Wrongfully Convicted.  Wrongfully Incarcerated.

Prominent Miami attorney Mel Black is now scheduled to argue for Kris Helton's release!

Posted by Summer on May 15, 2015 at 12:15 AM


Catherine Vogel ("Vogel"), the State Attorney for the Sixteenth Judicial Circuit, in and for Monroe County, Florida, has asked Chief Assistant State Attorney Manny Madruga ("Madruga") to see whether there is any reason for her and her office to change their position on Kris Helton ("Helton") and his case. This seems to be in response to Helton's April 8, 2015 letter to Vogel which asked her to create a Conviction Review Unit ("CRU") like the one recently created by Brooklyn District Attorney Ken Thompson ("Thompson") and to file a motion to dismiss the indictment filed in State of Florida v. Kris Helton, No. CF-K-91-1331 (Fla. 16th Jud. Cir. Ct. Monroe Cty. Aug. 22, 1991), thereby fulfilling her prosecutorial duty to do "justice," since there are "serious" and "substantial" doubts as to his guilt. See Letter from Kris Helton to Catherine Vogel, State Attorney for the Sixteenth Judicial Circuit, in and for Monroe County, Florida at 1-7 (Apr. 8, 2015) (on file with author and recipient).


Indeed, no less than four (4) federal judges have found that Helton was wrongfully convicted because his "inexperienced" assistant state public defender, Gerod Hooper ("Hooper"), failed to adequately investigate and present jurors with what they found to be "inviolable" and "persuasive" proof of his client's innocence, i.e., exculpatory gastric or stomach contents evidence showing that the victim, Marshall Gunderson ("Marshall"), was murdered on Little Torch Key within just an hour or two of consuming a light meal of chicken, rice, and strawberry yogurt at 6:30 p.m. way back on July 31, 1991 -- or long before Helton returned home from Key West at 9:30 p.m. See Helton v. Singletary, 85 F. Supp. 2d 1323, 1325-34 (S.D. Fla. 1999) ("Helton III"), aff'd sub nom. Helton v. Sec'y for Dep't of Corrs., 233 F.3d 1322, 1326-27 (11th Cir. 2000) ("Helton IV"); see also Helton v. State, 18 Fla. L. Weekly D1215, D1215-16 (Fla. 3d DCA May 11, 1993) ("Helton I") (finding that "the evidence did not preclude the possibility that it was [Marcella Gunderson ('Gunderson')], rather than Helton who had committed the crime hours earlier."), reh’g granted, 641 So. 2d 146, 154-56 (Fla. 3d DCA 1994) ("Helton II") (Nesbitt, J., dissenting) ("In the instant case, [Hooper] should have discerned and employed this forensic tool to properly defend his client. If, for example, [the medical examiner, Dr. Robert J. Nelms, Jr. ('Dr. Nelms'),] had given testimony that gastric contents showed that death had occurred in a short time frame, then [Helton] might have easily demonstrated he not only did not kill [Marshall], he could not have had an opportunity to kill [him] since he had not arrived home until 9:30 p.m.").


Helton obviously didn't want to go to trial with Hooper, but Richard "Rick" Roth, the former Sheriff of Monroe County, Florida, deprived him of the means to retain the counsel of his choice, i.e., Roberta Fine ("Fine"), a leading attorney in Key West, Florida, by authorizing his in-house general counsel, Mark Willis ("Willis"), to use the taxpayer-funded resources of his Key West office to represent Gunderson in the various civil actions that he had filed against her (merely seeking the return of his personal property, motor vehicles, and boat after she refused to hand these things back over to him so that he could retain Fine). See Helton v. Gunderson, 708 So. 2d 1029, 1029 (Fla. 3d DCA 1998) (noting that Gunderson was being represented by Willis), on appeal after remand, 802 So. 2d 1152, 1152-53 (Fla. 3d DCA 2001) (noting that Gunderson was continuing to be represented by Willis).


This eventually led to a written agreement to settle one of Helton's civil actions against Gunderson, see Settlement Agreement at 1-4, Kris Helton v. Marcella Gunderson, No. CA-K-108 (Fla. 16th Jud. Cir. Ct. Monroe Cty. Apr. 24, 2002); the entry of a final judgment, see Final Judgment at 1, Kris Helton v. Marcella Gunderson, No. CA-K-108 (Fla. 16th Jud. Cir. Ct. Monroe Cty. Apr. 24, 2002); and then-Sheriff Roth using taxpayer funds to satisfy a $4,250.00 judgment lien that had been filed against Helton in his criminal case, see Satisfaction of Judgment Lien at 1, Kris Helton v. Marcella Gunderson, No. CA-K-108 (Fla. 16th Jud. Cir. Ct. Monroe Cty. Nov. 22, 2002).


