|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, http://www.brooklynda.org/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, http://www.newyorker.com/news/news-desk/kenneth-thompson-conviction-review-unit-brooklyn; 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"?