The 2004 Appeal Hearing
Thanks to the effective representation provided by Jonathan Laurans, Mr. Middleton finally received a reasonable hearing before a judge. Mr. Lauran’s 80+ page brief that was presented to the court outlined clearly and concisely all of the reasons the conviction should be vacated. (More information regarding the previously ineffective legal representation by Ken Middleton’s defense attorneys can be found on the Insufficient Counsel page.)
Ironically, the judge assigned to hear Mr. Middleton’s appeal was none other than the same judge that sat in on the original trial, Judge Edith L. Messina. For Judge Messina to rule in his favor following the hearing, she would in effect also be admitting that she was, in some way, deficient during the trial in ensuring that Mr. Middleton’s rights were protected. It is the presiding judge's responsibility to conduct an orderly trial and to assure the proper administration of justice in their court. The fact that Judge Messina would sit on the hearing was definitely a potential strike against the defense.
Nevertheless, expert witnesses were lined up and Mr. Laurans was ready to proceed.
Joseph P. Teasdale
One of the witnesses brought to the stand was Joseph P. Teasdale. Mr. Teasdale served as the Missouri governor from 1977 – 1981. In addition to Mr. Teasdale’s political background, he has extensive trial experience as an assistant U.S. attorney, prosecuting attorney, and trial lawyer. In his testimony, Mr. Teasdale described the prosecutor’s conduct as “suspect” and the defense counsel’s performance as “ineffective”. At the conclusion of his testimony, Mr. Teasdale was asked what action he would have taken if this case had been presented to him in his capacity as governor. His response was unequivocal. “I WOULD CLEARLY HAVE PARDONED MR. MIDDLETON OF ALL WRONGDOING.”
To affirm Mr. Middleton’s assertion that his defense attorney had abandoned him, his attorney brought an expert witness to the stand. Mr. Christopher Carter has experience as a prosecutor, public defender, judge and has even been called upon to teach others in the bar about ethics. He was recognized by the court as an expert in the rules of professional responsibility with regard to both defense and prosecutorial ethics.
Before the hearing commenced, Mr. Carter carried out an evaluation of Robert Duncan’s performance as Ken Middleton’s defense counsel during the original trial. To reach a substantive conclusion, Mr. Carter had read virtually every pleading, document and case file of every case involving Ken over the prior 14 years. This would include both civil and criminal proceedings. Christopher Carter’s conclusion was as follows:
“Based upon everything that I have reviewed and my experience in criminal law, I found that Mr. Bob Duncan violated the standards set forth in Strickland versus Washington. He was, in essence, ineffective to the point that his omissions, if corrected, would have resulted in a different verdict than what was handed down by the jury in Mr. Middleton’s case.”
Mr. Carter’s further testimony elaborated very specifically with regard to Robert Duncan’s failures.
- Robert Duncan’s failure to interview witnesses.
- Robert Duncan’s failure to take a single deposition.
- Robert Duncan’s failure to have experts review the forensic evidence.
- Robert Duncan did not give an opening statement. He reserved opening and then never took advantage of it. This is critical as it defines for the jury how you (the defense) will proceed with the case.
- Robert Duncan did not call a single witness on Mr. Middleton’s behalf.
- Robert Duncan advised Ken Middleton not to testify. Per Mr. Carter, if a defendant has no priors and claims their innocence, then there is NO reason why that defendant should not be put on the stand to testify.
- Robert Duncan never retrieved the medical records that would have clearly resolved the issue of Ken’s commitment to a mental hospital following Katherine’s death.
- Robert Duncan was representing at least 4 murder defendants concurrently. Per the American Bar Association, no defense attorney should handle more than two capital cases in a year. During that time, they should not be handling any other litigation. Mr. Duncan’s caseload was clearly in violation of that standard. Mr. Duncan specifically asked for a continuance for Mr. Middleton’s trial as he was in court representing another client in a death penalty case at the same time (Ed Reuscher). Clearly Mr. Duncan was not actively working on Mr. Middleton’s case at the same time… just one week prior to Ken’s trial. Ultimately this specific case was REVERSED when the State confessed to ineffective assistance of counsel on the part of Robert Duncan with respect to Mr. Reuscher.
