William "Bill" Kuenzel. Photo by the author/Copyright Forman Films
Just after 11 PM on November 9, 1987, a gunshot rang out at Joe Bob's Crystal Palace convenience store in Sylacauga, Alabama. Linda Offord, a 39-year-old clerk working the night shift, fell to the floor with a shotgun wound to the chest, and was pronounced dead shortly thereafter. Eight people in the vicinity that night told police they recalled seeing 18-year-old local Harvey Venn around the time of the murder. A number of them also remembered seeing Venn's car outside, with another white man sitting inside it.
Venn was crashing on the couch of his co-worker, 25-year-old William "Bill" Kuenzel, and when police searched the house, Venn's clothing splattered with blood. In initial police interviews, Venn admitted that he was at the store that night with a friend—a white man named David Pope—but denied having anything to do with the crime. He told police he was home by 10:30 PM and that Kuenzel was there sleeping.
Upon further grilling, Venn changed his story. The new version: Kuenzel was with him at Joe Bob's that night, and he was the one who pulled the trigger. The police took Kuenzel in for questioning, but he emphatically denied any involvement, insisting he was at home when the murder took place.
So prosecutors offered plea bargains to the two men, as is commonplace across the American criminal justice system. The offer: enter a guilty plea and testify against the other in exchange for an eight to ten year sentence, or go to trial for capital murder charges and face the death penalty. Kuenzel was steadfast in claiming his own innocence, but Venn took the plea and agreed to testify in court.
Kuenzel, an eighth-grade dropout military brat who spent his childhood moving from base to base, could not afford a lawyer. His state-appointed attorney William J. Willingham was embarrassingly underpaid—at the time, overall compensation to capital trial attorneys for out-of-court work was capped at $1,000—and by his own admission, poorly qualified. He didn't search for additional witnesses or run forensic tests, and spent a total of about 50 hours working on the case.
At trial in September 1988, Robert Rumsey, the powerful Talladega County district attorney known for winning death penalty convictions, centered his case on Venn's testimony. Venn initially claimed the blood on his clothes was from a squirrel he'd been hunting. But Rumsey actually conceded the blood on Venn's pants was in fact Offord's, suggesting to jurors that blood had splashed onto the shotgun when Kuenzel killed the clerk, and that sometime after Kuenzel returned it to the car, it must have rubbed off onto Venn. There was no blood found in the car.
There was also a dispute about the murder weapon itself. Offord was killed with a 16-gauge shotgun, and police discovered a 16-gauge shell outside Kuenzel's home. Kuenzel claimed that in the weeks before the murder, he had borrowed a 16-gauge shotgun from his stepfather to kill a stray dog, but insisted to police that he had returned it by the time of the crime. Two witnesses testified to that effect at trial.
A newspaper clipping after the murder
Under interrogation, Venn told police he had a 12-gauge shotgun in his possession at the time of the murder, but had since returned it. The police went to the owner's house to retrieve the gun, but determined it was not the murder weapon. Venn testified to this in court, and there is no record of the police ever testing the gun.
After a one-and-a-half day trial, the jury found Kuenzel guilty and he was convicted of capital murder during a robbery in the first degree. He made a final plea before District Judge William Sullivan announced the sentence. "As I stand here before this Court to receive a sentence, of possibly the death penalty, for a crime of which I'm not guilty... I pray that when a higher court hears my case, I will be freed of this heavy burden, which was bestowed upon me by the court system. Which might take my life, but not my soul."
The jury did recommend the death penalty, however, sending Kuenzel to death row in Alabama's Holman Correctional Facility. Venn was sentenced to eight to ten years as an accomplice. Adding to the drama, Orie Goggins, a prison inmate who spoke at Kuenzel's sentencing, told the jury that after Kuenzel was convicted, Kuenzel's mother had bribed him to say that he—Goggins—was with Venn on the night of the murder, and Kuenzel and his mother eventually pleaded guilty to perjury and bribing a witness. According to their lawyers, this was an act of desperation undertaken by Kuenzel's mother when her faith in the system was completely broken, and her son joined her in pleading guilty to reduce his mother's sentence.
