A Uniquely Dispositive Power: How Postconviction Dna Testing Impeached Accomplice Testimony, Implicated a Lone Killer, and Exonerated the Beatrice Six

• Publication year: 2022

42 Creighton L. Rev. 549. A UNIQUELY DISPOSITIVE POWER: HOW POSTCONVICTION DNA TESTING IMPEACHED ACCOMPLICE TESTIMONY, IMPLICATED A LONE KILLER, AND EXONERATED THE BEATRICE SIX

Creighton Law Review

Vol. 42

Jeanne A. Burke (fn)

Scott Mertz (fn)

I. INTRODUCTION

On January 26, 2009, the Nebraska Board of Pardons granted full pardons to five individuals after the State of Nebraska ("State") declared those five individuals absolutely innocent of any involvement in the 1985 rape and murder of Helen Wilson.(fn1) Three months earlier, the District Court of Jefferson County exonerated a sixth individual by vacating his criminal conviction, granting him a new trial, and subsequently granting the State's motion to dismiss the first degree murder charge against him.(fn2) By the time they were exonerated, these six individuals, commonly referred to as "The Beatrice Six" because the grisly murder occurred in Beatrice, Nebraska, had collectively served nearly seventy years in prison.(fn3) DNA testing performed in 2008 on preserved biological material recovered from the crime scene proved, beyond all doubt, that none of the Beatrice Six had been involved in the Wilson rape and murder, even though three of the six individuals had testified to aiding and abetting in or witnessing the murder.(fn4)

The State wrongfully convicted the Beatrice Six with fabricated accomplice testimony obtained through questionable interrogation tactics, discredited psychological techniques, and contingent plea agreements promising leniency in the form of lesser charges and reduced sentences.(fn5) The Beatrice Six case now ranks alongside such high profile accomplice cases as the "Ford Heights Four," the "Central Park Five," and the "Norfolk Four"-in which multiple convictions were challenged and, in two instances, overturned based on compelling DNA evidence.(fn6)

The State eventually exonerated the Beatrice Six after two lawyers persuaded the Supreme Court of Nebraska to recognize the scientific potential for favorable DNA testing results to impeach critical accomplice testimony on which their clients' convictions rested.(fn7) DNA testing not only excluded the Beatrice Six, but eventually implicated an initial suspect as the sole contributor of the non-victim DNA evidence.(fn8)

This Article examines the inherent unreliability of bargained-for accomplice testimony and how contingent plea agreements may induce accomplices to fabricate evidence.(fn9) This Article first analyzes the unexamined approach used by the District Court of Jefferson and Gage Counties to deny White and Winslow DNA testing.(fn10) The Article then analyzes the critical approach applied by the Supreme Court of Nebraska in State v. White(fn11) and State v. Winslow(fn12) to determine whether DNA testing may produce noncumulative exculpatory evidence relevant to wrongful conviction and sentence claims.(fn13) This Article urges district courts to consistently apply this critical approach to all motions for post-conviction DNA testing.(fn14) Finally, this Article recommends courts conduct pretrial reliability hearings in cases involving highly suspect accomplice testimony, and further recommends the Nebraska Supreme Court Committee on Practice and Procedure revise the pattern accomplice testimony instruction to more fully apprise jurors of the inherent unreliability of accomplice testimony.(fn15)

II. FACTS AND HOLDING

A. Factual Summary

In Beatrice, Nebraska, on the morning of February 6, 1985, Ivan Arnst discovered the dead body of his sister-in-law Helen Wilson, age sixty-eight, on the living room floor of her apartment.(fn16) Arnst found Wilson with her nightgown pulled up over her body, a scarf wrapped tightly around her head, and her arms bound with a towel behind her back.(fn17) Dr. John Porterfield, a Lincoln, Nebraska pathologist, concluded that Wilson died of hypoxia due to suffocation.(fn18) The autopsy revealed that, prior to her death, Wilson had been sexually penetrated vaginally and anally.(fn19)

At the crime scene, Beatrice police took semen and blood sam-ples.(fn20) Beatrice police also recovered several fingerprints and $1300 in cash from Wilson's purse.(fn21) During the investigation, Beatrice police commissioned an FBI criminal profile that concluded that a single individual, most likely a young white male familiar with the Beatrice area, committed the murder.(fn22)

