Defense attorney argues prosecutors elicited false testimony from jailhouse informant
By Luke Nozicka
The Kansas City Star
KANSAS CITY, Mo. (AP) - A southwest Missouri man who was convicted of murdering an elderly woman in 1991 is set to be executed this spring after five criminal trials, a rarity in death penalty cases, an expert said.
Throughout his trials, which unfolded over more than a decade and featured a jailhouse informant and blood spatter evidence, Walter Barton, 64, has maintained his innocence, his attorney said.
The Missouri Supreme Court on Tuesday set a May 19 execution date for Barton, who was convicted in the killing of Gladys Kuehler, 81, reported The Kansas City Star. She was found stabbed more than 50 times at a mobile home park she managed in Ozark, near Springfield.
Barton went on trial five times from 1993 to 2006. Two ended in mistrials, one of which stemmed from a jury deadlocked over his guilt, and two of his convictions were overturned. His final trial, which ended in his third conviction, was before a Cass County jury.
Robert Dunham, executive director of the nonprofit Death Penalty Information Center in Washington, D.C., said hundreds of people have undergone multiple proceedings for capital charges. Five trials is not unprecedented, he said, but it is rare.
"That is an indication that there is something very wrong either with the case or with the prosecution," Dunham said, speaking generally. "If you're going to give somebody a fair trial, it's less likely to be overturned."
Barton's attorney, Frederick Duchardt Jr., has argued prosecutors elicited "false testimony" from a jailhouse informant who had nearly 30 convictions on her record that included forgery and fraud. She had a case dropped in exchange for her testimony, he said.
That witness testified Barton threatened her while in jail. She testified Barton said he would kill her "like he killed that old lady."
Duchardt has also challenged the testimony of a so-called blood spatter expert who testified that small blood stains found on Barton's clothing, which revealed Kuehler's DNA, were made by "forceful ejection." Barton, his lawyer said, got the victim's blood on him because he was among three people who found Kuehler's body that day and pulled someone else away from it.
"Missouri is about ready to put to death an actually innocent man," Duchardt said Wednesday.
Prosecutors alleged Barton went to Kuehler's home to borrow $20 and killed her. Barton went to the trailer of another resident and washed his hands, according to testimony. He told the other resident he had been working on a car. No blood was found on the sink, soap or towel Barton used, according to dissenters in a previous state Supreme Court decision.
Part of the state's case against Barton included testimony that his mood changed after the killing and his statements to police were inconsistent, according to court documents.
The victim had been sexually assaulted and suffered large slashes to her body. Barton's attorney said another expert argued the killer could not have been wearing Barton's clothes because they would have been soaked in blood.
In 2007, the state Supreme Court affirmed Barton's conviction and sentence in a narrow 4 to 3 decision.
The majority called the evidence of Barton's guilt more than sufficient, saying evidence placed Barton at Kuehler's home at the time of the killing. The dissenters said the only physical evidence tying him to the scene was the blood stain, calling it "highly suspect at best."
Judge Michael Wolff wrote there was an unidentified hair found on the victim's stomach. It was not consistent with Barton's hair sample, he wrote.
"When taken together with the dubious physical evidence supposedly implicating Barton," Wolff wrote, "evidence of the unidentified hair casts yet more doubt on the sufficiency of the physical evidence."
Wolff said he could imagine why the court would affirm Barton's conviction, noting that at least 36 of 48 jurors who heard the evidence - "tainted though it may be" - found him guilty.
"I cannot imagine, however, why the court would approve the death sentence on this sorry record," he wrote.
The first attempt to prosecute Barton ended in a mistrial in 1993 after his attorney objected that prosecutors failed to endorse any trial witnesses.
Another mistrial was declared that same year after another jury deadlocked.
Barton was convicted in 1994 and sentenced to death. The state Supreme Court overturned the conviction over objections to the prosecutor's final arguments.
In 1998, Barton was convicted again and sentenced to death, but another new trial was ordered when a judge found that the prosecution had failed to disclose the full background of one of its witnesses, among other improprieties.
Before the fifth trial, which was moved to Cass County, four potential jurors said they found it "difficult to believe" Barton was innocent because prosecutors had spent so many years trying him, Wolff wrote in his dissent.
At that trial in 2006, Barton was convicted for the third time. During the penalty phase, prosecutors said Barton had been convicted of two previous felonies, including assault with intent to kill, according to court records.
Barton has continued to file appeals in state and federal court.
Dunham, of the Death Penalty Information Center, said a common myth is that defendants abuse the system by appealing their convictions. In truth, he said, capital cases often take so long to work through the legal system because "states have failed to provide fair trials."
Barton has been tried more times than most but does not hold the record.
Curtis Flowers, a Mississippi man who was charged in a quadruple homicide, was tried six times. His latest conviction was overturned by the U.S. Supreme Court and his case received national attention when In the Dark, an investigative podcast, raised questions about the prosecution. Flowers was recently released on bond and the state's attorney general will decide whether to try him a seventh time.
As of Thursday, 1,515 people have been executed in the United States since 1976. Barton is scheduled to be the 90th person executed since then in Missouri.
Missouri was once among the most active death penalty states, but the pace of executions has slowed considerably in recent years in part because fewer convicted killers are being sentenced to death.
Four innocent people in Missouri have been freed from death row, according to the Death Penalty Information Center.
Of those put to death in Missouri, some inmates have asked their victim's loved ones or a religious spirit for forgiveness. But at least eight proclaimed their innocence as part of their last statements, according to a review of state records.
"You are killing an innocent man," wrote John Middleton, who was executed in July 2014 after he was convicted of murdering three people in 1995 in northern Missouri.
Since the 1970s, more than 160 people sentenced to death have been exonerated across the country, according to the Death Penalty Information Center. That means for every nine executions, one person on death row is exonerated.
"That's an alarming rate of error," Dunham said. "If planes crashed with that frequency, you can bet that we would completely re-examine our federal aviation system."
Barton is scheduled to be executed during the 24-hour period beginning at 6 p.m. May 19 at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre.
Published: Mon, Mar 02, 2020
