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Verdict, sentencing bring closure to case

Date: 11/23/99 10:00

For the last time in the Tony Emery murder case, U.S. District Judge Howard F. Sachs returns to the bench.

"You may be seated," the bailiff announces to the audience and participants in the 6-day-old trial. After only two hours of deliberation, the jury has announced it has a verdict.

In the five minutes since jurors notified the court, theories have been flying. "A quick decision means an overwhelming case, a guilty verdict," goes one. "A quick decision means a feeble case, a not-guilty verdict," goes another. Both are repeated endlessly, along with the disclaimer, "You never can guess what a jury will do."

Mike Schmitz, special agent with the Bureau of Alcohol, Tobacco and Firearms, sits at the counsel table, his broad shoulders tense, his feet tapping the carpet.

Assistant U.S. Attorney Mike Green forces a professionally plastic look onto his face. But his heart is beating so hard he's sure the jurors can hear.

"I understand you've reached a verdict," Sachs says.

"Yes, your honor, we have," the foreperson announces.

Sachs nods, and a clerk approaches the foreperson, extending a hand to take the folded slip of paper containing the verdict. She walks it back to Sachs, who unfolds the paper. It reads:

"We, the jurors, find the defendant Tony E. Emery guilty of murdering Christine Elkins.... "

As Sachs announces the verdict, Emery does not flinch. Behind him, his mother wipes away tears. To her left, Elkins' mother and sister also cry.

Schmitz exhales, a "yes" passing through his teeth. Green simply starts re-packing the crates of documents.

David Pulliam/The Star
A mugshot of Tony Emery and a plaque with Christine Elkins' license plate number sit on a shelf in Maryville Investigator Randy Strong's office.
"OK, we won," he thinks, relief flooding his system. Later, over beers, Schmitz and ATF Special Agent Mark James will tease: "Took you years to bring it to a jury, two hours for one to decide the case."

Green decides to wait a few days before he starts worrying about the appeals.

Tug's sentencing

Herbert "Tug" Emery shuffles into a federal courtroom, the chains that shackle his hands and feet clinking. This sentencing is one of the last matters of justice U.S. District Judge Gary Fenner's courtroom will see before the new federal courthouse across the street is opened.

Elkins' sister Holly Rhoads sits in the front row, blinking back tears and staring at Emery as he settles into a chair at the defense table. Behind her, Schmitz again is tense. He knows they needed Tug Emery's testimony to nail Tony Emery. He knows Tony Emery needed to be the main target.

But Tug is no angel. If he didn't kill Elkins, he meant to.

Green takes a kinder view of Tug Emery. True, he took part in a plan to kill Elkins. But he also helped solve a case that for years looked unsolvable. He had agreed that in exchange for testimony that convicted Tony Emery, he would recommend that Tug serve no more than 20 years.

"Twenty years in prison is no picnic," he tells himself. "Justice is being done here."

He stands to state these thoughts to Fenner, then adds: "If ever there was an instance of premeditated murder, with malice aforethought, this was it."

He sits to listen to pleas from Tug Emery's attorney, who requests leniency. He asks Fenner to consider the good his client did by coming forward, even though he didn't have to. He asks the judge to do the right thing and show mercy to a truly contrite man.

As the plea continues, Schmitz curses under his breath.

"No. No way in hell. Jesus, I can't believe this guy.... "

And when Tug stands in his own defense, he seems to agree.

"I know it was wrong," he tells Fenner. "I got messed up on drugs, but there's no excuse for what I done. I deserve whatever punishment you see fit to give me."

Fenner nods. He doesn't want to pass sentence before Elkins' family has a chance to speak this day, so he motions to Elkins' sister, who stands, staring at Emery.

"I appreciate and thank you for your speech today. And I hope you get the maximum.

"All we have left of my sister is in a box. You will continue to have a life.... I can't tell you what that has done to my family."

Rhoads lifts a white computer printout. It contains a poem Rhoads' daughter wrote for Aunt Christine, an aunt she'll never know:

"An Angel she was before, an Angel she'll always be. Sitting there beside Our Lord, to watch over you and me."

Judge Fenner listens, waits until Rhoads decides she is done. Then he looks hard at Emery, explains that Emery would be living out the rest of his life in prison, waking each morning in hell and fitfully falling asleep there again each night if he had not testified against cousin Tony.

"Not only did you take the life of Christine, but you damaged the lives of her family," Fenner says. "It's hard to talk about doing the right thing for someone responsible for someone else's death."

The sentence will be 22 years, longer than suggested, a rarity. As a concession, Fenner agrees to recommend Emery spend these years at the Leavenworth Federal Penitentiary.

"Your family will be able to visit you there," he says, and dismisses court.

Tony Emery sentenced

In December 1998, in an airy, well-lit courtroom of the new courthouse, Schmitz tugs at his red tie as he stares at Tony Emery.

Schmitz insists he is simply tidying up, but there is hatred in his eyes.

Emery is shorter than Schmitz, though almost as muscular. On more than one occasion, agents around the case have wondered what would happen were these two allowed to go at each other.

It is a scenario that Schmitz on many occasions had wished would come true.

Today vengeance arrives through the courts, the way Schmitz knows it should, it must, if society is to survive.

Emery is shackled and wearing an orange prison jump suit. He passes his mother and sister without a glance on his way to the defense table. Green is busy setting up a boom box. This case is almost over. The sentence will fall within the federal range, which pretty much means life.