Even so, Helton has remained incarcerated in a state penitentiary for a crime he didn't commit solely due to a procedural technicality, i.e., prominent Miami attorney Mel Black ("Black") failed to ensure a timely filing of his petition for writ of habeas corpus under 28 U.S.C. § 2254. See Helton v. Sec'y Dep't of Corrs., 259 F.3d 1310, 1311-15 (11th Cir. 2001) ("Helton III") ("Because Helton's [§ 2254] petition is procedurally barred by the AEDPA's one year statute of limitations, we need not consider whether [Hooper] was ineffective.").


While the prosecution initially theorized that Augmentin (an antibiotic which Marshall had been taking for an ear achewithout any side affects) and/or Benadryl (an over-the-counter allergy medication which he also had been taking to help him sleep without any side affects) somehow suspended or retarded digestion of that light meal for five to seven hours, Helton believes that such speculation can be quickly cast aside after looking at the published federal court decision wherein Dr. John Feegel ("Dr. Feegel"), one of the pathology experts in this case, concluded that the contents of Marshall's stomach (described as being a "pink particulate" or "pink goo") would not have remained pink for so long!


Indeed, Senior United States District Judge Norman C. Roettger, Jr. explained, "For Dr. Feegel, [the pink coloration of the yogurt found in Marshall's stomach] was decisive in his conclusion that digestion had hardly begun when it was interrupted by death. Early in the course of digestion, Dr. Feegel explained, food coloring is one of the first things washed away, leaving what he described as a slushy gray liquid. This would be the case even if emptying time, or the total time it takes for the stomach to empty, got delayed. The integrity of the pink color undercuts [the prosecutions initial] theory of suspended digestion." See Helton III, 85 F. Supp. 2d at 1329.


An earlier time of death (within just an hour or two of Marshall's light meal at 6:30 p.m.) is also corroborated by other readily available evidence of Helton's innocence. For example, following Marcella Gunderson's fortuitous "discovery" of the victim's body outside the Little Torch Key home she shared with Helton (or shortly after he was alleged to have committed the murder sometime around 1:30 a.m.), an ambulance rushed the victim to Fishermen's Hospital in Marathon, where the emergency room physician, Dr. Don Weiffenbach, remarkably observed that he appeared to have been dead for "hours" rather than "minutes." See Petition for Writ of Habeas Corpus at 13 nn.4-5, 19-20, Kris Helton v. Sec'y for Dep't of Corrs., No. 98-CV-10110-Middlebrooks (Dec. 9, 1998).


Further, the conclusions of the original medical examiner, Dr. Robert J. Nelms, Jr. ("Dr. Nelms"), as to the actual cause of Marshall's death and the time of his death are now suspect: After Helton was convicted, it was finally revealed in a published federal court decision that at least one other pathologist, Dr. Roger Mittleman of the Miami-Dade County Medical examiner's Office, had "disagreed" with some of Dr. Nelms conclusions. See, e.g., United States v. Gaskell, 985 F.2d 1056, 1058-59 (11th Cir. 1993).


Later, when Dr. Nelms was facing formal disciplinary charges from the Board of Medicine for the State of Florida for failure to update his practitioner profile with medical malpractice information (after entering into a civil malpractice settlement for $300,000.00), he was allowed to "voluntarily" surrender his license by specifically agreeing "never again to apply for licensure as a physician in the State of Florida." See Final Order at 1-2, Board of Medicine v. Robert Nelms, Jr., No. 2008-13522 (Fla. Brd. of Med. Oct. 15, 2008) (emphasis supplied).


Now, following repeated calls for action by Vogel and Madruga, Black is scheduled to meet with Madruga in Key West on Monday, June 22, 2015.


Thus, we are hoping and praying that Black will be able to convince Madruga that Vogel should follow the lead of Thompson by creating her very own CRU which solicits input from an expert on wrongful convictions (like Professor Sarah Mourer ("Prof. Mourer") from the Innocence Workshop at the University of Miami School of Law or Ronald Sullivan, Jr. ("Prof. Sullivan") from Harvard Law School) and which has its non-binding recommendations reviewed by an independent panel of attorneys from outside of her office (like H. Scott Fingerhut ("Fingerhut"), Martin McClain ("McClain"), Michael Ufferman ("Ufferman"), Michael Minerva ("Minerva"), Seth Miller ("Miller"), and Melissa Montle ("Montle")). See Conviction Review Unit,


We are also hoping and praying that Black will be able to persuade Madruga that Vogel and her office should start operating under "expanded notion of justice," looking for the "correct result," the "right result," one in which Helton is freed "in the interest of justice" because his "wrongful" or otherwise "questionable" conviction has no "integrity." See Matthew McKnight, No Justice, No Peace,; Geoffrey Gray, The Arc of the Moral Universe Bends Toward Brooklyn: Ken Thompson's Mission for Racial Equality in the Justice System, N.Y. Mag., Mar. 9, 2015, at 62.


