helmig lawsuit

8/3/2019 Helmig Lawsuit

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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

DALE L. HELMIG, )Rocky Mount, Missouri 65072, )

)

Plaintiff, )

)

v. ) Case No.

)

CARL A. FOWLER, Sheriff of Osage ) JURY TRIAL DEMAND

County, in his individual and official )

capacities, )

Serve at: Osage County Courthouse )106 East Main Street, P.O. Box 619 )

Linn, Missouri 65061 )

)

and )

)

ROBERT J. WESTFALL, former Trooper, )

Missouri State Highway Patrol, in his )

individual and then-official capacities, )

Serve at: 17150 Highway J )

Mexico, Missouri 65265-7063 )

)and )

)

PAUL BACKUES, former Deputy, Osage )

County, in his individual and then-official )

capacities, )

Serve at: 309 E. Harrison Street )

Freeburg, Missouri 65035, )

)

and )

)OSAGE COUNTY, MISSOURI, )

a political subdivision of and County located )

in Missouri, )

Serve at: Clerk of the County Commission )

Osage County Courthouse )

106 East Main Street, P.O. Box 619 )

Linn, Missouri 65061 )

!ase 2:11-cv-04364-NKL Document 1 Filed 12/30/11 Page 1 of 43


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)

Defendants. )

COMPLAINT

COMES NOW Plaintiff Dale L. Helmig, by counsel, and for his Complaint against

Defendants Sheriff Carl A. Fowler, former Missouri State Highway Patrol Trooper Robert J.

Westfall, Paul Backues, and Osage County, Missouri, states and alleges as follows:

PARTIES

1. Plaintiff Dale L. Helmig is a citizen of the United States residing in Rocky Mount,

Morgan County, Missouri.

2. Defendant Carl A. Fowler is, and at all times relevant hereto was, the Sheriff of

Osage County, Missouri. On information and belief, he resides in Linn, Osage County,

Missouri. He is sued in his individual and official capacities. At all times relevant hereto,

Fowler was acting or was failing to act under color of state law.

3. Defendant Robert J. Westfall was, at all times relevant hereto, a Trooper employed

by the Missouri State Highway Patrol. On information and belief he currently is retired and

resides in Mexico, Audrain County, Missouri. He is sued in his individual and official

capacities. At all times relevant hereto, Westfall was acting or was failing to act under color

of state law.

4. Defendant Paul D. Backues was, at all times relevant hereto, a Deputy for Osage

County, Missouri working in that capacity under the direction and supervision of Sheriff

Fowler. On information and belief, he resides in Freeburg, Osage County, Missouri. He is

sued in his individual and official capacities. At all times relevant hereto, Backues was

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acting or was failing to act under color of state law.

5. Defendant Osage County is a duly constituted county in the State of Missouri

which is located in the Western District of Missouri, Central Division.

JURISDICTION AND VENUE

6. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1343, 1331, and

1332 as to Plaintiffs claims arising under the United States Constitution. Further, this Court

has jurisdiction under 28 U.S.C. 1367 to hear Plaintiffs common law claims arising under

state law in that all claims made herein are so related to each other that they form part of the

same case or controversy under Article III of the United States Constitution.

7. This Court has jurisdiction over Defendants because the majority of the unlawful

acts alleged in this Complaint were committed in Osage County in Missouri which lies within

the Western District of Missouri. In addition, as stated, Defendant Osage County lies within

the Western District of Missouri and Defendants Fowler and Backues reside in the Western

District of Missouri.

8. Venue is proper in this Court pursuant to 1391 because a substantial part of the

events and/or omissions giving rise to Plaintiffs claims occurred in Osage County which lies

within the Central Division of the Western District of Missouri and because Defendants

Fowler, Westfall, and Backues perform and/or performed their duties and carried out (or

failed to carry out) their responsibilities within the Central Division of the Western District of

Missouri.

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BASES OF LIABILITY

9. As aforementioned, all of the acts or omissions of the individual defendants took

place under color of state law pursuant to, acting upon, and in concert with the policies,

practices, procedures, patterns, decisions, instructions, orders, and customs of Osage County.

Osage County is responsible for damages caused by the conduct of Defendants Fowler and

Backues, and because their involvement in this case was at the behest of Defendant Fowler,

Osage County is also responsible for the conduct of Defendant Westfall, said conduct having

transpired while each was acting in the course and scope of their employment with Osage

County or as an agent for Defendant Fowler and/or Osage County. All of the acts or

omissions alleged herein took place under circumstances in which Osage County and

Defendants Fowler, Westfall, and Backues are liable as a governmental entity and/or as

sworn law enforcement officers in the State of Missouri. Defendants liability is based upon

allegations which demonstrate patterns of behavior and deliberate indifference to the rights of

citizens, and especially to the rights of Plaintiff Helmig, and all of which led to them

depriving Helmig of rights, privileges, and immunities guaranteed to him by the federal and

state constitutions as well as federal and state laws.

10. The actions, omissions, policies, practices, procedures, patterns, decisions, orders,

and customs of Defendants alleged herein were the cause of the constitutional and other

violations alleged in this Complaint, as shown in part by knowledge of, acquiescence in, or

ratification of all Defendants wrongful conduct.

11. Defendants acted in concert, were joint tortfeasors, and are jointly and severally

liable to Plaintiff.

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12. The conduct alleged in this Complaint violated clearly established federal- and

state-protected rights of which every reasonably competent official in Defendants respective

positions would have, or should have, had knowledge. As to Defendants unlawful actions

and omissions toward Plaintiff, there was no objectively reasonable reliance on existing law.

13. Plaintiffs Complaint raises the following claims:

I: Malicious prosecution, false arrest, procurement of unreliable and/or

fabricated evidence, use of unreliable and fraudulent investigatory techniques and

failure to investigate evidence of Plaintiffs innocence, wrongful withholding of

exculpatory evidence and false testimony, and wrongful conviction and imprisonment,

all in violation of Plaintiffs rights under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution;

II: Conspiracy to violate Plaintiffs constitutional rights;

III. Failure to disclose exculpatory evidence depriving Plaintiff of his right to

a fair trial and due process;

IV. Deprivations of Plaintiffs constitutional rights resulting from official

policies, practices, and procedures;

V. Common law negligence resulting in wrongful incarceration and continued

detention;

VI. Common law false arrest; and,

VIII: Common law malicious prosecution.

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GENERAL ALLEGATIONS APPLICABLE TO ALL CLAIMS

Procedural History

14. On March 9, 1996, Dale Helmig was convicted of first degree murder in the 1993

death of his mother, Norma Helmig. He was sentenced to life in prison without parole and

began serving his sentence at the Crossroads Correctional Center in Cameron, DeKalb

County, Missouri. Helmigs conviction was affirmed byper curiam opinion in State v.

Helmig, 950 S.W.2d 649 (Mo.App. 1997).

15. Helmig filed a timely post-conviction motion under Mo. Sup. Ct. R. 29.15,

focusing on claims of ineffective assistance of counsel, which was overruled by the motion

court. That motion court was affirmed on appeal. Helmig v. State, 42 .S.W.3d 658 (Mo.App.

2001).

16. Helmig filed a Petition for Writ of Habeas Corpus in the United States District

Court for the Eastern District of Missouri and the Honorable David Noce ordered a new trial

on the basis that, during deliberations, the jury was given a map by some unknown person,

which had not been received into evidence, and which was requested in an effort to persuade

one or more hold-out jurors to change their votes from not guilty to guilty. Helmig v.

