Photography by Wesley Law
He smells the food and thinks of the cans of cat food you get at Family Dollar. Cornell McKay’s been locked in this square of concrete and steel at the St. Louis City Justice Center for 16 months, waiting for trial without a gulp of fresh air. So much is embarrassing: “They can literally come in at 4 in the morning, and you got to get naked for them, spread your butt cheeks so they make sure you ain’t got a knife up there,” he tells his grandmother, “and you gotta do that in front of 100 other naked stinky dudes.” He gets called “a Bible thumper,” gets into fights, worries about who’ll be thrown into the cell with him next. It’s like dogs in a pound, he says—what’s some little Chihuahua gonna do with a pit bull? If he does snap back, he’ll be in even more trouble, and he’s already looking at 10 to 30 years. I ain’t even lived to see 30 years, he thinks. I gotta fight this. All I need is somebody who’s not an asshole to hear this case. He reads all the depositions, summarizes documents like he’s a first-year law student. Looking around, he thinks, I’m not here to hang out with you dudes. I’m going home. And then he’s sitting in court, and it feels like The Hunger Games, like he’s there for everybody else’s entertainment, all because he looks like some other dude. And his lawyer can’t even get a word in, and that gavel’s banging.
To detectives in the Ninth District of the St. Louis Metropolitan Police Department, it looks straightforward:
Around 8:35 p.m. on August 10, 2012, Jane Doe pulls up in front of her Central West End condo and starts unloading groceries. A young, thin, clean-cut African-American man in khaki shorts and a light-colored T-shirt steps close and threatens her with a silver pistol. Keeping her eyes fixed on him, terrified she’s about to be shot, she gives him $50 and her white HTC EVO cellphone and runs inside.
Her husband, who’s been out walking the dog, finds her in their condo with the lights out, still shaking. When she describes the young man, he realizes with a jolt that it’s got to be the same guy he said hello to—they even made brief eye contact—and later saw running. He calls 911.
Jane Doe promises police she’ll use her online account to track any calls made with her stolen phone. On August 13, she puts the first batch of phone numbers and times into an Excel spreadsheet and emails it to the Ninth District. She sends another batch several days later.
That Saturday, August 18, around 2:20 in the afternoon, there’s another armed robbery two and a half blocks away. The victim is Megan Boken, a bubbly blond volleyball player who’s come back to her alma mater, Saint Louis University, for a tournament. When she resists and screams, the robber fires two bullets, at close range, into her neck and chest. Then he jumps into the passenger seat of a white Pontiac Sunfire that speeds off.
Witnesses describe a young, thin, clean-cut African-American man.
The cellphone Boken refused to give up lies in a puddle of blood outside her Volkswagen. Blood spatters her tan leather purse, its strap broken in her struggle, and drenches one of her blue flip-flops. She is raced to Barnes-Jewish Hospital, where she is pronounced dead.
That something so awful could happen in broad daylight in a neighborhood of historic brick townhomes and bright patio umbrellas chills its residents. But a reassuring tweet from the mayor’s press secretary says the victim and her attacker “appear to have known each other.”
It’s a hasty conclusion, probably based on an early guess that the killer could have been inside the car—and it’s wrong.
This was not a drug deal or a secret romance; it was panicked brutality—the senseless murder of a young woman because, on a sunny afternoon in a public place, she resisted being robbed. Mayor Francis Slay apologizes personally to the Boken family. St. Louisans extend hot sympathy and outrage. The story stays at the top of the news for days.
The cops need to find this guy fast.
On August 20, homicide detective Jerone Jackson calls the Ninth District and asks about similar armed robberies in the area. The Ninth District comes up with a few, one of them the Jane Doe case from eight days earlier.
Ninth District detective Anthony Boettigheimer is assigned, that very day, to the Jane Doe case. He runs the phone numbers in the Excel file through something called the Crime/Matrix database. Lamont Carter’s name shows up. Boettigheimer does a link analysis, and the computer spits out 15 or 20 names connected in some way to Lamont Carter.
Narrowed by physical description, the stack funnels down to one young, thin, clean-cut African-American male: Cornell McKay. He’s a high school dropout on probation for burglary.
Boettigheimer and two other detectives drive to Jane Doe’s condo and show her six photos stuck in a single frame. McKay and one other man are relatively light-skinned; the other four men have darker skin.
She identifies McKay without hesitation. Her husband cannot identify any of them.
Police officers start calling around, looking for McKay. He comes to the station the next morning. Detectives handcuff him to a table in an interview room and grill him about his recent whereabouts, hoping for a double solve.
His alibi for Boken’s murder holds strong, but his account of that Friday evening (now 11 days ago) is a wobbly sequence, remembered after he’s had some time to think, of borrowing money from his mother for a haircut, buying a soda and chips at a candy store, and visiting family friends. When police ask the store owner whether she remembers him coming in that evening, she says no.
The next day Jane Doe is shown a physical lineup of McKay, 20, and three other men (two of them more than 30 years old). She identifies McKay, and this time her husband does, too. She also checks the box that states, “I am certain that I have made a correct identification of the subject.” Her husband does not.
