THE CASE FACTS

 

Leon Benson is originally from Flint, Michigan & came to Indianapolis, Indiana in 1995 while helping his uncle move there from Flint, it was in Indianapolis where he met a women & had two beautiful children, & gained employment w/ Decker’s Painting Company. Unfortunately, by the end of 1996 he wins laid off his job & resorted to drug dealing in near downtown area of Indianapolis, where in 1998 he was erroneously charged w/ a murder that occurred there & wrongfully convicted in 1999 at the age of 23 y/o.

 

 

THE CRIME:

 

At approximately 3:45-50 AM on August 8, 1998, a white middle-class male, Kasey Schoen, was shot several times while he sat in his black ‘97’ Dodge Ram truck that was parked in front of the Damien Center on Pennsylvania Ave, just past the intersection of 14th St.

Police & paramedics arrived on the crime scene at approximately 3:53 AM where Kasey was found fatally shot & later pronounced dead on arrival at the hospital. Autopsy reports showed no signs of drugs or alcohol in Kasey’s system. And investigators found no motive for the shooting or even why Kasey was in the crime area to start.

 

There were two women waiting by Kasey’s truck to greet police when they arrived. One woman was an African American, Cheryl King, who stayed in an apartment building at the intersection of 14th St. & Pennsylvania Ave that oversaw the crime scene & the other woman was a Caucasian, Christy Schmitt, who was a newspaper delivery person. Both women called 911, but only Schmitt claimed to have witnessed the crime.

 

At approximately 4:31 AM - less than an hour after the crime- Schmitt gave detective L.A. Van Buskirk a record statement while on the scene. As conveyed by police records, Schmitt stated the following: “During her morning paper route, Schmitt was driving her mini-van south bound on Pennsylvania Ave. where she stopped (on the west side of street) to refill an outdoor newspaper vending box. Due to a car being parked directly in front of the box, she had to park her van a few feet south of it. When getting out of her van she noticed a black truck parked on the same side of Pennsylvania Ave, just south of her, pass the 14th St. intersection. Her attention was drawn to the truck because its tail lights were illuminated.

 

Now at the box several feet north of her van, Schmitt began refilling the box when she heard three or four “pops” like firecrackers then she looked in the direction of the sounds & observed an African American male standing beside the truck while on the sidewalk. The suspect then turned in her direction & started walking towards her. But then she turned around & walked back to the truck & pointed a handgun into the passenger side window (which was down) & fired two more shots. (Schmitt saw the flash from the muzzle of the gun on the last two shots.) Then the shooter turned away & began walking away quickly (south) down the sidewalk until he reached the Damien Center parking lot where he cut west & out of sight.

 

In fear of her safety for if the shooter came back from behind the center, Schmitt got to her van where she called 911 on her cell phone, but got no response. Then she drove southbound down Pennsylvania Ave. passing by the truck & the Damien center’s parking lot. She watched the truck & lot in her rearview mirror where she observed about a dozen African males & females scattering from the lot. After driving a block beyond the crime scene Schmitt finally reached the 911 dispatch on her second call & returned to the victim’s truck.

 

While Schmitt waited by the victim’s truck for police to arrive she encountered Cheryl King, a black female, who came out the 14th St. & Pennsylvania Ave. apartment (St. Regis) building. King told Schmitt her husband was calling 911. King opened the driver’s door of the truck & they observed the victim, neither woman touched anything inside the truck or the passenger side.

 

Schmitt went on to state that although the shooter did not fully stand in the street light on the corner of Pennsylvania Ave & 14th St. that her van’s headlights illuminated the scene enough that she felt she could possibly identify the shooter if she were to see him again. She described the shooter as follows: “Black male, early to mid-20’s, dark complexioned, 5’8, skinny build, black t-shirt, baggy dark sweatpants w/ three stripes down the sides, dark tennis shoes, short hair, & possibly no facial hair.”

 

Later that same morning of August 8, 1998, Schmitt gave a second recorded statement at the police statement to lead detective Alan Jones. In that statement Schmitt was specifically asked if the shooter was a “light, medium, or dark complexioned black male?” and Schmitt replied “Dark!” Schmitt was shown tow photo line ups but couldn’t identify a suspect.