Based on the forensic evidence, the investigation focused on finding a single male, non-secretor with type-B blood.(fn23) The Beatrice police investigation focused briefly on Bruce Allen Smith, who was in Beatrice at the time of Wilson's murder but had left town soon thereafter. On the night of the murder, a witness placed Smith within two blocks of Wilson's apartment. Shortly after the murder, witnesses reported seeing Smith with scratches on his face.(fn24) Several Beatrice police officers then followed Smith to Oklahoma, where they interviewed Smith and obtained blood, saliva and hair samples.(fn25) The Oklahoma City Police Laboratory tested Smith's biological material and identified him as a type-B secretor, so Beatrice police ruled Smith out as a suspect.(fn26)

Thereafter, the investigation into Wilson's murder went cold, until retired Beatrice Police Officer Burdette Searcey reopened the investigation later as a private investigator.(fn27) In his investigation, Searcey spoke with Lisa Podendorf-Brown, who informed Searcey that Ada JoAnn Taylor told Podendorf-Brown that Taylor and Joseph White were involved in Wilson's murder.(fn28) White and Taylor were acquaintances, who had traveled together to Beatrice from California. Beatrice police had questioned White about the Wilson murder in February 1985, but had ruled him out as a suspect.(fn29)

In 1989, Cliff Shelden, an inmate at Lancaster County Corrections Center, made several statements to Searcey implicating numerous people in Wilson's murder, including Shelden's future wife, Debra, White, Taylor, and Thomas Winslow.(fn30) Shelden claimed to know of these individuals' involvement in Wilson's murder from a letter written to him by Taylor.(fn31) Based on Cliff Shelden's incriminating statements, Searcey interrogated Winslow about his involvement in the Wilson murder.(fn32) During his first interrogation, Winslow admitted only to loaning his car to White and Taylor on the night of the mur-der(fn33) and hearing White and Taylor make inculpatory statements about having robbed and killed an elderly woman.(fn34) During his second interrogation, Winslow changed his earlier story, telling Searcey that he had been in Wilson's apartment with White and Taylor on the night of the murder, but that he and his wife, Beth, had left the apartment before anything bad happened to Wilson.(fn35) During his third interrogation with Searcey, Winslow recanted both of his previous statements and claimed to have no memory of anything that happened in Wilson's apartment.(fn36) On March 17, 1989, the Gage County Sher-riff's Department charged Winslow with the first-degree murder of Wilson.(fn37)

On March 15, 1989, law enforcement arrested White in Alabama for Wilson's murder based on prior statements made by Podendorf-Brown, Cliff Shelden, and Winslow.(fn38) Once in custody, White repeatedly told the police he was never in Wilson's apartment and he was not involved in her death.(fn39) White waived extradition, returned voluntarily to Nebraska, and agreed to give hair and blood samples to the Gage County Sheriff's Department.(fn40)

Also on March 15, 1989, law enforcement arrested Taylor in North Carolina.(fn41) Taylor also waived extradition and voluntarily returned to Nebraska. Taylor told North Carolina law enforcement that she, White, and a third man whose name she could not recall, were at an elderly woman's house doing yard work late one afternoon when White stabbed the elderly woman.(fn42) After officers showed Taylor photographs and a videotape of the crime scene, and shared details about the police theory of the crime, the officers had Taylor consult with a part-time police psychologist, Dr. Wayne Price, who assisted Taylor with restoring her memories.(fn43) Thereafter, Taylor told police another story, in which she, White, and Winslow were in Wilson's apartment and all three participated in Wilson's sexual assault and murder.(fn44)Taylor told police White and Winslow took turns sexually assaulting Wilson, while Taylor held a pillow over Wilson's face.(fn45) Eventually, Taylor implicated Debra Shelden, James Dean, and Kathy Gonzales as accomplices in the crime.(fn46) Taylor agreed to plead to second-degree murder and to cooperate fully in the prosecution of the other codefend-ants.(fn47) Taylor later told the press she plead guilty because she was threatened with the death penalty.(fn48)

Based on Taylor's statements, the Gage County Sheriff's Department obtained arrest warrants for Debra Shelden, Dean, and Gonza-les. On April 13, 1989, law enforcement arrested Debra Shelden, Wilson's great-niece, for her alleged involvement in Wilson's mur-der.(fn49) On April 15, 1989, law enforcement arrested Dean for his alleged involvement in the murder.(fn50) Finally, on May 25, 1989, law enforcement arrested Gonzales in Denver, Colorado.(fn51) Upon being arrested, all three initially denied being in Wilson's apartment at the time of her murder.(fn52)

Dr. Price succeeded in convincing Dean and Debra Shelden, but not Gonzales...