Double Trouble

As kids, Jack Haley Jr. and his cousin John Frank Smith looked more alike than most brothers. And as they grew older, both were of the same height and build and had similar facial features. Both wore their hair short and spiky.

“In the dark, most people would think they was twins,” recalls Jack’s mother, Mary Haley.

Smith was three years younger, but that didn’t stop Haley from being excited to see him when their families got together. Haley remembers trips with his cousins to the Winwood Skate Center and picnics at Budd Park, off St. John Avenue. They were always together for holidays, barbecues and birthday parties — Haley and Smith were both born in June, so they sometimes celebrated together. Over the years, Haley says, Smith and his three sisters would spend weeks at a time in the Haley home.

Haley, who is now 31, lived a few blocks away from Smith and his other cousins until the mid-1980s. That was when Haley’s father started to worry about the crime bleeding into their neighborhood off Independence Avenue in the old Northeast.

Mary and Jack Haley Sr. packed up their two sons and their daughter and moved north of the river, settling in a two-story house off Route 9 in Parkville. But the 15-mile separation didn’t keep Haley and Smith apart for long.

The two were similar in ways other than their looks. Both left school, Haley says, to work at manual-labor jobs. And by their twenties, both had developed a particular fondness for nights on the town. Their lifestyles soon caught up with them.

Haley was arrested twice, earning a year’s probation on a Kansas drunken-driving charge in 1997 and another year’s probation after a fight in a Westport alley in 1998. He says he pleaded guilty to the assault charge because he was finalizing a divorce from his wife of two years and was tired of constantly going to court.

Around that time, Smith moved into a small house on North Jackson Avenue. Later, Smith would tell police that he’d bought a pistol for protection. He was engaged to a woman a couple of years his junior who was pregnant with their first child, he would tell police. Smith took a job at Stuppy Floral in North Kansas City, according to Haley’s father, who had been a salesman at the flower shop for a decade. He got his nephew the job, Haley Sr. says.

Haley made his own living as a painting contractor who bid commercial and residential jobs all over the city — painting the Westport Sun Fresh grocery store and the ceilings at the Isle of Capri casino.

After his divorce and arrests, Haley moved in again with his parents in Parkville. But he would still spend nights out with Smith and their friends from the old neighborhood. As Haley remembers it, the cousins were growing closer than ever.

In September 1999, after living with his parents for six months, Haley decided he was ready to be on his own again. He moved into Smith’s spare bedroom.

“The day he moved out, I said, ‘Jack, don’t move down there,'” Haley Sr. tells the Pitch. The elder Haley knew what kind of fun Haley and Smith liked to have. “He goes, ‘Dad, he’s fine, everything will be all right.'”

Now, Haley’s home is the Western Missouri Correctional Center in Cameron, Missouri, where he’s serving a 27-year sentence. In the prison visiting room, Haley flashes a cold smile. He and his cousin were having the time of their lives, he says, but then everything backfired. A night of Northland partying would end with Haley as the top suspect in a shooting that wounded a bouncer and a bystander at a nightclub. Haley says his look-alike cousin was the triggerman.

Haley has lost his appeals so far. But lawyers with the Midwestern Innocence Project hope to convince the U.S. District Court for Western District of Missouri, which evaluates whether the state system has been fair, that Haley deserves a new trial — one that would make use of DNA evidence that Haley’s first attorney didn’t bother with in his initial trial.

Haley’s is a story about the vagaries of the legal system, to be sure — but it’s also a cautionary tale for reckless partiers all over town. Because when a bouncer gets shot in the darkness outside a rowdy club, anyone might look guilty.

On the night that still haunts him, October 29, 1999, Haley returned to North Jackson Avenue from his painting job and found his brother, Jeff, along with Smith and their friend Shawn Medlock, hanging out in the living room. They were all ready to head out to celebrate a friend’s birthday.

Haley cleaned up while Smith and Medlock sat out on the porch, washing down Xanaxes with Bud Lights. Haley says his cousin was grumbling about problems with his fiancée and looked ready to get drunk and forget about them.

