March 9, 2022 • 48 mins
On February 12th, 1990, a tragic accident occurred in which it is believed that Kathy Middleton mishandled a gun in her left hand, accidentally shooting herself one time in the head. The state turned this tragedy into a homicide investigation, sending her husband Ken Middleton to prison for life plus 200 years. In 2004, Ken had an opportunity to present to his motion trial court evidence of ineffective assistance of his counsel, as well as ballistics evidence that proved that the state's theory was impossible. Before the judge ruled, the state offered Ken freedom through an Alford plea, and he refused. Eventually, the judge granted him a new trial, but the state simply challenged that ruling on jurisdictional grounds, leaving Ken in prison ever since. A 2021 law now specifically grants that motion trial court the necessary jurisdiction, yet Ken and his family still await justice from prosecutor Jean Peters Baker.
The altered GSR test document is linked here: https://www.instagram.com/p/Ca4rRsDLWaC/
To learn more and get involved, visit:
http://www.free-kenmiddleton.com/
https://www.change.org/p/missouri-missouri-or-misery
https://silvercreekentertainment.net/
https://twitter.com/TheNewsBreaker
https://lavaforgood.com/with-jason-flom/
Wrongful Conviction is a production of Lava for Good Podcasts in association with Signal Co No1.
See omnystudio.com/listener for privacy information.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Kennon. Cathy Middleton had properties in Blue Springs, Missouri, as
well as Ken's family laid back in Arkansas, where they
hoped to one day retire. On February twelfth, nineteen ninety,
when he planned to clean a gun that he had
brought back from Arkansas, Ken felt ill, laid the gun
down and took the nap. Meanwhile, Cathy returned early from
work to confront Ken about news of a regretful affair
(00:23):
that had ended three years earlier. After grabbing the gun
from where Ken had laid it down, Cathy made her
way to the phone to call the alleged mistress. When
tragedy struck. It is believed that it destroyed. Kathy mishandled
the weapon in her left hand and shot herself in
the head. Ken immediately called nine one one, and first
responders found him without a drop of blood or gunshot
(00:43):
residue on him. A positive gunshot residue test of Cathy's
left hand would have conclusively ruled her death as a
tragic accident. However, her left hand test results went missing
and the crime lab document was altered in what clearly
appears to be evidence tampering, where the medical amateur and
blood spatter expert willing to testify to an impossible scenario
(01:04):
in which Ken was magically able to shoot Kathy from
less than a foot away while remaining free of blood
and g s R. Ken was sentenced to life plus
two hundred years. Despite the mishandling of the crime scene,
ballistics testing was still able to prove Ken's innocence. His
conviction was overturned in two thousand four, but a jurisdictional
technicality has held him in legal limbo ever since. Canaida's
(01:27):
son Cliff Middleton join us to ask, how is it
that even though a new statute remedies that technicality, the
current prosecutor, Jean Peters Baker, refuses to act. This is
wrongful conviction. Welcome back to Ronful Conviction. I'm your host,
(01:55):
Jason Farm. You know, each week I have a pretty
good idea of how I'm going to start the show.
You Know, usually there's one main focus, one main problem
that we can talk about in any particular case. But
this time I don't even know where to start. When
our friend Larry Garrison, who's actually known as the news
breaker okay for his years of investigative reporting and his
(02:17):
work through Silver Creek Entertainment. When he first told me
in US here at Ron Convention about the case of
Ken Middleton, he had lived up to his nickname once again,
I mean the newsbreaker. So I'll start by saying that
Ken Middleton has been in prison for over thirty years
for being present during what they may well have known
all along was just a tragic accident. And there are
(02:38):
so many problems in this case that we could literally
pick on any one of them and make an entire
episode of the show just about that. I'm talking about
ineffective assistance of council, false expert testimony, evidence, tampering, incompetent
investigator's official corruption, conflict of interest, Ken refusing freedom through
an Alford play. Write something that you never catch a
(03:00):
guilty person doing, and that's something that happened seventeen years ago,
almost eighteen now. Plus There's this insane jurisdictional technicality that
has kept this innocent man in prison long past the
time that I believe everyone knows that he should have
ever been in there. So, without further ado, at seventy
seven years old, Ken is calling in from inside the
(03:21):
prison walls in Missouri. Ken, I'm so sorry, you're here
because of the reason why you're here, but I'm very
honored to have you on the show. Thank you appreciate it.
And with Ken is his son and probably the most
passionate advocate, Cliff Middleton. Thanks for joining us. Thank you
(03:42):
so much for having me on. Jason, I really really
appreciate it. And I know how hard this is going
to be. I mean, like any other son, you love
your dad and you just want this thing to end. Okay,
let's go back in time and I'm gonna turn to you. Ken.
This is early in Blue Springs, MS and you're there
with your wife Kathy. So tell us what was happening
(04:04):
in your life? What were things like before all this happened.
It was great. We had a great marriage for over
sixteen years. Had a farm in Arkansas, two different farms.
I had three hundred and fifty two acres of the land.
I had drove a truck for over twenty years, and
I had injured my back and I wasn't working right then.
(04:24):
So I was going to the farm and doing projects,
working on the house and watching nice of the cattle
and stuff like that. Cathy worked at eight D and
T for twenty eight years. And two years he'd have
her time in worse, she could retire regardless of age.
And that's what was waiting on and was moving back
to Arkansas for good. And let's get into how this
(04:47):
came to pass. So let's go back to February, and
just to set the stage here, you had been at
your place in Arkansas and you brought a handgun that
you owned to Missouri with you. But meanwhile you had
been feeling sick, but no one knew at the time,
not you or anybody, that you were really seriously ill
(05:08):
at this point, is that right? Right? And I was
sick for left Arkansas, and when I got back Sunday afternoon,
I didn't sleep much all night. So the next morning,
Kathy had went to work at a T N T.
And I unloaded the rest of the truck and brought
the gun in the house. It had been in Arkansas
(05:29):
since I went to Coloretto elk hunt in the fall before,
and there's a big snow and rain and stuff in
Colorado and it got wet. So I picked it up
and brought it back to Missouri as aimed to clean it.
And when I got it out of the truck, I
went in the house and sat down. I called Kathy
at work, and she asked me how I was feeling.
(05:50):
I said about the same. I wasn't feeling good, and
I sat in a recliner and I went to sleep.
And I had never cleaned the gun. So the next
thing I knew is she was already home, and she
picked up the gun out of the tail and had
had the gun laying on and she was upset that
somebody had told her that was having affair with a woman,
(06:13):
which was true, but it had been over for three years.
And she walked over to the phone in the dining
room to call a woman. So I got up and dazzy,
and next thing I know, the tragedy had happened. And
the tragedy that had happened is the matter of this
dispute between the Middleton's and the State. Now. Ken maintained
(06:35):
his innocence in the matter, that this was a tragic
accident in which Kathy visibly upset about the news of
this affair, and on her way to the phone to
confront your alleged mistress, Cathy was holding the gun in
her left hand and accidentally shot herself on the left
side of her forehead. Splattering blood all over the wall.
(06:55):
This version of events is supported by the ballistics and
all the other physical evidence. And then there's what the
state wants everyone to believe. Right, bear with me, because
this is nuts. That Ken had somehow held Cathy up
against the wall and shot her in the face, but somehow,
miraculously was able to be completely clear of blood spatter
(07:17):
or gunshot residue, not a trace on him. And we'll
get into all of that a bit later. So back
to this terrible tragedy. A gunshot rang out and Cathy
was on the floor in a pool of blood. What
a nightmare? Ken? What happened next? I've seen her on
the floor and grabbed the gun and put it on
the table and call nine one one immediately. I asked
(07:39):
for the paramedics and had called them three times within
a short period of time, and wanted to know who
the paramedics was. And the third time the operator told
me to go outside, that the paramedics were there. And
I looked out, and I told her that I had
looked out and there wasn't nobody out there, and she
convinced me to go outside that they were there. So
(08:02):
I went out and the first thing I've seen was
a couple behind the walls screaming at me to get
my hands in the air and turn around with my
back to him at his gun pointed at me, and
I've done as he said, and he'd come up behind
me and searched me. Wanted to know who the paramedics were,
and he ordered me back in the house. And we
(08:25):
went back in the house and he went in and
checked on my life, and I was just historical, and
I guess I was done on my knees, and he
jerked me up. And when he'd done that fast, I've
become dizzy, real dizzy, and I thought I was ain't
a blackout, So I said, as ain't be sick, and
I went down the hall to the bathroom and I
(08:46):
went in and spliced water on my face, and then
he took me outside and I had a real bad
hurting in my left arm and chest. Now, when the
paramedics arrived, he determined, Kenny, you would have been hyperventilating,
complaining of chess planes and the blood pressure was going crazy,
and they convinced you to go to the hospital for
an examination. They taught me to go into the hospital
(09:09):
and they took me to three medical hospitals, and then
on the third one, I was forced in a mental
hospital till the next day. They later tried to say
that you had checked into that mental hospital to try
to get away with murder, claimed by claiming insanity defense.
