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.

By the time the third bullet reached Donald Ball's heart, he was facedown and bleeding into the asphalt. Moments earlier, Ball -- a pusher, a pimp, a hustler -- had navigated his green Oldsmobile Ninety-Eight into the Amoco gas station at the corner of Goodfellow and Delmar boulevards. It was a pleasant late-spring evening in 1984, and though summer's heat had begun to swell, Ball dressed nattily in a gray sweater, pinstripe vest and matching slacks.

Known on the street as "Moe," Donald Ball was a notorious neighborhood gangster. He ordered hits, ran women and ruled his street fiefdom with cold-blooded flair. At the tender age of 26, Ball was already embroiled in a turf war with Jesse Watson, another of the city's would-be warlords. The battle had raged for the better part of two years, and it had cost him: One year earlier, Watson had walked up on him at this same intersection and put a slug in his right shoulder. The bullet had withered Ball's right arm, and on the night of June 4, 1984, he struggled to insert the gas pump's nozzle into his car's tank.

It was about 9:45, and the vapor-lit filling station was busy with its usual mix of paying customers and loafing drunks come to drink a pint along the wall of the abutting VW liquor store. Ball prepaid for $8 worth of gasoline. But as he filled his tank, a man silently approached and fired a bullet through Ball's right arm. Ball turned. He broke into a run. He circled the cashier's island and headed north. Running and firing, his attacker gave chase. Ball sprinted past the cashier's island, past pumps, customers and cars, but as he reached the lot's northern end, a shot to the right thigh brought him down.

As Ball lay on the ground, the gunman fired his fatal shot. Entering Ball's lower back, the bullet moved left to right and upward, tearing through his eleventh rib, piercing the spleen, passing through the stomach and diaphragm before puncturing Ball's heart and exiting beneath the fifth rib. The copper-jacketed slug eventually came to rest on the pavement, a few feet to the right of Ball's dying body.

The nightmare of Donald Ball's death was over. Meanwhile, another nightmare was about to begin. Two days into the murder investigation, a witness came forward and told St. Louis homicide detectives he knew the killer. A few days after that, a second witness identified the same man. The killer, they alleged, was Darryl Burton, a local kid out on parole after serving half of a two-year robbery sentence at Algoa Correctional Center in Jefferson City.

Police arrested Burton on June 28, 1984. After a two-day trial the following spring, it took a St. Louis jury less than one hour to find him guilty of capital murder and armed criminal action. Circuit Judge Jack L. Koehr sentenced Burton, then 23 years old, to life in prison.

Burton pleaded not-guilty at his trial, a claim he has maintained for the past twenty years. This is nothing new; like many of the estimated 100,000 inmates in the Missouri prison system, Burton has spent the bulk of his confinement peppering state and federal courts with claims of innocence. But while most such claims are deemed without merit, Burton was granted a hearing before a federal appeals court.

Like other prisoners, he had been emboldened by the recent wave of high-profile exonerations based on DNA and other evidence. Over the past two decades, Burton had marshaled what amounts to a small library of affidavits supporting his innocence claim. One state witness recanted. Other witnesses stepped forward to contradict earlier eyewitness testimony and point the finger of guilt at the person they believe is the culprit. But in Burton's case, there was virtually no physical evidence, let alone DNA. And owing to a 1996 statute, federal appeals courts are finding that they often must deny a prisoner's appeal, even if new evidence points to his innocence.

And indeed, in 2002 the appeals court rejected Burton's petition. The resulting opinion, legal scholars say, is notable only for its candor:

"One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom," wrote Eighth Circuit Judge Kermit Bye. "A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton's claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton's legal claims permit him no relief, even as the facts suggest he may well be innocent."


