Josh Kezer was exonerated through the work of one woman, and a number of men — lawyers, investigators, a sheriff, a reporter and finally a judge. But he also sees the divine at work.
Story by ALICIA SWARTZ
An astrologer would call it an alignment of the planets. When Josh Kezer looks back on the actions of people and the sequence of events that brought about his release from prison for a crime a judge ruled he didn't commit, he sees God's hand in the confluence.
But one person was especially important in Kezer regaining his life and that was Jane Williams, a Columbia social worker who first saw Kezer in the chapel at Jefferson City Correction Center. They began to write letters to each other five years later.
At first, Kezer didn't want to talk to Williams about his case. He wanted a friend who shared his faith. He didn’t know it at the time, but she became an integral part of his release from prison.
“He wanted me to know that he wanted a relationship with me and didn’t expect anything from me; it was more about shared faith,” Williams said.
But friendship didn't satisfy Williams. She felt Kezer was innocent, and she wanted to help him get out of prison. Gently, she pried from him information.
Eventually Kezer gave Williams all the files on the case, including reports from his original private investigator. When she'd read it all, she knew she had to do something. But she knew she couldn’t do it alone.
Williams contacted the New York Innocence Project in 2005. The organization is part of a nationwide effort to release wrongfully convicted inmates. Kezer was put on an extensive waiting list, and his name didn't come up until 2007.
After telling family members he no longer had the case files, Kezer's trial lawyer, Al Lowes, found the trial transcript and handed it over to Williams in May 2006. She then wrote a case overview and sent it to Boston attorney Ken Parsigian.
Parsigian felt that having a Missouri lawyer was vital, and with his help, Kezer's case was presented to the American College of Trial Lawyers. Charles Weiss called Williams in September 2006 to ask if he and Stephen Snodgrass of Bryan Cave LLP and Affiliates of St. Louis could take the case.
Weiss made contact with the Scott County Sheriff's Department. It turned out newly elected Sheriff Rick Walter had already reopened the case.
Walter had been at the 1992 murder scene. The case still bothered him when he became sheriff in 2005. Later the same year, he began looking through the original case files.
He officially reopened the case in January 2006.
“Initially I did not reopen this case to prove that Josh was innocent,” he said. “We thought there could be one more person involved, and we reopened it to find out who (it was).”
“The more I dug into the case and the more evidence I found, the case against Josh just fell apart,” he said.
"We are thankful that Rick Walter was able to provide us with most of the withheld exculpatory evidence that we used to free Josh," Snodgrass said. "Challenging the conviction like he did was not popular at first, and he showed a lot of political courage when he reopened the investigation."
In 2007 MU School of Journalism master's student Ben Poston took on the case as his graduate project. He and a reporter from the Southeast Missourian, Bridget DiCosmo, brought Kezer's case to the public's attention.
As the new investigation proceeded, Kezer began to regain hope in the justice system for the first time in 12 years. Looking back, he sees divine intervention in what began to unfold.
“This was perfect timing in order to get what we got for me. There needed to be people in place," he said.
As Kezer sees the divine order of events, Walter had to be the sheriff at the time. The two investigators who had a role in assembling the evidence — some old and some new — had to be willing and capable. The New York Innocence Project had a crucial role, too, in retesting and confirming previous DNA evidence found under the fingernails of the murder victim.
With Missouri lawyers Weiss and Snodgrass representing Kezer, he took the stand at his habeas corpus hearing. He was confident in his legal team, but Kezer also believes God fought for him that day.
His claims for habeas relief included “violations of due process by suppression of exculpatory evidence” and “actual innocence.”
The new evidence brought into the courtroom was later said in the decision to be “clear and convincing” that Kezer did not commit the murder. The defense presented the following:
* The witness, who saw Kezer near the scene, changed his story multiple times, including providing a statement saying the person whom he saw was either Mexican or biracial (possibly black) with a Mexican accent, but Kezer is white.
