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Osage County studies its insurance policies after Helmig files suit for damages

This article first appeared in the St. Louis Beacon, Jan. 5, 2012 - A Missouri man who received $4 million in compensation for wrongful imprisonment says Osage County owes Dale Helmig millions of dollars for the 14 years of pain and anguish Helmig suffered in prison.

"Dale hasn't just been victimized by a false incarceration," said Joshua Kezer. "Dale's life has been raped for all intents and purposes. At the very least they need to provide this man with an amount of money to live comfortably for the rest of his life."

Ever since a judge released Helmig and said he had been wrongfully convicted, there was an expectation that he would sue those he believed responsible. That became a reality last week when lawyers filed a petition on Helmig's behalf in federal court in Jefferson City.

Named as defendants were Osage County and three law enforcement officers -- Sheriff Carl A. Fowler, former deputy Paul Backues and Robert J. Westfall, a former Missouri State Highway Patrol trooper. They were accused of malicious prosecution, false arrest, procurement of unreliable or fabricated evidence and false testimony in violation of Helmig's constitutional rights.

The suit seeks unnamed compensatory and punitive damages. Last year one of Helmig's lawyers obtained a $15.5 million settlement from Lee's Summit in the case of a businessman who had been exonerated after spending five years in prison for child sexual abuse.

Osage County officials are wondering where the money would come from if Helmig's suit is successful. The three-member county commission held a closed-door meeting earlier this week to discuss whether the county's liability insurance policy could cover such a claim.

The possibility exists that taxpayers could be on the hook for some of the payment if insurance and other county assets are inadequate. Legal experts said juries considering the amount of an award in such cases do not consider a party's ability to pay but only what value to place on the injury sustained.

Kezer, who spent 15 years in prison for a murder he didn't commit, said Helmig was entitled to the maximum amount possible.

"He has been demoralized and abused," Kezer said in an interview. "He's grown old in prison. He was a normal man. Now he is faced with issues and depression and levels of anxiety that only rape victims and crime victims can understand."

Manipulated Evidence

Helmig spent more than 14 years in prison for the murder of his mother, Norma Dean Helmig, whose body was found in the flooded Osage River on Aug. 1, 1993. Helmig was released Dec. 13, 2010, after a judge ruled he was innocent of the crime and that a more likely suspect in the murder was his father, Ted Helmig.

State appeals courts later upheld the judge's ruling. Osage County Prosecuting Attorney Amanda Grellner announced last August that Helmig would not be retried.

Two prominent Kansas City lawyers are representing Helmig in his civil claim -- Arthur A. Benson II and Brian F. McCallister. Benson has handled several civil rights cases against government agencies. He is best known for representing black students in a Kansas City public schools desegregation case that lasted 26 years.

McCallister represented Ted White, who received the $15.5 million settlement after a jury exonerated him. The jury determined that a police detective who investigated the case against White had conspired with White's wife to manipulate the evidence. The policeman and White's wife had been carrying on an affair.

The lawyers' claim in Helmig's behalf is based on the case developed to win Helmig's freedom. Sean O'Brien, a University of Missouri-Kansas City law school professor, developed a comprehensive habeas corpus claim that proved to the judge that police, prosecutors and a defense attorney shared the burden of convicting an innocent man.

Helmig's "illegal arrest, illegal confinement, malicious prosecution, and wrongful conviction was deliberately and intentionally brought about by defendants," the suit said. "The arrest, confinement, prosecution, and conviction were the obvious and intended results of the withholding of exculpatory evidence and false testimony designed to prove a case against" Helmig "despite his actual innocence, which was or should have been known to defendants."

The suit said that Fowler "manipulated evidence in order to steer the murder investigation toward Dale Helmig when there was no evidence or motive by him to commit the murder of his mother, despite clear evidence and motive that Norma Helmig's estranged husband, Ted Helmig, had to commit the murder."

Ted Helmig has denied killing his wife. At the time of her death, the two had been involved in a contentious divorce.

At the trial, Fowler testified that Dale Helmig had an altercation with his mother at a Jefferson City restaurant just days before her death. In fact, a Jefferson City police report said it was Ted Helmig, not Dale, who had thrown hot coffee in Norma Helmig's face.

During a three-day habeas corpus proceeding Fowler admitted that there was no substantiation for the report that Dale Helmig had argued with his mother. Although there was no proof the altercation even took place, prosecutors brought the issue to the jury's attention more than once during Helmig's trial

The suit also pointed out that Fowler had withheld evidence that might have helped the defense, such as the fact that Norma Helmig had contacted the sheriff's office about Ted Helmig and had asked about the procedure for obtaining a handgun for protection.

Westfall, then a state trooper, testified during the 1996 trial that during his interrogation of Helmig he never denied killing his mother. In fact, Helmig told Westfall that the sheriff was after him and that he did not kill his mother. Westfall later said in a videotaped sworn statement that his original trial testimony was inaccurate and that it had bothered him for years.

During the trial, the state emphasized Helmig's absence from his mother's home at Pointer's Creek during the search efforts on Sat., July 31, 1993, as evidence of his guilt and as inconsistent with his expressions of worry and concern the day before. In fact, Backues had advised Helmig to stay away from the search scene.