When St. Louis police sergeant Edward Robinson pulled his cruiser onto the Amoco lot the night of June 4, 1984, the milling crowd didn't give him much to work with: One witness had seen a group of men fleeing in a rusted-out brown Buick a block north on Enright Avenue. Another had seen two men jump into a green Chevy parked across Goodfellow. Though detectives interviewed many of the witnesses clustered around the body, none could identify the killer as anything but a "light-skinned" black man with a short Afro who wore a yellow shirt and khaki trousers. While scouring the crime scene, police came upon the one piece of physical evidence they'd produce at trial: the copper-jacketed bullet that lay a few feet from Ball's corpse.

When Ball's cousin, Cynthia Whitfield, arrived at the filling station to identify the body, police picked up another lead. She told a detective that one year earlier a man named Jesse Watson had tried to kill Ball at this very spot. Watson had skipped town after the shooting, she said, but had recently returned. Word was he'd been threatening to finish the job. The story would be repeated to homicide detectives the next day by Cynthia's mother, Brenda Whitfield.

Two days after the murder, police sergeant Herbert Riley was flagged down by a low-level informant he'd cultivated for years. According to Riley's report, which names the informant only by his handle, "Tampa Red," the snitch was accompanied by Eddie Walker Jr., a heavy-drinking National Guardsman who'd recently returned from duty in Panama. Walker told the sergeant that on the night of the shooting he'd been drinking gin outside VW and had seen Ball pull onto the lot. He'd seen the attacker cross from the south side of Delmar, chase down Ball and shoot him. Walker went so far as to describe the killer's getaway car in specific detail. It was, he said, a blue 1976 Buick.

But there was more. Walker said he could identify the killer: He'd known him for ten years. He also was willing to testify.

The next day detective Stephen Hobbs contacted Claudex Simmons, who flipped burgers at a McDonald's restaurant across Delmar from the Amoco station. Simmons told the detective that on the night of the murder he'd stopped at VW after work to buy rum and Coke. As he left the store, he said, he'd heard three gunshots. But that was it: He hadn't seen the assailant.

At age 24, Claudex Simmons was a petty thief who'd racked up multiple felonies. Months earlier he'd been released from Algoa Correctional Center, where he'd served time with Darryl Burton. And on June 11, 1984 -- four days after his initial interview with police -- he was back in jail on an attempted-robbery charge.

Simmons asked to speak to someone from Homicide: He wanted to talk about the murder of Donald Ball.

While in custody, Simmons told investigators a new story. He said he'd seen Donald Ball flee his killer on the night of the murder. He'd seen Ball fall to the ground. He'd seen Ball's assailant -- wearing blue jeans, his hair in cornrows -- stand over the victim, put the handgun in his shirt pocket and run north onto Goodfellow.

After viewing a series of photographs, Simmons identified the same man Eddie Walker had a few days earlier: Darryl Burton.


The trial of Darryl Burton began on March 25, 1985. Poorly attended and with scant press, the two-day proceeding offered little in the way of rhetorical flourish. With bland tenacity, Assistant Circuit Attorney Anthony Gonzalez trotted out a series of witnesses who were unable to link Burton to the murder. Some had heard shots but had not seen the killer. Others had seen the shooter but, like eyewitness Carolyn Linsay, could recall only that the killer "was wearing a pale yellow T-shirt and a pair of khaki pants." Gonzalez offered only a single piece of physical evidence: the copper-jacketed slug.

It was not until the state called Eddie Walker Jr. that the prosecution produced a witness who could positively identify Burton as the killer. The National Guardsman had initially told investigators that on the night of the murder he'd been sipping a half-pint of gin outside VW with a man named "Jessie." Walker told police he'd known the man for nearly five years, but didn't know his last name.

That wasn't the only hole in Eddie Walker's story. In the police report and at trial, Sergeant Herbert Riley stated that he met Walker through the informant "Tampa Red." During his deposition, Walker had flatly denied knowing anyone by the name "Tampa Red." But he revised his story at trial. "Well, I didn't know Tampa Red, but we had another name for him," Walker testified when asked who had introduced him to police. "We used to call him 'Blue-Eyed Soul Brother.'"