* The original description the witness gave of the car was a white four-door Ford with a chrome bumper. The car used in the trial to convict Kezer was a two-door white Plymouth Duster hatchback with louvers on the back window and no chrome bumper.
* Three of the four inmates who testified that Kezer confessed to them signed recantations of their original statements. In their written statements, all three inmates admitted lying about Kezer’s confession in the hope of having their sentences reduced. All four original statements against Kezer had "inconsistencies."
* An officer in the original investigation indicated in her notes that one of the witnesses who placed Kezer at the scene was unreliable and a suspect himself.
In his 44-page decision exonerating Kezer, Circuit Court Judge Richard G. Callahan said that “the prosecutor endorsed the obvious lies.” The prosecutor was Kenny Hulshof, now a former U.S. congressman.
“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 wrote in his decision.
Hulshof did not return phone calls requesting interviews. On Feb. 23, he gave an interview on the Mark Reardon show on KMOX 1120 NewsRadio, his only interview concerning the topic since Kezer's release, according to The Poston Report.
The court ordered Kezer’s release on Feb. 17, stating he demonstrated “actual innocence by clear and convincing evidence” that overturned the original judgment. “As such, confidence in his conviction and sentence are so undermined that they cannot stand and must be set aside,” Callahan wrote.
The delays were frustrating, but Williams now also sees something else at work. “God’s plan was to do something bigger than we thought possible,” Williams said.
Kezer was told to call his lawyer on Feb. 17. His eyes light up as he remembers the phone call to Snodgrass. "He told me I was going to be released," Kezer said. He then talked to Weiss, who described some of Callahan's decision.
“I’m going home! It was a shock to the system, a wonderful shock to the system, but a shock nonetheless," he said.
Only 18 when he was locked up, Kezer now had to learn to live in a society that was nothing more than a vague idea.
"You go from doing 16 years in prison to instant freedom — how do you really process that? I’m still processing that,” Kezer said.
The first thing he wanted to do was go out for a steak dinner. But there was something else he felt compelled to do and that was go thank the judge who helped free him. So Williams' husband, Scott, drove him to Callahan's office in the courthouse so he could shake Callahan's hand.
The next stop was the Old Walls in Jefferson City, where Kezer spent 10 years of his life. "I felt the need to visit old ghosts," he said. "And I had a desire to walk out of both prisons."
He took with him old pieces of the wall.
He then went to Longhorn Steakhouse for a steak, steak soup, onion rings and Key Lime pie.
Kezer now lives with the Williamses in Columbia. “It's only temporary until I can get on my feet,” he said.
Missouri state law prohibits Kezer from obtaining any kind of monetary compensation for the nearly 16 years he was imprisoned. For now, he's earning a living by talking about his experience. But for the most part, he is dependent on the kindness of other people.
"Everything I have right now is because of other people," he said. "In that aspect I am blessed."
“I go to churches, campuses. I love talking to young people,” he said. Kezer also has a great interest in addressing law enforcement, the legal community, the U.S. Congress and the Missouri legislature.
Kezer tries not to be angry. Only when he talks about the case built against him by the prosecutor, Hulshof, is there any evidence of bitterness. He purses his lips. He has to stop and take deep breaths when talk turns to the "witnesses" who helped convict him, especially those he thought were friends.
But he believes he has to forgive and he's taken to heart advice he heard during a speech at the Innocence Network Conference in Houston in March. The speakers were Jennifer Thompson-Cannino and Ronald Cotton, who wrote a book about their experience of forgiveness. Thompson-Cannino misidentified Cotton as the man who raped her in 1984. He served 11 years for the crime. Now, the pair travel and speak all over the U.S. about the importance of forgiveness in healing.
“Until you forgive and move on, you will always be a victim," Thompson-Cannino said. "Only after can you be a survivor.”
Looking back at his own survival, Kezer said, God is "all in the midst of it."
