6th Circuit Finds State Withheld Evidence

CINCINNATI (CN) - The 6th Circuit conditionally granted the habeas request of a former Ohio police lieutenant convicted of a setting in motion a scheme that resulted in his wife's death.

Vicki Barton was killed in 1995, and her husband, Thomas Barton was later convicted of hiring another party, William Phelps, to break it the home and scare his wife.

Prosecutors said Barton paid Phelps $3,000 to stage a burglary of the home, but Vicki Barton surprised Phelps and an accomplice by being home. According to the 6th Circuit, the accomplice panicked when he saw the woman, and he shot and killed her.

Thomas Barton was convicted of involuntary manslaughter and aggravated burglary in 2005 and sentenced to a maximum of 25 years in prison, a sentence which he appealed.

The appeal and Barton's subsequent petition for a writ of habeas corpus were both denied, but the 6th Circuit found that the state withheld exculpatory evidence during the trial.

Gary Henson, Phelps's half-brother, was the state's only witness against Barton. It was Henson who provided the critical link between Barton and the murder, testifying that his half-brother had previously staged other burglaries.

The prosecution failed to reveal, however, that a previous case involving Henson was reopened shortly before Barton's trial, and that the man accused of hiring Henson, nonparty Jim Kelly, vehemently denied staging a robbery.

Barton's claims were rejected by the Ohio Court of Appeals, which held he should have raised them on direct appeal and agreed with the Common Pleas Court, which had "strong reservations as to what limited relevant evidence would have been admitted had the defense attempted to raise the matter at trial."

The 6th Circuit panel determined that Barton's petition should be reviewed on its merits and reversed the lower court's decision.

Even though the conversations between police and Kelly were not recorded - and therefore inadmissible - Supreme Court case Brady v. Maryland requires the prosecution to submit inadmissible evidence if it may lead to admissible evidence.

The panel explained: "Barton might have, for instance, called Jim Kelly to take the stand at trial to testify in Barton's favor, thereby putting into question Henson's bias, self-interest, and motive to lie. During trial, the State questioned Henson at length about his prior experiences as a burglar for hire. The State thus opened the door for Barton to impeach Henson, either on cross-examination or by calling another witness to the stand." The panel rejected the state's argument that the withheld evidence was not exculpatory, ruling that "It is not for the State to weigh the evidence and decide what the jury would ultimately find to be material and exculpatory-that is something that the jury itself must decide."

The state also claimed that Barton could have discovered the evidence from the reinvestigation on his own, an argument quickly dismissed by the panel.

It wrote: "Nothing in the report mentions that the burglary might have been staged. ... It is difficult for us to understand how Barton would have been able to (or should have been expected to) connect the dots between his wife's murder, Gary Henson, and the Kelly burglary."

The panel harshly criticized the state, and wrote: "Brady requires the State to turn over all material exculpatory and impeachment evidence to the defense. It does not require the State simply to turn over some evidence, on the assumption that defense counsel will find the cookie from a trail of crumbs."

In a scathing conclusion, the panel wrote: "the State's theory here rests on the testimony of a single witness-not even an eyewitness, in fact. That witness presented an unsupported, shifting, and somewhat fantastical story at trial. The State suppressed material, exculpatory evidence from Barton, thereby making it more difficult for Barton to discredit this theory. There is a reasonable probability that such actions affected the outcome of the trial."

The panel consisted of U.S. Circuit Judges Karen Nelson Moore, Helene White and Bernice B. Donald.

The ruling states Barton must be retried within the next six months.

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