This article first appeared in the St. Louis Beacon, July 10, 2010 - MAYSVILLE, Mo. - Justice was on trial last week in a small town in northwest Missouri.
For three days, a circuit judge was shown what happens when police officers give inaccurate testimony, prosecutors distort facts and a defense lawyer doesn't do his job.
The case concerned Dale Helmig, who is serving a life sentence without parole for the murder of his mother, Norma Helmig. Her body, weighted with a cinder block, was found in the flooded Osage River between Jefferson City and Linn on Aug. 1, 1993.
Helmig has been serving a life sentence without parole since a jury convicted him on March 9, 1996.
In those days, Helmig liked beer and women and sometimes did drugs. He was behind in his child support payments. But he said he loved his mother, and there were witnesses at the hearing in Maysville who testified to that. They had not been called by defense lawyer Christopher J. Jordan at Helmig's original trial.
The lead prosecutor then was Kenny Hulshof of Columbia, who later became a U.S. representative and ran unsuccessfully for governor in 2008. When Gov. Jay Nixon was state attorney general, Hulshof was Nixon's special prosecutor.
Hulshof would go around the state helping local prosecuting attorneys with difficult murder cases. He often got convictions. Since then, some have turned out to be tainted and were overturned.
Helmig's may be next.
The law enforcement officer who supervised the case was Osage County Sheriff Carl Fowler. He admitted on the witness stand last week that he had no foundation for an answer he gave to Hulshof at the trial that Helmig had an altercation with his mother at a Jefferson City restaurant on the Sunday before she died.
Under questioning from Helmig's appeal lawyer, Sean O'Brien, Fowler said he had no written record to corroborate his statement.
"What is the source of this information?" O'Brien asked.
"I can't provide you with that," Fowler replied.
"Can you name a witness?" O'Brien asked.
"No sir, I can't," Fowler said.
Judge Warren McElwain, presiding over the hearing, said, "I think it would be important to know if Mr. Hulshof talked to him about that."
O'Brien asked, "Did you review your testimony with Mr. Hulshof?"
Fowler said he didn't go over it line by line, but added, "Obviously I talked to the prosecutor."
A PATROLMAN RECANTS
Much of the hearing testimony focused on incidents like Fowler's statement, how police investigated Norma Helmig's murder and how information was later presented to the jury at Dale Helmig's trial. There was no physical evidence or eyewitness testimony that connected him to his mother's murder.
With Fowler's help, Hulshof and then-Prosecuting Attorney Robert Schollmeyer developed a circumstantial case. The victim's son, they said, had guilty knowledge of the crime. They said Helmig said things that only the killer would know and that his behavior demonstrated he was responsible.
One of the state's main witnesses was Missouri State Highway Patrolman Robert Westfall, who was at the Osage County sheriff's office the night Helmig was arrested on March 6, 1994. Deputies asked Westfall to interrogate Helmig.
At the trial, Westfall was questioned by Hulshof about that interrogation.
"Sir, at any time during these contacts and particularly during this conversation that you've just shared with us, did Dale Helmig ever deny killing Norma Helmig to you?" Hulshof asked, according to the trial transcript.
"No sir, he did not," Westfall responded.
But Westfall's own police report of the interview showed that Helmig "stated that he did not murder his mother and that the sheriff was after him." Jordan, Helmig's defense lawyer at trial, did not cross examine Westfall about the discrepancy.
In a videotaped deposition played last week for Judge McElwain, Westfall recanted his testimony. He admitted he had been inaccurate.
O'Brien asked Westfall, "Yes or no, did Dale Helmig ever deny killing his mother?"
"Yes," Westfall replied.
Westfall, who is now a traffic accident investigator based in Mexico, Mo., gave no explanation about why his original testimony was wrong. But he said it had caused him considerable consternation for "the last several years."
One of the arguments presented to the jury at Helmig's trial was that he demonstrated guilt by not being present at his mother's home on a day when authorities searched for her.
Norma Helmig was last seen alive during the early morning hours of July 29, 1993, after playing bingo the night before at the American Legion hall in Jefferson City. She was reported missing July 30 and police searched near her home, just east of Linn, on July 31.
