Missouri Supreme Court Denies Stay of May 19 Execution for Brain-Damaged Man Tried Five Times for the Same Murder

In a case long marred by pros­e­cu­to­r­i­al mis­con­duct, the Missouri Supreme Court has denied a stay of exe­cu­tion for Walter Barton (pic­tured), reject­ing his claims of inno­cence and incom­pe­tence to be exe­cut­ed. The court’s rul­ing on April 27, 2020 made no men­tion of Barton’s addi­tion­al request to put off his exe­cu­tion because of pub­lic health dan­gers relat­ing to the coronavirus pandemic.

If Barton’s exe­cu­tion is car­ried out as sched­uled on May 19, it would be the first in the nation since the pandemic began. 

Barton argued that he had pre­sent­ed suf­fi­cient evi­dence of his inno­cence to be grant­ed a hear­ing on that issue and a relat­ed claim that the pros­e­cu­tion had with­held excul­pa­to­ry evi­dence. Barton’s lawyers also pre­sent­ed evi­dence that he is not com­pe­tent to be exe­cut­ed because of a trau­mat­ic brain injury. 

The court dis­agreed, say­ing Barton had pro­vid­ed only ​“com­pet­ing expert tes­ti­mo­ny” and ​“mere[ ] impeach­ment evi­dence” that dis­cred­it­ed the prosecution’s case but did not estab­lish his inno­cence. It fur­ther ruled that Barton was com­pe­tent to be exe­cut­ed because he had a ratio­nal and fac­tu­al under­stand­ing that he was going to be exe­cut­ed and why and did not suf­fer from a psy­chot­ic or delu­sion­al dis­or­der impair­ing that understanding.

“Missouri is about ready to put to death an actu­al­ly inno­cent man,” Barton’s attor­ney, Frederick Duchardt, Jr., said.

Prosecutors have tried Barton five times for the 1991 mur­der of 81-year-old Gladys Kuehler. His first two tri­als result­ed in mis­tri­als, once because the jury was dead­locked as to his guilt. His third and fourth tri­als end­ed in con­vic­tions that were over­turned because of pros­e­cu­to­r­i­al mis­con­duct. In one, pros­e­cu­tors made improp­er clos­ing argu­ments, and in the oth­er, they failed to dis­close the back­ground of a wit­ness. His fifth tri­al, in 2006, was moved to a dif­fer­ent coun­ty, where four poten­tial jurors opined that it was ​“dif­fi­cult to believe” Barton could be inno­cent if pros­e­cu­tors had spent so many years try­ing to convict him.

The case against Barton relied on tes­ti­mo­ny from a blood spat­ter expert, who tes­ti­fied that small blood stains from the vic­tim found on Barton’s cloth­ing were the result of ​“force­ful ejec­tion.” Barton said the victim’s blood was on his clothes because he was one of the peo­ple who found her body, and his attor­neys argued that the perpetrator’s clothes would have been soaked in blood because the vic­tim had been stabbed 50 times. A jail­house infor­mant tes­ti­fied against Barton, claim­ing that he had threat­ened that he would kill her ​“like he killed that old lady.” The infor­mant had almost 30 con­vic­tions on her record, includ­ing forgery and fraud, and a case against her had been dropped in exchange for her tes­ti­mo­ny against Barton. In his fifth tri­al, she lied to the jury about the extent of her criminal record.

In 2007, the Missouri Supreme Court nar­row­ly upheld Barton’s con­vic­tion on a 4 – 3 vote. Dissenting Judge Michael Wolff wrote that the prosecution’s blood stain evi­dence was ​“high­ly sus­pect at best,” and point­ed out that an uniden­ti­fied hair found on the victim’s stom­ach did not match Barton. ​“When tak­en togeth­er with the dubi­ous phys­i­cal evi­dence sup­pos­ed­ly impli­cat­ing Barton,” Wolff wrote, ​“evi­dence of the uniden­ti­fied hair casts yet more doubt on the suf­fi­cien­cy of the phys­i­cal evi­dence.” ​“I can­not imag­ine … why the court would approve the death sen­tence on this sor­ry record,” he wrote.

Barton’s peti­tion to the court detailed a trau­mat­ic brain injury that coun­sel argued ren­dered him incom­pe­tent to be exe­cut­ed. Dr. Patricia Zapf wrote in an eval­u­a­tion of Barton, ​“As a result of his Major Neurocognitive Disorder, Mr. Barton has sig­nif­i­cant impair­ments in exec­u­tive func­tion, prob­lem solv­ing, atten­tion, con­cen­tra­tion, work­ing mem­o­ry, and abstract rea­son­ing, which result in the inabil­i­ty to pro­vide ratio­nal assis­tance to coun­sel and to engage in con­sis­tent, log­i­cal, and ratio­nal deci­sion mak­ing.” The court said Barton did not meet the stan­dard for incom­pe­ten­cy set forth by the U.S. Supreme Court, which requires a pris­on­er to lack a ​“ratio­nal under­stand­ing” of the exe­cu­tion or the rea­sons for it. He also failed to meet Missouri’s statu­to­ry incom­pe­ten­cy require­ments, the court found.

Missouri is the only state that has not halt­ed an exe­cu­tion that is sched­uled to be car­ried out dur­ing the pan­dem­ic. Texas appeal and tri­al courts have stayed or resched­uled six exe­cu­tions because of the pub­lic health emer­gency and the Tennessee Supreme Court has stayed another.