Chapter 15: Söring’s Many Appeals - Martyr or Murderer: Jens Soering, the Media, and the Truth

Söring was determined to overturn his conviction using all available resources, including appeals. Criminal appeals are not the most stimulating topic, but a brief account of Söring’s appeals is vital to gauging the strength of his innocence claim. During law school at the University of Houston in the mid-1990s, I specialized in criminal appeals, and went on to work for convicts at Texas Defender Service. What do appeals lawyers do? They argue before appeals-court judges. What do appeals-court judges do? As a lawyer who trained us said: “You know that scene in a Western where all the bodies are lying there writing on the ground? Well, right after that scene, the appeals-court judges ride in and shoot all the wounded.”

In other words, appeals are hard to win. Over 95% fail, and that figure holds for most developed countries. That is either proof that appeals courts are window-dressing, or that countries with well-developed legal systems generally get trials right the first time. In any event, almost all of Söring’s complaints about his trial were ably argued before American appeals courts, which rejected them unanimously. These judicial opinions are available online. Söring never mentions this fact spontaneously. If forced to acknowledge it, usually launches into an explanation of how American appeals courts are often blocked by technical rules from looking at the “real” issues in the case, and implying that the court opinions are rubber stamps.

Söring’s appeals are also where several of Söring’s complaints originated. Söring’s primary complaints, repeated over and over by him and his supporters, are that Sweeney was biased, and the prosecution hid evidence about alternate suspects and relied on junk science to convict him. As if that weren’t enough, his own trial lawyer was incompetent and mentally ill. In Söring’s telling, his trial was a perfect storm of institutional failure. Over the decades, Söring has honed this narrative to perfection, choosing which factors to emphasize depending on the sophistication of his audience. Let’s look at how the four claims emerged, and how the courts dealt with them.

After his sentencing on 4 September 1990, Söring’s lawyers, Richard Neaton and Bill Cleaveland, filed Söring’s first appeal. This is called a “direct appeal”. In the American criminal justice system, a “direct appeal” allows the defendant to challenge his trial on legal grounds; i.e., to show legal rules were violated, and the violations were severe enough to “undermine confidence” in the outcome of the trial. The appeal first raised judicial bias: Judge Sweeney should not have supervised the trial because he had been a friend of Risque Benedict.

American judicial ethics law recognizes two kinds of potential judicial bias. The first kind involves judges who have a financial interest in the outcome of a case, or who are related to a party. In cases such as this, it is presumed the judge cannot act fairly, and he must recuse himself. However, most claims of bias fall in a grey area in which bias is not automatically assumed. In this second category of cases, Virginia law at the time entrusted trial judges, if challenged, with the authority to initially decide whether they should recuse themselves from a trial.

Of course, the judge must document his or her decision, and it will be reviewed by an appeals court. Judge Sweeney did so, researching the authorities and writing a short memorandum to the court file explaining why he believed there was no legal objection to his presiding over the trial. A three-judge panel of the Virginia Court of Appeals, in a ruling issued on 9 October 1991 (Record No. 1610-90-3), agreed:

In regard to the trial judge’s connection with Risque Benedict, brother of one of the victims, evidence that the trial judge and victim’s brother attended the same high school and college over forty-three years ago, and that there had been infrequent casual social contact between them since that time, did not establish bias, prejudice, or the appearance of impropriety.

Söring’s other claims were more technical issues about the admissibility of his interrogations and the jury instructions at his trial. These were also rejected.

Despite the fact that the “biased judge” argument was rejected over three decades ago, Söring still mentions it every time he speaks about his case. He tells his audience that Virginia law allows the trial judge himself to decide on bias, implying that this is an unusual way to approach the issue. Söring does not mention that he was allowed to challenge Sweeney’s decision on appeal, which leaves his audience with the impression that that the trial judge’s decision is final. Both claims are incorrect: Many American states, and many foreign jurisdictions such as the U.K., also permit judges to make the initial decision as to whether an appearance of bias should lead them to step aside. Judges are highly trained legal specialists bound by ethics codes. They are presumed to be able, in general, to correctly determine when presiding over a trial may be inappropriate and to recuse themselves from these cases, and they do so every day in the U.S. and U.K. If they make the wrong decision, they will be reversed on appeal, which is always an embarrassment and can be a serious blot on their careers if it happens too frequently.

