Latest / Wrongful Conviction / #288 Jason Flom with Ken Middleton

Transcript

#288 Jason Flom with Ken Middleton · Wrongful Conviction

0:00
Speaker 1: When we initially released Ken Middleton's episode in March twenty
0:03
Speaker 1: twenty two, we were hoping that Jackson County District Attorney
0:06
Speaker 1: Jean Peters Baker would be moved to action. But it
0:09
Speaker 1: turns out it looks like Ken's son, Cliff Middleton, has
0:13
Speaker 1: exposed another conflict of interest for the Jackson County Prosecutor's office,
0:17
Speaker 1: and this one comes with a constitutional violation. When the
0:21
Speaker 1: trial prosecutor struck a bond agreement with the court for
0:24
Speaker 1: mister Middleton, there was a stipulation that he would not
0:27
Speaker 1: have access to his assets. This was a clear violation
0:31
Speaker 1: of his Sixth Amendment rights, as affirmed in twenty sixteen
0:35
Speaker 1: by the Supreme Court, who decided in Louis versus United
0:38
Speaker 1: States that the Sixth Amendment prohibits the pre trial restraint
0:42
Speaker 1: of assets needed to retain a defendant's council of choice
0:45
Speaker 1: when those assets have not been used in conjunction with
0:48
Speaker 1: criminal activity. Mister Middleton is hoping that the Court agrees
0:52
Speaker 1: that the actions of the Jackson County Prosecutor's office to
0:55
Speaker 1: do just that to mister Middleton pre trial represented a
0:59
Speaker 1: conflict of interest that will disqualify that office and result
1:02
Speaker 1: in the appointment of a special prosecutor. A prosecutor who's
1:05
Speaker 1: free of this conflict, among others, would be able to
1:09
Speaker 1: apply the newly enacted SB fifty three in order to
1:13
Speaker 1: grant mister Middleton a new trial on his ineffective assistance
1:16
Speaker 1: of counsel, constitutional violations and actual innocence claims. Canon Kathy
1:22
Speaker 1: Middleton had properties in Blue Springs, Missouri, as well as
1:25
Speaker 1: Ken's family land back in Arkansas, where they hoped to
1:28
Speaker 1: one day retire. On February twelfth, nineteen ninety, when he
1:32
Speaker 1: planned to clean a gun that he had brought back
1:33
Speaker 1: from Arkansas, Ken felt Hill, laid the gun down and
1:37
Speaker 1: took a nap. Meanwhile, Kathy returned early from work to
1:40
Speaker 1: confront Ken about news of a regretful affair that had
1:43
Speaker 1: ended three years earlier. After grabbing the gun from where
1:46
Speaker 1: Ken had laid it down, Kathy made her way to
1:48
Speaker 1: the phone to call the alleged mistress. When tragedy struck.
1:52
Speaker 1: It is believed that it destroyed. Kathy mishandled the weapon
1:55
Speaker 1: in her left hand and shot herself in the head.
1:58
Speaker 1: Ken immediately called nine to one one when first responders
2:01
Speaker 1: found him without a drop of blood or gunshot residue
2:03
Speaker 1: on him. A positive gunshot residue test of Kathy's left
2:07
Speaker 1: hand would have conclusively ruled her death as a tragic accident. However,
2:11
Speaker 1: her left hand test results went missing and the crime
2:14
Speaker 1: lab document was altered in what clearly appears to be
2:17
Speaker 1: evidence tampering, where a medical examiner and blood spatter expert
2:21
Speaker 1: willing to testify to an impossible scenario in which Ken
2:24
Speaker 1: was magically able to shoot Kathy from less than a
2:27
Speaker 1: foot away while remaining free of blood and GSR. Ken
2:31
Speaker 1: was sentenced to life plus two hundred years. Despite the
2:34
Speaker 1: mishandling of the crime scene, ballistics testing was still able
2:37
Speaker 1: to prove Ken's innocence. His conviction was overturned in two
2:41
Speaker 1: thousand and four, but a jurisdictional technicality has held him
2:44
Speaker 1: in legal limbo ever since. Keneda's son, Cliff Middleton, join
2:48
Speaker 1: us to ask, how is it that, even though a
2:51
Speaker 1: new statute remedies that technicality, the current prosecutor, Jean Peters Baker,
2:56
Speaker 1: refuses to act. This is wrongful conviction. Welcome back to
3:13
Speaker 1: Ronful Conviction. I'm your host, Jason Fom. You know each
3:15
Speaker 1: week I have a pretty good idea of how I'm
3:18
Speaker 1: going to start the show. You know, usually there's one
3:20
Speaker 1: main focus, one main problem that we can talk about
3:24
Speaker 1: in any particular case. But this time, I don't even
3:28
Speaker 1: know where to start. When our friend Larry Garrison, who's
3:32
Speaker 1: actually known as the Newsbreaker, okay for his years of
3:35
Speaker 1: investigative reporting and his work through Silver Creek Entertainment, when
3:39
Speaker 1: he first told me and us here at Ronful Conviction
3:43
Speaker 1: about the case of Ken Middleton, he had lived up
3:45
Speaker 1: to his nickname once again, I mean the Newsbreaker. So
3:48
Speaker 1: I'll start by saying that Ken Middleton has been in
3:50
Speaker 1: prison for over thirty years for being present during what
3:54
Speaker 1: they may well have known all along was just a
3:56
Speaker 1: tragic accident. And there are so many problems in this
3:59
Speaker 1: case that we could literally pick on any one of
4:01
Speaker 1: them and make an entire episode of the show just
4:03
Speaker 1: about that. I'm talking about ineffective assistance of counsel, false
4:08
Speaker 1: expert testimony, evidence tampering, incompetent investigator's official corruption, conflicts of interest,
4:14
Speaker 1: Ken refusing freedom through an Alfred plea right, something that
4:18
Speaker 1: you never catch a guilty person doing, and that's something
4:21
Speaker 1: that happened seventeen years ago, almost eighteen now, plus there's
4:26
Speaker 1: this insane jurisdictional technicality that has kept this innocent man
4:29
Speaker 1: in prison long past the time that I believe everyone
4:32
Speaker 1: knows that he should have ever been in there. So
4:36
Speaker 1: without further ado, at seventy seven years old, Ken is
4:39
Speaker 1: calling in from inside the prison walls in Missouri. Ken,
4:43
Speaker 1: I'm so sorry you're here because of the reason why
4:47
Speaker 1: you're here, but I'm very honored to have you on
4:49
Speaker 1: the show.
4:50
Speaker 2: Thank you appreciate it.
4:52
Speaker 1: And with Ken is his son and probably most passionate advocate,
4:58
Speaker 1: Cliff Middleton. Thanks for joining us.
5:01
Speaker 3: Thank you so much for having me on. Jason, I
5:03
Speaker 3: really really appreciate it.
5:05
Speaker 1: And I know how hard this is going to be.
5:06
Speaker 1: I mean, like any other son, you love your dad
5:09
Speaker 1: and you just want this thing to end. Okay, let's
5:12
Speaker 1: go back in time and I'm gonna turn to you. Ken.
5:16
Speaker 1: This is early nineteen ninety in Blue Springs, Missouri, and
5:20
Speaker 1: you're there with your wife Kathy. So tell us what
5:23
Speaker 1: was happening in your life? What were things like before
5:26
Speaker 1: all this happened.
