Originally published by Kansas Reflector on March 17, 2021:
TOPEKA — Melody Bitzer and two of her brothers shared deeply personal appeals for judicial reform on behalf of their father — designated for a dozen years as No. 93985 — because that former prison inmate can no longer speak for himself.
Olin “Pete” Coones’ voice fell silent when he succumbed to cancer in February, a little more than three months after regaining freedom. He was wrongfully convicted in Wyandotte County of first-degree murder and sentenced to life in prison. It took until November for a judge to order release of Coones after determining the prosecution suborned perjury and failed to disclose unreliability of a jailhouse informant who sealed the mail carrier’s fate back in 2009.
Coones was driving two of his kids, Melody and Ben, to a school bus stop on April 7, 2008, when law enforcement officers blocked the road and arrested the father in the shooting death of Kathy and Carl Schroll. In the years since, evidence has pointed to a murder-suicide perpetrated by Kathy Schroll as a facade concealing her financial fraud began crumbling.
“Fourteen,” Bitzer told members of the House Judiciary Committee on Tuesday. “That’s the age I was the day my family was torn apart. Twenty-seven. The age I was when the truth was finally released to the public. One-hundred-eight. The number of days my father was allowed to be the free, innocent man that he was before the cancer that went undiagnosed and untreated during his wrongful incarceration took his life permanently. That brings me to number 2366.”
Had provisions of House Bill 2366 been in place almost 13 years ago, she speculated, perhaps her father wouldn’t have been victimized by Wyandottee County prosecutor Ed Brancart, who violated ethical standards at that trial. Brancart now serves as a deputy attorney general in the office of Attorney General Derek Schmidt in Kansas.
Or, Bitzer theorized, her father might not have been undermined at trial by Robert Rupert, the jailhouse informant pressured to testify against Coones despite a Butler County prosecutor’s report that Rupert had credibility problems and was viewed as “not reliable at all.”
“I have to admit, it makes me quite angry,” Bitzer said. “Angry that lies are valued higher than the truth. Angry that an untrustworthy so-called ‘witness’ and a selfish DA used immoral practices and lies in order to win at the expense of an innocent man’s life. I’m angry that there is still nothing in place to protect innocent people from this happening over and over and over again.”
Brothers Quinn Coones and Ben Coones offered powerful testimony about the fracturing of a family caused by the legal system’s corruption, misconduct and lies. They shared their father’s wish that their misfortune be relied upon to convince the Kansas Legislature and Gov. Laura Kelly to place into law a regulatory approach that brought order, transparency and integrity to the use of testimony by jail or prison inmates.
“The course of history can be altered by the words of a single individual,” Ben Coones said. “In our case the lies spoken against my father left a legacy of pain and suffering that no longer has a chance to be corrected. If there is any possibility for a positive impact and lesson that could be learned from our story, it would be to honor my father’s wishes.”
The reform bill
Under House Bill 2366, a new process would exist when a prosecutor weighed use of jailhouse witnesses claiming insight into statements by a suspect or defendant. Prosecutors would have to share with defense lawyers the criminal history of jailhouse witnesses, including any pending or dismissed criminal charges. Disclosures also would include cooperation agreements, the substance of statements given, information about recantations by the witness of prior testimony or statements, and information from other criminal cases when the witness testified.
In cases of rape or murder, the district court would conduct a pre-trial hearing to determine whether testimony of a jailhouse witness was reliable based on specificity of the testimony, extent of details known only to the perpetrator and circumstances under which the witness provided information to prosecutors. That process would resemble the court’s vetting of expert witnesses.
Prosecuting attorneys would have to maintain a central record containing all testimony provided by jailhouse witnesses and any benefit requested or provided witnesses. The Kansas Bureau of Investigation would maintain a statewide database on information about jailhouse witness testimony that would be accessible to prosecutors, but not considered a public record.
Victims connected to a criminal prosecution would be informed if a jailhouse witness received any benefit for testimony against a defendant. Juries also would be instructed that a witness was incarcerated and was to be given a deal for cooperating.
The House committee didn’t take action on the bill, which attacted no opposition testimony. A similar bill was introduced in the 2020 session, but skepticism emerged as to whether bogus jailhouse testimony was a problem in Kansas.
This bill follows a series of Kansas reform measures aimed at addressing eyewitness identification testimony, exoneree compensation and recording of interrogations by law enforcement.
Tricia Rojo Bushnell, executive director of the Midwest Innocence Project, which works to exonerate individuals convicted of crimes they did not commit in Kansas, Missouri, Iowa, Nebraska and Arkansas, and to enact policies to prevent wrongful convictions. Midwest Innocence Project has collaborated to represent exonerees Floyd Bledsoe, Richard Jones, Lamonte McIntyre and Coones.
She said that without regulation jailhouse informants would continue to accept incentives to lie about other incarcerated people in exchange for leniency in their own cases with little risk of being charged with perjury if the testimony was proven false. A prosecutor dangling leniency in front of a suspect or person awaiting sentencing is a powerful force, she said.
“The unjust results of those risks are also well documented,” Bushnell said. “Jailhouse witnesses have played a role in wrongfully convicting 200 innocent Americans since 1989, including here in Kansas.”
Elizabeth Powers, representing the national-level Innocence Project, said adoption of the legislation would improve public safety, reduce appeals and bring greater transparency to trials. Testimony leading to wrongful convictions denies justice to crime victims who learn the wrong person was held responsible and to the victims of a jailhouse witness who discover their perpetrator was rewarded by offering testimony in an unrelated case, she said.
“This legislation doesn’t stop the use of jailhouse witnesses,” Powers said. “It simply implements safeguards and transparency surrounding their testimony to help prevent wrongful convictions.”
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