October 10, 2017

Thin evidence in murder case, as legal protections fail

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The photograph of Lamonte McIntyre used in the photo lineup by police.

This is the second part of an Injustice Watch report on the questions surrounding the conviction of Lamonte McIntyre in a 1994 double murder. The case has raised doubts not only about the conviction, but also about the quality of criminal justice in Kansas City, Kansas. Read Part 1.

The arrest of Lamonte McIntyre for the murders of Doniel Quinn and Don Ewing happened within hours of the shootings, after a single eyewitness picked out his photograph from a photo array. Detective Roger Golubski and a second Kansas City, Kansas detective returned to the crime scene the following day to show other residents the same five photographs.

Josephine Quinn, a resident and an aunt of Doniel Quinn, told the detectives that she could not make an identification, because she was up Hutchings Street and did “not get a good look” at the shooter. But, Golubski wrote in his report, Josephine Quinn told them she had a daughter “by the name of Stacy who stated she knew who the suspect was but on this particular day of the photo lineup, Stacy was not available.”

Three doors down lived another of Josephine’s daughters, Niko. Golubski’s report describes Niko Quinn as “still visibly traumatized by what had happened.” Seeing the photo spread, he wrote, she “began shaking, became teary eyed, and was very hesitant in making any statements.”

After several minutes, Golubski wrote, Niko Quinn seemed to recognize the photograph of Lamonte McIntyre, the same photograph that her neighbor, Ruby Mitchell, had identified the day before. Golubski’s report states Niko Quinn “put her head down and stated that she thought that this was the individual but was not sure at this time positively. But thought it might be him.” Golubski wrote that Quinn then excused herself, and the interview was concluded.

Attorney Gary W. Long II was appointed to represent Lamonte McIntyre, who was 17. At a June 1994 hearing in juvenile court that served both to determine whether McIntyre should be tried as an adult and as a preliminary hearing, Niko Quinn and Ruby Mitchell made in-court identifications of McIntyre. At the close of the hearing, the juvenile court judge ruled that probable cause existed, and that McIntyre should be tried as an adult.

Two weeks after the preliminary hearing, the Kansas Supreme Court voted to put Long on two years of supervised probation for his failures to properly represent clients in three different federal cases. Long acknowledged the errors but said he had restructured his practice and was now “confining his practice to matters he feels qualified to handle.”

The court’s opinion states the justices decided Long “deserved the opportunity” to have supervised probation, and show he could avoid the kinds of mistakes that got him into trouble.

That left Long free to represent McIntyre. After the trial, however, Long’s troubles would continue: he voluntarily surrendered his license, and in March 1998 the Kansas Supreme Court accepted that surrender and disbarred Long, after four additional complaints against him. (Seventeen years later, after he retook and passed the bar examination, the court approved his readmission to practice.)

In an affidavit he signed in 2015, Long recalled his strong feeling that Lamonte McIntyre was innocent, in part because “he firmly maintained that he would not accept a plea bargain, because he did not commit the crime.”

He stated in the affidavit that he did not talk to Ruby Mitchell and Niko Quinn, the two eyewitnesses who were the prosecution’s case.

Despite police reports that Stacy Quinn could identify the shooter, Long did not interview her either. In his affidavit, Long said he first learned after the trial that Stacy Quinn had seen the shooting.

In the pending motion to win McIntyre’s freedom, attorney Cheryl Pilate contends Long’s defense had other shortcomings as well. Long never reconstructed the crime scene, as Pilate’s investigators later did; that effort raised doubts that Ruby Mitchell could have clearly seen the face of the killer from where she watched the incident through the screened front door.

An aerial photograph of the neighborhood where the crime occurred. The photo was presented at trial.

The prosecution’s case was limited. The police had no physical evidence connecting McIntyre to the crime. They had not produced a gun, nor conducted a search of McIntyre’s house for either the gun or the black clothing described by the eyewitnesses. Nor did they produce any evidence that McIntyre knew the victims, or had a motive to kill them.

