The Pilate Program

A night of exhaustion created an inexhaustible lawyer who fights for the wrongfully convicted

Published in 2005 Missouri & Kansas Super Lawyers — November 2005

In news footage from a blistering summer day six years ago, a tall African-American woman emerges from Missouri’s Chillicothe Correctional Center, wiping away tears that stream down her face. Once outside, she grabs for the hand of her attorney and pulls her down the steps as they rush away from the building. It is August 3, 1999, and 42-year-old Ellen Reasonover is a free woman after spending almost half her life, 16 1/2 years, behind bars for a murder a federal judge has just ruled she did not commit.
 
Holding Reasonover’s hand is Cheryl A. Pilate, Reasonover’s attorney, friend and dedicated believer in Reasonover’s innocence. As Charlie Rogers, another of Reasonover’s attorneys, drives them away in a white convertible, top down and honking wildly, Reasonover sits in the front passenger seat, waving to the gathered supporters and reporters. Pilate is in the backseat, already on her cell phone.
 
For Reasonover it was the end of a long personal nightmare. In January 1983, a gas station attendant was murdered in Dellwood, Mo. Reasonover had visited the gas station that same evening and witnessed some unusual activity; at the urging of her mother, she contacted the police. Gradually, in part because she tentatively identified two men who had been in jail that night, the police began to suspect her. Eventually she was arrested, despite no evidence linking her to the crime.
 
Convicted of capital murder in St. Louis, and sentenced to life without the possibility of parole for 50 years, Reasonover was one jury vote shy of receiving the death penalty. From the beginning she maintained her innocence, and in 1993 her pleas reached the ears of Jim McCloskey, executive director of Centurion Ministries, a nonprofit group based in New Jersey that seeks justice for the wrongly convicted. McCloskey soon found he needed representation for Reasonover outside of what he calls the “incestuous” defense circles of St. Louis, and, in 1994, he approached Jim Wyrsch, president of Wyrsch Hobbs & Mirakian, in downtown Kansas City, Mo.
 
Wyrsch turned out to be too busy, but he told McCloskey, “I have the right person for you.”
 
Throughout the difficult case, McCloskey admired Cheryl Pilate’s diligence and tenacity. “Cheryl is completely dedicated,” he says, “but she doesn’t wear her zeal on her sleeve. She’s very professional, and not self-righteous.”
 
A self-described workaholic, Pilate is uneasy talking about herself. “I just love to work,” she says, “but I don’t seek out press for what I do.” While Pilate may not seek media attention, the press usually finds her. Following the Reasonover exoneration, which resulted in part because the prosecution had withheld evidence indicating Reasonover’s innocence, Pilate wound up on MSNBC, Court-TV and The Today Show, where she was interviewed by Katie Couric. She knows it’s the nature of her cases that spark the media interest. At times she feels the media and public are more fascinated with the exonerations than the courts or the criminal justice system.
 
“At the outset of Ellen’s case I was fairly naïve,” Pilate says. “I thought the other side would be reasonable and want to talk about it, but the more we were able to point to facts that showed her innocence, the less the other side seemed interested.”
 
She adds, “I think there is a great deal of difficulty about recognizing the number of people who have been wrongfully convicted. No one wants to admit that our justice system makes that many mistakes. Once I face resistance, it’s in my personality to fight even harder.” Pilate fought, and Reasonover left the correctional facility that August day a free woman. But victories are bittersweet. “The true tragedy of wrongful convictions is the family of the [crime] victim sometimes waits forever for justice,” Pilate says.
 
 
Wyrsch Hobbs & Mirakian recently moved to new offices at 11th and Walnut, and Pilate’s floor is cluttered with boxes, marked by case, and framed photographs waiting to be hung. One box sits closer to her desk than the others. The words “Darryl Burton, Live” are written in red marker, noting the case of a man convicted of murder and sentenced to life in prison in 1985.
 
Despite her high-profile successes, Pilate finds that the courts are becoming more conservative, and less inclined to hear wrongful-conviction claims — citing the 1996 Anti-Terrorism and Effective Death Penalty Act, signed into law by President Bill Clinton.
 
“It used to be the federal courts were the savior of the wrongfully convicted or people on death row,” Pilate says. “But [the courts] have become increasingly hostile to all kinds of post-conviction claims, claims of innocence.
 
“People who don’t know the court system — it seems almost un-American to them to hear someone say, ‘I have all this new evidence that shows I didn’t do it, so why is it the courts won’t open their doors?’”
 
Pilate believes that at least in Missouri she has a better chance of being heard. She credits attorney Sean O’Brien with establishing within the state a case for freestanding innocence. “You can be up there with no claim of any trial error or constitutional error and simply say, ‘I have new facts, I have new evidence and they show I’m innocent,’ and the Missouri Supreme Court will let you litigate that,” Pilate explains. “Surprisingly, other courts won’t.
 
“I actually litigated a case in federal court with the Eighth Circuit
Court of Appeals,” Pilate says. “And the court took a careful look at the
case and said, ‘In all likelihood this guy is innocent but we can’t do anything
for you … federal habeas corpus won’t let us.’”
 
Pilate is talking about the Darryl Burton case. Burton was 23 when he was convicted in a St. Louis court for the 1984 gas station murder of Donald Ball. Twenty years later, Burton sits in the Jefferson City Correctional Center, maintaining his innocence as he has since he was arrested based upon sketchy eyewitness accounts (from a criminal and a myopic alcoholic). “These eyewitnesses didn’t see a crime,” Pilate says. “They saw an opportunity.” In fact, only five months into his sentence Burton received a signed affidavit from the prosecution’s main eyewitness, Claudex Simmons. In it, Simmons admits he perjured himself and fingered Burton in exchange for immunity.
 
