Felony Charge for Cutting in Line While Black in Missouri

By Michael I. Niman, Progressive Populist 9/1/09

Missouri prosecutor's response follows article below

Subsequent CNN, Fox and CBS follow up coverage links. Additional floow up stories linked below.

In a perfect world, Heather Ellis would seem like a source of pride for her hometown of Kennett, Mo. As a high school honor student she earned a position on the National Honor Roll and was recognized as a National Achievement Scholar while rounding out her American heartland persona as a cheerleader, a member of the Volleyball and Track teams, the Drama Club, the Spanish Club and her high school band. After graduating high school, she left Kennett, continuing her education at Maryville College and Xavier University, where she was recognized for her leadership abilities.

The problem is that this isn’t a perfect world — and some folks in Kennett, Mo., apparently didn’t appreciate the return from college of a dignified young black woman with a sense of social justice and an expectation to be treated with dignity and respect. While on leave from college in January 2007, Heather Ellis went shopping with her cousin at the local Kennett Wal-Mart. She left in handcuffs, allegedly bleeding, after, according to prosecutors, cutting to the front of the checkout line and disturbing the peace of two white Wal-Mart employees. Now, more than two years later, she’s facing trial on multiple felony counts stemming from that fateful January evening — and the Ku Klux Klan has come to town.

Understanding the Boot Heel

To put this odd prosecution into context, we need to look at Kennett, located in rural Dunklin County, four miles from the Arkansas border in Missouri’s “Boot Heel Region.” Kennett’s official government website boasts a six paragraph “city history,” devoting one of those paragraphs to the county’s 1862 defection to the Confederacy. Dunklin County is adamantly conservative, with Republicans handing Mike Huckabee an almost three-to-one victory over John McCain.

Today Dunklin County is 89% white and 9% black. Sticking with Missouri’s history of never repealing its laws banning marriages between white folks and Asians or blacks, 88% of Dunklin County’s voters recently voted for new marriage restrictions, this time aimed at gays.

This is the Dunklin County Heather Ellis returned to from Xavier University for winter break. It was near closing time when Ellis and her cousin David got on line to check out at the Kennett Wal Mart. There were two checkout lanes open. Ellis got on one line, David on the other. When David’s line moved quicker, Ellis claims she moved over and joined him. The Kennett Police Department’s arrest report states that Ellis “broke in line” and “walked to the front of the line, to the cash register attendant, apparently because she did not want to wait in line.”

Demanding to be Rung Out With Dignity

At least two white customers reportedly objected to Ellis joining David on line. One, according to Ellis, pushed and verbally accosted her. An off-duty Kennett Police officer working as a Wal Mart security guard came over to the line. Ellis claims she told the cashier to go ahead and ring the upset customer out ahead of her. By Ellis’s account however, the cashier, after ringing the upset customer out, refused to ring Ellis out, instead proceeding to ring other customers out. The Wal Mart shift manager walked over and told Ellis to leave the store. By all accounts she refused to leave and demanded to be rung out like the other customers, hence she was charged with trespassing. Ellis subsequently wrote, “I felt like I was part of the civil rights movement — I thought I had traveled in a time capsule and was living in Mississippi in the 1960s.” The guard radioed his fellow police officers. David telephoned his mother. Police and relatives were now en-route to the stand-off.

The police arrived and Ellis was allowed to pay for her goods. According to Ellis, however, the cashier refused to give her the change she was due. The arresting officer claims that the Wal Mart shift manager demanded Ellis be removed from the store, but that Ellis told him, “I’m not going nowhere until I get my f***ing change back.” Ellis denies the language the arrest report attributes to her, but both she and the police are in agreement that Wal-Mart was withholding her change, with the arresting officer adding, “So I stood by while the cashier attendant handed the belligerent female her change.” “Belligerent” being the core of the “peace disturbance” charge.

In her statement, Ellis wrote that she was hopeful the officers would give her “a little support” with her demand for her change. She added that “they didn’t provide any,” which is corroborated by the arresting officer’s statement that he “stood by” while Ellis was apparently being provoked by the Wal-Mart cashier, with her manager at her side.

