Speaker 1: Canon.
Speaker 2: Kathy Middleton had properties in Blue Springs, Missouri, as well
Speaker 2: as Ken's family lay back in Arkansas, where they hoped
Speaker 2: to one day retire. On February twelfth, nineteen ninety, when
Speaker 2: he planned to clean a gun that he had brought
Speaker 2: back from Arkansas, Ken felt ill, laid the gun down
Speaker 2: and took the nap. Meanwhile, Kathy returned early from work
Speaker 2: to confront Ken about news of a regretful affair that
Speaker 2: had ended three years earlier. After grabbing the gun from
Speaker 2: where Ken had laid it down, Kathy made her way
Speaker 2: to the phone to call the alleged mistress. When tragedy struck.
Speaker 2: It is believed that it destroyed. Kathy mishandled the weapon
Speaker 2: in her left hand and shot herself in the head.
Speaker 2: Ken immediately called nine one one when first responders found
Speaker 2: him without a drop of blood or gunshot residue on him.
Speaker 2: A positive gunshot residue test of Kathy's left hand would
Speaker 2: have conclusively ruled her death as a tragic accident. However,
Speaker 2: her left hand test results went missing and the crime
Speaker 2: lab document was altered in what clearly appears to be
Speaker 2: evidence tampering, where a medical ex disaminur and blood spatter
Speaker 2: expert willing to testify to an impossible scenario in which
Speaker 2: Ken was magically able to shoot Kathy from less than
Speaker 2: a foot away while remaining free of blood and GSR.
Speaker 2: Ken was sentenced to life plus two hundred years. Despite
Speaker 2: the mishandling of the crime scene, ballistics testing was still
Speaker 2: able to prove Ken's innocence. His conviction was overturned in
Speaker 2: two thousand and four, but a jurisdictional technicality has held
Speaker 2: him in legal limbo ever since. Canada's son Cliff Middleton
Speaker 2: join us to ask, how is it that even though
Speaker 2: a new statute remedies that technicality, the current prosecutor, Jean
Speaker 2: Peters Baker, refuses to act. This is raeful conviction. Welcome
Speaker 2: back to Raful Conviction. I'm your host, Jason Faum. You know,
Speaker 2: each week I have a pretty good idea of how
Speaker 2: I'm going to start the show. You Know, usually there's
Speaker 2: one main focus, one main problem that we can talk
Speaker 2: about in any particular case. But this time I don't
Speaker 2: even know where to start. When our friend Larry Garrison,
Speaker 2: who's aptly known as the newsbreaker okay for his years
Speaker 2: of investigative reporting and his work through Silver Creek Entertainment.
Speaker 2: When he first told me and us here at Romful
Speaker 2: Conviction about the case of Ken Middleton, he had lived
Speaker 2: up to his nickname once again, I mean the Newsbreaker.
Speaker 2: So I'll start by saying that Ken Middleton has been
Speaker 2: in prison for over thirty years for being present during
Speaker 2: what they may well have known all along was just
Speaker 2: a tragic accident. And there are so many problems in
Speaker 2: this case that we could literally pick on any one
Speaker 2: of them and make an entire episode of the show
Speaker 2: just about that. I'm talking about ineffective assistance of counsel,
Speaker 2: false expert testimony, evidence, tampering, incompetent investigator's official corruption, conflicts
Speaker 2: of interest, Ken refusing freedom through at Alford play right,
Speaker 2: something that you never catch he's a guilty person doing,
Speaker 2: and that's something that happened seventeen years ago, almost eighteen now. Plus.
Speaker 2: There's this insane jurisdictional technicality that has kept this innocent
Speaker 2: man in prison long past the time that I believe
Speaker 2: everyone knows that he should have ever been in there. So,
Speaker 2: without further ado, at seventy seven years old, Ken is
Speaker 2: calling in from inside the prison walls in Missouri. Ken
Speaker 2: I'm so sorry you're here because of the reason why
Speaker 2: you're here, but I'm very honored to have you on
Speaker 2: the show.
Speaker 3: Thank you appreciate it.
Speaker 2: And with Ken is his son and probably most passionate advocate,
Speaker 2: Cliff Middleton. Thanks for joining us.
Speaker 1: Thank you so much for having me on. Jason, I
Speaker 1: really really appreciate it.