Kemna, No. 4:02CV-574-DDN, 2005 WL 2346954 (E.D.Mo. Sept. 26, 2005). However, the

Eighth Circuit Court of Appeals reversed. Helmig v. Kemna, 461 F.3d 960, 963 (8th Cir.

2006), cert. denied, 550 U.S. 922 (2007).

17. Helmig then filed a Petition for Writ of Habeas Corpus in the Missouri Supreme

Court which, on June 29, 2009, was denied without prejudice to Helmigs ability to bring a

petition for writ of habeas corpus in the Circuit Court of DeKalb County, Missouri.

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18. On July 17, 2009, Helmig filed his petition for writ of habeas corpus in DeKalb

County, Missouri Circuit Court and, after a three-day hearing in July, 2010, on November 3,

2010, Judge Warren McElwain issued a writ of habeas corpus on several grounds, each of

which would have independently supported issuance of the writ.

19. On December 13, 2010, Helmig was released (on conditions) from prison

pursuant to the writ and in accordance with Mo. Sup. Ct. R. 91.14.

20. The State sought review of Judge McElwains action by an original proceeding in

certiorari and the Missouri Court of Appeals, Western District held, inter alia, that Helmigs

due process rights were violated by the States failure to disclose evidence of the murder

victims reports of abuse by and fear of her estranged husband; that his right to a fair trial was

violated by delivery to the jury, at its request, of a map not in evidence; and, that Helmig had

established cause and prejudice on his claim that he was deprived of a fair trial.

21. The Court of Appeals ordered that the State had to retry Dale Helmig for his

mothers murder within 180 days of the mandate which was issued on July 1, 2011, or

discharge him from the States custody. State ex rel. Koster v. McElwain, 340 S.W.3d 221,

258 (Mo.App. 2011). Finally, on Sunday, August 14, 2011, the current Osage County

Prosecutor, Amanda Grellner, announced that Dale Helmig would not be tried again for the

murder of his mother.

Evidence Presented During the March, 1996 Trial

22. Norma Dean Helmigs body was found at the confluence of the Maries and Osage

Rivers in the Mari-Osa Delta in Osage County, Missouri on Sunday, August 1, 1993, during

the Great Midwest Flood. Her body was clad only in a nightgown and undergarments and a

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concrete cinder block was tied to her torso by a rope.

23. Norma Helmig was last seen alive just after midnight on July 29, 1993, at a

Country Kitchen restaurant in Jefferson City, Missouri, where she had dined alone on a

western omelet, milk, and coffee, according to waitress Carol McKinney.

24. Prior to going to the Country Kitchen, Norma Helmig had played Bingo at the

American Legion Hall on Tanner Bridge Road in Jefferson City with her sister, Dorothy

Bauer, which was her Wednesday night routine.

25. At some time after finishing her meal, in the early morning hours of Thursday,

July 29, 1993, Norma Helmig returned to her home on Pointers Creek in Osage County,

south and east of Jefferson City.

26. At some point in January or February, 1993, Norma Helmig and her husband, Ted

Helmig, separated and contested dissolution of marriage proceedings were commenced and

were ongoing at the time of Norma Helmigs death.

27. After her separation from Ted Helmig, Norma Helmig lived in the marital

residence on Pointers Creek, and during that time, Dale Helmig established a pattern of

occasionally staying with his mother there.

28. On Wednesday, July 28, 1993, Dale Helmig had been painting the Pizza Works in

Holts Summit, Missouri, north of the Missouri River from Jefferson City. Alex Bauer,

Dorothys husband and Dales uncle, testified at the murder trial that Dale Helmig called

while Norma Helmig and Dorothy Bauer were playing Bingo, looking for his mother, and

indicating that he was going to go home, meaning to Norma Helmigs residence at Pointers

Creek.

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29. Although Dale Helmig had planned to go home that evening, he was frustrated in

his attempt to do so because flood waters from the Great Midwest Flood of 1993 had washed

a leaking propane tank against the base of the Missouri Highway 54 Bridge over the Missouri

River at Jefferson City at around 8:00 a.m. that morning, forcing its closure. The bridge was

closed until the tank emptied itself and could safely be removed.

30. It was undisputed at trial that, as a result of the bridge closure, Dale Helmig

decided to stay in Fulton, Missouri, for the night, and he checked into the Travelier Motel in

Fulton, where Dennis Hazelwood, a delivery man for Mazzios Pizza in Fulton, delivered a

pizza to Dale Helmig in Room 49 at about 10:30 p.m.

31. Hazelwood noticed a white Buick parked outside Room 49 and Dale Helmig

drove a white Buick.

32. Dale Helmig told Sheriff Fowler that he slept Wednesday night in his motel room

in Fulton, and on Thursday morning, at around 9:30 a.m., he checked out of the motel and

drove to Holts Summit where he looked for a friend and put gasoline in his car. He then

drove across the bridge and went to La Casa Restaurant on Missouri Boulevard in Jefferson

City.

33. Pathologist Jay Dix estimated that Norma Helmig died in the early morning hours

of July 29, 1993. Therefore, if Dale Helmigs statement to Fowler was truthful, he could not

have killed his mother.

34. Dale Helmigs defense counsel made no attempt to present any evidence of alibi,

or to investigate and present evidence to corroborate the truthfulness of his clients statement

to Sheriff Fowler. The only evidence of alibi was presented by counsel for the State,

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leaving a seventeen-and-a-half hour gap in the accounting of Dale Helmigs whereabouts

and failing to draw out any of the evidence supporting Helmigs claim that he slept in his

motel room until 9:30 a.m.

35. On Thursday, July 29, 1993, Dorothy Bauer telephoned Norma Helmigs home

but could not reach her. Sometime that morning, Dale Helmig telephoned his Aunt Dorothy

and told her that he had been unable to reach his mother. He asked Dorothy Bauer to relay a

message to his mother that he planned to come home later.

36. The trial evidence showed, however, that on Thursday night, Dale Helmig instead

went to a bar in Jefferson City called The Jungle, and, while there, he encountered an

acquaintance, Stacey Medlock. Dale Helmig decided to spend the night with Stacey

Medlock in a motel in Eldon, Missouri.

37. On Friday morning, July 30, 1993, Dorothy Bauer again called her sisters home

and received no answer. Mrs. Bauer got a message to Velda Party, Norma Helmigs cousin,

who lived about three miles from Norma Helmig. Velda Party drove to Normas house

where she found Normas car in the carport but received no answer when she knocked on the

door. Mrs. Party phoned Dorothy Bauer, who, in turn, suggested that Mrs. Party go back to

Normas house because somethings wrong if her car is there and she doesnt answer the

door.

38. Also on Friday morning, July 30, 1993, Dale Helmig invited Stacey Medlock to

come with him to his mothers home. He had previously explained to Ms. Medlock that he

was going to have his kids for visitation that weekend and they were planning a barbeque at

his mothers home. He was excited at the prospect since he had not seen his children in a

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while due to disputes he was having with his estranged wife (their mother).

39. Dale Helmig and Stacy Medlock arrived at Norma Helmigs home at around

noon. Dale Helmig determined that his mother was not there. He led Ms. Medlock into the

house and mentioned to her that a small fan had been knocked over, and that the air

conditioner had been left on, which his mother would never do.

40. Not long after Helmig and Medlock arrived at Norma Helmigs home, Mrs. Party

and her husband arrived there. The four of them walked out of the house, accidentally

locking the door behind them. Dale Helmig noticed a window with a loose screen and

commented that a large box fan he had installed in the window a few weeks earlier was gone.