5:27
Speaker 2: It was great. We had a great marriage for over
5:30
Speaker 2: sixteen years, had a farm in Arkansas, two different farms.
5:34
Speaker 2: I had three hundred and fifty two acres of the land.
5:37
Speaker 2: I had drove a truck for over twenty years, and
5:40
Speaker 2: I'd injured my back and I wasn't working right then,
5:44
Speaker 2: so I was going to the farm and doing projects,
5:46
Speaker 2: working on the house and watching nice of the cattle
5:50
Speaker 2: and stuff like that. Kathy worked today at and T
5:53
Speaker 2: for twenty eight years, and two years you'd have her
5:57
Speaker 2: time in Horse you could retire regardless of age. And
6:00
Speaker 2: that's what was waiting on, and was moving back to
6:03
Speaker 2: Tarkansas for good.
6:04
Speaker 1: And let's get into how this came to pass. So
6:08
Speaker 1: let's go back to February twelfth, nineteen ninety and just
6:11
Speaker 1: to set the stage here, you had been at your
6:14
Speaker 1: place in Arkansas and you brought a handgun that you
6:18
Speaker 1: owned back to Missouri with you. But meanwhile you had
6:22
Speaker 1: been feeling sick, but no one knew at the time,
6:25
Speaker 1: not you or anybody, that you were really seriously ill
6:28
Speaker 1: at this point, Is that right, right?
6:30
Speaker 2: And I was sick for left Arkansas, and when I
6:34
Speaker 2: got back Sunday afternoon, I didn't sleep much all night.
6:38
Speaker 2: So the next morning, Kathy had went to work at
6:41
Speaker 2: at and T and I unloaded the rest of my
6:44
Speaker 2: truck and brought the gun in the house. It had
6:48
Speaker 2: been in Arkansas since i'd went to Colorado Elcott in
6:51
Speaker 2: the fall before, and there's a big snow and rain
6:54
Speaker 2: and stuff in Colorado and it got wet. So I
6:57
Speaker 2: picked it up and brought it back to Missouri. I
7:00
Speaker 2: was aiming to clean it. And when I got it
7:02
Speaker 2: out of the truck, I went in the house and
7:05
Speaker 2: sat down. I called Kathy at work, and she asked
7:08
Speaker 2: me how I was feeling. I said about the same.
7:11
Speaker 2: I wasn't feeling good, and I sat in a recliner
7:14
Speaker 2: and I went to sleep. And I'd never cleaned the gun.
7:17
Speaker 2: So the next thing I knew is she was already home,
7:21
Speaker 2: and she'd picked up the gun out of the towel
7:24
Speaker 2: that I had had the gun laying on, and she
7:26
Speaker 2: was upset that somebody had told her that I was
7:30
Speaker 2: having an affair with a woman, which was true, but
7:34
Speaker 2: it had been over for three years, and she walked
7:37
Speaker 2: over to the phone in the dining room to call
7:40
Speaker 2: the woman. So I got up and was dizzy, and
7:44
Speaker 2: next thing I know, the tragedy had happened.
7:47
Speaker 1: And the tragedy that had happened is the matter of
7:51
Speaker 1: this dispute between the Middletons and the State. Now, Ken
7:54
Speaker 1: maintained his innocence in the matter, that this was a
7:56
Speaker 1: tragic accident at which Kathy visibly upset about the news
8:00
Speaker 1: of this affair, and on her way to the phone
8:02
Speaker 1: to confront your alleged mistress, Kathy was holding the gun
8:07
Speaker 1: in her left hand and accidentally shot herself on the
8:11
Speaker 1: left side of her forehead, splattering blood all over the wall.
8:15
Speaker 1: This version of events is supported by the ballistics and
8:18
Speaker 1: all the other physical evidence. And then there's what the
8:21
Speaker 1: state wants everyone to believe. Right, bear with me, because
8:24
Speaker 1: this is nuts. That Ken had somehow held Kathy up
8:27
Speaker 1: against the wall and shot her in the face, but
8:30
Speaker 1: somehow miraculously was able to be completely clear of blood
8:36
Speaker 1: spatter or gunshot residue, not a trace on him. And
8:40
Speaker 1: we'll get into all of that a bit later. So
8:42
Speaker 1: back to this terrible tragedy. A gunshot rang out and
8:47
Speaker 1: Kathy was on the floor in a pool of blood.
8:49
Speaker 1: What a nightmare, Ken, What happened next?
8:52
Speaker 2: I'd seen her on the floor and grabbed a gun
8:55
Speaker 2: and put it on the table and call nine one
8:57
Speaker 2: one immediately. I asked for the paramedics, and I'd called
9:01
Speaker 2: him three times within a short period of time wanted
9:04
Speaker 2: to know who the paramedics was. And the third time,
9:08
Speaker 2: the operator told me to go outside, that the paramedics
9:12
Speaker 2: were there. And I looked out, and I told her
9:16
Speaker 2: that I'd looked out and there wasn't nobody out there,
9:18
Speaker 2: and she convinced me to go outside that they were there.
9:21
Speaker 2: So I went out and the first thing I've seen
9:24
Speaker 2: was a copp hole behind the walls, screaming at me
9:28
Speaker 2: to get my hands in the air and turn around
9:30
Speaker 2: with my back to him at his gun pointed at me,
9:34
Speaker 2: and I'd done as he said, and he'd come up
9:37
Speaker 2: behind me and search me. I wanted to know where
9:40
Speaker 2: the paramedics were, and he ordered me back in the house,
9:45
Speaker 2: and we went back in the house and he went
9:47
Speaker 2: in and checked on my wife, and I was just hysterical,
9:51
Speaker 2: and I guess I was down on my knees and
9:53
Speaker 2: he jerked me up, and when he'd done that fast,
9:56
Speaker 2: I become dizzy, real dizzy. Oh No, I was ain't
10:00
Speaker 2: a blackout, So I said it was amb six and
10:03
Speaker 2: I went down the hall to the bathroom and I
10:06
Speaker 2: went in and spliced water on my face, and then
10:09
Speaker 2: he took me outside and I had a real bad
10:11
Speaker 2: hurting in my left arm and chased.
10:14
Speaker 1: Now, when the paramedics arrived, they determined Ken, that you
10:18
Speaker 1: had been hyperventilating, complaining of chess plains and blood pressure
10:21
Speaker 1: was going crazy, and they convinced you to go to
10:25
Speaker 1: the hospital for an examination.
10:27
Speaker 2: They taught me to go into the hospital, and they
10:29
Speaker 2: took me to three medical hospitals, and then on the
10:32
Speaker 2: third one, I was forced in a mental hospital till
10:35
Speaker 2: the next day.
10:36
Speaker 1: They later tried to say that you had checked into
10:38
Speaker 1: that mental hospital to try to get away with murder
10:41
Speaker 1: claim by claiming insanity defense. But we're getting ahead of
10:43
Speaker 1: ourselves here, and let's not leave out the fact that
10:47
Speaker 1: your dad was in and out of consciousness on his
10:49
Speaker 1: way to the hospital. And they took an EKG at
10:51
Speaker 1: the hospital and it showed that Ken, that you had
10:53
Speaker 1: recently suffered from a heart attack. Now here's another thing
10:57
Speaker 1: that I have trouble understanding processing. The officers didn't write
11:03
Speaker 1: their statements until days later, and they did it by memory, right,
11:08
Speaker 1: And these statements that were taken from a hysterical man
11:11
Speaker 1: who had to be rushed to the hospital talking about you,
11:13
Speaker 1: of course, Ken, who was just trying to help figure
11:15
Speaker 1: out what happened, so the officers didn't bother to write
11:18
Speaker 1: it down.