Speaker 2: And I know how hard this is going to be.
Speaker 2: I mean, like any other son, you love your dad
Speaker 2: and you just want this thing to end. Okay, let's
Speaker 2: go back in time and I'm gonna turn to you. Ken.
Speaker 2: This is early nineteen ninety in Blue Springs, missus, and
Speaker 2: you're there with your wife, Kathy. So tell us what
Speaker 2: was happening in your life? What were things like before
Speaker 2: all this happened.
Speaker 3: It was great. We had a great marriage for over
Speaker 3: sixteen years, had a farm in Arkansas, two different farms.
Speaker 3: I had three hundred and fifty two acres of the land.
Speaker 3: I had drove a truck for over twenty years and
Speaker 3: had injured my back and I wasn't working right then.
Speaker 3: So I was going to the farm and doing projects,
Speaker 3: working on the house and watching nice of the cattle
Speaker 3: and stuff like that. Kathy worked at at and t
Speaker 3: for twenty eight years and two years he'd have her
Speaker 3: time in horse she could retire regardless of age. And
Speaker 3: that's what was waiting on and was moving back to targets
Speaker 3: all for good.
Speaker 2: And let's get into how this came to pass. So
Speaker 2: let's go back to February twelfth, nineteen ninety and just
Speaker 2: to set the stage here, you had been at your
Speaker 2: place at Arkansas and you brought a handgun that you
Speaker 2: owned back to Missouri with you. But meanwhile you had
Speaker 2: been feeling sick, but no one knew at the time
Speaker 2: that you or anybody that you were really seriously ill
Speaker 2: at this point, is that right?
Speaker 3: Right? And I was sick for left Arkansas, and when
Speaker 3: I got back Sunday afternoon, I didn't sleep much all night.
Speaker 3: So the next morning, Kathy had went to work at
Speaker 3: at and T, and I unloaded the rest of my
Speaker 3: truck and brought the gun in the house. It had
Speaker 3: been in Arkansas since i'd went to Colorado Elcott in
Speaker 3: the fall before, and there's a big snow and rain
Speaker 3: and stuff in Colorado and it got wet, so I
Speaker 3: picked it up and brought it back to Missouri. I
Speaker 3: was aim to clean it and when I got it
Speaker 3: out of the truck, I went in the house and
Speaker 3: sat down. I called Kathy at work, and she asked
Speaker 3: me how I was feeling. I said about the same.
Speaker 3: I wasn't feeling good, and I sat in a recliner
Speaker 3: and I went to sleep. And I'd never cleaned the gun.
Speaker 3: So the next thing I knew, she was already home,
Speaker 3: and she had picked up the gun out of the
Speaker 3: towel and had the gun lean on and she was
Speaker 3: upset that somebody had told her that I was having
Speaker 3: an affair with a woman, which was true, but it
Speaker 3: had been over for three years. And she walked over
Speaker 3: to the phone in the dining room to call the woman.
Speaker 3: So I got up and Daisy, and next thing I know,
Speaker 3: the tragedy had happened.
Speaker 2: And the tragedy that had happened is the matter of
Speaker 2: this dispute between the Middletons and the state. Now, Ken
Speaker 2: maintained his innocence in the matter, that this was a
Speaker 2: tragic accident in which Kathy visibly upset about the news
Speaker 2: of this affair, and on her way to the phone
Speaker 2: to confront your alleged mistress, Kathy was holding the gun
Speaker 2: in her left hand. And accidentally shot herself on the
Speaker 2: left side of her forehead, splattering blood all over the wall.
Speaker 2: This version of events is supported by the ballistics and
Speaker 2: all the other physical evidence. And then there's what the
Speaker 2: state wants everyone to believe. Right, bear with me, because
Speaker 2: this is nuts. That Ken had somehow held Kathy up
Speaker 2: against the wall and shot her in the face, but
Speaker 2: somehow miraculously was able to be completely clear of blood
Speaker 2: spatter or gunshot residue, not a trace on him. And
Speaker 2: we'll get into all of that a bit later. So
Speaker 2: back to this terrible tragedy. A gunshot rang out and
Speaker 2: Kathy was on the floor in a pool of blood.
Speaker 2: What a nightmare? Ken? What happened next?