Wyandotte County Assistant District Attorney Terra Morehead told the jury in her opening statement that “numerous reliable sources, people, had indicated that the individual who was responsible for this was the defendant, Lamonte McIntyre.”

Both Golubski and Police Lieutenant Dennis O. Barber then testified that they had obtained McIntyre’s name from “various sources.” They provided no specifics, and retired Kansas City, Kansas police captain Randy Eskina wrote in an affidavit that there was“nothing in the file to indicate that these sources did in fact actually exist.”

He added: “The lack of proper documentation causes me to have grave doubts about the existence or reliability of any informant or tipster who supposedly provided the name of Lamonte McIntyre to the police.”

The case: Two dubious identifications

Instead, the case boiled down largely to the testimony of the two eyewitnesses, Ruby Mitchell and Niko Quinn.

Mitchell, at trial, testified that she picked out Lamonte McIntyre’s photograph from the spread, and said she did not know his name when she did so. Defense attorney Long did not ask her how, on the original tape-recorded interview, she said she had recognized the killer, and said his name was “Lamonte McIntyre.”

As for Niko Quinn, she testified that though she had told Golubski the day after the murder that she could not identify any of the people in the photo array, she later had a second meeting, not previously revealed, in Golubski’s police car. There, she testified, she told Golubski, “I can identify the guy that shot my cousin,” and identified McIntyre.

Long sought to cross-examine Quinn on inconsistencies between her testimony at the preliminary hearing and at trial. But because he did not have with him a copy of the preliminary hearing testimony, Wyandotte County District Judge J. Dexter Burdette agreed with prosecutor Morehead that such questioning should not be allowed.

Golubski testified later in the trial that he had not prepared a report on that second meeting nor mentioned it to prosecutor Morehead until “sometime after” the preliminary hearing.

The circumstances of that interview, retired captain Eskina wrote in his affidavit, were “very irregular,” given that the meeting occurred “in a police vehicle away from the police department, no second detective present, no taping of the interview, no investigative report, and no marking of the witness’s initials anywhere. I have not seen any other case in which an eyewitness identification was handled in this manner.”

A list of alibi witnesses called on behalf of Lamonte McIntyre.

Defense attorney Long relied on an alibi defense: He put on members of Lamonte McIntyre’s extended family to testify that the defendant was more than a mile away from the crime scene that afternoon, at the homes of two aunts who lived in adjacent houses. But prosecutor Morehead contended that the defense witnesses could not “keep their stories straight” about when and where McIntyre was that day. She also called Golubski and a second officer to the stand to contradict details of the alibi.

The detectives contended that Rosie McIntyre had told them that her son had been with her at the restaurant on the day of the shooting, and therefore could not have been involved in a crime.

In her closing argument, Morehead told the jury that McIntyre had a “vendetta” and shot victims to “settle a score,” though no evidence was presented connecting McIntyre to the victims.

The jury deliberated a few hours, then broke until the next day, when they sought to rehear the testimony of the two state’s eyewitnesses, Ruby Mitchell and Niko Quinn.

That morning they returned a guilty verdict. Juror Greg Lauber said recently that he was one of the two last jurors to support a guilty verdict, and that he was never completely comfortable with the result.

And when Jim McCloskey of Centurion Ministries, a New Jersey based organization devoted to investigating wrongful convictions, knocked on Lauber’s door six years ago, he was not surprised.

“This verdict never sat right with me,” Lauber said. “I have always had a lot of doubt.”

Lauber said he had doubts about Mitchell’s testimony: She knew it was Lamonte, but a different Lamonte? But Lauber said the fact that Niko Quinn also made an identification caused him to drop his objections and join the rest of the jurors in voting to convict Lamonte McIntyre.