 

In addition, police crime scene specialist, officer Robert Layton recovered five bullet shells on the street 2 sidewalk around the victim’s truck (ballistic analysis revealed that all the bullet casings were fired from the same 380. automatic handgun) & concluded the victim was murdered w/ a 380. automatic handgun.

In addition, Officer Layton made video & measurements of the crime scene. He determined that the distance between the vending box (where Schmitt stood observing the crime) & the victim’s truck (where the shooter stood) was approximately 147 feet (44.80 56 meters), the equivalent of one half of an American football field.

 

 

THE ARREST:

 

On August 14, 1998 after negotiating a week old $40 drug transaction misunderstanding w/ Leon, a Donald Brooks & an unknown black male walked away leaving him & Shirley Gaskin, a 40ish black female, sitting in front of an apartment building located on New Jersey Ave. & 13th (several blocks away from where the crime occurred). Minutes later police arrested Leon for a probation warrant & Gaskin for unknown reasons.

 

However, police “probable cause” reports later showed that Leon’s arrest was prompted by Brooks, a 50ish, black male, drug user & parolee. After leaving Leon & Gaskin, Brooks notified an off drug police officer with a speculation of Leon’s involvement in Kasey’s murder days earlier.

 

While Leon was in police custody, Det. Alan Jone placed his photo line-up & called Schmitt to the station to view. Det. Jone conducted the photo lineup procedure alone (w/o an attorney present nor w/o any audio or video recordings) w/ Schmitt & subsequently she identified Leon as the shooter in Kasey’s murder. This was odd due to Leon’s physical appearance (5’10, very light complexioned African-American male, w/ a distinctive mustache) bold conflicting w/ Schmitt’s initial description of the suspect.

 

Det. Jones decisions to conduct a photo lineup while Leon was in custody & available for a live line up are suspicious, especially when we consider the photo lineup only depicted suspects from the neck up. Schmitt’s description of the suspect displayed no distinctive facial feature other than “possible” facial hair.

When questioned by det. Jones of Kasey’s murder, Leon denied any involvement in the crime, After Det. Jones insisted that two eyewitnesses identified him as the shooter, Leon denied any involvement in the crime, after Det. Jones insisted that two eyewitnesses identified him as the shooter, Leon indignantly began telling his whereabouts during the crime (although he omitted his illicit drug activities) while wavering his Miranda rights in the process stating:

 

“That on August 8, 1998 the night of the crime, Leon was hanging out drinking in an apartment building called “Percilles” (known on the street as “Lil VietNam” Located on 1304 N. Pennsylvania Ave.) when he heard several gunshots that seemed to come from right outside the building.

 

When asked, who had seen him there? Leon gave a list of names (mostly nicknames & apartment numbers) of the people who seen him in the building during, immediately before, & after the gunshot sounds as follows: Timothy Gnither, Tony, Light Foot, Toopock, Tasha, Joe, apt#’s 9, 20, 21, 36, 32, Shirley Gaskin.

Also Leon stated he was hanging out in the area all that day prior to the crime. He even visited the St. Regis apartments on the 14th St. & Pennsylvania Ave where he offered beer to an inter-racial couple, who he called ma & pops, around 11pm-12am”

 

After the statement Leon was arrested for the murder of Kasey & placed in the country Jail to away arraignment. His mug shot was taken (which depicts Leon’s actual appearance six days after the crime).

 

on August 15, 1998 Brooks gave Det. Jones a statement that he seen Leon before & after the shots were fired w/ several other individuals standing by the victims truck. Brooks went as far as to state that he seen Leon walking (east) across Pennsylvania Ave. Toward the “Lil Viet Nam”. These accusations were made despite Brooks being in a St. Regis apt. window & w/o his eye glasses while allegedly observing the crime scene. Brooks statement conflicted w/ Schmitt’s account when she stated that the shooter was the only person on the scene & he cut (west) through the parking lot, not (east) crossing the street.

 

Despite Brooks meeting w/ Det. Jones on two separate occasions before Leon’s arrest, Det. Jones didn’t take a statement from him until a day after Leon’s arrest. This was an odd investigational move on Jones part in a murder case.