McKay is booked and charged with first-degree robbery and armed criminal action. Another detective later tells Boettigheimer that McKay was uncooperative and verbally abusive while they booked him, and as he entered the Justice Center he yelled to other inmates that he was a member of the Ones, a gang in his old Plymouth and Hodiamont neighborhood.
At least for the armed robbery, they figure, they’ve got their guy.
Once more, but from McKay’s point of view: “I never even said that. Why the hell would I tell the police I’m a member of the Bloods? [Ones are Bloods.] When they had me in handcuffs, some people I knew yelled, ‘What they got you locked up for, blood?’ All just ghetto. They’re saying, ‘That’s f—ked up, man. They lock you up for that white girl?’ In my neighborhood, that’s how they talk to you. They’ll say ‘cuz’ or ‘blood’—it’s their turf. It’s that you’re from there.”
And yeah, for sure he’s furious when they book him: “Man, this is bullshit. I ain’t done nothing.” He’s never been locked up, and he’s scared. Here he comes to the station willingly, not even knowing why, and sits there waiting 90 minutes for the detectives to show up, every second a minute long. Then they cuff him to a table and start grilling him. He’s already heard about the Boken murder—he remembers his grandma’s voice on the phone, resigned and worried at once: “They’ll be looking at every young black man in St. Louis.” His stomach does a roller coaster drop. Is that what this is about? With relief, he tells them that he wasn’t even in St. Louis this week. They say this is something that happened the week before, and suddenly he’s arrested.
Sure, he’s friends with guys from his old neighborhood. Had to be. He’d gone to grade school and middle school in Affton, but when his stepdad died and his mother couldn’t pay the rent, she and her three sons had to move to a little apartment in one of the roughest parts of the city, Plymouth Avenue near Hodiamont. “Gangs and drugs and everything else you see in movies about the ’hood” is how he sums it up. His life got chaotic fast.
He’s no angel—but he’s not a deceiver, either. His problem’s more that he blurts stuff out. He’s always been quick with a comeback—his mom used to call him her little Bart Simpson—and his teachers never appreciated the wordplay. He’s not stupid—he loves art and books and writing, and religion’s always interested him—but he can’t do math to save his life. Just after his 18th birthday, he dropped out of school.
One evening that spring, he hung out with a friend of his cousin’s: “Wrong crowd, everybody young and dumb and broke, and one dude had the bright idea to break into Langston Middle School and steal some computers. When we saw him go in and come back out carrying one, everybody else went in.” McKay didn’t get caught—others did—but when he decided to get himself into a GED program, he showed up at the police station for a record check and there was a warrant waiting for him.
That’s the burglary—unarmed—on his record. He’s not proud of it. He pleaded guilty. The only other mark on his record is, at 16, riding MetroLink without paying.
As for Lamont Carter, he and 20-year-old McKay are linked in the police database because two years earlier, McKay was shot in a drive-by on Plymouth Avenue. McKay was living at home with his mother, at 5963 Plymouth. The shooting took place a few doors down—closer to 5944 Plymouth, where Carter’s mother lived—and McKay was injured. (He was friends with Carter’s younger brother and is pretty sure Lamont, 10 years older, wasn’t even living at home then.)
Lately, McKay’s been living with his grandmother and riding his bike to the Covenant House program, trying to get his GED. This week he’s been in Washington, Mo., staying with the Rev. Chris Douglas, a youth minister he met at Covenant House. Somebody in Douglas’ congregation knew of a job at Ziglin Graphics & Sign, and McKay worked long days boxing up thousands of brake pads and made $500. He was thinking he’d celebrate, maybe take himself out to eat at Panda Express.
Douglas has been showing him how to save money, how to register a car. How to do stuff the right way, by the book, and not just slide by because nobody ever showed you anything different. He’s pulling his life together.
And then this happens.
Photography by Wesley Law
Chris Douglas spent 10 years as a police officer, part of that time on the motorcycle squad in St. Louis, before becoming associate pastor at First Baptist Church of Villa Ridge. So he makes sure kids don’t come to Sunday school and see nothing but lambs and gold-streaked clouds, “animals on Noah’s Ark and not the bodies floating in the water.” Church people too often wear a mask, he says. He lets the kids open up about their struggles with alcohol, drugs, pornography. The way people talk about Christianity makes it boring, he tells them. “This is not for the weak of heart.”
Douglas was at Covenant House on a mission trip with his youth group, and he taught a week-long course on how to be a godly man. McKay came every night, and he hung around afterward to talk. “The only difference with some of the inner-city kids is that they’re tougher on the outside,” he told Douglas’ wife, Tayra. “They’re like a jelly bean, gooey in the middle.” McKay ditched his rap music, loaded Christian rap in its place. The next month, when a job opened up in Washington, the Douglases invited McKay to stay with them, make a fresh start. They’d help him get his GED, and he’d soon make enough money for an apartment, a car.