He said some months after the verdict, he called prosecutor Morehead asking if the jurors had done the right thing. She told him there was still more evidence prosecutors had not been able to present, he said. “She told me to rest easy,” Lauber said. “There was lots of stuff we couldn’t bring out.”

That comment brought a sharp response from McIntyre’s attorney. “I have been through the police file in great detail. I have interviewed everyone who might be able to shed light on who committed the murder,” Pilate said. “There is no hidden evidence that points to Lamonte, and to suggest otherwise is indefensible.”

An eyewitness tries to recant 

What Lauber and the rest of the jurors did not know was that Niko Quinn was recanting her testimony from the time she appeared in court, insisting that Lamonte McIntyre was not the killer, and that she had felt coerced to falsely testify. Gloria Labat, an aunt of victim Don Ewing, said in an affidavit and an interview with Injustice Watch that Niko Quinn came out of the courtroom, upset after testifying, and told Labat that her testimony was untrue.

Niko Quinn contended that when she saw McIntyre in court, she realized he was far too tall to be the killer. She said she approached prosecutor Morehead during a recess to tell her that she had made a mistake. Morehead, she said, responded that if she changed her story from identifying McIntyre, that she could be arrested or that her children could be removed from her home. “They threatened to take my kids,” Quinn recalled.

Morehead, who now works as an assistant U.S. Attorney, relayed word through a spokesman for the local U.S. Attorney’s office that she did not wish to comment.

Labat, in her own affidavit, confirmed that she had been sitting in the courtroom when Niko Quinn testified, and that Quinn told her immediately afterward that she had testified falsely. Labat added during a recent interview at her home that she had approached both the prosecutor and defense attorney and told them of Quinn’s recantation. Neither, she said, made any notes about what Labat was telling them. “They didn’t seem to care,” she said.

Other victims’ family members raise more doubts

Though Golubski’s notes on the day after the shooting show the police were told that Stacy Quinn “knew who the suspect was,” neither side called her to testify.

Stacy Quinn, who died in 2000, signed an affidavit in 1996 stating that she had never been contacted by police nor called to testify. In that affidavit, written in advance of a hearing for a new trial, Stacy Quinn wrote that she had witnessed the shooting and “there is no doubt in my mind that Lamont [sic] McIntyre was not the shooter.”

A line from the affidavit signed by Stacy Quinn.

Freda Quinn, who is Josephine’s sister and the aunt of Stacy and Niko Quinn, signed an affidavit, too. “Josephine, Nico and Stacy all told me at different times that they had told the police that they had arrested the wrong man for Doniel’s murder,” she wrote. “We were very upset that the police never listened to our family’s information.”

Many family members and friends contend that Golubski knew well who Stacy Quinn was. As Freda Quinn stated in her affidavit, “From the time Stacy was 16 or 17 (in the mid 1980s), until the time of her death in 2000, Stacy had an ongoing sexual relationship with Detective Golubski. He took care of her and would buy her clothes and other nice things.”

While Stacy Quinn did not talk about it, Freda Quinn wrote, “we all knew it was going on.” She wrote that Golubski would at times “pick her up at her mother’s house; she would then be gone for a couple of days, and then when she returned to Josephine’s, she would have new clothes and money.”

Niko Quinn, in a recent interview, said that her sister had been sexually abused as a child, and that her sister “thought love would come from streets.” Stacy had her first child as a young teenager, and had seven children before she died, Niko said.

Niko Quinn said her sister had told her well before the murders that she was involved with a police detective, but had not said his name. She said on occasion she saw her sister get into a police car at night.

But it was not until the trial was underway, Niko Quinn said, that “she told me that’s the one she had been messing with,” referring to Golubski.

Trial judge does not budge

New lawyers hired by McIntyre’s mother, Rosie McIntyre, filed both a direct appeal of the conviction and a motion for a new trial, citing affidavits from both Niko and Stacy Quinn.

Neither was successful.

