I. The Plea
FRED STEESE, Inmate No. 45595, often gazed at the 18-wheelers rumbling by the state prison on a desolate stretch of highway outside Las Vegas, yearning to be behind the wheel. Lying in his bunk in Cell Block A, Unit 7, he’d picture himself double-clutching down hills, filling out the logbook, expertly backing up as he made deliveries. Semis had been an obsession since he’d begun hitching rides with truckers between stints with foster families and in group homes. By 16 he’d stolen his first big rig. Now middle-aged, Steese treasured a commercial driver’s license manual, so well-used it was held together by tape.
As a lifer, however, he knew that even this modest ambition was out of reach. In 1992, a once famous trapeze artist who’d moved on to performing with a costumed poodle act on the Strip had been found murdered, stabbed dozens of times in his trailer on the outskirts of Las Vegas. Police found a prime suspect in Steese, a drifter with a record, who for a short time had been the victim’s lover and assistant, and who, after protesting that he was innocent, offered a confession.
In October 2012, a judge declared that Steese, after 20 years in prison, was innocent. It was an extraordinary ruling — in fact, unprecedented in that court. But the Clark County district attorney was not willing to free Steese. Prosecutors vowed to put him through lengthy appeals. Even to re-try him. The process would take years. Or, if Steese just wanted to be released, the prosecutors had a tantalizing proposition: he could agree to an Alford plea. In a feat of logical gymnastics, this obscure plea allows defendants to maintain their innocence while at the same time pleading guilty and accepting the status of a convicted felon. And, perhaps most damaging to prisoners like Steese, after decades behind bars, the plea meant giving up the right to sue. It would also allow prosecutors to keep a “win” on the books, admit no wrongdoing, and avoid civil and criminal sanctions for their behavior. In exchange for all this, the prosecution in Las Vegas would let Steese go.
In legal circles, prosecutorial misconduct is viewed by many as a pervasive problem — an “epidemic,” as one prominent federal judge called it in 2013. Jurisdictions large and small are riddled with corrupt practices. Misconduct lies behind more than half of all cases nationwide in which convicted defendants are ultimately exonerated, according to the National Registry of Exonerations. Driven by a win-at-all-costs culture, such misbehavior is especially hard to root out because, many experts say, there’s little incentive to play by the rules. Appellate courts often sweep misconduct aside as harmless. Top prosecutors, burnishing their own careers, rarely punish underlings for it — and indeed they often flourish, going on to become judges reluctant to police their former peers. And the law gives prosecutors broad immunity from civil lawsuits, even when their bad behavior lands the wrong people in prison.
Fred Steese’s case exposed the rot in the system that robbed him of two decades of his life. Yet even then prosecutors worked to keep it hidden, forcing him into an almost incomprehensible choice: Risk freedom to fight for an uncertain exoneration that might take years, or cop to a crime he didn’t commit and walk away.
II. Death of a Poodle Master
LUCKY THE CLOWN, a 123-foot-tall blast of frenzied neon, has greeted visitors to the Strip since 1976. With its massive grin and pinwheel lollipop, the marquee beckons gamblers inside the striped big top at the Circus Circus hotel and casino. In 1992, low rollers fed cups of change into slot machines while acrobats swung overhead. A rotating lineup of circus performers did free shows on a small dark stage on the second floor until midnight. Passersby would stop to watch before moving along to the $2.99 dinner buffet. Among the performers was a faded but still handsome dog trainer with the bearing of a dancer, often dressed elaborately in sequined tails and matching bow tie. Gerard Soules, known as Jerry, was circus royalty of sorts, a trapeze artist who had traveled the world, performing for the queen of England and dazzling the crowd in the Ringling Bros. center ring. A preening showman, he had worn a cape that he would fling open before beginning the 40-foot climb to the pedestal. From there he’d launch his daring signature move, a somersault forward off the trapeze, catching himself by his heels at the last second on the bar of the same trapeze.
Soules had grown up devoutly Catholic in 1940s blue-collar Michigan. When he came out as gay to his mother as a teenager, his family defied expectations by supporting him. Soules left home at 16 to join the circus. After a trapeze accident in his late 20s, he reinvented himself as the ringmaster of a pack of well-dressed poodles. In 1992, Soules took his act to Circus Circus, where, six days a week, his 14 poodles hopped on their hind legs across the stage: One in a poncho and sombrero to a Mexican march, another to a can-can with her dress attached to her front paws, Moulin Rouge-style, still others wearing three-foot-tall hats or giant hoopskirts — all of the outfits handstitched by Soules himself.
Despite the act’s popularity, Soules had lost his spirit. The casino wouldn’t let him stay at its own RV park with his poodles, so he was banished to the Silver Nugget Camperland, in much less desirable North Las Vegas. And he’d been living in a heartbroken fog since his partner of decades had died, several years earlier. Eager for companionship, the 55-year-old had recently taken to helping young men in need.
