Murder case goes back to court

In 1998, a Camden County jury found Danny Wolfe guilty in the murder of a retired couple in Greenview. He was sentenced to death.

The Missouri Supreme Court overturned Wolfe’s conviction and sentence in 2003, after determining the two public defenders appointed to represent him were ineffective.

When Wolfe goes on trial today, a private Kansas City defense attorney working pro bono — not a public defender — will stand by his side.

The defense attorney, Cyndy Short, won permission to represent Wolfe after a courtroom argument with her former employer, the public defender system, shortly after she resigned.

Short said she fought for Wolfe’s case because she was concerned that he would again suffer the consequences of a public defender system that she says has long emphasized quantity over quality of representation.

Besides, Short said, she thinks Danny Wolfe is innocent.

The case

Several houses and a few businesses sit alongside Highway 7 as it winds through the rolling woods surrounding Lake of the Ozarks.

The area around the small lake community of Greenview is not as densely populated as the nearby bustling tourist towns along the shore. Instead of flashy mini golf courses and family restaurants, the community has a parrot shop and a bunch of auto parts stores.

It was well known around little Greenview that Leonard Walters had money, according to testimony at Wolfe’s first trial. On Feb. 23, 1997, Walters was found shot to death in a 1975 red Cadillac parked in his driveway off Highway 7. His wife, Lena Walters, was found both shot and stabbed to death in a hallway in their house.

Police discovered their safe pried open in the woods. Their bedroom had been ransacked.

The local newspaper — the Lake Sun Leader — reported at the time that Leonard, 67, and Lena, 70, were friendly, down-to-earth country folks who moved to Greenview to retire.

Just three days before the Walterses were found, 46-year-old Danny Wolfe had left in his pickup truck with a 23-year-old woman he had met that night over rounds of pool at Mona’s Bar on the Bagnell Dam Strip.

While Wolfe contends he and the woman spent the night in his apartment at the Williamsburg Inn, she says Wolfe forced her to witness a murder.

Depending on which version the jury believes, Wolfe could be sent to death row for a second time.

The first trial

In 1997, Wolfe, a self-employed painter with a criminal history of armed robbery, couldn’t afford a private attorney and was appointed two public defenders. In fact, about 90 percent of those facing the death penalty can’t afford private counsel, according to administrators in the state public defender system.

Nancy McKerrow and Kimberly Shaw, Columbia public defenders at the time, represented Wolfe at his first trial, which ended with Wolfe being sentenced to death. Much of the evidence presented to the jury was based on the testimony of Jessica Cox, the woman Wolfe took to his apartment.

This is Cox’s story about what happened that Wednesday night in February when she met Danny Wolfe at a Lake Ozark bar, according to court documents:

Cox needed a ride home. Wolfe asked Cox if she wanted to sell some drugs for him. She said she would and the two left the bar around closing time at 1:15 a.m. After getting the drugs, Wolfe was supposed to drive Cox home. Instead, according to Cox’s testimony, Wolfe forced her to go with him on a robbery.

According to the plan detailed by Cox, she was to feign wanting to test-drive the Cadillac the Walterses were trying to sell, taking Leonard Walters with her. Wolfe was to stay behind to rob Lena Walters.

But when the two arrived at the Walterses’ home at about 7:15 a.m. after spending several hours talking at the apartment and driving around town, Cox said the plan changed . She drove the Cadillac with Leonard Walters in the passenger seat, and Wolfe sat in the back. She said she heard a gun go off and turned to see Walters slumped over and bleeding from his head.

Cox said Wolfe then went into the house and emerged with a safe several minutes later. After Wolfe pried it open and ransacked it, he dumped it off along a nearby rural road. Wolfe later gave Cox some money and dropped her off where she could call for a ride home.

According to Cox’s testimony, Wolfe told her to keep quiet or she’d be arrested as an accessory to murder. Or he would kill her.

Rather than tell her fiance and friends what happened the night before, Cox concocted a tale about being kidnapped by a man named Frank. She described Frank as if he were Wolfe.

The kidnapping story became the talk of the town, according to court documents, until someone mistook Wolfe for Frank at Slick’s Bar on the Bagnell Dam strip and attacked him. Then Cox told her friends about witnessing a murder.

