Ex-prosecutor says woman's guilty verdict not fair

Vic Ryckaert | The Indianapolis Star

INDIANAPOLIS -- Sarah Jo Pender spends about 22 hours of most days in a solitary 7-foot-by-11-foot cell.

Inmate No. 953968, sentenced to 110 years for double murder, is considered one of the most dangerous convicts at the Indiana Women's Prison in Indianapolis.

Pender, 34, has long insisted she doesn't belong behind bars. Legal experts and the former deputy prosecutor who won the guilty verdict against her in 2002 are starting to agree.

"Sarah didn't get a fair trial," said retired Marion County Deputy Prosecutor Larry Sells, who at the sentencing hearing labeled Pender the "female Charles Manson." He may now be the person to convince the court that keeping Pender in prison is a mistake.

Sells said he has discovered evidence that raises doubt about Pender's conviction in the shotgun slayings of her roommates, Andrew Cataldi and Tricia Nordman, in 2000. The evidence — a "snitch list" neither he nor the defense attorney knew existed at trial — indicates he unwittingly built a murder case against Pender with dubious testimony.

He is quick to point out, however, that Pender is no innocent. She assisted the killer and helped to conceal the murders. But the maximum sentences on those crimes would have been served years ago.

She hasn't served her time quietly.

During the nearly 13 years Pender has been in prison, she masterminded a highly publicized prison escape in 2008, earning a spot on the U.S. Marshals 15 Most Wanted Fugitives list before she was captured 4 and one-half months later, living quietly on Chicago's North Side.

Her story also has been featured on reality crime shows, most notably America's Most Wanted. She was the subject of a 2011 true-crime novel ("Girl, Wanted: The Chase for Sarah Pender") and inspired a recent Lifetime Television biopic ("She Made Them Do It").

But after all that has been written, filmed and dramatized about Pender, there's still more to her story.

The crime

Pender graduated from Lawrence Central High School and went to Purdue University to study physics with dreams of working in a particle accelerator lab or pursuing a career in biochemestry.

But she left school after a year, too immature and unable to manage living and attending classes on her own, she said in a recent interview with The Indianapolis Star.

At age 21, she met Richard Hull, at a concert for the band Phish. She quickly fell in love with the former high school football player.

Pender and Hull, who had become a drug dealer, began sharing a two-bedroom home with Cataldi and Cataldi's girlfriend Nordman, both fugitives from the Nevada Department of Corrections.

Pender's account of what happened on Oct. 24, 2000, has remained consistent.

She says she left the house that night when Hull and Cataldi began arguing about drugs and cash.

She says she later returned to find a dark and blood-soaked house. Her boyfriend had gunned down their roommates with a 12-gauge shotgun — a weapon Pender had purchased earlier that day at Walmart.

She went with Hull to dump the bodies into a trash bin a few blocks away. She did not call police and went to work the next day as if nothing had happened.

In her interview with The Star, Pender said she had no choice but to help. Doing anything else, she said, would have made her Hull's third victim.

Pender, the manipulator

Sells, back then, looked at Pender and saw a dangerous criminal.

He told the jury she was a master manipulator, wielding intelligence and sex appeal like deadly weapons.

Her sweet suggestions and tender kisses bent the will of her hulking boyfriend, Sells argued, persuading him to kill Cataldi and Nordman

Hull pulled the trigger, Sells said, but Pender pulled the strings.

While there was no direct evidence tying Pender to the slayings, she did much after the fact that led police and the prosecutor to start thinking of her as a cold-blooded manipulator with a power to lead another to kill.

Against the advice of her lawyer, she sent dozens of love letters to her boyfriend while they both sat in the Marion County Jail awaiting trial.

She carried on a torrid pen-pal relationship with another inmate, a convicted child molester.

Sells used one of the letters Pender supposedly wrote to Hull and testimony from Floyd Pennington, the child molester, to convict her of murder.

During her interview with The Star in a classroom at the Women's Prison, Pender said what she's guilty of is blind love and stupidity.

"I do not deserve to be convicted of murder and that's it, that's it," Pender said, handcuffed and seated at a table with two prison officials standing nearby.

"It doesn't matter how stupid or irresponsible or promiscuous or whatever anybody wants to say," Pender said, "I don't (expletive) deserve to be here."

Pender's new hope

Pender's best hope for freedom comes thanks to the man who put her in prison.

Retired, Sells now thinks the evidence used to convict Pender was based on a tangle of lies spun by Pennington.

The proof, Sells said, is in a document that was withheld from Pender's lawyers during the 2002 trial.

Sells found it in 2009 while poking through the old detective files on Pender's case.

It was Pennington's "snitch list," Sells said, naming people he was prepared to help police bust in exchange for a plea agreement.

The handwritten list with Pennington's signature, Sells said, would have lead to the jury questioning Pennington's credibility and crushed the state's murder case. The document proved that Pennington would do anything to get a plea deal from the state, Sells said, even lie under oath.

"I'd never seen that before. The defense hadn't either," Sells said. "If I'd have seen that I never would have put Floyd Pennington on the witness stand."

Pennington had been facing 56 years in prison; just months before he testified against Pender he was sentenced to 12 and released in six years.

Scott Newman, the Marion County prosecutor at the time, said the discovery of the previously undisclosed document gives Pender a convincing argument for a new trial.

"The fact that he (Pennington) negotiated with that other information is relevant and should have been disclosed," Newman said, "and that does trouble me."

