As Blood Spatter Evidence Causes Jurors to Question His Guilt, Missouri Prepares to Execute Walter Barton

The U.S. Court of Appeals for the Eighth Circuit has vacat­ed a stay of exe­cu­tion for Missouri death-row pris­on­er Walter Barton (pic­tured) who is sched­uled to be exe­cut­ed on Tuesday, May 19, 2020. The court’s unsigned opin­ion, issued on Sunday, May 17, lift­ed a stay of exe­cu­tion that had been issued May 15 by a fed­er­al dis­trict court judge. The dis­trict court said a stay was nec­es­sary to afford it time to address a peti­tion Barton had filed that chal­lenged his con­vic­tion and death sen­tence based upon new foren­sic evi­dence that con­tra­dict­ed con­tro­ver­sial blood spat­ter tes­ti­mo­ny pre­sent­ed by Missouri pros­e­cu­tors in his case. The appeals court wrote, ​“we vacate the stay of exe­cu­tion and remand with instruc­tions to dis­miss Barton’s peti­tion because we see no pos­si­bil­i­ty of suc­cess on the mer­its … of Barton’s claims.”

Barton’s peti­tion pre­sent­ed affi­davits from three of the jurors who had vot­ed to con­demn him to death. Having seen for the first time foren­sic evi­dence each described as ​“com­pelling,” the jurors wrote that the new evi­dence would have affect­ed their delib­er­a­tions in his case. 

Prosecutors have tried Barton five times for the bru­tal 1991 stab­bing death of 81-year-old Gladys Kuehler. Two times, Barton’s con­vic­tions and death sen­tences were over­turned because of pros­e­cu­to­r­i­al mis­con­duct. Two oth­er times, the tri­als end­ed in mis­tri­als. As Barton’s May 19, 2020 exe­cu­tion date approach­es, and issues of inno­cence, mis­con­duct, and men­tal com­pe­ten­cy con­tin­ue to swirl around the case, Missouri is mov­ing for­ward with prepa­ra­tions for what would be the first exe­cu­tion in the United States since the COVID-19 pandemic began.

In an ongo­ing inves­ti­ga­tion that they say has been ham­pered by the pub­lic health respons­es to the pan­dem­ic, Barton’s defense team has attempt­ed to inter­view jurors about new foren­sic analy­sis that con­tra­dicts what the defense describes as ​“junk sci­ence” tes­ti­mo­ny pre­sent­ed by a pros­e­cu­tion expert at Barton’s fifth tri­al. Pleadings filed in fed­er­al court on May 4, 2020 seek­ing a stay of exe­cu­tion and a new tri­al for Barton say that the defense has been able to con­tact three of the jurors from his 2006 tri­al, includ­ing the jury fore­man, and show them the new evi­dence. Affidavits from the three jurors describe the tes­ti­mo­ny of pros­e­cu­tion expert William Newhouse as the ​“strongest evi­dence” against Barton and say that the ​“com­pelling” new evi­dence offered by the defense ​“would have affect­ed [their] con­sid­er­a­tion of Mr. Barton’s guilt.” A Missouri fed­er­al dis­trict court heard argu­ment on the stay motion via tele­con­fer­ence on May 14 before issu­ing its opin­ion late in the day May 15. 

Newhouse told the jury that small blood stains on Barton’s clothes were ​“impact stains” from ​“high veloc­i­ty” blood spat­ter, which the pros­e­cu­tion argued occurred while Barton was pur­port­ed­ly stab­bing Kuehler. However, a 2015 analy­sis by crime scene ana­lyst Lawrence Renner con­clud­ed that the blood­stains on Barton’s clothes were actu­al­ly ​“trans­fer stains,” like­ly caused by con­tact with oth­er blood­stains. Kuehler had been stabbed 50 times, and Renner said that the per­pe­tra­tor of such a griz­zly mur­der would have been cov­ered in the victim’s blood. Barton was one of three peo­ple, along with a neigh­bor and Kuehler’s grand­daugh­ter, Debbie Selvidge, who dis­cov­ered her body. He says he pulled Selvidge away from Kuehler’s body, get­ting droplets of Kuehler’s blood on his clothes.