She hired attorney Gary Clifford on Feb. 27. He helped her get immunity from prosecution in exchange for her information about the Walterses’ slayings.

Wolfe’s story is much different. He contends that he and Cox spent the night at his apartment, and that was that.

While police have Cox’s testimony, no physical evidence directly connects Wolfe to the crime scene.

In 1997, the son of Lena Walters wrote about the loss of his mother and the grandmother of his three daughters. He wrote, “The defendant murdered two terrific people. They would help their neighbors when they could.”

Lena Walters’ sister wrote in a victim impact statement dated April 5, 1997, “If given the death penalty, I wish it would be carried out as soon as possible.”

Appeal

Wolfe’s first appeal failed. Then-Missouri Supreme Court Judge Duane Benton wrote that Wolfe would be put to death because there was eyewitness testimony and because Wolfe had been arrested five times since 1968 in connection with crimes such as second-degree burglary, felony stealing and armed robbery.

Current Chief Justice Michael Wolff wrote in a dissenting opinion, “Dannie [sic] Wolfe should be granted a new trial. If not, at least his death sentence should be set aside … because of the likelihood that otherwise he will be executed for crimes he did not commit.”

For Wolff, the lack of a drop of blood or other fibers connected to the murder scene on the clothes Cox said Wolfe wore that night raised major concerns.

Wolff also noted discrepancies in Cox’s timeline of events. The coroner testified that Leonard and Lena Walters had been dead 24 to 36 hours by the time they were found on Sunday and had probably died Saturday; however, the coroner could not rule out the possibility the Walterses had actually died on Thursday.

Meanwhile, a man named Robert Morgan told the court that he and Leonard Walters met at a coffee shop the same morning Cox said Wolfe murdered him. Morgan also said he saw Leonard Walters standing in his driveway later that afternoon, according to court records. Two other witnesses said they thought they had seen both Walterses after they were supposed to have been dead.

The dissenting Supreme Court justice also pointed to a slip in Cox’s videotaped statement to police. She said “they” took the safe out of the house even though Cox says Wolfe committed the crime alone.

A second appeal in 2003 resulted in the Missouri Supreme Court ordering a new trial. The judges said Wolfe’s attorneys were ineffective because they did not order DNA analysis of hairs found in the backseat of the Walterses’ Cadillac and in a cartridge found in a dumpster at Wolfe’s motel.

An analysis determined that the hairs most likely belonged to Cox, according to court papers, contradicting her testimony that she was never in the backseat.

“After reviewing the evidence that was not presented to the jury due to Wolfe’s ineffective assistance of counsel, and considering the entire record, this Court’s confidence in the fairness of the trial and the reliability of Wolfe’s conviction is seriously undermined,” Missouri Supreme Court Judge Richard B. Teitelman wrote in the court’s opinion.

Cathy Kelly, the interim director of the public defender system while director J. Marty Robinson is serving in Iraq, said she does not know much about the Wolfe case. She cannot pinpoint what contributed to the failings in Wolfe’s defense, but she said she knows the system has never underfunded its death penalty division of attorneys.

However, Short and Wolfe, who is a paralegal and can file his own motions, blame the public defender system for overloading the two public defenders with cases (see sidebar), and not securing the budget needed to provide adequate defense.

A new defense

After Short left the public defender system, she began to fight with her old employer for the right to represent Wolfe at his second trial.

Wolfe’s court file includes a letter from Robinson expressing concern about Short’s interference with Wolfe’s case by working on it while he was still being represented by lawyers within the system.

In her argument to Platte County Circuit Judge Gary Witt about why she should be appointed to represent Wolfe, Short detailed several instances of ineffective assistance of counsel provided by public defenders in the past.

And it is her view that it is a conflict of interest for a public defender client whose sentence was overturned based on ineffective assistance of counsel to be appointed another public defender.

In his final judgment granting Short the right to represent Wolfe, Witt cited several reasons for his decision. He noted Wolfe’s refusal to even speak to the new public defenders appointed to represent him, Short’s interference in the case and the turnover rate in the public defender system as reasons for allowing Short to take the case.

But Witt rejected most of Short’s arguments related to the budget problems within the public defender system as well as the argument that the situation presented a conflict of interest. He also ruled that the two public defenders appointed to represent Wolfe after Short left the system would be effective attorneys if given the chance by Wolfe.