11:19
Speaker 3: There were a couple police reports that were handwritten out
11:24
Speaker 3: that day, but the official reports that I have reviewed
11:29
Speaker 3: were written on I believe it was February twenty first,
11:35
Speaker 3: and Kathy died on the twelve.
11:37
Speaker 1: Now, in researching this case, I saw in the police
11:41
Speaker 1: reports where they kept on documenting instances in which Ken
11:44
Speaker 1: allegedly had done something with his hands, like he mentioned
11:48
Speaker 1: splashing water on its face, right. They wrote down another
11:51
Speaker 1: instance where they said he wiped his hands on a door,
11:55
Speaker 1: touched dirt in a potted plant, and the implication is
11:59
Speaker 1: that Ken was trying to somehow wash away the gunshot residue.
12:04
Speaker 3: There's a picture the Independence News Examiner paper took of
12:08
Speaker 3: my father out there on the front stoop, leaning over
12:13
Speaker 3: that powder plant, sobbing, and the two paramedics are consoling him.
12:20
Speaker 3: It's very obvious that he was in a state of
12:24
Speaker 3: shock in hysteria. First of all, you already claimed he
12:28
Speaker 3: was washing his hands when he splashed water on his face.
12:32
Speaker 3: It's crazy to think that somebody's trying to wash their
12:34
Speaker 3: hands in the dirt. Unless you've been involved in something
12:37
Speaker 3: like this, how would you even know what a gunshot
12:40
Speaker 3: residue test is, especially in nineteen ninety Jayson, maybe today
12:45
Speaker 3: with crime shows and things, but he didn't know what
12:48
Speaker 3: they were testing him for.
12:50
Speaker 2: They took my shirt, under shirt and clothes and shoes
12:53
Speaker 2: and all, and they did this and then come back negative.
12:57
Speaker 2: No blood or nothing on my lone sleeve shirt. And
13:00
Speaker 2: that picture in the front high of a house when
13:02
Speaker 2: I was over the stuke shows the long sleeve shirt
13:05
Speaker 2: down to my risk, there was no blood, no gunshots.
13:09
Speaker 1: Right, and as the evidence clearly shows, she was shot
13:12
Speaker 1: from very close range, less than a foot away, and
13:16
Speaker 1: there's no way you can do that without being covered
13:18
Speaker 1: in blood and gunshot residue. But you weren't because you
13:23
Speaker 1: didn't kill her. And Kathy's gunshot residue tests would likely
13:27
Speaker 1: have corroborated Ken's version of events and shown that this
13:30
Speaker 1: was a tragic accident, not a homicide. Cliff, can you
13:34
Speaker 1: explain what I mean by that.
13:36
Speaker 3: They swabbed both of her hands, that they four gunshot residue,
13:42
Speaker 3: and the prime document that they fill out shows that
13:46
Speaker 3: they swabbed both hands, right and left hands, and it
13:50
Speaker 3: shows they used two different kids to do that, one
13:54
Speaker 3: for the right hand and one for the left hand. Well,
13:57
Speaker 3: the next day when the corner did the autas, the
14:01
Speaker 3: corner ruled it a homicide based on what the police
14:04
Speaker 3: were telling him unless other information come forward to prove otherwise.
14:11
Speaker 3: Now that gunshot residue was important information, and took them
14:17
Speaker 3: nine days to turn the gunshot residue samples into the
14:22
Speaker 3: crime lab. And when they turned them into the crime lab,
14:26
Speaker 3: the document was altered to show only one kit and
14:32
Speaker 3: the left hand was wided out to show they only
14:35
Speaker 3: tested the right hand when she was shot from eight
14:39
Speaker 3: to twelve inches away on the left side of her head.
14:42
Speaker 1: You really have to see this to believe it. And
14:45
Speaker 1: we're going to link pictures of this in our episode Child,
14:48
Speaker 1: because I'm looking at it right now and I still
14:51
Speaker 1: can't believe that I'm actually looking at what I'm looking at. Okay, So,
14:56
Speaker 1: the test of Kathy's left hand, the one in which
15:00
Speaker 1: she would have held the gun in order to shoot herself,
15:02
Speaker 1: the test of that hand disappeared or it wasn't tested
15:08
Speaker 1: on purpose. There's only two possibilities. The crime lab document
15:13
Speaker 1: that should have been for both of her hands was
15:17
Speaker 1: altered with whiteout. Okay, remember white out, it's unreal. This
15:22
Speaker 1: is like to show that only her right hand had
15:25
Speaker 1: been tested. And this is reinforced when you compare it
15:28
Speaker 1: with the GSR test document for Ken in the same
15:31
Speaker 1: handwriting okay, get ready for this, it states quote number
15:36
Speaker 1: of articles two GSR test kits for right and left hands.
15:41
Speaker 1: End quote. But then on Kathy's GSR test document, in
15:45
Speaker 1: the same exact handwriting, it says, quote number of articles
15:50
Speaker 1: and whatever was there is white it out, right, just
15:54
Speaker 1: white it out, and the number one is in its place.
15:59
Speaker 1: And then it reads quote gunshot residue for right and
16:02
Speaker 1: quote followed by another gob of whiteout and the word hand.
16:07
Speaker 1: So in all likelihood the white out is simply covering
16:10
Speaker 1: the words and left, as it would have been in
16:13
Speaker 1: a request for testing of both right and left hands,
16:17
Speaker 1: where now only one test for her right hand exists
16:22
Speaker 1: and the one that really matters the left hand is missing.
16:27
Speaker 2: Later on, after us convicted years later, we took their
16:30
Speaker 2: deposition and Jeff Rogers that wrote the report out he
16:35
Speaker 2: swore that he didn't put the white out on that
16:37
Speaker 2: because his on green paper, and he said that he
16:41
Speaker 2: wouldn't have whited it out. He'd just filled out a
16:43
Speaker 2: new report and we got Dave Link, the one that
16:46
Speaker 2: took it to the lab. Nine days later, he swore
16:49
Speaker 2: up and down that he didn't do it. And he
16:52
Speaker 2: was asked, did he always take both hands of a
16:56
Speaker 2: close gunshot residue test? He said yeah, My attorney asking
17:01
Speaker 2: years later in ninety seven, always, and he said absolutely.
17:06
Speaker 1: They whited out the left hand, and they whited out
17:09
Speaker 1: the number of articles. I mean, somebody literally just took
17:13
Speaker 1: white out.
17:14
Speaker 3: Yeah, the left hand. If it would have come back positive,
17:18
Speaker 3: it would have been powerful evidence that she accidentally fired
17:22
Speaker 3: the gun herself. Our attorney told us that if that
17:27
Speaker 3: left hand come back positive, the coroner would have changed
17:30
Speaker 3: his findings and they wouldn't have had a case against
17:33
Speaker 3: my father. It all would have ended right there.
17:48
Speaker 1: This episode is underwritten by AIG, a leading global insurance company.
17:52
Speaker 1: AIG is committed to corporate social responsibility and is making
17:56
Speaker 1: a positive difference in the lives of its employees and
17:59
Speaker 1: in the communities where we work and live. In light
18:01
Speaker 1: of the compelling need for pro bono legal assistance, and
18:04
Speaker 1: in recognition of AIG's commitment to criminal and social justice reform.
