This Week in Innocence: Why the Hell is Kenny Hulshoff Still Practicing Law?

Wednesday, November 10th, 2010

Last week, Missouri Circuit Court Judge Judge Warren McElwain declared Dale Helmig innocent of killing his mother in 1993. Helmig was convicted in 1996. In his ruling, McElwain declared Helmig to be “the victim of a fundamental miscarriage of justice.”

Many factors contributed to Helmig’s conviction, including an inept public defender, false police testimony, and snitch testimony from inmates. But McElwain went out of his way to criticize the behavior of former Missouri prosecutor Kenny Hulshoff.

In his opinion, McElwain cited numerous instances where either Hulshof or Schollmeyer presented testimony that was later shown to be false and that they should have known was false. One section is titled “Kenny Hulshof knew or should have known that the testimony presented was false that Dale Helmig tacitly admitted killing his mother.”

In another section, McElwain states that Hulshof made improper use of unsupported testimony that Dale Helmig and his mother had been in a fight in which Helmig allegedly threw hot coffee in his mother’s face. That altercation, at a restaurant, actually involved Norma Helmig and Ted Helmig, her estranged husband.

“Even though the prosecution could not find a witness to substantiate this allegation, that did not stop them from trying to put the unproven and very inflammatory fact before the jury,” McElwain wrote.

This is the second case in two years in which Hulshoff has been cited by a judge for misconduct that helped convict an innocent person. In February 2009, Missouri Circuit Court Judge Richard Callahan declared Joshua Kezer innocent of the 1992 murder of college student Angela Mischelle Lawless. Kezer was convicted in 1994. From the A.P. report last year:

[Callahan’s] 44-page decision included a stinging rebuke of Hulshof, saying he withheld key evidence from defense attorneys and embellished details in his closing arguments.

Other than a statement Tuesday in which he affirmed his belief that Kezer is guilty, Hulshof has declined to comment.

The state’s prosecution was based on the testimony of another suspect in Lawless’ death who said he saw Kezer at a nearby convenience store on the night of the killing. But he gave conflicting testimony and three jail inmates who claimed Kezer had confessed to the killing later acknowledged lying in hopes of getting reduced sentences.

Back in 2008, the A.P. found five other cases in which Hulshoff was accused of prosecutorial misconduct. So what has happened to Hulshoff? For starters, he parlayed his tough-on-crime record as a prosecutor into a run for Congress, where he served for six terms. In 2008, he was the GOP nominee for governor of Missouri. He nearly became the president of the University of Missouri at Columbia. Currently, he has offices in Kansas City, St. Louis, and Washington, D.C. as a lobbyist for the white shoe law firm Polsinelli Shughart.

A couple weeks ago, a Reason commenter wrote that convicting an innocent person of murder ought have a similar effect on a prosecutor’s career that, say, amputating the wrong limb would have on a doctor’s. That sounds about right. At minimum it demonstrates a degree of negligence that ought to bar a prosecutor from ever prosecuting a case again. He has destroyed an innocent person’s life, prolonged suffering for the victim’s family and, of coruse, allowed the actual murderer to get away with the crime. If it can be shown that a prosecutor’s deliberate misconduct contributed to a wrongful conviction, he should lose his license to practice law.

Hulshoff has done it twice. That we know of. And it’s not like no one in Missouri knew about his aggressiveness. Yet he not only gets to continue practicing law as a jet-setting lobbyist, thanks to absolute immunity he’ll never have to pay a dime of the fat salary those aggressive tactics won him to Joshua Kezer or Dale Helmig.

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30 Responses to “This Week in Innocence: Why the Hell is Kenny Hulshoff Still Practicing Law?”

  1. #1 |  K9kevlar | 

    They call it absolute immunity for a reason.

  2. #2 |  Joe | 

    Hulshoff is still answerable to the Missouri Supreme Court (I assume they have ultimate jurisdiction over attorney misconduct in that State)? Why haven’t they acted?

  3. #3 |  Joe | 

    Twenty-seven states have laws intended to compensate wrongfully imprisoned inmates after their release. In Missouri, an inmate whose conviction is overturned through DNA evidence is eligible for $50 for each day he was in prison if he asks for the money within a year of his release.

    But DNA was not the evidence that removed Kezer’s conviction. That means he is not eligible for state compensation.

    “It’s the notion that we fed you and gave you a cot. You were a burden on us, so your compensation is limited,” O’Brien said of Missouri’s lack of compensation for people like Kezer. “It’s an economic presumption of guilt.”

    How is this for an outrage.

  4. #4 |  Joe | 

    Link for quote above, sorry.