One August evening, sitting on the Douglases’ deck, McKay said, “What is that?” The Douglases traded looks, realizing that he didn’t recognize the sound of crickets. When he told them stories about urban life, trying to shock them, they just said, “That’s really sad.” A remarkable self-taught artist, he drew with their kids. They quickly came to think of him as part of the family.
So the night the police call his house, Douglas listens gravely, says yeah, Cornell McKay’s staying with him, and offers to drive him to the station the next morning. When he hangs up, he turns to McKay and says, “Man, if you did anything, you can tell me—but tell me now.”
“Chris, I promise you, bro, I didn’t do anything.”
The next morning, when police ask where McKay was on August 18, Douglas’ face clears. McKay was on a camping trip with the church youth group that whole weekend at the Lost Valley Resort in Owensville, Missouri.
The youth group’s mentor, John Huff, tells police the same thing, adding that he personally drove McKay to the Douglas house the next morning so he could go to church with them.
McKay is given a polygraph test with questions targeted at Boken’s murder, and he passes easily—no sign of deception. He offers to take another polygraph, targeted at the Jane Doe armed robbery, but is never given one.
Douglas tells police, “His backpack, all his stuff is at our house. You can come and get it.” But nobody ever does. Douglas also tells them he’s a former police officer; he says an officer replies, “Then you know how these things are. Sometimes we just have to clear these cases up.”
The remark doesn’t sit well with Douglas. He finds McKay a lawyer. Jim Hacking’s never tried a criminal case, but he has a strong reputation for helping immigrants, refugees, and others in need.
While the Ninth District is booking McKay, homicide detectives assigned to the Boken case are tracking down other calls on Jane Doe’s stolen phone and requesting a search warrant to get the official Sprint phone log.
The Excel chart shows Jane Doe’s call to her husband at 8:25 p.m., a voice mail call at 11:04 the next morning, and no phone calls until 25 hours after the robbery—plenty of time for whoever stole it to sell it to somebody else.
But the official Sprint phone log tells a much different story. It shows several calls that weren’t on the Excel chart—including a brief unanswered call made roughly 30 minutes after the robbery to an 18-year-old named Kaylin Perry.
When the homicide detectives question Perry, she says she often drives her mother’s white Pontiac Sunfire. She also lends it to her boyfriend, Keith Esters.
Keith Esters is young, thin, clean-cut, and African-American.
Guarded at first, Perry eventually tells police—or says later in deposition—that:
• Sometime during the week of August 13, Esters gave her a white EVO phone that he said he’d gotten, according to the police report, “as a result of a robbery.” In deposition, Perry says, “He got it from hisself. He ain’t never told me he got it from anybody. He took it from somebody… He robbed somebody for it.”
• He mentioned stealing $50 and a cellphone from a white woman.
• He chose the targets he did because white people were less likely to fight back.
• He had a silver pistol that he kept on him all the time; he got it from Lamont Carter, with whom he sometimes stayed.
• On August 18, Esters called Perry one minute after the Boken shooting and several times over the next hour. Shaken, he said he’d tried to rob a woman and, when she fought back, he killed her because she was screaming and “making a scene.”
• After August 18, he watched TV news obsessively (not his usual habit) and kept talking about the reward increasing. (Donations were pouring in; by the day of Boken’s funeral, the reward was $31,000.)
• On August 19, the EVO quit working (Jane Doe had canceled her phone service), and they sold it at a gas station.
• Esters told Perry to lie to police and say she bought the phone on the street.
Police visit the gas station. Abdulla Salama, who works at the cellphone booth onsite, identifies Esters as someone he often saw there and confirms that it was Esters who sold him the phone.
Esters tells police he was in the immediate area during the Jane Doe robbery and knows who did it but refuses to say more. He seems to be playing games, bargaining for favors. Shown a photo of McKay, he says he knew McKay from the neighborhood but also says McKay did not commit the robbery.
Esters is charged with armed criminal action, attempted robbery, and first-degree murder in the Boken case. (His cousin Johnathan Perkins, who was driving the Sunfire, is charged with the same crimes but murder in the second degree.) Esters tells detectives he committed two other armed robberies before Boken’s.
St. Louis County police interview Esters about an armed robbery that took place in Brentwood on August 12—six days before Boken’s armed robbery and two days after Jane Doe’s armed robbery. In this one, a white woman was abducted at gunpoint and driven to an ATM to withdraw money.
Esters will eventually confess to the August 12 armed robbery, as well as the August 18 armed robbery and murder. For the August 10 armed robbery, though, he isn’t even put into a lineup until February 2013, after McKay’s lawyer insists.
After all, Jane Doe has already made a firm identification of McKay. It would be almost impossible to build a case against Esters for the same crime.
It would also raise the possibility that, had police immediately found and questioned the people on that call log, Megan Boken might still be alive.
On August 24, news breaks that Boken’s killer has been arrested and charged. During the evening news, Douglas gets a panicked call from a member of his congregation: “I think they arrested Cornell for murder!” Douglas goes online, finds Esters’ booking photo, and sits for a minute, staring at the man’s face. Then he pulls up a snapshot he took of McKay at Covenant House in mid-August, prints both images, and puts them side by side.