They met up with other friends, including Smith’s sister, and started their night at what was then the Station Casino (now the Ameristar). At 11 p.m., after Haley had gambled away $50 and everyone was buzzed, they headed to the Odyssey, a now-closed club a couple of blocks east of Interstate 29 on Barry Road. As Smith drove his Chevrolet Blazer down Highway 210 at 45 mph, Smith acted like he was invincible, Haley says. To Haley’s surprise, his cousin let go of the steering wheel and started climbing out the driver’s-side window to try to surf on the roof. “All of a sudden, he said, ‘Here, take the wheel,’ and he goes up on the roof,” Haley says. “I slid over into the driver’s seat.”

As he swerved the Blazer back in its lane, Haley says, Smith slipped back through the window into the passenger seat, laughing. Minutes later, they were all sitting at Odyssey’s bar, throwing back more beers. The place was packed with people dressed in Halloween costumes and gyrating on the dance floor.

Haley says a woman approached Smith and asked him to dance. Smith joined her, then Medlock followed. The club was built on several tiers, and Haley says he watched his cousin stumble and fall over one of the ledges. A bouncer saw Smith staggering and cut him off from the bar. Haley says Smith protested — earning all of them an order to leave.

As Haley tells it, he asked Medlock to round up the others while he went to get the Blazer. As he pulled up to the front of the club, Haley says, he saw bouncers on both sides of his cousin, who was hunched over in the doorway. “I ran over to the door and was hollering at them,” Haley recalls. “When I yanked John out, all these people landed on top of me.”

Haley fought for a few seconds, earning a bloody nose and face before bouncers subdued him. The other guys were bleeding, too — Medlock’s hands gashed by a broken bottle; Smith with scrapes on his hands, and his cheeks swollen and scratched. Haley yelled at Smith and Medlock to get into the Blazer, then tried to calm down his brother, Jeff, who was still standing up to the bouncers.

Haley says he was walking back to the Blazer when he heard gunshots. He ducked into the driver’s side, fearing someone was shooting at them. Then, he says, he glanced over and saw Smith holding his handgun out the window. “I thought he shot the gun in the air,” Haley says.

Haley says he punched the Blazer over a concrete parking block and into a field that led to the highway.

While they made their escape, Kenny Grigsby, a bouncer who had helped escort Smith out of the club, was on the ground with two bullets in his chest. Beside Grigsby lay Shawn Mason, who had been shot in the neck.

Both men lived. Mason doesn’t know who shot him. But, Mason tells the Pitch, the bullet that’s still in his neck could paralyze him if he’s jolted a certain way; it’s lodged an eighth of an inch from the nerve that allows him to move both arms. The discomfort from the bullet rubbing against the nerve has never gone away. “Every day, I deal with the pain,” Mason says. Grigsby did not respond to the Pitch‘s request for a comment.

About 10 minutes after speeding away from the Odyssey, Haley saw police lights in his rearview mirror. He stopped near Vivion Road; officers ordered the three men out of the Blazer, cuffed them and took them downtown in separate cars for questioning.

On the drive, Smith told Kansas City, Missouri, Police Department officer Shawn Emerson about the shooting. Emerson would later testify that he warned Smith to keep quiet because he had not been charged with any crime. Smith kept talking, though, and Emerson wrote it all down in an incident report.

“Did I kill anyone?” Smith asked Emerson, according to the officer’s report. “He pushed my little sister to the ground … she’s smaller than me. That’s not right.”

Smith asked whether the police had found his .38 (they had), then tried to justify having pulled the gun: “You’d kill for your family, too…. I did what I had to do. You know what I mean? He shouldn’t have done that. That’s my blood. My family.”

The cops had a gun covered in blood and a man with a motive.

Or so it seemed.

After his escort downtown, Haley says, a detective at the police station told him that Smith had confessed. “I told him, ‘Well, he’s told you what he needs to tell you.'”

Detectives released Haley and Medlock the next morning but kept Smith in custody. When Smith woke up in his jail cell 12 hours after the shooting, he consented to give a videotaped confession without an attorney.

