IN THE SUMMER of 2013, Missouri criminal defense attorney Jennifer Bukowsky was preparing for an evidentiary hearing in the case of a pro bono client, Jessie McKim. The stakes were high: Along with his co-defendant, James Peavler, McKim had been convicted in 1999 of killing a woman named Wendy Wagnon and was serving life without parole at a maximum security prison. At the upcoming hearing, Bukowsky planned to argue that her client was innocent — and that the murder that sent him to die in prison was never a murder at all.
McKim was convicted in part based on the testimony of a local medical examiner, who claimed that the presence of petechiae on a dead body — small spots on the skin or the whites of the eyes where capillaries have hemorrhaged — is proof that a person was suffocated. But a toxicology report — completed after Wagnon’s cause of death had already been determined as asphyxiation — revealed that Wagnon had lethal levels of methamphetamine in her system when she died. Among the witnesses Bukowsky planned to call at the hearing were five different pathologists who would testify that the state’s medical examiner was wrong when he claimed Wagnon was suffocated — and that evidence pointed to a meth overdose instead. (A sixth pathologist, retained as an expert by the state, also agreed that Wagnon died of an overdose, not of suffocation.)
“It was a really big time, and a crucial time, for his case,” Bukowsky recalls. As she prepped witnesses and decided who else should take the stand, she shared her strategy with McKim via lengthy phone calls — calls understood to be protected by attorney-client privilege. Unlike calls between prisoners and their family or acquaintances, which are routinely monitored, conversations with lawyers are not to be recorded. During these calls, says Bukowsky, “I’m telling him my concerns about calling this or that person — that is crucial information that should be private between us.”