One May day, Soules had spied Fred Steese, disheveled and dirty, his hair bleached sandy blond by the sun. He was holding a WILL WORK FOR FOOD sign. Soules leaned out the window of his truck and offered to take Steese for a meal. Even in faded jeans too big for his lean frame, Steese had blue-eyed good looks, with an easy smile and a loud laugh that rose along the scales and made him seem younger than he really was. Over dinner, Soules revealed that he was gay. Steese shrugged his shoulders and told him that he himself was bisexual. Steese was familiar with the scene — he’d hustled gay men for food, money or companionship most of his life. The previous month, another middle-aged man had picked him up along a Pennsylvania highway. That man, Rick Rock, enjoyed Steese enough that he paid for a bus ticket and told him to call collect whenever he wanted. And Steese did, often. He liked having someone who cared.
Steese had more or less been on his own since his mother had abandoned him, when he was 10, and he bounced through 37 foster placements. As a teen, he wandered into a hobo camp outside Phoenix, where an old-timer introduced him to riding the rails. Alone on the road, he held tight to the memory of the Busses, the one foster family who’d shown him any love, twice sheltering him at their dairy farm outside Austin — even including him in a formal family portrait. He’d been chasing that connection ever since, smoothing over his past with grandiose lies to gain acceptance and prop up his self-image.
He struck up an affair with Soules and became his assistant. The dog trainer had just fired his latest one, Alexander Kolupaev, a Russian defector with receding red hair who was always short on cash and had rebuffed Soules’s overtures. Just as Steese was settling in, the event manager told him he needed a work permit for his job at the casino. Steese knew that was the end. He was wanted for violating parole in Florida, and he’d been using the alias Fred Burke.
“Listen, I’m going to go ahead and move on because there ain’t no sense in me being here, because I can’t make no money,” Steese told Soules, according to testimony. Steese panhandled enough cash for liquor and a speedball and then hopped a train heading north.
Six days later, when Soules didn’t show up for work, his boss went to the RV park to investigate and heard the usually quiet dogs barking excitedly. He banged on the door, calling Soules’ name, before fetching a security guard. Inside detectives found Soules’s belongings scattered around the trailer. The plaid window valance had been yanked down. The TV-and-VCR cabinet was empty. Blood soaked the mattress and trailed across the length of the trailer to the bathroom, where Soules lay naked, his face covered by an orange towel. More blood splattered the bathroom mirror, the counter, the toilet, the tub. Soules’ throat had been slashed, and he’d been stabbed so many times that the coroner stopped counting at 35.
III. The Confession
TWO NORTH LAS VEGAS Police detectives shut Steese in a small interrogation room and placed a questionnaire about the murder in front of him on the metal table. Forty-five minutes later, he’d written just a handful of paragraphs, riddled with grammar and spelling mistakes, in one place fumbling even his own name as “Fredrick,” without the second “e.”
“I thing I was in New Plymouth, ID.”
Throughout his childhood, Steese had scored between 70 and 80 on IQ tests, putting him at the very bottom of normal range. He had only the GED he’d earned recently while imprisoned for a hapless bank robbery. Steese wrote that he didn’t have any reason to hurt Soules.
“I have never been to know a friend that has gotten killed.”
The detectives had been tipped to Steese after a letter from Rick Rock arrived at Soules’ trailer. When contacted, detectives said, Rock told them that Steese had revealed knowledge of a morbid, if not quite accurate, detail of the murder: that Soules had been stabbed more than 100 times. When detectives finally reached Steese by phone, he agreed to return to Las Vegas. Then he’d drunkenly hopped a train going in the wrong direction, ending up in Wisconsin, where he stole a semi truck and drove nearly 30 hours straight through to Nevada. There he was pulled over and arrested.
In the interrogation room, Steese repeatedly told the skeptical and increasingly angry detectives that he hadn’t murdered Soules. When one yelled that he was lying, Steese jumped up and backed away from the table. “Do you want to hear a story? OK. I don’t know nothing about the murder, but I’ll tell you a story,” Steese testified he had told them. He went on to say that Soules had tied him up and tried to sexually assault him with a plunger. But after detectives prodded him with details from the murder scene that showed that his story couldn’t have happened, Steese stumbled through several more scenarios.
Around 10 p.m., after nearly five hours of interrogation, Steese signed a confession, looping the final “e” in Steese back through the letters. It was his sixth version of events. At this point he hadn’t slept since before he left Wisconsin.
IV. But He Wasn’t There
LAS VEGAS in the early 90s was at the start of a boom. Gated subdivisions were eating up the desert and ever more luxe resorts were springing up on the Strip. But Vegas hadn’t lost its frontier spirit; in some ways it was still the Wild West.