41. Dale Helmig called several relatives looking for his mother and learned that his

mother had failed to meet Dorothy Bauer for Thursday night Bingo at the Eagles Lodge. He

told Mrs. Bauer that his mother was missing and that a fan was missing from a window. At

trial, Mrs. Bauer testified that Dale Helmig mentioned that some of his mothers nightgowns

were missing.

42. Alex and Dorothy Bauer drove to Norma Helmigs house. Dorothy Bauer noticed

that the clothing her sister had been wearing when she last saw her at the American Legion

Hall on Wednesday, July 28, 1993 was in the bedroom. Mrs. Bauer testified that Dale

Helmig again mentioned that some of his mothers nightgowns were missing and mentioned

a gold chain. Alex Bauer testified that Dale Helmig mentioned that his mothers purse was

missing.

43. By mid-afternoon, Dale Helmig called the Osage County Sheriff to report his

mother missing. Deputy Backues of the Osage County Sheriffs Department was dispatched

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to Norma Helmigs home.

44. Dale Helmig told Deputy Backues that he had been staying with his mother, but

had been gone for several days until returning at noon that same day. Dale Helmig reported

to Backues that when he arrived, the air conditioner was on which was inconsistent with her

typical behavior of turning it off when she left the house. Dale Helmig also pointed out the

missing window fan, a scuff mark on the house below the window where the fan had been, a

small fan knocked over in the living room, a stove that was moved a few inches off of its

base, and pillows stuffed between the bed and night stand.

45. Dale Helmig had also noticed that his mothers cigarette case and lighter were by

her bed and she never left the home without them. Her bed was unmade, and other pillows

and clothing were on the floor, all of which was inconsistent with her meticulous

housekeeping. Outside the house, Dale Helmig had found a set of tire tracks in the grass

leading down toward the Pointer Creek Access Area, a public boat ramp on the nearby

Gasconade River. He tried to measure the tracks using a chain he had found in a storage

shed.

46. At trial, States case focused heavily on the statements Dale Helmig made while

he and his relatives were trying to discern what might have happened to Norma, as alleged

herein above, and the State argued that his behavior at the scene evidenced guilt because he

was too quick to conclude that something had happened to his mother.

47. Sheriff Fowler was called to the scene by Deputy Backues. Fowler testified that

Dale Helmig told him that his mothers purse, her keys, and a nightgown were missing.

48. Dale Helmig and Stacey Medlock left Normas house while Defendants Fowler

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and Backues were on the scene. Helmig needed to return Medlock to Jefferson City and to

make different arrangements for picking up his children. At trial, Medlock testified that

during the drive back to Jefferson City, Dale Helmig seemed worried and, at one point, said

someone must have gotten crazy drunk and killed her.

49. After dropping Medlock at her destination, Dale Helmig called his estranged

wife, Teresa. Teresa Helmig testified at trial that, during the call, Dale discussed his

mothers disappearance and mentioned that her purse, keys, and a nightgown were missing.

He mentioned the missing window fan and that his theory was that someone came in through

the window. She also testified that there were a couple comments made and that Dale

Helmig then angrily stated, are you trying to say I killed my own mother?

50. At trial, the State argued that the statements Dale Helmig made to Medlock and to

Teresa Helmig evidenced guilt as they suggested Dale Helmig already knew that his mother

was dead.

51. On Friday, July 30, and Saturday, July 31, 1993, Defendant Fowler supervised the

search of the premises. The sheets and blankets were taken from Norma Helmigs bed

because there appeared to be small streaks of blood on them. Fowler later testified that he

got the keys to Norma Helmigs car from Ted Helmig and that when he opened the trunk of

the car he saw a white sheet, grass seed, and human hairs. The car was impounded. Hairs

were found in the trunk of Mrs. Helmigs car, and Sheriff Fowler ordered it towed away from

the house. A rectangular spot of dead grass next to the house about the size of a cinder block

was photographed. The chain Dale Helmig used to measure the tire tracks was taken, but no

measurements or casts were made of the tracks themselves. Dale Helmigs guns were seized.

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The State later argued at trial that Norma Helmig was transported to the river in the trunk of

her own car and thrown from a bridge with a concrete block tied to her body.

52. The Missouri State Highway Patrol Crime Lab examined the sheets and blankets

for trace evidence. The streaks on Norma Helmigs blanket were indeed made by body fluid

that was human in origin, but the quantity was to small to analyze given the state of the

technology in 1993. Several human hairs were recovered from the sheets and subjected to

microscopic examination which determined that they belonged to neither Norma nor Dale

Helmig. Hairs recovered from the trunk of the car were consistent with hair recovered from a

hair brush belonging to Norma Helmig.

53. On Saturday, July 31, 1993, the police conducted an aerial search over Norma

Helmigs home and up and down the Gasconade River. Mrs. Bauer testified that Dale

Helmig was not at the house on Saturday. At trial, the State emphasized Dale Helmig's

absence from his mothers home during the search efforts on Saturday, July 31, 1993, as

evidence of his guilt and as inconsistent with his expressions of worry and concern the day

before.

54. On Sunday, August 1, 1993, Robert Steele and his son Jerry were using their boat

to check on property they owned near the MariOsa Delta, located at the confluence on the

Maries and Osage Rivers. They noticed a body floating in the trees along the riverbank,

about 100-150 yards from the Delta. The body was later identified by dental records as

Norma Helmig. She was wearing a nightgown when found.

55. Later that day, and before the body had been positively identified, Sheriff Fowler

gathered the family, including Ted Helmig, at Norma Helmigs home to report the discovery.

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Many of the family members responded emotionally and began crying. Sheriff Fowler

testified that Dale Helmig did not cry. Sheriff Fowler said Dale Helmig looked surprised and

began tapping his foot rapidly on the ground. At trial, the State suggested Dale Helmigs

reaction evidenced guilt.

56. Mrs. Bauer testified that Sheriff Fowler asked if anyone could identify the

clothing, the gown that Norma Helmig might have been wearing when she disappeared.

According to Mrs. Bauer, Dale Helmig advised he believed his mother would have been

wearing her white nightgown with blue flowers on it. Sheriff Fowler testified that he had no

recollection of asking anyone about what Norma Helmig might have been wearing at the time

he met with the family on Sunday, August 1, 1993. Nonetheless, the State argued that Dale

Helmig was the first to mention that Norma Helmig disappeared in the very nightgown she

was wearing when found, and that this knowledge suggested guilt as it indicated Dale Helmig

knew too much about the crime.

57. In the evening of Sunday, August 1, 1993, Dale Helmig voluntarily went to the

Sheriffs Department at Sheriff Fowlers request. Dale Helmig was given theMiranda

warning and agreed to provide a written statement. In his written statement, Dale Helmig

described his activities during the preceding week. At trial, the State argued that Dale

Helmig had not been instructed to account for his activities throughout the week, and that by

doing so, he was evidencing guilt by the need to establish an alibi.

58. Norma Helmigs stomach contents were consistent with the meal she had

reportedly consumed at the Country Kitchen in the early morning hours of Thursday, July 29,

1993. This permitted an expert to opine that the time of death was between 4:00 a.m. and

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6:00 a.m. on Thursday, July 29, 1993. The cause of death was officially noted as

undetermined, though asphyxiation was opined to be the likely cause. The State argued that

Dale Helmig had no alibi for the time frame of Norma Helmig's death.