 

 

EMERGING EVIDENCE:

 

On August 17, 1998 another eyewitness to the crime, on a black male, Dakarai Fulton, who lived in the area gave Det. Jones a statement & positively identified another suspect from a photo-lineup committing the homicide. As conveyed by police records, Fulton stated the following:

 

“Fulton stated he resided at the Sherwood Apartments located 1034 N. Delaware St., & on the night of the crime he left through the back door of his buildings headed to a gas station on 16th St. & Illinois Ave. The route he took to get there was through an alley) between Pennsylvania Ave, & Delaware Ave.) Going North where he passed two buildings (first the Percilles & turn a place of business) to the left of him. Fulton went along the right side of the place of business where a dirt trail was in the middle of a grass field going west toward the sidewalk of Pennsylvania Ave.

 

Within several feet before reaching the sidewalk of Pennsylvania Ave. Fulton saw a black Dodge Ram truck pull up to an individual, in front of the Damien Center on the west side of Pennsylvania Ave. Fulton stated that the truck pulled up to a black male, wearing black jogging pants w/ three white stripes down the sides, & a black t-shirt. He said the truck sat there for a second & the next thing he knew gunfire rang out. Fulton witnessed the black male unload his gun into the truck’s cab. Then the shooter ran (west) through the Damien Center parking lot.

 

Fulton stated that he recognized the shooter because he had seen him 2-3 hours earlier in the same area while wearing the same clothing. Fulton recalled that he was out getting some air & saw this suspect walking between the Percilles & the place of business buildings. Fulton asked the suspect the reason why he had a black bag over his hand & the suspect then pulled out a handgun & waved it around. Fulton told him “stop waving the gun around because it [sic] ain’t no when it could go off. I had a friend who got shot that way.” the suspect took Fulton’s advice then walked away.

 

When Det. Jones asked, what type of gun was it?’ Fulton replied, “A 380. Automatic Davis Industries I believe.” Jones then asked, “What makes you believe it was a .380?” Fulton replied, “I seen the same gun, I had the same gun in I guess it would be a carbon copy.” Then Fulton proceeded to identify a suspect other than Leon so committing the Kasey’s murder.”

 

Fulton’s account strongly corroborated w/ existing evidence: he described the suspect’s clothing the same way as Schmitt did, & that the suspect had a 3.80 auto handgun which is the same type used to murder the victim.

 

On august 25, 1998 according to Indiana crime stoppers records, an anonymous caller stated that they personally knew the person (gave their name) who committed Kasey’s murder and that the suspect used his girlfriends, Latasha Sheppard’s handgun in the crime & that she reported the gun stolen day after the crime. Indeed, Sheppard did report her 380. handgun missing to police on august 11, 1998. In that police report, Sheppard stated the gun was stolen out of her car between August 1&11, 1998. This police report confirmed that the “crime stoppers” caller was reliable.

 

On September 9, 1998 Kenneth Brookings, a 40ish black male, gave police a statement that his girlfriend help to lure Kasey into the neighborhood & she confided in him who actually committed Kasey’s murder. Brookings made it clear that his girlfriend said it was another suspect that committed the murder, not Leon.

 

In every instance of the emerging evidence the same suspect was in possession of the same weapon was identified in direct connection to Kasey’s murder. This raised serious questions of why the police, particularly lead Det. Jones, chose to ignore such powerful evidence & pursue Leon instead. During the course of the investigation Indianapolis had a record high of 162 homicides in 1998. This undoubtedly put pressure on police & prosecution to solve more homicide cases, however this does not justify letting a murderer remain in society free to kill again.

 

Unaware of any of this emerging evidence while incarcerated in Marion County Jail, by September 1998, Leon hired Timothy J. Miller, on Indianapolis attorney, Miller initially promised that he would get the charge dismissed. However, that never happened & eight months later, Leon was sitting on a courtroom being tried for Kasey’s murder.

 

 

THE TRIALS:

 

Confused, indignant, & depressed was the mind state of Leon as the trial date loomed. When a week before the trial Miller had finally shown him all the exonerating witnesses’ statements & this only assured Leon that his nightmare would be ending-or so he thought.