18:09
Speaker 1: The AIG Pro Bono program provides free legal services and
18:13
Speaker 1: other support to underrepresented communities and individuals. Now, this is
18:23
Speaker 1: a small town police department. My understanding is there hadn't
18:26
Speaker 1: been a homicide investigation in almost a decade. These people
18:30
Speaker 1: were not up to the task, and they started making
18:33
Speaker 1: mistakes more or less as soon as they walked into
18:36
Speaker 1: the house.
18:36
Speaker 3: Yes, yes, And like so many other cases, I believe
18:39
Speaker 3: the police immediately focused on my father and had tunnel
18:44
Speaker 3: vision as they began to investigate this case. I'll start
18:49
Speaker 3: with the fact that they took photos that day of
18:53
Speaker 3: the alleged crime scene, and the photos allegedly did not
18:59
Speaker 3: come out, And after Kathy's body was removed, they went
19:06
Speaker 3: back and restaged the crime scene and took new photos.
19:11
Speaker 3: By the time they'd done this, my stepmother had already
19:14
Speaker 3: been taken out of the house, and the fire department
19:17
Speaker 3: had actually been called in to cut sheet rock out
19:21
Speaker 3: of the wall with blood spatter and things, And so
19:24
Speaker 3: the new pictures they took the sheet rock was already
19:28
Speaker 3: cut out, and they had drawn a diagram of the
19:32
Speaker 3: dining room where this happened, and the diagram didn't match
19:38
Speaker 3: the pictures. They had moved the dining room table all
19:41
Speaker 3: the way up against the wall to make it appear
19:45
Speaker 3: that there was a bigger area there when she was shot.
19:49
Speaker 1: Right to make room for this alleged struggle that never
19:52
Speaker 1: even happened. When she went to use the phone.
19:55
Speaker 3: In every picture they took of this small dining room,
19:58
Speaker 3: they missed that phone Jason by a quarter of an inch.
20:02
Speaker 3: Another mistake that was made that day at the crime scene.
20:07
Speaker 3: According to the police reports, they unclothed my stepmother naked
20:13
Speaker 3: right there on the dining room floor and folded her
20:17
Speaker 3: clothes up and put them in bags and transported her
20:21
Speaker 3: to the morgue naked for them to unclothe her and
20:26
Speaker 3: alter any evidence that could have been gathered from that. Now,
20:30
Speaker 3: that goes against every protocol of any police department anywhere.
20:35
Speaker 2: Best I remember, the medical examiner said she'd come in
20:39
Speaker 2: fully clothing, So what they actually done was recloser the
20:43
Speaker 2: poor the medical examiner examiner.
20:46
Speaker 3: That's exactly right. What the medical examiner reported didn't match
20:51
Speaker 3: the police reports. They unclothed her and at some point
20:55
Speaker 3: reclothed her.
20:56
Speaker 1: So they mishandled the scene, and the evidence altered or disappeared,
21:00
Speaker 1: the key gunshot resident test of Kathy's left hand, And
21:03
Speaker 1: then they arrested you, and eventually you got out on bond,
21:07
Speaker 1: and even that was kind of odd.
21:09
Speaker 2: Right, Prosecutor Peters agreed to ten thousand and he put
21:14
Speaker 2: a restriction on my bond that says not to dispose
21:19
Speaker 2: of any martal or jointly held property without the permission
21:23
Speaker 2: of the prosecute attorney in the probate court.
21:26
Speaker 3: You got the State of Missouri coming after you with
21:29
Speaker 3: unlimited resources, and your life and liberty is on the line.
21:34
Speaker 3: My dad should have had access to every dime he
21:38
Speaker 3: had to save his life.
21:40
Speaker 1: Right, And this also gets us to a crazy part
21:43
Speaker 1: of this whole story. So while you're facing Prosecutor Patrick
21:47
Speaker 1: Peters in this criminal trial against you, there's also a
21:50
Speaker 1: wrongful death civil suit filed against you by Kathy's sisters.
21:54
Speaker 1: And get this, Prosecutor Peters's father is part of the
22:02
Speaker 1: law firm behind that civil suit, so stands to benefit
22:08
Speaker 1: from the outcome. And of course you didn't even know
22:11
Speaker 1: that at the time.
22:12
Speaker 2: They had concealed it and they had said that he
22:15
Speaker 2: convinced them and he would convict me, and the law
22:19
Speaker 2: firm would help keep me in prison.
22:21
Speaker 3: I'd like to point out that the Blue Springs Police
22:25
Speaker 3: Department city attorney for Blue Springs was also in the
22:30
Speaker 3: same law firm as the prosecutor's father, So you had
22:33
Speaker 3: a triangle of a conflict of interest here that was
22:38
Speaker 3: hidden from everyone.
22:39
Speaker 1: Every time we do an episode, I always think I've
22:41
Speaker 1: heard it all, I could say, even after doing two
22:43
Speaker 1: hundred and fifty episodes of this show, I've never heard
22:46
Speaker 1: of that the prosecutor refers the family of the woman
22:51
Speaker 1: who died to his own father's law firm. Now everybody's compromised, right,
22:57
Speaker 1: because now there's a whole nother for them to want
23:00
Speaker 1: to convict you of this crime so that everybody can
23:04
Speaker 1: make money.
23:05
Speaker 3: And they ultimately got a one point three five million
23:08
Speaker 3: dollar default wrongful debt judgment against my father.
23:12
Speaker 1: So now there's been this litany of errors, misconduct, malfeasans
23:17
Speaker 1: straight up insanity. I'm going to call it what it is,
23:20
Speaker 1: it's insanity. And now finally it's time for the trial.
23:24
Speaker 1: It's February nineteen ninety one, a year after the incident.
23:28
Speaker 3: Basically the cross of the state's case against my dad
23:32
Speaker 3: was that he held her up against the wall and
23:35
Speaker 3: shot her from a foot away from her face.
23:38
Speaker 2: The prosecutor put on his so called experts saying that
23:42
Speaker 2: she was two inches away from the wall, and that
23:46
Speaker 2: I had my arm across her chest and held her
23:49
Speaker 2: up against the wall and shot her and blood to experts.
23:52
Speaker 2: Admitted that he had a week's training, and he's self taught.
23:56
Speaker 3: He had taken a forty hour course on blood spatter evidence.
24:01
Speaker 3: That's all the training that their expert had.
24:04
Speaker 1: These quote unquote experts have a forty hour training course
24:08
Speaker 1: that doesn't actually teach you anything except how to act
24:10
Speaker 1: like you know what you're talking about in court pretty much, right.
24:13
Speaker 2: But he didn't tell that there was no gun shot
24:16
Speaker 2: residue on my hands or long sleeve shirt, or blood
24:19
Speaker 2: or nothing else on my long sleeve shirt.
24:21
Speaker 3: And they said he put a bootprint on the wall,
24:25
Speaker 3: which was false. It had been there weeks prior, and
24:29
Speaker 3: in order for that bootprint to get there, his leg
24:32
Speaker 3: would have had to have bent backwards at the knee
24:35
Speaker 3: and hyper extended in order to put that bootprint there.