59. On February 17, 1994, a purse and its contents were discovered by a farmer in a

farm field about a half-mile north of the Missouri River and about a mile and a half east of

the Highway 54 Bridge at Jefferson City. Sheriff Fowler and Deputy Backues investigated

the scene. They found checkbooks, papers, a wallet, two sets of keys, and some jewelry,

including a gold chain, in or near the purse. The purse belonged to Norma Helmig.

60. At trial, a hydrologist opined that the purse had been tossed into the river

somewhere along Highway 63, most likely from the Highway 63/54 Bridge outside of

Jefferson City, and the State argued that Dale Helmig threw the purse off the bridge in the

early morning hours of Thursday, July 29, 1993, after murdering his mother and on his return

to the Travelier Motel in Fulton. The State also argued that Dale Helmig was the first to

mention his mothers missing purse, keys, and gold chain, and that it was not a coincidence

that all of those missing items had been found in or near the purse.

61. Shortly after the purse was found, a warrant was issued for Dale Helmigs arrest.

Sheriff Fowler testified that it was his opinion that because contents in the purse had been

reported missing by Dale Helmig, finding the purse with those missing items indicated

excessive knowledge on Dale Helmigs part before Norma Helmig's murder was established.

Dale Helmig was arrested in the early morning hours of March 6, 1994.

62. Dale Helmig was questioned by Trooper Robert Westfall of the Missouri

Highway Patrol by agreement with Sheriff Fowler. Dale Helmig told Trooper Westfall that

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Sheriff Fowler was responsible for all of this and that he [Dale Helmig] knew who had

killed his mother but no one could prove it. Trooper Westfall told Dale Helmig that he had

lost his own mother a couple of years ago, though his mother was actually still alive. He

then told Dale Helmig that he felt his mother was watching over him and that he spoke with

her regularly. Trooper Westfall told Dale Helmig that his [Dale Helmigs] mother was

watching him, and that if he wished, he could speak to her also. Dale Helmig began to sob,

leaned forward in his chair and said, Im sorry, Im just sorry. Trooper Westfall testified at

trial that Dale Helmig never denied killing his mother. The State argued that Dale Helmigs

conduct during his interactions with Trooper Westfall evidenced his guilt.

63. Dorothy Bauer testified that after Ted Helmig moved out of Normas house and

Dale Helmig moved in, Norma Helmig seemed nervous and upset a lot. Mrs. Bauer said she

observed several arguments between Dale Helmig and Norma Helmig. Mrs. Bauer said that

she saw Norma and Dale Helmig argue about a phone bill not long before her death. Dorothy

Bauer claimed that Norma Helmig was fearful of Dale Helmig. The State argued at trial that

Dale Helmigs motive to kill his mother was her growing irritation with him about money

and her decision to cut him off.

64. At trial, on cross-examination, Sheriff Fowler acknowledged having a copy of a

police report from the Jefferson City Police Department regarding a complaint filed by

Norma Helmig against Ted Helmig for throwing coffee in Norma Helmigs face at the

Country Kitchen in Jefferson City in the early morning hours of July 11, 1993. The report

noted that Ted Helmig said to Norma, Im going to have an end to this once and for all.

65. Sheriff Fowler acknowledged that during the preliminary investigation into

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Norma Helmigs disappearance, Ted Helmig told him on two occasions that he and Norma

had still been having sexual relations periodically. Sheriff Fowler testified that he did not

know Norma Helmig but knew of her, though he had talked with her a few times after she

and Ted Helmig filed for divorce. He did not indicate the nature of those conversations.

66. Sheriff Fowler also testified at trial that neither he nor any of his deputies had

ever been called out on a domestic disturbance call involving Norma and Ted Helmig. In

addition, in response to the States questioning on redirect, the following exchange took

place:

Q. Mr. Jordan asked you some questions about altercations. Have you become aware

that Dale Helmig had an altercation with his mother?

A. Yes.

Q. Where?

A. Country Kitchen.

Q. When?

A. The Sunday before her death.

Dale Helmigs trial counsel did not object to this line of questioning.

67. This was the first of several references by the State to an alleged incident

involving Dale Helmig and his mother which purportedly involved Dale Helmig throwing

hot coffee in his mothers face at the Country Kitchen on the Sunday preceding her death.

The State late endorsed Darla Toebben Voss as a witness on the morning of trial. The State

advised that Ms. Voss, a waitress at the Country Kitchen, had observed this incident first

hand. However, the State had not yet located or talked to Ms. Voss, and was relying on the

report of another waitress, Carol McKinney, that Ms. Voss had reported the incident. Ms.

McKinneys testimony about what Ms. Voss told her was obvious hearsay. The State was

thus expressly instructed by the trial court on the morning of trial that it was not to mention

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the incident, or to in any manner discuss the incident, in front of the jury until you are sure

[Darla Voss is] going to provide the testimony you're going to represent to them.

68. Notwithstanding this instruction, the State raised the alleged incident between

Dale Helmig and his mother at the Country Kitchen at least three times during witness

examinations and once during closing argument. The State never called Darla Toebben Voss

to testify, and afforded the habeas court with no evidence suggesting that it ever located Ms.

Voss.

69. At trial, the State called Carol McKinney, the Country Kitchen waitress who

waited on Norma Helmig on Wednesday, July 28, 1993, as a witness. During the State's

direct examination, the following exchange occurred:

Q. Do you recall an incident a few days before the 28th of July involving the

defendant and Norma Helmig?

A. Yeah, there was an incident at Country Kitchen with that.

Q. What do you know about this particular incident?

A. What I know about it is one of the other waitresses that was waiting on Norma

came back in the galley and said her son had just threw coffee in her face.

Helmigs hearsay objection was sustained.

70. Dale Helmigs criminal defense lawyer presented the testimony of six witnesses.

The defenses theory was that the State had failed to prove the corpus delicti of murder.

Defense counsel put on evidence that Norma Helmig had a prescription drug and alcohol

addiction and that she was suffering from painful medical conditions. The defense created

the implication that Norma Helmig may have died of natural causes and/or by an accidental

or purposeful overdose, a strategy the trial court noted on the record (though outside the

hearing of the jury) to be ridiculous. Lab reports presented to the jury revealed no drugs in

Norma Helmigs system. In addition, Norma Helmigs body was found weighted down with

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a concrete cinder block tied to her torso.

71. Dale Helmigs criminal defense lawyer also called Officer Douglas Shoemaker,

the Jefferson City police officer who prepared the report of the incident at the Country

Kitchen which occurred in the early morning hours of July 11, 1993, where Ted Helmig

threw hot coffee in Norma Helmigs face and threatened her. Shoemakers report noted that

Ted Helmig had threatened Norma Helmig by saying, I am going to have an end to this once

and for all.

72. On cross-examination, the State asked Officer Shoemaker whether he was the

officer who had investigated a similar incident at the Country Kitchen involving Dale

Helmig, thus suggesting that the incident between Dale Helmig and his mother had, in fact,

occurred in violation of the trial courts admonition not to do so. Defense counsel thought to

argue during closing that the only time hot coffee had been thrown at Norma Helmig at the

Country Kitchen was when Ted Helmig did so shortly before Norma Helmigs death.

73. The State produced no direct evidence linking Dale Helmig to his mothers

murder, and no physical evidence placed him at the scene of the crime. The State

acknowledged in opening statement and closing argument that its case against Dale Helmig

was based solely on circumstantial evidence that fell into three categories:

(a) Dale Helmig and his mother had argued over a phone bill and otherwise about

money;

(ii) Dale Helmig was too quick to suspect foul play in his mothers disappearance and

knew too much, too soon; and,

(iii) Dale Helmig made statements after his mother disappeared that gave rise to a

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suspicion of guilty knowledge.