Clark County’s district attorney, Rex Bell Jr., embodied that spirit, with his slow drawl, cowboy boots and plug of tobacco in his cheek. The son of Rex Bell Sr., an actor in Westerns, and silent-film legend Clara Bow, he saw himself as the protector of Las Vegas. He sometimes even wore a white hat. Bell, though, was more politician than practicing lawyer, and he left the running of the criminal division to his number two, Bill Koot, a gruff former Marine and Vietnam veteran. Deputy DAs who didn’t pursue harsh enough sentences or lost too often at trial were exiled to the age-old prosecutor doghouse: juvenile court.
The office had a frat-house looseness — it wasn’t unusual, former prosecutors recalled, for a pack to leave at one p.m. on a Friday to go drinking or to a strip club — but the atmosphere belied a cutthroat culture. On a whiteboard by the receptionist’s desk was a grid listing the trials in progress. A “not guilty” was an embarrassment that stayed on display for a week. Young attorneys started out in an assigned courtroom with scant training and worked whatever cases came through. The most ambitious chased homicides, prosecuted by the Major Violators Unit.
Among the young deputies gunning for the top, and a Koot favorite, was William Kephart, a rough local boy from a blue-collar part of town. Kephart had the gregariousness of a beefy high school jock giving high-fives in the halls.
He was known to prosecute with a sometimes unrestrained passion. Kephart was widely viewed, even by his friends, as guided more by ambition than by talent or smarts — “not a man for subtlety or nuance,” according to one of his former colleagues. His reputation for recklessness in and out of the courtroom earned him the nickname “Wild Bill.” He had his sights set on the MVU.
The case of the slain “Poodle King,” as the press had nicknamed Gerard Soules, hit the overworked DA’s office at the perfect time for Kephart. An experienced prosecutor had dropped out, handing the eager deputy a death penalty case, wrapped in the bow of a confession. But more than two years later, when Kephart was finally gearing up for trial, the case looked very different. Steese’s defense team had assembled an extensive alibi with 14 witnesses and 10 items of documentary evidence that they were sure proved Steese was nowhere near Soules’ trailer at the time of the murder.
Kephart and an investigator headed to Idaho in October 1994 to do their best to unravel Steese’s alibi. There they devised a new explanation. One witness noted that Steese had mentioned that he sometimes used the name “Robert.” Another said Steese had told him a couple of times that he had to call his brother. Then Kephart found a Salvation Army assistance form from June 8 that listed a “Fred Burke” and a “Robert” as receiving $10.
Back at the office, they confirmed their suspicions: Steese had a look-alike brother named Robert, who lived in Texas. Kephart and his team came up with a theory: It wasn’t Steese in Idaho; it was Robert — all part of a grand scheme to give Steese an alibi. The witnesses who thought they had met “Fred Burke” in Wyoming and Idaho had really met Robert. Then the real Fred had high-tailed it to Idaho after the murder, and that’s when they’d turned up together at the Salvation Army. The beauty of this theory was that nobody involved knew anything about Robert Steese. He could be anyone prosecutors wanted him to be.
A week or so before trial, Douglas Herndon, 30 years old and three years into his tenure at the DA’s office, joined the case as Kephart’s second. A private-law-school grad, and one of the few in the office not from Las Vegas, Herndon was seen as an astute prosecutor. His first thought in reviewing the case was “Wow, I’ve never seen that many alibi witnesses before. How is that going to affect things?” They had no evidence to prove that Robert Steese had been in Idaho, and they had serious conflicts with the timeline. The “Robert” theory was at odds with Steese’s confession that his drunken decision to rob Soules was last-minute and that he killed him only because Soules had woken up. Documents placed “Fred Burke” in Wyoming on May 31, so Steese would have had to set the alibi plan in motion three days in advance of a spur-of-the moment burglary.
But because the prosecutors were already convinced that Steese had committed the murder, to them the alibi must simply be wrong — the documents fishy, the witnesses lying or mistaken. And quite possibly there was a conspiracy. Kephart and Herndon would tell the jury that Steese’s alibi was a fantasy.
V. “Trial by Ambush”
STEESE’S TRIAL BEGAN in January 1995 and quickly devolved into a brawl, peppered with accusations of prosecutorial misbehavior. James Erbeck, a well-known private lawyer and former assistant U.S. attorney, had been appointed to represent Steese, along with California transplant Nancy Masters, new to both Vegas and to lawyering. Erbeck walked in on the first day with confidence — even though a 70-year-old defense witness had already sworn in an affidavit that Kephart had tried to dissuade her from testifying. Steese had such a strong defense that Erbeck actually cautioned Masters not to think it was typically so easy. That mood dissipated when Erbeck found himself filing motion after motion to dismiss, including for “outrageous prosecutorial misconduct,” only to have each motion batted away by District Court Judge Don Chairez, a rookie in his first year on the bench. Chairez had been working for the DA when Steese’s prosecution began, three years earlier.