At the trial, the prosecution cast a shadow on Helmig's absence, pointing out that other members of the family were at the home that day. But during his testimony at the hearing, Osage County sheriff's deputy Paul Backhues acknowledged that he had advised Helmig not to come to the crime scene because Helmig was having visitation with his two children.
"I told him I didn't think it was a good idea to bring his kids down there," Backhues said.
Another way the prosecutors cast suspicion on Helmig was to point out that he suspected too soon that his mother had been murdered. During the trial, Hulshof pointed out to the jury that even before Norma Helmig's body was found, Helmig told a girlfriend, "You know somebody got crazy drunk and killed my mother."
Hulshof told the jury "that somebody" was Dale Helmig.
Helmig had the conversation with a woman named Stacey Medlock, who was interrogated by Osage County deputies. The "crazy drunk" statement had been taken out of context. Medlock also told deputies that Helmig told her, "I think my dad has something to do with this. I think my dad did it."
These statements were never presented to the jury. And when Helmig took the witness stand at his hearing last week he said, "I was talking about my dad." Dale Helmig suspected his dad because he had a history of abusing his mother.
Hulshof was not present at last week's hearing. He is now in private practice with a law firm in Kansas City. After two requests for an interview, a spokeswoman for the firm said he was unavailable.
A LIKELY SUSPECT
O'Brien is an attorney with the Midwestern Innocence Project and a professor of law at the University of Missouri-Kansas City. He has been working on the Helmig case for many years.
At the hearing in Maysville, O'Brien went further than simply demonstrating that Dale Helmig had been framed. O'Brien developed information that pointed a finger at Ted Helmig (right, in a recent photo), Norma's estranged husband and Dale's father, giving the case an almost Shakespearean dimension -- in the process of showing the son innocent, the suspicion shifts to the father. At the hearing, O'Brien presented evidence about the contents of Norma Helmig's purse that while exonerating Dale Helmig may implicate his father.
In a murder trial there are rules against a defense attorney muddying the waters by attempting to cast suspicion on a particular third party without the presence of actual evidence to link that person to the crime. Motive and opportunity are not enough.
Suggestions were made at Dale Helmig's original trial that Ted Helmig could be the perpetrator. In his closing argument, Hulshof made reference to that as putting "this kiss of Judas on his own father's cheek."
To understand the significance of the purse evidence, the timing of the discovery and how it affected Helmig's case, it's necessary to remember that Norma Helmig's disappearance and murder coincided with the great flood of 1993.
On the morning of Wednesday, July 28, 1993, authorities closed the bridge at Jefferson City that carries Highways 54 and 63 across the Missouri River. At 7:15 a.m. that day, the rising river waters had ripped a propane tank from its moorings near the bridge.
Dale Helmig was a painter, commercial and residential, interior and exterior. He was living with his mother, whose two-bedroom frame house was located a few hundred yards from the Gasconade River, east of Linn.
On the day the bridge was closed, Helmig was in Fulton, unable to get home across the Missouri River because of the bridge closing at Jefferson City. High water had also closed the Missouri River bridge at Hermann.
Many witnesses placed Dale Helmig at a motel in Fulton where he spent the night. But prosecutors said the bridge was open long enough for him to drive 54 miles to his mother's house to murder her.
Six months later, on Feb. 16, 1994, a farmer in Callaway County found Norma's purse about 1.5 miles downriver from the Missouri River bridge at Jefferson City. At the trial the state presented testimony from a hydrologist who said water currents, the flood and the location of the purse indicated it was thrown from the bridge. Prosecutors argued that Helmig could have discarded the purse off the bridge as he drove back to Fulton after killing his mother.
Inside the purse were Norma Helmig's cancelled checks that had been processed by the Exchange Bank in Jefferson City. Molly Frankel, a graduate student at the University of Missouri School of Journalism, working as an investigator for O'Brien, developed information from two bank officials who said that if the checks went through normal bank processing procedures, they would have been mailed to Norma Helmig after Aug. 9, almost two weeks after she was murdered.
Ted Helmig, who turned 79 years old on Saturday, was the first witness called by O'Brien at his son's hearing last week. Under questioning, Helmig acknowledged that he continued to collect his wife's mail for about two weeks after her death. Fowler testified that after the checks and purse were recovered, no investigators went to the bank to determine the timing of how they were processed.