In the video, which was later presented in court, Det. Ronald Russell asks Smith to describe the shooting. Smith acts out the scene with his arm extended as if he has a gun. Speaking in a monotone, he explains how he reached for the .38, stepped out of the Blazer and opened fire at the front door of the Odyssey. “I remember shooting, I don’t know, maybe a couple of shots. I didn’t aim it at nobody, you know? … It’s a mistake, really. I don’t know what I was shooting at, really. I mean, I wasn’t even all there.”

Smith recounts how, over the course of the night, he took three or four Xanaxes and downed a 12-pack of beer. He tells detectives that he frequently kept the pistol under the seat in his Blazer, saying he needed protection for the gold-plated wheels he’d just bought.

Once again, he attempts to justify the shooting: “Basically, I thought maybe that I would just do that to scare ’em, you know? I don’t know. Because after we was leaving, they was coming after us, you know, and he had threw my sister on the ground … what am I supposed to do?”

Smith shrugs. He’s sketchy about some details, such as whether Haley retrieved the Blazer alone. “We was all pretty lit up, for real,” he says. “It was just all a blank. I don’t even know if I was in my right state of mind, I wouldn’t have even did it.”

But even as Smith repeatedly took the blame, police had trouble confirming that he had really been the shooter.

Looking at a photo lineup that included Smith, Haley and Medlock, half a dozen witnesses pointed out Haley as the gunman.

So police let Smith go and continued to investigate.

Ten days later, Det. William Abney called Smith to ask him to come back to the station and talk about his videotaped statement. By then, Smith had apparently sobered up enough to keep his mouth shut.

“He refused,” Abney wrote in a report. “Smith said he did not remember anything about the shooting, being questioned or giving a statement.”

A few weeks later, officers arrested Haley at his parents’ home and booked him into the Platte County jail. He was indicted on two counts of first-degree assault and two counts of armed criminal action.

Haley was looking at a maximum life sentence if convicted at trial, but he says he refused to accept a plea agreement for a crime he didn’t commit.

His three-day trial began on October 10, 2000.

Like many defendants who lose at trial, Haley gripes that he had bad legal representation. But his case really does turn on a question about his attorney’s defense strategy. Namely, whether that attorney should have had the bloody gun tested for Haley’s DNA.

Haley says that Martin Warhurst, the attorney hired by his family, assured him that he could punch holes in the testimony of witnesses. There were too many inconsistencies because of poor lighting outside the club and the chaos after the shots were fired.

In the months leading up to her son’s trial, Mary Haley says, she called Warhurst every day and asked him to have the blood on the gun tested. She says Warhurst remained confident that Smith’s confession and the shaky witnesses were enough to acquit her son. Besides, he warned her, any trace of Haley’s blood on the gun could kill his case.

During the trial, five main witnesses took the stand. Three recalled Haley on the driver’s side digging around for something before they heard shots. Two said they saw Haley firing the gun but testified that the shots had come from the passenger side. One of that pair of witnesses recalled Haley inside the Blazer leaning out the passenger-side window with the gun; the other remembered Haley standing outside the Blazer shooting.

The description of the shooter’s clothing was just as confused. Witnesses had Haley bare-chested or wearing a dark T-shirt — or a St. Louis Cardinals baseball jersey, which Smith had worn that night.

The lead prosecutor for the case was David Ketchmark, an assistant attorney for Platte County who is now a federal prosecutor. He says the most damning testimony came from Kenny Grigsby, the injured bouncer, who described a tattoo on Haley’s right forearm. At Ketchmark’s instruction, Haley stood and showed the jury the tattoo that Grigsby had described.

Another bouncer working on the night of the shooting, Troy Dexter, contradicted Grigsby’s testimony. He recalled the shooter as the man escorted out of the bar with tattoos on his upper torso — a description that implicated Smith. “There’s one thing that will never leave my mind, probably for the rest of my life, and that’s the face of the person who shot the gun,” Dexter testified. Asked if he remembered the patron who had been kicked out, Dexter said, “Looks like this gentleman right here” — and pointed to Haley.

