Jul 13, 2017
Innocent until proven guilty is a fundamental right in America’s criminal justice system.
If you are ever wrongly accused, you might think your best defense is your innocence.
Our 41 Action News year-long investigation uncovered a disturbing trend – innocence is not always enough, especially in Missouri.
“You got somebody who’s out on the streets who shot this guy several times,” said Pastor Darryl Burton. He preaches at the Church of the Resurrection in Leawood, Kansas.
Burton prays that the criminal justice system convicts the real killers in murder cases.
“The system is just, man, it’s messed up,” Burton said.
That’s why he’s starting an organization to support the wrongly imprisoned.
Burton said he has seen too many innocent people locked up, including himself.
“These mistakes are huge! You’re talking about a quarter-century of my life!” Burton said.
He spent nearly 25 years in the Jefferson City maximum security penitentiary for a murder in St. Louis that he didn’t commit.
“I had a 7-month-old daughter who I saw three times, and I didn’t see her again until she was turning 25,” Burton said. “For her, I’m a stranger that she’s trying to get to know.”
After receiving his letters begging for help, Kansas City attorney Cheryl Pilate collaborated with Centurion Ministries by representing Burton at no cost in his appeal hearings.
“The prosecution’s case to begin with was extremely thin,” Pilate told 41 Action News.
"One eyewitness has recanted and admitted perjury. The other eyewitness’s veracity has been questioned by a compatriot who avers it was physically impossible for him to have seen the crime. A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton’s claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton’s legal claims permit him no relief, even as the facts suggest he may well be innocent. Mindful of our obligation to apply the law, but with no small degree of reluctance, we deny Burton a writ." U.S. Court of Appeals for Eighth Circuit Court, filed July 8, 2012.
Pilate said there is no motive, and an eyewitness later admitted to lying under oath because prosecutors secretly reduced his prison time to testify against Burton.
“If there is any deal or benefit given, that needs to be disclosed,” said Pilate.
Besides that secret deal, Pilate also tracked down the gas station clerk who actually saw the murder and had told police Burton was too dark skinned to be the gunman.
But prosecutors never mentioned that eyewitness at trial, and they disputed her testimony in appeal hearings.
“It is un-American for someone who is clearly innocent to remain in prison,” Pilate said.
It took years to convince a judge to finally exonerate Burton from his life sentence.
“There’s so many ways for things to go wrong, and no one wants to admit that because we think we have a great justice system,” Pilate said.
Waiting For Help
The Midwest Innocence Project said 550 inmates are on its waiting list for legal help.
Independent studies estimate two to five percent of all felony convicts in the U.S. are wrongly imprisoned.
“Even if it’s only two to five percent, that’s a lot of people in our five-state region. That’s like 5,000 people,” said Tricia Bushnell, Midwest Innocence Project director.
Bushnell said they only have enough staff to work on the most obvious innocence cases -- 16 right now.
“The victim wants him out. That’s what’s incredibly shocking,” Bushnell said of Rodney Lincoln’s case.
The then 7-year-old victim’s daughter in that case told police in 1982 that a man with short hair murdered her mom. But detectives made her pick from a lineup of men with long hair. except for Lincoln.
“That little girl walked up in front of me and pointed her finger at me. I can’t describe the pain,” Lincoln said.
Police arrested him for the murder of the girl’s mother in St. Louis. He’s serving a life sentence for it.
“I’ve lasted this long because I know I’m innocent,” Lincoln said.
Decades after the murder, the victim’s daughter told prosecutors how police manipulated her into wrongly identifying Lincoln.
“I had to tell you guys. Rodney did not do that. He was not in my house,” the victim’s daughter later told prosecutors in a recorded interview. “I would be willing to take a lie detector or whatever you want but he was not in the house. He did not kill my mom,” the victim’s daughter said.
She agreed to the taped interview after learning Lincoln is left handed, unlike the man who killed her mom and stabbed her.
“He sat on top of me and used this hand [right hand] to stab me. I told the cops that,” the victim said in the recorded interview.
DNA tests later showed the hair presented at trial is not Lincoln’s, but the state keeps fighting his appeals.
“They’ll do whatever they have to do to get a conviction,” Lincoln said.
Ex-Law Enforcement Agree
“People may believe these facts are too good to be true. That you guys must be exaggerating,” said Ricky Kidd about his case.
Kidd is serving two life sentences for a 1996 double murder in Kansas City.
“He didn’t do it, and I know he didn’t do it,” said Alvin Brooks, former Kansas City Police Commissioner.
Brooks told 41 Action News he re-examined the 1996 double murder and realized they locked up the wrong guy.
“It was not Ricky Kidd. It was another person, but they did look a little alike,” Brooks said.
