A Capital Case

In the week after Ellen’s arrest, she was arraigned before a circuit judge, who ordered that she be held without bond. By the end of the week, the city of St. Louis trial office had interviewed Ellen and decided that she was eligible for a public defender.

Just as Deanne had already figured out, Ellen was broke. The public defender’s office came out fighting in Ellen’s defense, but it was pro forma paperwork in the beginning. First the office filed a motion to quash the indictment charging her with murder and assault. Then, in the early days of October, if filed another seeking a reduction in the bail, so that Ellen could await her trial on the outside.

David Ferman, an attorney in the Public Defender’s office, was handling the case. No trial date had been set, and it might well not be set for some time, because the circuit court’s docket was a busy one, and clogged with assault, rape, and murder cases. To some of the judges who sat on the benches, it was hard not to be become cynical—or worse, deadened—by the routine. There was usually some seventeen-year-old boy accused of murder, or manslaughter, or attempted murder against another seventeen-year-old. The victim was on a slab across the street in the morgue.

The docket was fed by stacks of computer printouts, and the courtroom was usually not a place for subtlety. The middle-class jurors who came downtown, anticipating an Agatha Christie plot to twist their imagination for a few days found something quite different. The defendant freely admitted that he shot so-and-so. When asked why, the answer often came just as freely. “He got in my face. So I shot him.”

In October, and then again in December, Ellen’s case was continued as the defense, in grinding fashion, prepared itself. By the beginning of the new year, Mr. Ferman would withdraw as her attorney and Beverly Temple, also from the Public Defender’s office, would step in.

It was no secret around the courthouse, or at police headquarters, that the assistant circuit attorney who was going to try this case was preparing to go for the jugular. Shirley Loepker was a tough prosecutor who showed no mercy to heinous criminals. Appearances notwithstanding—blond, attractive, and in her thirties—Shirley was the kind of prosecutor who took no prisoners. With a divorce behind her, Shirley was also no stranger to the straits in life. Whenever she entered a courtroom, everyone tensed just a little. She had that effect on people.

Shirley Loepker had called on Deanne Bond at her office, wanting to know how Deanne felt about the death penalty. Sergeant Burgoon had already asked Deanne the same question.

“Does it bother you?” Ms. Loepker asked. “How do you feel about it?”

“Well, I’m pro capital punishment anyway. But I really think the death penalty is too good for her.”

Ms. Loepker left no doubt in Deanne’s mind that she was serious about prosecuting Ellen Boehm. “I want her,” she said on her way out the door.

On January 10, 1992, Ms. Loepker filed the state’s intent to seek the death penalty for Ellen Boehm, and within a few weeks of that filing, Ellen would get yet another defender. But this was no third-stringer. Because Ellen now faced the death penalty, she was eligible for the best.

Her name was Karen Kraft, a woman of conviction equal to that of Shirley Loepker. The difference, of course, was that Ms. Kraft staunchly opposed the death penalty as much as Ms. Loepker supported it. In order to seek the death penalty, Ms. Loepker had been required to file a “Notice of Aggravating Circumstances,” a legal term for qualifications in the statute for which the state can seek the death penalty in a case of first-degree murder.

In Ms. Kraft’s opinion, those qualifications were so broad and general that about any case could fall under their guidelines, and in all of the cases like this that the public defender’s office handled, it almost always filed motions to the effect that these “aggravating circumstances” were unconstitutional. They narrow, Ms. Kraft argued, the class of people they apply to, and in effect could encompass anybody. Once the state decides what case they want to press as a death case, it then chooses the aggravating circumstances from the statute that fits, she said, listing the ones they intend to prove at trial. The problem, as she saw it, was that life isn’t always so easily categorized.

Ms. Kraft grew up in a big family in Cincinnati, attended Catholic schools and later, Xavier University, a Jesuit institution. When she moved to St. Louis, to attend St. Louis University, she found work at a legal aid office. There, still a law student, she handled cases involving custody and divorce. Upon graduation, she took a job in the Public Defender’s office. Now, seven years later, she was assigned to the elite office of the Capital Ligitation Unit, which handled death cases.

There are three such capital murder offices in the state: in Columbia, Kansas City, and St. Louis. The St. Louis office, which fields a total of six attorneys, plus an administrative lead lawyer, handles cases from the eastern part of the state. Each case is handled by two lawyers, and because the caseload is so heavy, even the head of the office, Kevin Currin, handles one or two himself.

