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Young man's mental illness keeps murder case on hold for more than a decade

Kansas City Star (MO) - 8/10/2014

Aug. 10--The task on that Saturday night was simply to cut cabbages to make mounds of German coleslaw, as Karyn Freeze's brother was getting married in a few days.

If murder was in the air, the Fort Scott mother never sensed it.

"I was sitting here," said Freeze, 50, pointing to the couch in her bungalow as she recounted the events of March 13, 2004. "We were watching Jerry Springer."

More than a decade later, the criminal case that has grown from that night in this town 80 miles south of Kansas City has emerged, for nearly all involved, as an extraordinary example of the struggles the criminal justice system faces with an onslaught of mentally ill inmates.

"In 25 years of being in law enforcement," Bourbon County Sheriff Bill Martin said, "this is the first time I've seen anything like this."

On that night, Freeze's strapping 6-foot-tall son, Kohlby, then 16, was thought to be cleaning his room.

His brother, Kristophyr, a year older, sat on the couch with their mother. It was around 10 p.m.Karyn Freeze's friend and former employer Roy Taylor, keeper of the coleslaw recipe, had already driven the 20 miles back to his home in Nevada, Mo.

In the main bedroom, behind the kitchen, her fiance, 56-year-old Karl Rex Schenker of Rich Hill, Mo., was sleeping off a day of drinking at a bar.

Then came the blast, a single shot from a .444-caliber Marlin lever action rifle, a weapon powerful enough to bring down a moose. Karyn Freeze entered the back bedroom.

"I screamed. I panicked," she recalled, standing in the entrance of what continues to be her bedroom.

Her fiance's skull was splayed open like a melon.

"I was like, 'When am I going to wake up from this nightmare?'" she said.

The nightmare has ended for no one, not for the Freezes, who worry about one of their own, or for the family of Rex Schenker, who seek justice. More than 10 years after the killing, Kohlby Freeze -- who at age 16 was charged as an adult with premeditated murder in the first degree -- has yet to stand trial.

"What happened to the Constitution," his mother argues, "and the right to a speedy trial?"

Instead, Kohlby Freeze -- a severely mentally ill young man who turned 27 this month -- has spent more than a decade in a hellish limbo, a round robin that time and again cycles him between the Southeast Kansas Regional Correctional Center, which serves as the Bourbon County jail, and the state mental hospital some 270 miles away in Larned.

The decade-long issue has been Kohlby Freeze's mental competency to stand trial, the ability or inability for a defendant with an IQ no greater than 90 and diagnosed with delusional schizophrenia to assist in his own defense.

By Kansas criminal law, if a defendant's mental competency is questionable, a defense attorney, prosecutor or judge can request a competency hearing. Before the hearing, defendants undergo an expert psychological exam, frequently performed by psychiatrists at Larned State Hospital.

At the hospital, doctors are legally allowed to compel patients to take their medications, and inmates often become stabilized. If inmates are judged to be permanently incompetent, they can be involuntarily committed to the state hospital. But if they are deemed competent or likely to be so, they're eventually sent back to the county to await court proceedings.

On at least 10 occasions, Kohlby Freeze in the early years was deemed competent to stand trial, but since then he has vacillated between being judged incompetent and potentially competent in the foreseeable future. But after being shipped back to Bourbon County, he time and again "decompensates" while being held for weeks or even months inside a "detox" cell with a mattress on the floor and a slit window.

Because his behavior is unpredictable, he is held in isolation with no contact with other inmates. He grows combative, so much so that in 2007 he was charged with felony battery against a correctional officer trying to serve him a meal. He has hurt himself and refused to take his medications. County jails are not allowed to force inmates to take medications without a court order.

His behavior in the jail invariably becomes erratic enough that by the time court proceedings arise, he once again is sent to Larned for another competency exam.

The cycle continues.

"He's treated like a dog," Karyn Freeze said.

Although she wishes her son might one day be released, Freeze said that given the choice between the current circumstances and having her son go to trial, be judged guilty and get mental health care in state prison, she'd choose imprisonment.

"Get him help or let him go," she said. "You can't just let someone sit there in limbo for the last 101/2 years."

The prosecutor, Bourbon County Attorney Terri Johnson, declined to comment on the case, but she acknowledged that it was highly unusual. While she understands Karyn Freeze's frustration, she said her job is to prosecute an alleged murder.

"I have a second family to think of," Johnson said.

She means the relatives of Rex Schenker, also drifting in limbo, awaiting justice for a decade. Early on, Johnson advised the court she intended to seek a "Hard 50" sentence for the killing, meaning a conviction would require Kohlby Freeze to serve 50 years minimum.