But before it ends, Green wants Emery to hear Christine's mother. She couldn't make it to court this day, so he's going to play a tape recording of her words to Emery.

"She deserves this chance," Schmitz thinks. "She deserves more than this, but this we can at least deliver."

Maryville Investigator Randy Strong can't make it to the sentencing either. He's in Quantico, Va., this day, looking for help about a different Maryville murder, a 20-year-old case. That he's willing to make the trip says a lot about how he's grown and become more confident through the Elkins investigation.

"He's here in spirit," Schmitz says.

Sachs announces, "The court is in session for the purposes of sentencing in the matter of the United States versus Tony Emery."

Emery is called forward and clinks toward the bench. His bunched triceps stretch the orange fabric, but his voice is small, timid, when he answers questions. "Yes, your honor." "No, your honor."

He is a beaten man. There is little he can do here. He knows it. His attorney knows it.

"We would like to say that a sentence of life without parole would violate my client's Eighth Amendment rights, as cruel and unusual punishment," the attorney offers at one point. But this is a victory march for the U.S. attorney's office, and it is a feeble defense.

When Green offers to play the tape, Emery's attorney objects.

"The tape recording may be unnecessarily painful to the defendant's family, and to the defendant."

Sachs does not agree, and Green pushes the play button.

Her voice is emotional, but strong. She begins by saying, "This is the hardest thing I've ever had to do.... "

Emery stares at the witness box at the front of the courtroom, past the tape recorder, away from her family. But the eyes of Rhoads and Schmitz never leave his face. They want some sign of remorse, of pain, of suffering, of fear.

"She was Christine Ann. She would have been 41 years old. You murdered our daughter. She was not dirty laundry.... It sickens me to think that your face was the last thing she saw. We curse your soul."

Green taps the stop button, and the courtroom is silent for a moment. Emery's attorney rises from her chair, acknowledges the judge has little or no discretion in sentencing.

"I would again say we do not agree. I would note that based on a sentence of life without parole, very frankly, that's not going to bring back Christine Elkins."

She goes on to note that Emery has always maintained he is not guilty of this murder, that he is young and able-bodied and should be near his family.

Sachs listens stoically. After a pause, he speaks.

"I don't think that this case calls for any effort to be more lenient than the guidelines.... "

For the first time, Emery looks troubled. His face reddens and he vigorously shakes his head.

"Then sentence is life in prison without chance for parole. There is no chance for release from prison.... Court is adjourned."

Schmitz, Green, James and many others walk briskly out of the courtroom and take elevators down to the U.S. attorney's office on the fifth floor, where they gather in a conference room. The room is buzzing. Agents exchange high fives.

U.S. Attorney Steve Hill smiles broadly, happily. He calls for silence.

"Today's sentencing closes one of the most important cases this office has ever been involved with," he says. "It did not come about easily, or quickly. A lot of extraordinary effort went into this. I'm very pleased to offer my congratulations here."

He then proceeds to present Schmitz and James and others involved with the case with plaques stating: "In Recognition of Distinguished Service."

Praise flows from all sides. Flash bulbs pop. Everyone wants to stress the importance of this case, what they learned from the investigation, about life, and law enforcement. Toward the end, D.R. Nichols, or "the Doctor," steps forward. The ATF agent is revered by lawmen throughout the region. The room quiets as he starts to speak.

"I know I wasn't the main guy here, but you have no idea how much this means to me," he says, his eyes reddening with tears. "I'm retiring, effective today.

"I put it off until now because I thought it was important to see this case closed. And I'd like to thank all of you for re-charging my faith. Because this world is getting weirder and more violent every day it seems. Every day we watch television and see movies in which criminals are the heroes, and the good guys are lazy and slow-witted.

"I needed to see this case closed to know, again, that isn't the case in real life.

"I needed this case to see that no matter how bad and corrupt and bloody this world might look, in the end, justice will prevail.

"And, gentlemen, justice did prevail."


Mike Green has since moved on to other drug cases. This fall, Matt Whitworth worked a capital murder case.

Mike Schmitz is now the tactical adviser for the ATF in Kansas City.

Mark James serves as the deputy chief of the ATF intelligence division in Washington, D.C.

Randy Strong continues in his role as investigator for Maryville.

All keep replicas of Elkins' license plate.

For reasons of safety, the Emery cousins are kept in separate federal prisons. Tug Emery is in Illinois. Tony Emery remains in Leavenworth, where he maintains he is an innocent man. Neither would comment for this story.

Elkins' sons grew up in the homes of relatives. One is currently in high school. Police have lost contact with the other but believe he works in construction somewhere in the Midwest.

Ron Coy recently got off probation for his role in the 1990 Emery drug bust. He has never been convicted or charged with any crime dealing with the death of Christine Elkins, and he has denied any involvement in the murder.

As for the case, on Sept. 13, mid-afternoon, a colleague dropped a thin sheaf of papers on Green's desk. Green, deep in conversation with a visitor at the time, glanced down at the papers, smiled, then rose to his feet and pumped his arm in victory.

"The petition for rehearing en banc is denied," the papers read.

"It's officially over," he says.

Tony Emery's attorneys may still appeal his case to the U.S. Supreme Court.



All content 1999 The Kansas City Star