Judge who exonerated Kezer said justice system 'failed' on many levels

Missouri's criminal justice system not only made a mistake in convicting Joshua C. Kezer in 1994 of a Scott County homicide, it suffered a breakdown at every possible level, a Cole County judge ruled Tuesday.

Cole County Circuit Judge Richard Callahan issued a ruling in Kezer's case Tuesday morning, freeing him from the second-degree murder and armed criminal action conviction that has kept him in prison for more than 14 years and ordering his release from Jefferson City Correctional Center within 10 days, unless the state decides to retry him.

"There is little about this case which recommends our criminal justice system," Callahan wrote in his 44-page opinion granting Kezer's motion for exoneration.

"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."

Callahan's decision found Kezer, through a motion filed in April culminating in a two-day hearing last December, had proved his "actual innocence" of the 1992 shooting death of Angela Mischelle Lawless.

"As such, confidence in his conviction and sentence are so undermined that they cannot stand and must be set aside," Callahan said.

Kezer was also denied a fair trial because crucial evidence withheld from his defense could have changed the outcome or the trial, Callahan ruled.

Lawless, a 19-year-old nursing student at Southeast Missouri State University, was discovered in her car near the northbound exit ramp of Interstate 55 in Benton, Mo., less than a mile from her home, during the early morning of Nov. 8, 1992. She had been shot three times.

Kezer was arrested several months after the murder when three jailhouse informants came forward to point the finger, having been promised leniency in exchange for their statements.

The case against Kezer was "extremely weak" from the very beginning, Callahan said in his ruling. No physical evidence linked him to the crime, and several witnesses placed Kezer more than 350 miles away, in Kankakee, Ill., the night of the murder.

Before the case went to trial, three of ultimately four jailhouse snitches that ended up testifying in the case recanted their stories to David Rosener, one of Kezer's trial attorneys, but two of them flipped again at the trial, sticking with their original statements that they heard Kezer confess to the murder.

Rosener testified at a motion hearing in December that held Kenny Hulshof, who prosecuted the case during the 1994 trial, committed "the worst case of prosecutorial misconduct he'd ever seen."

Hulshof motioned during the trial to have rozener disqualified from the case, alleging that the witnesses only recanted because Rosener threatened them and used coercion and trickery to get them to change their stories.

Callahan said Rosener's testimony at the hearing was credible, and considered it "new evidence" in the case because he could not testify during the original trial unless he had been disqualified as an attorney in the case, an option Kezer refused because his family had run out of money to hire a new law firm.

Rosener's testimony was corroborated by a statement one of the informants gave to a then investigator with the Scott County Prosecuting Attorney's Office, admitting all three men lied when they implicated Kezer.

The statement, which resurfaced last December when it was turned over by Hulshof's former investigator for the Missouri State Attorney General's Office, was one of a number of key pieces of evidence Callahan ruled were improperly withheld from the defense at the time of trial.

Other examples included a Scott City police interview contradicting testimony from the only eyewitness in the case, and investigative notebooks from Scott County Deputy Brenda Schiwitz containing information about other suspects.

At the time of trial, Schiwitz gave a sworn statement that she had destroyed her notes, but they were later found at the Scott County Sheriff's Department by investigator Branden Caid, lead detective on the case since current Sheriff Rick Walter reopened it in 2006.

In the past year, Schiwitz said in a deposition in the wrongful conviction suit that she gave those notes to Hulshof and his chief investigator.

From Schiwitz's files, Caid also recovered the interview with Scott City police where Mark Abbott, the only witness able to place Kezer in the state of Missouri on the night of the murder, named the person he saw near the crime scene as someone other than Kezer.

Callahan found Abbott's identification of Kezer to be "not credible and untrue," he stated in his opinion.

Abbott wrote a letter to Callahan in May of 2008 saying he believed he was mistaken when he pointed to Kezer's photo in a lineup.

At trial, prosecutors repeatedly misstated evidence to the jury when they referred to specks found on a jacket worn by Kezer as blood splatters, Callahan said.

Lab tests at the time showed the substance was not blood, and recent forensic testing has shown it to be vegetable stains.

In his closing argument, Hulshof told the jury "we have got blood on his clothes."

Hulshof also pointed to Abbott's testimony, statements for the snitches, and a last minute witness who testified she saw Lawless fight with Kezer a week before the murder.

"We now know none of what Mr. Hulshof said in that final summary was true," Callahan said in his opinion.

The witness who said she saw Kezer argue with the victim has not only admitted she was mistaken, but three other witnesses to the argument said it was with someone other than Kezer.

"There is no remaining evidence that Josh Kezer had ever met or known of Mischelle Lawless, or had any motive for Josh Kezer to have killed her," Callahan said.

Hulshof acknowledged that Callahan's opinion cast doubt on the credibility of the state's witnesses, but said he remains convinced of Kezer's guilt in the murder.

"My biggest regret is that the family of Mischelle Lawless is experiencing a travesty of justice," Hulshof said in a prepared statement.

Callahan called the only "bright spot" in the case the decision of Walter in 2006 to reopen the murder investigation, which uncovered much of the new evidence shedding doubt on the conviction.

Through Walter's efforts, along with those of Kezer's currently attorneys with the Bryan Cave Law Firm, the system is taking strides to right itself in Kezer's case.

"Tragically for the family of Mischelle Lawless, the real killer or killers remain at large," Callahan said.

bdicosmo@semissourian.com

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