- Robert Duncan never called into question the issue of the gunshot residue analysis performed on Katherine’s hands.
- Robert Duncan’s failure to specify that the photographs presented to the jury were RECONSTRUCTED. They were NOT the actual scene.
- Robert Duncan failed to play for the jury the tape of the 911 calls placed by Mr. Middleton. This audio would have clearly shown Mr. Middleton’s hysteria immediately following the accident. Instead, he agreed to a READING of the transcripts of the calls which clearly did not convey the emotions of Mr. Middleton at the time.
In summary, Mr. Carter stated that “…there is no evidence to support that Bob Duncan was competent in this case whatsoever. In fact it’s all to the contrary.”
Following a discussion of the defense counsel’s performance, Mr. Carter was asked to review the actions of the prosecutor, Mr. Peters. Chris Carter specifically addressed the following with regard to this prosecutor’s behavior.
- Mr. Peters secured a bond order following Ken Middleton’s arrest. Mr. Peters stipulated a bond requirement that Ken could not get rid of any marital assets without seeking permission of the prosecutor and the probate court. Note that at the time there was not a probate proceeding taking place – none had been filed. Thus, there was no appointed administrator. The probate court had, in essence, no authority. Thus, in order to finance his own defense, Mr. Middleton would be forced to go to the prosecutor for “permission”. This is at minimum, a conflict of interest and potentially unethical.
- Mr. Peter’s father was counsel of the law firm that filed the civil action against Mr. Middleton. (Ultimately, in a civil court, a wrongful death judgment was issued in the amount of $1,350,000. Obviously, a substantial portion of this money is issued as fees to the firm representing the complainant.)
- Four days after Ken Middleton’s assets are effectively “tied up” by Mr. Peters, his father’s law firm files an action in probate court.
- Three days after the conviction of Kenneth Middleton and prior to sentencing, the Blue Springs Police Department was directly instructed by Mr. Peters to release $18,500 worth of jewelry to Katherine Middleton’s sister, Mildred. Mildred was the one member of Katherine’s family to testify against Ken at trial, however, she was NOT the only heir. The release of this jewelry was clearly improper as it gave the appearance of a “gift” to a witness.
- In Mr. Peter’s closing arguments at time of trial, he makes specific reference to the marital assets of Ken and Kathy Middleton. In effect, he states that we’ve got to do something to him so he doesn’t go out and spend her money.
In summary with regard to the prosecutor’s behavior with this case, Mr. Carter stated that as a judge, had he known all the facts with regard to the prosecutor’s clear conflict of interest, he would not have allowed Mr. Peters to proceed as the prosecutor. He indicated that the line between the individual and the State was clearly blurred in this case. The prosecutor’s conduct was “REPREHENSIBLE”.
Additional expert testimony was brought on Mr. Middleton’s behalf during the hearing by Ralph Robert Tressel. Following a review of Mr. Tressel’s background, the court acknowledged him as an expert in the area of crime scene investigation. View Mr. Tressel’s CV by clicking here.
Prior to the hearing, Mr. Tressel was provided with extensive materials… affidavits, crime scene photographs, investigative reports, transcripts, depositions, medical examiner’s report, exhibits, etc. He was called upon to provide professional analysis of this information.
In his testimony, Mr. Tressel COMPLETELY DEBUNKED the prosecution’s theory with regard to the cause and means for Mrs. Middleton’s injury. The prosecution’s theory was not only illogical based on a layman’s scrutiny, it was clearly impossible according to the very thorough, professional research performed by Mr. Tressel. Mr. Tressel stated the following: “I don’t see any way that the state’s theory of this case is validated by the forensic evidence that is present and also not present.”
Some key points in Mr. Tressel’s testimony:
- Based on Mrs. Middleton’s injuries, the position of her body, and the bullet’s trajectory, the gun couldn’t have been higher than four feet one inch at the time it was fired. (Mrs. Middleton was 5’6”, Mr. Middleton is 6’2”.)
- For Ken Middleton to have fired the shot, he would have had to have been positioned UNDERNEATH the dining room table.