The next morning, he drives downtown to the police station. According to Douglas, when he hands the photos to Detective Tracey Chaney, the homicide detective replies, “You aren’t the only one who thinks they look alike. I’ve tried to tell them to look at Esters, but they’re not listening to me. You’re on the right track.”
(The St. Louis Metropolitan Police Department did not grant interviews, referring us to the mayor’s office. Spokesperson Maggie Crane declined to comment “in light of litigation.”)
Feeling like he’s in the Twilight Zone, Douglas drives over to the Ninth District and shows the photos again. Indicating the men’s necks and eyebrows, a detective says that they look completely different.
“To a woman who’s got a gun pointed at her stomach?” Douglas flashes back.
In February of the following year, detectives finally show Jane Doe a set of photos that includes Esters. By now, his photo has already appeared three times in the St. Louis Post-Dispatch in connection with Boken’s murder. She writes that there is a “slight resemblance at first look but eyebrows too thick, complexion too dark and slight facial hair wasn’t right.” On another photo in the lineup, she writes, “Looked like the driver/accomplice photo from newspaper for Megan Boken murder case.”
A few days later, when she gives her deposition, she says police told her McKay and Esters were “associates…maybe friends.”
Other than Esters’ saying he knew McKay from the neighborhood, there is no evidence of any tie between them.
In December 2013, McKay’s case goes to trial. Hacking is sure that when the jury hears the overwhelming evidence pointing to Esters, they’ll acquit. Hacking has evidence—the official Sprint log—that in his mind refutes the prosecution’s entire case: Somebody used Jane Doe’s phone to call Esters’ girlfriend half an hour after the robbery.
But the trial doesn’t go the way Hacking envisions.
Jane Doe’s husband testifies that it was about 7:30 p.m. and light out when the robbery occurred. Hacking corrects him—on the basis of his wife’s last phone call, it had to have been around 8:40 p.m. But the earlier, lighter time, when it would be easier to register facial features, is already in jurors’ minds.
Circuit Court Judge Robin Vannoy spends the first half of the trial under the impression that Esters only said Jane Doe’s phone came from a robbery. And so, because she sees no direct connection between Esters and the Jane Doe case, she will not allow Hacking to use an “alternative perpetrator” defense.
He cannot bring up a single piece of evidence pointing to Esters.
Nor can he even use Esters’ last name, because any link to the Boken case would be “highly prejudicial,” Vannoy says. “It would get us way off track as to where this case should go.”
After the state rests, Hacking wants to call Kaylin Perry to the stand and ask her how her boyfriend said he got the phone. So Hacking tries again. He tells the judge that there is a direct connection between Esters and this crime, and he quotes from page 17 of Perry’s sworn deposition. Asked how Esters got the phone, she didn’t just say it came from a robbery. She said he told her “he robbed somebody for it.”
The judge blinks. Asks for a copy of the deposition. “I missed that statement,” she says, and she changes her ruling. “I’m not saying I’m playing favorites, but I think the court certainly has ruled—a lot of the court’s rulings affected the way that the defense prepared its case,” she adds. She will allow Perry to tell the jury what “Keith” told her about how he got the phone.
Prosecutors Steven Capizzi and Christine Krug immediately ask for a day to regroup, saying they’ll need many hours to prepare a cross-examination if Perry is asked that question. “Judge, we would have changed our whole approach to the case, the way we presented it to the jury,” Capizzi says. “We’re now in the unfavorable position we have to now react to the defense case.”
“Oh my gosh,” Hacking says, not even trying to temper his sarcasm.
The judge acknowledges the difficulty of “having a case that’s tied into a case of the magnitude that the Boken case was,” but she stands firm.
Then comes the next wrinkle: Two weeks before this trial started, a warrant went out for Perry’s arrest for possessing a controlled substance. She’ll need to be taken into police custody the minute she leaves the courtroom. And rather than have her testify before that happens, the judge grants the prosecution another day to prepare and tells Perry to come back the next morning.
Hacking’s not happy about this—he’s afraid they’ll bring her back wearing orange—but the next morning, he’s ready. He asks about Jane Doe’s phone, and Perry says her boyfriend “Keith”—still no surname—“said he robbed somebody for it.” Hacking exhales.
And then, on cross-examination, Perry breezily testifies that they used the phone for about a week before the August 18 robbery and Keith had it “about a week or so” before they started using it. And because that casual time estimate puts his robbery earlier than August 10, it looks like the direct connection has just been severed.
Perry’s wrong—it’s Jane Doe’s phone she’s been using, so they couldn’t have had it before August 10. But the jury hears what sounds like an inconsistency. And Hacking can’t even tell them Esters had a silver pistol, let alone that shorts and a T-shirt similar to those described by Jane Doe were found on the floor of his residence. Hacking can’t ask whether police briefed Jane Doe in any way before they showed her Esters’ photo. Nor can Hacking put Esters on the stand, because he’s pleaded the Fifth Amendment.