But we're getting ahead of ourselves here, and let's not
leave out the fact that your dad was in and
out of consciousness on his way to the hospital, and
(09:30):
they took an e k G at the hospital and
it showed that Ken, that you had recently suffered from
a heart attack. Now here's another thing that I have
trouble understanding or processing. The officers didn't write their statements
until days later, and they did it by memory, right,
And these statements that were taken from a historical man
(09:51):
who had to be rushed to the hospital talking about you,
of course, Ken, who was just trying to help figure
out what happened, So the officers didn't bother to write
it down. There were a couple police reports that were
handwritten out that day, but the official reports that I
have reviewed were written on I believe it was February one,
(10:15):
and Cathy died on the twelve. Now, in researching this case,
I saw in the police reports where they kept on
documenting instances in which Kenada allegedly had done something with
his hands, like you mentioned splashing water on its face, right,
They wrote down another instance where they said he wiped
his hands on the door, touched dirt in a potted plant,
(10:38):
and the implication is that ken was trying to somehow
wash away the gunshot residue. There's a picture the Independence
News Examiner paper took of my father out there on
the front stoop, leaning over that potter plant, sobbing, and
the two paramedics are consoling him him. It's it's very
(11:01):
obvious that he was in a state of shock and hysteria.
First of all, you already claimed he was washing his
hands when he splashed water on his face. It's crazy
to think that somebody's trying to wash their hands in
the dirt unless you've been involved in something like this.
How would you even know what a gunshot residue test is,
(11:23):
especially in nine JSON maybe the day with crime shows
and things. But he didn't know what they were testing
him for. They took my shirt, under shirt and clothes
and shoes and all and they did tested then come
back native no blood or nothing on my long sleeve shirt.
And the picture in the front hide of a house
when I was over the stove shows the long sleeve
(11:45):
shirt down to my wrist. There was no blood, no
gunshot on it. Right and as the evidence clearly shows,
she was shot from very close range, less than a
foot away, and there's no way you can do that
without being covered in blood and gunshot residue. But you
weren't because you didn't kill her, and Cathy's gunshot residue
(12:06):
tests would likely have corroborated Ken's version of events and
showing that this was a tragic accident not a homicide. Cliff,
can you explain what I mean by that? They swabbed
both of her hands that day for gunshot residue, and
the prime document that they fill out shows that they
(12:27):
swabbed both hands, right and left hands, and it shows
they used two different kids to do that, one for
the right hand and one for the left hand. Well,
the next day when the corner did the autopsy, the
corner ruled it a homicide based on what the police
were telling him, unless other information come forward to prove otherwise.
(12:52):
Now that gunshot residue was important information and took him
nine days to turn the gunshot residue samples into the
crime lab, and when they turned them into the crime lab,
the document was altered to show only one kid and
(13:12):
the left hand was wide it out to show they
only tested the right hand when she was shot from
eight to twelve inches away on the left side of
her head. You really have to see this to believe it.
And we're going to link pictures of this in our
episode because I'm looking at it right now and i
still can't believe that I'm actually looking at what I'm
(13:34):
looking at. Okay. So, the test of Cathy's left hand,
the one in which she would have held the gun
in order to shoot herself, the test of that hand disappeared,
or it wasn't tested on purpose. There's only two possibilities.
The crime lab document that should have been for both
(13:55):
of her hands was altered with white out. Okay, remember
white out. It's unreal. This is like to show that
only her right hand had been tested. And this is
reinforced when you compare it with the g s R
test document for Ken in the same handwriting okay, get
ready for this. It states quote number of articles too.
(14:18):
G SR test kits for right and left hands end quote.
But then on Cathy's GSR test document, in the same
exact handwriting, it says, quote number of articles and whatever
was there is white it out right, just white it out,
and the number one is at its place, and then
(14:39):
it reads quote gunshot residue for right end quote, followed
by another gob of white out and the word hand.
So in all likelihood the white out is simply covering
the words and left as it would have been in
a request for testing of both right and left hands,
where now only one test for her right hand exists
(15:02):
and the one that really matters the left hand is missing.
Later on, after us convicted years later, we took their
deposition and Geoff Rogers that wrote the report out he
swore that he didn't put the white out on that
because his own green paper, and he said that he
wouldn't have whited it out. He had just filled out
(15:23):
a new report and we got Dave Link, the one
that took it to the lab. Nine days later. He
swore up down that he didn't do it, and he
was asked did he always take both hands of a
close gunshot residue test? He said yes. My attorney asked
him years later in ninety seven always, and he said absolutely.
(15:46):
They waited out the left hand, and they waited out
the number of articles. I mean somebody literally just took
white out. Yeah, the left hand. If it would have
come back positive, it would have been power full evidence
that she accidentally fired the gun herself. Our attorney told
us that if that left hand come back positive, the
(16:09):
corner would have changed his findings and they wouldn't have
had a case against my father. It all would have
ended right there. This episode is underwritten by A i G,
(16:31):
a leading global insurance company. A I G is committed
to corporate social responsibility and is making a positive difference
in the lives of its employees and in the communities
where we work and live. In light of the compelling
need for pro bono legal assistance, and in recognition of
A I g's commitment to criminal and social justice reform,
the A i G pro Bono Program provides free legal
(16:52):
services and other support to underrepresented communities and individuals. Now,
this is a small town police department. My understanding is
there hadn't been a homicide investigation in almost a decade.
These people were not up to the task, and they
(17:13):
started making mistakes or less as soon as they walked
into the house. Yes, yes, And like so many other cases,
I believe the police immediately focused on my father and
had tunnel vision as they began to investigate this case.
I'll start with the fact that they took photos that
day of the alleged crime scene, and the photos allegedly
(17:39):
did not come out, And after Cathy's body was removed,
they went back and restaged the crime scene and took
new photos. By the time they'd done this, my step
mother had already been taken out of the house, and
the fire department had actually been called into cut sheet
(18:00):
rock out of the wall with blood spatter and things,
and so the new pictures they took the sheet rock
was already cut out, and they had drawn a diagram
of the dining room where this happened, and the diagram
didn't match the pictures. They had moved the dining room
(18:21):
table all the way up against the wall to make
it appear that there was a bigger area there when
she was shot, right to make room for this alleged
struggle that never even happened when she went to use
the phone. In every picture they took of this small
dining room, they missed that phone Jason by a quarter
(18:41):
of an inch. Another mistake that was made that day
at the crime scene. According to the police reports, they
unclothed my stepmother naked right there on the dining room
floor and folded her clothes up and put them in
bags and transported her to the morgue naked for them
(19:04):
to unclothe her and alter any evidence that could have
been gathered from that. Now, that goes against every protocol
of any police department anywhere. Best I remember, the medical
examiner said she'd come in fully clothing, So what they
actually done was re closer the poor the medical examiner examiner,
(19:26):
that's exactly right. What the medical examiner reported didn't match
the police reports. They unclothed her and at some point
reclothed her, so they mishandled the scene, and the evidence
altered or disappeared, the key gunshot residue test of Cathy's
left hand. And then they arrested you, and eventually you
(19:46):
got out unfond and even that was kind of odd. Right,
Prosecutor Peters agreed to ten thousand, and he put a
restriction on my bond. This says not to dispose of
any martal or jointly held property without the permission of
the prosecute attorney and the probate court. You got the
(20:07):
State of Missouri coming after you with unlimited resources, and
your life and liberty is on the line. My dad
should have had access to every dime he had to
save his life, right And this also gets us to
a crazy part of this whole story. So while you're
facing Prosecutor Patrick Peters in this criminal trial against you,
(20:29):
there's also a wrongful death civil suit filed against you
by Cathy's sisters. And get this, Prosecutor Peters's father is
part of the law firm behind that civil suit, so
stands to benefit from the outcome. And of course you
(20:51):
didn't even know that at the time. They had concealed it,
and they had said that he had convinced them and
he would convict me, and the law firm would have
keep me in prison. I'd like to point out that
the Blue Springs Police Department, city attorney for Blue Springs
was also in the same law firm as the prosecutor's father,
(21:13):
So you had a triangle of a conflict of interest
here that was hidden from from everyone. Every time we
do an episode, I always think I've heard it all,
I could say, even after doing two d and fifty
episodes of this show, I've never heard of that. The
prosecutor refers the family of the woman who died to
his own father's law firm. Now everybody's compromised, right, because
(21:39):
now there's a whole another motive for them to want
to convict you with this crime so that everybody can
make money. And they ultimately got a one point three
five million dollar default wrongful debt judgment against my father.
So now there's been this litany of errors, misconduct, malfeasance,
straight up insanity. I'm gonna call it what it is,
(22:00):
it's insanity. And now finally it's time for the trial.
It's February, a year after the incident. Basically, the crux
of the States case against my dad was that he
held her up against the wall and shot her from
a foot away from her face. The prosecutor put on
his so called experts saying that she was two inches
(22:24):
away from the wall and that I had my arm
across her chest and held her up against the wall
and shot her and blood. Experts admitted that he had
a weak's training, and he's self talk. He had taken
a forty hour course on blood spattered evidence. That's all
the training that their expert had, These quote unquote experts
(22:46):
had for forty hour training course that doesn't actually teach
you anything except how to act like you know what
you're talking about in court pretty much, right. But he
didn't tell that there was no gun shot residue on
my hands or long sleeve shirt, or blood or the
nails on a long sleeve shirt. And they said he
put a bootprint on the wall, which was false. It
(23:06):
had been there weeks prior, and in order for that
bootprint to get there, his leg would have had to
have been backwards at the knee and hyper extended in
order to put that bootprint there. Right, you have this
bootprint that was physically impossible to have been made in
this scenario. But you know what, none of it freaking matters.