Two more specific factors undermine Söring’s argument. First, Söring’s trial was televised and has, by now, been watched by countless people. If Sweeney had displayed signs of bias, somebody would have noticed. The second factor is the structure of the American trial system. The jury, not the judge, decides whether a defendant is guilty or not. The judge must accept their decision even if he personally disagrees with it. This does not mean judicial impartiality is irrelevant, but a biased judge has much less ability to affect the ultimate outcome of an American jury trial than he would in Germany, where individual judges decide the guilt or innocence of thousands of criminal defendants each day.

After an inmate loses his “direct appeal”, as Söring did in 1991, his conviction becomes “final”—he must report to prison (if he’s not already there) and begin serving his sentence. Yet even after he begins serving his prison sentence, he can still file another appeal, called a “post-conviction” appeal. This allows the prisoner to bring in new evidence which he believes casts doubt on his conviction. However, the burden of proof is now on the prisoner. His conviction is presumed to be legally valid, and he must overcome this presumption.

An effective post-conviction appeal requires a lawyer to not only familiarize himself with the case, but also re-investigate some issues (perhaps with the help of a private detective) to verify whether the jury heard all the relevant evidence. Söring hired a lawyer named Gail Starling Marshall to file this post-conviction appeal. Marshall had worked for a time as an Assistant Attorney General for the State of Virginia, defending the Commonwealth of Virginia’s criminal convictions against appeals filed by prison inmates. Marshall was a good choice; she worked hard on Söring’s appeals and made the strongest possible arguments on his behalf. As we’ve seen above, she also publicly endorsed Mortal Thoughts, and stated she believes Söring is innocent. Marshall has continued to advocate on Söring’s behalf, appearing in the 2017 pro-Söring film Killing for Love.

Who paid for this representation is confidential, but it appears to have been a combination of the Söring family and the German government. In 5 December 2021 profile in the London Sunday Times, Söring said that, during the 1990s, his father Johann had accepted diplomatic postings in Mauritania and Papua New Guinea to earn extra hazard pay to finance Söring’s appeals. In the afterword to Beyond Reason, Ken Englade reports that Johann Söring had already taken up a diplomatic post in Mauritania in 1989. By this time, Johann Söring was well into his 50s. It seems likely he did not envision ending his diplomatic career in some of the world’s poorest, remotest countries.

Söring filed his first “post-conviction” appeal in the Bedford County Circuit Court in 1995. His principal claim was that his trial lawyers had provided him with “ineffective assistance of counsel.” The Sixth Amendment to the U.S. Constitution provides a criminal defendant with a right to “the Assistance of Counsel for his defence”. In the landmark 1984 case of Strickland v. Washington, the U.S. Supreme Court held that the right to assistance of counsel necessarily mean that the defendant’s lawyer must be “effective”. The Court stressed that this standard should not be interpreted too strictly; defendants aren’t entitled to ingenious or outstanding lawyers, just “reasonably effective” ones.

Further, when looking at a trial lawyer’s performance, judges must avoid “the distorting bias of hindsight”. They must put themselves in the position of the trial lawyer and judge his actions based on what he knew at the time. Finally, the right to effective assistance of counsel, like most constitutional rights, is subject to a “harmless error” limitation: Even if the trial lawyer made a mistake, the conviction will not be overturned unless there is a “reasonable probability” that the mistake changed the outcome of the trial. Every legal system has a standard like this for the same reason: Resources are limited, and there is no point wasting them by granting defendants a new trial when the first one clearly reached the correct conclusion despite a few errors.

We can obtain an overview of Söring’s “ineffective assistance of counsel” claims from the opinion published on 30 June 2000 by the United States Court of Appeals for the Fourth Circuit in the case of Soering v. Deeds, No. 99-6498. The federal judges list four alleged errors made by Neaton and Cleaveland. First, they should have objected when Jim Updike mentioned Jens Söring’s refusal to submit blood, fingerprint, or footprint samples during the 6 October 1985 interview. The court disagreed, pointing out that Updike’s questions were lawful. Second, Söring claims his lawyers should have argued for the inclusion of a particular jury instruction, but the court finds the Söring was not legally entitled to the instruction, so there was no error. Third, Söring accuses his trial lawyers of failing to sufficiently challenge the sock-print evidence. The Court disagrees: “counsel effectively cross-examined one of the prosecution’s witnesses about his failure to compare Elizabeth Haysom’s foot impressions with the sockprint, and … demonstrated to the jury during closing argument ‘how one of Elizabeth’s foot impressions matched the sock print almost as well as petitioner’s [did].’”