He’s also just pleaded guilty to Boken’s murder and received a life sentence—in Missouri, 50 years with possibility of parole. Initially he was charged with first-degree murder, first-degree attempted robbery, and armed criminal action, which could have meant the death penalty or life without parole. But he was allowed to plead to second-degree murder instead; Joyce would later explain that she wanted to spare the Boken family the ordeal of a trial. (She declined to be interviewed or allow McKay’s prosecutors to be interviewed for this article, because “the case is currently a closed record and in civil litigation.”)
Hacking brings out the twilight conditions, the distance between the husband and the robber, and the detectives’ lack of any weapon, fingerprints, or material evidence of any kind. But the linchpin of the state’s case is the victim’s identification, and Jane Doe’s testimony is clear and unshakeable: Cornell McKay is the man who tried to rob her.
Hacking’s worried. But he still has his ace: the official Sprint log. The prosecution has submitted as evidence only the Excel chart—copied and pasted by a civilian, then emailed, then saved onto a police computer, with opportunities for error and omission at every step. And the Excel chart doesn’t show that first call to Kaylin Perry.
Hacking rises and moves to introduce the Sprint call log. The prosecutors argue that it cannot be admitted without an expert witness to interpret it, because it contains some odd strings of numbers (Sprint’s text message code and visual voicemail platform) that could confuse the jury.
The judge sustains their objection.
And so the trial ends without the jury’s ever hearing about that first call, placed half an hour after the robbery.
During closing arguments, McKay yells out, “I didn’t rob that lady!” Three hours later, he is found guilty of first-degree robbery and armed criminal action.
Hacking sits, slumped. He can’t make himself stand up and walk out of the courtroom until it’s empty. He and his associate, Jennifer Shoulberg, have put 150 hours into this case pro bono.
Douglas watches as McKay is led away and then stalks out, tears stinging his eyes. There’s a time for a pastor to sit back, stay behind the scenes, and just get on his knees and pray, he thinks, but there’s also a time for a pastor to stand up and grab his sword and fight.
After losing a criminal case, a defense attorney has 15 days to file a standard request to preserve evidence for an appeal. What Hacking reads in the rules is that the case becomes final for purposes of appeal in 30 days.
So he misses the 15-day deadline.
He’s picking up his wife’s car at a Shell station when he checks again and realizes his mistake. He comes close to throwing up. Not only has he lost the case, but he’s just made it even harder for McKay to appeal. Mortified, he withdraws from the case.
And Douglas goes looking for a new lawyer.
It’s been a rough 16 months. He and Tayra have been going broke calling McKay every day, $10 a pop, and Chris visits every week. He dreads the drive to the Justice Center—McKay’s on the other side of smeared glass and a metal grate, and the place is loud and filthy and grim. Then came the trial, McKay looking around and thinking, All of this going on, so serious. This is how y’all get your bread and butter. And it’s all the wrong person. Y’all put your heart and soul into taking down the wrong person, and then you point the finger.
Now McKay says he’s trying not to worry, because that’d mean he wasn’t putting his trust in God. Douglas’ mother bakes him chocolate chip cookies. Somebody from the congregation sends Imo’s. “How’s Cornell?” people ask Douglas. “What’s going on with Cornell’s case?” There’s no good news to give them. Douglas starts ducking into his office after services to avoid the questions.
It doesn’t help that the two children he and his wife have been fighting to adopt are stuck across an ocean because Ghana has frozen all adoption proceedings. He hears about a lawyer at Bryan Cave who does pro bono work for the orphanage where his kids are. At the end of a long conversation about that mess, he brings up the other one.
“Try Thomas SanFilippo,” the lawyer suggests. “He’s helped me out on some criminal cases.”
When his cellphone rings, SanFilippo’s on his way to a first date at Civil Life Brewery. Douglas launches into a story that, even this early in his career, SanFilippo’s already heard a hundred times.
But there’s something different about this one.
He texts his date to say that he’ll be a little late. When Douglas gets to the part about the phone log, SanFilippo pulls over and grabs a legal pad.
He takes the case, fully aware of just how tough it’ll be to undo the conviction.
“You know who really eats this stuff up?” another lawyer says. “Bob Ramsey.”
The previous year, Ramsey won a Supreme Court appeal in the Woodworth case, overturning a conviction that had kept Mark Woodworth in prison for murder for 17 years. Since then he’d been doing civil cases—discrimination, employment… He might be ready for another crusade.
SanFilippo calls and sums up the case.
“Might be something,” Ramsey says. “I’ll jump in my chariot and come over.”
SanFilippo can’t quite figure out the older man’s blend of ease and fight—that slight Georgia drawl, his rumpled indifference to appearances, the gentleness that vanishes fast when something strikes him as needing fixing. They meet with Douglas, ask a lot of questions. Then they walk over to the city justice center and meet Cornell McKay.
Even if they can get him a new trial, he’ll have lost more than three years of his life—those early-twenties years that are a man’s freest. But whether it’s because of his rediscovered faith or an old blithe optimism, McKay’s holding steady. No demands, no impatience. There’s a quiet courtesy about him, a sweetness where, in his shoes, they’d feel bitter as hell.