- During an account to police, Mr. Middleton stated that he thinks his wife may have dropped the gun and reached for it when it went off. This possibility fits the scenario determined by the bullet’s trajectory in that she was bent over when she received the gunshot wound.
- Gunshot residue tests performed on Ken Middleton’s hands were negative.
- There was no blood spatter found on Mr. Middleton’s long-sleeved shirt or any of his other clothing when clearly a close injury had taken place. This effectively eliminated him as the shooter.
- Only the RIGHT HAND gunshot residue sample for Mrs. Middleton was submitted for testing. Based on Tressel’s examination, if she had inflicted this wound herself, it would most likely have happened using her LEFT HAND.
- The Physical Evidence Inventory Report presented to the Criminalistics Laboratory was ALTERED with no explanation. White-Out was applied to the form to OMIT the residue sample for Mrs. Middleton’s left hand. View the Evidence Lab Report.
- One key point in the prosecution’s case against Ken was the appearance of a boot print on the wall that they theorized was evidence of a struggle. Mr. Tressel clearly shows how this print could NOT have been placed there during this incident. This information is further corroborated by Mr. Middleton’s son, Cliff Middleton, in his testimony during the same proceedings. Cliff stated that he had clearly seen the boot print in question
two to four weeks
prior during a visit to Ken and Katherine’s home.
Mr. Charles Gay is the proprietor of North Winds Investigations, Inc. Mr. Gay was called upon to examine the evidence presented in the case against Mr. Middleton based on his numerous years of experience in law enforcement and criminal investigation. Before he founded North Winds Investigations, Mr. Gay was a Detective Sergeant in charge of the Major Crimes Unit for the Long Beach, CA police department. While there, he formed that department's first major crime apprehension unit. After retiring from the police department, Mr. Gay worked for the Defense Department as administrator over international intelligence programs in Communist countries. Clearly, Mr. Gay’s experience and background fully justified his acknowledgment by the court as an expert in Crime Scene Preservation and Evidence Collection.
During the time that North Winds Investigations was examining the evidence in this case, one of their investigators, Ms. Wilma Sallee, was sent to the Blue Springs Police Department to inspect the gunshot residue documents. She notified Mr. Gay that the copies she received from the police department appeared to be altered. Mr. Gay then instructed her to proceed to the crime lab to obtain the originals. The intent was to confirm whether the originals matched the copies that the police department gave her. Ms. Sallee, followed by Mr. Gay, viewed the originals that were presented to the Crime Lab. Both of their observations were that the document had been ALTERED. The form itself was green and was modified with White-Out. Beneath the White Out, Mr. Gay could clearly see the word “left” and in the area where it referenced the number of kits was the number “2”.
Additional key points in Mr. Gay’s testimony:
- The gun was improperly tested.
- The crime scene was not only improperly preserved it was clearly and admittedly rearranged. Following the police department’s failure to successfully develop the initial photographs taken of the scene, the police returned to the home and STAGED it based on memory. The scene was then photographed again. Those photographs were ultimately admitted into evidence at trial. Note that these second photographs clearly differ from the crime scene diagram that was made by police.
- Omission of a telephone (a key point in the original prosecution’s case) from crime scene photographs. This phone has been proven to have existed from the time the house was built. Mr. Gay clearly indicated that omission of the phone in the photographs was clearly improper.
- The fact that Mrs. Middleton’s body was UNDRESSED at the scene. The police department REDRESSED Katherine Middleton for the second set of photographs of the scene that were admitted into trial. Mr. Gay clearly stated that in all his years of crime scene investigation, you NEVER undress a body at the scene. There is no reason to ever carry out this type of action.
- The prosecution contended at the time of trial that a button supposedly torn from Katherine’s blouse at the scene was evidence of a struggle. Clearly, this button could have been removed during the process of undressing and the redressing the body.
- Mr. Gay personally experienced an accidental misfire of a gun with the same mechanical action.
- One of the first officers on the scene picked up the gun, examined it and opened the cylinder. This would have destroyed any evidence regarding Mrs. Middleton’s fingerprints on the gun. This police officer was advised to place the gun where he found it… thus, once again, reconstructing the scene.
Mr. Gay indicated that the investigation entirely improper as far as crime scene preservation.