Jackson County prosecutor started a conviction review unit. Some say it’s ‘smoke & mirrors’

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St. Louis County prosecutors last week took steps to vacate the murder conviction of a man on Missouri’s death row. The move followed a review of the decades-old case that left prosecutors doubting the conviction.

Across the state, the Jackson County Prosecutor’s Office operates a conviction integrity unit tasked with performing similar work. But local attorneys and advocates say the unit, or CIU, has failed to take seriously its mission to correct wrongs in the criminal justice system.

The unit does not follow several recommendations made by national experts: It does not have written policies; attorneys who work in the CIU are primarily tasked with prosecutorial duties; and the unit has a high barrier for accepting a case.

Attorney Sean O’Brien, who’s worked on several high profile innocence cases, said he has been disappointed in the CIU. He’s part of a team that has been looking into the 2002 murder conviction of Byron Case, who they believe should be exonerated.

O’Brien said he would like to see a unit in Jackson County that is “not just window dressing.”

Cliff Middleton called the unit “smoke and mirrors.” His father Ken Middleton was convicted of murdering his wife in 1990 and is serving a life sentence.

The Middletons argue that the shooting was accidental and his conviction was overturned in 2005 after a judge ruled his trial attorney was ineffective. Then that was overturned.

Jackson County’s CIU launched in 2017. The Middletons sent in an application. The unit declined to review the case.

Mike Mansur, a spokesman for the prosecutor’s office, said five staff members “who have other responsibilities contribute” to the unit.

The unit has had one high-profile exoneration in recent years. In September 2020, The Star published a story that cast doubt on the triple murder conviction of Kevin Strickland. The CIU began a review and Strickland was freed after 42 years in prison in November 2021.

Best practices

The justice system makes errors.

“We’re a human-driven system,” said Marissa Boyers Bluestine, assistant director of the Quattrone Center for the Fair Administration of Justice, a research and policy organization at the University of Pennsylvania Law School.

“We as a society have a vested interest in ensuring that that system works as well as it can. And if it created an error, it’s important to us and high value that we correct that error.”

The Quattrone Center works with CIUs across the country and has developed guidelines on their operations. Some of the best practices include having a policy, creating a completely separate unit to avoid bias, collaborating when possible and not requiring a defendant to bring new evidence in order for their case to be reviewed.

But Jackson County has not followed those recommendations.

Bluestine said collaboration was important because it brings in different perspectives while also increasing resources. Requiring new evidence for a case to be accepted, she said, was “an unreasonable burden.”

“People who are writing are indigent and incarcerated, they don’t exactly have the resources to hire an investigator to go out and talk to everybody,” she said.

Applicants should be able to point to reasons their conviction was wrong, but not have to submit new evidence or most cases that should get a second look “are not even going to make it out of the gate,” Bluestine said.

Mansur said the Jackson County Prosecutor’s Office’s efforts are focused on a recent law that allows prosecutors to intervene in wrongful convictions.

“Because the statute requires us to show that the defendant is innocent by clear and convincing evidence and a jury has found the defendant guilty beyond a reasonable doubt, we believe that we need something that the jury did not see or hear to meet that burden of proof,” he said in an email. “Thus, we require new evidence.”

Mansur also said the office would “be willing to look at” an independent unit, “but we’ve had no information that documents a bias in our current setup.” He added that they have partnered with outside counsel on some reviews.

When asked about the unit’s policies, he directed The Star to the office’s website which includes information about applicant criteria, but does not include policies or procedures.

St. Louis County Prosecuting Attorney Wesley Bell’s office also requires new evidence, but the office’s conviction and incident review unit has written procedures, including information about the structure, submissions, investigations and determinations. It also has a full-time staff consisting of a unit chief, investigator and paralegal, said spokesman Christopher King. In some instances, such as on the case of Marcellus “Khaliifah” Williams — whose conviction the office took steps last week to overturn — they also seek outside help.

Jackson County’s CIU does report to the head of the office, Prosecutor Jean Peters Baker, which is considered a best practice.

Miriam Krinsky, executive director of the organization Fair and Just Prosecution, echoed the recommendations put forth by the Quattrone Center, and said there were several ways a unit’s effectiveness can be measured. It goes beyond the number of exonerations.

“If they’re doing reviews and they conclude that there’s not a basis for correction in the individual case, but there are systemic problems — it’s just policy or other changes to be made — that’s success,” she said. “If they’re being transparent with the community and showing that they don’t just exist on paper, that they’re actually looking at cases and digging into what happened.”