"If you want to know my true opinion," said Chad Schenker, 40, of Appleton City, Mo., one of Schenker's three adult children, "a hundred years ago they wouldn't have spent taxpayers' money on this; a hundred years ago they would have hung him from a tree. He probably has mental illness, but I think he knew what he was doing when he did it."

In mental illness's grip

Karyn Freeze is a woman of manic energy who barely finishes one sentence without starting another and whose romantic life has been punctuated by troubled relationships.

She said she has worked as a bartender or waitress; now she receives disability. Twice married and divorced, she said her eldest son -- Jayme Thorpe, a 32-year-old nurse living with his wife and child in Gardner -- comes from her first short marriage at age 17.

Kohlby is the younger of two sons from a short second marriage. Freeze said she raised her kids with love on scant resources.

"To be honest, we moved around a lot when I was younger," Thorpe said. "My mom was one of those 'free spirits.' Don't get me wrong, she loved us more than most people ... but she did what she wanted. If there were times when she had an opportunity to go someplace, she would go."

Thorpe recalled a decent childhood. He said Kohlby, in particular, drew attention as a natural athlete.

"We were good kids," Thorpe recalled. "Everyone around town liked my brothers."

But Kohlby was changing.

Still in elementary school, he began to exhibit symptoms of obsessive-compulsive disorder. He combed his hair repetitively, grew suspicious of others and became phobic about drinking milk or juice.

He was 11, court records reveal, when he was first put on medications for anxiety and OCD. By age 15, he would have three psychiatric hospitalizations.

In May 2002, court records note, he went to Heartland Behavioral Health Services in Nevada, Mo., after his mom reported that he had grown paranoid and thought everyone was spitting on him or in his food. Kohlby washed his hands as many as 15 times a day. By August 2002, he had regressed to urinating on things and burning other people's clothing.

He refused to attend school. Kansas Department of Social and Rehabilitation Service workers designated him a "child in need of care" and placed him in state custody. Over 11 months, starting in December 2002, he would be placed in 20 foster homes, detention centers and treatment facilities. He hallucinated and contemplated suicide. At one facility, he was allegedly sexually abused, triggering post-traumatic stress disorder.

Only weeks before Rex Schenker was killed, Kohlby was admitted to Research Psychiatric Center in Kansas City, where a February 2004 report stated that he "has been observed to be talking to people that are not there." It concluded that he had "schizoaffective disorder," having delusions and losing touch with reality.

That March, he was released to his mother's home. Barely a week later, Rex Schenker was dead.

Even now, Karyn Freeze argues that perhaps Kohlby didn't do it.

At different times over the decade, three lead attorneys have handled Kohlby Freeze's case: a court-appointed public defender followed by private attorneys Edward Battitori of Pittsburg, Kan., and Richard Ney of Wichita. All declined to comment.

But Freeze holds fast to her insistence that there is no DNA linking her son to the crime. She presents a theory that perhaps a stranger or someone with a grudge against Rex Schenker slipped into the house through the back door in the kitchen while she and Kohlby's brother were watching television and Kohlby was in his room.

"I don't really know what happened," Karyn Freeze said.

Plea thrown out

As court documents show, the prosecution offers a different scenario.

Inside Kohlby Freeze's room, police found the rifle and shells. Kris reportedly told police that he had found the gun on top of Kohlby's bed after the shooting and had put it in the closet. The gun appeared to belong to Karyn Freeze's friend Roy Taylor, who used to take Kohlby shooting.

From the night of the murder, authorities have a 911 call to the Fort Scott police in which Karyn Freeze states that she thinks her son might have shot her fiance.

Later, in October 2007, when it actually seemed the case might go to trial, the Bourbon County prosecutor filed a motion with the court seeking to admit prior acts related to Kohlby and Rex Schenker. Among them:

Testimony from Kohlby's brother, Kris, saying that his brother had told him previously that he wanted to kill Schenker.

Testimony from Taylor recounting that Schenker had told him that Kohlby had thrown a heavy chain at Schenker's head to get him to leave the house. Taylor, the prosecution purported, also could offer testimony about seeing Kohlby digging a hole under a tree not long after his mother and Schenker began dating. Asked what he was doing, Kohlby allegedly told Taylor, "I'm digging a hole for Rex."

Testimony from various relatives confirming that Schenker had told them that Kohlby had previously threatened his life, had once grazed his head with a bullet and had told Schenker, "I'm going to kill you someday, Rex. ... How do you want me to kill you? With a knife or a gun?"

That same month, the case seemed to be over. The Bourbon County attorney opted to lower the charge from first-degree murder to second-degree murder. Through his attorney Battitori, Kohlby Freeze, then 20, agreed to plead to the lesser charge. Sentencing was set for May 2, 2008.

"I'm sorry for what I done," Kohlby Freeze said in court that day. The sentence: 26 years and eight months -- 22 years for the 2004 murder and the rest for the later battery on the corrections officer.