During his initial interview with police, Walker told investigators he'd seen the murderer cross Delmar from the south. He also stated that he'd seen the killer chase down Ball and shoot him. At trial, however, Walker's story shifted. "Do you recall telling detective Riley that the person who did this shooting walked from the south side of Delmar?" asked public defender Dorothy Hirzy during cross-examination.

"No, I did not tell him that," said Walker, testifying now that he'd become aware of the melee only when he heard gunshots.

Hirzy pressed Walker, asking the witness if he remembered telling Riley he'd seen the killer approach, shoot Ball and flee in a blue 1976 Buick.

"No, I didn't say that," Walker responded.

Instead Walker now testified that he'd been drinking near the liquor store. His back had been to the parking lot when he heard the shots. The murderer had fled on foot, he said, running west on Delmar.

When the prosecutor asked him to identify Darryl Burton in the courtroom by describing his clothes, Walker said, "He's wearing a blue jacket, blue shirt."

"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."

Mary Alice Brown, who was married to Walker from 1965 to 1971, offered a similar assessment. "In addition to being a drunk, Eddie had bad eyes. He wore glasses, but most of the time he didn't use them. If what he was looking at wasn't up close, he couldn't see it," Brown writes in her affidavit, dated the same day as Washington's. "Eddie was a meek man. He was not a strong person. He was the type of person who could easily be led saying something that wasn't true."

McCloskey and Clark also located Danny Pennington, who had lived with Walker at the time of Donald Ball's murder. In a May 3, 2001, affidavit, Pennington recalls that on the night of the murder he and Walker had set out on foot for the VW liquor store when they ran into a neighbor, Freddie Gates, and stopped under "an old shade tree" to chat.

"Suddenly, we heard shots," Pennington states in his affidavit. "[We] trotted toward the alley in between Freddie's back yard and the Amoco station and peeked around the corner, because the old wooden fence was so tall we could not see across the fence into the station lot."

Peering around the fence, Pennington recalls, the men witnessed a commotion on the lot. Soon afterward, he and Walker continued on their way to the liquor store. "Eddie Walker never told me that he had talked to any police officers, had identified anyone as the shooter, and never told me that he had testified in a murder trial," Pennington states. "If Eddie Walker said that he saw the shooting and could identify the shooter that night, he was lying. It is physically impossible for any of us to see the lot and the area of the shooting from where we were standing."

Rounding out his investigation of Eddie Walker, McCloskey finally found the street informant known as Tampa Red. "Police Detective Riley's police report has been read to me, about introducing Eddie Walker to Riley," reads a May 2, 2001 affidavit signed by Lester Jackson White, a.k.a. Tampa Red. "I do not remember anyone in the neighborhood by the name of Eddie Walker. I have seen a photo of Eddie Walker and I do not recognize the face of that person."

The state never produced any physical evidence linking Darryl Burton to the murder; the prosecution's case had rested entirely on the eyewitness testimonies of Claudex Simmons and Eddie Walker. Now the former had recanted and admitted perjury, while the latter's character, credibility and eyewitness testimony had been impugned by those who knew him well.

Only the mystery of Jesse Watson remained.

Watson's specter had hung over Darryl Burton's trial and confinement. Eddie Walker testified that he'd been drinking outside the liquor store with a man named "Jessie," whose last name he didn't know. When public defender Dorothy Hirzy asked whether he might be referring to "Jessie [sic] Watson," Walker replied: "I don't know Jessie's last name. I couldn't say."

Watson's name came up one other time during the trial. In a sidebar discussion before closing arguments, prosecutor Anthony Gonzalez asked that Hirzy be prevented from bringing up the fact that Jesse Watson had, at the very same Amoco station one year before the murder, shot Donald Ball in the right arm. "I don't intend to bring up the fact that Jessie Watkins [sic] shot this man before," replied Hirzy. "I have no intention of mentioning that."