Now it's been 27 years since Bill Kuenzel was sentenced to die, and a group of dogged pro-bono appellate attorneys will not give up the fight to save his life. They've been working tirelessly for decades, filing appeal after appeal, and over the years have uncovered what they say is strong new evidence supporting Kuenzel, including material that calls a key corroborating witness's account into question. But Alabama's courts have been steadfast in strictly enforcing a filing deadline missed by Kuenzel's appellate attorney, denying Kuenzel access to any review of his original trial.
In a moment of increased attention on fixing America's broken criminal justice system, calls to reform capital punishment are gaining ground across the country. The Kuenzel case offers a terrifying look inside an oft-overlooked part of the problem: the byzantine rules that often delay or prevent troublesome state court convictions from being reviewed. Last November, Kuenzel's attorneys filed what they call their last "standard" post-conviction appeal in the hopes of getting Kuenzel a new trial. If this appeal is denied, barring the revelation of even more new evidence or some other unexpected event, there's a real chance Bill Kuenzel will be executed.
The stakes are about as high as they can get.
In this latest appeal to the Alabama Supreme Court, defense attorney David Kochman has turned to a diverse group of influential religious leaders in Alabama to help get the word out. The group's central message: deadline or no deadline, life is sacred from beginning to end, and Bill Kuenzel deserves justice. In a state that prides itself on its strong religious beliefs, will that be enough to finally get the Alabama Supreme Court's attention?
Having spent most of his life in a five-by-eight cell, will Bill Kuenzel get a new trial?
After the original conviction, Kuenzel continued to vehemently maintain his innocence. In October 1991, the US Supreme court rebuffed his initial round of appeals, known as "direct" appeals. As Alabama is the only state in the country that does not provide indigent death sentence inmates with attorneys for post-conviction appeals, Kuenzel was left without legal representation.
Stevenson still recalls the moment Dretzin took on the project.
"I was trying to recruit lawyers and I'd say, 'We've got folks on death row, and they're literally dying for legal assistance, there is not right to counsel, you've got the skills to take these cases, please take the case,'" he told me in an interview. "I was giving that rap to David and he was probably the first lawyer we were trying to recruit who actually touched me and he put his hand on top of my hand and he said, 'You know, it's OK, I'm gonna do this.'"
Dretzin began the daunting task of preparing Kuenzel's petition for post-conviction appeal. He filed the appeal that October, about two and a half years from when the Alabama Supreme Court had denied his direct appeal and two years from when the US Supreme Court had denied. But after decades of unrelated litigation, the Alabama courts had determined that the statute of limitations to file these appeals ran from the earlier date—when the Alabama Supreme Court denied relief.
According to his lawyers, Kuenzel's petition was suddenly deemed months too late.
Dretzin kept on fighting the time bar, and his investigations—often paid for with his own money—revealed what he said was a significant amount of new evidence to support Kuenzel's innocence. His most glaring discovery: Venn had borrowed a 16-gauge shotgun prior to the murder, the same gauge gun used to kill Offord. But time after time, lawyers for the state insisted that Kuenzel's post-conviction petition was time-barred, and the courts agreed.
The Alabama court system's stubborn and myopic focus on deadlines was actually part of a larger national trend. After the death penalty was reinstated in 1976, capital convictions across the country accrued quickly, especially in the South. As a result, the system soon became overburdened with costly and time-consuming appeals. By the mid 90s, Congress tried to address this problem: In 1996, lawmakers passed the Antiterrorism and Effective Death Penalty Act (otherwise known as AEDPA), which attempted, in part, to restrict death row prisoners' appeals by imposing strict deadlines on their claims to federal review. But instead of streamlining the process, in certain circumstances, like Kuenzel's, the new law effectively served to deny some prisoners their fundamental rights.
In 2006, after years of tedious litigation, the story took a jarring turn for the worse when Dretzin died in a tragic car accident. Kuenzel was devastated. He had become very close to his attorney over the years, and was left scared and alone. In correspondence, he remembered how much Dretzin meant to him: "He... told me that he actually believed in me, that he believed I was innocent and that I never should have been here. This was the first time anybody had ever said that to me."