Erbeck’s sense of impotence grew as the trial progressed. He discovered only during testimony that two prosecution witnesses had identified Steese, from photo lineups that included Robert, as the man they’d seen in Idaho. This fact undermined the “Robert” theory and Kephart and Herndon had sought to conceal it. Kephart had also shown his own last-minute star witness, a neighbor of Soules’ named Michael Moore, a potentially misleading photo array. Moore subsequently identified Steese in court as having been at Soules’ trailer the night of the murder — even though he had told police at the time that the man he’d seen had been short, had red hair and was balding. That description fit Kolupaev, who had been convicted of a jewelry heist shortly after the murder and would eventually be deported. Kolupaev was never investigated further.
At Moore’s testimony, Erbeck had leapt to his feet, railing that it was “trial by ambush,” and telling the court that the lineup Kephart had shown Moore was the most suggestive he’d seen in his career. Each photo had a booking date, but only Steese’s was from the year of the murder. “They have totally tainted the jury,” Erbeck told Chairez. “Look at this lineup. One man in ’92, everyone else in ’93, ’94. The other five couldn’t commit the crime.”
By the time it was Erbeck’s turn, Kephart and Herndon had painted Steese as a conniving killer who had, according to a jailhouse snitch, repeated his confession while incarcerated. But one key prosecution witness was conspicuously absent from the stand. Steese’s friend Rick Rock had been flown in to testify regarding Steese’s alleged comment about the number of stab wounds, but as an older single man living in rural Pennsylvania, Rock was protective of his private life and wasn’t eager to cooperate. He also dodged Erbeck and Masters, who were desperate to talk to him about whether Steese had called him from Idaho at the time of the murder. Then the prosecution abruptly sent him home, telling the defense nothing. Masters asked Kephart for Rock’s unlisted number, but she says Kephart told her she’d have to get a court order. Kephart said he sent her to the witness-support office and told that office to get Rock’s permission first.
To Erbeck, Steese’s defense was simple: He wasn’t in the state at the time of the murder and couldn’t have killed Soules. He’d falsely confessed because he was tired, coming down off drugs, frightened and of low intelligence. The documentary evidence backed up Steese’s and the witnesses’ claims. He’d left a long trail from May 31 to June 8, using the alias “Fred Burke.”
Steese testified that after he had left Las Vegas he stopped in Salt Lake City, then bumped into a man named Ron Bouttier in the train yard in Cheyenne, Wyoming. Steese took him to the local Salvation Army, and they scrawled their names on the “Monday, May 31” sign-in sheet. On the Burke signature, he’d looped the “e” back through the name with a line, in his typical fashion. Steese testified that Bouttier had invited him to his grandparents’ in Idaho, until he could get back on his feet. “That was the best offer I had in a long time,” Steese testified. “I didn’t have nowhere to go, so I says ‘all right.’ We got along real good at the time, and so we jumped on a train.”
Bouttier’s family and others Steese met there identified him in court, though two were shaky at first and needed a second chance on the stand. Steese had gained nearly 70 pounds by the time the trial started. In Idaho, he had gone to two employment help centers, and on one job application, on June 4, he used as a reference the name of his beloved foster parent: “Albert Busse.” A few days later, he and Bouttier got into a fight, and Steese took off, showing up on June 8 at the Salvation Army, where he put down two names on the welfare assistance form because, as an employee testified, she would give him double that way, even if he was alone.
Kephart, speaking in a folksy style that juries liked, used his rebuttal to spin out the “Robert” theory, even though Robert himself was never produced. He called to the stand his investigator, who contradicted many of Steese’s alibi witnesses and accused several of lying. Kephart insinuated that any defense documents that were copies could be forgeries. He even made his own, blown-up version of the Salvation Army sign-in sheet, but instead of Steese’s signature, it was his own, “as an example to the jury to show how documents can be manipulated and why you need originals.” Accusing the defense of presenting doctored evidence was a shocking tactic, but it was consistent with Kephart’s perceived willingness to go to nearly any length to get a conviction. Two of his murder convictions from the prior year would soon be thrown out by the Supreme Court of Nevada for “improper” and “deliberate” comments.
Whatever Steese was saying now, Kephart and Herndon argued, the original confession should be trusted. The jury deliberated for almost two full days before rendering a guilty verdict. After the trial, the prosecutors dropped the death penalty, but Steese was sentenced to two life sentences without parole.
VI. The Unraveling Begins
NANCY MASTERS — now married and known as Nancy Lemcke — was distraught. She felt as if she had failed. She called every PO box center in Rick Rock’s town to track down his new address and wrote one last letter begging him to contact her. When he finally called, Lemcke told him his phone records could prove that Steese had called him from Idaho. Rock, baffled, said the prosecutors already had a copy of the records. Lemcke couldn’t believe it. Had Kephart and Herndon concealed key evidence in a death penalty case? Hadn’t they seen the calls to Rock from Wyoming on May 31 and from Idaho on June 3 (the likely day of the murder) and June 5 that would exonerate Steese?