Former prosecutor Cindy Dodge also changed her mind after re-investigating the murders and Kidd’s alibi.
“I was very skeptical,” Dodge told 41 Action News, “But now, I have zero doubt about his innocence. He is innocent. Ricky didn’t commit these murders.”
But Kidd is still behind bars.
“Nobody wants the wrong person in prison, they want the right people in prison,” Kidd said. “Surely nobody would want this to happen to them.”
“I had one visit with this lady, one visit. The next time I saw her, we were going to trial,” said Burton.
Decades before he became a pastor, Burton said his public defender failed to look into evidence that would’ve proved his innocence.
“That would’ve been my alibi, but she didn’t go and investigate any of that,” said Burton.
Burton said he wasn’t even in Missouri during the murder he was later convicted of.
“I was out there in Washington State,” Burton said.
But his public defender never called Burton’s friends who he visited at the time to testify in his defense.
“If that’s not ineffective assistance of counsel, I don't know what is,” Burton said.
His appeal lawyer eventually found a judge who agreed and freed Burton.
Suing The State
Ineffective counsel is also why the ACLU is suing Missouri.
“Justice isn’t being done,” said Gillian Wilcox, staff attorney of the ACLU of Missouri. “Our system is failing.”
Wilcox said they filed a lawsuit to try to force Missouri to spend an extra $20,000,000 each year on public defenders.
“They don’t have money to take all the depositions or hire more investigators so they can’t do all the work,” she said.
Missouri currently ranks 49th in public defender funding, according to the National Legal Aid and Defender Association. The ACLU said the state only has 370 public defenders to handle about 80,000 cases each year.
“They’re meeting with their clients maybe once every couple months for less than 10 minutes leading up to a trial of some very serious charges,” said Wilcox.
The Missouri State Public Defender director Michael Barrett acknowledges they are underfunded and overworked.
He gave 41 Action News this statement saying in part: “I’ve done everything short of setting myself on fire to draw attention to the situation that the state has put us in.”
Problems During Trial
Kidd said his public defender failed to present evidence during his trial that would’ve proved his innocence.
“This is how messed up my trial was,” Kidd told 41 Action News.
Kidd applied for a gun permit at the sheriff’s department the day of the murders with his then-girlfriend Monica Gray.
“You would think that would be a tight enough alibi to be at a sheriff’s department at the time of the murders,” Gray said.
But Kidd’s public defender never requested the surveillance video to prove Kidd was there. It was recorded over by the time he appealed his conviction.
Kidd and Gray were expecting their first child when police arrested him.
“Her dad should’ve been here through these special moments,” said Gray, referring to her daughter’s birthday.
Their daughter is 21 years old now, but Kidd is still in prison.
“I think people should be frustrated. We want our prosecutors to send those to prison who should be in prison,” said Kidd.
Difficult to Appeal
After his trial, Kidd said the state assigned him another ineffective public defender for his appeal who he never met.
“Most public defender clients never meet their first appellate lawyer,” said University of Missouri-Kansas City Law Professor Sean O’Brien.
O’Brien said Missouri’s public defender system keeps getting worse because of so much turnover.
“It’s worse in Missouri,” O’Brien said. “The system has been so underfunded for so long that there’s nobody left in the system who knows how to practice law.”
O’Brien used to serve as Kansas City’s Chief Public Defender. He resigned in 1989 when Missouri started cutting back on public defender help.
“That’s when I decided it’s impossible to do this job in an ethical manner,” said O’Brien.
It’s so bad, public defenders are not assigned for later appeals.
“Once you get through that first round of appeals, there’s no government program or government obligation to give you a lawyer,” O’Brien said.
The prisoners filing for appeals have to file requests themselves. But if they miss a deadline or forget any arguments or evidence, it’s too late. No one can go back and fix those mistakes.
“You cannot add new facts at that point,” O’Brien said. “We’ve got this really complex system of procedural barriers that are designed to keep prisoner cases out of court.”
That’s what state officials are using to block innocence claim appeals.
“We have to start asking ourselves, ‘Why is it difficult for the state to correct injustice?’” he said.
“Our judicial system is broken,” Missouri Governor Eric Greitens said in January 2017 State of the State Address.
During his speech, Greitens acknowledged problems in the state’s court system and talked about upholding the constitution.
“I believe in the Sixth Amendment, which guarantees the right to a fair trial and adequate legal representation for all,” Greitens said during his address.
"We need a justice system that does justice by all of our people. As a constitutional conservative, I believe, as you do, that the constitution applies to every citizen. I believe in the Sixth Amendment, which guarantees the right to a fair trial and adequate legal representation for all."
Missouri Attorney General Josh Hawley also talked about upholding the constitution before winning election in 2016.
