PASSAGE OF THE DAY: "But Coones had an alibi for the crime: he was at home with family. Family members saw him come out of his room and spoke with him in the hours before the crime. And his car was boxed in his driveway, meaning he could not have driven to the crime scene. Nonetheless, the State focused solely on Coones, ignoring and concealing evidence that revealed this was not a double-homicide, but in fact a murder-suicide staged to frame Coones." “This was a classic case of tunnel vision,” says Branden Bell, an attorney for Morgan Pilate who represented Coones in conjunction with the Midwest Innocence Project. “Even though Pete denied committing the crime and forensic testing showed Pete had never been in the house, the police refused to consider the possibility that he was innocent. Instead, the investigation into how the Schrolls died lasted less than three hours before the police decided Pete was their sole suspect and they never looked any further.”
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RELEASE: Midwest Innocence Project. November 5, 2020. No heading just a photograph of a couple that should not have had about a quarter of their 40 years of marriage wrested away from him by an outlandish prosecution marred by prosecutorial misconduct such as failure to disclose patently exculpatory evidence - and withholding evidence that an informant was utterly unreliable. Oh yes. There was no forensic evidence connecting him to the crime. Olin Coones had served 12 years for a crime he did not commit - - an alleged 'double homicide' - which was, in fact a 'murder suicide.' Kudos to the Midwest Innocent Project and the assisting pro bono counsel. HL.
Kansas City, Kansas (November 5, 2020) – "The Midwest Innocence Project(MIP), a not-for-profit corporation dedicated to the investigation, litigation and exoneration of wrongfully convicted people in five states, and the Morgan Pilate law firm announce today that District Court Judge Bill Klapper overturned the conviction of client Olin “Pete” Coones, finding he satisfied the actual-innocence exception and that his trial was unconstitutionally marred by prosecutorial misconduct. The Wyandotte County District Attorney’s Office has dismissed all charges, freeing Coones after serving over 12 years for a crime he did not commit.
Coones was wrongfully convicted in 2009 of murdering Kathleen Schroll in Kansas City, Kansas. Kathleen Schroll and her husband had been shot and killed in their home in what is now known to have been a murder-suicide. A revolver, later identified to belong to Schroll, was found near her left hand. DNA testing confirmed the presence of Schroll’s DNA on the trigger of the gun. There was no sign of a struggle or forced entry, or that anyone else had been in the home. But law enforcement and prosecutors focused on Coones because of a phone call made by Kathleen Schroll, shortly before her death, where she claimed Coones was in her house, threatening to kill her, and that he had stolen a lawn mower.
But Coones had an alibi for the crime: he was at home with family. Family members saw him come out of his room and spoke with him in the hours before the crime. And his car was boxed in his driveway, meaning he could not have driven to the crime scene. Nonetheless, the State focused solely on Coones, ignoring and concealing evidence that revealed this was not a double-homicide, but in fact a murder-suicide staged to frame Coones.
“This was a classic case of tunnel vision,” says Branden Bell, an attorney for Morgan Pilate who represented Coones in conjunction with the Midwest Innocence Project. “Even though Pete denied committing the crime and forensic testing showed Pete had never been in the house, the police refused to consider the possibility that he was innocent. Instead, the investigation into how the Schrolls died lasted less than three hours before the police decided Pete was their sole suspect and they never looked any further.”
A new investigation begun by the Wyandotte County District Attorney’s Office Conviction Integrity Unit unearthed significant evidence that the deaths were the result of a murder-suicide and that Ms. Schroll had fabricated evidence to pin the deaths on Coones. The Court heard new evidence that Ms. Schroll had forged checks from Olin Coones, Sr.’s, account and that she was facing potential criminal charges for embezzling over $11,000 from a bank where she was also employed. None of that evidence had previously been disclosed to Coones or his defense counsel. Additional investigation by CIU Investigator Colin Brown also revealed gunshot residue on Ms. Schroll’s hand and a previously unrecovered 4th bullet. When presented with the 4th bullet, the State’s medical examiner changed the manner of death from homicide to murder-suicide.
“Justice was delayed, but we are thrilled Pete will return to his family today,” says Lindsay Runnels, an attorney with Morgan Pilate who also represented Coones. “We are thankful to the CIU for its thorough investigation that revealed previously unknown State misconduct. CIUs are an important part of correcting injustices like this one. Our justice system is a little more fair today.”