  5. #5 |  Joe | 

    Prosecutors are immune from liability in suits under § 1983 for acts that are an integral part of the judicial process. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1975). This Court, in interpreting Imbler, has agreed that prosecutorial immunity extends to a prosecutor’s actions in “initiating and pursuing a criminal prosecution and in presenting the state’s case . . . . (E)ven where the prosecutor knowingly used perjured testimony, deliberately withheld exculpatory information, or failed to make full disclosure of all facts.” Prince v. Wallace, 568 F.2d 1176, 1178-79 (5th Cir. 1978). See also Sykes v. California, 497 F.2d 197, 200 (9th Cir. 1974) (immunity extends to filing complaints, instituting arrest or search proceedings, and drawing indictments or informations).

    There should be a bad faith standard that allows for liability. In Missouri there is not even restitution from the State.

  6. #6 |  BurnsM | 

    I’d call for a simple provision that replaces the innocent, wrongly accused defendant with that of the prosecutor (and any others) who knowingly engaged in fraudulent conduct in order to convict.

    In other words, if the alleged perpetrator of the crime gets 20 years in the klink, that’s how much the prosecutor (and each participant) gets as part of their punishment upon conviction, and make it mandatory.

    I doubt very seriously that we’d continue to see this type of behavior if we did.

  7. #7 |  Tom Barkwell | 

    How much damage can one sociopath with a badge do? I watched Frontline last night, an episode about the “Norfolk Four” – a group of young Navy men who were wrongfully charged and convicted in 1997 for a rape/murder they didn’t commit. At the heart of the investigation was one Robert Ford, a Norfolk, VA police detective (himself now a convicted felon for the crime of extortion) who managed to elicit false confessions from the four men in an unbelievably twisted story of prosecutorial misconduct that will make your head explode.

    Four innocent men, serving a total of about forty years in prison, from a single case.

    How many Fords are in police departments all over this country? And how many Hulshoffs on prosecutor staffs?

    And people can’t wait to give them even more power. Boggles the mind.

  8. #8 |  Mattocracy | 

    The fact that immunity exists for any agent of the government is an absolute travesty.

  9. #9 |  JS | 

    So is the thumbs up/thumbs down thing not working for everyone or is it just me?

  10. #10 |  SJE | 

    Why in hell indeed. I note that being a Governor, Congressional rep or lobbyist does not require a law license. (You can even be an impeached judge, like Alcee Hastings). Thus, there is plenty of blame to go around
    1. Boss: Why was he not disciplined earlier by his boss?
    2. The bar association: Why was he not disbarred?
    3. The GOP: why are they supporting this POS with lobbying $, endorsements, etc?
    4. Judges: why do they keep to this “immunity” BS? I’d like to see a judge refuse to grant immunity and let the stink go higher and higher.
    5. MSM: who are more interested in the latest hollywood sex scandal and whether Obama is a Muslim instead of actual, real problems that affect us
    6. The voters of Missouri, for electing this POS.

  11. #11 |  SJE | 

    #8: Mattocracy: I think that QUALIFIED immunity is good. For example, during the great San Francisco fire the fire department had to dynamite houses to stop the spread. The owners of the houses should get reimbursed, but you want the FD to be able to make that decision. Similarly, if your decision to rescue A first leads to the death of B, you don’t want person B’s relatives going after you. Or, in the military, if you send a soldier on a very dangerous mission to save the battalion. These are the sorts of things that we need to give some slack and understanding.

    However, there must be a way for the courts to pierce this immunity if the public servant shows absolutely no care or regard. There are too many examples for this to be a simple “few bad apples”

  12. #12 |  BamBam | 

    private justice

  13. #13 |  random guy | 

    I’m reminded of the movie Devil’s Advocate, “Law is the backdoor to everything.”

    Who would have guessed that judges (former lawyers) would uphold immunity for prosecutors (lawyers) and that politicians (former lawyers) would have no problem with the litany of abuses that goes on. Its the same thing as the Wall of Blue. Professional courtesy extended to the point of making lawyers immune to the law.

    In a sane world Kenny Hulshoff would be guilty of multiple counts of fraud, perjury, and tampering with evidence. Maybe even public endangerment or misuse of public funds. He would also be liable for compensating the men whose lives he ruined.

    Law is a club. Its just coincidence that everyone in the club that writes the rules is also immune to the rules.

  14. #14 |  Joe | 

    Talking about government out of control, your TSA in action!

  15. #15 |  Joe | 

    JS, for what it is worth you all deserve thumbs up, Radley too, for being outraged by this miscarriage of justice.

  16. #16 |  JS | 

    I like thumbs upping and sometimes downing but now when I click it nothing happens.