 

On May 24, 1999 the first trial ended in a hung jury verdict: 6 not guilty, 5 guilty, & 1 undecided. This deadlock occurred w/o the defense attorney calling eyewitnesses Shirley Gaskin, Cheryl King, Kenneth Brookings & his girlfriend, & Dakarai Fulton to testify on Leon’s behalf. However, Leon testified on his own behalf & alibi witnesses Timothy Gaither. Gaither state that he, Leon, & alibi witness Timothy Gaither. Gaither stated that he, Leon, & others were in that apartment building during the crime. To the state’s surprise, its witness Donald Brooks claimed memory loss to the accusations he stated to police. In fact, Brooks refused to testify all together until threatened by prosecution and Christy Schmitt’s identification testimony was very contradictory of Leon being the shooter, she admitted before the court that Leon was in fact a fairly light-complexioned black male unlike her initial description of the suspect as a dark-complexioned one. Schmitt even testified that she made eye contact w/ the shooter as she passed by the parking lot in her van this type of description was evident to the overall weakness of the state's case.

 

After the results of the first trial Leon saw many obvious contradictions that prevented his acquittal, mainly the lack of key defense eyewitnesses. The reasons the defense attorney’s private investigator could not locate witnesses for trial was due to him being a white male that scared them away in an urban-black-crime area. Plus this private investigator (Bob Fisher) was good friends w/ lead Det. Jones. Therefore, Leon took it upon himself to hire an African American private investigator, James Hendrix, who seemed more adapt at approaching witnesses from urban areas. Defense attorney Miller told Leon that he heard good things about Hendricks’s work & welcomed him to the case. After a few days on the job Hendrix located Shirley Gaskin & Cheryl King. Plus he conducted experiments on the crime scene to test Schmitt’s identification, which he concluded that no one could positively identify anyone from her viewpoint in the daylight or at night. Despite all of his efforts, Hendrix was still unable to locate eyewitness, Fulton.

 

Due to a “fast & speedy” trial motion submitted by attorney Miller, the second trial began on July 7, 1999 (forty four days from the first trial). However, Leon was found guilty despite the powerful testimonies of Shirley Gaskin who testified she saw him, despite the powerful testimonies of Shirley Gaskin who testified she saw him, Timothy Gaither, & other in the apartment building during the crime; Cheryl King, who testified that Schmitt told her she could not identify the shooter while they waited on the scene for police; Carol Knight who testified that she & her husband seen Leon the night of the crime wearing designer blue jeans & blue t-shirt w/ an emblem on it; & Leon testified on his own behalf again. Schmitt testimony was still riddled in contradictions as it were in the first trial. But w/ the aid of the prosecution, she made herself 50-70 feet closer to the crime, rather than 147 feet that the police measured her actual position. The prosecution was rouge to say the least, much more aggressive in the second trial than the first. When Brooks refused to testify to what his police statement alluded to, the prosecution accused him of being afraid to testify out of fear of country jail inmates finding out. in effect, this accusation also was an insinuation that Leon’s ‘folks’ was threatening Brooks around the jail, when that was not true.

 

The defense attorney performance was incompetent throughout this trial. His body language was that of a sloth & equally was in his reacting to object to the prosecution misconduct. The main mistake came when the defense fail to object to the introduction & publishing (reading) of Brooks’ unsworn police statement. This was a critical mistake by the defense not to object for the following reasons: (1) brooks statement was inadmissible (2) it was filled w/ hearsay & speculations (3) uncharged crimes of drugs selling & an alleged robbery that took place a day after the crime where Brooks alleged Leon robbed him at gunpoint for $40, & (4) after Brooks was dismissed from the stand the prosecutor introduced him out of court statement into evidence, therefore, to Leon’s guilt & innocence. Then when the prosecutor read Brooks’ statement word for word before the jury (instead of objecting defense attorney took a nap) & enforcing hearsay, speculation, & irrelevant accusations made by Brooks. This laid improper foundation for the prosecution the rest of the trial to accuse all of the defense witnesses (Gaskin, Knight, King & Hendrix) of testifying because Leon gave them drugs, which they all denied on the stand. Even more, during closing arguments the prosecutor told jurors that Leon “had a gun before, during, & after the crime,” which was false but predicated from the erroneous admission of brooks unsworn statement.

 

Another surprise revealed by the prosecution was that the defense’s private investigator, James Hendrix, was once convicted of murder & served a twenty year sentence in Indiana prisons. In effect, the judge treated Hendrix like an ex-felon when it rejected all of his testimony & on scene experiment results, which was the only direct challenge to Schmitt’s identification testimony. & on scene experiment results, which was the only direct challenge to Schmitt’s identification testimony. Defense attorney did not call Timothy Gnither to testify for reasons unknown. All of this incompetence was devastation to Leon’s innocence defense. On July 8, 1999 when jurors read a guilty verdict Leon’s reaction was repeatedly saying “Jesus” from the shock.