Ms. Kraft’s co-counsel was another woman, Cathy Ditraglia, an associate who had been with the office for about three months. Though Ms. Ditraglia came with a lot of trial experience, including first-degree murder cases, she had never defended a capital case. Because of the caseload, the paralegal assigned to the case also often ends up being an investigator, and that would be the situation this time, too. Ellen’s paralegal was Kim Gray.

The three women knew what they were up against. The majority of the population of Missouri believed in the death penalty. In Ms. Kraft’s experience, any juror who came in and said they didn’t believe in the death penalty was usually excluded from the start. The result was that she ended up with twelve jurors who did believe.

With Shirley Loepker so primed for the case, and Karen Kraft so adamantly taking her stand on the other side, it promised to be a rip-snorting trial. The life of the defendant would hang in the balance as two women attorneys, her peers, presented the case to a jury that most likely believed in the death penalty from the start. For a while, there was even talk of the possibility that the case would be tried before a woman judge.

Ms. Kraft immediately realized that Ellen’s case could end up becoming a complex one, depending on which psychological issues arose. This was also the first time she had ever defended a case in which the FBI had been brought in, and she was looking forward to whatever new challenge this would present. Despite an ingrained optimism, she didn’t think it was going to be a simple, straightforward case.

One of the first moves she made was to line up the money to pursue a psychiatric evaluation of Ellen. It would be done by someone in private practice. Ms. Kraft wouldn’t rest until she knew as much as possible, and she wasn’t going to rely on a court-ordered evaluation at a state hospital.

In psychiatric cases Ms. Kraft had the option to file a motion for an evaluation, or she could just hire someone to do it. Basically there were two findings that a psychiatrist could make that were relevant to the court: one, the defendant was competent to stand trial, and what that entailed, in Kraft’s opinion, was pretty basic. Do they know who their lawyer is? Do they understand that they’re charged with a crime? Do they know how the court system works? Do they know that there would be a prosecutor at the trial and what would they do? Are they able to talk to their lawyer about the case? In other words, it didn’t take much for somebody to be found competent.

The second possible finding—incompetent to stand trial—isn’t always final, because even defendants who had initially been found incompetent for various reasons (they were retarded or schizophrenic) could be declared fit. After six months in a state hospital, attending what Kraft called “Trial School,” where they are spoon fed—“This is this. This is this. This is this”—they were able to regurgitate the right answers. Then, miraculously, they were competent, but it meant little about what was going on in their head at the time of the crime.

In Ellen’s case, Ms. Kraft also instructed the doctors to look for mitigating circumstances as well, in the event it would come down to a penalty phase.

Anyone convicted of first-degree murder in Missouri faced the penalty of life without parole, which simply meant they never got a parole date. Only when the state cites “aggravating circumstances,” as Ms. Loepker did in Ellen’s case, does the jury have the option of the death sentence. The penalty is meted out swiftly, too. In Missouri courts, once the jury finds guilt in first-degree murder, the trial proceeds immediately to the penalty phase.

At this time the defense has an opportunity to present any mitigating circumstances, if they haven’t already been presented in the first stage of the trial. The defendant’s upbringing and background are routinely probed, and Kraft would do the same for Ellen. Kraft also considered how it would matter if Ellen hadn’t committed the crimes, and “if she hadn’t, then why had she admitted to it on videotape.

Thus, Ellen’s case promised to be complicated, if not only because even though she had made a videotaped confession, now with astute counsel at her side she was pleading innocent.

Six months later, Karen Kraft didn’t expect to go to trial anytime soon. She had already petitioned for dismissal of the charges because of an unnecessary delay in Ellen’s prosecution. The case was also continued three more times, and the last time was for want of time in court. By August, Ms. Kraft knew that all the judges in St. Louis pretty much had death penalty cases. She also knew that Shirley Loepker was planning to get married in the fall, and would take some vacation.

All this time Ellen had been in the city’s Medium Security Institution, also known as the workhouse, which is located in a dismal industrial stretch north of downtown. Despite all the delays, Shirley Loepker was still intent about this death case, and Ms. Kraft hadn’t heard a peep about a plea. Neither had she even explored anything along such lines, because she really had only begun to scratch the surface in terms of what needed to get done and what had to be investigated in Case No. 911-2566.