(23:28):
Why they could have produced any other made up nonsense
to try to support their theory. But without Ken being
covered in blood and g SR, it's all pure drivel.
Blood and gs are has to be present for us
to even entertain these bullshit footprints. Not to mention the
analysis from Bob Trussell, the renowned forensic crime investigator. That
(23:51):
further clarifies just how bogus the state's theory was. We'll
get into all of that a bit later, But unfortunately
Ken didn't benefit from Bob Wrestl's testimony or any of
this being pointed out at the original trial. Ken's attorney,
Bob Duncan, couldn't be bothered to do an investigation, not
even a thorough examination of the kund cliff. What else
(24:13):
did the state present? They also put on evidence that
the gun would take ten pounds of pressure I believe
it was without the hammer pulled three and a half
pounds with the hammer pulled. Well, the gun needed to
be examined in the exact state it was found in,
and it wasn't. They had dismantled it and put it
back together before testing it, so if there was any
(24:35):
problems with the gun, they fixed it when they put
it back together. Bob Duncan was asleep at the wheel,
if you will, and had none of the physical evidence
examined by an expert in hadn't interviewed any witnesses. He
was totally unprepared for the case to even go to trial.
Did I hear this correctly? That he didn't even make
an opening statement. He reserved one and he forgot to
(24:59):
give it. I couldn't get him to do nothing. They
didn't see nothing about the gunshunt residue. Not one word
of them was lighten that document out. They never seen
it without a proper defense, you're out there, Mercy. Years later,
in ninety and ninety six, he gave me three affidavid's
of what he had failed to do. This is my
(25:21):
trial attorney, Robert Duncan. I did not have any physical
evidence in the case examined by a forensic expert, other
than to speak to a gun expert about the gun.
But I did not have him examined the gun. And
then he gave another affidavit and he said, father, I
believed my ability to defend Mr Middleton was impowered because
(25:43):
I wasn't given the information of the connection between the
police department, the prosecutor, and the civil claims against mister
Middleton's seeking a substantial monetary recovery. This information, if for
no other purpose, would have been admits as impeachment evidence
showing the bias of the police and some of the witnesses.
(26:06):
So Cathy's sister, Mildred Anderson gave Voss testimony for the
prosecution to show motive that Ken had secret assets in
Arkansas that no one in the family was aware of.
And we know this is just another lie because Mildred
Anderson later said she admitted that she and the rest
of the family actually did know about all of the
assets before Kathy's death, which is a clear cut example
(26:27):
of perjury, which in Missouri in a murder case at
the class A felony, and that Peter's colluded with her
because Peter's put it in the question would be simple
for her, says, quote, quite a bit of holdings down
in Arkansas that you and your family, including your sister
were unaware of. She says, yes. It should also be
(26:52):
mentioned Jason that after the sister testified to that, the
prosecutor instructed the police to part man to release eighteen thousand,
seven hundred dollars worth of jewelry that was confiscated out
of the house to the witness. So not only was
it perjury, she was rewarded with eighteen thousand, seven hundred
(27:13):
dollars worth of jewelry. And then eight years later, on
March at twenty fifth, ninety nine, Mildred Anderson gave foreign
testimony in her Arkansas lawsuit against Kenneth Middleton, which showed
she clearly perjured herself in n and her sister corroborated it. Wow. Okay,
(27:33):
So I gotta ask about what must have been the
worst day all of your life, which of course is
the day that the jury went out for a breaking
an hour and came back in and sentenced you to
life without parole plus two hundred years. Well, I don't
know how to describe it, but I was in shock.
And until this outing, I never spent a day in
(27:55):
jail in my life. And take you from being free
in the country and working home alive to throw you
in a cage. It's unbelievable. And I can't explain. Growing
up as a kid, I would never in a million
years dream that what happened to my dad would have
happened to him. He just was, you know, a great
(28:18):
fathers because he's been more of a father to me
behind bars than most kids could ask for from a
father on the street. And uh, it was devastating to
our whole family. So now we moved to the post
(28:51):
compiction and there's still more insanity to come. So it's
and your appellate attorney is a man named Gerald Handley
who was recommended by Bob. Well, that's not a good time.
And one of the first things we come to is
that what's called appeal, Cliff, can you explain that to
us and get us started here. After trial, the first
(29:11):
appeal that you have in the state of Missouri is
your post conviction fifteen is an appeal that's filed back
in front of the trial judge to evaluate your trial
to make sure that you had a fair trial. That's
where you bring your ineffective assistance of counsel issues if
you have any. So you have ninety days to do
(29:34):
that in Missouri or you don't get that hearing on
ineffective assistance a council. And that's right back in front
of the very trial judge that just set on your
trial and convicted you. So you got a high burden
to meet there, right, You got to prove that you
had an unfair trial and your attorney didn't do his job.
Our appellent attorney at that time had a ninety day
(29:56):
window to follow an amended petition for da AT and
get all of his issues in the appeal. He never
met with my dad, never went over any of the
issues which the law requires him to do. And at
the last minute, before the ninety days was up and
you could get no extensions, my dad gets a letter
(30:17):
from his attorney telling him to sign this affidavit that
all of his issues are in the amended petition, even
though my dad had never seen the petition. And if
you didn't sign that affidavit and have it with your
amended petition when you filed it, you were out. You
couldn't even get a fifteen hearing. So my dad had
(30:37):
to sign it and at least hope that his attorney
was gonna put all of his issues in it. Well,
we had to do a lot of finaglin to get
that affidavit to him before Monday, and when we got
it to him on Monday, Gerald Hanley filed a three
page motion on my dad's life, procedurally defaulting all of
(30:59):
his issues on appeal. So because that attorney procedurally defaulted
all of his issues, the facts and the merits of
his case were never heard. And when we went to
the evidentiary hearing, I had nine witnesses out in the hallway.
When I got to the courthouse, the witnesses that knew
Pat Peters through trial, seeing Pat Peters talking to the
(31:22):
uniform guard, and the guard took a post at the
door and wouldn't let none of my witnesses in the courtroom.
I didn't know what happened to him till I got
back to the jail and made some calls. Peters called
Duncan to the stand, and Duncan testified this basically answered
Peter's questions, said I checked himself into the hospital while
(31:44):
I was shaken the head. It was a live because
I was forced in that metal hospital. One of the
records that Bob Duncan didn't get was the medical records
from the mental ward. The prosecution's theory was that it
was trial strategy for Duncan did not get the medical
records because the prosecution had a witness that would have
said Dad told him, if you want to get away
(32:07):
with murder, you check yourself into a mental ward after
you do it. So Judge Messina agreed and said, yeah,
that's not ineffective assistance Accouncil. He he didn't get them
records because he voluntarily checked hisself into a mental ward.
Well that wasn't true. But Gerald Hanley never got the
records either, so the judge never knew this, and so
(32:29):
the hearing ended and no witnesses were called, no expert
testimony was given, and no evidence was presented to refute
the state. Gerald Hanley ended up being and this is
hard to believe, but he ended up being just as
disinterested as Bob Duncan was before. And so predictably, Judge
Messina rejected your twenty nine fifteen appeal. It's insane. It's
(32:51):
not because the appeal was invalid. It's because the lawyers
didn't do their freaking jobs. And according to the law
at that time, the trial court's jurisdiction over your case ended.
So Cliff, eventually you all get a new attorney, Jonathan Lawrence,
and there's a new law that gave you and your
dad some hope, or maybe false hopes, but some positive
(33:12):
things came about nonetheless, So can you tell us what
happened next? In two thousand one, a law come down
that give courts the opportunity to reevaluate cases. If you
could prove your fifteen attorney, Gerald Hanley, abandoned you on
your the trial courts could look at your case again.
(33:34):
So my dad had done all this research on this
and had done everything, and we took it to Jonathan Lawrence,
and Jonathan Lawrence at first didn't think we could do it,
but once he read the case law, he said, yeah,
I believe we can. So Jonathan Lawrence got involved and
filed an eighty one page motion and convinced Judge Messina,
(33:57):
who denied us back in ninety two, to reopened my
father's case. And she held a two day evidentiary hearing
in two thousand and four, and you finally have an
attorney here who can do justice in your father's case,
who gathered and presented some powerful expert testimony, including from
investigator Chuck Gay, who had been at the courthouse for
(34:19):
the hearing but had been prevented from entering the courtroom.
Now he finally had a chance to speak. Chuck Gay
was the twenty five year police officer in Long Beach, California.
He had actually talked to the FBI in different courses
on crime scene investigation, and he testified to the crime
(34:41):
scene photos not coming out. You can't restage a crime scene.
That's absurd, unclothing her at the scene, all of these things.