O'Brien pointed out that Ted Helmig stood to gain money from his wife's death. Ted, then 62, and Norma, 55, were in the middle of a stormy divorce. On March 30, 1993, Norma filed a petition for legal separation from her husband. Two weeks later, Fowler served a temporary restraining order on Ted Helmig, ordering him to keep his distance from his estranged wife and to stop selling off joint property.
Fowler testified that although he got numerous complaints about her husband violating the protective order, he did not document them. He remembered serving the protective order on Ted on April 17. And he recalled Norma had asked him about how to obtain a permit for possessing a handgun.
On July 11, 1993, a little over two weeks before she died, Norma was having breakfast with a relative at a Jefferson City restaurant when Ted came in and asked her "what the hell was going on," according to the police report about the incident.
Ted told his estranged wife, "I'm going to put an end to this," the report said. He then threw hot coffee at Norma and left the restaurant.
Ted was one of the last people to see his wife alive. The night she played bingo at the American Legion Hall, she had a beer at the bar and conversed with another man there. Ted sat at the far end of the bar.
When O'Brien questioned him, Ted Helmig denied involvement in his wife's murder.
"Did you go there the night she was murdered, smother her with a pillow and tie a concrete block to her and throw her in the river?" O'Brien asked.
"No, I did not," Helmig responded. Helmig also denied taking his wife's checks, putting them in her purse and throwing it in the river.
A WRIT OF HABEAS CORPUS
Judge McElwain is a trim man about five feet, seven inches tall. He sometimes rides a bicycle from his home in Maysville to the DeKalb County Courthouse. A keen student of history, McElwain once traveled to Aachen, Germany, to visit the cathedral where Charlemagne was buried.
McElwain has the case because Helmig has been incarcerated at a state prison in Cameron, which is in DeKalb County. O'Brien filed a petition for a writ of habeas corpus against Larry Denny, superintendent of the prison.
Habeas corpus is a constitutional remedy that can be sought by a prisoner who claims unlawful detention. Originating in the English legal system, it is designed to safeguard individual freedom against arbitrary state action.
O'Brien originally made six claims on Helmig's behalf, and the judge agreed to consider three of them:
- The prosecutor engaged in repeated instances of misconduct.
- New evidence regarding the contents of a purse would clear Dale Helmig of guilt.
- During deliberations, jurors obtained a map of unknown origin that was used to persuade one or more hold-out jurors to vote guilty.
State and federal courts have turned down Helmig's appeals in the past. In 2005, a federal judge in St. Louis overturned Helmig's conviction on a habeas corpus appeal based on the fact that a juror was swayed by the map not in evidence. But the 8th U.S. Circuirt Court of Appeals overturned that decision, saying that element alone was not enough to challenge Helmig's conviction.
Compared with the wood-paneled walls of the federal courts in St. Louis, the conditions of the red brick DeKalb County courthouse are simple. The hearing took place in a bare basement room, where spectators sat on folding chairs and Judge McElwain presided from a table.
But while the court room was spartan, the judge maintained decorum. He ordered the bailiff to remove two men, members of a camera crew from America's Most Wanted, who were wearing shorts.
Assistant State Attorney General Stephen Hawke, who was defending the conviction, tried to keep out most of the testimony. He argued that Dale Helmig's claims were based on arguments denied in previous appeals.
O'Brien often seemed to anticipate the state's objections. He had ready responses to the state's arguments, citing legal interpretations of court cases and exceptions to rules in criminal appeals.
More often than not, he persuaded Judge McElwain to allow the evidence and testimony. At the end of the hearing, the judge complimented the performance of the lawyers from both sides and promised a decision by Oct. 1.
"I don't know how I'm going to rule at this point," he said.
As for Dale Helmig, he thought the three days went pretty well.
"I'm pretty happy with it," he said. "I hope that the judge will do the right thing and rule in my favor. I've got a pretty good feeling about it. Of course I want to get out. I'm innocent. I had nothing to do with my mother's death and I've been in prison for almost 15 years. It's time to go home."
Terry Ganey is a freelance writer in Columbia.