Still, without DNA evidence, Burton and his legal team, which includes Pilate, Jim McCloskey of Centurion Ministries, Charlie Rogers, Dan Clark and others, have to meet a higher standard. “DNA has been a great boon to this area of actual innocence and has opened the jailhouse doors for many, many people,” Pilate says. “On the flip side, it has become a type of gold standard for actual innocence, and sometimes if you don’t have DNA evidence it’s gotten harder to establish to a court that your client is innocent.”
 
Circuit Judge Kermit Bye touched on the opposing principles in Burton’s appeal:
 
“One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom. … A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton’s claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton’s legal claims permit him no relief, even as the facts suggest he may well be innocent. … We deny Burton a writ.”
 
“It was one of the most painful decisions I’ve ever read,” Pilate said, “But there are brighter days ahead for Darryl. We’ll get him out.” When Pilate says this, it sounds like a promise. And it is. The day she introduced herself to Darryl Burton, they sat on opposite sides of the Plexiglas divide. I’m your lawyer, she told him, and I’m with you until you are released. She placed her palm on the plexiglass. On the other side, Burton placed his hand on hers. In prison, that’s a handshake.
 
Pilate, McCloskey and the trial team are preparing to file a Rule 91 habeas petition at the circuit court level, based on a claim of Burton’s actual innocence.
 
 
While Pilate’s energy for justice seems inexhaustible, her path to the law actually came during a moment of exhaustion.
 
After receiving her bachelor’s degree from the University of Michigan, Pilate became a general assignment reporter for the Oakland Press and later the Wichita Eagle & Beacon. She also covered education and wrote general feature stories. But she got restless. “I decided at some point that social work offered an avenue for using a lot of those journalistic skills to give something back,” Pilate remembers. So she returned to school, this time to the University of Kansas, for her master’s in social welfare. After graduating, she stayed near university life and worked as a job counselor for students, a job she enjoyed.
 
It was her 1-year-old son, Eric, who sent her life on a different path. One night he was sick with a fairly dangerous bacterial infection in his bloodstream. At risk for meningitis, he ran a high temperature and was extremely fussy. Pilate was awake for more than 24 hours straight trying to soothe him. She never put him down. “I held him in my arms and rocked him,” she says, “and in the middle of the night I got the idea to go to law school. I can’t really say where the idea came from, but I was just riveted on the notion.”
 
Her husband, Gordon Atcheson, is a lawyer, but this fact was more deterrent than spur. She’d seen what it took to get through law school and swore she would never do it herself. But within a week of soothing her infant son, she had signed up for the LSAT, started studying and applied to KU Law. It was not, she admits, a well-formed idea.
 
While Pilate admits attending law school with one young child wasn’t easy, she believes it gave her a healthy focus. “The worst thing about law school is that it tends to be all-encompassing,” Pilate says. “It’s a really demanding curriculum. In the process of learning to think like a lawyer you have to let go of a lot of previous ways of thinking and analyzing. It’s a really brutal experience.” But Pilate and her husband made friends, who helped out whenever Pilate faced another obstacle. Pregnant with her second child, Katherine, Pilate had complications and was put on bed rest for the last month of her pregnancy. It was just before her third-year final exams.
 
“Some very kind and supporting friends faxed class notes to my husband’s office daily, and he brought them home,” Pilate remembers. “I was able to study and take my exams and I didn’t miss anything.” Pilate still credits her husband and her children, now grown, with keeping her focused and bringing balance to her life.
 
Pilate first entertained the notion of criminal law during her second year of law school.
 
She worked on the Paul E. Wilson Defender Project with clinic director David Gottlieb, where students represent prisoners in parole and post-conviction litigation in state and federal courts. “It was life-changing,” she says. “David planted the idea that criminal law could be rewarding.”
 
After graduation she accepted a clerkship with Judge John R. Gibson in the U.S. Court of Appeals, Eighth Circuit. She calls Gibson “the best boss I’ve ever had.” So good in fact, she clerked with him for two years.
 
Another mentor was on the horizon. In 1992, Pilate went to Court Week and watched a man named Jim Wyrsch argue his case. “He was very passionate,” she says. “I thought, ‘I need to work with this guy.’”
 
Unfortunately, there was no formal hiring committee at what was then Wyrsch, Adwell, Mirakian, Lee & Hobbs, but Pilate, predictably, was not deterred. “I kept calling back, asking if there was anyone else I should talk to,” she says. “I think I came back seven times to interview with everyone.”
 
Her persistence paid off. “We usually hired when we needed someone,” Wyrsch says, “and we didn’t need anyone at the time. But we made room for her.”
 
Wyrsch, who calls Pilate “brilliant,” has witnessed her devotion to her cases throughout the years. A decade after beginning work on Ellen Reasonover’s appeal, Pilate continues to represent her. They recently reached a $7.5 million out-of-court settlement against Dellwood, the city where the murder occurred, and its police chief, as compensation for Reasonover’s wrongful conviction. Litigation is continuing against other defendants.
 
The obsession with work is one Pilate admits to freely. “It’s hard to put a limit on how much you prepare when someone’s life is at stake,” she says. “When I sleep at night, or when I’m in my garden planting flowers, I’m thinking about something at work. I’m a lawyer all the time.”
 
Back in her new office, she points to a picture that has been unpacked and placed atop a bookshelf. It shows a tall African-American woman on a beach, holding a fishing pole and smiling at the camera. “Ellen Reasonover said when she got out of prison she wanted to eat fried shrimp and go fishing,” Pilate says. “We made both of those things happen.”

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