A Cry for the Innocent

Tricia Bushnell of the Midwest Innocence Project centers her life on exonerating those who are wrongfully convicted of crimes.



Tricia BushNell

 

   Brightly colored roller derby flyers hang on the office walls along with a Kill Bill movie poster and a white board covered with work to-dos. Thank-you notes and cards line the windowsill, and photographs hang on the wall behind her desk, inmate uniforms worn by some of the smiling faces. Tricia Bushnell's office reflects the multiple layers that make her who she is — passionate, hopeful and inspired — a tireless advocate who can't help but get emotional at times. “When the history of my life is written, it will just be scenes of me weeping in public bathrooms at injustices,” she once wrote.

   As director of the Midwest Innocence Project, a nonprofit organization that works to exonerate those wrongfully convicted, Bushnell always planned on working in public interest law. The first in her Mexican-American family to go to college, her plans to eventually specialize in immigration law were diverted when, as an associate with a California law firm, she had the opportunity to work with the Equal Justice Initiative of Alabama (EJI) on wrongful conviction cases.

   There, Bushnell, a young attorney at the beginning of her career, found herself sitting next to the family members of death-row inmates as they approached their execution dates. The experience would be life-changing for anyone, but it was more than that for Bushnell; her life trajectory altered by what she learned, saw and couldn't forget. Among those memories are the details of her first EJI case, the case of Emanuel Gissendanner. 

   In 2001, 77-year-old Margaret Snellgrove was murdered, her body found under a pile of tree limbs in a ditch. The facts didn't look good for Gissendanner, the young man who was seen driving Snellgrove's car, cashed her forged check and had her blood on his sock. He was convicted of murder in 2003 and sentenced to death. Upon further investigation, however, Bushnell and others concluded that Gissendanner had been loaned the car and provided the forged check by the same person in payment for drugs — a man named “Buster” — who happened to be a tree cutter. Moreover, key witnesses hadn't been interviewed, prosecutors allegedly withheld evidence that could have raised issues in terms such as the handwriting on the forged check, and defense counsel failed to produce expert testimony regarding vital blood evidence.

   When Bushnell left her law firm to continue work with EJI, later making her way to the Wisconsin Innocence Project and eventually Kansas City, she never forgot this case. Although the circuit court overturned Gissendanner's conviction in 2010 and granted a new trial based, in part, on ineffective counsel, the court of appeals reinstated his conviction in 2013. It's now up to the Alabama Supreme Court to decide Gissendanner's fate.

   Why Bushnell assumes such a massive responsibility is not the question for her. “I'm always more interested in why people don't do things,” she explains. “We have created this system.” And, this system, as Innocence Project statistics reveal, is flawed. Since the first DNA exoneration in 1989, more than 350 inmates have been exonerated —182 of which were cases worked on by attorneys with an Innocence Project. Of those exonerated, the average time served was 14 years with more than 70 percent involving eyewitness misidentification. “When has the state made enough mistakes that we don't let them do it anymore?” she asks.

   Innocence Project statistics are just that — a measure of cases fully investigated and litigated to resolution — but they can't reflect those cases left unresolved or never identified. The Midwest Innocence Project, one among many throughout the United States, accepts cases from a five-state region. With only two Project lawyers in the Kansas City office, a small support staff and a handful of attorneys via law schools and other state programs who work on these cases, there are 15 cases being actively worked on at this time with a 600-case waiting list. 

 

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   To begin the process of being considered for representation, inmates or their family members complete a 20-page questionnaire about their case. Claims of innocence are simply not enough — appellate legal standards are high and Bushnell's resources are too small to accept every case submitted. Investigation by Bushnell and her staff may find evidence of guilt or a sentence that, even if years in length, is too short to provide enough time for them to navigate the system for release. Because death-row inmates are provided counsel throughout their appeals process, those without such a sentence are left with limited resources — and tight deadlines — in which to file their appeals.