In the States view, this was, as alleged above, because he suspected on Friday evening that

his mother was killed, two days before her body was found. The State also inferred guilt

from the claim that Dale Helmig had told police on Friday, July 30, that his mothers

nightgown was missing and when she was found, she was wearing the nightgown.

74. As alleged above, on March 9, 1996, after a five day jury trial and five hours of

jury deliberations, Dale Helmig was convicted of first degree murder of his mother. He was

sentenced to life in prison without parole and began serving his sentence. His appeal and

post-conviction proceedings ensued, as alleged above.

Evidence Presented During the Habeas Proceeding

75. After Helmig filed his petition for writ of habeas corpus in DeKalb County

Circuit Court a three-day hearing was held in July, 2010 and new evidence was presented that

was never heard by the jury at the 1996 murder trial.

76. During the habeas proceeding, Ted Helmig testified that when Norma Helmig

filed for divorce, she secured a protective order against him based on allegations that he had

physically and emotionally abused her. Ted Helmig admitted being involved in an

altercation with Norma Helmig on July 11, 1993. On that occasion, he showed up at the

Country Kitchen where Norma was eating. Ted Helmig admitted that he got into it with

Norma and threw a glass of water into her face. They were arguing at the time over money.

77. Ted Helmig also admitted that he had been at the American Legion Hall on

Wednesday, July 28, 1993, and that he had seen Norma Helmig that evening having a drink

in the bar with another man, Bud Becker. Though he denied going to Norma Helmigs house

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on Wednesday, July 28, 1993, or in the early morning hours of Thursday, July 29, 1993, he

volunteered that he would still go to Normas house occasionally following their separation

and that she would let me come in once in awhile. Ted Helmig claimed that after he left

the American Legion Hall on Wednesday, July 28, 1993, he went to his apartment by himself

and acknowledged that no one would be able to verify his whereabouts during the time frame

of Norma Helmigs murder. Ted Helmig acknowledged that at the time of Norma Helmigs

murder, he still had keys to the house on Pointers Creek.

78. At some point before Norma Helmigs body was found, Ted Helmig sought out

Sheriff Fowler to tell him that he and Norma Helmig had sex in Norma Helmigs bed on

more than one occasion shortly before her disappearance. He denied that his purpose in

reporting this information to Sheriff Fowler was a concern the Sheriff would find evidence

placing him in Norma Helmig's bedroom. On Sunday, August 1, 1993, the day Norma

Helmigs body was found, Ted Helmig was at Normas house when Sheriff Fowler came to

meet with the family. He testified he absolutely did not cry when he learned a body had been

found in the river. He did, however, ask Sheriff Fowler if the body was mutilated. That

evening, Ted Helmig went to the Sheriffs Department to talk to Sheriff Fowler at the

Sheriff's request. Sheriff Fowler told Ted Helmig that he ought to be his number one

suspect but that he wasnt.

79. After Norma Helmig's murder, her mail was held at the post office. Ted Helmig

testified that he retrieved Norma Helmigs mail from the post office on several occasions in

the two-to-four week period immediately following her death. Ted Helmig admitted opening

Norma Helmigs mail and going through the mail. The mail included a bank statement

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enclosing cancelled checks. Ted Helmig admitted he was trying to see where Norma Helmig

had been getting her money because she wasn't getting no money from me and she wasn't

working.

80. Ted Helmig knew that Norma Helmig had approximately $22,000 in the bank.

As a result of Norma Helmigs death, Ted Helmig received all of this money, the house on

Pointers Creek, and all other jointly owned assets which would otherwise have been divided

as a part of the divorce.

81. Patty Rogers (formerly Patty Helmig) testified. Ms. Rogers was married to Dale

Helmig at the time of his trial they married after his arrest. After her husbands conviction,

she and the baby daughter she had with Dale Helmig lived temporarily with Ted Helmig.

Mrs. Rogers saw Ted Helmig intoxicated on several occasions. When he was intoxicated, he

would talk to himself. Ms. Rogers heard Ted Helmig say, Im sorry. I didnt mean to hurt

you. I didn't mean for this to happen. Ms. Rogers spoke with law enforcement about what

she had heard Ted Helmig say. As a result of those reports, she moved out of Ted Helmigs

house. She testified that Sheriff Fowler told her to move out or I would be the next one he

would pull out of the river.

82. Tina Ridenhour testified by deposition. She testified that she and her family were

camping in an area consumed by flood waters on July 7, 1993. They were stranded. Norma

Helmig noticed them and invited them into her home to stay with her until the waters

receded. While they were at Normas house, they observed that Norma acted very nervous,

and she had a handgun with her at all times.

83. Tina Ridenhour testified that Norma received several phone calls while they were

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at Normas home. Norma Helmig told Ridenhour that the calls were from her son. The son

called numerous times at least a dozen or more. The tenor of the conversations was always

friendly, not fearful.

84. During the course of the evening, Norma Helmig talked with the Ridenhours

about her husband, Ted Helmig. Norma advised that she was in the process of getting a

divorce and that her husband was not very nice and liked to smack people around. At one

point she received a call that upset her, though Tina Ridenhour did not know from whom.

Norma Helmig seemed aggravated and fidgety after the call and started checking the

windows. She finally said, Were safe. We cant get out. He cant come in.

85. Deputy Backues testified at the habeas hearing that he had prepared a report of

the items Dale Helmig told him were missing from the home. Backues further testified that

if things had been mentioned . . . as missing from the house, he would have made note of

that in his report. He admitted, however, that the report he made following the investigation

on Friday, July 30, 1993, made no mention of a gold chain having been reported as missing

by Dale Helmig.

86. Deputy Backues assisted in the recovery of Norma Helmigs purse when it was

discovered in February 1994. He catalogued the contents of the purse that were recovered.

The contents included cancelled checks and, specifically, cancelled check number 1251.

Deputy Backues said that he made no attempt to determine when the cancelled checks had

cleared the bank in relation to Norma Helmigs death.

87. Most of the checks, including number 1251, were not introduced into evidence

during the original trial given a lack of understanding by the State and Helmig of the

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significance of when the purse was thrown into the river.

88. Sheriff Fowler testified at the habeas proceeding that Norma Helmig had made

allegations of physical violence against Ted Helmig while their divorce proceedings were

pending. He acknowledged that Norma Helmig reported safety concerns to him in person

and on the phone at various times and on multiple occasions.

89. Sheriff Fowler estimated he was contacted between five and fifteen times by

Norma Helmig after her separation from Ted Helmig in the spring of 1993, principally

between February or March and June or July. Fowler recalled that proceedings to end the

Helmigs marriage began in March, 1993.

90. None of Norma Helmigs complaints were ever reduced to a written police report.

91. Sheriff Fowler acknowledged that Norma Helmig asked him about the procedure

for acquiring and registering a handgun.

92. Sheriff Fowler admitted that the alleged report that Dale Helmig had thrown hot

coffee in his mothers face at the Country Kitchen on the Sunday preceding her death could

not be substantiated.

93. The unsubstantiated and undocumented report of Dale Helmig throwing coffee in

his mothers face had been a point of emphasis by the prosecution in the trial and was the

object of repeated references as having been a matter of fact, but Sheriff Fowlers admission

that the incident was undocumented and unsubstantiated undermines what the jury was led to

believe and what had bolstered the States circumstantial case.