Further, Coones’ team presented evidence of State misconduct regarding the use of a jailhouse informant. In granting Coones’ motion, the Court found the State withheld evidence the informant was unreliable, may have had mental health issues, and wanted a deal to testify. The State also did not disclose the informant’s full criminal history, all of the letters the informant had written, the number of interactions it had with the informant, or that it had threatened Rupert with jail time if did not testify.
According to a report by the National Registry of Exonerations, prosecutorial or police misconduct played a role in more than half of all convictions of innocent people who were later exonerated. The report stated that concealing exculpatory evidence, like what occurred in Pete’s case, occurred in 44% of exonerations.
“A prosecutor’s job is to do justice, which includes not only turning over exculpatory evidence, but ensuring that the evidence used to convict someone is reliable,” says Tricia Rojo Bushnell, counsel for Coones and MIP Executive & Legal Director. “Jailhouse informants are some of the least reliable evidence, and Pete’s case underscores the need for Kansas to join a growing number of states that have passed laws to prevent false jailhouse informant testimony.” Last year, HB2544 was introduced by the Kansas House Judiciary Committee, which would create a statewide system for racking the use of jailhouse informants and clarify the types of evidence that must be disclosed about these types of witnesses.
In addition to Bell, Runnels, and Rojo Bushnell, Coones was also previously represented by the KU School of Law’s Paul E. Wilson’s Project for Innocence and Postconviction Remedies. The team was assisted by investigators Blair Johnson and Mike Bussell, paralegal Maci Morgan, and attorney Kylie Mank."
The entire release can be read at:
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Read National Registry of Exonerations entry by Maurice Possley at the link below: (Contributing factors: False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense.)
"On November 5, 2020, more than 10 years after he was wrongly convicted of murder in Kansas City, Kansas, Olin “Pete” Coones was exonerated and released from prison. He was serving a sentence of 25 years to life for the 2008 murder of 45-year-old Kathleen Schroll, who had been the housekeeper for Pete’s late grandfather.
Evidence presented by Pete’s legal team uncovered a bizarre plot by Schroll in which she killed her husband and committed suicide, but staged her death to appear to be a murder to frame Pete for both killings.
The crime occurred in the early morning hours of April 7, 2008. Kathleen was mired in debt, facing imminent arrest for embezzlement, and losing a legal battle for Pete’s grandfather’s estate. She fatally shot her 64-year-old husband, Carl and then, telephoned her mother for help, saying that Pete had killed Carl and was about to kill her too. At that point, the phone went dead.
When police arrived just a few minutes later, Schroll was on the living room floor with a single gunshot wound to the back of her head. Although the scene had the earmarks of a suicide—there was no sign of a struggle—the Kansas City police, after interviewing Kathleen’s mother, quickly concluded that Pete killed Carl and Kathleen.
Pete’s lawyers, Branden Bell and Lindsay Runnells from the law firm of Morgan Pilate LLC and Tricia Bushnell, executive director of the Midwest Innocence Project, uncovered evidence showing that Kathleen’s death was in fact a suicide. Kathleen apparently orchestrated the plot so that her heirs could receive life insurance benefits that would have been denied if the deaths were a murder-suicide. And she also sought to extract revenge on Pete, who was winning the legal battle with Kathleen for his grandfather’s inheritance.
The evidence supporting this account of the crime was present from the beginning, but either the prosecution improperly concealed it or Pete’s defense lawyer failed to look for it.
The seeds for the wrongful conviction were planted in 2004 when Kathleen began working as a housekeeper for Pete’s grandfather, Olin Coones, after she met Olin’s daughter, Patsy, at a Veterans of Foreign Wars hall in Kansas City. At the time, Olin and Patsy lived in a home on Parallel Parkway in Kansas City. Olin was suffering from Alzheimer’s disease and Patsy had medical issues as well. In September 2004, Patsy asked an attorney, Clifton DeMoss, to draw up a will and power of attorney form that designated Kathleen as the beneficiary of Patsy’s estate.