 

On August 19, 1999 a sentencing hearing was held. Kasey’s family was hard on Leon, but he strongly maintained his innocence. Although no motive was ever established throughout the police investigation or either trial, in the presentence report Det. Jones submitted a fabricated statement:

 

“I believe the night of the murder Kasey saw Benson and stopped to talk to him about a sexual liaison. Benson became angry for being asked, especially in front of his cronies, so he killed him just to show them he was “bad” the victim did nothing more than ask for sex & was shot five times for his trouble. a dope dealer who kills without provocation should receive the maximum sentence.” Defense attorney did not object to his false admission. Jones had it in for Leon, & as result he was sentenced to 60 years in prison.

 

Another troubling fact emerged years later, It was discovered that exonerating eyewitness, Dakarai Fulton was in the custody of the state throughout both trials. Ironically, Fulton was in the River Side work release center that was located on Pennsylvania Ave, just a block from where the crime occurred. Therefore, it is obvious that Leon’s attorney & investigator did a very bad witness search or they were partners with the state in withholding Fulton’s location.

 

 

APPEALS:

 

Leon hired Indianapolis attorney, J. Richard Kiefer to head his first (direct) appeal. Because Leon was sentenced over 55 years his appeal was heard by the Indiana Supreme Court.

 

On May 17, 200 Kiefer filed Leon’s direct appeal arguing the following issues:

 

(1) the trial court erred when it permitted the state to confront (Brooks) its own witness w/ a theory that Brooks was testifying falsely due to threats of violence against him from fellow Jail inmates w/o substantiating the evidence of threats or linking alleged threat to defendant (Benson)’...

(2) The trial court erred in excluding (defense investigator) James Hendrix’s testimony as to what could be observed from the vantage points of the state's witnesses (Brooks & Schmitt)...

(3) The trial court committed reversible error & violated Benson’s right to due process when the Judge questioned a witness in a manner that stated that Benson was the shooter, destroyed Benson’s presumption of innocence &, in effect, endorsed the state’s case & relieved the state of proving its case beyond a reasonable doubt.

(4) The prosecutor committed constitutional error by injecting several evidentiary harpoons into the trial when he repeatedly discredited Benson & his witness w/ prejudicial accusations (drug relationships) which was unsubstantiated in the record (see Benson v. state, 762 N.E. 2d 748 ind 2002).

 

Unfortunately, on February 15, 2002 the Indiana Supreme Court denied Leon’s first appeal. This left him w/ the following appeal options: (1) Post-conviction Relief (PCR) appeal, (2) Successive PCR, & (3) federal Habeas Corpus.

 

After Leon went bankrupt hiring previous attorneys he was left to pursue his PCR w/ the Indiana public defender’s office. On January 24, 2003 the public defenders filed his PCR, but it was backlogged until December 2006 before the public defenders started working on it. Due to their uncommon for his innocence or appeal issue, by July 2007 Leon kicked the defendants off his case & went forward pro se (acting as his own attorney).

 

In a 2005 American Bar Association study it was determined that the state of Indiana ranked fourth amongst the fifty states in “providing the worst legal representation to indigent clients”, and this poor representation is even worse when Indiana public defendants reside over the cases of poor prisoners.

 

Nonetheless, Leon persevered. He was confronted w/ the multi-task of composing legal arguments, search for witnesses, monitoring the PCR court (trial court), enduring the oppression of solitary confinement (2001-2011), & to campaign for his freedom to society by contacting every U.S. innocence project, ACLU, NAACP, ABA, pro-bono firms, law schools, newspapers, talk shows, churches & doing online petitions & blogs. In the latter effort, Leon was provided w/ little or no help from legal institutions, because his case lacked DNA evidence, rather an emphasis on misidentification.

