Crime & Courts

After serving 11 years in prison, man's conviction overturned

Nathaniel Swenson walked away from prison a day after his 32nd birthday, having served 11 years for a crime he said he didn't commit. Swenson, then 21, was convicted in Wichita of attempted murder in 2000. For the next decade, he protested his innocence, even when he felt no one listened.

"It took so long to be able to get someone to hear my word," Swenson said this week.

After seven years of arguments and legal briefs, the Kansas Court of Appeals last spring ruled that Swenson didn't get an adequate defense from his trial lawyer.

Sedgwick County District Judge Ben Burgess then ruled last month that prosecutors denied Swenson his constitutional right to due process by neglecting to bring him back to court for 72 days.

Burgess' ruling made Swenson dizzy.

"I kind of got light-headed, and I wasn't too sure if I'd heard it right," Swenson said.

Swenson looked at his lawyer, Michael Whalen, who handled his years of appeals.

"He confirmed it. I'm going home," Swenson said. "It was crazy. It was a strange feeling — the best feeling I'd had in a long time."

Swenson said he won't forget the 11 years he spent behind bars, after a jury found him guilty of shooting Freddie Hooks Jr.

"It was a lot of pain and heartache but a lot of maturity came out of it," Swenson said of his time in prison.

Swenson lost his first appeal in 2002. But a year later, he filed his own post-conviction motion claiming ineffective assistance of his legal counsel.

Around the courthouse, it's known simply as a "1507," after the Kansas Statute 60-1507, dictating the civil procedure for prison inmates to challenge their sentence.

They're filed by inmates from prison, usually as a last resort after all other appeals have failed.

And they're rarely granted.

"The 1507 is really one of the forgotten remedies," said Whalen, who was appointed to represent Swenson's motion. Whalen spends about 80 percent of his general law practice on criminal appeals.

In May, the Court of Appeals agreed with Swenson and reversed his conviction in an unpublished opinion.

"Michael Whalen — he didn't give up on me," Swenson said.

Simple error or mishandled?

At trial, Freddy Hooks Jr. pointed to Swenson as the man who shot him in the shoulder and buttocks the night of Sept. 3, 1999. Hooks took the stand, dressed in an orange jumpsuit, because he, too, was in jail.

But the jury didn't hear another witness, Robert Turner, who said that Hooks had admitted it wasn't Swenson who shot him.

Turner said he and Hooks were in prison together at Ellsworth Correctional Facility, when Hooks confided he wrongly accused Swenson.

Before the trial, Turner wrote Swenson's attorney and told police that he was he was willing to testify, even though it would endanger his own life because Hooks was a gang member.

Swenson's attorney, Michael Barbara, didn't call Turner to the stand.

"Once my trial lawyer didn't do what I asked him to do, I pretty much knew I was going up the boat with no life preserver," Swenson said.

He was sentenced to 17 years.

Barbara said this week that he didn't believe Turner's story. Barbara also said putting a convict on the stand would have provided an easy target to discredit Turner on cross-examination.

"I thought the story he told was so incredible nobody would believe him," Barbara said.

The Court of Appeals disagreed.

"Hooks and Turner had a criminal history that reflected poorly on their ability to tell the truth," the court said.

"Because counsel unreasonably failed to investigate and call Turner at trial, the jury was forced to make its decision without potentially credible testimony that implicated (another man) as the shooter," the ruling added. "For this reason, our confidence in the outcome of Swenson's trial has been undermined."

The court also said Barbara failed to call Swenson's mother as a witness, who could have further discredited Hooks' testimony.

Since the trial, Hooks has returned to prison and absconded from parole several times, Whalen said.

"They might not be able to even find the victim now," Barbara added.

Kevin O'Connor, the trial prosecutor, has since left the Sedgwick County District Attorney's office. He said he was disappointed to learn the case would not be retried.

"It is unfortunate the case apparently fell through the cracks," O'Connor said.

District Attorney Nola Foulston said her office did not cause a delay in the trial. The clerk of the court puts cases back on the docket, when they are sent back from appeals courts, Foulston said.

"We don't understand why it was dismissed, when it appears to be a court clerk error," she said.

'I didn't give up'

Swenson doesn't see his freedom as a result of some legal technicality, but rather the product of years of work trying to clear his name.

"I damned sure didn't want to spend my life in there," Swenson said of prison. "I've got too much potential for that. That's what I was stressed about: going bald in there."

Swenson said spending time researching his case in the law library at the Lansing Correctional Facility helped him stay out of trouble.

"I didn't give up," he said. "That happens to a lot of young cats, if they've got a lot of time. They end up giving up and getting caught up in the penitentiary lifestyle. They miss their chance to get out.'

Whalen said Swenson's work in the prison law library paid off.

"We had a good deal of communication, a lot of letters back and forth," Whalen said. "Especially the last year, we had a lot of phone contact, which helped us both know the case and push through until the end."

Burgess' ruling came on Aug. 19. It was Swenson's birthday. It was also Whalen's birthday.

Swenson walked out of the Sedgwick County Jail to see the sun shining the next day.

"It was an overwhelming feeling, when I walked out and felt the heat, and knew there were no more walls," Swenson said.

Swenson hopes to study to become a nutritionist.

"It's given me a new view of life," he said. "Life is much more precious to me now."