Finally, Söring claims his lead trial lawyer, Richard A. Neaton, “who has since been disbarred, was emotionally and mentally troubled at the time of the trial”. This claim deserves more attention, as it is still a key part of Söring’s innocence narrative. After Söring’s trial, a Michigan woman named Denise Eliott (Neaton was licensed in Michigan) filed a grievance against Neaton, whom she had retained in February 1988 to represent her in an automobile accident. Elliott accused Neaton of failing to account for her funds, failing to properly communicate with her, and of misleading her about the status of her case. Since Neaton was licensed in Michigan, the Michigan Bar Disciplinary Board heard the case (No. 93-49-GA).

In his response to the accusations, filed on 2 November 1993, Neaton admitted most of them, but claimed, quoting state bar regulations, that his “ability to practice law was materially impaired by an emotional or mental disability which substantially contributed to the conduct in question [misrepresentation, failure to cooperate and misappropriation of client’s funds].” He claimed that he was suffering from a substance abuse disorder during the time he represented Elliott, which included Söring’s trial. Lawyers frequently claim substance abuse defenses to charges of misconduct. This is a common defense because, if the bar agrees the lawyer’s problems stemmed from substance abuse, it will usually offer the lawyer a chance to participate in a treatment program, which can allow them to regain their licenses more quickly. Neaton was ultimately suspended from the practice of law based on complaints from Elliott and others, and Söring also filed complaints against Neaton for failing to account for money paid to Neaton on Söring’s behalf. Neaton was eventually reinstated, but after more complaints, he was disbarred by the Michigan bar in 2001.

There is a curious footnote to this story: As his law practice collapsed, Neaton turned to investment advising as a career. Investment advisers are strictly regulated by the U.S. federal government. As part of his application to become a licensed financial advisor, Neaton was required to submit a detailed application to FINRA, the Financial Industry Regulatory Authority. His application required him to disclose whether he had ever been disciplined by any “state regulatory agency”. Neaton falsely responded “no”. As a result, on 20 October 2011, the American Securities and Exchange Commission (File No. 3-14252) fined Neaton $5,000 and barred him from the profession:

We conclude…that Neaton’s failure to disclose the bases of the [Michigan Bar] Discipline Board’s actions and the resulting two suspensions and revocation of his law license was egregious. Neaton’s omissions were significant. The Discipline Board’s actions were based on a wide range of dishonest conduct and ethical violations, including misappropriation of client funds, forgery, misstatements to clients, and neglect of his professional duties, resulting in suspensions and the revocation of his license to practice law. Each of these findings and sanctions suggested Neaton’s lack of fitness to be in the securities industry.

Neaton thus has the unusual distinction of having been kicked out of two licensed professions.

Neaton, who now lives in Florida, is frequently contacted by reporters and producers asking for him to comment on his representation of Jens Söring. As he represented Söring from 1986 onward, Neaton can likely answer many questions raised by Söring’s claims: Did Söring ever confess the Haysom murders to Neaton? When did he first tell Neaton that his English confessions were all false? If Neaton knew Söring was actually innocent since 1987 (for example) why did Neaton allow the world to assume Söring was guilty for several more years? As we’ve seen, Neaton claimed in court that had kept movie ticket stubs proving Söring’s innocence for three years without ever telling Söring he had them. How exactly did that happen? There are many more aspects of Söring’s story which Neaton could either bolster or demolish if he chose to do so.

Even though he has been disbarred, Neaton is still bound by attorney-client privilege, which lasts forever unless the client waives it or a court orders disclosure. Of course, the maximum penalty for breaching the privilege is usually disbarment, which has already happened to Neaton. Nevertheless, Neaton has chosen to remain loyal to Söring. His only public comment on the case appears to be an Associated Press article which appeared on 26 July 1996 in the Roanoke Times. Asked to comment on Söring’s accusation of malpractice, Neaton said: “Jens is in prison because he made a conscious decision to help Elizabeth Haysom. I was his lawyer, not his magician.”

