by John Coston
David Ferman, an attorney in the Public Defender’s office, was handling the case. No trial date had been set, and it might well not be set for some time, because the circuit court’s docket was a busy one, and clogged with assault, rape, and murder cases. To some of the judges who sat on the benches, it was hard not to be become cynical—or worse, deadened—by the routine. There was usually some seventeen-year-old boy accused of murder, or manslaughter, or attempted murder against another seventeen-year-old. The victim was on a slab across the street in the morgue.
The docket was fed by stacks of computer printouts, and the courtroom was usually not a place for subtlety. The middle-class jurors who came downtown, anticipating an Agatha Christie plot to twist their imagination for a few days found something quite different. The defendant freely admitted that he shot so-and-so. When asked why, the answer often came just as freely. “He got in my face. So I shot him.”
In October, and then again in December, Ellen’s case was continued as the defense, in grinding fashion, prepared itself. By the beginning of the new year, Mr. Ferman would withdraw as her attorney and Beverly Temple, also from the Public Defender’s office, would step in.
It was no secret around the courthouse, or at police headquarters, that the assistant circuit attorney who was going to try this case was preparing to go for the jugular. Shirley Loepker was a tough prosecutor who showed no mercy to heinous criminals. Appearances notwithstanding—blond, attractive, and in her thirties—Shirley was the kind of prosecutor who took no prisoners. With a divorce behind her, Shirley was also no stranger to the straits in life. Whenever she entered a courtroom, everyone tensed just a little. She had that effect on people.
Shirley Loepker had called on Deanne Bond at her office, wanting to know how Deanne felt about the death penalty. Sergeant Burgoon had already asked Deanne the same question.
“Does it bother you?” Ms. Loepker asked. “How do you feel about it?”
“Well, I’m pro capital punishment anyway. But I really think the death penalty is too good for her.”
Ms. Loepker left no doubt in Deanne’s mind that she was serious about prosecuting Ellen Boehm. “I want her,” she said on her way out the door.
On January 10, 1992, Ms. Loepker filed the state’s intent to seek the death penalty for Ellen Boehm, and within a few weeks of that filing, Ellen would get yet another defender. But this was no third-stringer. Because Ellen now faced the death penalty, she was eligible for the best.
Her name was Karen Kraft, a woman of conviction equal to that of Shirley Loepker. The difference, of course, was that Ms. Kraft staunchly opposed the death penalty as much as Ms. Loepker supported it. In order to seek the death penalty, Ms. Loepker had been required to file a “Notice of Aggravating Circumstances,” a legal term for qualifications in the statute for which the state can seek the death penalty in a case of first-degree murder.
In Ms. Kraft’s opinion, those qualifications were so broad and general that about any case could fall under their guidelines, and in all of the cases like this that the public defender’s office handled, it almost always filed motions to the effect that these “aggravating circumstances” were unconstitutional. They narrow, Ms. Kraft argued, the class of people they apply to, and in effect could encompass anybody. Once the state decides what case they want to press as a death case, it then chooses the aggravating circumstances from the statute that fits, she said, listing the ones they intend to prove at trial. The problem, as she saw it, was that life isn’t always so easily categorized.
Ms. Kraft grew up in a big family in Cincinnati, attended Catholic schools and later, Xavier University, a Jesuit institution. When she moved to St. Louis, to attend St. Louis University, she found work at a legal aid office. There, still a law student, she handled cases involving custody and divorce. Upon graduation, she took a job in the Public Defender’s office. Now, seven years later, she was assigned to the elite office of the Capital Ligitation Unit, which handled death cases.
There are three such capital murder offices in the state: in Columbia, Kansas City, and St. Louis. The St. Louis office, which fields a total of six attorneys, plus an administrative lead lawyer, handles cases from the eastern part of the state. Each case is handled by two lawyers, and because the caseload is so heavy, even the head of the office, Kevin Currin, handles one or two himself.