Witt recently said he could not comment further on his judgment.

Short won the case but not pay from the state. Instead, she relies on donations and aid from Hardy, Bacon and Shook, one of the largest and wealthiest law firms in Missouri. She works out of her office at the McCallister Law Firm in Kansas City.

If Wolfe is convicted and sentenced to death, he can appeal again to the Missouri Supreme Court and then to the federal district court. He has already said he plans to follow through on a lawsuit against the public defender system if the jury decides he is innocent.

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Cases overload Mo. public defenders

The public defenders

During the run-up to his first trial, Danny Wolfe wrote letters asking for new attorneys. In one dated Jan. 15, 1998, he said he had only met with investigators and attorneys for a total of eight to 10 hours in almost a year.

Less than two weeks later, Wolfe wrote again. “I won’t have a defense at all at the rate things are going.”

Kimberly Shaw, who is now a private attorney in Columbia, doesn’t remember how often she and Nancy McKerrow visited Wolfe. In fact, Shaw cannot specifically recall the Wolfe case or what it was like working as a public defender at the time.

But she said the system has always had issues with caseload. “It’s a huge problem,” Shaw said. “It has always been bad.”

McKerrow, who does work for the public defender system, but not on death penalty cases, agreed. “We’re always overloaded,” she said.

Shaw said that if Wolfe wrote that his attorneys were not coming to see him, then it’s probably true.

Last November, an independent consulting firm hired by the Missouri Bar Association to analyze the Missouri State Public Defender system, concluded that the system had become overloaded with cases in the regular trial division, was lacking in resources and had reached the “verge of collapse.”

However, the Spangenberg Group’s analysis did not include the capital division, which solely handles death penalty cases.

Cathy Kelly, the interim director of the public defender system, said the system never allows its capital division to get overloaded. “Because of the potential consequences in capital, we have made a concentrated effort to ensure that our capital division has the resources it needs to do the job right — caseloads there are kept low, funds for experts are sufficient, we pay our capital attorneys more money, which means we have very low turnover in that division and our most experienced lawyers there,” she said.

Charlie Moreland, a public defender who still works in the office, said the caseload isn’t always bad, but the numbers don’t tell the whole story. For instance, the Columbia office handles any death penalty cases in the state outside of Kansas City and St. Louis, which means attorneys represent clients everywhere from Springfield to the bootheel.

The time it takes to travel across the state to interview witnesses and visit a client can be overwhelming for attorneys juggling other cases, Moreland said. “It’s not like walking across the street to court.”

Wolfe’s defense

Although Shaw could not say for sure that the prosecutor or judge in the Wolfe case pushed the attorneys to trial before they were ready, McKerrow does remember being pushed into the trial.

Just a couple months before the trial started, the prosecution introduced a new witness — a jailhouse informant who — in exchange for charges being dropped — testified that Wolfe confessed the murders to him. McKerrow said recently she was denied the extra time she needed to investigate the witness.

The man’s testimony from the first trial will not be allowed in the second trial unless prosecutors can find him, which court records show they have had trouble doing.

The judge in the case, who has since died, also refused to allow the attorneys a delay in the trial to track down one witness who could have rebutted claims of Wolfe’s involvement in the murders.

This issue was one of many outlined in a Supreme Court argument on why Wolfe deserved a new trial.

Jim Icenogle, the prosecuting attorney who represented the state during the first trial, did not return phone calls seeking comment about the first Wolfe trial. Instead a spokesman for the attorney general’s office returned a call and declined to comment, citing the pending trial.

After Wolfe won a new trial, his case file went to Cyndy Short, the director at the time of the Kansas City death penalty office for the public defender system.

Soon after, Short was demoted to the trial division. Rather than taking the demotion, Short resigned from the state system. In 2003, about 70 attorneys, or 22 percent of the public defender workforce, left the public defender system, the highest turnover rate in nine years.

That year, the public defender administration learned that instead of the $6.5 million increase in funds requested, the budget would actually take a $1.8 million cut.

According to Short’s notes, J. Marty Robinson, the system’s director, walked into a meeting of the capital division staff on May 2, 2003, accompanied by a group of system administrators.