Pennington's tale

In 2002, Pennington was the classic jailhouse snitch. His testimony provided crucial evidence Sells used to link Pender to the murders.

Pennington met Pender at a jail church service and they soon started corresponding. Marion County Jail forbids inmates to write each other, but Pender got around the restrictions by having a friend on the outside forward letters to Pennington and Hull.

Pender was a prolific letter-writer. Authorities seized more than 70 letters she had written to Hull and dozens more she sent to Pennington while she was locked up.

It was through these letters, Pennington told police, that he and Pender agreed to fake illnesses on Sept. 22, 2001, so they could meet at Wishard Memorial Hospital.

The jail officers were busy dealing with a rowdy inmate, Pennington said, and left him and Pender alone in a waiting area. Each was shackled and separated by space, but Pennington testified that they could see each other and speak without being overheard.

Pennington claimed that Pender confessed that she had "coerced" Hull into committing the murders.

"She didn't pull the trigger," Pennington said, during Pender's trial, "but, you know, she had pretty much coerced Rick to pull the trigger."

Pennington's story fit perfectly with Sells' theory as to how the murders happened.

But Sells did not know during the trial that Pennington had volunteered to help police bust other criminals in hopes of getting a plea deal.

In the snitch list, Pennington told Ken Martinez, the lead detective on the murder case, he was willing to "make buys, wear wires, talk on phone taps or whatever I have to do to make busts on all of these crimes."

Sells said Martinez never gave him that snitch list and Sells didn't look through the detective's files before the case went to trial.

The document was buried in a file, shelved and forgotten.

Martinez left Indianapolis law enforcement in 2006 and moved to Idaho. He resigned from the Ketchum Police Department in 2008 amid a scandal involving mishandled evidence. He could not be reached for comment.

Finding the snitch list

By fall 2009, Sells had left the Marion County Prosecutor's Office but was handling cases part-time in Clinton County.

He was helping author Steve Miller, who was researching a book about Pender. They were digging through old police files and discovered the document that, in time, convinced Sells he had been wrong about her.

In the hands of a defense lawyer, legal experts say, the list could have been used to pound away at the little credibility Pennington had with the jury.

Pennington committed new crimes after his release, including a rape in 2008. He is back in prison at Miami Correctional Facility serving a 30-year sentence.

Pennington maintains that he told the truth about Pender.

James Nave, the attorney who represented Pender at her trial, said the snitch list would have gone a long way towards questioning Pennington's credibility.

"I certainly don't remember seeing something like that," Nave said after The Star told him about the discovery of the list. "If I had I would have been gleeful. I would have been overjoyed to have that document as her attorney."

The list raised alarms, but Sells said he wanted to talk to the detective in the case, Martinez, before he did anything else. Sells tried to find Martinez, but discovered he had moved out of Indianapolis.

He put the snitch list in the back of his mind and went on with life. Sells retired from his part-time job prosecuting cases last year and once again started thinking about Pender's case.

It was then that he realized Pennington's testimony couldn't be trusted.

"It was clear as a bell," Sells said, he "lied."

Another piece of evidence, just as important as the Pennington testimony, was a letter Hull gave to his lawyer in which Pender allegedly confessed to the shootings.

A Marion County crime lab expert testified at Pender's trial that the letter's handwriting matched hers. But in 2005 hearing for Pender's appeal, Hull testified that he had another inmate write the letter for him and that he alone had killed the victims.

Hull, in a telephone interview with The Star on May 17, declined to talk about specifics of the crime citing advice from his attorney. He hopes he might win an appeal to his 90-year sentence. However, he would not refute or deny the testimony he gave in 2005.

Evidence crashes down

Sells now believes Pender's account: She wasn't there when the shots were fired. She was irresponsible and arrogant. Her actions made her appear guilty of the murders but she hadn't really participated in them.

Last spring, Sells came to the conclusion that he had wrongly convicted a young woman of two murders.

He called Pender's mother, Bonnie Prosser, in May 2012, just before Mother's Day, and promised her he'd help set things right.

Sells later shared his concerns with longtime Indianapolis defense attorney Dave Hennessy. Hennessy agreed to assist Pender's lawyers with a new appeal.

Why the snitch list was not provided to the state remains a mystery. Sells thinks detective Martinez simply forgot to turn it over.

It really makes no difference why, said Joel Schumm, a criminal law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis. The fact that the snitch list was withheld at all, Schumm said, could raise serious questions about the validity of her guilty verdict.

"If Pennington's testimony was important in convicting her and this list seriously undermined his credibility," Schumm said, "a judge may well order a new trial because the verdict would no longer be worthy of confidence."

This responsibility to turn over "exculpatory evidence" to the defense is one of the bedrocks of the U.S. justice system, experts say.

Pender's new appeal

Attorney Cara Weinke, Pender's lawyer, is preparing documents that she hopes will lead to a new appeal.

Marion County Prosecutor Terry Curry's office has said it would evaluate any new information in Pender's case.

Sells said he has been interviewed by deputy prosecutors and a detective reviewing Pender's conviction.

There are two avenues that might lead Pender to a new trial or freedom.

The courts could grant her a new appeal in light of the new evidence.

The prosecutor's office may agree to modify Pender's sentence, if it becomes convinced that the snitch list was important to Pender's case and wrongly withheld from her attorney.

Pender, meanwhile, spends time in that small cell, reading, writing letters and praying for the day she is free.

"I put myself in some really (expletive) situations," she said, "however being a slut, being dumb, being needy, none of that deserves the punishment I've gotten."