“I kind of hear him in his fatherly voice saying, ‘When I told you I wanted all this for you, did you think I did not know you were going to go through all these other things?'” Kezer said.
Kezer plans to get involved with the Innocence Project locally and help other inmates in similar situations. He wants to be the voice of those unheard and provide them proof that God is listening.
To contact Josh Kezer for public speaking engagements, or to send him personal notes, you can reach him at firstname.lastname@example.org.
Judge Richard G. Callahan ordered Josh Kezer's release in the habeas corpus proceeding on two legal grounds: that Kezer's constitutional right to a fair trial had been violated by the state's withholding of exculpatory evidence and that he had proven he was "actually innocent."
The prosecution relied primarily on three pieces of evidence to convict Kezer: Mark Abbott's identification of Kezer as somone he saw in a white car near the murder scene; testimony of three jailhouse witnesses that Kezer confessed to murdering Mischelle Lawless; and testimony of one of the victim's friends who said she saw Kezer argue with Lawless at a Halloween party the week before her murder. New evidence discovered after his conviction helped Kezer negate all of this evidence. Some of the new evidence had actually been withheld by law enforcement and/or the prosecution, said attorney Stephen Snodgrass.
The following three main pieces of evidence were withheld in the 1994 trial and proved a constitutional violation to a fair trial.
- The Wooten Report: “A written report by Scott City Police Lt. Bobby Wooten of a Nov. 18, 1992, interview he conducted with Mark Abbott in which Abbott stated unequivocally that the person he saw in the white car near the murder scene was Ray Ring, a local mixed-race teenager he said he had just met at a party in Sikeston.” This directly contradicts Abbott’s identification of Kezer and the car he was supposedly driving.
- Schiwitz’s Investigation Notebooks: Notebooks of Scott County Deputy Brenda Schiwitz listed Mark Abbott and his twin brother as suspects as of Nov. 11, 1992. In her formal report, Schiwitz wrote that Abbott described the man as not "Negro," but dark complected and possibly Hispanic. At trial, Schiwitz said Abbott was never a suspect. She also testified in a pretrial deposition that she disposed of her notes after transcribing them. They were still in the Sheriff’s Department in 2008.
- Mangus’ Handwritten Statement: One of the four “jail snitches” provided a pretrial written statement to the Scott County Sheriff’s Office saying Kezer confessed to the murder. He later gave a statement to the trial defense lawyers recanting but reverted to his old statement at trial, saying the recantation was coerced. However, unbeknownst to the defense, Mangus had given another pretrial statement to the Scott County Prosecutor’s Office saying Kezer never confessed. He and another inmate concocted a story that Kezer confessed to get a reduced sentence.
Kezer’s trial defense counsel testified they were never provided this evidence.
Kezer was able to establish actual innocence by discrediting the prosecution’s main evidence and providing new evidence.
The original prosecution provided the following evidence, which Kezer’s lawyers were able to prove was misconstrued.
- Impeaching Abbott’s identification of Kezer: Abbott made claims he was not able to see the driver but heard a Mexican accent. Kezer did not appear to be Hispanic or have a Mexican accent.
- Impeaching jail inmates' testimony: Inmates admitting they lied about the confession to get lesser sentences, and the testimony of Jeff Rogers who said, “Scott County Sheriff intimidated him into signing a false statement that Josh Kezer confessed to him.”
New evidence was brought into the hearing including the following:
- The person who testified that Kezer argued with Lawless at a Halloween party said she had been mistaken.
- The hosts of the same party said they knew everyone at the party, and Kezer was not there.
- New tests of the substance found on Kezer’s jackets “were negative for the presence of human blood.”
- The DNA under Lawless' fingernails was consistent with the profile of one of her boyfriends, Leon Lamb.
"The system (is) finally righting itself with respect to Josh Kezer," Callahan wrote in his decision. "Tragically for the family of Mischelle Lawless, the real killer or killers remain at large."