Kohlby Freeze was ordered to begin his sentence at Larned State Hospital, after which he was sent to the nearby Larned Correctional Mental Health Facility.

But far from the case being over, three years later in April 2011, the plea agreement and the sentence were tossed out, all but sending the case back to the beginning.

In filing a motion to have the plea withdrawn, Kohlby's new attorney, Ney, argued in part that the young man's mental competency was still questionable when he agreed to the plea. His plea was "not knowingly and voluntarily made."

The court agreed, with reflection.

"To be clear," District Judge Amy L. Harth wrote in her opinion, "this court heard no testimony and had absolutely no indication that anyone in this case acted out of ill will or maliciously. To this court, looking at the cold record ... this appears to be a situation where everyone was trying to do what they believed to be best for the defendant, rather than following a strict adherence to constitutional principles.

"Their actions may well have been a better outcome for Mr. Freeze, and perhaps for the family of the victim, than what is to follow, but that cannot guide this decision. ... The motion is granted."

America's 'new asylums'

What has followed is three more years of the cycle, with a troubled Kohlby Freeze moving between the county jail in Fort Scott and the hospital in Larned.

To mental health experts, Kohlby Freeze's case, while extreme, stands as an example of the problems faced by justice and corrections systems inundated with inmates with serious mental health problems.

In 2013, the Bureau of Justice Statistics reported that the United States in the previous year housed about 2.3 million inmates, with 1.35 million incarcerated in state prisons, 744,000 in city and county jails, and 217,000 in federal prisons.

In April of this year, the Virginia-based Treatment Advocacy Center, a nonprofit working to improve the treatment of serious mental illnesses, released a report based on a survey of the nation's jails and prisons and determined that more than 356,000 inmates (about 15 percent of the total) have severe mental illness. The population is 10 times the 35,000 patients in state psychiatric hospitals.

"Prisons and jails have become America's 'new asylums,'" the report said.

In Kansas, some 37 percent of the 9,600 inmates in its eight state prisons have some form of mental illness, more than 1,000 of which are serious, such as schizophrenia or bipolar disorder. In Missouri, about 16 percent of the 31,000 inmates in state prisons require regular counseling and are on psychiatric medications.

"If you have an inmate with a mental disability, there is just nowhere to take them anymore," said Jackson County Sheriff Mike Sharp. "There is no money for mental facilities, or there's no beds. You get these smaller jails in these smaller counties and have no real means of treatment or medicating. It's just a vicious cycle."

The report said having mentally ill inmates increases physical attacks on correctional staff and other inmates. Inmates' conditions deteriorate as they go without treatment or are placed in solitary confinement. Jails and prisons also become crowded because mentally ill inmates stay longer.

In Johnson County, Kan., Sheriff Frank Denning said the average length of stay of a jail inmate is 15 to 18 days. For mentally ill or incompetent inmates, 80 days.

"I've said publicly before and still do that jails like mine have become the largest mental hospitals in the state," Denning said.

In Bourbon County, Martin concedes that his jail -- built in 1977 and designed to hold 27 inmates -- is routinely filled beyond capacity. It was never intended to be long-term housing for mentally ill inmates, he said.

"Jails years ago were a rehabilitation center," said Martin, who plans soon to seek voter approval for a 110-bed facility. "Jails today are a detention center."

The quality of mental health care inside county jails tends to vary greatly, often depending on money, resources and staff.

The Sedgwick County Detention Facility in Wichita, which holds some 1,150 inmates, in February opened a 52-person unit for inmates with mental health issues. Shawnee County'sDepartment of Corrections in Topeka is one of a number of jails with its own counselor on staff. The Jackson County Detention Center, with 700 inmates, has three full-time counselors on staff and a psychiatrist available every other day.

Although the Bourbon County jail offers some care, "I would say it's limited," Martin said. There's a nurse. A counselor from the community health center visited Kohlby Freeze weekly.

Martin and his staff strongly disagree with Karyn Freeze's contention that her son has been treated poorly at the jail. But they agree that the cycle should end.

"I don't want him to be here anymore than anyone else wants him to be here," said Bob Reed, the jail's administrator.

But the law is the law. There is no statute of limitations on murder.

Johnson, the Bourbon County attorney, said that should Kohlby Freeze become competent enough to actually stand trial, she will do her job.

Last month, Kohlby Freeze was once again transferred to Larned.

"My true opinion is he took a life, he should lose his life," said Chad Schenker, Rex's son. "Of course you want this to be over so you have closure, so you don't have to keep dealing with it."

Karyn Freeze wants closure too.

"Of course I want him to get out," she conceded, but added, "I want him to get help. I want him to get help more than anything."

To reach Eric Adler, call 816-234-4431 or send email to eadler@kcstar.com.

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