. The system failed in the investigative and charging stage, it failed at trial, it failed at the post trial review and it failed during the appellate process. … Tragically for the family of Mischelle Lawless, the real killer or killers remain at large.” (pp. 1-2)

Joshua Kezer laughs after his release from the Jefferson City Correctional Center on February 18, 2009 (Associated Press)

Joshua Kezer laughs after his release from the Jefferson City Correctional Center on February 18, 2009 (Associated Press)

Kezer was released the next day on bail after spending 15 years and 10 months incarcerated for a murder he had nothing to do with. During an impromptu press conference after his release Kezer told reporters, “There are untold other (innocent) people in prison. They don’t have what I had. They don’t have million-dollar attorneys. They don’t have friends that are relentless.”

The murder charge against Kezer was subsequently dismissed.

In August 2009 Kezer filed a federal civil rights lawsuit that named as defendants Scott County, and former Scott County Sheriff Bill Ferrell and deputy sheriff Brenda Schiwitz. The lawsuit sought damages in excess of $20 million. It claims included the defendant’s, “failure to disclose exculpatory evidence, false arrest, wrongful arrest, assault and battery, false imprisonment, procurement and promotion of unreliable and false evidence, … for which Plaintiff seeks compensation for personal physical injuries and physical sickness, past and future medical bills and expenses, physical pain and suffering, actual damages, pecuniary losses, loss of enjoyment of life, lost ages and income…”

It was reported in the Southeast Missourian on August 14, 2010, that Kezer’s lawsuit had been settled. However, there was no official announcement about a settlement or its terms. Consequently, Justice Denied filed a Public Records Request with Scott County for a copy of the settlement agreement. Scott County complied with that request and provided a copy of the Settlement Agreement. The following is key information in the agreement:

* The settlement was entered on August 7, 2010.

* Kezer settled all his claims against the defendants for a total of $4 million.

* All of Kezer’s attorney fees, costs and expenses are to be paid from the $4 million

* All of Kezer’s compensation is for his “personal physical injuries and physical sickness within the meaning of §104(a)(2) of the Internal Revenue Code.”

* None of Kezer’s compensation is “payment for lost wages and income, punitive damages and other nonphysical injuries and damages.”

* Since none of Kezer’s compensation is considered personal income under the IRC, the Defendant’s agreed “not to issue and file IRS Form 1099” for the payments to Kezer.

Due to the way the settlement is structured, Kezer will not have to pay federal income tax on the $4 million in compensation, less whatever portion of that he agreed to pay his lawyers.

Jane Williams and Joshua Kezer after his release

Jane Williams and Joshua Kezer after his release

The unsung hero in Kezer’s case is Jane Williams. Ms. Williams worked in Columbia, Missouri as a social worker and she founded the local chapter of Love INC, an organization that connects with people recently released from prison into the community. Williams met Kezer in the chapel at the Jefferson City Correctional Center and took an interest in his case after he exhausted his appeals. She obtained his case files and found what she believed were significant problems with the prosecution’s case and the evidence the jury relied on to convict Kezer.

Williams wrote a 20-page overview of Kezer’s case and sent it to an attorney she knew in Boston. After looking it over he contacted St Louis attorney Charlie Weiss. After reviewing Williams’ overview and looking into the case Weiss agreed to represent Kezer pro bono. After Weiss became involved Scott County Sheriff Rick Walter, who as a reserve deputy was the person who found Lawless’ body in her car, voluntarily reopened the investigation into her murder. With access to the prosecution’s internal case files, Walter’s investigation uncovered the key documents prosecutor Hulshof concealed from Kezer’s attorney. Although the efforts of Weiss and Walter’s were invaluable to Kezer’s release, he would have completed his 60 year sentence without Jane Williams’ investigation and efforts to bring attention to his case. Weiss said of Williams, “She instigated this whole thing. Without her, we would never be involved.”

Permanent link to this article: http://justicedenied.org/wordpress/archives/537