Neaton threads the needle between defending his own reputation and maintaining his loyalty to his former client. Instead of saying he believes Söring is guilty (or even worse, that Söring confessed to him) Neaton chooses a formulation which is consistent with Söring’s own innocence narrative. However, at the same time, he suggests that only a “magician” could have saved Söring after the jury heard his hours-long confessions. Neaton’s loyalty is all the more remarkable because lawyers are allowed to breach confidentiality to defend themselves against accusations of malpractice. So far, Neaton has chosen not to do so. Söring could free Neaton from his duty of confidentiality by signing a simple one-page form, but has not done so with Neaton or any of his other lawyers.

The United States Court of Appeals found that Neaton’s statements about having an “emotional or mental disability” during his bar disciplinary hearing were irrelevant to Söring’s case. The trial record showed Neaton’s representation to be effective, a conclusion shared by the trial judge and the millions of observers who watched Söring’s trial. The court further held that “Soering was not prejudiced, since local co-counsel was of sound mind and represented Soering competently”. Neaton was always joined in court by William A. Cleaveland, an experienced Virginia lawyer who went on to become a member of the Virginia state legislature.

The court also implicitly agreed with Neaton’s “magician” comment. Even if Neaton had erred, his mistakes would not have changed the outcome of Söring’s trial given the “overwhelming evidence that he personally killed the Haysoms”:

Soering’s confessions to American, British, and German officials recounted in detail how he and Elizabeth planned the murders and how he then carried them out…. These accounts of how he struggled with and then slaughtered the Haysoms were consistent with the deep facial bruise and the bandages to his left-hand fingers that he was seen with at the Haysoms’ funeral… And Soering’s blood was of the same type as the unidentified blood found at the crime scene… Given these facts, we cannot say that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

To this day, Söring continues to bitterly attack Neaton. For instance, in a 2019 episode of the “Wrongful Convictions” podcast with Jason Flom, Söring he had “a really, really bad trial lawyer who was eventually disbarred”. When he makes this accusation, Söring never reveals that he was represented by two lawyers at his trial, nor does he mention that courts have repeatedly reviewed Neaton’s trial work and found it to be effective.

Another claim decided by the Fourth Circuit federal court in 2000 deserves further exploration because Söring continued to raise the issue for decades. Söring claimed prosecutor Jim Updike violated the U.S. Constitution by failing to disclose “exculpatory” evidence to the defense. In the landmark 1963 case of Brady v. Maryland, the United States Supreme Court held that due process of law required the prosecution to disclose all “exculpatory” evidence to the defense before trial. To win a Brady claim, the defendant must prove that the evidence is exculpatory (i.e. it points to another viable suspect or undermines one of the state’s witnesses), that the prosecution did not disclose it, and that the failure to disclose was not “harmless error”—that is, the evidence, had it been disclosed, might have changed the outcome of the trial.

Söring bases his Brady claim on the arrest of two drifters, William Shiflett and Robert Albright, close in time to the Haysom murders. In early April 1985, Shiflett and Albright murdered and sexually mutilated a fellow drifter named Milliken in Roanoke, Virginia, which is about 30 miles from Lynchburg. Just before committing this crime, they had been detained by a Bedford County Sheriff, a fact which Söring argued should have been disclosed to the defense. In 1996, Judge Sweeney held a hearing about this claim. In its 1998 review of the hearing, the Virginia Supreme Court set out the facts:

The focus of the 1996 hearing was the testimony of former Bedford County Deputy Sheriff George Anderson. Within a week of the Haysom murders, Anderson detained and questioned two men, William Shifflett and Robert Albright, who were walking or hitchhiking late at night…near Bedford. The officer became suspicious of the men because he rarely had seen persons walking there late at night. The men told Anderson they had been to Lynchburg “to see a girl” and were headed to Roanoke.

Anderson directed each of the men to place the contents of his pockets on the hood of the patrol car, and then questioned each of them while the other sat in the rear of the car. One of the men carried a small beige tablecloth and a small, empty, nylon travel bag. Neither carried any large amount of money nor did there appear to be bloodstains on them or their belongings. There was no testimony that the tablecloth or bag were items missing from the Haysom home.

Anderson reported by radio the encounter to the Bedford Sheriff’s Office and was told by a superior to release the men. Anderson discussed the incident the next day with another superior officer, who was involved in the Haysom investigation.