A year later, in September 2005, Olin and Patsy signed over the house on Parallel Parkway to Kathleen. Not long after, Kathleen’s daughter, Blair Hadley, moved into the house with Olin and Patsy. In February 2006, Kathleen called DeMoss and said Patsy was in the hospital and wanted to see him. When DeMoss arrived, he asked Patsy why she had never signed the will and power of attorney. Patsy said she didn’t trust Kathleen. A few days later, on March 6, 2006, Patsy died. She was 69.
On April 20, 2006, the beneficiary to Olin’s life insurance was changed to Kathleen. The change was made online, although there was no computer in Olin’s home.
At that time, Pete Coones was living near Independence, Missouri, and was unaware that Patsy had died or that Olin had Alzheimer’s. In August 2006, he paid a visit, but Kathleen would not allow him into the house. On September 1, Pete contacted the Kansas Department of Social and Rehabilitative Services (SRS) to file an elder-abuse complaint.
Meanwhile, Theresa Harding, an employee at Olin’s bank, became concerned about Olin’s well-being and asked him to come to the bank. Olin arrived with Kathleen, who refused to allow Harding to speak privately with Olin. After an argument, Kathleen relented. Within minutes of being alone with Olin, Harding concluded that he was mentally impaired. She locked Olin’s bank accounts and called police.
On September 12, 2006, Bonnie Keith, a former co-worker of Olin’s, went to his house to visit him. Keith was allowed to leave with Olin only after telling Kathleen that she was taking him to visit his brother and promised to bring him back.
Keith was shocked at Olin’s condition—his underwear was badly soiled and he had bedsores. She took him to her home where she and her husband cleaned him up and took him to live with Pete in Missouri.
Not long after, the SRS concluded its investigation and determined that Kathleen had exploited Olin. On October 2, after the Wyandotte County Sheriff’s Office helped Pete take possession of the house on Parallel, Kathleen’s lawyer offered to surrender Kathleen to the Wyandotte County District Attorney’s Office, if and when charges of elder abuse were filed.
In January 2007, Olin died. He was 86. Pete was the sole heir to the estate, which included thousands of dollars in credit card charges that appeared to have been made by Kathleen. Pete and Kathleen both filed claims to the $46,000 insurance policy. The insurance company deposited the funds into an account and told them to fight it out in court. By that time, Pete was aware that the analysis of thousands of dollars’ worth of Olin’s checks pointed to Kathleen as the forger.
On April 1, 2008, the parties were heading to mediation and Pete was offering Kathleen 25 percent of the life insurance.
On April 5, Kathleen went to work at the Midwest Regional Credit Union where she was a systems analyst. She told co-workers that she had seen Pete that morning at a gas station and he had threatened her. On Sunday, April 6, Kathleen told her daughter that Pete had threatened her, but gave a different account. She said that Pete made the threat in the afternoon, after Kathleen left work. Later, Kathleen’s lawyer would say she also told him that Pete had threatened her at the gas station.
On Monday, April 7, at 2:28 a.m., Kathleen telephoned her mother, Elizabeth Horton, and said, “Pete is here in the house and he said he stole the lawnmower out of the garage. He said he is going to kill Carl and he is going to kill me and he said he has got his tracks covered where no one will find out.”
Stunned, Horton said, “What? Repeat that.”
When Kathleen again said Pete was in the house and threatening to kill her and Carl, Horton asked, “Did you call the police?”
“No,” Kathleen said. And the phone went dead.
Horton called her son, who called 911. When police arrived 15 minutes later, the front door was ajar and the lights were on. Two cell phones were on a table near the front door. Kathleen was lying face up in the living room. Near her right foot was a cordless telephone. Near her left foot was a silver revolver. Kathleen’s purse, which was open, sat on the back of the living room couch.
Carl Schroll was found sprawled across the bed. He had two gunshot wounds to the abdomen and what appeared to be a laceration on his head. A pillow had a hole in it with stuffing hanging out. There was no sign of forced entry and a police sergeant on the scene told dispatch that it was “possibly” a murder-suicide.
But then police talked to Horton and learned of Kathleen’s telephone call and the ongoing legal fight between Pete and Kathleen. Police also talked to Kathleen’s daughter, Blair, who said her mother told her that Pete threatened her at the gas station two days earlier.