The U.S. Supreme Court, in the landmark case Brady vs. Maryland, long ago established that prosecutors must turn over any evidence favorable to the defense; withholding it violates a defendant’s right to a fair trial. Erbeck fired off a motion, asking the judge for a new trial and also asking the court to sanction Kephart and Herndon so that this will “not happen again in Clark County.”
In responding affidavits, both prosecutors claimed the records were irrelevant because they said Rock told them those calls were from business associates. Lemcke thought it should have been obvious that wasn’t true, especially since Rock had made a Western Union money transfer to one of Steese’s alibi witnesses on the same day he had received four of the collect calls. After Steese was arrested, on June 18, the only collect calls Rock received were from the county jail, up to eight a day. Herndon conceded that the records showed Rock “wasn’t telling us everything he knew.” But they had flown him home and never mentioned the phone records to the defense.
Erbeck referred the prosecutors to the Nevada State Bar, which investigated and found enough troubling behavior to merit an official hearing — a rarity. But the newly elected district attorney, Stewart Bell, a prominent lawyer who was not related to his predecessor, showed up to argue on their behalf. The matter went away. (Bell didn’t respond to several requests for comment.) Herndon and Kephart moved up to the DA’s elite teams: Herndon joined the relatively new Special Victims Unit, and Kephart made it to the Major Violators Unit.
In 1998, the Supreme Court of Nevada, which rarely split, denied Steese’s appeal in a 3-2 decision. The majority ruled that the state’s “case against Steese was strong” and that no Brady violation had occurred because the defense could have found the phone records on its own. The dissenting judges believed that the prosecutors had skirted the rules and that Steese’s conviction should be reversed. The decision slammed shut most legal doors, leaving Steese to languish in a maximum security prison.
Kephart, meanwhile, continued to build a successful career despite misconduct that drew repeated criticism from the state’s highest court throughout his tenure. His colleagues dismissed any dark intent, likening him to an excitable Labrador who stole turkey off the table because he didn’t know any better. But in 2001 the Nevada Supreme Court justices called Kephart out by name in a misconduct ruling — an uncommon rebuke. Appellate judges typically blame misdeeds on “the State” or “the prosecutor.”
“Now either he doesn’t want to learn, or he’s a very slow learner,” a justice said in a hearing, expressing dismay that “the district attorney’s office just continues to let him try major cases and give us these problems.” The court forced Kephart to show why he shouldn’t be sanctioned, and Bell again came to his rescue. Apart from being briefly benched from trials, former colleagues said, Kephart faced no consequences. He went on to have yet another case overturned in 2008, partly as a result of his misconduct. Then, in 2010, campaigning to become justice of the peace as a law-and-order stalwart, Kephart made it to the judicial ranks alongside Herndon, who had previously been appointed to the bench. As Kephart took office, Steese had been in prison for more than 18 years.
VII. An Arduous Path
THE SAN ANTONIO parking lot shimmered in the May heat, and Abigail Goldman chafed against the fabric seats of her rental car, hours into a sweltering stakeout of a strip mall. Goldman, 29, an investigator for the federal public defender’s office in Las Vegas, was on the hunt for Steese’s long-lost brother.
When Goldman joined the office, in 2010, Steese had been pointed out among the 30 cases in her stack as something special — an innocent man. Steese had recently had a new breakthrough, and a judge would soon re-examine his alibi, in particular the alleged involvement of Robert Steese. Now, in 2011, Goldman just had to find him. She had nothing more than a three-year-old address, but the trailer park manager there had given her a small clue: Steese’s wife worked at a nearby Office Depot. Goldman had been watching the store for almost a full day. Earlier she had crisscrossed Nampa, Idaho, to link two phone numbers from Rock’s records to the pay phones Steese said he had used. But the prosecutors could still argue that Robert Steese had made those calls. As she sat sweating and second-guessing herself, a dark-haired woman in the telltale red polo of an Office Depot employee hurried out. Maybe that’s my girl, Goldman thought, instinctively ducking her head as if that made her inconspicuous as she drove three mph behind the woman. The slow-motion chase ended at the scene of a car accident down the street, where one of the drivers looked a lot like Fred Steese. Goldman leapt out, launching into a fast-paced pitch about needing his help.
“The last time I saw my brother, I was nine years old. I’m 41 now,” Robert Steese said. He didn’t want anything to do with the case, and his wife adamantly told Goldman to go away. An annoyed cop shooed her off. Goldman realized a few days later that the stakeout was more productive than she had thought: The accident report listed Robert Steese’s current address. Fred Steese’s lawyers now had a way to subpoena him.
A freshly minted federal public defender, Ryan Norwood toiled in one of law’s toughest jobs for some of its poorest clients: habeas corpus. His task was to help destitute prisoners essentially sue the government for wrongful imprisonment. Norwood, 33, whose neat beard and natty three-piece suits stood out among his rumpled peers, had landed Steese’s case after Nancy Lemcke repeatedly pushed for help. The situation was a legal minefield. For one thing, the Antiterrorism and Effective Death Penalty Act of 1996, which has become so loathed that even some conservative judges have called for its repeal, gave prisoners one year to file a habeas suit. States such as Nevada had the same practice. So, in both state and federal court, Steese was long since out of time. Norwood had petitioned both — and had lost in both, until 2010, when the Supreme Court of Nevada stepped in and ordered a local judge to hear Steese out.
