IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI, )
ex rel. )
CHRIS KOSTER, )
Relator, )
)
vs. ) Case No. ________________
)
The Honorable WARREN )
E. McELWAIN, )
Respondent. )

MOTION FOR RELEASE PENDING FURTHER PROCEEDINGS

Comes now Petitioner, Dale Helmig, by counsel, Sean D. O’Brien, and moves

this Court pursuant to Missouri Rule 91.14 to authorize his release from custody

pending further proceedings. For his motion, Mr. Helmig states:

1. DeKalb County Senior Judge Warren E. McElwain on November 3, 2010,

entered his order finding that Dale Helmig produced clear and convincing evidence

establishing that he is actually innocent of the crime of murder for which he is

incarcerated. Judge McElwain further found that Mr. Helmig’s trial was

unconstitutional in multiple respects. He ordered the State to release Mr. Helmig

unless it brings him to trial on the original charges within 180 days.

2. Judge McElwain’s judgment that Mr. Helmig established his innocence by

clear and convincing evidence is amply supported by the record because the state’s

circumstantial evidence case is weak, no physical evidence links Mr. Helmig to the
offense, and there is substantial evidence that he is completely innocent in his

mother’s death. Further, Judge McElwain found that “[t]his case presents the rare

circumstance in which no credible evidence remains from the first trial to support the

conviction.” Findings of Fact and Conclusions of Law, 109.

4. Missouri Rule 91.14 provides, “If the person for whose relief a writ of

habeas corpus has been issued is charged with a bailable offense, the court in which

the answer is to be filed shall set conditions of release pursuant to Rule 33.”

(Emphasis added). Judge McElwain’s order granting habeas corpus relief returns Mr.

Helmig to the status of a pretrial detainee who is eligible for release. See, e.g., Irvin

v. Dowd, 366 U.S. 717, 728 (1961). (Explaining that the Writ dissolves the judgment

of conviction, but the underlying indictment remains in effect.)

5. Missouri Rule 33.01 (a) provides that “Any person charged with a bailable

offense shall be entitled to be released pending trial.” (Emphasis added). The Rule

further establishes a presumption that “[t]he court shall in all cases release the accused

upon his written promise to appear, unless the court determines that such release will

not reasonably assure the appearance of the accused.” Rule 33.01 (d). In determining

what conditions are appropriate in ordering release pending further proceedings

herein, the Court may consider the following factors:

In determining which conditions of release will reasonably

assure appearance, the court shall, on the basis of available

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 information, take into account the nature and circumstances

of the offense charged, the weight of the evidence against

the accused, the accused's family ties, employment,

financial resources, character, mental condition, the length

of his residence in the community, his record of

convictions, and his record of appearance at court

proceedings or flight to avoid prosecution or failure to

appear at court proceedings.

Rule 33.01 (e). In Mr. Helmig’s case, these factors weigh in favor of his release.

Although he is accused of a serious crime, the evidence against Mr. Helmig is

exceedingly weak, Mr. Helmig lived most of his life in Cole and Osage Counties, he

has supportive friends and family in the area, has maintained steady employment, has

never been convicted of a serious crime, and has never missed a court appearance

while on bond in this or any other case.

6. Mr. Helmig’s record in this case demonstrates that he will appear as directed

and abide by conditions of release. The Honorable Ralph Voss, then Osage County

Associate Circuit Judge, on March 11, 1994, set bail on the charges herein, which was

posted and Mr. Helmig was released. Mr. Helmig remained free on bond until the

jury’s verdict on March 9, 1996. During that time, Mr. Helmig made no attempt to

flee, and voluntarily appeared for pretrial motions, docket calls and for each and every

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day of his trial, and he otherwise abided by conditions of his bond.

7. Aside from the wrongful conviction which Judge McElwain has set aside,

Mr. Helmig has never been convicted of a serious crime or any crime involving

violence. He successfully completed a five-year probation for a felony marijuana

conviction in Osage County, Missouri, thirty years ago, and he has a misdemeanor

conviction for possession of marijuana and driving under the influence of alcohol in

1995 in the Circuit Court of Cole County, Missouri.

