Attorney general questions validity of recordings in Robinson case

One of the arguments the Missouri Attorney General’s Office is now making to defend its conviction of David Robinson is faulty recording practices by the public defense investigator in the case.

Robinson was convicted for the 2000 murder of Sheila Box on the testimony of two jailhouse informants who since have recanted. No physical evidence ties Robinson to the crime, and another man, Romanze Mosby confessed to shooting Box to several people.

One of those people was Butch Johnson, the investigator, who, in 2004 talked to Mosby in prison about his role in the Box killing. Johnson has said Mosby broke down emotionally in telling the confession initially, then Johnson received permission from Mosby to record the confession.

Last month, a judge assigned by the Missouri Supreme Court to examine the case and make a recommendation to the court, said prosecutors and police violated Robinson’s due process on several occasions. Beyond that, Judge Darrell Missey said in his report to the court, Robinson more than met the standards for an actual innocence claim. Actual innocence claims are rare in Missouri (there have been only two in Missouri, according to a source close to Robinson’s case), but if Robinson were to attain it, it would make the second such instance in Scott County. The other was Josh Kezer’s exoneration in the Angela Mischelle Lawless case, another case that fell apart after jailhouse informants recanted and after it was found investigators did not disclose evidence that favored Kezer.

On Friday, the Missouri Attorney General’s office submitted a response to the court, asking it to disregard certain elements of Judge Missey’s findings.

Missouri Attorney General Josh Hawley speaks at a news conference June 23 in St. Louis.
Jim Salter ~ Associated Press, file

The 76-page report fired shots at Mosby’s recorded confession, which is central to Robinson’s case, but has been rejected by previous courts because it was deemed hearsay.

Mosby made the recording, but refused to sign an affidavit when he confessed in 2004. Years later, he eliminated himself as a witness in the case when he committed suicide after learning Robinson had attained pro bono assistance from the Bryan Cave Law Firm in St. Louis. A witness in the case has said Mosby became despondent after reading a story about Bryan Cave’s new involvement in the case, and hung himself within 24 hours of reading the article. He was nearing his release from prison for his role in a shooting.

In the response, submitted by Attorney General Josh Hawley but prepared by Katharine Dolin, the attorneys said the recording did not meet legal standards.

“This Court was presented with an audiorecording, made by Butch Johnson, that purports to be Romanze Mosby’s murder confession,” the report stated. “This recording was alleged to have been made four years after the murder and includes several minutes of Johnson speaking with someone identifying himself as Romanze Mosby. This Court accepts Butch Johnson’s testimony that the voice on the tape is Romanze Mosby’s. However, it was Robinson’s obligation to admit this evidence upon a proper foundation and he failed to do so. The recording was only aurally recorded rather than audiovisually recorded; neither speaker identified the date of the making, and there was no evidence presented regarding the equipment used to record, the competency of the user, and whether the recording was unaltered.

“It is notable that the only statute authorizing the admission of hearsay testimonial recordings ... requires the recording to be both aurally and visually recorded, both speakers to be available for cross-examination, and that equipment be capable of making an accurate recording, the operator be competent, and the recording be accurate and unaltered. ... When evidence as important as a murder confession is presented from an unavailable witness without any chance for cross-examination, there must be at least minimal assurance that the evidence is reliable. Save for the testimony of Butch Johnson, who has already been found by the Circuit Court of Scott County to have questionable investigative practices, there was no foundation for the recording. It should not be considered by this Court for any purpose.”

According to Johnson, after Mosby made his confession — which can be heard at semissourian.com — the two waited hours for a notary public to arrive at the prison. By the time the notary arrived, Mosby changed his mind and would not sign an affidavit. He did, however, tell the notary that he told Johnson the truth. The notary was called as a witness during one of Robinson’s appeals, and she told the court Mosby told her the contents of the recording were true, but he would not sign the paper.

The Attorney General’s Office stated the content of the recording is “unremarkable” even though Missey found it “remarkably compelling.” But “it was not compelling,” the report stated. “It was extremely brief. The speaker had a flat affect and at times was difficult to understand. The speaker answered all questions with reluctance and details came from Johnson rather than the speaker throughout.”

The report erroneously stated that “neither speaker identified the date of the making.” In the audio, obtained by the Southeast Missourian, Johnson says, “It is Aug. 9, 2004. I am P.B. ‘Butch’ Johnson, capital investigator with the public defender’s office, Columbia, Missouri. For our record, would you state your name?”

One of the points Robinson’s attorneys made during hearings held by Missey in August 2017 was that the Sikeston (Missouri) Department of Public Safety did not record any interviews in the Box case. The prosecution depended entirely on two witnesses and no physical evidence. Robinson has claimed detectives put statements in reports that he did not say, and prosecutors took statements out of context in closing statements. Officers testified at the hearings that Sikeston DPS had access to recording devices, but did not use them. Instead, police provided summaries of interviews. One of the two witnesses claimed he falsely testified against Robinson because police offered him a new life, out of jail, in the form of a witness protection program. The other witness said he issued false testimony because of pressure from the police on more drug charges, though Missey said in his report he believed the second witness also was looking for a deal for leniency.

The only taped interviews made during the Box murder investigation were made by Bobby Sullivan, then a deputy with the Scott County Sheriff’s Department. He was following up on a tip from a witness close to Mosby who said Mosby had told him he had killed Box. There are several references in the court files of Sullivan’s recordings of interviews with Mosby and others in Mosby’s inner circle.

However, the Missouri Attorney General’s Office has lost those recordings. In a response to a request for the files by the Southeast Missourian last year, the AG’s office admitted it could not locate the recordings. Robinson’s current law team has never seen or heard them. A spokesperson in the Attorney General’s Office said the recordings were lost by a previous administration, and the current regime, led by Hawley, has put better systems in place to protect and preserve such documents. It is unclear who would hold the AG’s office accountable for the disappearance of evidence. The AG’s office would not comment on the matter.

bmiller@semissourian.com

(573) 388-3625

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