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After Murder Conviction, Former Custodian’s Case Dismissed Kansas Supreme Court decision declares key testimony inadmissible by [nathan yaffe] Closure quickly turned to disbelief for those who knew Lizabeth Wilson when the Kansas Supreme Court reversed a ruling on 33-year old murder on Feb. 2. Convicted and sentenced to life in prison for her murder, a former East janitor, John Henry Horton, is due to be released by the end of the month because of the Supreme Court’s decision. On July 7, 1974, 13-year-old Lizabeth disappeared after leaving the Prairie Village pool with her 10-year-old brother John. Cutting across what is now called the senior lot to get to their home a few blocks north of East, John ran ahead of his sister to hide behind a column and scare her as she rounded the path towards the front circle. Lizabeth never came. When the Wilsons came home that night to find John alone, the phone calls started. Later that night, with no sign of Lizabeth and no clue from the neighbors, a neighborhoodwide search party was raised. Gini Colburn, longtime family friend and East teacher, remembers the hours after her disappearance. “Larry [Colburn, her husband] and some of the neighborhood fathers spent most of the night going room to room, closet to closet in the school,” Colburn said. When the search didn’t turn up immediate results, the party turned to the police department next to the school. “At the time, the rule at the police station was whenever a teen went missing, you waited 24 hours before doing anything in case they ran away,” Colburn said. But they knew Lizabeth was too responsible to have run away, so they begged the police to help them right away. All their searching, however, would be in vain. Lizabeth was not seen again until her remains were found at a Lenexa construction site six months later. There was never enough evidence to try Horton, although police found three bottles of chloroform, a can of ether, a gallon of sulfuric acid, a butcher knife, brown cords and two canvas bags in Horton’s trunk that were stolen from the school the afternoon of Lizabeth’s disappearance. The case was closed until 2001, when new testimony and evidence solidified the case against Horton. After a threeyear investigation, Horton was put on trial Sep. 20, 2004. By the end of the year, Horton was found guilty and sentenced to life in prison. In order to re-open the trial, the state relied on the newlydiscovered testimony of Joy Creager. According to her testimony, Creager accompanied her friend, Horton’s niece, to a local golf course with Horton to get high. Once at the course, Horton forced a rag containing chloroform over her nose and mouth, causing Creager to pass out. When she came to, Horton had pulled her pants down and was sexually assaulting her. It was only a few
Timeline of events: July 7, 1974 Lizabeth Wilson disappears during her walk home from Prarie Village municipal pool.
months before Lizabeth’s disappearance, and Creager was barely 14-years old. The same testimony that sealed his fate would later be the basis for a Supreme Court ruling that reversed his conviction and dropped all charges against him. In order for testimony about prior crimes to be admissible, the prosecution must establish a link between the prior crime and the current crime. Using that standard, Appellate Counsel Joyce Yeager, an attorney who represents clients who want to appeal their cases, argued that Creager’s testimony shouldn’t even have been included in the preliminary hearing. “[The prosecution] could not establish a connection between Ms. Creager and the victim, because the link was too speculative,” Yeager said. “The only similarity is their age and the allegation of sexual assault. That means that the evidence is, in legal terms, inadmissible because it’s not relevant.” According to Yeager, mistakes made in the preliminary hearing usually no longer matter when the case goes to criminal court. That would mean that even if Horton won the appeal, nothing would be changed. However, Yeager argued before the court that the criminal proceedings should never have taken place to begin with. “Without Creager’s testimony, there was not adequate evidence to bind him over for trial,” Yeager said. To determine whether or not to bind someone over for
The Appeals Process When an issue comes up during the trial that an attorney might like to challenge at a later time, that attorney may preserve the right to appeal. If that attorney’s client is then convicted, the client has two options: 1. Apply to have an attorney appointed by the Board of Indigent Defense Services 2. Hire their own counsel A lawyer who files an appeal must show that the trial court or administrative agency made a legal error that affected the decision in the case. Appeals are decided by panels of three judges working together. A lawyer who loses in a federal court of appeals, may file a petition for a “writ of certiorari,” which is a document asking the Supreme Court to review the case.
Source: www.uscourts.gov
October 2003 Authorities arrest Horton outside his trailer home in Canton, Mo.
Bones belonging to a 12- to 14-year-old white girl are found in rural Lenexa. The Wilsons bury the remains.
July 8, 1974 Authorities first question Horton, who was the custodian on duty at East when Lizabeth disappeared.
February 2, 2007 Kansas State Supreme Court reverses the court’s decision and dismisses the charges against Horton on appeal.
Late 1980’s Investigators re-open the case. They try new DNA testing, but discover that blood collected in the mid-1970s is no longer in good condition.
January-February 1975
1980
trial—that is, to advance from preliminary to criminal proceedings—the court uses the doctrine of reasonable belief. In Horton’s case, that means an ordinary person could entertain reasonable belief that Horton kidnapped Liz. The Supreme Court agreed with Yeager. Since the decision in the preliminary hearing was based on Creager’s irrelevant testimony—and since, in their view, that evidence prejudiced the jury—the Court not only reversed the decision, but dismissed the complaint against Horton as well. Colburn remembers how she felt when she found out about the decision. “We couldn’t believe it. We were just stunned…. We’d gone through the trial with these people, when everyone in the room was just crying,” Colburn said. For her, the sting of his release is sharper because of all the years they had to wait for justice to be served. “I don’t think he even looked over his shoulder. He thought he was free and didn’t even look to see if anyone was gaining on him,” Colburn said. “Now he’ll be free again.” Those who knew Lizabeth aren’t the only ones upset at this development. “It’s safe to say that I’m extremely disappointed,” Rick Guinn, the attorney who prosecuted Horton’s case in addition to representing the State before the Supreme Court, said. “This was a hard-fought case and a tough case to prove. It meant a lot to that family.” The Wilsons could not be reached for comment. The future of the case is in the hands of the District Attorney’s office. Assistant DA Brent Venneman, who served as trial counsel to Guinn, is overseeing that effort. “Our office has been in contact with the family to advise them regarding the decision by the Supreme Court, and also to advise them as to the procedure that will take place over the next month,” Venneman said. At the end of that month, the decision becomes final and Horton will be released. In the meantime, the DA’s office is working on a motion for reconsideration, which is scheduled to be completed this Thursday. If the Supreme Court, after reviewing the motion, decides their opinion remains unchanged, the only recourse is to re-file the charges and begin the trial process anew. At that point, it’s up to the family and the DA’s office to decide whether or not they can build their case without Creager’s testimony. But before they address the legal aspects, they have personal questions to answer: the family has to decide if they’re willing and able to repeat the trial process. Colburn, for one, understands why they might hesitate. “They had to put this to rest in their own minds. They came to their own closure, somehow, long before that trial…. They had to,” Colburn said. “The damage this man did to this family and people who knew this family was so profound, so far-reaching. It was a life-changing event.”
1990
August 2002 Authorities who have re-opened the cold case interview Horton. Feb. 20, 2007
2000
September 2004 A Johnson County Jury finds Horton guilty of felony murder in the death of Lizabeth. Source: Kansas City Star