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 )

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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 2 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222 ooofff 444333

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. 4 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 444 ooofff 444333

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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G ENERAL ALLEGATIONS APPLICABLE TO ALL CLAIM S 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 by per 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. 6 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 666 ooofff 444333

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 7 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 777 ooofff 444333

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. 8 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 888 ooofff 444333

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, 9 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 999 ooofff 444333

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 10 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111000 ooofff 444333

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 11 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111111 ooofff 444333

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 12 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111222 ooofff 444333

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. 13 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111333 ooofff 444333

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. 14 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111444 ooofff 444333

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 the Miranda 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 15 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111555 ooofff 444333

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 16 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111666 ooofff 444333

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 17 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111777 ooofff 444333

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 18 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111888 ooofff 444333

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 19 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 111999 ooofff 444333

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 20 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222000 ooofff 444333

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 21 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222111 ooofff 444333

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 22 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222222 ooofff 444333

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 23 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222333 ooofff 444333

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 24 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222444 ooofff 444333

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 25 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222555 ooofff 444333

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 26 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222666 ooofff 444333

9, 1993, and thus several days after Norma Helmigs death. 98. The discovery of check number 1251 and the fact that it could not have been thrown in the river on July 29, 1993, undermines the States theory about the purse. 99. The habeas court also received the deposition of Darla Toebben Voss, the witness the State late endorsed, but never called to testify, who had been alleged to have first-hand knowledge of an incident involving Dale Helmig throwing coffee in his mothers face at the Country Kitchen on the Sunday before her murder. Voss testified that although she worked at the Country Kitchen in 1990, she did not work at the Country Kitchen in 1993. Voss said she does not know Carol McKinney (the waitress who testified at Dale Helmigs trial that Voss told her that Dale Helmig threw coffee in his mothers face). Voss said that she has never had a conversation with Sheriff Fowler, with any prosecutor, or with anyone else about coffee being thrown by Dale Helmig at Norma Helmig. Voss testified she did not know Norma Helmig. 100. Trooper Westfall testified in the habeas proceeding that although he testified during Dale Helmigs trial that Dale Helmig never denied killing his mother, this testimony was not truthful, as Dale Helmig had, in fact, denied killing his mother immediately after he was arrested. In fact, Trooper Westfalls report of March 6, 1994, reflects exactly the opposite of his trial testimony indicating that Dale Helmig stated that he did not murder his mother and that the sheriff was after him. 101. Westfall testified in the habeas proceeding that the discrepancy between his testimony and his report had caused him some consternation over the years and admitted that his testimony to Helmigs jury was false. 27 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222777 ooofff 444333

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. 28 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222888 ooofff 444333

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 29 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 222999 ooofff 444333

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 30 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333000 ooofff 444333

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 M ALICIOUS PROSECUTION , FALSE ARREST , PROCUREM ENT OF UNRELIABLE AND /OR FABRICATED EVIDENCE , USE OF UNRELIABLE AND FRAUDULENT INVESTIGATORY TECHNIQUES , W RONGFUL W ITHHOLDING OF EXCULPATORY EVIDENCE AND FALSE TESTIM ONY , W RONGFUL CONVICTION AND IM PRISONM ENT 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 31 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333111 ooofff 444333

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 32 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333222 ooofff 444333

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 UNDER 42 U.S.C. 1983 (Against All Defendants) 123. Plaintiff hereby incorporates by reference paragraphs ? through ? as if fully set 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, 33 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333333 ooofff 444333

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 coconspirators, 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, 34 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333444 ooofff 444333

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. 129. 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 III FAILURE TO DISCLOSE EXCULPATORY EVIDENCE 42 U.S.C. 1983 (Against Defendants Fowler, Westfall, and Backues) 130. Plaintiff hereby incorporates by reference paragraphs ? through ? as if fully set 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 35 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333555 ooofff 444333

victim was his mother. Plaintiffs personal and business reputation suffered permanent damage. For these damages and injuries, Plaintiff is entitled to monetary relief. 133. 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 IV DEPRIVATIONS OF CONSTITUTIONAL RIGHTS RESULTING FROM O FFICIAL POLICIES , PRACTICES , AND PROCEDURES 42 U.S.C. 1983 (Against Defendants Osage County and Fowler) 134. Plaintiff hereby incorporates by reference paragraphs ? through ? as if fully set 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 36 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333666 ooofff 444333

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 37 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333777 ooofff 444333

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.

38 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333888 ooofff 444333

COM M ON LAW NEGLIGENCE RESULTING IN W RONGFUL INCARCERATION AND C ONTINUED D ETENTION (Against All Defendants) 143. Plaintiff hereby incorporates by reference paragraphs ? through ? as if fully set 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 39 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 333999 ooofff 444333

COUNT V

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 COM M ON LAW CLAIM FOR FALSE ARREST (Against Defendants Fowler, Westfall, and Backues) 149. Plaintiff hereby incorporates by reference paragraphs ? through ? as if fully set 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. 152. 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. 40 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 444000 ooofff 444333

COUNT VII COM M ON LAW CLAIM FOR M ALICIOUS PROSECUTION (Against Defendants Fowler, Westfall, and Backues) 153. Plaintiff hereby incorporates by reference paragraphs ? through ? as if fully set 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 41 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 444111 ooofff 444333

injuries, Plaintiff is entitled to monetary relief. 159. 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. PRAYER FOR RELIEF 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. DEM AND FOR JURY 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) 42 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 444222 ooofff 444333

P.O. Box 119007 Kansas City, Missouri 64171-9007 (816) 531-6565 (816) 531-6688 (telefacsimile) abenson@bensonlaw.com jlansford@bensonlaw.com 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) brian@mccallisterlawfirm.com Attorneys for Plaintiff

43 !aaassseee 222:::111111---cccvvv---000444333666444---NNNKKKLLL DDDooocccuuummmeeennnttt 111 FFFiiillleeeddd 111222///333000///111111 PPPaaagggeee 444333 ooofff 444333