The jurors called the new evi­dence ​“com­pelling,” and the jury fore­man wrote that it would have made him ​“uncom­fort­able” rec­om­mend­ing a death sen­tence for Barton. The jurors also indi­cat­ed that they were not unan­i­mous on the ques­tion of Barton’s guilt at the start of delib­er­a­tions, not­ing that one juror had ​“seri­ous ques­tions” about whether he was guilty. Frederick Duchardt Jr., Barton’s attor­ney, called the case ​“a night­mare because the orig­i­nal case against Mr. Barton was a close one. It is a worse night­mare because evi­dence, nev­er heard by the jury who ren­dered judg­ment, under­mines the key evi­dence used to convict.”

In addi­tion to the blood spat­ter tes­ti­mo­ny, pros­e­cu­tors pre­sent­ed tes­ti­mo­ny from a jail­house infor­mant, Katherine Allen, who had been con­vict­ed 29 times for fraud, forgery, and relat­ed offens­es. Allen claimed that Barton had con­fessed to her and then threat­ened to kill her ​“like he killed that old lady” if she dis­closed his alleged con­fes­sion. Allen lied to the jury that she had only six con­vic­tions and that she had received no ben­e­fits for impli­cat­ing Barton. Prosecutors with­held from the defense the fact that they had dis­missed an addi­tion­al case against Allen in exchange for her tes­ti­mo­ny in Barton’s fifth trial.

Barton sought a stay of exe­cu­tion from the Missouri Supreme Court, argu­ing that he is inno­cent and that he has become incom­pe­tent to be exe­cut­ed because of a trau­mat­ic brain injury. A sup­ple­men­tal motion sought to post­pone the exe­cu­tion because of the coro­n­avirus pan­dem­ic. On April 27, 2020, the Missouri Supreme Court dis­missed Barton’s sub­stan­tive claims with­out a hear­ing and denied a stay of exe­cu­tion. It did not men­tion the COVID-19 motion in its rul­ing deny­ing the stay. He filed his habeas peti­tion and stay appli­ca­tion in fed­er­al court two weeks later.

Missouri plans to pro­ceed with the nation’s first exe­cu­tion since March 5. Courts in Texas and Tennessee have stayed or resched­uled sev­en exe­cu­tions after lawyers raised con­cerns that con­duct­ing inves­ti­ga­tions dur­ing the pan­dem­ic could endan­ger pub­lic health and exe­cu­tions could spread the coro­n­avirus among pris­on­ers, cor­rec­tions staff, and wit­ness­es. Karen Pojmann, a spokesper­son for the Missouri Department of Corrections, said the prison had three sep­a­rate view­ing rooms for wit­ness­es. Witnesses will be screened and giv­en a tem­per­a­ture check before enter­ing, and each room will be lim­it­ed to 10 peo­ple to com­ply with the state’s social dis­tanc­ing rules. ​“We plan to lim­it the num­ber of wit­ness­es in each room and space them out with­in each room,” Pojmann said. ​“We have ample access to hand san­i­tiz­er, fab­ric face masks and oth­er sup­plies, as needed.”

Blood spat­ter analy­sis, like many oth­er types of foren­sic evi­dence, has come under scruti­ny over the last decade. A land­mark 2009 report by the National Academy of Sciences found that blood spat­ter analy­sis is often ​“more sub­jec­tive than sci­en­tif­ic.” ​“The uncer­tain­ties asso­ci­at­ed with blood­stain-pat­tern analy­sis are enor­mous,” the report stat­ed. In a 2007 dis­sent from a 4 – 3 deci­sion uphold­ing Barton’s con­vic­tion, Missouri Supreme Court Judge Michael Wolff called the blood­stain evi­dence against Barton ​“high­ly sus­pect at best.”