  17. #17 |  Michael Chaney | 

    A couple weeks ago, a Reason commenter wrote that convicting an innocent person of murder ought have a similar effect on a prosecutor’s career that, say, amputating the wrong limb would have on a doctor’s.

    Yes and no. Knowingly convicting an innocent person of murder should be handled in the same way that we would handle a doctor knowingly amputating the wrong limb – criminal charges.

  18. #18 |  Cynical in CA | 

    You said it about your ordeal with the IRS: “Good enough for government work.”

    BTW, the surgeon analogy is flawed. To be apples/apples, it would have to be a government surgeon.

    There’s a reason why we keep reading stories like these. The State is a criminal gang, and it attracts the exact type of person most likely to rise to the top of a criminal gang.

  19. #19 |  Cynical in CA | 

    It’s busted for everyone JS.

  20. #20 |  GT | 

    “absolute immunity” my ass – if this happened to anyone near to me, the prosecutor would be looking over his shoulder for the rest of his life, and would hold his breath every time he started his car.

    Then again, I am one of those people who absolutely refuse to accept the legitimacy of the State’s mediaeval dress-up set pieces that people refer to as ‘courts'; there is – and has always been – a parallel ‘private justice’ system that is driven by the willingness-to-pay of aggrieved parties.

    Prices are quite reasonable: $500 gets the counterparty severely assaulted (preferred due to the ability of the punishment to be repeated at leisure)… $2k gets him taking a perpetual dirt nap. And prices have ALWAYS been reasonable – that’s what happens in a market.

    And it is abused – no doubt. Show me a system that isn’t. The key differentiating factor in the private market is that those who are wont to abuse the system, must do so out of their own pockets; there is also an absence of swaggering fuckwits – except those who show up after the market has done its work, and flail around in the aftermath on behalf of the State.

    As recent events (in Germany and the UK) show – the State is actually incapable of controlling the populace when the populace gets it into their heads that they have had a gutful. Anybody who relies on State organs for any part of their livelihood is backing the wrong horse.

    Cheerio

    GT

  21. #21 |  croaker | 

    @20 Yep. One of these days a wrongfully convicted person is going to say “Well, I have no problem going back to prison” and everyone involved from the DA on down is going to leave a family in tears. And a good chunk of the community will have no sympathy for those who gave aid and comfort to a domestic terrorist with government imprimatur.

  22. #22 |  Dwight Brown | 

    Just to give you some idea of how egregious the Helmig case was:

    John Walsh, a man who’s never met a criminal prosecution he didn’t like, devoted an entire hour of “America’s Most Wanted”, on at least two occasions that I know of, to arguing that Helmig was wrongfully convicted.

  23. #23 |  Cynical in CA | 

    That’s an interesting prophecy Dwight, but I wonder — there have been so many railroadings, framings and false prosecutions, why has your prophecy not come true yet?

    It should have happened by now. That it hasn’t tells me something of the likelihood of it occurring.

  24. #24 |  Cynical in CA | 

    Whoops, #23 was directed at croaker. pimf

  25. #25 |  GreginOz | 

    Re “Absolute Immunity”…If I spent 25 years in gaol, after being stitched up by a corrupt prosecutor, I would be discussing “absolute immunity” with said prosecutor whilst he looks at me cross-eyed over the barrel of my glock, ‘twould not be a long yarn either…

  26. #26 |  Highway | 

    croaker, I worry about the opposite reaction. The “Well, obviously this guy was dangerous. The only reason he didn’t kill or terrorise people before was that we had locked him up. We knew he’d be guilty of something.”

    Never mind that it was the complete injustice visited on that person by the greed of the state that caused the breakdown. It’ll just be ‘bad people should be in jail, even if they haven’t actually done anything bad’.

  27. #27 |  Z | 

    #2 in my experience, attorney disciplinary mechanisms are a sham.

  28. #28 |  Bill Poser | 

    I don’t think that disbarrment is sufficient. A prosecutor who engages of deliberate misconduct likely to result in a false conviction should go to jail.

  29. #29 |  [links] Link salad for an OryCon weekend | jlake.com | 

    […] This Week in Innocence: Why the Hell is Kenny Hulshoff Still Practicing Law? — Law and order conservatism, where some innocent go to jail that the rest us might feel safer. Unless you happen to be one of those innocents, of course. Why do so many conservatives never think they will be the one indefinitely jobless, or gravely ill without healthcare coverage, or falsely arrested, or… I’ve argued before that the conservative mindset is fundamentally a failure of empathy. Stories like this only reinforce that view. (Via Dispatches from the Culture Wars.) […]

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    […] of misdeeds: See here. Summary: Turned a “tough on crime” record as a prosecutor into three terms in […]

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