The Kansas Supreme Court turned away the appeal. Trial judge Burdette took up the new trial motion at an April 1996, hearing. Lamonte McIntyre was not present. Prosecutor Morehead contended that the judge should not even take testimony: Stacy Quinn had been named in police reports, and therefore was not a newly-discovered witness; and Niko Quinn had testified at trial that she was positive about her identification.

The judge agreed to hear testimony from Stacy Quinn, but settled on accepting the affidavit from Niko Quinn, who was not called to testify.

Stacy Quinn insisted in her testimony that McIntyre was not the shooter and said, “I want the right one for my cousin.” She added of the shooter, “I seen him and I know him.”

Stacy Quinn was not a perfect witness: She admitted on the stand that she was currently in custody, held on a parole violation following a theft conviction. And she admitted she used drugs, though she said her head was clear the day of the shooting.

Although McIntyre was not in the courtroom, Stacy Quinn looked at photographs and said he was definitely not the shooter.

Judge Burdette rejected Stacy Quinn’s testimony as not credible, noting she was a “habitual felon,” “a drug user,” and that she was only coming forward belatedly.

And he rejected Niko Quinn’s disavowal of her identification. “I find no credibility whatsoever to her recantation,” he said at the close of the hearing. He added: “I find it incredible, frankly, and — and, in effect, not believable — that someone who watched their relatives murdered and not say anything at all about who the perpetrator was until now.”

Burdette was unaware, apparently, that Niko Quinn had not delayed recanting for years.

“What Niko Quinn has been through is awful,” said Pilate, McIntyre’s attorney. “She has tried to tell her story, and was intimidated. Yet she tried, and tried again. She is the hero of this story.”

Unbeknownst to McIntyre and his attorneys, Judge Burdette and prosecutor Morehead had been romantically involved, in a relationship that ended three years before McIntyre’s trial but which only came out publicly in 2005 as part of a defendant’s challenge in another case.

Though the relationship was over, Yale Law School Professor Lawrence Fox, an expert in legal ethics, concluded after reviewing the case that both the judge and prosecutor had engaged in misconduct in McIntyre’s case by not disclosing their relationship. The result was a miscarriage of justice, Fox wrote.

“[T]he concealed relationship obliterated any semblance of judicial impartiality in Mr. McIntyre’s trial and infected every aspect of these proceedings with implicit bias,” Fox wrote. “As a result, Mr. McIntyre was denied his constitutional right to a fair trial.”

Fox added: “It is impossible to believe that Judge Burdette’s favoritism toward Ms. Morehead did not influence the numerous rulings Judge Burdette made that were adverse to Mr. McIntyre, both during his trial and during the post-conviction proceedings, even in ways Judge Burdette could not recognize.”

Court appoints another problem lawyer

After he was convicted and his appeals exhausted, McIntyre filed a pro se state post-conviction motion contending he had been denied his right to fair trial. The trial judge, Burdette, appointed another lawyer — Mark Sachse — to represent McIntyre at the hearing.

The case was scheduled to be heard on Oct. 17, 1997, and that day Josephine Quinn showed up at the courtroom and met with Sachse. The lawyer was so struck by what he heard from Josephine Quinn that he assisted her in writing a statement, and then had a courtroom staff member notarize the affidavit.

Josephine Quinn contended in her affidavit that when she showed up at McIntyre’s trial, prosecutor Morehead told her she could go home, that her testimony was not needed.

Josephine Quinn recalled in the affidavit that she was troubled when she saw Lamonte McIntyre that day in the courtroom, and tried unsuccessfully to tell Morehead: That was not the man she saw with the shotgun.

Part of the handwritten affidavit signed by Josephine Quinn.

According to her affidavit, Morehead told her it was too late, that the jury was deliberating. McIntyre’s trial attorney apparently never learned of the conversation.