Jurors saw for themselves how similar Haley and Smith looked when Smith took the stand.

Questioned by Warhurst, Smith confirmed that police officers came to his house carrying a warrant for Haley’s arrest and a photograph of Haley to help identify him. Based on the photograph, the cops thought Smith, who answered the door, was Haley. Officers cuffed him; they released him only after he produced his driver’s license.

But prosecutors zeroed in on more confusing aspects of the crime. Ketchmark’s wife, Roseann (also now a federal prosecutor), was co-counsel in the prosecution. Questioning Smith, she walked him through the night.

“Why should we believe you that you didn’t shoot someone if you don’t know what happened?” she asked.

“Because I know I didn’t shoot anyone.”

She then showed the videotaped confession. “I can’t deny that it was me because that’s me on the tape,” Smith said. “But whatever I said on there, I know I didn’t do that.”

Then she asked Smith to roll up both of his sleeves to show the jury there was no tattoo on either of his forearms.

David Ketchmark argued in court that Smith’s mind was filled with too many blanks in his videotaped recollection of the crime. Ketchmark tells the Pitch he has two theories why Smith would confess to a crime he didn’t commit.

First, he suggests, Haley made Smith feel guilty for having had Haley bail him out of the fight. It’s possible that Haley demanded Smith take the fall and that Smith agreed, Ketchmark says.

Second: Smith was so out of it, in a dreamlike state from Xanax and alcohol, that Haley could have convinced him that he’d been the shooter by continually putting the thought in Smith’s head before the police stopped him.

The question of whether Haley’s DNA was on the gun did come up in court — but not prominently until Warhurst’s closing argument, when he blamed police for not testing the gun themselves. “There is some sloppy police work here,” Warhurst told the jury. “There was no DNA testing on the blood. John Frank Smith had blood on his hands, and there was blood on the gun. And they [investigators] could have tested that blood to find out whose blood it was…. One person and only one person knows who fired, for sure, who fired that shot, and he told you he did it, and he told you why he did it…. Smith has blood on his gun and blood on his hands. He’s got two victims already. Don’t add Jack to his list of victims.”

It took the jury 10 hours to find Haley guilty on all counts.

Platte County Circuit Court Judge Owens Lee Hull sentenced Haley to 27 years.

After Haley was bused to prison, the Haley family hired Mike Sanders, who is now the Jackson County prosecutor but was then in private practice, to review the case. Sanders took Haley’s first appeal to the Western Division of the Missouri Court of Appeals, where he argued — unsuccessfully — that Haley hadn’t received a fair trial.

Sanders continued working on the case for a year and a half before he was nominated to run for Jackson County prosecutor. Preoccupied with that campaign, Sanders handed Haley’s files to Jonathan Laurans.

Laurans moved into the next phase of appeals — if he could prove that Haley’s DNA was not on the gun, the court might grant a new trial.

He investigated whether Warhurst should have had DNA tests run before the trial. The question before the three-judge appeals panel wasn’t whether Haley deserved a new trial based on new evidence. Rather, Haley’s fate turned on a question of courtroom strategy: Had Warhurst, by not having the gun tested for DNA, demonstrated incompetence in his representation of Haley?

On April 1, 2003, after repeated motions, the court allowed Laurans to have the gun tested.

According to the lab, Technical Associates Inc. in Ventura, California, Haley’s blood was not on the gun.

Laurans tells the Pitch he was certain that the new evidence was enough to set Haley free or get him another chance in court, but the appeals judges were not swayed.

“Warhurst recalled discussing with Haley whether to test the gun for fingerprints, but he decided not to pursue the issue because Haley had acknowledged handling the gun in the hours preceding the shooting incident,” the judges wrote in their ruling this past March. “Warhurst hoped to avoid developing any evidence that might indicate the gun was ever in Haley’s hand.

“The motion court found that it was reasonable trial strategy not to conduct DNA testing on the bloodstained gun, because all three men in the car had been bloodied during the nightclub brawl and the test might have produced an unfavorable result for Haley,” the judges continued. “The court noted that the absence of DNA testing allowed counsel [Warhurst] to argue the blood belonged to someone else and that police had poorly investigated the case by not conducting the testing themselves…. In assessing counsel’s performance, we are to refrain from using hindsight to second-guess decisions of trial strategy.”