Crime scene preservation is what Chuck Gay testified to and
how improper it was. The gunshot residue was a real
big one with him. We found out a little more
(35:03):
about the green document, so you have to realize before trial,
when they give us that green document, it was just
a copy, so it was on white paper. We really
didn't know what it said underneath, but we knew something
was wrong because the left hand was missing. And when
our investigator after the trial went to go investigate that,
(35:26):
the crime lab said, we didn't do that. They said,
these are our documents. We used green out, so they
were pointing the finger at the police. They knew that
that wasn't right. There was no initials or anything that
would indicate who did it or or why they did it.
Myself and our attorney in two thousand and six team
(35:49):
went to the crime lab and and got this document
and him and I both held it up to the
light and you could see underneath the white out on
the umber of articles, and then underneath the other wide
out off to the side, you could see the word left.
And he gave us an affidavit that that was the
(36:10):
worst alteration of official documents he had ever seen in
thirty two years. I believe a practicing law and you
also had testimony from a ballistics expert proving that the
scenario presented by the state was physically impossible. And this
guy was no slouching. He had overseen over eight hundred investigations,
(36:31):
and importantly he had been an expert for both prosecution
and defense. And of course the guy I'm referring to
is Bob Tressell. I'm Bob Trestle. I'm a forensic crime
scene investigator. When I first looked at the case, the
bullet was found across the room after it had struck
the door frame, ricocheted up to the ceiling and over
(36:54):
to on the other side of the dining room. So
it began looking at the angles that the bullet hook
in striking the door frame exiting the door frame. Their
lab came up with what we call a muzzle to
target or the barrel of the whip and having to
be approfesimately eight inches from her face where the bullet entered.
So then we started looking at the gun. The guns
(37:16):
of three seven magnum you get the length of the
barrel chamber in the grip area. So although the barrels
set inches from her face, the gun is almost fourteen
inches and total length away from her face. And then
we started looking at the wounds themselves pretty well, a
straight shot gunshot when with little deviation on the upward
(37:39):
or downward plane, and with the bullet not deviating very
much right or left, the shot had come from directly
in front of her the upper trajectory, because we know
where it strikes on the wall, and then rick schat
is off, we know it's going upward. So she has
to have her upper body bent over or her head
bent over towards the table in order to receive that
(38:01):
gunshot one and there's only about two ft distance between
the table and the walls, and so you've got to
get two people almost directly in front of each other.
But the gun's gotta be held way down low, and
in order to get the distances that we saw, the
gun has got to be almost on top of the table.
(38:21):
So where can the shooter be at that point when
we finally did all the calculations in order for someone
to be directly in front of her, if a shooter
was the one that fired this weapon, he would have
to be under the table. That makes no sense whatsoever.
There's no direct forensic evidence either by blood tissue gunshot residue,
(38:45):
things of that nature that indicate that Middleton fired this gun,
killing his wife. And so all of this powerful expert
testimony has been heard. And to top it all off,
there was one more witness that testified on your father's behalf,
the former governor of Missouri. Yes, you heard that correctly.
The former governor of Missouri, Joseph P. Teasdale, testified on
(39:09):
Kensby had and he had expensive trial experience as an
assistant U. S attorney, prosecuting attorney, and as a trial lawyer.
And he testified to the quote suspect conduct of the
prosecutors and the quote ineffective performance of the defense council.
And at the end of the testimony, former Governor Teasdale
was asked what he would have done if this case
(39:31):
had been presented to him in his capacity as governor,
and he replied that this was the worst case of
constitutional violations that he had ever witnessed in forty one
years of practicing law, and that he, and this is
a direct quote, would clearly have pardoned Mr Middleton of
all wrongdoing end quote. That's a strong statement. He had
(39:56):
gotten familiar with Dad's case a few years before, and
I reached out to him when we got this evidency
hearing and asked him what his costs would be for
him to come testify, and and he said, I don't
want any money. I want to state dinner when your
dad gets out of there. And it meant a lot
(40:16):
to me. So, finally, this information that you've been trying
to get hurt for so many years, the ineffective Council
of the Prosecutor, of misconduct and conflicts of interest, the
botched investigation and alter reports, You're finally able to get
that before the judge, and even a more conservative judge,
Judge Massina, could not deny the merits of Ken's case.
(40:37):
So this was all powerful evidence that the jury never heard.
After all this evidence was put forward, Judge Messina took
it under advisement and would not rule on the case
for eleven more months. Two weeks after the hearing was over,
the prosecutors come to my dad with an Alfred plea.
If he would plead to an Alfred plea and plead
(40:59):
guilty to second degree, he could walk out of prison
of Freeman. But even though all of his appeals were
exhausted and we were setting in front of very conservative
judge my father refused the offered plea for him to
turn that down. With all appeals exhausted, that speaks volumes
(41:20):
to his innocence, and on May twenty five, Judgementina came
back and vacated ken conviction and granted him a new trial.
So the same judge who denied him in overturned his conviction.
Judge Massina found eight different points of ineffective assistance at
council on Bob Duncan. The man had three other capital
(41:42):
murder cases overturned at the same time he was handling
my dad's case. But just six days after this incredible news,
you get a huge punch to the gun. What does
the Jackson County Prosecutor's office do? They appeal the decision.
So if he would plead guilty after that hearing, they
were willing to let him go. But when he stood
(42:04):
by his innocence and the trial judge agreed and overturned
his conviction, they appealed it. They ruled that Judge Messina
didn't have jurisdiction to issue that new trial. They never
got to the merits or the facts that she ruled
he was wrongfully convicted in violation of his sixth Amendment
right to constitutional effective representation. They never got to any
(42:26):
of that. They just said she didn't have jurisdiction. And
this is now seventeen long years ago. It's it's crazy.
I mean, the court heard the merits of his innocence
and decided he should get a new trial, but outside
of the appellate proceedings, it was ruled that the trial
(42:46):
court didn't have jurisdiction. So Ken has just been sitting
there since two thousand four, awaiting a miracle or a
change in the law so that his case could be
heard again, and that finally happened in August on a
new law was passed in Missouri that allows a case
to go before the trial judge outside of hearing. So
(43:08):
what that means is that if a prosecutor knows that
a man is innocent, as the current prosecutor has implied
in Ken's case, they're no longer jurisdictionally barred from doing
something about it. Judgementine has already ruled on this, and
she's now an advisor to the current prosecutor, Jean Peters
Baker and Baker already made use of this new law
in Kevin Strickland's case in the fall one, yet strangely
(43:30):
she is yet to act in Ken's case. It's it's
mystifying and maddening at the same time. So, Cliff, what's
going on with all of this? Now this new law, Yes,
it's about a prosecutor's right to follow a motion, but
it's also about a court's right to have jurisdiction to
consider and here the matter. Well, now they're given the
(43:51):
most courts jurisdiction, but the prosecutor has to follow it.
So in our case, we've already proved everything is with
this statute. The statute lays out that upon the filing
of such emotion, the court shall have a hearing and
issue of findings and facts and conclusions of law on
(44:12):
all issues presented. That's exactly what Judge Messina did. So
we've already been successful at securing a new trial from
my father, but the only thing we didn't have was jurisdiction. Well,
now this new law gives the court's jurisdiction, but the
prosecutor has been reluctant to file it. So now that
this new law has passed, I believe the next steps
(44:35):
are for Gene to file a motion conceding jurisdiction. That's it.
We don't need anything else from her but a one
page motion conceding jurisdiction and allow a court there in
Jackson County to get to the merits of the trial
Judge Edith Messina's order overturning my dad's conviction. Cliff for
(44:57):
our audience out there listening now, is there's some thing
you'd like them to do. What can they do to
help to write this horrible injustice. Yes, you'd go to
our website at free hyphen Ken Middleton dot com. There's
a wealth of very compelling documents that support everything we
spoke about today. If we said it today, rest assured.
(45:20):
You can go to our website and find it. And
on the homepage right up front, there's a petition asking
Jean Peters Baker to abide by her oath and follow
the plain language of this new Missouri statute. It's as
simple as a one page motion conceding jurisdiction so that
my dad can once again prove his innocence and come
(45:44):
home to the family that waits him. Right, we'll have
that linked in the bio, as well as a link
to Silver Creek Entertainment. Um I believe there's a film
on the way about Ken's case, and it can't come
soon enough as far as I'm concerned. I you know,
I'm both reading and really looking forward to watching it.
So check that out click on the link in the bio.
(46:05):
And now, guys, we have a tradition here and it's
really my favorite part of the show. It's called closing arguments.
And closing arguments is very simple. It works like this.
I'm just gonna turn my microphone off, kick back in
my chair with my headphones on. You'll turn the volume
up a little bit and just listen to anything else
you'd like to say, anything at all you have to
say to a So, Cliff, why don't you go first?
(46:26):
And Ken, we'll let you close this out. I'd like
to thank you for using your celebrity to bring awareness
to wrong for convictions, given a voice to the voiceless.
It's an amazing thing what you're doing. It's encouraged other
celebrities like Kim Kardashian and John Grisham and Johnny Depp
and you know a lot of others to take up
(46:49):
the cause and stand up for justice. And so i'd
like to thank you again. Jason and now ken over
to you. Well, what I'd like to say here that
all of the well let's listening. I would appreciate it
more than words can explain. Anything they can do, sign petitions,
sign letters to Baker to get her to follow the statute,
(47:13):
anything anybody can do to have the clearer and get
the same justice. If Kevin Strickland got I would appreciate
it more than words can say. Thank you for listening
to Wrongful Conviction. I'd like to thank our production team
(47:33):
Connor Hall, Justin Golden, Jeff Clyburn, and Kevin Wardis, with
research by Lila Robinson. The music in this production was
supplied by three time OSCAR nominating composer Jay Ralph. Be
sure to follow us on Instagram at Wrongful Conviction, on
Facebook at Wrongful Conviction Podcast, and on Twitter at wrong Conviction,
as well as at Lava for Good. On all three platforms.
