Tests stalled on bullets from Kezer case

Ballistics evidence that could lead investigators to new witnesses and new truths in the Mischelle Lawless case has fallen prey to a quagmire of miscommunication and a tangle of red tape.

Joshua Kezer, 32, currently sits in a Jefferson City prison, serving a 60-year sentence imposed in 1994 for the murder of Lawless. The conviction has come under scrutiny since Scott County Sheriff Rick Walter reopened the case in 2005. Walter and other investigators and lawyers have unearthed numerous holes in the case that sent Kezer to prison, a case that could not put Kezer at the crime scene and where key witnesses changed their stories on numerous occasions before and after the trial.

While Kezer sits in prison, forensic evidence that could shed further light on Lawless' killer is at the center of a dispute that spans several jurisdictions. Local and state law enforcement agencies, citing a lack of communication and fear that opening the evidence could disrupt death-row appeals, have stalled the release of the evidence for a year and a half.

In early 2006, Walter had just begun a new investigation into the 1992 murder of Angela "Mischelle" Lawless, a 19-year-old nursing student at Southeast Missouri State University, when he received information that the killing may have a connection to a murder-for-hire plot that unfolded in 1994 in New Madrid County.

Kezer was an 18-year-old living in Kankakee, Ill., at the time Lawless was found shot to death in her car at the northbound exit ramp of Interstate 55 near Benton, Mo. Despite Kezer's conviction in the case, Walter wasn't convinced that evidence linking the teen to the crime was solid. Between Walter's office, a private investigator in Cape Girardeau County, and Charles Weiss, a St. Louis lawyer with the Bryan Cave Law Firm handling Kezer's case pro bono, a long list of evidence, including DNA, was dug up supporting their belief that Kezer was not involved with the murder.

Ballistics testing

Since Walter reopened the case in December 2006, detective Branden Caid, hired to investigate the Lawless case for the sheriff's department, interviewed a handful of people who reported that the same gun used to kill Lawless was used in another homicide, that of Randy Martindale in May 1994 in New Madrid, Mo.

Richard Clay, accused of a contract killing, was convicted of Martindale's murder and received a death sentence for the crime. Stacy Martindale, wife of the victim, was found guilty of second-degree murder for hiring the hit on her husband and was issued a sentence of 15 years in prison. In both the Lawless and Martindale murders, neither gun was ever found, though both were believed to have been. 380-caliber semiautomatic handguns.

Police recovered shell casings from the bullets in both cases. They have three bullets that had been fired in the Lawless killing, and one live round found in a field in the New Madrid murder. The live round matched the shell casings.

Ballistics analysis done on the evidence showed consistencies, Walter said, but an expert would need to compare the cartridges or bullets under a microscope to determine whether they came from the same weapon.

The process, once it was on the docket at a lab, would take a tool mark examiner maybe a day or two to complete, said Pam Johnson, supervisor of the Southeast Missouri Regional Crime Lab. While comparing the bullets that had been fired with the live ammunition may not produce a conclusive result, Johnson said, the cartridges or casings could certainly tell an examiner whether they came from the same gun. Walter requested the ballistics evidence found in the Martindale homicide, now in the custody of the Missouri State Highway Patrol, in 2006. The request has not been granted.

The problem is that the evidence is technically still the property of the New Madrid County prosecuting attorney's office, which tried the capital murder case in Callaway County on a change of venue.

That office must authorize the highway patrol to release it to another jurisdiction, in this case, Scott County, said Major Ronald K. Replogle, commander of the criminal investigation division of the highway patrol.

"It's not our call to make," Replogle said.

The evidence is currently in Troop E headquarters in Poplar Bluff, Mo., where it will stay until Lewis Recker, New Madrid County prosecutor, grants the highway patrol authorization to release it, Replogle said.

Custody of highway patrol

The highway patrol, which assisted in the investigation of both homicides, generally retains custody of the evidence in death penalty cases, Replogle said. According to Captain Stephen J. Hinesly, director of the patrol's crime laboratory division, troopers from the patrol have spoken with Recker and he has refused to release the evidence. Recker said he's uncertain how helpful the evidence will be, since firing tests were never performed on the live round found in the Martindale case.

He said he was unaware the analysis had been compared already and that similarities had been found, and wanted to know if the enlarged forensics photos of the evidence would serve the same purpose for comparison.

"There isn't an examiner in this country that will do that," Johnson said. Johnson explained that tool mark examiners insist on taking their own photographs and examining the actual evidence, not pictures. Recker said he asked Walter both of those questions in 2006, and they went unanswered.

"It's not that I'm not willing to work with them," Recker said. "I would like to talk to them and have my questions answered as to how this is going to be any benefit."

Recker said releasing the evidence could present chain-of-custody issues if the Clay case is ever retried.

"I'm the one who is responsible for keeping evidence until the entire case is concluded, and it's still not concluded," Recker said.

Clay is currently on the list of those death-row inmates awaiting dates to be set for execution, said Brian Hauswirth, spokesman for the Department of Corrections.

Caid said he'd sent several letters to Recker requesting the evidence.

Walter said he'd made personal calls to the prosecutor.

"We could have had this out of the way a year ago," Walter said. Linking the two murders to the same gun not only further discredits the case against Kezer, because he was in prison at the time of the Martindale homicide, it makes Clay a possible witness in the Lawless murder, Caid said. The evidence will probably be turned over to Scott County for testing at some point, Recker said.

Before releasing the evidence, Recker said he would seek guidance from the attorney general's office since it is a capital case.

"Let's just go ahead and test it," Weiss said.

Kezer never had access to a gun in the first place, and this testing could provide further proof, he said.

Hearing set

Weiss recently filed a habeas corpus motion for wrongful incarceration, citing numerous pieces of new evidence. A hearing is set for June 9 in Cole County, Mo., for a judge to discuss the case and schedule hearings on the key issues, Weiss said.

Hinesly said he told Caid in 2006 that the tests could be performed in the patrol's lab. In an interview Thursday, Hinesly offered to push the request for analysis to the front of the line, because it has been languishing for so long.

"If this young man is innocent, we certainly wouldn't want to stand in the way of justice being served," Replogle said. Because the state is a party in the habeas motion, the attorney general's office declined to comment on any aspects of the case or evidentiary dispute, spokesman John Fougere said.

bdiscomo@semissourian.com

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