Speaker 3: I'd seen her on the floor and grabbed a gun
Speaker 3: and put it on the table and call nine one
Speaker 3: one immediately. I asked for the paramedics, and I'd called
Speaker 3: him three times within a short period of time, and
Speaker 3: wanting to know who the paramedics was. And the third time,
Speaker 3: the operator told me to go outside, that the paramedics
Speaker 3: were there. And I looked out, and I told her
Speaker 3: that I'd looked out and there wasn't nobody out there,
Speaker 3: and she convinced me to go outside that they were there.
Speaker 3: So I went out and the first thing I seen
Speaker 3: was a coppole behind the wall, screaming at me to
Speaker 3: get my hands in the air and turn around with
Speaker 3: my back to him at his gun pointed at me.
Speaker 3: And I'd done as he said, and he'd come up
Speaker 3: behind me and searched me. I wanted to know where
Speaker 3: the paramedics were, and he ordered me back in the house,
Speaker 3: and we went back in the house and he went
Speaker 3: in and checked on my wife, and I was just hysterical,
Speaker 3: and I guess I was down on my knees, and
Speaker 3: he jerked me up, and when he'd done that fast,
Speaker 3: I become dizzy, real dizzy, and I thought I was
Speaker 3: ain't a blackout, So I said it was AMD be six,
Speaker 3: and I went down the hall to the bathroom and
Speaker 3: I went in and splashed water on my face, and
Speaker 3: then he took me outside and I had a real
Speaker 3: bad hurting in my left arm and chest.
Speaker 2: Now, when the paramedics arrived, they determined, Kenny, you would
Speaker 2: have been hyperventilating, complaining of chess planes and blood pressure
Speaker 2: was going crazy, and they convinced you to go to
Speaker 2: the hospital for an examination.
Speaker 3: They taught me to go into the hospital, and they
Speaker 3: took me to three medical hospitals, and then on the
Speaker 3: third one, I was forced in a mental hospital till
Speaker 3: the next day.
Speaker 2: They later tried to say that you had checked into
Speaker 2: that mental hospital to try to get away with murder
Speaker 2: claim by claiming insanity defense. But we're getting ahead of
Speaker 2: ourselves here, and let's not leave out the fact that
Speaker 2: your dad was in and out of consciousness on his
Speaker 2: way to the hospital. And they took an EKG at
Speaker 2: the hospital and it showed that Ken, that you had
Speaker 2: recently suffered from a heart attack. Now here's another thing
Speaker 2: that I have trouble understanding or processing. The officers didn't
Speaker 2: write their statements until days later, and they did it
Speaker 2: by memory, right, And these statements that were taken from
Speaker 2: a hysterical man who had to be rushed to the
Speaker 2: hospital talking about you, of course, Ken, who was just
Speaker 2: trying to help figure out what happened, So the officers
Speaker 2: didn't bother to write it down.
Speaker 1: There were a couple police reports that were handwritten out
Speaker 1: that day, but the official reports that I have reviewed
Speaker 1: were written on I believe it was February twenty first,
Speaker 1: and Kathy died on the twelfth.
Speaker 2: Now, in researching this case, I saw in the police
Speaker 2: reports where they kept on documenting instances in which Ken
Speaker 2: allegedly had done something with his hands, Like he mentioned
Speaker 2: splashing water on its face, right, They wrote down another
Speaker 2: instance where they said he wiped his hands on a door,
Speaker 2: touched dirt in a potted plant, and the implication is
Speaker 2: that Ken was trying to somehow wash away the gunshot residue.
Speaker 1: There's a picture the Independence News Examiner paper took of
Speaker 1: my father out there on the front stoop, leaning over
Speaker 1: that potter plant, sobbing, and the two paramedics are consoling him.
Speaker 1: It's very obvious that he was in a state of
Speaker 1: shock and hysteria. First of all, you already claimed he
Speaker 1: was washing his hands when he splashed water on his face.
Speaker 1: It's crazy to think that somebody's trying to wash their
Speaker 1: hands in the dirt. Unless you've been involved in something
Speaker 1: like this, How would you even know what a gunshot
Speaker 1: residue test is, especially in nineteen ninety Jayson, maybe today
Speaker 1: with crime shows and things, but he didn't know what
Speaker 1: they were testing him for.