   “So many people will never get the help they need,” Bushnell says. “We're literally fighting for people's lives.” Of those wrongful conviction statistics currently available, one is missing and largely immeasurable — the number of inmates who have been executed wrongfully. Resources are simply too limited to investigate cases post-execution; what resources are available are used to help those who still have a chance at life.

   Bushnell can't talk about all of her cases, one in particular gaining national attention after being featured in the Netflix series Making a Murderer. In 1985, Steven Avery was convicted of rape when he was 22 years old. Although he had an alibi, Avery was convicted almost exclusively on victim testimony and identification. In 2002, attorneys with the Wisconsin Innocence Project obtained a court order for DNA testing of hair found on the victim, the results of which matched a man who looked like Avery and was serving time for assault. Avery was exonerated and released from prison.

Two years later, 25-year-old named Teresa Halbach disappeared after visiting Avery's property to take a photograph for Auto Trader magazine. Among other evidence connecting Avery to her disappearance, Halbach's burnt remains were found in a fire pit on Avery's property. He was tried, along with his nephew, and convicted of murder. Avery claims that law enforcement planted evidence in retaliation for a lawsuit that he filed regarding his wrongful conviction in the rape case.

   Although Bushnell can't comment on the Avery case other than to say that she is involved in the matter, her name is included as counsel on a motion for post-conviction scientific testing filed last August. The motion requests, among other things, radiocarbon testing of Avery's blood found in Halbach's car to determine how old it is (age will relate to the argument that it was taken from a blood sample still in custody from the prior rape case and planted). The parties have since entered into an agreement for testing of select pieces of evidence. 

   Not only are mistakes made in the judicial process that send innocent people to prison — or even death row — the lack of attention focused on criminals' backgrounds, environments and oftentimes tragic childhoods comprise yet another shortcoming in Bushnell's eyes. Where others see crime headlines, Bushnell sees people, many of whom have lived an existence foreign to those quick to cast judgment. Stories of people sleeping in dog houses or drawing pictures of “wish food” on paper before eating it are the things that stay with Bushnell and motivate her to work toward a better system. “People are redeemable,” she says, and describes her clients as handling their circumstances better than she ever could.

   “What we do is all-consuming,” Bushnell says. “We see the best in humanity and the worst in humanity.” Perhaps this need to maintain a fragile balance between advocating for her clients without losing herself completely in her cases explains the colorful flyers on her walls. It’s difficult to see where the line between her personal life and her professional life is drawn. But based on the sentiment she chose for her Twitter profile picture — “Find what you love and let it kill you” Bushnell doesn't really think that line is needed at all. 

 

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   The Case of Ricky Kidd

   In February 1996, two men were murdered in Kansas City, and one of their daughters, a scared 4-year-old, was left unharmed in the closet. Although eye witnesses identified three men involved, an anonymous tipster also named Ricky Kidd. Despite a seemingly airtight alibi — he was at a sheriff's office applying for a gun permit at the time of the murders — Kidd was tried jointly with one of the other men accused. His attorney allegedly failed to fully investigate Kidd's alibi, request a separate trial or clarify misinformation at trial about Kidd's fingerprint being found in the getaway car (it wasn’t). Kidd and his co-defendant were both convicted and sentenced to life without parole.

   The Midwest Innocence Project considers evidence in favor of Kidd's innocence to be abundant. Not only was there no physical evidence connecting him to the crime scene, the little girl didn't identify Kidd in a photo lineup, and testimony at trial about the date of his gun application that raised doubt about his alibi was discovered to be incorrect. Of greatest significance, his co-defendant's eventual testimony and admission that he acted alone with the other two men couldn't be considered during the appeals process because, under the rule of law, it can't be considered “new” evidence if it could have been discovered at the time of original trial.

   In February 2016, a Jackson County Circuit Court granted Kidd's motion for post-conviction DNA testing, and in December 2016, Kansas City Police Commissioner Alvin Brooks wrote a letter to Gov. Jay Nixon requesting clemency for Kidd. At this time, Kidd remains in prison. Neither of the other two men involved were ever charged — one has since died, and the other walks free in Kansas City.

   For more information about Kidd’s case and other MIP cases, visit themip.org.