The level of incompetence displayed by Ken's legal representatives has been staggering.
Ken was referred to Mr. Duncan by a close friend who is also an attorney. In the past Mr. Duncan had apparently performed respectably in representing clients in criminal cases. This was not to be the case with Ken. During the time of discovery prior to the trial, Mr. Duncan did quite literally NOTHING to familiarize himself with the prosecutorial evidence to be presented at trial. Had he done so, he would have been able to debunk every single statement made against Ken on the stand. However, because Mr. Duncan was so woefully unprepared, he presented literally no counter to the prosecution's witnesses.
Numerous individuals made themselves available to Mr. Duncan as defense witnesses. In virtually every case, he did not speak to them nor did he have them deposed. All in all, this was the most disgraceful performance by a defense attorney that anyone could possibly have imagined.
Clearly Mr. Duncan had failed his client.
At the time that Mr. Duncan accepted Ken as a client, he was also the defense attorney of record in 3 other capital cases. This most certainly pushes the limits defined by the American Bar Association in their Guidelines for the Appointment and Performance of Counsel.
In addition, Mr. Duncan was himself facing criminal prosecution! The federal government was pursuing him regarding a failure to pay taxes. This personal case was ultimately settled in court in 1992 when Mr. Duncan plead guilty. Clearly this situation would also have been weighing heavily on Mr. Duncan's mind at the time of Ken's case (1991).
A direct appeal was filed following the conviction. This appeal was summarily denied by the court.
Following the court's decision, Ken planned to file for additional consideration. In the state of Missouri, the procedures and guidelines for requesting a correction of judgment or sentence is governed by Rule 29.15. Rule 29.15 provides the exclusive procedure for post-conviction relief by which a person convicted of a felony after trial may seek relief to vacate, set aside, or correct the judgment or sentence.
The claims that may be raised under Rule 29.15 include the following:
Obviously, Ken's intention was to file his 29.15 based on ineffective assistance of his trial counsel.
Rule 29.15 was substantially revised by the Supreme Court of Missouri in 1996. Prior to that date (as in Ken's case) he was required to file a 29.15 post-conviction motion within 30 days after the transcript was filed in the direct appeal of the underlying criminal case. This stipulation is KEY in understanding the position Ken was placed following his conviction. Courts do NOT have the jurisdictional authority to grant additional time beyond that provided by the rule! An untimely motion cannot be accepted by the court EVEN IF good cause is shown for the untimely filing. In short, they must receive the 29.15 motion with the accompanying brief by the deadline or all bets are off and no further appeals can be filed. The judgment stands and there is no further recourse.
The 29.15 motion is accompanied by a "brief" that outlines the movant's (Ken) evidence justifying his reasons for appeal. This brief is crucial in that it must lay out in factual detail the evidence pointing to claims of ineffective assistance of counsel.
Court Appointed Attorney
The decision to cease use of Robert Duncan as defense counsel was based on two very key points. First and foremost, he had performed so very miserably during the original trial. Second, he could clearly not represent Ken in a situation where his own poor representation was the basis of the appeal.
As a result, Ken planned to use court appointed counsel to handle his 29.15. Days passed and passed. The deadline for his filing was rapidly approaching. Keep in mind, if the 29.15 was not filed in time, there were no further appeals or options available. His wrongful conviction would stand and he would spend the rest of his life in jail!
As it became clear that the motion may not be filed in time, Ken decided to seek another attorney for private representation. He contacted Robert Duncan and requested a referral. Robert Duncan gave him the name of Gerald Handley.
Gerald M. Handley
By the time Mr. Handley became involved in the case, Ken was well within the 30 day window for the 29.15. It was imperative that Mr. Handley work quickly to prepare an effective brief and present it to Ken for his review and approval prior to filing. The clock was ticking. During this crucial period, Mr. Handley never met once with Ken to discuss his case! Here again it appeared he was being deserted by his counsellor.
The 29.15 motion HAD to be filed by 5pm on Monday, November 25, 1991.
Finally, Ken received a letter from Mr. Handley dated Thursday, November 21, 1991. In this letter, Mr. Handley stated that he was "Federal Expressing" an affidavit which MUST BE SIGNED and returned to him via Federal Express (overnight delivery) the following day so that it would be in the attorney's office with his amended petition (29.15) on Monday, November 25, 1991 (the deadline for receipt in the court.). He also stated that there would be a rough draft of the actual petition (brief) sent to Ken on Friday, November 22 via Federal Express. "When you receive this rough draft you should give our office a call on Monday so that I may go over it with you." He also enclosed a return Federal Express envelope for Ken's convenience in returning the affidavit.
Though this was clearly a very very tight timeframe, on the surface, everything appears to be in-line to meet the deadline requirement... except consider the following:
Refer to the following links to substantiate the statements above:
At this point, Ken was in a serious predicament. He had NO CHOICE but to sign the affidavit regarding the Amended Motion. Clearly, he would not be able to view the motion itself prior to it's delivery to the court. In addition, how was he going to get the affidavit to his attorney in time? There was no Federal Express service available to prisoners at Potosi. No outbound mail on the weekends. For Ken to sign the affidavit and review the brief before the 5 pm deadline on the following Monday was looking more and more hopeless by the minute.
Out of sheer and utter desperation, Ken asked his brother and brother-in-law to drive to Potosi correctional facility. Once there, they would retrieve the affidavit from Ken and FAX it to the offices of his attorney. On Sunday November 24 the two men (Lynn Carl Middleton and Kenneth G. Smith) drove approximately 300 miles from Newton County Arkansas to Potosi. They spent the night in Potosi, Missouri and went to the prison on Monday morning (November 25). They then took the one-page affidavit from Ken, drove to the city of Potosi and faxed it to Mr. Handley in Kansas City, Missouri.
Ken did not receive the 3 pages that were submitted to the court on his behalf until days later! He immediately knew that there was no way he would receive relief based on the deficient information it contained. There was no case law referenced. Once again an attorney was failing him miserably.
Review "1992 Appeal Hearing."
Ultimately, a subsequent 29.15 Amended Motion was filed on his behalf in 2005 with the assistance of yet another defense attorney, Jonathan Laurans. The brief (in excess of 80 pages) contained numerous references to case law as well as information from experts regarding Mr. Duncan and Mr. Handley's insufficient counsel, law enforcement's mishandling of evidence, altered / missing gunshot residue analysis, conflicts within the prosecutor's office, etc.
Specific reference to the testimony given in the 2004 hearing is contained in the "2004 Appeal Hearing."