Speaker 3: They took my shirt, undershirt and clothes and shoes and all,
Speaker 3: and they did test it and to come back negative.
Speaker 3: No blood or nothing on my lone sleeve shirt. And
Speaker 3: that picture in the front high of a house when
Speaker 3: I was over the stoop shows the long sleeve shirt
Speaker 3: down to my risk, there was no blood, no gunshots
Speaker 3: on it.
Speaker 2: Right, and as the evidence clearly shows, she was shot
Speaker 2: from very close range, less than a foot away, and
Speaker 2: there's no way you can do that without being covered
Speaker 2: in blood and gunshot residue. But you weren't because you
Speaker 2: didn't kill her. And Kathy's gunshot residue test would likely
Speaker 2: have corroborated Ken's version of events and shown that this
Speaker 2: was a tragic accident, not a homicide. Cliff, can you
Speaker 2: explain what I mean by that?
Speaker 1: They swabbed both of her hands that day four gunshot
Speaker 1: residue and the prime document that they fill out shows
Speaker 1: that they swabbed both hands, right and left hands, and
Speaker 1: it shows they used two different kits to do that,
Speaker 1: one for the right hand and one for the left hand. Well,
Speaker 1: the next day when the coroner did the autopsy, the
Speaker 1: corner ruled it a homicide based on what the police
Speaker 1: were telling him, unless other information come forward to prove otherwise.
Speaker 1: Now that gunshot residue was important information and took him
Speaker 1: nine days to turn the gunshot residue samples into the
Speaker 1: crime lab. And when they turned them into the crime lab,
Speaker 1: the document was altered to show only one kit and
Speaker 1: the left hand was wided out to show they only
Speaker 1: tested the right hand when she was shot from eight
Speaker 1: to twelve inches away on the left side of her head.
Speaker 2: You really have to see this to believe it. And
Speaker 2: we're going to link pictures of this in our episode
Speaker 2: filed because I'm looking at it right now and i
Speaker 2: still can't believe that I'm actually looking at what I'm
Speaker 2: looking at. Okay. So, the test of Kathy's left hand,
Speaker 2: the one in which she would have held the gun
Speaker 2: in order to shoot herself, the test of that hand
Speaker 2: disappeared or it wasn't tested on purpose. There's only two possibilities.
Speaker 2: The crime lab document that should have been for both
Speaker 2: of her hands was altered with whiteout. Okay, remember white out,
Speaker 2: it's unreal. This is like to show that only her
Speaker 2: right hand had been tested, and this is reinforced when
Speaker 2: you compare it with the GSR test document for Ken
Speaker 2: in the same handwriting okay, get ready for this, it
Speaker 2: states quote number of articles two GSR test kits for
Speaker 2: right and left hands end quote. But then on Kathy's
Speaker 2: GSR test document, in the same exact handwriting, it says,
Speaker 2: quote number of articles and whatever was there is white
Speaker 2: it out right, just white it out, and the number
Speaker 2: one is at its place, and then it reads quote
Speaker 2: gunshot residue for right end quote, followed by another gob
Speaker 2: of white out and the word hand. So in all
Speaker 2: likelihood the white out is simply covering the words and left,
Speaker 2: as it would have been in a request for testing
Speaker 2: of both right and left hands, where now only one
Speaker 2: test for her right hand exists and the one that
Speaker 2: really matters the left hand is missing.
Speaker 3: Later on, after us convicted years later, we took their
Speaker 3: deposition and Jeff Rodgers that wrote the report out, he
Speaker 3: swore that he didn't put the white out on that
Speaker 3: because it's on green paper, and he said that he
Speaker 3: wouldn't have whited it out, he'd have just filled out
Speaker 3: a new report. And we got Dave Link, the one
Speaker 3: that took it to the lab nine days later. He
Speaker 3: swore up and down that he didn't do it, and
Speaker 3: he was asked did he always take both hands of
Speaker 3: a close gunshot residue test. He said yes. My attorney
Speaker 3: asking years later in ninety seven, always, and he said absolutely.
Speaker 2: They whited out the left hand, and they whited out
Speaker 2: the number of articles. I mean, somebody literally just took
Speaker 2: white out.