Ms. Kraft’s co-counsel was another woman, Cathy Ditraglia, an associate who had been with the office for about three months. Though Ms. Ditraglia came with a lot of trial experience, including first-degree murder cases, she had never defended a capital case. Because of the caseload, the paralegal assigned to the case also often ends up being an investigator, and that would be the situation this time, too. Ellen’s paralegal was Kim Gray.
The three women knew what they were up against. The majority of the population of Missouri believed in the death penalty. In Ms. Kraft’s experience, any juror who came in and said they didn’t believe in the death penalty was usually excluded from the start. The result was that she ended up with twelve jurors who did believe.
With Shirley Loepker so primed for the case, and Karen Kraft so adamantly taking her stand on the other side, it promised to be a rip-snorting trial. The life of the defendant would hang in the balance as two women attorneys, her peers, presented the case to a jury that most likely believed in the death penalty from the start. For a while, there was even talk of the possibility that the case would be tried before a woman judge.
Ms. Kraft immediately realized that Ellen’s case could end up becoming a complex one, depending on which psychological issues arose. This was also the first time she had ever defended a case in which the FBI had been brought in, and she was looking forward to whatever new challenge this would present. Despite an ingrained optimism, she didn’t think it was going to be a simple, straightforward case.
One of the first moves she made was to line up the money to pursue a psychiatric evaluation of Ellen. It would be done by someone in private practice. Ms. Kraft wouldn’t rest until she knew as much as possible, and she wasn’t going to rely on a court-ordered evaluation at a state hospital.
In psychiatric cases Ms. Kraft had the option to file a motion for an evaluation, or she could just hire someone to do it. Basically there were two findings that a psychiatrist could make that were relevant to the court: one, the defendant was competent to stand trial, and what that entailed, in Kraft’s opinion, was pretty basic. Do they know who their lawyer is? Do they understand that they’re charged with a crime? Do they know how the court system works? Do they know that there would be a prosecutor at the trial and what would they do? Are they able to talk to their lawyer about the case? In other words, it didn’t take much for somebody to be found competent.
The second possible finding—incompetent to stand trial—isn’t always final, because even defendants who had initially been found incompetent for various reasons (they were retarded or schizophrenic) could be declared fit. After six months in a state hospital, attending what Kraft called “Trial School,” where they are spoon fed—“This is this. This is this. This is this”—they were able to regurgitate the right answers. Then, miraculously, they were competent, but it meant little about what was going on in their head at the time of the crime.
In Ellen’s case, Ms. Kraft also instructed the doctors to look for mitigating circumstances as well, in the event it would come down to a penalty phase.
Anyone convicted of first-degree murder in Missouri faced the penalty of life without parole, which simply meant they never got a parole date. Only when the state cites “aggravating circumstances,” as Ms. Loepker did in Ellen’s case, does the jury have the option of the death sentence. The penalty is meted out swiftly, too. In Missouri courts, once the jury finds guilt in first-degree murder, the trial proceeds immediately to the penalty phase.
At this time the defense has an opportunity to present any mitigating circumstances, if they haven’t already been presented in the first stage of the tri
al. The defendant’s upbringing and background are routinely probed, and Kraft would do the same for Ellen. Kraft also considered how it would matter if Ellen hadn’t committed the crimes, and “if she hadn’t, then why had she admitted to it on videotape.
Thus, Ellen’s case promised to be complicated, if not only because even though she had made a videotaped confession, now with astute counsel at her side she was pleading innocent.
Six months later, Karen Kraft didn’t expect to go to trial anytime soon. She had already petitioned for dismissal of the charges because of an unnecessary delay in Ellen’s prosecution. The case was also continued three more times, and the last time was for want of time in court. By August, Ms. Kraft knew that all the judges in St. Louis pretty much had death penalty cases. She also knew that Shirley Loepker was planning to get married in the fall, and would take some vacation.
All this time Ellen had been in the city’s Medium Security Institution, also known as the workhouse, which is located in a dismal industrial stretch north of downtown. Despite all the delays, Shirley Loepker was still intent about this death case, and Ms. Kraft hadn’t heard a peep about a plea. Neither had she even explored anything along such lines, because she really had only begun to scratch the surface in terms of what needed to get done and what had to be investigated in Case No. 911-2566.