At 7 a.m., police pulled Pete over as he was driving two of his children to school. They took him to the police station for questioning.
Police searched Pete’s home, but found no bloody clothing, guns, or ammunition. They did not find the lawnmower that Kathleen mentioned in the phone call. The clothing he was wearing was taken, but no blood was found. They searched the van and swabbed the steering wheel for gunshot residue. Nothing was found that connected Pete to the crime.
The gun, it turned out, had formerly belonged to Patsy, who had reported it stolen in 2000.
Pete’s fingerprints and his DNA were not found anywhere in Kathleen and Carl’s home. Police checked the surveillance video at the gas station where Kathleen claimed he threatened her, but neither Kathleen nor Pete were seen at the station.
On April 9, 2008, Pete Coones was charged with the murders of Kathleen and Carl Schroll. A retired postal worker, Coones was 50 years old.
Prior to the trial, the prosecutor, Edmond Brancart, revealed that Kathleen’s daughter, Blair, said that Kathleen had not told Carl about her alleged confrontation with Pete at the gas station. Kathleen had said that she didn’t tell him because she and Carl were experiencing “marital tension.”
In January 2009, Pete went to trial in Wyandotte County District Court. The prosecution’s case relied primarily on the evidence of the phone call Kathleen made to her mother, the testimony of Kathleen’s daughter that Pete had made threats, and the forensic and physical evidence—though none of that evidence implicated Pete.
Dr. Erik Mitchell testified that he conducted an autopsy on the bodies. He recovered two bullets from Carl’s abdomen, which he said were the cause of death. The wound on Carl’s head came from an edged, but not sharp, weapon. He said it was a “crushing blow,” but there was no damage to the skull or brain. Mitchell said Kathleen died from a contact gunshot to the back of the head, though the contact was “oblique,” meaning that the gun barrel was angled and not flush against the skull. He recovered that bullet as well.
A police firearms analyst concluded that three bullets were the same caliber as the silver revolver found next to Kathleen. The slugs were too damaged to link to any specific firearm. Police swabbed the gun for DNA. Only Kathleen’s was found and it was on the trigger. The gun had a five-bullet capacity. There was one live round still in it as well as shell casings for four bullets.
Barbara Crim-Swanson, a forensic scientist for the Kansas Bureau of Investigation, testified that she had tested Pete’s clothing and shoes for the presence of blood and tissue, but found none. Nor was there any on a ring he was wearing when he was arrested. The cordless phone did not have Pete’s DNA on it either.
A detective testified that Kathleen’s purse contained a copy of a letter from Kathleen’s lawyer to the Wyandotte County District Attorney’s Office offering to surrender Kathleen if elder abuse charges were brought.
Blair Hadley, Kathleen’s daughter, testified that on April 6, Kathleen told her that she had gone to a gas station around 1 p.m. to buy cigarettes and lottery tickets. Kathleen had recounted that when she was walking in, Pete was walking out and he said that Kathleen wouldn’t be spending any more of Olin’s money.
A detective testified that as part of the initial investigation, he walked around Pete’s house around 6 a.m.—about three and a half hours after the shootings—and did not see Pete’s van.
The defense presented testimony from several of Pete’s family members. They said that on the night of April 6, Ross Minks, the boyfriend of Mariah Coones, Pete’s college-age daughter, was staying over. Pete’s van was parked behind the house and Minks’s van was in the driveway blocking Pete’s van. Minks testified that the keys to his van were in his pocket all night and he didn’t give them to Pete until the next morning. That’s when Pete moved Minks’s van and got his own van out to take his children to school.
Minks and Mariah both testified they were awake, in the living room until about 2:30 or 3 a.m. on the 7th. They said they saw Pete leave his bedroom at 2 or 2:30 a.m. to go to the bathroom. When he came out of the bathroom, he told them not to stay up too late, and then went back to bed.
Minks said that he was sleeping in a bedroom that adjoined Pete’s. Minks said he heard Pete typing on his computer and coughing around 3 a.m.
In addition, Gene Geitzen, a forensic scientist, testified that the velocity of blood spatter found at the scene could not eliminate the possibility that Kathleen took her own life. He also said the prosecution could have tested biological tissue found on Kathleen's ring to determine whether it belonged to her. Furthermore, he testified, the prosecution could have tested the swabs collected from Kathleen’s and Carl’s hands, as well those from the steering wheel of Pete’s van, for gunshot residue.