Krinsky said integrity units are also important so that patterns and problems can be identified and prevented.

“It’s an investment more generally in our justice system’s functionality,” she said.

The Jackson County Prosecutor Office’s organizational chart makes no mention of its conviction integrity unit.

About 122 CIUs have been established nationally. Some are what Bluestine said are referred to as CRINOs: conviction review in name only.

Questions in 1997 murder

The body of 18-year-old Anastasia WitbolsFeugen was found in October 1997 in a cemetery between Kansas City and Independence.

Byron Case, who had been close friends with her, was arrested in 2001 after his ex-girlfriend accused him of committing the murder.

When O’Brien’s team began looking into the evidence in the fall of 2019, they found inconsistencies with the timeline of events from the night WitbolsFeugen was killed and questioned the veracity of Case’s ex-girlfriend. They were also concerned that prosecutor Amy McGowan, who sent an innocent man to prison for 23 years and withheld evidence in another murder conviction which was later overturned, had been involved in Case’s proceedings.

“If the prosecutor’s office is aware of a problem, they have an obligation as a minister of justice to proactively engage and not wait for somebody to come forward with the proof,” Krinsky said.

By August 2022, the team thought they had enough to bring to the CIU and wanted to collaborate with the unit to complete the investigation.

“We offered to open our entire file to them,” attorney Brian Russell said.

They also said they would allow prosecutors to talk to Case, 45, who is serving a life sentence at a prison in eastern Missouri, and sent them a template for a cooperation agreement from the Quattrone Center.

The team paused most of their work, including delaying interviews and forensic testing, as they waited to hear if the CIU would partner with them on the rest of the investigation. In February 2023, they were told the unit was not interested in collaborating.

They continued investigating the case and last month filed a motion in support of Case’s innocence with the Missouri Court of Appeals, Western District, in Kansas City. The 139-page document laid out additional evidence, including a transcript of a call about the killing between Case and his ex-girlfriend.

At trial, Jackson County prosecutors said Case had told her, “We shouldn’t talk about this,” and alleged it was a tacit admission of guilt.

But according to his attorneys, what Case actually said was: “We should talk about this.”

They also included an affidavit from the former Jackson County medical examiner, who said the ex-girlfriend’s description of how WitbolsFeugen was shot did not add up.

“The bad taste in my mouth that I have over this process is not that they said no,” O’Brien said. “It’s that it was not a part of a process and they don’t have an actual unit that is staffed, that has procedures and policies, that has a way to operate.”

He said CIUs are particularly important in Missouri because the state’s public defender system has been chronically underfunded and overloaded with cases.

“When you have a defense bar that is so underfunded, it can’t really be a check on the prosecutors’ charging authority and is not a protection against wrongful convictions, it’s a risk factor for a wrongful conviction,” he said.

“If I had a case right now, I would not bring it to this conviction integrity unit. I would not waste my time with it.”

New prosecutor

Last summer, Baker, Jackson County’s prosecutor, announced she will not seek reelection. Her term will end Jan. 3, 2025.

Some see a new prosecutor as an opportunity to strengthen Jackson County’s CIU.

Stephanie Burton, John Gromowsky and Melesa Johnson have launched campaigns for the position.

Burton, a local attorney who has worked on innocence cases, said she would like to create written policies and place an attorney with post-conviction experience to lead an independent unit.

Regardless of who becomes prosecutor, Burton said she would “like to see an actual unit formed” and that she also supports reviewing all of McGowan’s cases.

Johnson, the director of public safety for Kansas City Mayor Quinton Lucas’ office, said she supports a separate unit that is focused exclusively on reviewing cases. That would boost the unit’s time and resources and lead to uncovering more cases.

The “current infrastructure doesn’t allow for that,” she said. A stronger unit would increase community trust, she added.

Gromowsky, who works in the prosecutor’s office, declined to comment.

O’Brien said he hopes the next prosecutor takes the CIU seriously “and puts a unit in place that is appropriately staffed and it has procedures and policies that are related to the integrity of convictions.”

Attorney Kent Gipson, who has worked on Ken Middleton’s case since 2010, said the unit can’t do much under its current structure and that its future depends on how proactive the next prosecutor is.

Cliff Middleton said he hopes whoever is elected “sets up a legitimate unit.”