94. Sheriff Fowler also testified at the habeas hearing about the recovery of Norma

Helmigs purse. He acknowledged recovering cancelled checks in or near the purse. Sheriff

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Fowler acknowledged check number 1251 cleared the bank on July 30, 1993, after Normas

death, and is itemized on Norma Helmigs bank statement for the period from July 12, 1993,

to August 9, 1993.

95. Sheriff Fowler testified that the discovery of the purse had been very significant,

and gave rise to Dale Helmigs arrest. He testified that it was his theory that whoever

murdered Norma Helmig took her purse and threw it off the bridge.

96. The State argued to the jury that Dale Helmig was guilty because he had surmised

that his mothers missing car keys and gold chain might be in her purse. (Helmig maintained

at the habeas hearing that he never said anything about a gold chain in his mothers purse and

Backues testified that he had conscientiously written down all of the property that Dale

Helmig had reported missing and, if Helmig had mentioned the chain, he would have put it in

the report. No chain is mentioned in the report.) The States hydrologist had testified at trial

that based on the water currents during the flood and the location of the purse when found, it

had probably been thrown from the Highway 54 Missouri River Bridge at Jefferson City.

From that, the State had argued that Dale Helmig must have thrown the purse from the bridge

as he drove back to Fulton after having killed his mother.

97. The habeas court also received the deposition testimony of Dwayne Muck who

worked with Exchange Bank, Norma Helmigs bank. He verified that cancelled check

number 1251 cleared the bank on July 30, 1993, and would have been included in a bank

statement mailed to Norma Helmig sometime after August 9, 1993, the cut off for the

applicable statement period. Thus, this bank statement would have been mailed to Norma

Helmig (along with the cancelled checks, including check number 1251), on or after August

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102. Neither the prosecutor nor Helmigs defense attorney challenged Westfalls trial

testimony with the prior inconsistent statement in his report and so his false testimony went

to the jury uncorrected and unchallenged, leaving the jury to deliberate under the false

assumption that Helmig had failed to deny the murder of his mother when formally accused

during interrogation.

103. Westfalls recantation of his trial testimony negated the supposed tacit admission

by Helmig during Westfalls interrogation.

104. Also during the habeas corpus proceedings, the court heard testimony that

undermined and, in fact, contradicted the States circumstantial, manipulated case against

Dale Helmig as witnesses testified:

(i) about Dale Helmigs whereabouts during the evening of July 28, 1993, and during

the day on July 29, 1993;

(ii) that Dale Helmig was in a good mood on these dates and excited at the prospect

of seeing his children;

(iii) about Dale Helmigs loving relationship with his mother;

(iv) that Dale Helmig did not participate in the search for Norma Helmig on

Saturday, July 31, 1993, because he had custody of his children, and because he had

been directed by Deputy Backues not to have the children around the search efforts,

neutralizing the inference of guilt associated with Dale not being present;

(v) about when the subject that Norma Helmig might be found in her nightgown was

first raised and by whom;

(vi) about Dale Helmigs belief that his father may have killed his mother;

(vi) about whether Norma Helmig actually wore her keys on her belt or carried them

in her purse; and,

(vii) about the allegedly impaired condition of Christopher Jordan, Dale Helmigs trial

counsel, during trial.

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105. Finally, the habeas court received the transcript of testimony given in the federal

habeas corpus proceeding relating to the map that was not in evidence but was given to the

jury during its deliberations.

Specific Instances of Defendants Failures to Disclose Exculpatory Evidence and

Manipulation of Evidence

106. As alleged above at 88-90, Norma Helmig made repeated reports of abuse,

violence and threats of violence by her estranged husband, Ted Helmig, to Fowler and

deputies in the months following her separation from Ted Helmig during the time their

divorce was pending. These reports of abuse, violence, and threats of violence were never

turned over to the prosecution or Dale Helmig by Fowler or Backues.

107. As alleged above at 91, Fowler acknowledged that Norma Helmig had asked

him about the procedure for acquiring and registering a handgun, a fact which Fowler had not

disclosed prior to trial.

108. In addition, Fowler failed to disclose that Norma Helmig had telephoned him in

April 1993 to ask whether her dissolution of marriage papers had been served on Ted Helmig

and to tell Fowler that she had purchased a gun and was in the process of registering it

through Fowlers office, stating to Fowler that she had purchased the gun because she feared

violence by her estranged husband, Ted Helmig.

109. As alleged above at 92-93, Fowler manipulated evidence in order to steer the

murder investigation toward Dale Helmig when there was no evidence or motive by him to

commit the murder of his mother, despite clear evidence and motive that Norma Helmigs

estranged husband, Ted Helmig, had to commit the murder. In particular, Fowler said that

Dale Helmig had an altercation with his mother shortly before the murder at a local restaurant

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called the Country Kitchen in which Dale Helmig had thrown coffee in Ms. Helmigs face,

when in fact, Fowler knew it was Ted Helmig that had committed that assault on Norma

Helmig shortly before Norma Helmigs murder.

110. As alleged above at 53 and 104 (iv), Fowler and Backues manipulated

evidence and said that Dale Helmig had refused to participate in the crime scene investigation

on Saturday, July 31,1993, at the home of Norma Helmig shortly after her body was

discovered by fishermen floating in the Osage and Maries River confluence with her torso

tied to a cinder block, when in fact, Backues had directed Dale Helmig not to come to Norma

Helmigs home at that time.

111. As alleged above at 100-101 and 103, Defendant Westfall failed to disclose

that Dale Helmig denied murdering his mother, Norma Helmig, and, in fact, falsely disclosed

and testified that Dale Helmig had tacitly admitted to him that he had murdered her.

112. Defendant Fowler falsely testified that, at a gathering of Norma Helmigs family

whom Fowler had requested to gather for the purposes of investigating her disappearance in

1993, he did not ask family members of Norma Helmig what she might have been wearing

and failed to disclose that he had in fact asked that question, to which Dale Helmig responded

that she was likely wearing her white nightgown with blue flowers, as he had been living

with his mother in the weeks following her separation from Ted Helmig, and because Dale

Helmig had heard from Dorothy Bauer that the clothes Norma had been wearing at bingo on

Wednesday night were laying out in her bedroom, so she must have been in her nightgown

when she disappeared, something that Dorothy Bauer had also told Fowler. Fowler then

manipulated that statement by Dale Helmig and spun it in a way to implicate Dale Helmig as

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the murderer of Norma Helmig by falsely saying he was too quick to identify what she might

have been wearing and thereby implicated himself as the murderer, having known what she

was wearing when he killed her.

113. Defendant Fowler failed to disclose that he had requested Dale Helmigs

assistance in piecing together Norma Helmigs activities in the weeks previous to her murder

and falsely testified and manipulated the evidence to falsely suggest that he had not asked for

Dale Helmigs assistance in doing so. Instead, Fowler falsely stated and skewed his

testimony to the effect that Dale Helmig seemed too anxious to help and volunteered too

much information, falsely implicating him as Norma Helmigs murderer when he was and is

not the murderer.

COUNT I

MALICIOUS PROSECUTION ,FALSE ARREST,PROCUREMENT OF UNRELIABLE AND/OR

FABRICATED EVIDENCE,USE OF UNRELIABLE AND FRAUDULENT INVESTIGATORY

TECHNIQUES,WRONGFUL WITHHOLDING OF EXCULPATORY EVIDENCE AND FALSE

TESTIMONY ,WRONGFUL CONVICTION AND IMPRISONMENT

42 U.S.C. 1983

Deprivation of Fourth, Fifth, Sixth, and Fourteenth Amendment Rights(Against Defendants Fowler, Westfall, and Backues)

114. Plaintiff hereby incorporates by reference paragraphs ? through ? as if fully set

forth here.