A Little Girl’s Fate
Paul and Teri Boehm had returned from Tucson in the winter of 1990. They were so broke that Shirley Loepker agreed to put them up in the Super Six Motel on Bellefontaine until they could get on their feet. Sergeant Burgoon did interview Ellen’s ex-husband, but Paul Boehm would never become a crucial witness for the prosecution.
Paul had an assortment of problems of his own, including his third family with Teri. When Amylynn Michelle was born to them, Paul was a father for the eighth time. He and Teri had a boy named Dennis Duane, and Teri herself had a daughter by a previous marriage, though the girl lived with Teri’s mother.
In the summer of 1992, as Ellen passed time in the city Workhouse awaiting trial, Paul made an attempt to regain custody of his daughter, Stacy, who was a ward of the state living temporarily with her grandmother, Catherine.
Only five days after Ellen was arrested, Juvenile Court had held a custody hearing on the matter, and decided that she would remain in her grandmother’s custody. The hearing was a wrenching experience for him, because all his daughter said to him that day was: “Daddy, why were you on drugs?” It was obvious to him that forces on Ellen’s side were brainwashing her.
The court recognized his interest in gaining custody, but was also cognizant of the negatives on his side, including the fact that he owed approximately $18,000 in child support. The custody matter was postponed for another year, when it would come up for review.
In the meantime, because Mrs. Booker needed knee surgery and was sometimes confined to a wheelchair and a walker, Stacy would be placed in a foster home. Paul would be permitted to see his daughter twice a month under the supervision of a caseworker. Each visit would last an hour.
The first visits were held in the North Seventh Street offices of the Department of Social Services, where Stacy’s caseworker could be on the sidelines. In time, Paul and Stacy would meet at the Northwest Mall, along with Teri and their two children. There, with a caseworker waiting by the front door, Paul could walk around with his daughter, window-shopping, talking about things. Often he would buy her an ice cream. They would spend up to an hour and a half together, and then Stacy would say her good-bye and head back to her foster parents.
In the first few months of foster care, Stacy fared pretty well considering the circumstances. She had some learning difficulties in school. As a fifth grader, she could only spell on a second-grade level. But then she began to make progress again.
As Christmas 1993 approached, she was living with four other foster girls under the same roof. It was as if she had somehow suddenly acquired sisters. There were rules that none of the girls liked, but they all ganged together, and the solidarity had a positive influence on her.
Though she hadn’t even reached junior high school, Stacy’s childhood was gone—her baby brothers were dead, her mother faced life in prison or the death penalty, and her father was an occasional visitor. Her aged grandmother was more infirm with each passing day. Fate had dealt her a cruel hand indeed.
A Trial Date
In the first week of 1992, the St. Louis Circuit Attorney’s office would boast that it had just recorded a record year of convictions and prison sentences. In 1991, 1,240 individuals had been sent to prison, which was up from 1,132 the year before. Circuit Attorney George Peach was also gratified to announce that of the 2,943 people who had pled guilty, ninety-eight percent pled guilty as charged.
By the end of the summer, though, there was little expectation that Ellen’s case would be tried in 1992. Karen Kraft had only started to proceed with the psychiatric evaluations, which she predicted might take weeks, if not months. She was seeking many outcomes from these examinations, including determinations about Ellen’s mental capacity, specifically whether it was or had been diminished in any way.
Shirley Loepker, the prosecutor who had filed for the death penalty, was busy with one case after another, plus she was planning to take time off in November to get married. Following that, it would be difficult to summon witnesses during the holidays, so as far as she was concerned, while it was only still late summer, the trial would take place in the early part of 1993.
It wasn’t until October 8, 1992, when both sides consented to yet another continuance, that a trial date was actually set. Judge Charles D. Kitchin said Ellen’s trial would begin on March 15, 1993. With pretrial motions and jury selection, it was expected to get underway on March 22nd. On December 16th, when Karen Kraft asked for additional time to evaluate her client and prepare for trial, Judge Kitchin moved the case back again, to May 10, 1993.