Talking Back to the Law

Once outside of the store, according to Ellis’s subsequent complaint, five Kennett police officers proceeded to torment her with racist and misogynist slurs as she and David walked to their car. Ellis claims that while still walking to her car, she suggested to the police that they instead harass “drug dealers and crack heads,” rather than “taxpaying citizens.” The police report claims she refused repeated requests to “calm down” and was “not receptive to these simple requests.” As her aunt arrived by car, the officers arrested Ellis — quite violently, by her account, lifting her off the ground and tossing her into a police car as her aunt helplessly stood by and watched while herself allegedly being threatened with arrest. Heather’s mother arrived at the police station in time to witness what she describes as her daughter being pulled out of the car by her hair and slammed against a wall. Ellis was charged with resisting arrest and two felony counts of assaulting subsequently uninjured law enforcement officers. That was in January 2007.

The Dunklin County prosecutor dismissed charges against Ellis in early December of 2007. At this point the family thought their legal nightmare was over. One month later, shortly after New Year’s Day of 2008, however, the prosecutor re-filed charges and issued an arrest warrant and extradition order to take Ellis in as a wanted felon. At press time, Ellis is still facing a zealous prosecution and up to 15 years in a Missouri prison. Friends and relatives, such as her 83-year-old grandmother, claim that they’ve received harassing visits from representatives of the Dunklin County Prosecutor’s Office fishing for dirt on Ellis. The white Wal-Mart customer Ellis accuses of pushing her was never charged. Other white customers and Wal-Mart employees are listed in police reports as the victims of Ellis’s “peace disturbance.”

Ellis and her supporting witnesses claim that she was racially targeted by Kennett Police officers who repeatedly called her a “nigger” and a “bitch” both before and during her arrest. Her narrative also indicates that three Wal-Mart employees apparently mistreated and baited her based on the fact that she was black. Ellis and her cousin David were the only black folks present, with all the Wal-Mart workers and customers, as well as the five Kennett police officers, being white. Ellis’s supporters argue that the zealous two-and-a-half-year prosecution of the case, accusing her of two felony assaults despite the lack of a single injured victim, is also racially motivated. They support their claim with a litany of what they argue are similar racially motivated prosecutions conducted by the Dunklin County prosecutor’s office over the last two decades, which they contrast with weak prosecution and light sentencing of violent white criminals during the same time period.

The Klan Wears Blue?

In June 2009, the local NAACP chapter organized a rally to protest what they argue is racist police violence directed against Heather Ellis. According to Jesse Bonner, president of the NAACP chapter, “Kennett is still set in the old ways and racism is still strong down here.” According to Bonner, the situation “is mind boggling,” with the black community in Kennett feeling as if they were “back in the 1960s in the middle of the civil rights struggle.”

The depth of the struggle ahead of Kennett’s black residents was driven home, according to Bonner, during the rally when a Kennett police officer handed a rally organizer a Ku Klux Klan business card, then echoed the text of the card by telling her she just received a “social visit” from the KKK and warning her that the next visit would not be social. According to the local newspaper, The Dunklin Democrat, Kennett police were just making organizers aware that such cards had been scattered around downtown and that they were actively removing them from the streets. In essence, the official line has the police investigating Klan activity by turning over their evidence to organizers of a protest against alleged racist police misconduct. Interestingly, there are no current allegations of any Klan activity in the area that doesn’t involve the Kennett Police Department.

Bonner summed up the situation in Kennett, calling it “intolerable” and describing an alarming “tension in the air.” Like Ellis, Bonner had spent considerable time away from what he describes as a racist climate in Kennett, having served nine years in the military. And like Ellis, he became accustomed to being treated with a dignity that he claims black folks in Kennett often don’t experience. His response was to become active with the NAACP and the civil rights movement, which he argues, is still in the midst of a struggle — at least in Kennett. Ellis’s response appears to be the simple demand to receive her change at Wal-Mart.

After the rally, Bonner and the NAACP ignored the supposed KKK warning and joined Ellis’s family and the Southern Christian Leadership Conference in calling for an FBI investigation into the Kennett Police Department and the Dunklin County Prosecutor’s office. The American Civil Liberties Union has also become involved, at this point observing the situation, lending support to the Ellis family and contacting the US Justice Department Civil Rights Division and the US Attorney’s Office formally requesting investigations.