“I believe in the Constitution as it’s written,” Hawley said in his campaign ad.
But neither Hawley nor Greitens will answer 41 Action News’ emails or calls asking about the problems in Missouri’s court system.
State Fights Appeals
Since Missouri’s Attorney General refused to talk to us, we tracked down the assistant Attorney General after he appealed to a judge as the state tries to block Kidd’s innocence claim appeal.
Kidd said the state keeps fighting his claim that his former public defender failed to investigate evidence that proves he is wrongly imprisoned.
“They’re not even arguing that I’m not innocent,” Kidd said.
Besides former Kansas City Police Commissioner Brooks saying Kidd is innocent, former Jackson County prosecutor Cindy Dodge agreed and is representing Kidd for free.
“Ricky Kidd is serving life sentences for crimes he didn’t commit,” said Dodge.
Dodge said not only does Kidd have an alibi, but also the evidence shows who actually did the murders.
“This is nuts!” Dodge said. “There is one of the perpetrators that is still running around in the community.”
Kidd has an appeal hearing scheduled to start July 17, 2017, but the Missouri Attorney General’s Office keeps filing motions to try to stop his hearing.
“Maybe they have higher political aspirations,” Kidd said. “Maybe they’re afraid a civil suit will follow.”
No government official in the cash-strapped state will tell us why, but Missouri keeps filing motions to block Kidd’s appeal.
Rulings Against Innocence
Law professor O’Brien volunteers to help the wrongly imprisoned.
“I won a case in the Supreme Court called Schlup v. Delo,” O’Brien said.
That U.S. Supreme Court ruling basically said prisoners do have the right to present any new evidence in court.
O’Brien helped Kidd use that decision to appeal his case in federal court.
But the 8th Circuit U.S. Court of Appeals interpreted the Supreme Court ruling to mean only new evidence not available at trial, even if a public defender didn’t use it.
"We conclude the district court correctly interpreted Amrine as requiring Kidd to come forward not only with new reliable evidence which was not presented at trial, but to come forward with new reliable evidence which was not available at trial through the exercise of due diligence. Whatever the merits of a modified approach in situations like the one faced by Kidd, our panel is not at liberty to ignore Amrine because we have already applied Amrine in situations like Kidd's."
“This is evidence a jury never heard,” Kidd said. “I had ineffective assistance of counsel.”
O’Brien appealed the ruling against Kidd to the U.S. Supreme Court in 2011, but it decided not to hear the case.
“The Supreme Court gets about 12,000 to 13,000 of those every year. There’s only nine justices and they only accept 200 cases,” O’Brien said.
O’Brien hopes the Supreme Court justices will issue another ruling that’s more clear to help free the wrongly imprisoned like Kidd and Lincoln. Lincoln’s also serving a life sentence despite no evidence remaining against him.
“Look at the evidence. If they do that, I’m going home,” Lincoln told 41 Action News.
But in June, the Missouri Supreme Court declined to hear Lincoln’s case.
That upholds a lower court decision stating Missouri judges have “no authority” to free an innocent prisoner unless it is a death penalty case.
“Missouri standard for releasing innocent prisoners is tougher than in other states,” said O’Brien.
Lincoln was just denied parole again this spring.
He and Kidd have each asked the governor for a pardon.
“You just keep hoping that somebody somewhere along the chain of authority would do the right thing,” Kidd said.
But they never heard back from Greitens.
“We must reform our correction system,” said Greitens during January’s State of the State Address. “We need a justice system that does justice by all of our people.”
“I was so full of anger and hate and bitterness, I was physically in prison but I was also spiritually in prison as well,” said Burton.
Before becoming a pastor at Church of the Resurrection in Leawood, Burton wondered if anyone would free him from his wrongful murder conviction.
“Local courts, federal courts, all the way to the Supreme Court of the United States – no court would overturn my conviction,” Burton said.
Federal Court Ruling
The Federal Appeals Court in St. Louis ruled it has an “obligation to apply the law” as it is, but also said Burton’s case “troubles us” because “the wrong man may have been convicted.”
The judges even wrote they “hope that the state of Missouri” courts or governor reconsider the case.
“Darryl thanks God. I thank Judge Richard Callahan,” Attorney Pilate told 41 Action News.
Pilate represented Burton for free in his appeals and said it took years to finally find a judge who agreed to free him.
“There are a lot of people sitting in prison right now who have strong innocence cases but because of the rules and laws that are in place, they can’t even get into a courtroom,” Pilate said.
No Clear Laws
“You got to find a court that has the power to release your client,” O’Brien told 41 Action News.
Judges don’t have a clear law to cite in Missouri or federal courts. O’Brien said the few judges who do free innocent prisoners usually go beyond their jurisdiction and power.