The prosecutor, Edmund Brancart, argued that Kathleen had no motivation to commit suicide. The facts suggested a murder, he said. There was no suicide note and Kathleen was shot in the back of the head. And he pointed to Kathleen’s call to her mother.
Brancart told the jury that Pete went to the house in the middle of the night and told Kathleen what he was going to do. He then clubbed Carl with a blunt object and shot him twice. Then he shot Kathleen in the back of the head.
On January 23, 2009, the jury convicted Pete of the murder of Kathleen and acquitted him of the murder of Carl. He was sentenced to 50 years to life in prison.
On June 25, 2009, Pete was granted a new trial after the trial court judge ruled that the prosecution had failed to disclose to the defense the results of a forensic analysis of Pete’s computer. The analysis showed that Pete’s computer log on had been accessed and Internet searches were conducted at 1:07 a.m. and 4:51 a.m. The prosecution contended the records were not exculpatory because the shootings occurred around 2:30 a.m. The defense noted that the evidence showed at a minimum that the detective who said that Pete’s van was not at the home at 6 a.m. was mistaken.
In early December, about two weeks before the second trial was to begin, prosecutor Brancart informed Pete’s defense attorney, Patricia Kalb, that there would be another witness. Robert Rupert, who had been in the same jail pod with Pete in Butler County for a brief period during the summer, said that Pete admitted killing Carl and Kathleen. Rupert had given a 27-minute recorded statement.
In the statement, Rupert said that Pete told him that he crawled out a window so no one at the house would know he was leaving. He didn’t drive his van, but instead drove his Jeep, which he used to deliver mail. After the crime, he had his wife sell the Jeep to get rid of it. Rupert said that Pete told him he killed Carl and Kathleen in the same room and left them side-by-side in a laundry or utility room in the back of the house. Rupert ended the taping by saying, “I never asked anybody for leniency whatsoever. I never seeked (sic) anything from anybody.”
The following day, December 3, Brancart emailed Kalb a list of Rupert’s 12 criminal convictions and two arrests.
On December 10, at a hearing on Pete’s case, Brancart said Rupert had sent one letter, which prompted him to reach out to Rupert’s attorney. Brancart said Rupert initially agreed to an interview, but then backed out. “So that terminated it,” Brancart said. But then, in December, after Rupert’s lawyer was unable to strike a deal with the Butler County District Attorney and Rupert’s case was completed, Rupert’s lawyer had given Brancart permission to speak to Rupert.
On December 14, another hearing relating to Rupert was held, during which Brancart said, “I know of no communication with Robert Rupert, period, until December 1st or 2nd, when he was brought here and interviewed.”
A jury was selected and the trial began on December 15. During his opening statement, Brancart said, “Whether [Pete’s grandfather] was happy to provide a few extra gifts to Kathleen or whether she was taking them without permission was an issue that defied clear proof for police.”
This statement, evidence would later show, was just the first of several false statements that Brancart would make during the retrial. In fact, Kansas City police had brought a case of elder abuse to Brancart for charging and he had declined to prosecute it.
Brancart tried to set the stage for the shootings by telling the jury that a “civil court date that would determine the passing of some of the estate approached.” However, there was a mediation, not a court date, that was near; the mediation would not be dispositive unless all parties reached an agreement. Moreover, the civil action was not about the estate—that had already passed to Pete—but addressed whether Kathleen was entitled to any part of a $46,000 life insurance policy.
This trial unfolded much like the first trial. The prosecution contended that because there was no evidence found in Pete’s van that he must have worn gloves.
Under questioning by Brancart, Rupert testified that his Butler County case was over and he was serving his sentence. He also said he was motivated to reach out to authorities because of the severity of the crime—a double murder. Rupert also testified that he first sent a letter to Brancart in August 2009, but that Brancart made no attempt to interview him.
Rupert testified that he shared a cell with Pete in the Butler County Jail, where Pete had been transferred prior to the second trial. Rupert, who was facing a possible 47-month prison sentence, was there when Pete arrived on July 2, 2009. They were in the same pod from July 23 until August 1 when Rupert was transferred out.