The court also concluded that any DNA evidence would not have exonerated Haley because of the witnesses who had identified him as the gunman.

“I was floored,” Laurans says. He points out that, under Missouri law, Warhurst would not have had to reveal the results of the DNA test if it had shown that Haley had handled the gun. (The law is written that way to encourage defense attorneys to conduct thorough investigations of their own, Laurans argues.) Haley should be awarded a new trial based on that fact alone, Laurans says.

Moreover, some experts say, a conviction relying so heavily on witness testimony is highly suspect.

People who witness violent crimes have unreliable memories, says Gary Wells, a psychology professor at Iowa State University who has spent 30 years studying police lineups. Wells has published more than 150 articles about witnesses and has worked on 300 cases involving such testimony; police departments across the country consult him on how to obtain more reliable information from witnesses.

Of the 163 prisoners he knows to have been exonerated, he says, nearly 80 percent had been wrongfully convicted because witnesses mistook them for the real perpetrators. He says he has simulated crimes in front of groups of 100 people, as many as 60 percent of whom picked out the same wrong person. People duck for cover, become confused or have false perceptions of what’s really going on, he says. They may point out one person when they saw another; some even mistake an innocent bystander for the suspect.

Still, he says, it will be difficult to get Haley’s case overturned. Regardless of whose blood is on the gun (if any blood is present), Wells says, anyone could have been the shooter.

“Once you’re convicted, it’s final,” Wells says. “You’ve got these appeals, but the appeals don’t really work unless one has a very clear case that there was a violation of due process…. I think that it’s a big guessing game here on the part of the court on whether the jury would have rendered the same verdict if the blood evidence pointed to another person,” he says.

Still, Haley has convinced one more attorney to take a shot at that guessing game.

This summer, he sent a letter to a group of University of Missouri-Kansas City law students who review cases for the Midwestern Innocence Project, which takes the cases of convicted criminals when there is considerable doubt about their verdicts.

Inaugurated in 2000, the Midwestern Innocence Project has collected thousands of appeals from prisoners in seven states around the Midwest. The organization is modeled after the Innocence Project, which was founded in 1992 by civil rights lawyers Barry Scheck and Peter Neufeld in New York; the goal of both groups is to exonerate prisoners after DNA evidence surfaces. But, the New York group’s literature cautions, “The Project only handles cases where post-conviction DNA testing can yield conclusive proof of innocence.” As of November, the New York group had cleared 163 wrongfully convicted men and women in its 13-year existence.

The Midwestern Innocence Project has yet to free a prisoner; seven cases are still pending.

It took only a glance through Haley’s files for Phil Gibson, who until recently was the director of the Midwestern Innocence Project, to conclude that Haley was probably not the shooter.

In the coming months, lawyers with the group will file a motion in federal court to set Haley free. If that effort fails, they plan to ask the Missouri Supreme Court to grant Haley a new trial.

“We are continuing to work on Jack’s case,” says Ken Miller, executive director of the Missouri Innocence Project.

At Smith’s home in late October, his wife answers the door, cradling a newborn in her arms. She says Smith isn’t home, that he’s working at a new job.

“He still loves his cousin,” is all she says about her husband.

Smith did not respond to the Pitch‘s requests for comment.

Haley is due to go before the parole board in 2011, but he knows he’ll have to admit to the shooting if he wants to be released.

“I could never admit to something that I didn’t do,” he says. “I’m just going to go up there and sit there.”

He accepts the fact that he was at fault that night, too. Haley admits that he deserves to be punished.

“I could have done some things different,” Haley tells the Pitch.

“Every day, I wake up, I run everything from the beginning. I go through everything. I start from the day this all happened, and I go through every day on into the present. I try not to do it, but it’s just something that happens. I rewind to 1999, October, that night, and play it all through my head, all day long. I just keep trying to figure out, what am I going to do to fix this?”