This article first appeared in the St. Louis Beacon, Nov. 4, 2010 - A judge has ruled that Dale Helmig, who has been imprisoned for more than 14 years for the murder of his mother, was an innocent man who became the victim of a fundamental miscarriage of justice.
DeKalb County Circuit Judge Warren McElwain ruled Thursday afternoon that evidence showed Helmig did not murder his mother, Norma Dean Helmig, and that his trial was corrupted by an inept defense, prosecutors' misconduct and police statements that turned out not to be true.
In a 110-page decision, the judge concluded that Helmig was "innocent of the crime for which he was convicted and sentenced, and that his constitutional rights were violated at his trial.
"This case presents the rare circumstance in which no credible evidence remains from the first trial to support the conviction," Judge McElwain wrote. "This court determines based on the record that under these rare circumstances, there is clear and convincing evidence of Dale Helmig's innocence. As such his conviction and sentence cannot stand and must be set aside."
The judge ordered Helmig discharged from the prison in Cameron where he is incarcerated unless the state moves to retry him within the next 180 days. It's now up to Attorney General Chris Koster to decide whether to appeal Judge McElwain's decision and the Osage County Prosecuting Attorney Amanda Grellner, who must determine whether to retry Helmig.
A spokeswoman for Koster's office said Thursday that the judge's decision was under review. Grellner did not return telephone calls made to her office.
In the meantime, Helmig's lawyers are asking that he be released on his own recognizance. According to the lawyers, Judge McElwain has scheduled a hearing on that request for next week.
The court's decision faulted Kenny Hulshof and Robert Schollmeyer, who prosecuted the case, and Christopher J. Jordan, whom Helmig hired to defend him against the murder charges. The ruling said Hulshof and Schollmeyer coaxed false testimony from witnesses, who included Missouri State Trooper Robert Westfall and Osage County Sheriff Carl Fowler, whose witness stand statements did not conform to the facts and misled the jury. The ruling also said the prosecutors withheld evidence that could have helped Helmig's case.
Jordan failed to give Helmig a proper defense. "Jordan's behavior was inexplicably bizarre throughout the trial," the judge wrote.
And in the process of determining that Dale Helmig was innocent, the judge said newly discovered evidence casts suspicion on his father, Ted Helmig, who was in the middle of a bitter divorce with Norma Helmig at the time of her murder. The judge noted that the discovery of cancelled checks in Norma Helmig's purse, which went missing at the time of her death, made Ted Helmig a "viable alternate suspect in this murder."
Judge McElwain's ruling came in response to a petition for a writ of habeas corpus filed in Helmig's behalf by Sean O'Brien, a professor at the University of Missouri-Kansas City School of Law and an attorney with the Midwestern Innocence Project. O'Brien had said it was illegal for the state to hold Helmig because, during his trial, police officers had made untruthful statements on the witness stand, prosecutors had distorted facts and a defense lawyer didn't do his job.
O'Brien has been working for more than a dozen years to reverse Helmig's conviction through appeals to state and federal courts. After Judge's McElwain released his long-awaited decision on Thursday, O'Brien said, "Getting to this point was way harder than it should be in a free country."
Police Recant Testimony
Helmig, 54, has been serving a life sentence without parole since a jury convicted him of first-degree murder in March 1996. The cinder-block-weighted body of his mother, who was 55 at the time of her death, was found floating in the flooded Osage River near Linn on Aug. 1, 1993.
While no direct evidence or eyewitness testimony linked Helmig to his mother's murder, Fowler focused his attention on Norma Helmig's oldest son because the sheriff believed Dale Helmig's statements showed he had guilty knowledge of the crime.
In July, Judge McElwain presided over a three-day hearing in Maysville, where he heard evidence and testimony on Helmig's claim of innocence. During that hearing, Westfall recanted his testimony that had damaged Helmig during his trial.
During Helmig's original trial, Westfall was the prosecution's last witness and testified, in response to a question from Hulshof, that during an interrogation Helmig never denied killing his mother. But Westfall's own report of the interview recounted Helmig's denial and said Helmig believed the sheriff was after him. During the hearing in July, Westfall changed his testimony and said in fact Helmig had denied killing his mother.
"Unfortunately, the prosecutor did not comply with his duty to correct false evidence when adduced in court," Judge McElwain wrote. "Nor did Mr. Jordan comply with his duty to subject the state's case to competent adversarial testing. Certainly, if Mr. Jordan had challenged trooper Westfall's testimony with the prior inconsistent statement in his report, he would have done considerable damage to the integrity of the state's case. Because of the failures of lawyers on both sides of this trial, trooper Westfall's mistaken testimony went to the jury uncorrected and unchallenged."
During the July hearing, Fowler acknowledged he had no information to back up a statement he had made on the witness stand that Helmig had an altercation with his mother just a few days before she was murdered. Both Schollmeyer and Hulshof later made references to the jury about an "altercation" incident, sometimes suggesting it amounted to the son throwing hot coffee in his mother's face during an argument at a restaurant over money.
"The state's thin circumstantial evidence case was considerably bolstered by 'evidence' of an assault by the defendant against the victim, which Sheriff Fowler's current testimony establishes beyond question is not true," Judge McElwain wrote.
The judge found that both Westfall's and Fowler's recantations amounted to newly discovered evidence that helped prove Helmig's innocence. The judge also concluded that prosecutors had failed to turn over information to the defense that showed Norma Helmig feared her husband to the extent that she believed she needed a handgun for protection.