115. The illegal arrest, illegal confinement, malicious prosecution, and wrongful

conviction of Plaintiff was deliberately and intentionally brought about by Defendants. The

arrest, confinement, prosecution, and conviction were the obvious and intended results of the

withholding of exculpatory evidence and false testimony designed to prove a case against

Plaintiff despite his actual innocence, which was or should have been known to Defendants.

116. In their investigation, Defendants procured demonstrably unreliable and false

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evidence.

117. Additionally, Defendants utilized fraudulent and unreliable techniques in their

investigation.

118. Defendants maintained policies and practices which ignored the constitutional

obligations of the named law enforcement entities and persons to provide evidence of

innocence to the defense. The policies and practices discouraged the provision of

exculpatory evidence and permitted behavior, such as here, in which false testimony was

given in contravention of exculpatory evidence to the contrary.

119. The actions of Defendants constituted unconstitutional seizures of Plaintiff in

violation of the Fourth and Fourteenth Amendments to the United States Constitution. The

actions of Defendants alleged in this Count I resulted in multiple violations of Plaintiffs

rights to the due process of law and a fair trial under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and subsequently resulted in the cruel and

unusual punishment of Plaintiff under the Eighth and Fourteenth Amendments to the United

States Constitution.

120. The actions of Defendant alleged in this Count I also violated Plaintiffs right to

the effective assistance of counsel under the Sixth and Fourteenth Amendments because

Defendants interfered with defense counsels ability to provide constitutionally effective

assistance.

121. The actions of Defendants mentioned in this Count I violated Plaintiffs rights

under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution, and, thus, are protected by 42 U.S.C. 1983. Defendants actions as alleged in

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this Count I proximately and directly caused Plaintiff grievous and permanent injury,

including 14-plus years of incarceration and the attendant loss of freedom, companionship,

and income; and the attendant infliction of mental and physical pain, suffering, anguish, fear,

including the fear of being incarcerated for the remainder of his life for a murder he did not

commit, and damage to family relationships because the murder victim was his mother.

Plaintiffs personal and business reputation suffered permanent damage. For these damages

and injuries, Plaintiff is entitled to monetary relief.

122. Defendants actions were deliberate, reckless, wanton, cruel, and were engaged

in with evil motive or reckless disregard for Plaintiffs rights, justifying an award of punitive

damages.

COUNT II

CONSPIRACY UNDER42 U.S.C. 1983

(Against All Defendants)


forth here.

124. Defendants Fowler, Westfall, Backues, and Osage County together, and under

the color of state law, reached an understanding, engaged in a course of conduct, and

otherwise conspired among and between themselves to deprive Plaintiff of his constitutional

rights, including his right to be free from unreasonable arrest and seizure; to be free from

wrongful conviction and imprisonment; to be free from malicious prosecution; to fair trial

and fair access to the courts; to due process of law; to effective assistance of counsel; to be

free from cruel and unusual punishment and all basic rights of American citizens faced with

criminal sanctions. The conspiracies violated Plaintiffs rights under the First, Fourth, Fifth,

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Sixth, Eighth, and Fourteenth Amendments and 42 U.S.C. 1983.

125. In furtherance of the conspiracy, as alleged,supra, Fowler and Backues

manipulated evidence and said that Dale Helmig had refused to participate in the crime scene

investigation on Saturday, July 31, 1993, at the home of Norma Helmig shortly after her body

was discovered by fishermen floating in the Osage and Maries River confluence with her

torso tied to a cinder block, when in fact Backues had directed Dale Helmig not to come to

Norma Helmigs home at that time, thereby keeping him from the home despite requests by

Dale Helmig to reconsider that direction.

126. The Defendants named in this Count II, together with unsued, unnamed co-

conspirators, committed the overt acts set forth in the factual statements above. The overt

acts involved the wrongful arrest, prosecution, conviction, and imprisonment of Plaintiff. It

also included the manufacture and use of knowingly false and knowingly unreliable evidence

which was intended to inculpate Plaintiff; the suppression of exculpatory evidence,

intentional failure to investigate evidence that would exculpate Plaintiff; and provision of

false testimony. The conspiracy was designed to prove a case against Plaintiff despite his

actual innocence which was or should have been known to Defendants.

127. The overt acts violated the constitutionally protected rights of Plaintiff.

128. The conspiracies and overt acts were continuing in nature and proximately and

directly caused Plaintiff constitutional deprivations, grievous and permanent injury, including

14-plus years of incarceration and the attendant loss of freedom, companionship, and income;

and the attendant infliction of mental and physical pain, suffering, anguish, fear, including

the fear of being incarcerated for the remainder of his life for a murder he did not commit,

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and damage to family relationships because the murder victim was his mother. Plaintiffs

personal and business reputation suffered permanent damage. For these damages and

injuries, Plaintiff is entitled to monetary relief.



damages.

COUNT III

FAILURE TO DISCLOSE EXCULPATORY EVIDENCE

42 U.S.C. 1983

(Against Defendants Fowler, Westfall, and Backues)


forth here.

131. Defendants, along with other investigative and prosecutorial personnel, together

and under the color of state law, kept from Plaintiff and his counsel exculpatory information,

including information supporting his innocence casting doubt on the reliability of the primary

witnesses against Plaintiff.

132. The withholding of various types of exculpatory evidence violated Plaintiffs

rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution, as protected by 42 U.S.C. 1983. The withholding of exculpatory

evidence proximately and directly caused Plaintiff grievous and permanent injury,

constitutional deprivations, including 14-plus years of incarceration and the attendant loss of

freedom, companionship, and income; and the attendant infliction of mental and physical

pain, suffering, anguish, fear, including the fear of being incarcerated for the remainder of his

life for a murder he did not commit, and damage to family relationships because the murder

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victim was his mother. Plaintiffs personal and business reputation suffered permanent

damage. For these damages and injuries, Plaintiff is entitled to monetary relief.



damages.

COUNT IV

DEPRIVATIONS OF CONSTITUTIONAL RIGHTS

RESULTING FROM OFFICIAL POLICIES,PRACTICES, AN D PROCEDURES

42 U.S.C. 1983

(Against Defendants Osage County and Fowler)


forth here.

135. Defendants Osage County and Fowler had in effect, both before and at the time

of the events alleged in this Amended Complaint, policies, practices, and customs which

operated to deprive Plaintiff of his constitutional rights.

136. Defendants Osage County and Fowler are liable under 42 U.S.C. 1983 because

they established policies and practices that were intended to and did encourage, endorse, and

reward their agents and employees for violating the constitutional rights of Plaintiff and other

similarly situated persons. At a minimum, the supervisors and the governmental units were

deliberately indifferent to such constitutional violations. Adherence by Defendants to said

policies, practices, and customs deprived Plaintiff of his federal constitutional rights.