Ramsey’s not a churchgoer—he practiced aikido until his back forbade it, drawn to its promise of peace and the loving protection of all living things. That’s the extent of his creed—that, and what he learned watching his father, a Baptist preacher, get fired from two all-white churches in the South for supporting Martin Luther King Jr. SanFilippo grew up Catholic but isn’t anymore; even the stock phrase “I’m spiritual, not religious” annoys him. But both men recognize something holy in Douglas—and think they can see its beginnings in McKay.
So Ramsey, who’d be one of Teddy Roosevelt’s Rough Riders if you gave him a time machine, takes the reins. They file every motion they can, papering the court with facts that might eventually show a diligent appellate judge exactly how this case unfolded.
By now, Esters is in jail and has told Post reporter Jennifer Mann: “I can’t say nothing that gonna benefit him because in the end it’s gonna make me look bad... I’m not going to go back down there and give them a confession because they would give me more time.”
The more details the attorneys examine, the more unbelievable the case seems. In late February, they file a motion accusing the city police of misconduct. “Once the victim’s mobile phone was recovered the police were in possession of probable cause and significant evidence against Keith Esters,” Ramsey writes. “Had they arrested Esters, Megan Boken would still be alive.”
Boken’s sister writes a letter to the Post, appalled that Ramsey would use the Boken family’s tragedy “to orchestrate a media circus and gain sympathy for his client.” But Ramsey’s too obsessed by the case to even register the letter’s sting. The police interview of Kaylin Perry “takes up about this much”—he spreads thumb and index finger an inch or so—“in the police report.” He talks to Jackson, the homicide detective, who says (according to Ramsey), “I kept telling these guys, ‘You have got the wrong guy.’” He says Jackson also urged the Ninth District detectives to “talk to this Lamont Carter”—who, as it turned out, gave Esters the silver pistol that was used to kill Boken. It might have been the same silver pistol used to rob Jane Doe.
They didn’t rush to interview Carter. Nor did they interview the alibi witnesses Douglas drove to the station. He says he was told, “You might as well have brought us Bozo the Clown.”
McKay’s probation officer filed a report noting that McKay’s photograph was on Jane Doe’s phone. McKay says he was told the same thing when he was questioned by police. Yet when Hacking demanded to see the phone, he was told that it was too damaged to work at all. The damning record will stand uncorrected for more than a year before it is redacted and pronounced a mistake based on a miscommunication.
SanFilippo and Ramsey can’t help but wonder whether there was a photo on that phone—of Esters, not McKay.
They keep filing motions—including a bold request that Vannoy recuse herself before sentencing.
In early March, Ramsey takes an hour off to attend the funeral of the beloved defense attorney Norm London. Afterward, Judge James Dowd—whose C.V. includes a stint as presiding judge of the 22nd Circuit Court and another as chief judge of the Missouri Court of Appeals—comes up. They’re old friends, but they haven’t seen each other in years. “I heard about your case,” Dowd says. “Let me know if there’s any way I can help.”
Ramsey calls the next day: “You really want to help?”
Dowd asks a few skeptical questions. Ramsey’s answers stun him. Even though he's swamped with work on the Doe Run lead pollution cases, he enters his appearance in this one.
They cite a legal opinion about the alarming frequency of mistaken eyewitness identification (in one study of more than 100 wrongful convictions, more than 75 percent were victims of mistaken eyewitness identification). They research the difficulties of one-shot cross-racial identification. (Later they will find a recent case in which one of the prosecutors, Krug, argued to admit phone records without an expert witness—and was allowed to do so.)
Vannoy denies their request for a new trial, refuses to recuse herself, and declines to postpone McKay’s sentencing.
It is held on March 20, 2014. Jane Doe speaks, saying that “the emotional impact of Mr. McKay’s actions toward me on August 10 have been traumatizing, causing me to live a life I don’t quite recognize anymore and become a person I don’t quite know anymore… McKay not only took my life into his hands when he held me up at gunpoint, but he also took our unborn child’s life, too, as we had just gotten pregnant.” She miscarried a few weeks later. They moved to a new neighborhood. She’s spent 18 months reliving the crime and having her identification questioned. She says McKay “has a demonstrated track record of criminal activity,” referring to the school break-in, and adds, “Past behavior is often an indication of future behavior.”
McKay listens. When it’s his turn to speak, he tells the judge that if they tried Esters with all the same evidence, there’s no way he’d walk. “I have a picture right here of Keith Esters, and I’ve been looking at it all night,” he says. “I could mistake myself for Keith… To try to make me a person like Keith Esters makes me sick to my stomach.”
The state recommends a sentence of 20 years. Vannoy sentences him to 12.
SanFilippo is Iron Man in his clean, sharp Tony Stark suits with pocket squares that match his Fitbit bands. (“He do be tight,” says McKay’s mother with a nod.) Ramsey they’ve nicknamed “the Atticus Finch of St. Louis.” Dowd they all just call “the Judge.” McKay calls them a team of superheroes.