Rupert testified similarly to his recorded statement. His testimony did not align, however, with some of the physical evidence, particularly on the location of the bodies. Carl was in bed and Kathleen was in the living room—they were not side-by-side in a utility room in the back of the house.
Rupert also said that Pete drove his Jeep, not the van, and that Pete’s wife sold the Jeep right after the murders. Contradicting that part of the testimony was James Rumley, who said that he bought Pete’s Jeep a year before the shootings. He identified an application for a loan, dated April 6, 2007, that he used to buy the vehicle. Rumley said he used the Jeep every day and he never loaned it to Pete.
Pete’s daughter, Mariah, and her boyfriend, Ross Minks, testified about seeing Pete during the night—at about the same time Kathleen was found dead—and hearing him on his computer. Minks said he gave Pete the keys to Minks’s van in the morning so Pete could get his van out to take his other children to school. And the defense presented the computer records showing he was doing the internet searches.
During closing argument, Brancart contended there was no evidence that Kathleen had a reason to commit suicide. “No evidence suggests that she would have had any motivation other than to do anything to live and keep on living,” Brancart said. Moreover, Brancart argued, Kathleen had not put the gun in her mouth or left a suicide note. He added that she had not called her mother to say goodbye, but to report that Pete had killed Carl and was going to kill Kathleen next.
On December 17, 2009, the jury convicted Pete of first-degree murder. He was sentenced to 50 years to life in prison. His conviction was upheld by the Kansas Supreme Court in December 2014, but the case was remanded for resentencing. His new sentence was 25 years to life.
In the meantime, Branden Bell and his then-law partner, Carl Folsom, had been working on the case since shortly after the second trial. Bell was subsequently joined by attorney Lindsay Runnells and Tricia Bushnell of the Midwest Innocence Project. In 2018, after Wyandotte County District Attorney Mark Dupree established a Conviction Integrity Unit to review possible claims of wrongful conviction, Pete wrote and asked for a reinvestigation.
In October 2020, Pete’s defense team filed 202-page amended motion to vacate his conviction. The motion outlined a litany of evidence that the prosecution had failed to disclose to the defense or that Pete’s defense attorney had failed to discover. In addition, the motion revealed numerous false statements made by Brancart as well as false testimony by Rupert that Brancart knew to be false and failed to correct.
The concealed evidence included:
--Kansas City police had obtained 120 checks written on Pete’s grandfather’s bank account. A handwriting analyst concluded that there was “strong evidence” that 115 of them were forged, likely by Kathleen.
--Kathleen had embezzled more than $11,000 from the credit union where she worked and was going to be confronted by her supervisor on the morning of April 7—just hours after her death.
--Kathleen had claimed to once work at a company that provides assisted living services to the elderly and disabled, but in fact never did.
-- The Butler County District Attorney’s Office had told Brancart that Rupert was unreliable and mentally unstable, that the prosecutors there “hate him,” and that he was “nutty.”
--Rupert asked for a deal from the very beginning. The Butler County District Attorney offered Rupert a deal of 27 months instead of the 47 he was facing, but Rupert rejected it. Brancart then threatened to jail Rupert if he did not cooperate with him.
--Brancart promised that he would intercede with Kansas Department of Corrections officials on Rupert’s behalf. (A year after Pete was convicted, Rupert wrote to Brancart complaining that he had broken the promise.)
--Rupert actually had 28 convictions, many more than the 12 convictions and two arrests that Brancart had disclosed.
--Three letters written by Rupert during which Rupert asked for an attorney to advise him on cooperating, for safeguards if he were to testify, and offered to inform on yet another inmate from whom he had stolen information.
--Rupert had claimed in a letter that Pete told him he used a semi-automatic pistol and that police had found an extra shell casing at the scene. That casing was already in the gun and was automatically ejected when Pete first pulled back the slide to arm the gun, Rupert said. Additionally, Rupert said that Pete told him he had been intercepting the mail of Kathleen’s daughter after the shooting. In fact, the gun found was a revolver. Pete was taken into custody within hours of the shooting and therefore could not have intercepted anyone’s mail.