There was only one arduous path around the time limit: actually proving Steese innocent. Norwood had to show that there was new, compelling evidence that cast doubt on Steese’s conviction. So while Goldman scoured everything publicly available, Norwood fought to get his hands on the prosecution’s file. And in the end he succeeded: District Court Judge Elissa Cadish, who was presiding over the case, ordered the DA to hand it over.
In her office, Goldman scrolled through the 2,440 pages of documents on a CD. Forty pages of voir dire. Police reports. Steese’s criminal history in Utah. Stop. At the top of page 923: “Union Pacific Railroad Police.” Goldman leaned in for a closer look at the old-fashioned dot-matrix document on the screen. There were several “field interrogation reports” that the railroad police filed when they caught people illegally on the trains or in the rail yard. There was one for “Frederick Lee Burke” in Salt Lake City on May 29, and there were two for “Fred Lee Burke, Jr.” on May 31 in Cheyenne, Wyoming.
Here was evidence that put Steese out of state five days before the murder — evidence that matched Steese’s testimony at trial.
“I got thrown off the train,” he had testified. “They got bulls.”
“ … We call them the bulls. That’s what the hobo term is. What they are is, they’re railroad security … and if they catch you riding the train they’ll ask you your name and write it down and then kick you off the train.”
Down the hall, Norwood also dug into Steese’s file and uncovered several letters the DA’s office had written on behalf of the jailhouse informant which seemed to contradict Kephart and Herndon’s claim at trial that he’d received no benefit for his testimony. Kephart had also repeatedly elicited testimony from the informant during trial that allowed him to hide his criminal past.
Before long, yet another disturbing discovery came to light when the DA’s office gave Norwood a copy of a National Crime Information Center report on Robert Steese. The report showed that on May 25, June 1, and June 4, 1992, Texas authorities had run Robert’s name through the system — which typically occurs when an individual is stopped by police. That would mean Robert Steese was in Texas at the time the prosecution had argued he was impersonating his brother in Idaho. And it looked to Norwood as if Kephart and Herndon had known this at the time of the trial. Their investigator had testified that he “went through NCIC.” as part of an “extensive investigation” into the whereabouts of Robert Steese but claimed that the search turned up next to nothing. The DA’s office contended it hadn’t known about the stops at the time of the trial, arguing that its investigator hadn’t done as broad a search or that the stops had been inexplicably added to the system later.
Norwood says he had not seen misconduct on this scale before and believed that any one of the discoveries proved Steese innocent. But Pamela Weckerly, a 16-year veteran prosecutor who was now handling Steese’s case at the DA’s office in Las Vegas, refused to budge.
VIII. “I Killed Gerard Soules”
FRED STEESE’S ONLY CHANCE now lay in four daylong hearings — dragged out over more than 16 months — to prove that his brother had nothing to do with his alibi. At the first hearing, in June 2011, Robert Steese’s former boss, co-workers and acquaintances from the early 90s all testified that he was in Texas at the time of the murder and laughed at the notion of him hitchhiking or jumping trains, saying he was too lazy and unambitious for that. Five months later, Robert Steese himself testified, telling the court he hadn’t seen Fred since he was a child, had never been to Idaho or Wyoming and didn’t so much as know Fred’s birthday.
“I didn’t even know he was still living,” Steese testified.
At the next hearing, in January 2012, the hallway outside Cadish’s courtroom crawled with defense attorneys. Word had spread that Herndon and Kephart might be testifying — and cross-examined. Herndon was up first, and Norwood seized the opportunity to ask him about the document with the Union Pacific reports.
“I believe I’ve seen it before, yeah.”
Herndon said he didn’t think he had the reports at trial; nevertheless, he was still ethically bound to turn them over later, and the records could have made the difference in Steese’s 1998 appeal. Herndon then rejected even the most basic realities of Steese’s case.
“There was somebody up in Idaho during that week calling himself ‘Fred Burke,’” Norwood prodded. “Can we agree on that?”
“I’m not prepared to even agree on that.”
Norwood was dumbfounded. Seventeen years earlier, Herndon had argued to a jury that Robert Steese had been in Idaho creating a false alibi, even saying in his closing he had “no doubt” about it. Now he was contending that Steese’s alibi witnesses might have helped orchestrate an 11-day, multi-state conspiracy and forged 10 different official documents. “What I’m saying, very bluntly,” Herndon testified, “is that I didn’t believe a whole hell of a lot of what the people from Idaho had to say.” Weckerly never called Kephart to testify.