(47:56):
You can also follow me on both TikTok and Instagram
at its. Jason flopp Raleval Conviction is the production of
Lava for Good Podcasts in association with Signal Company Number
one h
Kennon. Cathy Middleton had properties in Blue Springs, Missouri, as
well as Ken's family laid back in Arkansas, where they
hoped to one day retire. On February twelfth, nineteen ninety,
when he planned to clean a gun that he had
brought back from Arkansas, Ken felt ill, laid the gun
down and took the nap. Meanwhile, Cathy returned early from
work to confront Ken about news of a regretful affair
(00:23):
that had ended three years earlier. After grabbing the gun
from where Ken had laid it down, Cathy made her
way to the phone to call the alleged mistress. When
tragedy struck. It is believed that it destroyed. Kathy mishandled
the weapon in her left hand and shot herself in
the head. Ken immediately called nine one one, and first
responders found him without a drop of blood or gunshot
(00:43):
residue on him. A positive gunshot residue test of Cathy's
left hand would have conclusively ruled her death as a
tragic accident. However, her left hand test results went missing
and the crime lab document was altered in what clearly
appears to be evidence tampering, where the medical amateur and
blood spatter expert willing to testify to an impossible scenario
(01:04):
in which Ken was magically able to shoot Kathy from
less than a foot away while remaining free of blood
and g s R. Ken was sentenced to life plus
two hundred years. Despite the mishandling of the crime scene,
ballistics testing was still able to prove Ken's innocence. His
conviction was overturned in two thousand four, but a jurisdictional
technicality has held him in legal limbo ever since. Canaida's
(01:27):
son Cliff Middleton join us to ask, how is it
that even though a new statute remedies that technicality, the
current prosecutor, Jean Peters Baker, refuses to act. This is
wrongful conviction. Welcome back to Ronful Conviction. I'm your host,
(01:55):
Jason Farm. You know, each week I have a pretty
good idea of how I'm going to start the show.
You Know, usually there's one main focus, one main problem
that we can talk about in any particular case. But
this time I don't even know where to start. When
our friend Larry Garrison, who's actually known as the news
breaker okay for his years of investigative reporting and his
(02:17):
work through Silver Creek Entertainment. When he first told me
in US here at Ron Convention about the case of
Ken Middleton, he had lived up to his nickname once again,
I mean the newsbreaker. So I'll start by saying that
Ken Middleton has been in prison for over thirty years
for being present during what they may well have known
all along was just a tragic accident. And there are
(02:38):
so many problems in this case that we could literally
pick on any one of them and make an entire
episode of the show just about that. I'm talking about
ineffective assistance of council, false expert testimony, evidence, tampering, incompetent
investigator's official corruption, conflict of interest, Ken refusing freedom through
an Alford play. Write something that you never catch a
(03:00):
guilty person doing, and that's something that happened seventeen years ago,
almost eighteen now. Plus There's this insane jurisdictional technicality that
has kept this innocent man in prison long past the
time that I believe everyone knows that he should have
ever been in there. So, without further ado, at seventy
seven years old, Ken is calling in from inside the
(03:21):
prison walls in Missouri. Ken, I'm so sorry, you're here
because of the reason why you're here, but I'm very
honored to have you on the show. Thank you appreciate it.
And with Ken is his son and probably the most
passionate advocate, Cliff Middleton. Thanks for joining us. Thank you
(03:42):
so much for having me on. Jason, I really really
appreciate it. And I know how hard this is going
to be. I mean, like any other son, you love
your dad and you just want this thing to end. Okay,
let's go back in time and I'm gonna turn to you. Ken.
This is early in Blue Springs, MS and you're there
with your wife Kathy. So tell us what was happening
(04:04):
in your life? What were things like before all this happened.
It was great. We had a great marriage for over
sixteen years. Had a farm in Arkansas, two different farms.
I had three hundred and fifty two acres of the land.
I had drove a truck for over twenty years, and
I had injured my back and I wasn't working right then.
(04:24):
So I was going to the farm and doing projects,
working on the house and watching nice of the cattle
and stuff like that. Cathy worked at eight D and
T for twenty eight years. And two years he'd have
her time in worse, she could retire regardless of age.
And that's what was waiting on and was moving back
to Arkansas for good. And let's get into how this
(04:47):
came to pass. So let's go back to February, and
just to set the stage here, you had been at
your place in Arkansas and you brought a handgun that
you owned to Missouri with you. But meanwhile you had
been feeling sick, but no one knew at the time,
not you or anybody, that you were really seriously ill
(05:08):
at this point, is that right? Right? And I was
sick for left Arkansas, and when I got back Sunday afternoon,
I didn't sleep much all night. So the next morning,
Kathy had went to work at a T N T.
And I unloaded the rest of the truck and brought
the gun in the house. It had been in Arkansas
(05:29):
since I went to Coloretto elk hunt in the fall before,
and there's a big snow and rain and stuff in
Colorado and it got wet. So I picked it up
and brought it back to Missouri as aimed to clean it.
And when I got it out of the truck, I
went in the house and sat down. I called Kathy
at work, and she asked me how I was feeling.
(05:50):
I said about the same. I wasn't feeling good, and
I sat in a recliner and I went to sleep.
And I had never cleaned the gun. So the next
thing I knew is she was already home, and she
picked up the gun out of the tail and had
had the gun laying on and she was upset that
somebody had told her that was having affair with a woman,
(06:13):
which was true, but it had been over for three years.
And she walked over to the phone in the dining
room to call a woman. So I got up and dazzy,
and next thing I know, the tragedy had happened. And
the tragedy that had happened is the matter of this
dispute between the Middleton's and the State. Now. Ken maintained
(06:35):
his innocence in the matter, that this was a tragic
accident in which Kathy visibly upset about the news of
this affair, and on her way to the phone to
confront your alleged mistress, Cathy was holding the gun in
her left hand and accidentally shot herself on the left
side of her forehead. Splattering blood all over the wall.
(06:55):
This version of events is supported by the ballistics and
all the other physical evidence. And then there's what the
state wants everyone to believe. Right, bear with me, because
this is nuts. That Ken had somehow held Cathy up
against the wall and shot her in the face, but somehow,
miraculously was able to be completely clear of blood spatter
(07:17):
or gunshot residue, not a trace on him. And we'll
get into all of that a bit later. So back
to this terrible tragedy. A gunshot rang out and Cathy
was on the floor in a pool of blood. What
a nightmare? Ken? What happened next? I've seen her on
the floor and grabbed the gun and put it on
the table and call nine one one immediately. I asked
(07:39):
for the paramedics and had called them three times within
a short period of time, and wanted to know who
the paramedics was. And the third time the operator told
me to go outside, that the paramedics were there. And
I looked out, and I told her that I had
looked out and there wasn't nobody out there, and she
convinced me to go outside that they were there. So
(08:02):
I went out and the first thing I've seen was
a couple behind the walls screaming at me to get
my hands in the air and turn around with my
back to him at his gun pointed at me, and
I've done as he said, and he'd come up behind
me and searched me. Wanted to know who the paramedics were,
and he ordered me back in the house. And we
(08:25):
went back in the house and he went in and
checked on my life, and I was just historical, and
I guess I was done on my knees, and he
jerked me up. And when he'd done that fast, I've
become dizzy, real dizzy, and I thought I was ain't
a blackout, So I said, as ain't be sick, and
I went down the hall to the bathroom and I
(08:46):
went in and spliced water on my face, and then
he took me outside and I had a real bad
hurting in my left arm and chest. Now, when the
paramedics arrived, he determined, Kenny, you would have been hyperventilating,
complaining of chess planes and the blood pressure was going crazy,
and they convinced you to go to the hospital for
an examination. They taught me to go into the hospital
(09:09):
and they took me to three medical hospitals, and then
on the third one, I was forced in a mental
hospital till the next day. They later tried to say
that you had checked into that mental hospital to try
to get away with murder, claimed by claiming insanity defense.
But we're getting ahead of ourselves here, and let's not
leave out the fact that your dad was in and
out of consciousness on his way to the hospital, and
(09:30):
they took an e k G at the hospital and
it showed that Ken, that you had recently suffered from
a heart attack. Now here's another thing that I have
trouble understanding or processing. The officers didn't write their statements
until days later, and they did it by memory, right,
And these statements that were taken from a historical man
(09:51):
who had to be rushed to the hospital talking about you,
of course, Ken, who was just trying to help figure
out what happened, So the officers didn't bother to write
it down. There were a couple police reports that were
handwritten out that day, but the official reports that I
have reviewed were written on I believe it was February one,
(10:15):
and Cathy died on the twelve. Now, in researching this case,
I saw in the police reports where they kept on
documenting instances in which Kenada allegedly had done something with
his hands, like you mentioned splashing water on its face, right,
They wrote down another instance where they said he wiped
his hands on the door, touched dirt in a potted plant,
(10:38):
and the implication is that ken was trying to somehow
wash away the gunshot residue. There's a picture the Independence
News Examiner paper took of my father out there on
the front stoop, leaning over that potter plant, sobbing, and
the two paramedics are consoling him him. It's it's very
(11:01):
obvious that he was in a state of shock and hysteria.