"The court finds that the prosecutor's failure to disclose material, exculpatory evidence to the defense violated Mr. Helmig's right to due process of law," the judge wrote.
By telling the jury that Dale Helmig had an altercation with his mother, when in fact it hadn't happened, the judge determined that prosecutors knowingly misled the jury by presenting unproven evidence. "The court finds this tactic was highly improper and prejudicial to Mr. Helmig," the judge added.
Schollmeyer, who is now an associate circuit judge in Osage County, said he could not comment on the decision.
"My disciplinary rules restrict me from commenting on any case whatsoever, including my own," Schollmeyer said when reached by telephone at his office.
At the time of Helmig's trial, Hulshof was a special prosecutor in the office of then-Attorney General Jay Nixon. The Helmig case was the last Hulshof prosecuted. He later ran successfully for Congress, where he served six terms before running unsuccessfully for governor against Nixon in 2008.
Judge's McElwain's ruling marked the second time in less than two years that Hulshof has been connected to a case that sent an innocent man to prison. In February 2009, a judge affirmed a claim of innocence made by Joshua Kezer, who also spent more than 14 years in prison for a murder he insisted he did not commit.
Setting Kezer free, the judge in that case ruled that Hulshof had withheld key evidence from his defense attorneys and embellished details in his closing arguments. Some of Hulshof's prosecutorial tactics have been called to question in other cases reviewed by state and federal appeals courts. Hulshof is now an attorney in private practice at Polsinelli Shughart law firm in Kansas City.
Hulshof's law office issued a prepared statement in response to the ruling.
"A strong circumstantial case was built from the investigative evidence provided at the time by the Osage County Sheriff's office," Hulshof's statement said. "Robert Schollmeyer and I did our best, ethically and within the spirit of the law, to ensure a fair and reasonable verdict was reached on the evidence at hand. It is my hope that the authorities will consider all their options before making a decision whether or not to appeal or retry this case following this most recent judical review."
The 'Alternate Suspect'
During Helmig's habeas corpus hearing before Judge McElwain, information was presented casting suspicion on Ted Helmig, Norma's estranged husband, who is now 79. Fowler had served a temporary restraining order on Ted Helmig, requiring him to keep his distance from his wife.
That order did not stop Ted Helmig from throwing a cup of hot coffee on Norma Helmig during an argument at a Jefferson City restaurant a little over two weeks before she died. According to the police report of the incident, Helmig told his estranged wife, "I'm going to put an end to this."
Ted Helmig was one of the last people to see his wife alive and stood to gain financially by her death.
At the time of Dale Helmig's trial, prosecutors used the discovery of Norma Helmig's purse in the case against him. The purse, which had been missing since Norma Helmig's murder, was discovered in a farm field about 1.5 miles downriver from the Missouri River Bridge at Jefferson City.
The purse was found about six months after the murder, and it was the prosecution's theory that Dale Helmig had thrown the purse into the flooded Missouri River. But investigators for O'Brien found that the cancelled checks that were found in the purse were mailed to Norma Helmig's address after her death.
While Ted Helmig denied killing his wife, he acknowledged that he continued to collect his wife's mail for about two weeks after her death. During questioning at the July hearing, Ted Helmig denied putting the checks in his murdered wife's purse and throwing it in the river.
The judge ruled that Ted Helmig's admission that he collected his dead wife's mail "is very significant new evidence directly tying him to the crime.
"This court agrees that the new evidence connects him to the purse that had been missing since the murder, and this connection supports a strong inference that he was at the scene of the crime at the time of her death," Judge McElwain ruled. "Although Ted Helmig denied that he then put the checks in his wife's purse and threw it in the river, and denied that he murdered his wife, his admission, coupled with the physical evidence and other evidence of motive and opportunity, would be important facts implicating Ted Helmig in the murder of his estranged wife."
The judge added that the new evidence "is very persuasive" in supporting Dale Helmig's claim of actual innocence.
Also during the July hearing, McElwain heard testimony about Jordan's "erratic behavior" at Dale Helmig's trial, including information about arguments the defense lawyer made to the jury. A former law partner of Jordan's testified that Jordan had used marijuana, and several trial participants said Jordan didn't seem normal and that his performance showed "something was wrong." At one point, Jordan told the jury that the trial would include information about Israeli agents and satellite photos from outer space.
While not concluding that Jordan was on drugs during Dale Helmig's trial, the judge said that "Jordan's conduct of the trial raises serious questions about his mental competence and moral fitness to conduct a complex, high-stakes jury trial in which his client's life was on the line."
The judge said Dale Helmig was prejudiced by Jordan's "deficient performance."
"Based on the witness testimony and trial record as a whole, the court finds that Mr. Helmig's evidence that Mr. Jordan was impaired is credible and persuasive," the judge determined.
Jordan did not return a telephone call left on the answering machine at his Jefferson City home.
Much of the recent investigation into Helmig's case has been conducted by students at the law schools at University of Missouri Kansas City and UM-Columbia, as well as students from the MU School of Journalism.
Richard Helmig, Dale Helmig's younger brother, waited outside the prison in Cameron Thursday afternoon while O'Brien delivered the court decision inside.
"It's a wonderful day," Richard Helmig said. "This is probably one of the best days of the Helmig family; by far it's one of the best days of my life. We've been waiting for this for 15 years. It's almost unreal, almost unbelievable that it's finally here."
Ted Helmig was unavailable for comment. He is recuperating from open heart bypass surgery at a Jefferson City hospital.
Terry Ganey is an independent journalist in Columbia, Mo.