What do you think? Is Black's scheduled meeting with Madruga a positive development? Should Vogel follow the lead of Thompson by creating her very own CRU which solicits input from an expert on wrongful convictions (like Prof. Mourer or Prof. Sullivan) and which has its non-binding recommendations reviewed by an independent panel of attorneys from outside of her office (like Fingerhut, McClain, Ufferman, Minerva, Miller, and Montle)? Should Vogel and her office start operating under "expanded notion of justice," looking for the "correct result," the "right result," one in which Helton is freed "in the interest of justice" because his "wrongful" or otherwise "questionable" conviction has no "integrity"?


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3:49 PM on May 14, 2015 
Great job, Summer! Mel Black's scheduled meeting with Manny Madruga next month is a very encouraging development! By simply reading my earlier blog post on this website, you will see that I believe Catherine Vogel should create her own Conviction Review Unit which seeks input from one or more experts on wrongful convictions and then has its recommendations evaluated by an impartial panel of attorneys with no ties to her office. In fact, the CRU created by Brooklyn District Attorney Ken Thompson should serve as a "model" for Vogel and other prosecutors throughout America. Indeed, if Vogel and her office will just begin working under "expanded notion of justice," seeking the "correct" and "right? results, I am confident Kris will be freed "in the interest of justice" because his wrongful or questionable conviction has no "integrity."
Reply Kelli Landon
5:32 PM on May 14, 2015 
Great news!! Hoping and praying Kris is released!! Thank you for the updates! Yes, this is a very positive development!
Reply Michelle Sevi
10:38 AM on May 15, 2015 
Catherine Vogel and other prosecutors throughout the U.S. could learn a lot from Brooklyn DA Ken Thompson. His Conviction Review Unit is something which should be implemented in every single jurisdiction. Anyway, from what I can see by opening the links and actually reading those federal court decisions, Mel Black was able to effectively use the stomach contents evidence in this case to undermine the "integrity" of Kris Helton's conviction. Certainly, jurors should have had an opportunity to decide whether the undigested meal found in the victim's stomach, at least arguably showing that he was murdered within just 1 to 2 hours of eating, when Helton was elsewhere, raises a reasonable doubt as to his guilt. Four learned federal judges have said that it would ... For me, that trumps whatever Vogel and Manny Madruga may believe ....
Reply Kris Fargo
2:37 PM on May 15, 2015 
With 110K+ followers on Twitter, 44K+ members in our Facebook group, and 3K people in our Google+ circle, etc., this non-profit group ought to be able to flood the streets of Key West with a mess of people, including a number of celebrities, all calling for Catherine Vogel to free Kris Helton! However, I am not so sure Mel Black wants a circus-like atmosphere there on the island during his meeting with Manny Madruga . . .

Whatever the case may be, I think everyone will agree that Vogel should be more open to claims of actual innocence and that Madruga should recommend that Kris be freed as soon as possible because, as people throughout the world are now learning, he remains locked up in a state prison for a crime he did not commit despite having presented what those federal judges repeatedly found to be inviolable and persuasive proof of his innocence!
Reply Former Monroe County ASA
3:07 PM on May 16, 2015 
I see that you've finally discovered one of the many pathological gaffes of our former (with emphasis on "former") medical examiner, Dr. Robert Nelms, Jr. Besides messing up the autopsy of Kristen Gaskell, needlessly causing damage to the federal prosecution of her father, Robert Gaskell, I'm sure he equally misstated the nature and extent of Marshall Gunderson's injuries, eliminating his brothers, Mathew Gunderson and Michael Gunderson, as viable suspects. But even more disturbing is the fact that Dr. Nelms failed to use the gastric contents evidence to estimate the time of Marshall's death, instead relying on other, more unreliable factors to provide jurors with an inaccurate approximation which shamelessly implicated Kris Helton in a murder which he couldn't have possibly committed because he wasn't even home when the fatal blows were inflicted, presumably by his fiancée, Marcella Gunderson. Anyway, I'm no longer practicing law, but here's a suggestion: If you just ask around, I'm convinced that you'll discover about many more examples of Dr. Nelms' pathological gaffes which Mel Black can point out to Manny Madruga next month.
7:03 PM on May 17, 2015 
Thanks for the information and suggestion.
Reply Jessie Lund
12:54 PM on May 19, 2015 
Kris Helton continues to be imprisoned in a state penitentiary for a crime the evidence shows he didn't commit solely due to a legal technicality caused by Mel Black's untimely filing of his federal habeas petition.