24:39
Speaker 1: Right, you have this bootprint that was physically impossible to
24:42
Speaker 1: have been made in this scenario. But you know what,
24:46
Speaker 1: none of it freaking matters why it could have produced
24:50
Speaker 1: any other made up nonsense to try to support their theory.
24:53
Speaker 1: But without Ken being covered in blood and GSR, it's
24:58
Speaker 1: all pure drivel. Blood in GSR has to be present
25:02
Speaker 1: for us to even entertain these bullshit footprints. Not to
25:06
Speaker 1: mention the analysis from Bob Tressel, the renowned forensic crime investigator,
25:11
Speaker 1: that further clarifies just how bogus the state's theory was.
25:15
Speaker 1: We'll get into all of that a bit later, but
25:17
Speaker 1: unfortunately Ken didn't benefit from Bob Trestle's testimony or any
25:20
Speaker 1: of this being pointed out at the original trial. Ken's attorney,
25:24
Speaker 1: Bob Duncan couldn't be bothered to do an investigation, not
25:29
Speaker 1: even a thorough examination of the gun. Cliff, what else
25:33
Speaker 1: did the state present?
25:34
Speaker 3: They also put on evidence that the gun would take
25:38
Speaker 3: ten pounds of pressure I believe it was without the hammer,
25:41
Speaker 3: pulled three and a half pounds with the hammer pooled. Well,
25:45
Speaker 3: the gun needed to be examined in the exact state
25:48
Speaker 3: it was found in, and it wasn't. They had dismantled
25:51
Speaker 3: it and put it back together before testing it. So
25:54
Speaker 3: if there was any problems with the gun. They fixed
25:57
Speaker 3: it when they put it back together. Bob Duncan was
26:00
Speaker 3: asleep at the wheel, if you will, and had none
26:03
Speaker 3: of the physical evidence examined by an expert, and hadn't
26:07
Speaker 3: interviewed any witnesses. He was totally unprepared for the case
26:11
Speaker 3: to even go to trial.
26:12
Speaker 1: Did I hear this correctly? That he didn't even make
26:15
Speaker 1: an opening statement?
26:16
Speaker 3: He reserved one, and he forgot to give it.
26:19
Speaker 2: I couldn't get him to do nothing. They didn't see
26:21
Speaker 2: nothing about the gun shot residue, not one word of
26:25
Speaker 2: them with lighting that document out. They never seen it.
26:28
Speaker 3: Without a proper defense, you're out there, mercy.
26:32
Speaker 2: Years later, in ninety five and ninety six, he gave
26:36
Speaker 2: me three affi davids of what he had failed to do.
26:40
Speaker 2: This is my trial attorney, Robert Duncan. I did not
26:43
Speaker 2: have any physical evidence in the case examined by a
26:46
Speaker 2: forensic expert, other than speak to a gun expert about
26:50
Speaker 2: the gun. But I did not have him examine the gun.
26:54
Speaker 2: And then he gave another affidavit and he said, father,
26:58
Speaker 2: I believe my ability to defend mister Middleton was impaired
27:02
Speaker 2: because I wasn't given information of the connection between the
27:06
Speaker 2: police department, the prosecutor, and the civil claims against mister
27:11
Speaker 2: Middleton seeking a substantial monetary recovery. This information, if for
27:17
Speaker 2: no other purpose, would have been admissible as impeachment evidence
27:21
Speaker 2: showing the bias of the police and some of the witnesses.
27:26
Speaker 1: So Kathy's sister, Mildred Anderson gave false testimony for the
27:29
Speaker 1: prosecution to show motive that Ken had secret assets in
27:32
Speaker 1: Arkansas that no one in the family was aware of.
27:35
Speaker 1: And we know this is just another lie because Mildred
27:38
Speaker 1: Anderson later said she admitted that she and the rest
27:40
Speaker 1: of the family actually did know about all of the
27:43
Speaker 1: assets before Kathy's death, which is a clear cut example of.
27:47
Speaker 2: Perjury, which in Missouri in a murder case, that's a
27:51
Speaker 2: class A felony. Intact, Peters colluded with her because Peter's
27:55
Speaker 2: put it in the question would be simple for her, says, quote,
28:00
Speaker 2: quite a bit of holdings down in arkansall that you
28:04
Speaker 2: and your family, including your sister, were unaware of. She says, yes.
28:10
Speaker 3: It should also be mentioned, Jason that after the sister
28:14
Speaker 3: testified to that, the prosecutor instructed the police department to
28:20
Speaker 3: release eighteen seven hundred dollars worth of jewelry that was
28:24
Speaker 3: confiscated out of the house to the witness, So not
28:28
Speaker 3: only was it perjury, she was rewarded with eighteen seven
28:32
Speaker 3: hundred dollars worth of jewelry.
28:33
Speaker 2: And then eight years later, on March at twenty fifth
28:37
Speaker 2: to ninety nine, Mildred Anderson gave foreign testimony entered Arkansas
28:42
Speaker 2: lawsuit against Kenneth Middleton which show she clearly perjured herself
28:46
Speaker 2: in nineteen ninety one and her sister collaborated it.
28:50
Speaker 1: Wow, okay, So I got to ask about what must
28:54
Speaker 1: have been the worst day all of your life, which
28:57
Speaker 1: of course is the day that the jury went out
29:00
Speaker 1: for a freaking hour and came back in and sentenced
29:04
Speaker 1: you to life without parole plus two hundred years.
29:08
Speaker 2: Well, I don't know how to describe it, but I
29:11
Speaker 2: was in shock and until this out and I never
29:14
Speaker 2: spent a day in jail in my life, and take
29:16
Speaker 2: you from being free in the country and working all
29:20
Speaker 2: my life to tow you in a cage. It's unbelievable.
29:25
Speaker 2: I can't explain.
29:26
Speaker 3: Growing up as a kid, I would have never in
29:30
Speaker 3: a million years dream that what happened to my dad
29:32
Speaker 3: would have happened to him. He just was, you know,
29:37
Speaker 3: a great father's He's been more of a father to
29:41
Speaker 3: me behind bars than most kids could ask for from
29:46
Speaker 3: a father on the street. And it was devastating to
29:51
Speaker 3: our whole family.
30:09
Speaker 1: So now we move to the post conviction and there's
30:11
Speaker 1: still more insanity to come. So it's nineteen ninety two
30:14
Speaker 1: and your appellate attorney is a man named Gerald Handley,
30:17
Speaker 1: who was recommended by Bob Duncan. Well, that's not a
30:20
Speaker 1: good sign. And one of the first things we come
30:23
Speaker 1: to is that what's called the twenty nine to fifteen appeal, Cliff,
30:26
Speaker 1: can you explain that to us and get us started here?
30:29
Speaker 3: After trial, the first appeal that you have in the
30:33
Speaker 3: state of Missouri is your post conviction twenty nine to
30:36
Speaker 3: fifteen twenty nine point fifteen is an appeal that's filed
30:40
Speaker 3: back in front of the trial judge to evaluate your
30:43
Speaker 3: trial to make sure that you had a fair trial.