Ellen had already spent fifteen months in the city’s medium security prison, and she was about to spend her second Christmas behind bars. The new year would bring a resolution to her case. There would be no more continuances and no more delays, she was told, but it wouldn’t be the case.
On January 7th, Ms. Loepker, who had now assumed a new married name, Shirley Rogers, decided to bump Ellen’s case and try another child-murder case first. She was still adamant about the death penalty for Ellen, and she was actively interviewing additional potential witnesses, and planning for a phase of depositions from a long list of others. She hadn’t forgotten the aggravating circumstances that she cited in seeking capital punishment for Ellen:
The offense was committed for the purpose of receiving money from the victim.
The murder in the first degree was outrageously or wantonly vile, horrible or inhumane in that it involved torture or depravity.
In the first week of March, Shirley Rogers and Karen Kraft began to square off in preparation for the trial that was now set to take place in May, some two months away. Karen Kraft filed a flurry of motions, including one to conduct individual voir dire on prospective jurors, and another seeking to quash the indictment due to the unconstitutionality of Missouri’s death penalty. There was another seeking access to the arrest record, and yet another asking for day care for dependent children and family members of single parents who were selected as jurors, or in the alternative, seeking not to sequester the jury.
The state began the process of taking depositions, starting with Joe and Detective Bender. Joe was the key to the whole case. In Ms. Rogers’s mind, Joe, along with Dr. Graham, had solved it through a simple process of elimination. Detective Bender was also a vital witness, because he had accompanied Joe to make the arrest, had been along at times on the trail with the sergeant in the early stages of the investigation, and finally had interrogated Ellen and had elicited her confession with a firm, but soft nudge.
Ms. Rogers’s investigator, Thomas Murphy, had been helping all along to manage the growing list of potential witnesses, st
aying up-do-date with their whereabouts, and also keeping them abreast of the case’s evolution toward trial. But now it was twenty months after the arrest. What further complicated matters was the fact that it had been more than three and a half years since Steven Boehm had died.
In all, Ms. Rogers listed thirty-two witnesses for her case. She would call on the doctors at Cardinal Glennon and Children’s Hospital, on the EMS workers, on Todd Andrews, who had administered CPR to Steven. The state would use testimony from Ellen’s friends, coworkers, and neighbors, and would summon people like Lisa Schneider, who did Ellen’s nails, and Tony Kafoury, who sold her the blue Lumina right out of the showroom.
Drs. Brumberg, Scalzo, and Grant were still practicing at the hospitals. Many of Ellen’s coworkers and friends and neighbors were still right there in town. Mr. Kafoury was still selling cars at Weber Chevrolet, and Mrs. Schneider was working her magic on cuticles. However, some of the key witnesses had moved thousands of miles from St. Louis. Mr. Andrews was now living in California. He had graduated from St. Louis University Medical School the year after Steven died, and was now working at a medical center in Bakers-field, California. William and Elizabeth Pratt had relocated to the East Coast.
The expert medical examiners were far-flung, too. Dr. Cole would have to travel from Grand Rapids, Michigan. Dr. Luke, the consultant to the FBI’s Behavioral Science Unit in Quantico, Virginia, would have to travel, as would even Dr. Dix from Columbia, Missouri. The trial was stacking up to be an expensive one. Aside from flight arrangements, there would be hotel accommodations.
Faced with this prospect, on April 5th, Shirley Rogers was willing to make an offer to Ellen Boehm. In exchange for guilty pleas to first-degree and second-degree murder in the deaths of Steven and David, she would not be prosecuted in the first-degree assault against Stacy, and there would be no trial. This would mean that Ellen could escape the death penalty, but she would have to accept a sentence of life imprisonment without the possibility of probation or parole for Steven’s death. She would also receive another, concurrent life term in the death of David. A decision on the plea bargain was demanded by the end of the week.