In October 2012, Norwood and Weckerly each made their final arguments. Steese sat in his blue prison garb in a near empty courtroom, cheerful as always, but with few expectations. Norwood had warned him that the wait was far from over. Cadish would likely take a few months to make a decision.
Norwood’s hour-and-a-half speech had the passionate feel of a trial lawyer beseeching a jury.
“Robert is a red herring here. The Robert Steese theory, however good it might have looked to the jury, can’t be the explanation for what happened, because Robert wasn’t in Idaho,” Norwood said. Later, with an uncharacteristic dramatic flair, Norwood announced, “At this point, I want to make a confession of my own. I killed Gerard Soules.” He was in high school in Pennsylvania at the time, but “at this point there is precisely as much reliable evidence that I committed this murder as there is that Fred Steese committed the murder,” he said. “In fact, I have to say that in some ways that my confession is a little more reliable. I just made this confession in open court. I didn’t make it after spending four hours in a room with two police detectives where who knows what happened. Unlike Fred, I can’t prove that I was someplace else on June the 3rd and June 4th in 1992.”
What Steese has provided, Norwood concluded, is “probably the most extensive alibi that’s ever been proven by somebody in this state.”
In stark contrast to Norwood, Weckerly was brief, arguing that a jury had heard “98 percent” of the evidence Norwood presented and still found Steese guilty. By law, she said, “it’s not our burden at this point to explain anything.” She refused Norwood’s challenge to answer the most basic question: If Robert Steese wasn’t involved, then what now is the state’s theory of the crime?
It was clear, Norwood told Cadish, that Weckerly wouldn’t concede Steese didn’t kill Soules, because that “would be admitting that an innocent man has been behind bars for 20 years … that justice wasn’t done in this case … that … the killer [wasn’t] found.”
Norwood fully expected Cadish to conclude the hearing by announcing that she would take the arguments under advisement. Instead, without any fanfare, she said she believed the testimony from Robert Steese and from those who knew him with “no dog in the fight.” Norwood and Fred Steese sat up a little straighter in their chairs. The more Cadish spoke about new, reliable evidence, the more Norwood realized not only that she was about to issue a ruling but that it would be what he’d hoped for over the last four years. He put his hand on Fred’s shoulder.
“Given everything additional that we now know,” Cadish said, “I am finding that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt with that evidence.” For the first time in the 8th Judicial District, a judge would issue an “Order Regarding Actual Innocence,” declaring publicly that Steese had not killed anyone.
IX. Innocent — but Still Guilty
ASTONISHING AS Cadish’s decision was, Norwood knew that an innocence ruling was not the get-of-jail-free card it seemed to be. It was only the first step. Steese had to show that his wrongful conviction was somebody’s fault. Normally when a defendant appeals, the issue at hand is not innocence or guilt but whether he received a fair trial. Because Steese had run out of time to appeal and was suing for denial of his civil rights, Cadish’s ruling only cleared the way for her to consider the constitutional merits of his case. It was, in essence, a reset button. For Steese’s murder conviction to be thrown out, a judge would now have to rule that the prosecutors acted improperly or otherwise failed in their duties.
Norwood was confident that Steese would win such a case. He relished the idea of a rigorous examination in court of Kephart and Herndon’s behavior. But while he was optimistic, Norwood also knew that, should Cadish agree with him, Steese’s ordeal still wouldn’t be over. The state could appeal immediately — which meant Steese would have to wait for a ruling by the Supreme Court of Nevada. That could take many years. If the court came down in Steese’s favor, the prosecution could still re-try him. Only after a not-guilty ruling would Steese be fully exonerated. And he might not get bail during this process.
Weckerly, the deputy DA, could have simply supported Steese’s petition for habeas corpus, but she responded by tweaking the state’s argument. After hammering on the Robert theory for nearly two decades, her office suddenly asserted that Robert didn’t matter. Steese, Weckerly maintained, was still guilty. But she was facing the daunting prospect of starting over on a 20-year-old murder case. Two weeks after Cadish’s ruling, Norwood says, she proposed a deal. What if she gave Steese parole? Norwood countered: How about dropping all charges and having Steese plead to stealing the truck he used to get to Nevada, with a time-served sentence? Weckerly refused — she wanted a murder charge on the books. That was when she offered an Alford plea.
Though unfamiliar even to some lawyers, the Alford plea has been around since a 1970 U.S. Supreme Court case. Henry Alford, a 35-year-old black man, had said he was innocent of murder but pleaded guilty to avoid an automatic death sentence. He later appealed, claiming that his plea was made under duress, violating due process. The Supreme Court disagreed. The justices ruled that it wasn’t unconstitutional to accept a guilty plea despite protests of innocence, so as long as a defendant had intelligently made the decision and was counseled by a lawyer.