First of all, you already claimed he was washing his
hands when he splashed water on his face. It's crazy
to think that somebody's trying to wash their hands in
the dirt unless you've been involved in something like this.
How would you even know what a gunshot residue test is,
(11:23):
especially in nine JSON maybe the day with crime shows
and things. But he didn't know what they were testing
him for. They took my shirt, under shirt and clothes
and shoes and all and they did tested then come
back native no blood or nothing on my long sleeve shirt.
And the picture in the front hide of a house
when I was over the stove shows the long sleeve
(11:45):
shirt down to my wrist. There was no blood, no
gunshot on it. Right and as the evidence clearly shows,
she was shot from very close range, less than a
foot away, and there's no way you can do that
without being covered in blood and gunshot residue. But you
weren't because you didn't kill her, and Cathy's gunshot residue
(12:06):
tests would likely have corroborated Ken's version of events and
showing that this was a tragic accident not a homicide. Cliff,
can you explain what I mean by that? They swabbed
both of her hands that day for gunshot residue, and
the prime document that they fill out shows that they
(12:27):
swabbed both hands, right and left hands, and it shows
they used two different kids to do that, one for
the right hand and one for the left hand. Well,
the next day when the corner did the autopsy, the
corner ruled it a homicide based on what the police
were telling him, unless other information come forward to prove otherwise.
(12:52):
Now that gunshot residue was important information and took him
nine days to turn the gunshot residue samples into the
crime lab, and when they turned them into the crime lab,
the document was altered to show only one kid and
(13:12):
the left hand was wide it out to show they
only tested the right hand when she was shot from
eight to twelve inches away on the left side of
her head. You really have to see this to believe it.
And we're going to link pictures of this in our
episode because I'm looking at it right now and i
still can't believe that I'm actually looking at what I'm
(13:34):
looking at. Okay. So, the test of Cathy's left hand,
the one in which she would have held the gun
in order to shoot herself, the test of that hand disappeared,
or it wasn't tested on purpose. There's only two possibilities.
The crime lab document that should have been for both
(13:55):
of her hands was altered with white out. Okay, remember
white out. It's unreal. This is like to show that
only her right hand had been tested. And this is
reinforced when you compare it with the g s R
test document for Ken in the same handwriting okay, get
ready for this. It states quote number of articles too.
(14:18):
G SR test kits for right and left hands end quote.
But then on Cathy's GSR test document, in the same
exact handwriting, it says, quote number of articles and whatever
was there is white it out right, just white it out,
and the number one is at its place, and then
(14:39):
it reads quote gunshot residue for right end quote, followed
by another gob of white out and the word hand.
So in all likelihood the white out is simply covering
the words and left as it would have been in
a request for testing of both right and left hands,
where now only one test for her right hand exists
(15:02):
and the one that really matters the left hand is missing.
Later on, after us convicted years later, we took their
deposition and Geoff Rogers that wrote the report out he
swore that he didn't put the white out on that
because his own green paper, and he said that he
wouldn't have whited it out. He had just filled out
(15:23):
a new report and we got Dave Link, the one
that took it to the lab. Nine days later. He
swore up down that he didn't do it, and he
was asked did he always take both hands of a
close gunshot residue test? He said yes. My attorney asked
him years later in ninety seven always, and he said absolutely.
(15:46):
They waited out the left hand, and they waited out
the number of articles. I mean somebody literally just took
white out. Yeah, the left hand. If it would have
come back positive, it would have been power full evidence
that she accidentally fired the gun herself. Our attorney told
us that if that left hand come back positive, the
(16:09):
corner would have changed his findings and they wouldn't have
had a case against my father. It all would have
ended right there. This episode is underwritten by A i G,
(16:31):
a leading global insurance company. A I G is committed
to corporate social responsibility and is making a positive difference
in the lives of its employees and in the communities
where we work and live. In light of the compelling
need for pro bono legal assistance, and in recognition of
A I g's commitment to criminal and social justice reform,
the A i G pro Bono Program provides free legal
(16:52):
services and other support to underrepresented communities and individuals. Now,
this is a small town police department. My understanding is
there hadn't been a homicide investigation in almost a decade.
These people were not up to the task, and they
(17:13):
started making mistakes or less as soon as they walked
into the house. Yes, yes, And like so many other cases,
I believe the police immediately focused on my father and
had tunnel vision as they began to investigate this case.
I'll start with the fact that they took photos that
day of the alleged crime scene, and the photos allegedly
(17:39):
did not come out, And after Cathy's body was removed,
they went back and restaged the crime scene and took
new photos. By the time they'd done this, my step
mother had already been taken out of the house, and
the fire department had actually been called into cut sheet
(18:00):
rock out of the wall with blood spatter and things,
and so the new pictures they took the sheet rock
was already cut out, and they had drawn a diagram
of the dining room where this happened, and the diagram
didn't match the pictures. They had moved the dining room
(18:21):
table all the way up against the wall to make
it appear that there was a bigger area there when
she was shot, right to make room for this alleged
struggle that never even happened when she went to use
the phone. In every picture they took of this small
dining room, they missed that phone Jason by a quarter
(18:41):
of an inch. Another mistake that was made that day
at the crime scene. According to the police reports, they
unclothed my stepmother naked right there on the dining room
floor and folded her clothes up and put them in
bags and transported her to the morgue naked for them
(19:04):
to unclothe her and alter any evidence that could have
been gathered from that. Now, that goes against every protocol
of any police department anywhere. Best I remember, the medical
examiner said she'd come in fully clothing, So what they
actually done was re closer the poor the medical examiner examiner,
(19:26):
that's exactly right. What the medical examiner reported didn't match
the police reports. They unclothed her and at some point
reclothed her, so they mishandled the scene, and the evidence
altered or disappeared, the key gunshot residue test of Cathy's
left hand. And then they arrested you, and eventually you
(19:46):
got out unfond and even that was kind of odd. Right,
Prosecutor Peters agreed to ten thousand, and he put a
restriction on my bond. This says not to dispose of
any martal or jointly held property without the permission of
the prosecute attorney and the probate court. You got the
(20:07):
State of Missouri coming after you with unlimited resources, and
your life and liberty is on the line. My dad
should have had access to every dime he had to
save his life, right And this also gets us to
a crazy part of this whole story. So while you're
facing Prosecutor Patrick Peters in this criminal trial against you,
(20:29):
there's also a wrongful death civil suit filed against you
by Cathy's sisters. And get this, Prosecutor Peters's father is
part of the law firm behind that civil suit, so
stands to benefit from the outcome. And of course you
(20:51):
didn't even know that at the time. They had concealed it,
and they had said that he had convinced them and
he would convict me, and the law firm would have
keep me in prison. I'd like to point out that
the Blue Springs Police Department, city attorney for Blue Springs
was also in the same law firm as the prosecutor's father,
(21:13):
So you had a triangle of a conflict of interest
here that was hidden from from everyone. Every time we
do an episode, I always think I've heard it all,
I could say, even after doing two d and fifty
episodes of this show, I've never heard of that. The
prosecutor refers the family of the woman who died to
his own father's law firm. Now everybody's compromised, right, because
(21:39):
now there's a whole another motive for them to want
to convict you with this crime so that everybody can
make money. And they ultimately got a one point three
five million dollar default wrongful debt judgment against my father.
So now there's been this litany of errors, misconduct, malfeasance,
straight up insanity. I'm gonna call it what it is,
(22:00):
it's insanity. And now finally it's time for the trial.
It's February, a year after the incident. Basically, the crux
of the States case against my dad was that he
held her up against the wall and shot her from
a foot away from her face. The prosecutor put on
his so called experts saying that she was two inches
(22:24):
away from the wall and that I had my arm
across her chest and held her up against the wall
and shot her and blood. Experts admitted that he had
a weak's training, and he's self talk. He had taken
a forty hour course on blood spattered evidence. That's all
the training that their expert had, These quote unquote experts
(22:46):
had for forty hour training course that doesn't actually teach
you anything except how to act like you know what
you're talking about in court pretty much, right. But he
didn't tell that there was no gun shot residue on
my hands or long sleeve shirt, or blood or the
nails on a long sleeve shirt. And they said he
put a bootprint on the wall, which was false. It
(23:06):
had been there weeks prior, and in order for that
bootprint to get there, his leg would have had to
have been backwards at the knee and hyper extended in
order to put that bootprint there. Right, you have this
bootprint that was physically impossible to have been made in
this scenario. But you know what, none of it freaking matters.
(23:28):
Why they could have produced any other made up nonsense
to try to support their theory. But without Ken being
covered in blood and g SR, it's all pure drivel.