137. Defendants Osage County and Fowler engaged in unlawful and unconstitutional

policies, practices, and customs, including, but not limited to:

a. the policy of Defendant Fowler, whose policies as the highest ranking law

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enforcement policy maker constitute the policies of Defendant Osage County,

not to document and/or investigate reports, claims, or complaints of domestic

violence when those calls involved what Fowler perceived as domestic

disturbances between family members, having said, on information and belief

that it was not the job of the Sheriff or his deputies to be babysitters; this

policy was so pervasive within the Osage County Sheriffs Department that it

became the policy of the Department and the County and was a moving force

behind the deprivation of Dale Helmigs constitutional rights.

b. the failure to properly train and supervise officers in the techniques of

reliably investigating serious crimes, including, but not limited to, the failure

to properly train and supervise officers concerning their obligation to turn over

all evidence to the prosecution, including evidence that tends to prove the

innocence of the defendant in an ongoing investigation and prosecution;

c. the use of interrogation techniques which, though having an increased

likelihood of obtaining information from persons, had a great likelihood of

obtaining false and unreliable information from suspects and witnesses;

d. the suppression, destruction or other non-disclosure of exculpatory

evidence, and denying access to exculpatory evidence;

e. being deliberately indifferent to the violation by law enforcement officers of

the rights of the accused.

138. Defendants Osage County and Fowler had acquired, before and during the time

periods of the investigation of Norma Helmigs murder and Plaintiffs prosecution, each of

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the policies, practices, and customs listed in this Count IV.

139. Additionally, Defendant Osage County acted in concert with Defendant Fowler

in a collaborative effort to adopt and perpetuate the unconstitutional policies, practices, and

customs of each other.

140. Defendants Fowler, Backues, and Osage County failed to disclose the existence

of this policy to Dale Helmig, and, when coupled with the failure to disclose to Dale Helmig

the fact of Norma Helmigs reports of domestic violence, threatened violence, pleas for

protection from her estranged husband, Ted Helmig, as well as her request for assistance in

acquiring a firearm for protection, would have tended to prove Dale Helmigs innocence,

requiring its disclosure.

141. These interrelated policies, practices, and customs, separately and together, were

implemented intentionally to deprive possible targets of criminal investigations of their

constitutional rights, or, at the very least, were implemented with a deliberate indifference to

the rights of possible targets of criminal investigation and with the failure to disclose them in

the context of Norma Helmigs reports of domestic violence and pleas for protection and help

acquiring a firearm, were a direct and proximate cause of the Constitutional violations and

injuries, as set forth in Counts I, II, and III of this Complaint.

142. The use of the interrelated policies, practices, and customs, separately and

together that caused the Constitutional violations and injuries set forth in Counts I, II and III

warrant an award of monetary relief to Plaintiff.

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COUNT V

COMMON LAW NEGLIGENCE RESULTING IN WRONGFUL INCARCERATION

AN D CONTINUED DETENTION

(Against All Defendants)


forth here.

144. If Defendants and other unnamed law enforcement and civilian co-conspirators

did not act intentionally, deliberately and in bad faith, they did compile against Plaintiff an

unreliable case through negligent investigation, irresponsible procurement and destruction of

evidence, and inadequate training and supervision. Defendant Osage County is responsible

for this negligence under the doctrine of respondeat superior.

145. The Defendants named in this Count are responsible for negligence in causing

the incarceration and continued detention of an innocent person, Plaintiff Dale Helmig.

146. In addition to owing Plaintiff a duty of care in the period of time leading up to

his prosecution, they had an ongoing duty to inquire regarding the correctness of the

incarceration.

147. The negligence in causing the incarceration and continued detention of Plaintiff,

despite the existence of evidence demonstrating innocence, proximately and directly caused

Plaintiff constitutional deprivations, grievous and permanent injury, including 14-plus years

of incarceration and the attendant loss of freedom, companionship, and income; and the

attendant infliction of mental and physical pain, suffering, anguish, fear, including the fear of

being incarcerated for the remainder of his life for a murder he did not commit, and damage

to family relationships because the murder victim was his mother. Plaintiffs personal and

business reputation suffered permanent damage. For these damages and injuries, Plaintiff is

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entitled to monetary relief.

148. Because Defendants actions were deliberate, reckless, wanton, cruel, and were

engaged in with evil motive or reckless disregard for Plaintiffs rights, justifying an award of

punitive damages.

COUNT VI

COMMON LAW CLAIM FORFALSE ARREST



forth here.

150. Defendants, acting in concert each with the other, did willfully and unlawfully

and under color of legal authority, illegally arrest and/or permit the illegal and false arrest of

Plaintiff and detained him against his will without due and legal process.

151. As a result of the illegal and false arrest, Defendants proximately and directly

caused Plaintiff constitutional deprivations, grievous and permanent injury, including 14-plus

years of incarceration and the attendant loss of freedom, companionship, and income; and the

attendant infliction of mental and physical pain, suffering, anguish, fear, including the fear of

being incarcerated for the remainder of his life for a murder he did not commit, and damage

to family relationships because the murder victim was his mother. Plaintiffs personal and

business reputation suffered permanent damage. For these damages and injuries, Plaintiff is

entitled to monetary relief.



punitive damages.

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COUNT VII

COMMON LAW CLAIM FORMALICIOUS PROSECUTION



forth here.

154. Defendants, acting in concert each with the other, did willfully, unlawfully, and

maliciously cause Plaintiff to be falsely prosecuted in court.

155. Defendants fabricated evidence, suppressed evidence of innocence, destroyed

and/or participated in the destruction of evidence, and built a case based on inaccurate and

misleading information.

156. The actions of Defendants as alleged in all counts of this Complaint, violated

Plaintiffs civil rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth

Amendments to the United States Constitution.

157. The unlawful and reckless acts of the Defendants resulted in malicious

prosecution, abuse of process, and false arrest, wrongful conviction and wrongful

imprisonment.

158. Defendants malicious activity as alleged in this Count VII proximately and

directly caused Plaintiff constitutional deprivations, grievous and permanent injury, including

14-plus years of incarceration and the attendant loss of freedom, companionship, and income;

and the attendant infliction of mental and physical pain, suffering, anguish, fear, including

the fear of being incarcerated for the remainder of his life for a murder he did not commit,

and damage to family relationships because the murder victim was his mother. Plaintiffs

personal and business reputation suffered permanent damage. For these damages and

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injuries, Plaintiff is entitled to monetary relief.



punitive damages.

PRAYER FORRELIEF

WHEREFORE, Plaintiff prays that this Court will:

a. assume jurisdiction of this cause to determine the cause upon a jury trial on the

merits;

b. award such compensatory damages to Plaintiff and against Defendants, jointly and

severally, as the jury shall award;

c. award such punitive damages to Plaintiff and against Defendants, jointly and

severally, as are available under the law and as the jury shall award;

d. award Plaintiff his costs; his attorney fees and expenses pursuant to 42 U.S.C.

1988; pre-judgment and post-judgment interest; all other damages allowed by law;

and, such other and further relief as the Court deems just and proper.

DEMAND FORJUR Y TRIAL

Plaintiff demands a jury trial on all issues raised herein.

Respectfully submitted,

ARTHUR BENSON & ASSOCIATES

By s/ Arthur A. Benson II

Arthur A. Benson II Mo. Bar No. 21107

Jamie Kathryn Lansford Mo. Bar No. 31133

4006 Central Avenue (Courier Zip: 64111)

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P.O. Box 119007

Kansas City, Missouri 64171-9007

(816) 531-6565

(816) 531-6688 (telefacsimile)

[email protected]

[email protected]

and

THE McCALLISTER LAW FIRM, P.C.

By s/ Brian F. McCallister

Brian F. McCallister Mo. Bar. No. 37383

917 West 43rd Street

Kansas City, Missouri 64111-3133(816) 931-2229

(816) 756-1181 (telefacsimile)

[email protected]

Attorneys for Plaintiff

helmig lawsuit

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