30:46
Speaker 3: That's where you bring your ineffective assistance of council issues
30:50
Speaker 3: if you have any. So you have ninety days to
30:53
Speaker 3: do that in Missouri or you don't get that hearing
30:56
Speaker 3: on ineffective assistance a council, and that's right back in
31:00
Speaker 3: front of the very trial judge that just set on
31:02
Speaker 3: your trial and convicted you. So you got a high
31:06
Speaker 3: burden to meet there, right, you got to prove that
31:08
Speaker 3: you had an unfair trial and your attorney didn't do
31:11
Speaker 3: his job. Our appella attorney at that time had a
31:15
Speaker 3: ninety day window to file an amended petition for Dad
31:19
Speaker 3: and get all of his issues in the appeal. He
31:23
Speaker 3: never met with my dad, never went over any of
31:26
Speaker 3: the issues, which the law requires him to do. And
31:29
Speaker 3: at the last minute, before the ninety days was up
31:32
Speaker 3: and you could get no extensions, my dad gets a
31:36
Speaker 3: letter from his attorney telling him to sign this affidavit
31:41
Speaker 3: that all of his issues are in the amended petition,
31:44
Speaker 3: even though my dad had never seen the petition. And
31:47
Speaker 3: if you didn't sign that affidavit and have it with
31:50
Speaker 3: your amended petition when you filed it, you were out.
31:53
Speaker 3: You couldn't even get a twenty nine to fifteen hearing.
31:56
Speaker 3: So my dad had to sign it and at least
31:59
Speaker 3: hope that his attorney was gonna put all of his
32:02
Speaker 3: issues in it. Well, we had to do a lot
32:04
Speaker 3: of fanagulon to get that affidavit to him before Monday,
32:09
Speaker 3: and when we got it to him on Monday, Gerald
32:11
Speaker 3: Hanley filed a three page motion on my dad's life,
32:16
Speaker 3: procedurally defaulting all of his issues on appeal. So because
32:21
Speaker 3: that attorney procedurally defaulted all of his issues, the facts
32:25
Speaker 3: and the merits of his case were never heard.
32:28
Speaker 2: And when we went to the evidentiary hearing, I had
32:31
Speaker 2: nine witnesses out in the hallway. When I got to
32:35
Speaker 2: the courthouse, the witnesses that knew Pat Peters through trial
32:40
Speaker 2: seen Pat Peters talking to the uniform guard, and the
32:43
Speaker 2: guard took a post at the door and wouldn't let
32:47
Speaker 2: none of my witnesses in the courtroom. I didn't know
32:50
Speaker 2: what happened to him until I got back to the
32:52
Speaker 2: jail and made some calls. Peters called Duncan to the stand,
32:57
Speaker 2: and Duncan testified this base answered Peter's question, said, I
33:02
Speaker 2: checked himself into the hospital. Well, I was shake him
33:04
Speaker 2: the head. It was a lie because I was forced
33:06
Speaker 2: in that mental hospital.
33:08
Speaker 3: One of the records that Bob Duncan didn't get was
33:10
Speaker 3: the medical records from the mental ward. The prosecution's theory
33:14
Speaker 3: was that it was trial strategy for Duncan to not
33:18
Speaker 3: get the medical records because the prosecution had a witness
33:23
Speaker 3: that would have said Dad told him, if you want
33:26
Speaker 3: to get away with murder, you check yourself into a
33:29
Speaker 3: mental ward after you do it. So Judgement Sina agreed
33:32
Speaker 3: and said, yeah, that's not in effective assistance and counsel
33:36
Speaker 3: he didn't get them records because he voluntarily checked hisself
33:40
Speaker 3: into a mental ward. Well that wasn't true, but Gerald
33:43
Speaker 3: Hanley never got the records either, so the judge never knew.
33:48
Speaker 1: This, and so the hearing ended and no witness is recalled,
33:51
Speaker 1: no expert testimony was given, and no evidence was presented
33:54
Speaker 1: to refute the state. Gerald Hanley ended up being, and
33:59
Speaker 1: this is hard to believe, but he ended up being
34:01
Speaker 1: just as disinterested as Bob Duncan was before and so predictably,
34:06
Speaker 1: Judge Messina rejected your twenty nine to fifteen appeal. It's insane.
34:11
Speaker 1: It's not because the appeal wasn't valid. It's because the
34:13
Speaker 1: lawyers didn't do their freaking jobs. And according to the
34:16
Speaker 1: law at that time, the trial court's jurisdiction over your
34:19
Speaker 1: case ended, so Cliff, eventually you all get a new attorney.
34:23
Speaker 1: Jonathan Lawrence, And there's a new law that gave you
34:27
Speaker 1: and your dad some hope, or maybe false hopes, but
34:30
Speaker 1: some positive things came about nonetheless, So can you tell
34:34
Speaker 1: us what happened next?
34:35
Speaker 3: In two thousand and one, a law come down that
34:38
Speaker 3: give courts the opportunity to reevaluate cases. If you could
34:44
Speaker 3: prove your twenty nine to fifteen attorney Gerald Hanley abandoned
34:48
Speaker 3: you on your twenty nine to fifteen the trial courts
34:52
Speaker 3: could look at your case again. So my dad had
34:55
Speaker 3: done all this research on this and had done everything,
34:59
Speaker 3: and we get to Jonathan Lawrence, and Jonathan Lawrence at
35:04
Speaker 3: first didn't think we could do it, but once he
35:06
Speaker 3: read the case law, he said, yeah, I believe we can.
35:08
Speaker 3: So Jonathan Lawrence got involved and filed an eighty one
35:13
Speaker 3: page motion and convinced Judge Messina, who denied us back
35:18
Speaker 3: in ninety two, to reopened my father's case. And she
35:22
Speaker 3: held a two day evidentiary hearing in two thousand and four.
35:27
Speaker 1: And you finally have an attorney here who can do
35:29
Speaker 1: justice in your father's case, who gathered and presented some
35:33
Speaker 1: powerful expert testimony, including from investigator Chuck Gay who had
35:37
Speaker 1: been at the courthouse for the nineteen ninety two hearing,
35:41
Speaker 1: but had been prevented from entering the courtroom. Now he
35:45
Speaker 1: finally had a chance to speak.
35:46
Speaker 3: Chuck Gay was a twenty five year police officer in
35:49
Speaker 3: Long Beach, California. He had actually talked to the FBI
35:53
Speaker 3: in different courses on crime scene investigation, and he testified
35:59
Speaker 3: to the crime scene photos not coming out. You can't
36:04
Speaker 3: restage a crime scene. That's absurd, unclothing her at the scene,
36:10
Speaker 3: all of these things. Crime scene preservation is what Chuck
36:14
Speaker 3: Gay testified to and how improper it was. The gunshot
36:18
Speaker 3: residue was a real big one with him. We found
36:21
Speaker 3: out a little more about the green document. See, you
36:24
Speaker 3: have to realize before trial, when they give us that
36:28
Speaker 3: green document, it was just a copy, so it was
36:31
Speaker 3: on white paper. We really didn't know what it said underneath.
36:36
Speaker 3: But we knew something was wrong because the left hand
36:39
Speaker 3: was missing. And when our investigator after the trial went
36:43
Speaker 3: to go investigate that, the crime lab said, we didn't
36:48
Speaker 3: do that. They said, these are our documents. We use greenout.
36:53
Speaker 3: So they were pointing the finger at the police. They
36:56
Speaker 3: knew that that wasn't right. There was no in this
37:00
Speaker 3: Jules or anything that would indicate who did it or
37:04
Speaker 3: why they did it. Myself and our attorney in twenty
37:08
Speaker 3: sixteen went to the crime lab and got this document,
37:13
Speaker 3: and him and I both held it up to the
37:15
Speaker 3: light and you could see underneath the wide out on
37:19
Speaker 3: a number of articles, and then underneath the other wide
37:22
Speaker 3: out off to the side, you could see the word left.