Blood and gs are has to be present for us
to even entertain these bullshit footprints. Not to mention the
analysis from Bob Trussell, the renowned forensic crime investigator. That
(23:51):
further clarifies just how bogus the state's theory was. We'll
get into all of that a bit later, But unfortunately
Ken didn't benefit from Bob Wrestl's testimony or any of
this being pointed out at the original trial. Ken's attorney,
Bob Duncan, couldn't be bothered to do an investigation, not
even a thorough examination of the kund cliff. What else
(24:13):
did the state present? They also put on evidence that
the gun would take ten pounds of pressure I believe
it was without the hammer pulled three and a half
pounds with the hammer pulled. Well, the gun needed to
be examined in the exact state it was found in,
and it wasn't. They had dismantled it and put it
back together before testing it, so if there was any
(24:35):
problems with the gun, they fixed it when they put
it back together. Bob Duncan was asleep at the wheel,
if you will, and had none of the physical evidence
examined by an expert in hadn't interviewed any witnesses. He
was totally unprepared for the case to even go to trial.
Did I hear this correctly? That he didn't even make
an opening statement. He reserved one and he forgot to
(24:59):
give it. I couldn't get him to do nothing. They
didn't see nothing about the gunshunt residue. Not one word
of them was lighten that document out. They never seen
it without a proper defense, you're out there, Mercy. Years later,
in ninety and ninety six, he gave me three affidavid's
of what he had failed to do. This is my
(25:21):
trial attorney, Robert Duncan. I did not have any physical
evidence in the case examined by a forensic expert, other
than to speak to a gun expert about the gun.
But I did not have him examined the gun. And
then he gave another affidavit and he said, father, I
believed my ability to defend Mr Middleton was impowered because
(25:43):
I wasn't given the information of the connection between the
police department, the prosecutor, and the civil claims against mister
Middleton's seeking a substantial monetary recovery. This information, if for
no other purpose, would have been admits as impeachment evidence
showing the bias of the police and some of the witnesses.
(26:06):
So Cathy's sister, Mildred Anderson gave Voss testimony for the
prosecution to show motive that Ken had secret assets in
Arkansas that no one in the family was aware of.
And we know this is just another lie because Mildred
Anderson later said she admitted that she and the rest
of the family actually did know about all of the
assets before Kathy's death, which is a clear cut example
(26:27):
of perjury, which in Missouri in a murder case at
the class A felony, and that Peter's colluded with her
because Peter's put it in the question would be simple
for her, says, quote, quite a bit of holdings down
in Arkansas that you and your family, including your sister
were unaware of. She says, yes. It should also be
(26:52):
mentioned Jason that after the sister testified to that, the
prosecutor instructed the police to part man to release eighteen thousand,
seven hundred dollars worth of jewelry that was confiscated out
of the house to the witness. So not only was
it perjury, she was rewarded with eighteen thousand, seven hundred
(27:13):
dollars worth of jewelry. And then eight years later, on
March at twenty fifth, ninety nine, Mildred Anderson gave foreign
testimony in her Arkansas lawsuit against Kenneth Middleton, which showed
she clearly perjured herself in n and her sister corroborated it. Wow. Okay,
(27:33):
So I gotta ask about what must have been the
worst day all of your life, which of course is
the day that the jury went out for a breaking
an hour and came back in and sentenced you to
life without parole plus two hundred years. Well, I don't
know how to describe it, but I was in shock.
And until this outing, I never spent a day in
(27:55):
jail in my life. And take you from being free
in the country and working home alive to throw you
in a cage. It's unbelievable. And I can't explain. Growing
up as a kid, I would never in a million
years dream that what happened to my dad would have
happened to him. He just was, you know, a great
(28:18):
fathers because he's been more of a father to me
behind bars than most kids could ask for from a
father on the street. And uh, it was devastating to
our whole family. So now we moved to the post
(28:51):
compiction and there's still more insanity to come. So it's
and your appellate attorney is a man named Gerald Handley
who was recommended by Bob. Well, that's not a good time.
And one of the first things we come to is
that what's called appeal, Cliff, can you explain that to
us and get us started here. After trial, the first
(29:11):
appeal that you have in the state of Missouri is
your post conviction fifteen is an appeal that's filed back
in front of the trial judge to evaluate your trial
to make sure that you had a fair trial. That's
where you bring your ineffective assistance of counsel issues if
you have any. So you have ninety days to do
(29:34):
that in Missouri or you don't get that hearing on
ineffective assistance a council. And that's right back in front
of the very trial judge that just set on your
trial and convicted you. So you got a high burden
to meet there, right, You got to prove that you
had an unfair trial and your attorney didn't do his job.
Our appellent attorney at that time had a ninety day
(29:56):
window to follow an amended petition for da AT and
get all of his issues in the appeal. He never
met with my dad, never went over any of the
issues which the law requires him to do. And at
the last minute, before the ninety days was up and
you could get no extensions, my dad gets a letter
(30:17):
from his attorney telling him to sign this affidavit that
all of his issues are in the amended petition, even
though my dad had never seen the petition. And if
you didn't sign that affidavit and have it with your
amended petition when you filed it, you were out. You
couldn't even get a fifteen hearing. So my dad had
(30:37):
to sign it and at least hope that his attorney
was gonna put all of his issues in it. Well,
we had to do a lot of finaglin to get
that affidavit to him before Monday, and when we got
it to him on Monday, Gerald Hanley filed a three
page motion on my dad's life, procedurally defaulting all of
(30:59):
his issues on appeal. So because that attorney procedurally defaulted
all of his issues, the facts and the merits of
his case were never heard. And when we went to
the evidentiary hearing, I had nine witnesses out in the hallway.
When I got to the courthouse, the witnesses that knew
Pat Peters through trial, seeing Pat Peters talking to the
(31:22):
uniform guard, and the guard took a post at the
door and wouldn't let none of my witnesses in the courtroom.
I didn't know what happened to him till I got
back to the jail and made some calls. Peters called
Duncan to the stand, and Duncan testified this basically answered
Peter's questions, said I checked himself into the hospital while
(31:44):
I was shaken the head. It was a live because
I was forced in that metal hospital. One of the
records that Bob Duncan didn't get was the medical records
from the mental ward. The prosecution's theory was that it
was trial strategy for Duncan did not get the medical
records because the prosecution had a witness that would have
said Dad told him, if you want to get away
(32:07):
with murder, you check yourself into a mental ward after
you do it. So Judge Messina agreed and said, yeah,
that's not ineffective assistance Accouncil. He he didn't get them
records because he voluntarily checked hisself into a mental ward.
Well that wasn't true. But Gerald Hanley never got the
records either, so the judge never knew this, and so
(32:29):
the hearing ended and no witnesses were called, no expert
testimony was given, and no evidence was presented to refute
the state. Gerald Hanley ended up being and this is
hard to believe, but he ended up being just as
disinterested as Bob Duncan was before. And so predictably, Judge
Messina rejected your twenty nine fifteen appeal. It's insane. It's
(32:51):
not because the appeal was invalid. It's because the lawyers
didn't do their freaking jobs. And according to the law
at that time, the trial court's jurisdiction over your case ended.
So Cliff, eventually you all get a new attorney, Jonathan Lawrence,
and there's a new law that gave you and your
dad some hope, or maybe false hopes, but some positive
(33:12):
things came about nonetheless, So can you tell us what
happened next? In two thousand one, a law come down
that give courts the opportunity to reevaluate cases. If you
could prove your fifteen attorney, Gerald Hanley, abandoned you on
your the trial courts could look at your case again.
(33:34):
So my dad had done all this research on this
and had done everything, and we took it to Jonathan Lawrence,
and Jonathan Lawrence at first didn't think we could do it,
but once he read the case law, he said, yeah,
I believe we can. So Jonathan Lawrence got involved and
filed an eighty one page motion and convinced Judge Messina,
(33:57):
who denied us back in ninety two, to reopened my
father's case. And she held a two day evidentiary hearing
in two thousand and four, and you finally have an
attorney here who can do justice in your father's case,
who gathered and presented some powerful expert testimony, including from
investigator Chuck Gay, who had been at the courthouse for
(34:19):
the hearing but had been prevented from entering the courtroom.
Now he finally had a chance to speak. Chuck Gay
was the twenty five year police officer in Long Beach, California.
He had actually talked to the FBI in different courses
on crime scene investigation, and he testified to the crime
(34:41):
scene photos not coming out. You can't restage a crime scene.
That's absurd, unclothing her at the scene, all of these things.
Crime scene preservation is what Chuck Gay testified to and
how improper it was. The gunshot residue was a real
big one with him. We found out a little more
(35:03):
about the green document, so you have to realize before trial,
when they give us that green document, it was just
a copy, so it was on white paper. We really
didn't know what it said underneath, but we knew something
was wrong because the left hand was missing. And when
our investigator after the trial went to go investigate that,
(35:26):
the crime lab said, we didn't do that. They said,
these are our documents. We used green out, so they
were pointing the finger at the police. They knew that
that wasn't right. There was no initials or anything that
would indicate who did it or or why they did it.
Myself and our attorney in two thousand and six team
(35:49):
went to the crime lab and and got this document
and him and I both held it up to the
light and you could see underneath the white out on
the umber of articles, and then underneath the other wide
out off to the side, you could see the word left.