Unlike the better-known no-contest plea, in which a defendant accepts a conviction without admitting guilt, the Alford plea lets a defendant actually assert his innocence for the record. The defendant acknowledges that the state might be able to get a conviction despite his or her innocence. All but three states allow the plea, but the federal government says it should be used only in “the most unusual of circumstances.” The Alford plea is most often used in bargaining before a conviction, like a typical plea deal, and could very well be taken by guilty defendants who simply won’t own up to their crimes. How often it is offered and accepted, and by what sort of defendants, isn’t tracked. Many prominent legal scholars, such as Cornell law professor John Blume, contend that prosecutors are using the plea to quickly and quietly resolve newly challenged convictions. It’s undeniably coercive for a prosecutor to tell someone who has been in prison 5, 10, 20 years that “you don’t have to admit guilt, just sign this plea and we’ll let you go,” Blume said.
Norwood questioned whether justice was served by an Alford plea, especially when it was being used to prevent the exoneration of an innocent man — and to keep what he saw as prosecutorial misconduct under wraps. But he knew it was a valid way to resolve Steese’s case quickly. Norwood gave Steese the news: There was a way for him to get out of prison almost immediately. Steese didn’t have to think about it. “Now sounds good,” he said. “I’ll take now.”
As word of the deal circulated, some who had grown close to Steese were angry. Lemcke thought he was too near the finish line to give up a sure victory. And Steese’s half-sister, Lynn Myers, who reconnected with him after he’d been incarcerated and had been writing him letters for years, begged him to turn the plea down and clear his name. But Steese believed they were wound up about nothing. Judge Cadish had said he was innocent! He’d been locked up for 7,545 days. He just wanted to get on with life.
Shortly before 9 a.m. on a February day in 2013, Steese faced Cadish one final time in a hearing that lasted all of eight minutes. Under the terms of the Alford plea, Cadish accepted his guilty plea for a crime that just three months earlier she’d ruled he didn’t commit. She sentenced him to time served.
“Good luck to you,” she said.
X. “All Rise”
ABOUT A YEAR out of prison, Steese went to Southern California for training with a major trucking company. He was a 50-year-old man finally getting a shot at his childhood dream — what he’d called at his trial “the best job in the world.” He whizzed through the written test, and when he was called into the back office one morning, he thought it was to meet about how well he’d been doing.
We’re sorry, Steese was told, but you can’t work with a felony conviction.
No, wait, that’s just a misunderstanding, Steese replied. The judge said I was innocent. You can see the news stories all about me. He jumped into the first boxcar to Utah, where the company was headquartered. Folded in his back pocket was a copy of his order of innocence. If he could just show the owners, surely they would realize he was no murderer. He couldn’t get past the lobby.
In advocacy circles, Steese is counted among the exonerees. But the exoneration is only honorary. Signing the Alford plea meant he was still a convicted murderer, except that his original 1995 murder conviction had been vacated and replaced with the new deal. To a person doing a standard background check, it could appear as if Steese had killed someone in 2013. He felt as if the state had set him up to fail. It took Steese three years to find a trucking company willing to hire someone who, technically, in the eyes of the law, was an ex-felon. When CRST International invited him on board, he packed up the very next day. His truck gives him a place to stay and offers a shot at stability. Steese knows he doesn’t have much time left to work. “I’m 20 years behind,” he says.
Almost forgotten now is Gerard Soules. His sister, Kathy Nasrey, had written an angry letter to Cadish after the plea, telling her that if Steese hurt anyone else it was on her head. The district attorney hadn’t informed her that Steese had been found innocent, just that his release was the judge’s doing. Nasrey wept when she learned the truth, for Steese and for her brother, whose killer had never been caught. An entire room of her Detroit home remains a shrine to Jerry and his circus career. Nasrey still has Soules’s silver ring, stained with blood, in the envelope the coroner had returned it in. She wonders if the killer’s DNA is on it, and if anyone cares.
Both the Clark County DA and the North Las Vegas Police consider the Soules murder a closed case. The current DA, Steve Wolfson, who authorized Steese’s Alford plea, declined to discuss the matter. Herndon to this day stands by his prosecution of Steese, though he says he would produce Rock’s phone records if he had it to do over again. But he was skeptical about the use of the Alford plea. “If a judge has found somebody actually innocent, then there’s a part of me that says walk away from the case. You shouldn’t be asking somebody to plead guilty to something,” he said last year during a lunch break in his chambers. He added that if he had put someone in prison for a crime that person didn’t commit, “then it’s the worst thing I’ve ever done in my life.”
Kephart spends his days on the third floor of the Regional Justice Center in downtown Las Vegas. Steese’s Alford plea in 2013 had conveniently shut down what could have been a damaging examination of Kephart’s conduct, clearing the way for the justice of the peace to make a successful leap to the more powerful district court in 2014. He will not talk about the pursuit and wrongful conviction of Fred Steese. When court is in session, he puts on his black robe. Ruddy-faced, as if he’d worked out but hadn’t quite cooled down, he strides to the bench.
“All rise. The Honorable William Kephart presiding.”
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