No evidence for McIntyre

Though Josephine Quinn came to the courthouse that day, the hearing was postponed for what turned out to be two months. When the new hearing came, Sachse did not subpoena Josephine Quinn to make sure she would be present. As he wrote in the 2014 affidavit: “I do not recall speaking again with Ms. Quinn after Oct. 17, 1997, and do not know if anyone asked her to be present at the hearing on January 16, 1998.”

Instead, Sachse showed up for the hearing with no witnesses and no evidence, and without Lamonte McIntyre in the courtroom. In his affidavit, Sachse conceded that he had never tried to communicate in any way with McIntyre while he represented him. Sachse explained: “This was not unusual in Wyandotte County during that time period.”

At the hearing, not only was Josephine Quinn not present to testify; Sachse also never introduced the affidavit he had taken from her two months earlier. In the 2014 affidavit, Sachse offers no reason for that failure.

Lacking evidence, Sachse argued on behalf of Lamonte McIntyre, and Morehead responded. At the close of the hearing, Judge Burdette ruled: “I have gone over this particular trial and the efforts of both sides many times and I’m convinced the defendant got a fair trial.”

Unbeknownst to the McIntyre family, Sachse was mishandling a series of cases at the time he took on McIntyre’s case. He never filed an appeal on behalf of a man convicted of murder he was appointed to represent, even when warned the case would be dismissed if he did not respond.

And he ignored discovery requests from the opposing lawyer in a civil case Sachse had filed, on behalf of a seven-year old who was injured in a car accident. The case was dismissed when Sachse failed to respond even when ordered to do so by the judge. When the family traveled weeks later for a pretrial hearing, Sachse met them at the courthouse and told them the case had been postponed; he failed to say his neglect had caused the case to be dismissed.

Those two were among seven clients who filed complaints against Sachse; in 2000,  the Kansas Supreme Court adopted the findings of the disciplinary panel that Sachse had failed all seven, causing harm to his clients in six of them. The court ordered Sachse to serve supervised probation for two years.

Six years later, the Kansas Supreme Court suspended Sachse from practice for a year after he failed to properly represent two more clients. And finally, in 2007, Sachse voluntarily gave up his license and was disbarred after disciplinary proceedings were pending against him in 17 more cases.

Another, more likely suspect?

Days before he was murdered, Niko Quinn recalled, her cousin Doniel Quinn had shown up with bruising on his face. He told Niko Quinn that he had been beaten by drug dealers for whom he sometimes worked, tending the door to their drug house.

Niko Quinn said that Doniel Quinn was suspected of taking drugs from the house, and the dealers were after him. “That’s why he got killed,” she said. “It had nothing to do with Lamonte McIntyre.”

A photo showing broken glass at the crime scene, submitted as evidence at trial.

McIntyre’s attorney, Pilate, has gathered statements from several witnesses that support that version of events. Among them is an affidavit from a man named Cecil Brooks, who is currently serving time on a federal drug conviction in Missouri. Brooks confirmed in his affidavit that he once “was a major figure in the Kansas City, Kansas drug business.”

Brooks stated in his affidavit that the murders had nothing to do with Lamonte McIntyre: “Lamonte McIntyre did not commit the homicides of Doniel Quinn and Donald Ewing,” Brooks’ affidavit states. “None of us had ever heard of him.”

Instead, Brooks contends, he knew from his conversations with Aaron Robinson, a drug dealer he helped mentor, Robinson had ordered the shootings because he believed Doniel Quinn had stolen drugs from him. Robinson was killed accidentally in 1996.

The man Brooks and others say committed the crime is now in prison for an unrelated murder. He has not responded to requests to discuss the allegations.

Meanwhile, McIntyre remains locked up for the murders of Doniel Quinn and Don Ewing. Niko Quinn said that as a post-conviction hearing in the case draws close, she keeps hearing the dying words of her grandmother to her: “Make sure I get that man out because he didn’t do it.”

WEDNESDAY: Officials are slow to react as questions develop in Lamonte McIntyre’s case.

Injustice Watch intern Summayyah Jones contributed to this report.