Judge's ruling in Kezer case has harsh criticism for Hulshof

ELIZABETH DODD ~ edodd@semissourian.com Joshua C. Kezer listens to testimony in a hearing alleging wrongful conviction at the Cole County Courthouse in Jefferson City Dec. 2. [Click to enlarge]

Cole County Circuit Judge Richard Callahan ruled Tuesday that Joshua Kezer, who was 17 at the time, was wrongly convicted in the 1992 death of 19-year-old Angela Mischelle Lawless. She was found in her car on the Interstate 55 exit ramp near Benton with the motor still running.

The judge's 44-page ruling on Kezer's habeas corpus petition took issue with the courtroom conduct of Hulshof, a former special prosecutor who later served as a six-term Republican congressman from Columbia before losing the 2008 governor's race to Democrat Jay Nixon. The judge ruled that Hulshof, who traveled the state prosecuting high-profile murder cases in small towns, improperly withheld several key pieces of evidence from Kezer's defense attorneys.

"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 post-trial review and it failed during the appellate process," Callahan said.

Callahan ordered that Kezer -- convicted of second-degree murder and sentenced to 60 years -- be set free from the Jefferson City Correctional Center within 10 days, unless Scott County Prosecutor Paul Boyd seeks a retrial. Boyd did not immediately respond to a request for comment Tuesday.

Hulshof, who is now with a Kansas City-based law firm, issued a statement Tuesday expressing confidence in the integrity of Kezer's trial.

"Today's opinion goes to great lengths to cast doubt on the credibility of the state's witnesses," Hulshof said. "But twelve jurors looked these witnesses in the eye, dispassionately listened to their testimony, and found them to be credible. The jury came to a unanimous decision that Mr. Kezer's alibi witnesses were not credible and that the state had proven beyond a reasonable doubt that Joshua Kezer was the murderer.

"I remain confident in the jury's verdict. My biggest regret is that the family of Mischelle Lawless is experiencing a travesty of justice."

According to Callahan, the case's "only bright note" was Scott County Sheriff Rick Walter, who reopened the case in 2006. Walter had responded to the Lawless murder scene more than a decade earlier as a reserve deputy.

Among the pieces of evidence Callahan said Hulshof kept from Kezer's attorneys were:

-- Investigative notebooks from Scott County deputy Brenda Schiwitz. The notes included information on other possible suspects as well as a statement from a prosecution witness that contradicted another witness' statement placing Kezer at the crime scene.

Schiwitz testified in a 1993 pretrial deposition that she destroyed her notes. In fact, they were later found in the case file by Walter, the new sheriff. Schiwitz testified in the new appeal that she gave those notes to Hulshof and Van Godsey, his chief investigator.

-- A Scott City police interview of another suspect that also contradicted the witness' identification of Kezer being seen near Lawless' car. The person named in that interview was biracial; Kezer is white.

-- a written statement by a Cape Girardeau jail inmate who admitted lying that Kezer had confessed to the killing. The inmate said he lied in hopes of getting a reduced sentence on his own pending charges.

Two other inmates seeking reduced sentences also claimed that Kezer confessed. But when defense attorney David Rosener introduced signed statements by the three inmates recanting their earlier claims, Hulshof succeeded in keeping those admissions from being introduced at trial by suggesting that Rosener threatened the men to obtain their statements.

An AP investigation found that in four cases -- excluding the latest Kezer decision -- 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 seventh defendant sentenced to life in prison without parole briefly won his freedom when a federal judge tossed out the conviction, although it was later restored.

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.

Callahan, the Cole County judge, faulted Hulshof for similar misconduct during closing arguments at the Kezer trial.

"We put him at the scene, we put a gun in his hand, we put the victim with him, we have got blood on his clothes," Hulshof told the jury.

Callahan said that "none of what Mr. Hulshof said in that final summary was true. ... Testimony putting (Kezer) at the scene is totally discredited. No gun was ever found, and there is no credible evidence that he ever had a gun.

The judge added that new evidence uncovered since the first trial -- including an ex-boyfriend's DNA found under Lawless' fingernails -- further suggests that Kezer was wrongly imprisoned.

Charlie Weiss, Kezer's appellate attorney, called Callahan's ruling "a blockbuster," noting Callahan's background as a prosecutor. Callahan spent three decades in the Cole County prosecutor's office before becoming a judge in 2002.

Weiss said he hopes the ruling sends a clear message to that Kezer, now 34, deserves to be set free after spending half his life behind bars.

"When you read this opinion, there is just no evidence against Joshua Kezer at all," he said "I just can't see how a prosecution could proceed in good faith."

Video from the December hearing