8. Counsel for Mr. Helmig spoke with Superintendent Larry Denney who

verified that Mr. Helmig has maintained an exemplary conduct record while

incarcerated. He has no violations of institutional rules whatsoever on his prison

conduct record. See Attachment A, Facsimile from Terry Page, Assistant Warden,

Crossroads Correctional Center, October 27, 2010, indicating that “there are 0

violations” on Mr. Helmig’s institutional conduct violations. Assistant Warden Page

included a print-out of Mr. Helmig’s Institutional Violation Summary showing that

he has never received a single conduct violation in nearly fifteen years of incarceration

in a maximum security prison.

9. If released, Mr. Helmig would reside with his brother, Richard Helmig, at

18709 Brendel Blvd., Rocky Mount, MO 65072. Rich has been supportive of his

brother throughout his prosecution and wrongful incarceration for the murder of their

mother.

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 10. Due to nearly fifteen years of wrongful incarceration, Mr. Helmig is an

indigent person, so counsel requests that the Court give serious consideration to the

express language of the rule presuming that a person such as Mr. Helmig who presents

a low risk of flight be released on his own recognizance.

SUGGESTIONS IN SUPPORT OF MOTION FOR RELEASE

The language of Missouri Rule 33.01 directing that the accused “shall be

entitled to be released pending trial” creates a presumptive entitlement to release. See,

e.g., United States ex rel. Barnwell v. Rundle, 461 F.2d 768, 770 (3rd Cir. 1972),

construing the nearly identical language of Fed. R. Crim. Pro. 23.01. Justice

Benjamin Cardozo explained the rationale of such a presumption:

It would be intolerable that a custodian adjudged to be at

fault, placed by the judgment of the court in the position of

a wrongdoer, should automatically, by a mere notice of

appeal prolong the term of imprisonment, and frustrate the

operation of the historic writ of liberty. "The great purpose

of the writ of habeas corpus is the immediate delivery of

the party deprived of personal liberty." * * * Certain it is,

at least, that the writ may not be thwarted at the pleasure of

the jailer. * * * Little would be left of "this, the greatest of

all writs" * * * if a jailer were permitted to retain the body

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 of his prisoner during all the weary processes of an appeal

* * *.

People ex rel. Sabatino v. Jennings, 246 N.Y. 258, 158 N.E. 613, 63 A.L.R. 1458,

1459-1460 (1927). Although the State of Missouri seeks a writ of certiorari

challenging Judge McElwain’s judgment, that “does not justify prolonging his

imprisonment now that [the] Court has found that he was convicted in violation of his

federal right to due process of law and must be tried again with due process, removing

any presumption as of now that he is guilty as charged.” Cagle v. Davis, 520 F. Supp.

297, 312 (N.D. Tenn. 1980). In Cagle, the district judge granting release pending the

state’s appeal of an order granting a writ of habeas corpus explained the

appropriateness of such an order in terms quite applicable to Mr. Helmig’s case.

“Without this freedom, even those wrongly accused are punished by a period of

imprisonment while awaiting trial and are handicapped in consulting counsel,

searching for evidence, and preparing any available defense.” Id.

Were this a federal petition for writ of habeas corpus by a state prisoner, the

Supreme Court acknowledges that “[t]here is presumption in favor of enlargement of

the petitioner with or without surety” which may only be overcome “if the traditional

stay factors tip the balance against it.” Hilton v. Braunskill, 481 U.S. 770, 777 (1987).

That presumption is not overcome where the record reflects “substantial evidence of

[the petitioner’s] actual innocence,” and that the prisoner has already undergone trial

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and “lengthy post-conviction proceedings.” Sanders v. Ratelle, 21 F.3d 1446, 1461

(9th Cir. 1994). Further, Mr. Helmig’s lack of serious criminal history and the fact that

the state trial court permitted him to remain free on bail for approximately two years

prior to his trial, without incident, weighs in favor of his release at the present time.

Finally, there are no facts suggesting that Mr. Helmig presents a danger to

society that were not before the state court at the time Mr. Helmig was released on

bail. Indeed there are none; Mr. Helmig obeyed the conditions of his pretrial release,

appeared on time for each and every hearing, and has maintained a perfect conduct

record in the Missouri Department of Corrections. All the factors which courts

traditionally consider in determining release weigh in favor of allowing Mr. Helmig

to be free during further proceedings herein.