The motion alleged that Brancart suborned perjury from Rupert when he asked him if there had been any attempt to interview Rupert in August 2009 when Rupert wrote his first letter and up to December when Rupert gave his statement. Rupert said there was not, even though Brancart had called and emailed Rupert’s attorney on August 31, September 4, September 8, September 10 (two emails and a phone call on that day alone) about getting Rupert’s cooperation.
The motion said that Brancart knew that Rupert’s Butler County case was still pending. Nevertheless, he asked him questions as if it were concluded so as to suggest that Rupert was not testifying in an attempt to get leniency.
The motion noted that evidence of Kathleen’s embezzlement and the forged checks had been made part of the record in Pete’s grandfather’s probate case, and therefore Kalb, Pete’s defense attorney, should have been discovered them. In addition, there were numerous witnesses who could have provided information about Kathleen’s embezzlement, forgeries and serious debts, but they were never interviewed. Kalb never hired an investigator.
The defense team also made two startling discoveries. The contents of Kathleen’s purse had never been inventoried by police or examined by Kalb. When the lawyers examined the purse, which was still in evidence, they found it contained copies of 11 checks that had bounced and other evidence showing that she was embezzling. There was evidence of outstanding payday loans, all of which showed that “Kathleen struggled to pay her bills.”
Perhaps most starting, however, was the discovery of a fourth bullet still lodged in the pillow with the stuffing hanging out. The pillow was in evidence as well and when the defense examined it, they found a slug.
Dr. Mitchell, the pathologist who performed the autopsy, was able to review the evidence of the newly-discovered bullet, as well as all the surrounding circumstances of Kathleen’s life. He concluded that the injury to Carl’s head was not a blunt-force injury, but was a graze wound from the bullet found in the pillow. The defense asked Dr. Susan Roe, a pathologist, to review the evidence as well. Dr. Roe concluded that the likely manner of death was suicide. Dr. Roe note that if someone had shot Kathleen from behind, she would have fallen forward or sideways. But her body had fallen backwards, conflicting with someone shooting her from behind.
Dr. Roe also concluded that blood smears and biological material on Kathleen’s right hand likely came from when she shot Carl, the bullet merely grazing him. Then, during a struggle, she shot him twice in the abdomen. Moreover, Dr. Roe noted that Kathleen’s glasses had blood on the front of the lenses, which likely came from when she shot Carl. The blood on the glasses had been noted, but the glasses had been dropped on the floor during the autopsy. They were washed before the blood could be tested.
The motion also noted that the gunshot residue kits were tested as part of the re-investigation of the case. The tests showed no residue on the steering wheel of Pete’s van and that Kathleen had gunshot residue on her left hand, but not on her right hand.
On November 5, 2020, following a hearing on the motion, Wyandotte County District Court Judge Bill Klapper vacated Pete’s conviction. The prosecution dismissed the charge and Pete was released.
In his ruling, Judge Klapper ruled that the prosecution had failed to disclose evidence about Kathleen’s credibility and motive to commit suicide, as well as evidence that impeached Rupert’s testimony. “The State had evidence that Rupert was unreliable. It had evidence Rupert may have had mental health issues. It had evidence that Rupert wanted a deal to testify,” the judge said. The prosecution failed to disclose that Rupert had been threatened with jail if he did not testify. Brancart had said in court that Rupert sent two letters, disclosed three, but failed to disclose three others, the judge said, and also failed to disclose promises to Rupert.
“The State failed to disclose or even come reasonably close to disclosing the full criminal history of Rupert,” Judge Klapper said.
The judge said the discovery of the fourth bullet was significant, but even the prosecution didn’t know it was in its possession. The judge noted that “in the exercise of reasonable investigatory skills, the bullet should have been found.”
Brancart suborned perjury from Rupert, the judge ruled. “The prosecutor indicated he made no effort to interview Rupert after receiving Rupert’s first letter. But he made eight attempts to do so,” Judge Klapper ruled.
Judge Klapper did not rule that Pete’s trial defense attorney’s performance was inadequate. The judge did say that he had “some reservations” about the investigation Kalb conducted relating to Kathleen’s finances and some questions about the failure to find the items in Kathleen’s purse. “However, the Court finds that prosecutorial misconduct was so rife in this case, that [defense] counsel’s performance cannot be fairly evaluated,” Judge Klapper ruled.""