Wal-Mart officials have so far refused to comment on the case or clarify their role in the prosecution of Heather Ellis. They won’t answer questions about the actions of their employees in the events leading up to Ellis’s arrest or whether or not they have conducted an investigation into allegations of possible racial bias at their Kennett store. At press time, the Dunklin County Prosecutor is still pursuing felony charges against Ellis. With the charges pending, a school district that offered Ellis a position as a teacher and track coach, withdrew its offer.

Dr. Michael I. Niman is a professor of journalism at Buffalo State College in New York. He writes for ArtVoice (Buffalo’s weekly), Coldtype (Canada) and The Humanist. See mediastudy.com.

From The Progressive Populist, September 1, 2009

Copyright © 2009 The Progressive Populist.

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Subsequent Media Follow-up Reports

December 19th, 2009

Gilbert Bailon, Editorial Page Editor
Kevin Horrigan, Deputy Editorial Page Editor
Steve Parker, Deputy Managing Editor
St. Louis Post Dispatch

Dear Sirs:

On Tuesday, December 15th, you published a guest column by Cape Girardeau County Prosecuting Attorney Morley Swingle addressing the Heather Ellis case. I am a journalism professor who has been both studying this case and the media response to it, and has written about the case for the Progressive Populist. While I applaud your efforts to open up your publication to diverse points of view, I must remind you of your obligation to fact check what you publish, and to abide by ethical guidelines, even when publishing commentary.

Swingle’s column, titled, “Falsely playing ‘race card’ hurt everyone,” appears to rebut a December 10th column written by Brenda Jones, the executive director of the ACLU of Eastern Missouri. The problem is that while Ms. Jones based her column on her interpretation of factual information bore out in the Ellis trial, Swingle crafts his argument around allegations that were proven false in the Ellis trial. In his column, Swingle alleges that Ellis, when ordered to leave the Wal Mart prior to her arrest, responded, “I’m not leaving and you can’t make me,” and “If you try to arrest me I’ll kick your [derriere].” These were indeed allegations Swingle also made in court, but as he certainly should be aware, his allegations weren’t supported by witness testimony or any other evidence.

In his guest column, Swingle also writes that Ellis “kicked the arresting officer and smacked another in the mouth, drawing blood.”  These too were charges Swingle leveled in court but failed to prove.  Again, this allegation was not supported by witness testimony or medical evidence. The Wal Mart video surveillance evidence of the alleged assault  was apparently erased by Wal Mart.  Swingle goes on to exaggerate Ellis’s allegations regarding her own injuries, then, in an attempt to discredit Ellis, refutes the fabricated exaggeration by partially citing prosecution testimony by “an African American doctor,” that Ellis’s only injury was “a slight one on her wrist.”  Swingle also uses this column to besmirch the reputation of Ellis’s father, Pastor Nate Ellis, by reporting that Pastor Ellis threatened to physically assault an attorney previously hired by the family to defend Ellis. There is no record, however, of this threat, no evidence of any witness to this threat, nor any allegation from any supposed recipient of this threat or any charges filed against Pastor Ellis in connection of any such event. Apparently, this never happened, yet your readers now think it did.

Swingle’s most serious professional and ethical transgression involves his disgraceful attempt to tar Heather Ellis through the unethical, if not illegal, reference to her confidential childhood elementary school records. These records should never have been released by her childhood school, despite a dubious subpoena from the prosecutor’s office. Swingle’s column references these confidential records, alleging that as a child, Ellis was a bad girl on 17 occasions during her school years. Such nonsense is inadmissible in court, not to mention irrelevant at the trial of an adult schoolteacher. Publishing this confidential information, despite its triviality, violates Ellis’s privacy and amounts to a serious ethical, if not actionable, lapse on the part of the St. Louis Post Dispatch.

Please have your fact checking team examine the allegations made in this column. Compare them with the evidence presented when the author unsuccessfully levied them against Ellis in a court of law. And please contrast them with the final disposition of the Ellis trial, and issue a correction to what appears to be slander, printed in Swingle’s column.  Despite assertions of fact in Swingle’s column, Ellis was never convicted of threatening or assaulting a police officer, nor was her father ever charged with threatening anyone. I won’t entertain allegations made by Swingle about Ellis’s misbehavior as a child.