And it still isn’t enough.
There’s nothing left to do but ask the appeals court for a new trial. And it will be easy for the judges to deny the request, citing “plain error” on Hacking’s part in failing to preserve the record properly. Missing the deadline lost McKay his automatic right to appeal.
Dowd calls attorney Joe Yeckel, a quiet, scholarly sort who’s made a specialty of writing briefs so meticulous and elegant, you could recite them at the Old Bailey. They compile a list of everything the jury was not allowed to hear, every mistake they believe was made.
In December 2014, a three-judge panel of the Missouri Court of Appeals issues its verdict: Refusing to admit the official cellphone records and other evidence pointing to an alternative perpetrator was “a manifest injustice.” The conviction is reversed; the case must be retried.
Missouri Attorney General Chris Koster challenges the ruling, vowing to defend the police and prosecutors all the way to the Supreme Court if need be. But the Court of Appeals declines to rehear the case, and the Supreme Court refuses to hear it.
McKay will get a new trial.
In interviews, Joyce calls the defense lawyers’ theory about Esters “a lot of noise” and “smoke and mirrors.” She says her office looked “extensively” at Esters but ultimately concluded that McKay was the perpetrator. “We have no doubt,” she tells the Post, “that Cornell McKay committed this crime.”
On April 4, she and prosecutor Steve Capizzi go on Charlie Brennan’s show on KMOX-AM to talk about the case. When Brennan brings up the resemblance between Esters and McKay, Joyce says, “I’ve seen both of them, and I don’t think they look alike. I think that’s in the eye of the beholder.”
When Brennan brings up the case’s coincidences, ending with Esters’ owning a small silver pistol, she says, “Charlie, we see so many small silver pistols, I don’t know that we could even count. That is an extremely common weapon.”
When he asks about that first Kaylin Perry call, 25 minutes after the robbery. Capizzi dismisses it because it went unanswered: “There was digits put into a phone but not received by anyone.”
When Brennan points out that the difference Jane Doe noted in the two men’s skin color could have been the lighting, Capizzi says, “I believe she also said something about his eyebrows were different.” (When McKay hears this, he blurts, “Who’s trippin’ on somebody’s eyebrows when they’re getting robbed?”)
As for the “jailhouse interview” in which Esters said, “I’m not going to go back down there and give them a confession because they would give me more time,” Joyce reads it as Esters’ “just trying to get some kind of deal for himself.”
“There is no one in the world I would rather prosecute for this case than Keith Esters,” she continues, “but I’m not doing that, because I don’t think that he committed this robbery. I believe, based on very strong eyewitness testimony, that Mr. McKay did.”
Brennan asks whether it’s possible to be so sure on the basis of eyewitness testimony alone.
“That’s why we have juries, Charlie,” she replies. “That’s why we have juries.”
On May 6, McKay’s lawyers are together in Dowd’s office, strategizing their next move, when a Fox News reporter calls. Joyce has dropped all charges against McKay—but only, she says, because Jane Doe has refused to testify again.
Joyce is protective of Jane Doe, who’s been through an ordeal. It took a long time for her not to feel scared, and McKay’s lawyers have relentlessly cast doubt on her identification.
“Victim and eyewitness participation is paramount in the criminal justice system,” Joyce says. “Justice cannot be sought on physical or forensic evidence alone. It takes unbelievable courage and resolve to participate in the criminal justice system as a victim and witness… If we silence those who wish to seek justice, we allow the criminals to lay siege to our city.”
McKay’s lawyers just want him out. When Capizzi says that the judge is off that day and can’t hear the case for another week, Ramsey gets the judge’s cellphone number. It takes the judge dictating the paperwork to his clerk by speakerphone; calls to Jefferson City; staff at the Eastern Reception, Diagnostic and Correctional Center agreeing to work late on a Friday evening; and SanFilippo tearing south on I-55 to Bonne Terre the minute the word comes through—but on Friday, May 7, after almost three years’ incarceration, McKay is released from prison.
They’ve been trying to reach McKay by phone; his first clue that he’s free is a guard’s matter-of-factly telling him to get his stuff together. When McKay appears in the lobby, SanFilippo can’t even describe the lit-up look on his face. It’s gratitude, and the vindication of never losing hope, and a million other emotions at once.
“What do you want to do, man?” the attorney asks. “We can do anything you want in the whole world.”
“Man, what I really want to do is, I want to hear some music. Can we ride with the windows down? And I want to see my family and my church, but first I want to take a real shower.”
So they bump up Drake, zap the windows down, and blaze out of there, as fast as SanFilippo blazed in.
It’s a summer of firsts for McKay: First trip to Panda Express after prison. First Subway sandwich. First smell of fresh-cut grass. His attorneys spend these months preparing a lawsuit for malicious prosecution, false arrest, civil conspiracy, and defamation. “There were so many things wrong with this case, it’s hard not to believe there’s something wrong with the system,” says Yeckel, “and if it’s happening in this case, my thought is, it’s happening in other cases.”