He spoke about the rumblings he had heard in the General Assembly of impending budget cuts and compared its gravity to how he felt at his mother’s funeral.

To dramatize the situation, he asked the group seated in front of him to number off 1 through 7, and told the fours to stand up. The fours represented the number of people who would be cut from the death penalty staff.

After the meeting, Short said she analyzed how many lawyers, support personnel and work hours her Kansas City office needed to represent its clients by the standards set by the American Bar Association.

In an e-mail sent to high level management at the Capital Division dated May 11, 2003, Short wrote about her intentions to protect the quality of representation provided by her office staff.

“What was clear from the ABA guidelines for the performance and appointment of death penalty counsel is that whoever your funding agency is, whoever has some say over your cases, you have to be an advocate for them,” Short said.

Short, who had never lost a client to death row in nine years of working at the capital division and who won the public defender’s top award in 1998, heard nothing about the memo.

But then in July, Short said her director and the head of the death penalty division for the public defender system unexpectedly showed up at the Kansas City office and told Short she would be demoted to the trial division.

Short said administrators told her she acted like she ran her own private law firm and that she should show more concern for the other offices in the public defender system affected by budget cuts.

She said she responded by telling them, “I represent clients and I happen to work for you. My first obligation is to these clients and I’m not selling them out for your bureaucracy.”

Years later, she observes: “That didn’t go over well.”

After three months of heated discussions with the administration about pay and the cases she could continue to represent, including Wolfe’s, Short resigned.

“I was so committed to being a public defender,” Short said. “I’d often said that the only way they’d ever get me out of here is to kick me out.”

Robinson declined to comment for this story even after Short signed a waiver allowing him to discuss her employment. “We really wouldn’t be interested in hashing out old personnel issues,” he said.

The system also sent Columbia appellate attorney Gary Brotherton from the capital division to the trial division.

Brotherton, a 12-year veteran of the public defender system, remembers the same meeting where staff were told cuts would be made to the capital division.

Two weeks later, Brotherton said he was reassigned to the appellate office in the trial division in St. Louis.

“I had been in the non-capital appeals for about nine years before I went to capital and I did not want to go backward,” Brotherton said.

He said news of Short’s demotion shocked her colleagues. “To have her forced out the way she was, was frightening,” Brotherton said. “It showed us in the trenches, that there was no account for the quality of work done.”

The emphasis, Brotherton said, was on numbers.

However, administrators and other attorneys within the public defender system say the staff reorganization was necessary to handle the growing caseload in the trial division.

As death penalty caseload decreased dramatically over the years, caseload in the regular trial division increased to a total of 12,000 new cases per year.

The death penalty division

System director Robinson said the problems with caseload do not affect the death penalty division. “We’re adequately staffed with the caseload we have now,” he said. “A few years ago, we actually moved people from the capital division to the trial division because we found that the capital caseload was decreasing.”

While 54 new cases were directed to the public defender capital division in 1993, the division only received 12 new cases in 2005.

The Columbia death penalty division has half the attorneys it did in 1998 when McKerrow and Shaw worked there.

At the same time, the state legislature has not approved a budget increase to hire new attorneys to handle the growing number of cases in the trial division.

During the last legislative session, the General Assembly gave the public defender system a $2 million budget increase.

The bill with the increase has gone to Gov. Matt Blunt, who has until midnight on July 14 to either approve or veto it.

Meanwhile, the public defender system continues to work with the Missouri Bar Association, the legislature, judges and prosecuting attorneys to fix the issues in caseload, budget and attorney turnover rates in the trial division raised by the Spangenberg report.

And while Kelly disagrees with Short and said the system always ensures the death penalty division does not find itself in the same situation as the trial division, she noted that death penalty cases siphon a large chunk of the system’s resources.

Last year, the average death penalty case cost the public defender system $115,000. The average cost per case for the trial division was $220.

“If Missouri suddenly decided to eliminate the death penalty,” Kelly said, “our system would find itself in a lot better shape very quickly.”

Wolfe, now 55, said in a recent interview from the Clay County Detention Center, that he doesn’t think his attorneys were incompetent. He said that as he understood it, the two were working on several other cases at the time.

“They didn’t have time to investigate,” Wolfe said. “They just got overwhelmed.”