Heather Ellis has long contended that she has been the victim of prosecutorial misconduct and has been targeted for special treatment. What we’ve seen is an extraordinary prosecution that attempted to convict Ellis on felony charges stemming from an alleged line cutting incident at Wal Mart. We’ve seen all of the surveillance footage that would exonerate Ellis, erased by Wal Mart before the trial.  And we’ve seen evidence that the prosecutor in Swingle’s neighboring county tampered with the prosecution witnesses by assembling them all in one room, showing them evidence, and presenting them with a uniform narrative – one which many could not parrot under oath. Two prosecutors, desperate to besmirch Ellis’s reputation, went as far as to subpoena childhood school records – still finding nothing out of the ordinary. After all of this, we have a prosecutor continuing to argue in the media what he could not prove in a courtroom. As a journalist, I would think that these events would have piqued your editors’ curiosity.


Michael I. Niman, Ph.D.

The SLPD editors did not respond to this letter. On December 30th (12:35 PM EST) I reached Kevin Horrigan by telephone. I specifically asked about his paper's decision to print information gleaned from Ms. Ellis's confidental childhood school records. His on the record response was: "I haven't studied the issue."


Response from Dunklin County Missouri Prosecutor Stephen P. Sokoloff
Received via email on 9/19/09

Dr. Niman;

     After reading your "article" on Heather Ellis' case pending here in Dunklin County, my first response was to look gfor the editorial heading over it. When I didn't see any, my next question was what fine journalism school did thes reporter attend. When I saw that you, rather than attending a J-school, actually taught at one, I was somewhat amazed.  I cannot really visualize your article being ne that you would hold up to your class as an example of well researched, fair reporting.  It is clear that you wrote this article after getting one highly biased account of the matter.  Had you performed any actual background research, you would discover that Ms. Ellis was not cursed by any employees, but in fact was the one doing the cursing and insulting and threatening.  when the store personnel advised her that she would have to calm down or leave, she continued to threaten and curse tham. even after the police arrived, no one made any attempt to lay hands on her, still requesting that she leave. she actuallywalked away as the clerk was trying to give her the merchandise and her change. She was notrefusing to leave without it. the clerk had to come outside and give it to her. Ms. Ellis can be very clearly seen in the video shoving the merchandise of the next customer in line back from the register and trying to place her own in fromt of it. The video anso clearly shows her cursing at the officers as they followed her out of the store, it also clearly shows that ther was no excessive force used in the arrest and that Ms. Ellis was not lifted off the ground. Further despite your report that ther were no injured victims, one officer sustained a split lip from a punch thrown by the "innocent" Ms. Ellis and another a bruised shin where she kicked him. Furhter, the E.R. records of Ms. Ellis' visit show no visible injuries, but I'm sure they are also part of the conspiracy against her as well.

    With regard to yoyr report of the rally, Ther were indeed some KKK cards strewn around one of the streets of the planned march, the police gathered them up and Maj S. Williams showed one of them to one of the march organizers, Ms. Ellis' aunt. This waas done as an attempt to keep them advised of what had happened. She (the aunt) grabbed the card and accused the Major of distributing the cards, with no basis.

     You might want to talk to any of the three attorneys that Ms. Ellis has fired, or who withdrew from representation because of threats from her family. They can tell you what a poor persecuted little girl Heahter is, and can tell you about the multiple missed court appearances, and the accusations of being in the prosecution's pocket( this last one made to an african-American lawyer from St. Louis, referred to Ms. Elleis by the NAACP) who withdrew because Heather's father threatened to"kick his ass" because he would not prevent the prosecution from finding out who the witnesses were that the defense  intended to call at trial. (of course, this is required by law).

   So in closing, Dr. Niman, I would be interested to hear how you explainyour article as journalism, and what you think your journalism students would think about its disregard for objective facts and its reliance on biased and purposefully misleading statements and outright lies.  

                                    Very truly yours,
                                    Stephen P. Sokoloff
                                    Prosecuting Attorney
                                    Dunklin County, Missouri


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