And he gave us an affidavit that that was the
(36:10):
worst alteration of official documents he had ever seen in
thirty two years. I believe a practicing law and you
also had testimony from a ballistics expert proving that the
scenario presented by the state was physically impossible. And this
guy was no slouching. He had overseen over eight hundred investigations,
(36:31):
and importantly he had been an expert for both prosecution
and defense. And of course the guy I'm referring to
is Bob Tressell. I'm Bob Trestle. I'm a forensic crime
scene investigator. When I first looked at the case, the
bullet was found across the room after it had struck
the door frame, ricocheted up to the ceiling and over
(36:54):
to on the other side of the dining room. So
it began looking at the angles that the bullet hook
in striking the door frame exiting the door frame. Their
lab came up with what we call a muzzle to
target or the barrel of the whip and having to
be approfesimately eight inches from her face where the bullet entered.
So then we started looking at the gun. The guns
(37:16):
of three seven magnum you get the length of the
barrel chamber in the grip area. So although the barrels
set inches from her face, the gun is almost fourteen
inches and total length away from her face. And then
we started looking at the wounds themselves pretty well, a
straight shot gunshot when with little deviation on the upward
(37:39):
or downward plane, and with the bullet not deviating very
much right or left, the shot had come from directly
in front of her the upper trajectory, because we know
where it strikes on the wall, and then rick schat
is off, we know it's going upward. So she has
to have her upper body bent over or her head
bent over towards the table in order to receive that
(38:01):
gunshot one and there's only about two ft distance between
the table and the walls, and so you've got to
get two people almost directly in front of each other.
But the gun's gotta be held way down low, and
in order to get the distances that we saw, the
gun has got to be almost on top of the table.
(38:21):
So where can the shooter be at that point when
we finally did all the calculations in order for someone
to be directly in front of her, if a shooter
was the one that fired this weapon, he would have
to be under the table. That makes no sense whatsoever.
There's no direct forensic evidence either by blood tissue gunshot residue,
(38:45):
things of that nature that indicate that Middleton fired this gun,
killing his wife. And so all of this powerful expert
testimony has been heard. And to top it all off,
there was one more witness that testified on your father's behalf,
the former governor of Missouri. Yes, you heard that correctly.
The former governor of Missouri, Joseph P. Teasdale, testified on
(39:09):
Kensby had and he had expensive trial experience as an
assistant U. S attorney, prosecuting attorney, and as a trial lawyer.
And he testified to the quote suspect conduct of the
prosecutors and the quote ineffective performance of the defense council.
And at the end of the testimony, former Governor Teasdale
was asked what he would have done if this case
(39:31):
had been presented to him in his capacity as governor,
and he replied that this was the worst case of
constitutional violations that he had ever witnessed in forty one
years of practicing law, and that he, and this is
a direct quote, would clearly have pardoned Mr Middleton of
all wrongdoing end quote. That's a strong statement. He had
(39:56):
gotten familiar with Dad's case a few years before, and
I reached out to him when we got this evidency
hearing and asked him what his costs would be for
him to come testify, and and he said, I don't
want any money. I want to state dinner when your
dad gets out of there. And it meant a lot
(40:16):
to me. So, finally, this information that you've been trying
to get hurt for so many years, the ineffective Council
of the Prosecutor, of misconduct and conflicts of interest, the
botched investigation and alter reports, You're finally able to get
that before the judge, and even a more conservative judge,
Judge Massina, could not deny the merits of Ken's case.
(40:37):
So this was all powerful evidence that the jury never heard.
After all this evidence was put forward, Judge Messina took
it under advisement and would not rule on the case
for eleven more months. Two weeks after the hearing was over,
the prosecutors come to my dad with an Alfred plea.
If he would plead to an Alfred plea and plead
(40:59):
guilty to second degree, he could walk out of prison
of Freeman. But even though all of his appeals were
exhausted and we were setting in front of very conservative
judge my father refused the offered plea for him to
turn that down. With all appeals exhausted, that speaks volumes
(41:20):
to his innocence, and on May twenty five, Judgementina came
back and vacated ken conviction and granted him a new trial.
So the same judge who denied him in overturned his conviction.
Judge Massina found eight different points of ineffective assistance at
council on Bob Duncan. The man had three other capital
(41:42):
murder cases overturned at the same time he was handling
my dad's case. But just six days after this incredible news,
you get a huge punch to the gun. What does
the Jackson County Prosecutor's office do? They appeal the decision.
So if he would plead guilty after that hearing, they
were willing to let him go. But when he stood
(42:04):
by his innocence and the trial judge agreed and overturned
his conviction, they appealed it. They ruled that Judge Messina
didn't have jurisdiction to issue that new trial. They never
got to the merits or the facts that she ruled
he was wrongfully convicted in violation of his sixth Amendment
right to constitutional effective representation. They never got to any
(42:26):
of that. They just said she didn't have jurisdiction. And
this is now seventeen long years ago. It's it's crazy.
I mean, the court heard the merits of his innocence
and decided he should get a new trial, but outside
of the appellate proceedings, it was ruled that the trial
(42:46):
court didn't have jurisdiction. So Ken has just been sitting
there since two thousand four, awaiting a miracle or a
change in the law so that his case could be
heard again, and that finally happened in August on a
new law was passed in Missouri that allows a case
to go before the trial judge outside of hearing. So
(43:08):
what that means is that if a prosecutor knows that
a man is innocent, as the current prosecutor has implied
in Ken's case, they're no longer jurisdictionally barred from doing
something about it. Judgementine has already ruled on this, and
she's now an advisor to the current prosecutor, Jean Peters
Baker and Baker already made use of this new law
in Kevin Strickland's case in the fall one, yet strangely
(43:30):
she is yet to act in Ken's case. It's it's
mystifying and maddening at the same time. So, Cliff, what's
going on with all of this? Now this new law, Yes,
it's about a prosecutor's right to follow a motion, but
it's also about a court's right to have jurisdiction to
consider and here the matter. Well, now they're given the
(43:51):
most courts jurisdiction, but the prosecutor has to follow it.
So in our case, we've already proved everything is with
this statute. The statute lays out that upon the filing
of such emotion, the court shall have a hearing and
issue of findings and facts and conclusions of law on
(44:12):
all issues presented. That's exactly what Judge Messina did. So
we've already been successful at securing a new trial from
my father, but the only thing we didn't have was jurisdiction. Well,
now this new law gives the court's jurisdiction, but the
prosecutor has been reluctant to file it. So now that
this new law has passed, I believe the next steps
(44:35):
are for Gene to file a motion conceding jurisdiction. That's it.
We don't need anything else from her but a one
page motion conceding jurisdiction and allow a court there in
Jackson County to get to the merits of the trial
Judge Edith Messina's order overturning my dad's conviction. Cliff for
(44:57):
our audience out there listening now, is there's some thing
you'd like them to do. What can they do to
help to write this horrible injustice. Yes, you'd go to
our website at free hyphen Ken Middleton dot com. There's
a wealth of very compelling documents that support everything we
spoke about today. If we said it today, rest assured.
(45:20):
You can go to our website and find it. And
on the homepage right up front, there's a petition asking
Jean Peters Baker to abide by her oath and follow
the plain language of this new Missouri statute. It's as
simple as a one page motion conceding jurisdiction so that
my dad can once again prove his innocence and come
(45:44):
home to the family that waits him. Right, we'll have
that linked in the bio, as well as a link
to Silver Creek Entertainment. Um I believe there's a film
on the way about Ken's case, and it can't come
soon enough as far as I'm concerned. I you know,
I'm both reading and really looking forward to watching it.
So check that out click on the link in the bio.
(46:05):
And now, guys, we have a tradition here and it's
really my favorite part of the show. It's called closing arguments.
And closing arguments is very simple. It works like this.
I'm just gonna turn my microphone off, kick back in
my chair with my headphones on. You'll turn the volume
up a little bit and just listen to anything else
you'd like to say, anything at all you have to
say to a So, Cliff, why don't you go first?
(46:26):
And Ken, we'll let you close this out. I'd like
to thank you for using your celebrity to bring awareness
to wrong for convictions, given a voice to the voiceless.
It's an amazing thing what you're doing. It's encouraged other
celebrities like Kim Kardashian and John Grisham and Johnny Depp
and you know a lot of others to take up
(46:49):
the cause and stand up for justice. And so i'd
like to thank you again. Jason and now ken over
to you. Well, what I'd like to say here that
all of the well let's listening. I would appreciate it
more than words can explain. Anything they can do, sign petitions,
sign letters to Baker to get her to follow the statute,
(47:13):
anything anybody can do to have the clearer and get
the same justice. If Kevin Strickland got I would appreciate
it more than words can say. Thank you for listening
to Wrongful Conviction. I'd like to thank our production team
(47:33):
Connor Hall, Justin Golden, Jeff Clyburn, and Kevin Wardis, with
research by Lila Robinson. The music in this production was
supplied by three time OSCAR nominating composer Jay Ralph. Be
sure to follow us on Instagram at Wrongful Conviction, on
Facebook at Wrongful Conviction Podcast, and on Twitter at wrong Conviction,
as well as at Lava for Good. On all three platforms.
(47:56):
You can also follow me on both TikTok and Instagram
at its. Jason flopp Raleval Conviction is the production of
Lava for Good Podcasts in association with Signal Company Number
one h
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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