Now McCloskey and Clark had obtained an affidavit from Michael Smith, at the time an inmate at Potosi Correctional Institution. "I have known Jesse Watson my whole life. Jesse and I were like brothers. He and I were raised together in the same neighborhood, and were constant companions until he was killed on June 26, 1986," reads Smith's affidavit, signed February 23, 2001. "When 'Moe' (Donald Ball) was shot to death, I was doing time in Federal Prison. One of the first people that I saw when I was released in February 1985 was my 'brother', Jesse Watson. Jesse told me he killed Moe. He said he ran up on him and shot him dead."

That same day, the investigators obtained another affidavit, this one from Warren Hentley, an inmate at the Eastern Missouri Correctional Center: "Jesse [Watson] personally told me that he shot and killed Donald Ball. When Donald Ball was shot to death on the gas station lot in June, 1984, I was in a St. Louis City Halfway house. Shortly after my release, I visited Jesse Watson. It was during this visit that Jesse Watson told me that 'I got that nigger, Moe. He's dead.'"


Known in judicial circles as "the great writ of liberty," the writ of habeas corpus dates back to England and the Habeas Corpus Act of 1679. Translated literally as "you have the body," federal habeas corpus has long been the final stop on a prisoner's quest for judicial relief. Its sole function is to determine whether a prisoner's constitutional rights were violated during trial.

As one of the many "fail safes" built into the judicial system, federal habeas corpus is available only after all state court remedies have been exhausted. But while the bar for granting the writ has always been exceedingly high -- the federal court will not consider new exculpatory evidence until the prisoner proves that but for constitutional error, no reasonable jurist would have found him guilty -- the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), signed into law by President Bill Clinton, raised that bar significantly higher.

The 1996 statute mandates a "presumption of correctness" regarding state court rulings on constitutional matters. As a result, federal courts may overturn a state court's constitutional ruling only if it involved "a decision that was contrary to, or involved an unreasonable application of" constitutional law.

"Previously, it wasn't whether this guy was 'reasonable,' it was a question of whether this is the way the Constitution is supposed to work," says Michael Gross, a Clayton-based attorney who handles federal habeas corpus petitions. "As long as [the state courts] are somewhere on the spectrum of where a reasonable person might come out, the ruling will be upheld -- even if a federal judge says, 'Good God, I never would have ruled that way.'"

Many attorneys on the other side of the bench, meanwhile, view AEDPA as a necessary obstacle to prevent frivolous claims from clogging the judicial system. Finality of judgment is in the interest of victims' families, they argue. And a retrial -- costly and often held years after the original crime -- puts the state at a severe disadvantage.

"I do not think the belief needs to be there that only the federal courts can do justice," says Deborah Daniels, chief counsel of the criminal division for Missouri Attorney General Jay Nixon. "Perhaps the federal system is saying: 'Okay, state courts, you have more responsibility from a constitutional standpoint.'"

The 1996 statute affected the federal habeas corpus appeals process in other ways as well. Prisoners, for instance, no longer may delay their execution dates by applying for successive hearings before federal courts. Additionally, there's a strict statute of limitations on prisoners' claims, speeding up the process.

"The motivation was to get more people executed faster," asserts Daniel Filler, a professor of law at the University of Alabama. "Habeas is filled with land mines. It takes the very, very best lawyers to do good jobs in habeas. It takes lawyers who are incredibly detail-orientated, incredibly sophisticated, who are conscious of one hundred different mechanisms moving at slightly different rates. It's like a huge complicated machine, and you have to make sure everything is in synch."

But the new law has also had a profound effect on cases that don't involve capital punishment, says Kevin Curran, an assistant federal public defender in St. Louis. Curran estimates that Missouri courts handle roughly 65,000 cases annually. Of those, he says, perhaps 40 involve the death penalty. "It's a statistically irrelevant portion of what were dealing with in the criminal justice system," Curran says. "But it's changed markedly these habeas corpus rights that the country has historically had -- solely to hasten executions. It's the tail wagging the dog."

Add to that the introduction of DNA testing, and the bar is further raised for inmates like Darryl Burton, who are not facing the death penalty and had no biological material allegedly linking them to a crime.