37:26
Speaker 3: And he give us an affidavit that that was the
37:30
Speaker 3: worst alteration of official documents he had ever seen in
37:33
Speaker 3: thirty two years I believe of practicing law.
37:36
Speaker 1: And you also had testimony from a ballistics expert proving
37:41
Speaker 1: that the scenario presented by the state was physically impossible.
37:45
Speaker 1: And this guy was no slouch. He had overseen over
37:49
Speaker 1: eight hundred investigations, and importantly he had been an expert
37:53
Speaker 1: for both prosecution and defense. And of course, the guy
37:57
Speaker 1: I'm referring to is Bob Tressel.
38:00
Speaker 4: I'm Bob Tressel. I'm a forensic crime scene investigator. When
38:05
Speaker 4: I first looked at the case, the bullet was found
38:07
Speaker 4: across the room after it had struck the doorframe, ricocheted
38:12
Speaker 4: up to the ceiling and overtoo, on the other side
38:14
Speaker 4: of the dining room. So we began looking at the
38:17
Speaker 4: angles that the bullet took in striking the doorframe exiting
38:22
Speaker 4: the doorframe. Their lab came up with what we call
38:26
Speaker 4: a muzzle to target, or the barrel of the whip
38:28
Speaker 4: and having to be approximately eight inches from her face
38:31
Speaker 4: where the bullet entered. So then we started looking at
38:34
Speaker 4: the gun. The gun's a three fifty seven mangnum. You
38:37
Speaker 4: get the length of the barrel, chamber and the grip area,
38:42
Speaker 4: so although the barrel's eight inches from her face, the
38:45
Speaker 4: gun is almost fourteen inches and total length away from
38:49
Speaker 4: her face. And then we started looking at the wounds themselves.
38:54
Speaker 4: Pretty well, a straight shot gunshot when with little deviation
38:58
Speaker 4: on the upward or downward lane, and with a bullet
39:01
Speaker 4: not deviating very much right or left, the shot had
39:05
Speaker 4: come from directly in front of her the upper trajectory.
39:08
Speaker 4: Because we know where it strikes on the wall and
39:11
Speaker 4: then rick shaves off, we know it's going upward. So
39:14
Speaker 4: she has to have her upper body bent over or
39:17
Speaker 4: her head bent over towards the table in order to
39:20
Speaker 4: receive that gunshot one, and there's only about two feet
39:23
Speaker 4: distance between the table and the walls, and so you've
39:27
Speaker 4: got to get two people almost directly in front of
39:30
Speaker 4: each other. But the gun's got to be held way
39:33
Speaker 4: down low, and in order to get the distances that
39:37
Speaker 4: we saw, the gun has got to be almost on
39:40
Speaker 4: top of the table. So where can the shooter be
39:42
Speaker 4: at that point when we finally did all the calculations
39:46
Speaker 4: in order for someone to be directly in front of her,
39:49
Speaker 4: if a shooter was the one that fired this weapon,
39:51
Speaker 4: he would have to be under the table. That makes
39:55
Speaker 4: no sense whatsoever. There's no direct for rents evidence either
40:01
Speaker 4: by blood tissue, gunshot residue, things that they make sure
40:05
Speaker 4: that indicate that Middleton fired this gun killing his wife.
40:11
Speaker 1: And so all of this powerful expert testimony has been heard,
40:14
Speaker 1: and the top it all off, there was one more
40:16
Speaker 1: witness that testified on your father's behalf, the former governor
40:20
Speaker 1: of Missouri. Yes, you heard that correctly. The former governor
40:24
Speaker 1: of Missouri, Joseph P. Teesdale, testified on ken'sby had and
40:29
Speaker 1: he had extensive trial experience as an assistant US attorney,
40:33
Speaker 1: prosecuting attorney, and as a trial lawyer. And he testified
40:37
Speaker 1: to the quote suspect conduct of the prosecutors and the
40:41
Speaker 1: quote ineffective performance of the Defense Council, and at the
40:45
Speaker 1: end of the testimony, former Governor Teesdale was asked what
40:49
Speaker 1: he would have done if this case had been presented
40:51
Speaker 1: to him in his capacity as governor, and he replied
40:55
Speaker 1: that this was the worst case of constitutional violations that
40:58
Speaker 1: he had ever witnessed in forty one years of practicing law,
41:02
Speaker 1: and that he, and this is a direct quote, would
41:06
Speaker 1: clearly have pardoned mister Middleton of all wrongdoing end quote.
41:12
Speaker 2: That's a strong statement.
41:15
Speaker 3: He had gotten familiar with Dad's case a few years before,
41:19
Speaker 3: and I reached out to him when we got this
41:22
Speaker 3: evidenciary hearing and asked him what his costs would be
41:27
Speaker 3: for him to come testify, and he said, I don't
41:30
Speaker 3: want any money. I want a steak dinner when your
41:33
Speaker 3: dad gets out of there. And it meant a lot
41:36
Speaker 3: to me.
41:37
Speaker 1: So, finally, this information that you've been trying to get
41:40
Speaker 1: heard for so many years, the ineffective counsel, the prosecutorial
41:43
Speaker 1: misconduct and complex of interest of botched investigation and altered reports,
41:48
Speaker 1: You're finally able to get that before the judge, and
41:51
Speaker 1: even a more conservative judge, Judge Messina, could not deny
41:55
Speaker 1: the merits of Kent's case.
41:57
Speaker 3: So this was all powerful evidence that the journey ever heard.
42:01
Speaker 3: After all this evidence was put forward, Judge Messina took
42:04
Speaker 3: it under advisement and would not rule on the case
42:07
Speaker 3: for eleven more months. Two weeks after the hearing was over,
42:13
Speaker 3: the prosecutors come to my dad with an Alford plea.
42:16
Speaker 3: If he would plead to an Alford plea and plead
42:18
Speaker 3: guilty to second degree, he could walk out of prison
42:22
Speaker 3: a free man. But even though all of his appeals
42:26
Speaker 3: were exhausted and we were setting in front of very
42:30
Speaker 3: conservative judge, my father refused the Offord plea. For him
42:35
Speaker 3: to turn that down with all appeals exhausted, that speaks
42:39
Speaker 3: volumes to his innocence.
42:41
Speaker 1: And on May two thousand and five, Judge Massina came
42:44
Speaker 1: back and vacated Ken's nineteen ninety one conviction and granted
42:47
Speaker 1: him a new trial. So the same judge who denied
42:50
Speaker 1: him in nineteen ninety two overturned his conviction.
42:54
Speaker 3: Judge Messina found eight different points of ineffective assistance and
42:58
Speaker 3: counsel on Bob Duncan. The man had three other capital
43:02
Speaker 3: murder cases overturned at the same time he was handling
43:06
Speaker 3: my dad's case.
43:07
Speaker 1: But just six days after this incredible news, you get
43:10
Speaker 1: a huge punch to the gun.
