A Shot in the Arm

A federal appeals court says Darryl Burton might very well be innocent of the 1984 murder of Donald Ball. But there's nothing they can do about it.

"Okay. Gray shirt?" Gonzalez corrected.

"Gray shirt."

Claudex Simmons took the witness stand and told the jury he'd come forward only after he'd "caught a case." Charged with attempted robbery, he'd reached a plea agreement with the state: If he testified against Darryl Burton, he'd get only one year in prison on the robbery charge; if he didn't testify, he'd get three years.

(What Simmons did not tell the jury was that he'd apparently worked a second deal with the state. About a month before Donald Ball's murder, in April 1984, St. Louis County police had arrested Simmons for theft, a charge that for a persistent offender like him carried a fifteen-year sentence. Simmons never mentioned the case when he testified at Burton's trial. But in June 1985, three months after Burton was convicted, the court suspended Simmons' entire sentence and placed him on five years' probation. State courts subsequently found that the proximity of the crimes and Simmons' lenient sentence did not constitute evidence of a secret deal.)

Still, Simmons couldn't keep his story straight. On the stand, he contradicted or repudiated virtually every assertion he'd made to the police.

He had told investgators he'd been coming out of the VW liquor store when he heard three gunshots. But at trial he stated he'd been waiting in line to buy cigarettes at the Amoco station when he saw Donald Ball pull into the lot.

Had he not first told police that he'd heard three shots ring out as he was exiting the liquor store?

"No," said Simmons.

During his second interview with detectives, Simmons had provided investigators with choice details: The killer wore jeans. His hair was in corn rows. He stood over the body, placed the gun in his shirt pocket and ran north onto Goodfellow.

"I didn't say no one was standing over him," Simmons now said during Hirzy's cross-examination.

Had he told police he'd seen the killer put the gun in his shirt pocket?

"No."

"Do you recall telling Detective [Hobbs] that the person who had done the shooting had his hair in corn rows?"

"No. I said he had curls. He might have mistaken it for corn rows."

The blue jeans?

"I said I didn't know what he was wearing."

Darryl Burton's defense consisted of two witnesses: Darryl Burton, who testified that he did not kill Donald Ball and had not been present at the Amoco station on the night of June 4, 1984. And Gregory Hill, a member of the public defender's office who'd taken photographs at the crime scene.


Five months after the trial, locked up at the Missouri State Penitentiary, Burton received an affidavit in the mail.

"I, Claudex Simmons did not witness Darryl Burton murder one Donald Ball," reads the document, dated August 7, 1985. "I submitted perjury testimony to gain immunity, from the herein-mentioned murder of one Donald Ball."

Simmons had recanted with no prompting, but Burton knew that if he was going to collect any other exculpatory evidence, he'd have to do it himself. He soon enrolled in a course for paralegals and began working as his own lawyer, amassing more affidavits and filing judicial motions. Burton's first big break came in 1991, when a woman named Jennifer Shaw signed an affidavit stating she'd been at the Amoco station on the night of the murder. Shaw had known Burton before the shooting. She'd seen the man who shot Donald Ball, and she swore in her affidavit that it was not Darryl Burton.

But the biggest prize came in 2000, when Kansas City attorney Cheryl Pilate and New Jersey-based Centurion Ministries founder Jim McCloskey signed on to Burton's case. At the time Pilate and McCloskey were embroiled in their high-profile bid to free Ellen Reasonover from a wrongful murder conviction in St. Louis County. Burton, they felt, had been dealt a bad hand.

"Darryl's case has all the hallmarks of a wrongful conviction: shoddy police work, no physical evidence, covering up of exculpatory evidence and ineffective defense work," says Pilate, who adds that she gets hundreds of prisoner requests for legal assistance each year. Moreover, says Pilate, "They did not do anything to investigate the most obvious suspect, who was Jesse Watson."

By the time Pilate and McCloskey signed on to Burton's case, he had already assembled a stockpile of affidavits supporting his innocence claim. But working from a prison cell and with little legal training, he'd been hampered in his bid to collect exculpatory evidence. Pilate and McCloskey, on the other hand, were in a position to draw on significant resources: namely, Pilates' firm, Wyrsch Hobbs & Mirakian, and the expertise and staff of McCloskey's nonprofit Centurion Ministries, a group dedicated to freeing the wrongfully convicted.

McCloskey and investigator Daniel Clark soon tracked down two ex-wives of eyewitness Eddie Walker Jr., who, they discovered, had died in 1996. "Unfortunately, Eddie's best friend throughout the years that I knew him was 'the bottle,'" Melvia Washington writes in a February 22, 2001, affidavit. "Eddie was a liar. He was the type of person who could lie against anyone, no matter how serious the situation, if it would serve his own alcoholic purposes."

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