 

You would think that innocent projects would jump at the chance to represent Leon’s misidentification case? Since the Innocence Project (NYC) claims that, “Eyewitness misidentification is the single greatest cause of wrongful convictions Nationwide.” further, the innocence project has worked on many cases where eyewitnesses even in the best of circumstances identify the wrong person. “Estimator variables are those that cannot be controlled by the criminal justice system. They include simple factors like the lighting when the crime took place or the distance from which the witness saw the perpetrator. Estimator variables also include more complex factors, including race (identification have proven to be less accurate when witnesses are identifying perpetrators of a different race), the presence of a weapon during a crime and degree of stress or presence of a weapon during a crime and degree of stress or trauma a witness experienced while seeing the perpetrator,” despite the aforementioned, innocent projects are most concerned w/ innocence cases where D.N.A. is involved, because it is more scientific.

 

Luckily in 2009 an empirical psychologist, Dr.Geffrey R. Loftus submitted a sworn affidavit in Leon’s PCR appeals. In their scientific breakthrough study “Why is it Easier to Recognize Someone Closer than Far Away?” (2004) Dr.Loftus & Dr.Evin M. Harley found that after 23ft face perception diminishes; at approximately 150ft accurate face identification for humans w/ normal (20/20) vision drops to zero, even in broad daylight; & at night or under poor lighting conditions the loss of accurate identification drops three times as worse (e.g. when Schmitt viewed the suspect from a 147 ft at night under poor lighting conditions, it was the equivalent of seeing that suspect in daylight from a distance of 441 ft- an American football field & a half). In Dr. Loftus affidavit he compared Schmitt identification testimony to her scientific “vision & distance” analysis & to the mentioned estimator variables (weapon focus, cross-race identification, & the shortcoming of photo lineup procedures). In addition, he displayed a “blur picture exhibit” that depicted exactly how blurry a person's face would have looked to Schmitt from the distance she seen the crime, if she had 20/20 vision: it was unidentifiable. Dr. Loftus scientifically concluded that Schmitt could not identify anyone from 147 ft, under the poor lighting conditions, & w/ her less than normal vision.

 

Another scientific breakthrough emerged in 2008, when an English physicist, John Bond developed a new finger printing technique, In bond’s study “Visualization of Intent Fingerprint Corrosion of Metallic Surfaces” (2008) he demonstrated how his new “visualization” technique could lift prints off of any metal surface, even if that surface had been washed or wiped down beforehand, after reviewing ballistics reports in Leon’s case, in May 2009, bond submitted a sworn affidavit on behalf of Leon’s PCR. He explained that his new technique could be performed on the five recovered bullet casings in Leon’s case & if there were prints to be found that conventional printing could not recover, his visualization technique would recover them.

 

While pro se, Leon included both Loftus & Bond’s affidavits in his PCR as “newly discovered evidence: along w/ eight other powerful issues. Unfortunately, due to the courts arbitrary rulings against him presenting exculpatory eyewitnesses (Fulton, Gaither, Loftus, Bond, & Det. Van Buskirk) at the then December 2009 PCR hearing, Leon” withdrew his PRC without prejudice? (i.e., he reserved the right to re-file the PCR on a later date). From this experience; he has seen firsthand the bias against pro se prisoners in the courts. Therefore, Leon was left to regroup to acquire the proper means to hire a private attorney to represent his PCR.

 

After enduring several business courtships w/ attorneys & lost finances, it was not until May 2012 that Leon was able to hire respected Indianapolis attorney, Eric Koselke.

 

Since taking on Leon’s PCR case Koselke has gone through court records e/ a fine comb, searched but & interviewed key eyewitnesses, & has worked close w/ strong supporters & family members of Leon. Koselke is beyond confident in the constitutional merits of their innocence case & in that court should grant Leon a new trial or outright exonerate him.

 

If you have any questions feel free to contact Koseke & he will gladly answer you: Attorney Eric K. Koselke 6202 N. College Ave. Indianapolis, IN, 46220 Ph # (317) 722-2591

 

Also, if you would like to attend Leon’s upcoming court hearings, as they are posted on this site, here is the case number & address: Superior Court Criminal Division, Room 2 ℅ Case #49G02-9808-PC-134837 City County Building 200 E. Washington St. Indiana, IN, 46204

 

As you see, this fight rages on, but we need your support to bring this case to a righteous ending. There are always unforeseen contingencies when pursuing any goal. We must be ready at every turn-Leon is depending on us. Join the fight and remember: “truth never dies. It’s only rediscovered.”

 

In Truth, Believe, & Justice,

 

Supporters of Leon Benson