This is just wrong on many different levels.

While many of us are quick to complain about the guilty escaping punishment on legal technicalities, we should also not hesitate to complain about the wrongful imprisonment of the innocent on legal technicalities like these.

Anyway, Black should be able to convince Manny Madruga to make some favorable recommendations to Catherine Vogel. First and foremost, she should free Helton ? and then she can look at creating her own conviction review unit.
Reply Arial Tyler
1:06 PM on May 19, 2015 
The evidence does show Kris Helton is innocent. I'm no expert in pathology, but even I can see that the "pink goo" found in the victim's stomach was the undigested strawberry yogurt he ate at 6:30 PM and that even if the mediation, Augmentin and Benadryl, did retard digestion in some appreciable way, this undigested "pink goo" still would have turned into "a slushy gray liquid." Therefore, in my opinion, the pink color of the victim's stomach contents proves that he was murdered soon after eating at 6:30 PM, when Kris was someplace else. He should be freed.
Reply Francis Wood
1:10 PM on May 19, 2015 
In the vast majority of cases, we all know law enforcement and prosecutors get it right. In this case, though, I'm convinced they got it wrong. If you read the federal judges' opinions in this case, you'll see, just like me, that an effective attorney, like Mel Black, would be able to use the gastric contents evidence to raise a reasonable doubt as to Kris Helton's guilt. In fact, I believe a reasonably competent prosecutor, like Manny Madruga, would be able to use this exact same evidence to indict Marcella Gunderson and then prove, beyond a reasonable doubt, that she is guilty. For these reasons, I believe Catherine Vogel should free Kris.
Reply Donna Dalton
1:38 PM on May 19, 2015 
Very thankful this encouraging development is finally taking place! Prayers of hope that he will be rightfully released!
Reply Suzanne Flores
5:31 PM on May 20, 2015 
Reply Summer
1:33 PM on May 21, 2015 
Please make this comment: I certainly appreciate everyone's comments on this blog post! So far, I think everyone agrees that Kris Helton should be freed because he's innocent!
Reply John Fogel
11:37 AM on May 22, 2015 
Prosecutors should always review of claims of innocence in an unbiased, transparent manner. Creation of conviction review units, like the one created by Ken Thompson, seems like a good way to do it. In this case, I believe Kris Helton should be freed because he has already shown his innocent!
Reply Annette Moseley
1:14 PM on May 22, 2015 
Manny Madruga should recommend that his boss, veteran prosecutor Cathy Vogel, free Kris Helton because the evidence proves, beyond a shadow of a doubt, that he was in Key West at the time of the crime on Little Torch Key ?
Reply Wendi Lutz
1:18 PM on May 22, 2015 
Mel Black is obviously going to be able to show Manny Madruga that Kris Helton is innocent!
Reply Barb Vallen
1:38 PM on May 22, 2015 
Kris is innocent. He should be freed.
Reply Moody Talor
9:33 PM on May 22, 2015 
This is great news and I cant wait to hear the out come from this meeting. Hoping that Kris would be freed soon. Nice one.
Reply Patrick Utim
9:42 PM on May 22, 2015 
Catherine Vogel to her self is trying to play-it-safe, but in times like this, after several other attorney has given their own verdict, she should release KRIS because her further delay implies that other attorneys with wealth of experience on the job do not know what they are saying. Lets still wait and see her next reaction, but it always good to do the right thing at the right time and setting Kris free is the right thing for her to do for justice and humanity sake!
Reply Comfort Erinle
10:04 PM on May 22, 2015 
I came across this site trying to solve my home work about freedom and I read this post and other articles about Kris and I was soo touched and more touched to see that Kris is still behind bars.I really feel doing the right thing is doing the right thing and the right thing that needs to be done here is for KRIS HELTON to be freed! I am going to talk about KRIS HELTON unjust incarceration at school end of session article reading...but mummy Vogel should release KRIS what if KRIS was her own son who got incarcerated unjustly?
2:16 PM on May 23, 2015 
BREAKING NEWS: Mel Black does NOT want a circus-like atmosphere down there in Key West during his scheduled meeting with Manny Madruga on Monday, June 22, 2015. Thus, I am now making this comment to make sure everyone knows that our non-profit group will NOT be holding a rally or staging a protest in Key West on that particular day. However, we are likely to hold a rally or stage a protest in Key West if something positive does not come out that meeting . . . I am remaining hopeful and praying for a favorable outcome, though. You should, too.

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