"The problem with DNA is that while it's a wonderful thing in the cases where it exists, it's become a sort of gold standard," says Cheryl Pilate. "If you don't have DNA, it's really hard to show innocence, because people have come to expect some kind of iron-clad evidence that no one can dispute."

To compound matters, Missouri law makes it extremely difficult to introduce new evidence of innocence after a case has been tried. Only evidence that "completely exonerates" a prisoner may be admitted, and federal appeals courts admit only evidence already considered by state courts.

As convincing as Darryl Burton's affidavits may be, many of them appeared late in the game, and state courts have repeatedly affirmed the trial court's original ruling.

"By the time we got to federal court, there was very little by way of preserved claims for us to work with," Pilate explains.

That left Burton with the one claim that can trump all procedural stumbling blocks: actual innocence.

Simple as it sounds, in the tortured language of constitutional law the term "actual innocence" is fraught with meaning. It is the Hail Mary of federal jurisprudence: If a claim is successful, the court must either grant the prisoner immediate relief or allow into the proceeding evidence that earlier had been barred by the state courts.

For Burton's claim, Pilate prepared a 62-page brief detailing his many supporting affidavits. The legal team was banking on a passage from a 1993 U.S. Supreme Court ruling in the case of Herrerav. Collins, in which Chief Justice William Rehnquist wrote: "In a capital case, a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief."

Nonetheless, in considering Burton's petition the Eighth Circuit panel relied on its own narrower interpretation of the Herreradecision, rendered in a 1996 ruling. In that decision the court deemed that claims of actual innocence based on new evidence did not merit habeas relief unless a defendant's constitutional rights had been violated. The appellate court now ruled that Burton's new affidavits didn't alter the fact that no constitutional violation had occurred during his trial.

But in crafting the panel's unanimous opinion in Burton v. Dormire, federal judge Kermit Bye did not conceal his distress at turning down the plea.

"Burton's habeas petition troubles us because his legal claims do not provide him an adequate foundation upon which to present his considerable claims of factual innocence," Bye writes. "Though our jurisprudence offers Burton no relief, we express hope that the state of Missouri may provide a forum (either judicial or executive) in which to consider the mounting evidence that Burton's conviction was procured by perjured or flawed eyewitness testimony. In the final analysis, Burton may well be guilty, but the new evidence he has unearthed suggests his case at least deserves a second look."


"That's the hardest denial opinion I've ever received, and I've received many denials," Darryl Burton says. "It was the hardest because they saw it. It was crystal clear. They actually recognized the actual claims of innocence. And they wouldn't do anything. They just passed the buck. It's heartbreaking, man."

Burton sits in a starkly furnished interview room in the newly constructed Jefferson City Correctional Center. Dark-skinned and small in stature, he has grown muscular behind the razor wire and timed locks of his confinement. His head is shaved bald. Aside from large, gold-rimmed glasses and a tiny pin proclaiming "Jesus Is Love," he is dressed simply, in gray sweatpants and a maroon sweatshirt. Though it's midday, you'd never know it from the cinderblock, fluorescent-illuminated surroundings. Save for a Formica desk, two chairs and an aging desktop computer, the room is unadorned. Two guards wait outside.

"For the life of me I can't understand this opinion," Burton says. "It moved me to tears. It crushed me."

Even so, Burton takes solace in the story of Joseph Amrine, a man wrongfully convicted who was denied federal habeas relief but was later granted his freedom by Missouri's supreme court. "I'd like to get out there with Joe Amrine," he says. "That's great."

Toward that end, along with attorney Cheryl Pilate and investigator Jim McCloskey, Burton is preparing to file a petition for a writ of habeas corpus in Cole County. The strategy, Pilate says, is to start small and try once more to build the factual record in state court.

"I'm hoping that this is Darryl's year," Pilate says. "There is no reliable evidence of guilt left -- none."

Show Pages
 
My Voice Nation Help
0 comments
 
Loading...