The suit alleged that because of the law officers' behavior, Dale Helmig had suffered "grievous and permanent injury, including 14-plus years of incarceration and the attendant loss of freedom, companionship, and income; and the attendant infliction of mental and physical pain, suffering, anguish, fear, including the fear of being incarcerated for the remainder of his life for a murder he did not commit, and damage to family relationships because the murder victim was his mother." As a result of the damages and injuries, the suit added, Helmig is entitled to monetary relief.

Attempts were made to reach the named defendants for comment. Sheriff Fowler did not return a reporter's telephone call to his office. Backues, reached at his home, declined comment. There was no response to a phone message left on the answering machine at Westfall's home in Mexico.

Similar Suits

Helmig's lawsuit is similar to that filed by Kezer against a former sheriff, sheriff's deputy and Scott County in southeast Missouri. Kezer had been convicted by a jury in 1994 for the murder of Angela Lawless. A judge's order freed Kezer in 2009.

In the lawsuit, Kezer sought compensation for his time in prison and punitive damages because of his wrongful conviction and arrest, which were supported by unreliable evidence. Four incarcerated men who said Kezer confessed to the crime later recanted.

In an interview, Kezer said that one-third of the $4 million he received went for legal fees. Kezer said his settlement was based upon the maximum provided by an insurance policy. He said he could have sued for much more, but that it would have been tied up in court and that he wanted the matter brought to a conclusion.

"I took what I got because I was ready to move on with my life," Kezer said. "There is no amount of money that repays a man for what Dale and I have experienced."

According to the Midwestern Innocence Project website, about one third of the people exonerated after proving their innocence have not been compensated for the injustice they suffered or the time they spent incarcerated. No Missouri statute indemnifies people who have been wrongfully convicted in circumstances similar to Helmig's.

"I think it's terrible that they get out and there is nothing there to help them readjust," said Adele Bernhard, a law professor at Pace University. "Everyone thinks they will be millionaires in a second. No one can believe that they are not compensated easily and generously for what happened to them."

Kezer's case is also similar to Helmig's in that both men were prosecuted by Kenny Hulshof, who had been a special assistant under then-Attorney General Jay Nixon. Hulshof and the other attorneys involved in Helmig's case -- prosecutor Robert Schollmeyer and defense attorney Christopher Jordan -- are not targets in the lawsuit.

Bernhard said prosecutors have immunity from damage claims in criminal cases and there is a high standard to prove ineffective assistance of defense counsel. She said Helmig's suing over false testimony by police officers was his "best bet." She said she knew of cases where political subdivisions floated bonds to borrow the money to pay such claims.

But not all cases result in settlements. In 2004, Joe Amrine, freed a year earlier after 17 years on death row, filed a lawsuit alleging that officials coerced false testimony against him by threatening inmates and granting them favors.

Benson represented Amrine in that case, which was later dismissed. Amrine is now suing the public defender's office for ineffective assistance of counsel, according to Benson.

While Benson would not discuss Helmig's claim, he did say that there was a difference between Helmig's and the Amrine's cases because "in the Amrine case, there was no significant Brady violations." A Brady violation refers to the failure of police and prosecutors to provide the defense with information that could vindicate the accused.

Ivan Schraeder, a St. Louis-based attorney who represents Osage County through the Missouri Association of Counties, said he hadn't seen Helmig's suit. Many such suits go nowhere, he said.

"Awards are paid out of a number of places, depending on what the county has in the way of defense funds, insurance coverage that applies and its available balances," Schraeder said in a telephone interview. "There is always the possibility, although these are very rare that the local government files for bankruptcy. This has happened on the east and west coast where liabilities are in excess of the ability to pay."

Schraeder said the capacity to pay is not relevant when the jury is considering such cases. The jury's job, he said, is to consider "what is the value of the injury, assuming it has any value at all. There are some immunities that apply. Immunity means there is no liability on the part of the local government or its agents. There are also limits under federal and state law on some recoveries depending on how the lawsuit is framed."

Helmig's case is a straightforward request for compensation based on the deprivation of his rights, privileges, and immunities guaranteed by the federal and state constitutions. His lawyers have requested a jury trial, so if the case gets that far it would be up to a panel of his peers to decide whether he deserves compensation and how much it should be.

Osage County commissioners met with Grellner earlier this week to learn whether the county's insurance could cover such a claim. Johnnie Fowler, who is no relation to the sheriff, was the insurance agent who procured coverage for Osage County.

Fowler said two carriers had been responsible for the county during the time period of the Helmig case. "As far back as that's been, I'm not sure which, if any, of them will come into play on this claim," Fowler said. "Once we get copies of the lawsuit, we will send it to the two insurance companies involved."

Continental Western Insurance Group is the county's current insurance carrier. It has a $2 million limit per occurrence with a $4 million aggregate on claims. It is unclear whether this insurance company is liable for claims prior to Jan. 1, 2009 when its coverage for the county began.

At the time of his arrest, Helmig, now 55, made his living as a painter of houses and commercial buildings. Since his release, he has been living with his younger brother, Richard, in a mobile home in Rocky Mount, near Lake of the Ozarks.

Helmig has been unable to find a job since his release. He spends his idle time fishing with his brother. Kezer said Osage County should consider compensating Helmig as if giving him his retirement.

"He is asking for the retirement package," Kezer said. "He worked 24/7 to get his retirement. They need to give that man enough money to buy his own fishing boat and a fishing shop."

Terry Ganey is an independent journalist in Columbia, Mo.

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