Ten days to two weeks after this incident, Anderson noticed the brass end of an object protruding from the rear seat of his patrol car. He found a Buck 110 folding knife. The knife had not been among the belongings the two men produced when Anderson stopped them on the bypass. Anderson did not recall that anyone else had been in the rear seat of his car after he stopped Shifflett and Albright, although he could not recall when, before the bypass incident, he previously had examined the seat.

Prior to the habeas hearing, the knife Anderson discovered was subjected to laboratory testing for traces of blood. There was no evidence that any blood was found on the knife.

The federal court agreed with the state court that Söring’s rights had not been violated, because there was no proof Shiflett or Albright had anything to do with the Haysom murders:

We conclude the evidence in question is not material. First, the only relationship between the Haysom and the Milliken murders was that they occurred in the same county within six days of each other, and both were carried out with a knife. There is no evidence whatsoever that either Shifflett or Albright had ever met, or knew of, Elizabeth Haysom or her parents, nor is there any physical evidence connecting Shifflett or Albright to the Haysom murders. Second, it is highly unlikely that Shifflett and Albright, who murdered another vagrant to rob him of his empty wallet, murdered the Haysoms, since robbery was patently not the motive behind the Haysom murders: silverware, jewelry, $122 in cash, the automobile parked outside and the keys thereto, a television, stereo equipment, and other valuable items that were in plain view were left behind after the Haysoms were murdered.

Third, the manner in which Milliken and the Haysoms were murdered differed markedly: Milliken’s throat was stabbed, not slashed, as was the case with the Haysoms, and thus Milliken died slowly, unlike the Haysoms; moreover, the Haysoms were not sexually mutilated, as was Milliken. Fourth, it is far from clear that the knife that the deputy found buried in the back seat of his patrol car one week after he detained Shifflett and Albright, and that Soering now alleges was used by Shifflett and Albright to murder the Haysoms, even belonged to the two vagrants, since the deputy could not recall when he had last checked his back seat prior to detaining Shifflett and Albright.

Fifth, the knife was a very common kind of folding knife, readily available at retail stores. Sixth, even if the knife did belong to Shifflett and Albright, there were no traces of blood on it, and although the blade was “consistent with the size and shape of [the] weapon that could have caused the wounds to [the Haysoms],” the medical examiner explained that he could not determine the precise dimensions of the blade actually used to cause the Haysoms’ wounds.

After the Fourth Circuit of Virginia denied his claims, Söring appealed to the United States Supreme Court, which declined to review his case.

Söring’s challenges to the fairness of his trial were given thorough review by the Virginia and federal courts. This is a list of the judges who decided Söring’s appeals:

• William Sweeney, Circuit Judge of Bedford County, Virginia.

• Judges Sam W. Coleman, Lewis H. Griffith, and Henry L. Lam, Virginia Court of Appeals (Court Record No. 1610-90-3).

• Christian Compton (opinion author), Elizabeth B. Lacy, Leroy R. Hassell Sr., Barbara Milano Keenan, Cynthia D. Kinser, Harry L. Carrico, Virginia Supreme Court, (opinion reported at 255 Va. 457).

• Jackson L. Kiser, Senior District Judge, United States District Court for the Western District of Virginia, at Roanoke (No. CA-98-361-R).

• Robert R. Beezer (Senior Circuit Judge), William Walter Wilkins, and J. Michael Luttig, judges of the United States Court of Appeals for the Fourth Circuit.

Söring also appealed to the nine-member U.S. Supreme Court, which declined to hear his case.

Söring still cites the biased judge, incompetent lawyer, and deadly drifters arguments in all of his writings and comments about the case. Because Söring never mentions the court judgments addressing these claims, his audiences receive the impression that these were major errors with his conviction which were never addressed. There are innumerable comments under his social-media posts in which people express shock and dismay that the “American criminal justice system” is so unreliable and so uninterested in correcting its own mistakes.

Indeed, Söring’s case has decisively shaped how hundreds of thousands of Germans see the U.S. criminal-justice system. Söring’s case has been one of the most famous true-crime cases in Germany for decades, and one of the very few tried in the U.S. Living in freedom in Germany, Söring now portrays himself as a reliable source of first-hand information on the U.S. justice system. No living German has done more to influence ordinary Germans’ perceptions of American criminal justice. And Söring paints it in a relentlessly negative light.