Mr. Helmig is not within the class of people prohibited by Missouri law from

being conditionally released. Rule 30.17, for example, provides that an appeal by the

state “shall not stay the operation of an order or judgment in favor of the defendant,”

but further provides that if the state appeals from a judgment in favor of a movant

under Rules 24.035 or 29.15, the defendant “shall remain in custody during the

pendency of the appeal.” Mr. Helmig is not a movant under Rule 24.035 or 29.15;

unlike them, he could obtain relief only by showing that he is the victim of a manifest

injustice. State ex rel. Simmons v. White, 866 S.W.2d 443 (Mo. banc 1993). In

contrast, innocence is not a cognizable claim for relief under Rules 24.035 or 29.15,

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Wilson v. State, 813 S.W.2d 833 (Mo. 1991), so it is not legally possible for a movant

under those rules to establish his innocence and regain the presumption of innocence,

as Mr. Helmig has done. Rule 91.14 governs Mr. Helmig’s request for release, and

Rule 30.17 does not.

Missouri statute also prohibits a person convicted and sentenced to life

imprisonment from posting an appeal bond while appealing from the conviction.

RSMo. §§ 544.671 or 547.170. That statute does not apply to Mr. Helmig because he

is not an appellant challenging a presumptively lawful conviction and life sentence.

Unlike prisoners governed by §§ 544.671 or 547.170, Mr. Helmig is the prevailing

party and has demonstrated his right to be released. Thus, the issue of release is

governed by Rule 91.14 which specifically refers to habeas corpus petitioners, and not

by Rule 30.17 or RSMo. §§ 544.671 or 547.170, which make no mention of habeas

corpus petitioners. “Expressio unius est exclusio alterius.” City of Springfield v.

Brechbuhler, 895 S.W.3d 583 (Mo. 1995). Aside from the express language of the

applicable rules, there are strong jurisprudential reasons for releasing a prisoner who

has proved his innocence by clear and convincing evidence.

Counsel for Mr. Helmig respectfully suggest that the issue of release in this

case compares favorably with that in Simpson v. Camper, 743 F. Supp. 1342, 1353

(W.D.Mo. 1990), where the district court found “that petitioner does not pose a

substantial risk of flight and that a surety is not required,” and released the habeas

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petitioner on her own recognizance. Ms. Simpson eventually prevailed in the

Missouri courts, as is likely to be the case with Mr. Helmig. Simpson v. Camper, 974

F.2d 1030 (8th Cir. 1992). Like Ms. Simpson, Mr. Helmig is on the verge of being

restored to freedom because Judge McElwain’s order presents him an opportunity to

prove his innocence and get back what is left of his life. Under Missouri law, his flight

from the jurisdiction or failure to appear as directed would deprive him of the benefit

of Judge McElwain’s ruling. State v. White, 81 S.W.3d 561 (Mo. App. 2002). He is

not likely to squander that opportunity by fleeing.

WHEREFORE, for the foregoing reasons, counsel for Mr. Helmig respectfully

move this Court to:

A. Enter its order releasing him on his recognizance, or under such conditions

as this Court deems appropriate to assure his appearance pending further

proceedings, including his retrial, or in the alternative,

B. Remand this matter to the Honorable Warren McElwain with directions to

hear Mr. Helmig’s motion for release and exercise his discretion to release Mr.

Helmig pending further proceedings, including his retrial, under terms and

conditions as he deems appropriate; and

C. Grant such other relief as the Court deems just and equitable.

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 Respectfully submitted,

_____________________________
SEAN D. O’BRIEN, Mo Bar #30116
UMKC School of Law
500 E. 52nd Street
Kansas City, MO 64110
816-235-1644 ! Fax 816-235-5276
Attorney for Respondent

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was delivered by facsimile this 22nd

day of November , 2010, to:

Steven Hawke
David Hansen
Office of the Attorney General
P O Box 899
Jefferson City, MO 65102

________________________________
Sean D. O’Brien

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