At the hospital, with Dretzin on his death bed, David Kochman, a young lawyer who had been helping on the case, decided to continue the fight. "When I decided to take on Bill's case, I don't think I knew what I was getting into," he recalled. "But I was absolutely sure of one thing: Bill had nothing to do with this murder."
William "Bill" Kuenzel and his defense attorney David Kochman in 2008. Photo by the author/Copyright Forman Films
Even though Kochman would have to convince the 11th Circuit Court of Appeals, one of the more conservative forums in America, to take another look at the case, he was undaunted. And in 2010, there was an unlikely ray of hope: By a series of twists and turns, Kuenzel's defense team became aware of a number of documents in the DA's file that were never disclosed during the original trial.
One of them, in particular, was striking: April Harris' Grand Jury Testimony.
Harris was driving by the store the night of the murder. It was dark and raining, but at trial she testified she saw Kuenzel in the store. Yet in grand jury testimony before the trial that had not been disclosed to Kuenzel's defense lawyer, she claimed she couldn't see clearly in the store. This was potentially devastating to the prosecution's original case.
Of course, the "missed" filing deadline seemed to foreclose the possibility of placing this, or any other new evidence, in front of a judge or jury. Time after time, the courts had ruled the missed filing deadline trumped any claims of innocence, no matter how strong. In 2012, the 11th Circuit concurred, declaring in its order, "We are not persuaded that we are faced with a fundamental miscarriage of justice. Petitioner therefore has not overcome the procedural bar to the review of the merits of his federal habeas petition and cannot obtain habeas relief in this case."
Kochman and his team were despondent. "How many millions of taxpayer dollars have been wasted by the state of Alabama fighting to prevent Bill to get review of the fairness of his trial, when we know he didn't have a fair trial?" Kochman wondered aloud to me at the time. "It's not just."
Kuenzel was losing hope, too. Many of his family had lost contact with him over the years, including his son William Kuenzel, Jr. who was a young child at the time of the murder. Kochman, who had also started growing close to Kuenzel, went out of his way to track the younger Kuenzel down. They met over Alabama barbecue, and after telling him the bad news about the 11th circuit ruling, Kochman said, "I believe in your dad. He's a good friend of mine. I care about him." William agreed to get back in touch, according to Kochman.
Kochman and team decided to appeal the 11th Circuit's decision to the US Supreme Court. They knew it would be an uphill battle, so they asked some of the top prosecutors in the country, including Robert M. Morgenthau , Gilbert I. Garcetti, and E. Michael McCann to participate as amici, or "friends of the court," in support of Kuenzel.
"When there's newly discovered evidence, what happened in the prior trial is totally irrelevant," Morgenthau, the former Manhattan DA who still has the Central Park Five case fresh in his memory, stressed in an interview.
In spite of the new support, in May 2013 the United States Supreme Court decided not to hear the case. Kuenzel had completely lost access to one of the most important safeguards in America's justice system.
Meanwhile, a growing chorus emerged within the government, the criminal justice community, and the federal bench itself, calling for changes to the 1996 law. Ninth Circuit Federal Judge Alex Kozinski, one of the more vocal critics, suggested in the preface to last summer's Georgetown Law Journal's Annual Review of Criminal Procedure that he felt hamstrung by strict federal guidelines. "We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted," he wrote.
But since that brutal defeat, Kuenzel, Kochman and their team have regrouped again. In September 2013, they filed an appeal back in Talladega Country Circuit Court. According to Alabama law, in order to convict, Rumsey needed at least one piece of corroboration for Venn's testimony. He used April Harris. Kochman now claimed if the original jury had heard her initial grand jury testimony, Alabama law would not legally permit the prosecution to take the case to trial.
At the same time, the Alabama Attorney General's office—whose capital litigation division is led by J. Clayton Crenshaw—was pushing hard for the state to set an execution date, which they did for early March of last year. According to Kuenzel, when he got the bad news the night before Christmas Eve 2014, he maintained his composure. "My case is still before the court," he recalled telling his prison warden. "That must be a mistake. That's not right. I'm not worried about it. God will protect me. It's not my time."
In fact, according to his attorney, Kuenzel went back to his cell and fell into a deep depression.