43:12
Speaker 3: What does the Jackson County Prosecutor's office do. They appeal
43:16
Speaker 3: the decision. So if he would plead guilty after that hearing,
43:20
Speaker 3: they were willing to let him go. But when he
43:23
Speaker 3: stood by his innocence and the trial judge agreed and
43:26
Speaker 3: overturned his conviction, they appealed it. They ruled that Judge
43:30
Speaker 3: Messina didn't have jurisdiction to issue that new trial. They
43:34
Speaker 3: never got to the merits or the facts that she
43:37
Speaker 3: ruled he was wrongfully convicted in violation of his sixth
43:40
Speaker 3: Amendment right to constitutional effective representation. They never got to
43:45
Speaker 3: any of that. They just said she didn't have jurisdiction.
43:48
Speaker 1: And this is now seventeen long years ago. It's crazy.
43:54
Speaker 1: I mean, the court heard the merits of his innocence,
44:00
Speaker 1: he should get a new trial. But outside of the
44:02
Speaker 1: twenty nine to fifteen of Pelle proceedings, it was ruled
44:05
Speaker 1: that the trial court didn't have jurisdiction. So Ken has
44:08
Speaker 1: just been sitting there since two thousand and four, awaiting
44:11
Speaker 1: a miracle or a change in the law so that
44:13
Speaker 1: his case could be heard again, and that finally happened.
44:18
Speaker 1: In August of twenty twenty one, a new law was
44:21
Speaker 1: passed in Missouri that allows a case to go before
44:24
Speaker 1: the trial judge outside of a twenty nine to fifteen hearing.
44:27
Speaker 1: So what that means is that if a prosecutor knows
44:30
Speaker 1: that a man is innocent, as the current prosecutor has
44:32
Speaker 1: implied in Ken's case, they're no longer jurisdictionally barred from
44:36
Speaker 1: doing something about it. Judge Messin has already ruled on this,
44:40
Speaker 1: and she's now an advisor to the current prosecutor, Jean
44:42
Speaker 1: Peters Baker, and Baker already made use of this new
44:46
Speaker 1: law in Kevin Strickland's case in the fall of twenty
44:48
Speaker 1: twenty one, Yet strangely, she is yet to act in
44:51
Speaker 1: Ken's case. It's mystifying and maddening at the same time. So, Cliff,
44:56
Speaker 1: what's going on with all of this? Now?
44:59
Speaker 3: This new Yes, it's about a prosecutor's right to file emotion,
45:04
Speaker 3: but it's also about a court's right to have jurisdiction
45:08
Speaker 3: to consider and hear the matter. Well, now they're given
45:11
Speaker 3: the motion courts jurisdiction, but the prosecutor has to file it.
45:16
Speaker 3: So in our case, we've already proved everything there is
45:20
Speaker 3: with this statute. This statute lays out that upon the
45:24
Speaker 3: filing of such a motion, the court shall have a
45:27
Speaker 3: hearing and issue of findings in facts and conclusions of
45:31
Speaker 3: law on all issues presented. That's exactly what Judge Messina did.
45:36
Speaker 3: So we've already been successful at securing a new trial
45:40
Speaker 3: from my father, but the only thing we didn't have
45:44
Speaker 3: was jurisdiction. Well, now this new law gives the court's jurisdiction,
45:48
Speaker 3: but the prosecutor has been reluctant to file it. So
45:51
Speaker 3: now that this new law has passed, I believe the
45:54
Speaker 3: next steps are for Jane to file emotion conceding jurisdiction.
45:59
Speaker 3: That's it. We don't need anything else from her but
46:01
Speaker 3: a one page motion conceding jurisdiction and allow a court
46:07
Speaker 3: there in Jackson County to get to the merits of
46:10
Speaker 3: the trial. Judge Edith Messina's order overturning my dad's conviction.
46:16
Speaker 1: Cliff, we are audience out there listening. Now, is there
46:19
Speaker 1: something you'd like them to do? What can they do
46:21
Speaker 1: to help to write this horrible injustice?
46:24
Speaker 3: Yes, you'd go to our website at free Hyphenkenmiddleton dot com.
46:30
Speaker 3: There's a wealth of very compelling documents that support everything
46:36
Speaker 3: we spoke about today. If we said it today, rest assured.
46:40
Speaker 3: You can go to our website and find it. And
46:44
Speaker 3: on the homepage right up front, there's a petition asking
46:47
Speaker 3: Jean Peters Baker to abide by her oath and follow
46:51
Speaker 3: the plain language of this new Missouri statute. It's as
46:55
Speaker 3: simple as a one page motion conceding jurisdiction so that
47:00
Speaker 3: my dad can once again prove his innocence and come
47:04
Speaker 3: home to the family that waits him.
47:06
Speaker 1: Right. We'll have that linked in the bio, as well
47:08
Speaker 1: as a link to Silver Creek Entertainment. I believe there's
47:12
Speaker 1: a film on the way about Ken's case, and it
47:15
Speaker 1: can't come soon enough as far as I'm concerned. I'm
47:19
Speaker 1: both dreading and really looking forward to watching it. So
47:22
Speaker 1: check that out, click on the link in the bio.
47:24
Speaker 1: And now, guys, we have a tradition here and it's
47:27
Speaker 1: really my favorite part of the show. It's called closing arguments,
47:30
Speaker 1: and closing arguments is very simple. It works like this.
47:33
Speaker 1: I'm just going to turn my microphone off, kick back
47:35
Speaker 1: in my chair, with my headphones on, you'll turn to
47:37
Speaker 1: volume up a little bit and just listen to anything
47:40
Speaker 1: else you'd like to say, anything at all you have
47:42
Speaker 1: to say to our audience. So Cliff, why don't you
47:45
Speaker 1: go first? And Ken, we'll let you close us out.
47:49
Speaker 3: I'd like to thank you for using your celebrity to
47:52
Speaker 3: bring awareness to wrong for convictions, given a voice to
47:56
Speaker 3: the voiceless. It's an amazing thing what you're doing. It's
48:00
Speaker 3: encouraged other celebrities like Kim Kardashian and John Grisham and
48:04
Speaker 3: Johnny Depp and you know a lot of others to
48:08
Speaker 3: take up the cause and stand up for justice. And
48:11
Speaker 3: so i'd like to thank you again, Jason, and now
48:14
Speaker 3: Ken over to you.
48:16
Speaker 2: Well, what I'd like to say here that all the
48:19
Speaker 2: people that's listening, I would appreciate it more than words
48:24
Speaker 2: can explain. Anything they can do, sign petitions, sign letters
48:29
Speaker 2: to Baker to get her to follow the statue, anything
48:33
Speaker 2: anybody can do to help to clear and get the
48:36
Speaker 2: same justice as Kevin Strickland got. I would appreciate it
48:41
Speaker 2: more than words can say.
48:49
Speaker 1: Thank you for listening to Rafel Conviction. I'd like to
48:52
Speaker 1: thank our production team, Connor Hall, Justin Golden, Jeff Cliburn,
48:55
Speaker 1: and Kevin Wardis, with research by Lyla Robinson. The music
48:59
Speaker 1: in this production was supplied by three time OSCAR nominated
49:02
Speaker 1: composer Jay Ralph. Be sure to follow us on Instagram
49:05
Speaker 1: at Wrongful Conviction, on Facebook at Wrongful Conviction podcast, and
49:10
Speaker 1: on Twitter at wrong Conviction, as well as at Lava
49:13
Speaker 1: for Good. On all three platforms, you can also follow
49:16
Speaker 1: me on both TikTok and Instagram at it's Jason Flam.
49:20
Speaker 1: Wrongful Conviction is the production of Lava for Good Podcasts
49:23
Speaker 1: and association with Signal Company Number one