“It’s judges being afraid of the label of ‘activist judges,’” O’Brien said. “The General Assembly could pass a statute that says, ‘Innocence is a ground for relief from a conviction in Missouri,’” O’Brien said.
O’Brien wants federal lawmakers to also give judges a clear law to cite.
“There are things that Congress can do that would give courts the authority to intervene in these cases and grant relief to prisoners,” said O’Brien.
The Midwest Innocence Project also hopes lawmakers take action.
“Pass a law that says, ‘If you can show that you are actually innocent, that is enough to get you out of prison,’” said Bushnell.
Bushnell also wants to see a law to limit absolute immunity for prosecutors. That makes it nearly impossible to hold prosecutors accountable for wrongdoing like withholding evidence or manipulating witnesses before trial.
“Prosecutors can then do something completely horrible and use that to advance their political career and often times go on to be judges,” she said.
The Midwest Innocence Project also wants Missouri to clarify laws like other states for more accessible DNA testing and improved eyewitness identification methods.
“Those measures cost zero dollars, but Missouri won’t pass it,” Bushnell told 41 Action News.
Pilate wants to go one step further.
“I believe that all prosecutor’s offices should have Conviction Integrity Units,” she said.
Prosecutors would be required to reopen questionable cases through independent Conviction Integrity Units.
“There is a real resistance to admitting the flaws in the criminal justice system,” said O’Brien.
Many lawyers we spoke with want to see more equal funding between prosecutors and public defenders since Missouri ranks second to last in public defender funding among the states.
“We don’t have a level playing field,” O’Brien said. “The prosecution is routinely better resourced than the defense, so when one side always out-guns the other, you don’t get reliable results.”
O’Brien said Missouri should join 31 other states that offer automatic compensation to anyone who the state frees from a wrongful conviction.
“They decide, ‘Oh, it’s cheaper to have a reasonable compensation package,’” said O’Brien.
Cheaper than wrongful imprisonment lawsuits that have ended in payouts as high as $102 million in Massachusetts.
Currently, Missouri limits compensation to just DNA testing but not every case has testable evidence.
“Individuals who are released after proving their innocence often get absolutely nothing. Darryl didn’t get anything,” said Pilate.
Burton sued Missouri for wrongful conviction compensation after a state judge freed him, but state officials fought his lawsuit and won.
“Every one of us who’s been hurt and harmed, we could use a message of hope and forgiveness,” said Burton.
Burton ended up finding forgiveness, but he doesn’t forget how government officials wrongly locked him up for nearly 25 years. Just like it eventually did for him.
Burton prays the truth will set innocent people free – all across the country and especially in Missouri.
Attorney Bushnell broke the news to Kidd -- that his appeal hearing is not happening.
"Unfortunately that's common in these cases. Its a constantly a struggle to get into court, but if you look at the facts, Ricky wins on the facts," she said. "He's innocent."
Based on the technicalities, the Missouri Supreme Court issued a ruling to stop Kidd's hearing. They questioned if the appeal judge is within her jurisdiction.
"How could you ever be in the wrong court, if you're an innocent person?, Bushnell said.
The ruling sides with Missouri Attorney General Hawley's emergency motion.
"The circuit court both exceeds its authority and abused its discretion," he said.
Hawley argued the appeal judge in Kansas City "exceeded its authority" -- even though Kidd was convicted in Kansas City where the murders happened.
Kidd told 41 Action News he felt optimistic about his appeal -- because of our coverage.
"KSHB has been in the forefront of this. That's very noble," he said. "You guys are mattering."
Kidd hoped a hearing would free him, he he also knew he's running out of options.
"Usually when there's a 'no' its going to be a 'no' all the way out," said Kidd. "This is either where you get it or you don't.
Although his appeal hearing is up in the air, Bushnell thinks Kidd will eventually get his day in court.
"It could be a matter of months or it could be a matter of years," Bushnell said.
Kidd has already waited 21 years. Rodney Lincoln has waited 35 years.
Lincoln asked the Missouri Supreme Court to intervene in his case.
But it just declined, despite a lower ruling that says judges have 'no authority' to free him from his life sentence.
Bushnell wants Congress to change the law to make it easier for the court system to free the innocent.
"Everyone makes mistakes and that includes a system that is created by humans, run by humans, and decided by humans," she said. "We make mistakes, so we have to allow processes where we can fix them."
Bushnell has talked to Congressman Emanuel Cleaver's office -- which told us they're looking into a nationwide bill to help the wrongly imprisoned, but so far it's gone nowhere.
"I wish there was legislation passed where prosecutors could be held accountable," Kidd said. " Maybe they'll wake up and say you know what we need to do something."
For now, Kidd is stuck in prison without the possibility of parole.
"Ill continue to fight until my very last breath," he said.