The lawsuit names the city of St. Louis, its mayor, members of the board of police commissioners, Jennifer Joyce, three Ninth District detectives, McKay’s probation officer—even Joyce’s public relations consultant. The complaint alleges that police detectives “deliberately framed” McKay; that they conducted a “sham investigation,” failing to pursue other leads and deliberately denying him due process; and that prosecutors “knowingly and willingly joined the conspiracy.” Joyce claimed that an investigation had cleared Esters, the complaint states, when in fact, evidence gathered by the homicide detectives directly connected him to the Jane Doe robbery and established that McKay was innocent.
Joyce responds with a memorandum asking the court to dismiss her and her PR consultant from the suit. They didn’t know about the case early enough to be part of an alleged conspiracy, the memorandum states, and McKay’s lawyers’ offer “mere legal conclusions and threadbare recitals that do nothing more than regurgitate the elements of the claim.” In other words, sweeping claims andspeculation aren’t proof. Joyce’s public statements about her belief that McKay is guilty are “merely statements of opinion.” By including her in the lawsuit, McKay’s lawyers are attempting “an end-run around prosecutorial immunity.” The U.S. Supreme Court has ruled that “a prosecutor in a supervisory position enjoys the same absolute immunity as the trial prosecutor.”
The city’s filing notes that “the city has sovereign immunity to the alleged state tort claims” and “had no control over or responsibility for the SLMPD in 2012.” The city also maintains that the complaint is threadbare, without sufficient factual content.
Boettigheimer and the other detectives also claims sovereign immunity with regard to damages. Most of their other responses are either “Denied” or “Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations.”
To St. Louis Magazine, Joyce issues a statement categorically denying all claims in the lawsuit and stating: “The mission of the Circuit Attorney’s Office is to pursue justice for all citizens within the highest standards of ethical behavior and professionalism. As prosecutors, our job is to seek the truth.”
It’s August, and McKay and his attorneys are meeting in Dowd’s office. They’re relaxed, in a way they couldn’t be earlier, and they’re reminiscing.
“You should have seen the transition,” McKay tells them, recalling the shift in attitude at the Bonne Terre correctional facility when his paperwork arrived: “They treated me like a citizen again.”
Dowd wants to know more about those years in prison. The worst of it, McKay says, was “just the fact that there was nothing you could do to prove they are messing with you. You could be right, but you will always be wrong in prison. That was my biggest part, just tucking my tail and taking every blow. On my visits, knowing that I’m strong but to see my mama broke down in that visiting room over me—that leaves you with a lot to think about. And every time I went to court, it felt like playing Russian roulette. Just hearing that thing bang”—the gavel—“it’s like just spiritually getting shot.”
And now, in a quick second after three long years, it’s over. He’s living with his cousin, and he has his art supplies in the basement, and it’s peaceful. “The best thing about getting out is to have your own space,” he says. “It’s my world. Ain’t that how it feels when you go home, Jim?”
“Well, he’s married,” Yeckel interjects, his wry humor surfacing.
McKay alternates between feeling lucky and maligned; between thinking that the planets came into line, God heard him, and his lawyers were the A-team—and thinking that because he’s young and black, he got set up. He doesn’t blame Jane Doe one bit. “That lady went through a lot,” he says. But he does blame the system that pushed his conviction through without a second's hesitation. If a white girl hadn’t been murdered, would there have been such a rush?
Since getting out, McKay says, “I’ve been kind of a recluse, keeping myself in the house. I’ve seen three dead bodies in the street just since I got home. I don’t want to be in the wrong place, be standing somewhere and get pulled over by the police.” He applied to Taco Bell, but they didn’t hire him—he’s afraid they Googled and saw prosecutors still insisting he’s guilty. He’s already run into people so confused that they think he’s the one who killed Megan Boken.
For now, he’s doing a Job Corps internship. He needs to nail the math on that GED. Above all, he needs a schedule, a life that’s ordered and predictable. He nods toward Yeckel, earnest and bespectacled in his fresh white shirt. “I’m sure Joe probably had that shirt set out last night,” McKay says with a grin.
The grin fades. “Truth be told, if I was in Keith Esters’ shoes, I couldn’t have let me sit in the Justice Center. Everybody knew Keith wasn’t going home. St. Louis wasn’t playing about no black dude killing no white girl. Everybody knew Keith Esters did this. I had people trying to give me knives to kill him, sayin’, ‘I’ll cut him for you.’”
He used the system instead. And now, when people in his neighborhood say not to trust a lawyer, he cuts in: “Bro, I am free!”
That doesn’t mean he thinks life’s fair, though. Even his attorneys emerged from this case a little more suspicious, a little more pessimistic. They talk about justice, how the system just gives you a chance at it, not a guarantee. “They are still trying to make a mockery out of me, the people who’d supposedly be giving me justice,” McKay says slowly. “And then they wonder why so many black males have this street bravado? It’s like playing blackjack with your life.”
What hurts the most, he says, is “that lady really believed in her heart that I robbed her. I want to tell her, ‘Your dude is locked up. You don’t have to be afraid of Cornell McKay.’”