The execution was eventually stayed when Kochman was granted a chance to present his arguments in front of the Alabama Court of Criminal Appeals in person in early April 2015, a month after the original execution date. In his opening statement before the four-judge panel, the attorney said, "This is a weak case built on accomplice testimony. The sole corroboration was denied before the grand jury. And the same prosecutor who elicited that testimony before the grand jury elicited the testimony from the same witness at trial."
Crenshaw, after reminding the courts of the time bar, rebutted . " grand jury testimony was a bit more equivocal than her trial testimony but she does say... and this is from the grand jury testimony, 'But judging from the stature of the people that were in there, I believe that it was them,' referencing Kuenzel and Venn."
Last July, Kuenzel received the news: Once again, the American legal system had ruled against him. So Kochman and his team decided to appeal—again.
Kochman has pointedly decided not to lump Kuenzel's pleas into the loud calls challenging lethal injection methods currently swirling in the national news. He also does not want to use Kuenzel's case as a call for death penalty abolition. From his perspective, the case is not about the death penalty at all, but rather "core beliefs." Kuenzel deserves a fair trial, and, his lawyer believes, if convicted again, would at least have had a full and proper review of the facts of his case.
Meanwhile, Kuenzel's backers began to try to garner as much local support as they could to amplify this message—and to convince the Alabama Supreme Court to take another look at a case they and others had declined to hear so many times before.
Last October, Kochman held a press conference to announce the coalition, which includes a diverse group of faith leaders in Alabama like Rob Schenck, the head of Faith and Action who was recently profiled in Abigail Disney's documentary The Armor of Light. Father Mark Finley of Church of the Reconciler Fairfield opened with a prayer. "We just ask Lord that we pray through all of the smoke and mirrors and allow us Lord to see the impossible be done to your honor Lord we ask this in the name of Jesus," he said.
Schenck was next to speak, admitting he had joined with "some unlikely allies with whom I as an unabashed conservative Christian don't normally keep company." But, he confessed, he was able to "find common cause on a noble purpose as is the case here. Billy Kuenzel was convicted for a crime he did not commit and condemned to death for it. Which not only puts an innocent life at risk, but it flies in the face of the biblical concept of justice."
Schenck went on to remind everyone that "Billy Kuenzel's plight is not about the death penalty. Many of us feel strongly that the death penalty is sanctioned in scripture, allowed in the Constitution, and called for in many situations."
Doug Jones, former US Attorney for the Northern District of Alabama and Kuenzel's co-counsel, echoed that sentiment. "In a state in a Country that is becoming ever more partisan, partisan in its politics, partisan in its religion, partisan in its economic opportunities, there is one concept, there is one ideal, that cuts across and can bring people together, and that's justice," he said.
Kochman, a Conservative Jew, kept up the religious tack by citing the Old Testament.
"In Deuteronomy 16:20, there's a verse, 'Tzedek, Tzedek,' Justice, Justice you shall pursue," he said. "And sure enough right after that provides one example of when justice needs to be done, and that's when there's an accomplice testifying against someone else. You need to have two independent witnesses. Now, sure enough, if you look at the Alabama code, 12-21-222, there's a codification of that Biblical principle." He closed, "And the folks behind us are going to help tell the court that story. To explain to the court why they do have the power and the obligation to change this."
Kochman filed the appeal in early November, having secured support from other influential Alabama clergy to join on as amici. Of course, it's fair to wonder if a Biblically-infused moral argument will resonate with Alabama's State Supreme Court judges. But Judge John Carroll, professor of law at Samford University in Birmingham, thinks it just might work.
"There are certainly members of this court who write about the Biblical perspective on the law so it certainly may well be directed at some of these," Carroll said. "In a state that believes in the death penalty, but counts ourselves as very religious, this amicus tries to walk the right line, where its not about the death penalty—it's about justice."
Venn was released after about ten years in prison and according to divorce records, still lives in Sylacauga. When asked last fall about the case, Alabama Attorney General Luther Strange was steadfast on the question of Kuenzel's guilt.
"We don't want anyone who's not guilty to be on death row," he said, "but we're pretty certain, we're certain he's not innocent."
Eric Forman is a New York-based documentary film producer currently working on VICE on HBO. He is producing a film about the Kuenzel case called DEAD TIME. Follow him on Twitter.
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