Speaker 1: Yeah, the left hand. If it would have come back positive,
Speaker 1: it would have been powerful, full evidence that she accidentally
Speaker 1: fired the gun herself. Our attorney told us that if
Speaker 1: that left hand come back positive, the coroner would have
Speaker 1: changed his findings and they wouldn't have had a case
Speaker 1: against my father. It all would have ended right there.
Speaker 2: This episode is underwritten by AIG, a leading global insurance company.
Speaker 2: AIG is committed to corporate social responsibility and is making
Speaker 2: a positive difference in the lives of its employees and
Speaker 2: in the communities where we work and live. In light
Speaker 2: of the compelling need for pro bono legal assistance, and
Speaker 2: in recognition of AIG's commitment to criminal and social justice reform,
Speaker 2: the AIG pro Bono Program provides free legal services and
Speaker 2: other support to underrepresented communities and individuals. Now, this is
Speaker 2: a small town police department. My understanding is there hadn't
Speaker 2: been a homicide investigation in almost a decade. These people
Speaker 2: were not up to the task, and they started making
Speaker 2: mistakes more or less as soon as they walked into
Speaker 2: the house.
Speaker 1: Yes, yes, And like so many other cases, I believe
Speaker 1: the police immediately focused on my father and had tunnel
Speaker 1: vision as they began to investigate this case. I'll start
Speaker 1: with the fact that they took photos that day of
Speaker 1: the alleged crime scene, and the photos allegedly did not
Speaker 1: come out, and after Kathy's body was removed, they went
Speaker 1: back and restaged the crime scene and took new photos.
Speaker 1: By the time they'd done this, my stepmother had already
Speaker 1: been taken out of the house, and the fire department
Speaker 1: had actually been called in to cut sheet rock out
Speaker 1: of the wall with blood spatter and things, and so
Speaker 1: the new pictures they took the sheet rock was already
Speaker 1: cut out, and they had drawn a diagram of the
Speaker 1: dining room where this happened, and the diagram didn't match
Speaker 1: the pictures. They had moved the dining room table all
Speaker 1: the way up against the wall to make it appear
Speaker 1: that there was a bigger area there when she was shot.
Speaker 2: Right to make room for this alleged struggle that never
Speaker 2: even happened. When she went to use the phone.
Speaker 1: In every picture they took of this small dining room,
Speaker 1: they missed that phone, Jason by a quarter of an inch.
Speaker 1: Another mistake that was made that day at the crime scene.
Speaker 1: According to the police reports, they unclothed my stepmother naked
Speaker 1: right there on the dining room floor and folded her
Speaker 1: clothes up and put them in bags and transported her
Speaker 1: to the morgue naked for them to unclothe her and
Speaker 1: alter any evidence that could have been gathered from that. Now,
Speaker 1: that goes against every protocol of any police department anywhere.
Speaker 3: Best I remember, the medical examiner said she'd come in
Speaker 3: fully clothing, So what they actually done was recloser before
Speaker 3: the medical examiner.
Speaker 1: Examiner, that's exactly right. What the medical examiner reported didn't
Speaker 1: match the police reports. They unclothed her and at some
Speaker 1: point reclothed her.
Speaker 2: So they mishandled the scene, and the evidence altered or disappeared.
Speaker 2: The key gunshot resident detest to Kathy's left hand. And
Speaker 2: then they arrested you, and eventually you got out un bond,
Speaker 2: And even that was kind of odd, right.
Speaker 3: Prosecutor Peters agreed to ten thousand, and he put a
Speaker 3: restriction on my bond. It says not to dispose of
Speaker 3: any marital or jointly held property without the permission of
Speaker 3: the prosecute attorney in the probate court.
Speaker 1: You got the State of Missouri coming after you with
Speaker 1: unlimited resources, and your life and liberty is on the line.
Speaker 1: My dad should have had access to every dime he
Speaker 1: had to save his life.
Speaker 2: Right, And this also gets us to a crazy part
Speaker 2: of this whole story. So while you're facing Prosecutor Patrick
Speaker 2: Peters in this criminal trial against you, there's also a
Speaker 2: wrongful death civil suit filed against you by Kathy's sisters.
Speaker 2: And get this, Prosecutor Peters's father is part of the
Speaker 2: law firm behind that civil suit, so stands to benefit
Speaker 2: from the outcome. And of course you didn't even know
Speaker 2: that at the time.
Speaker 3: They had concealed it, and they had said that he
Speaker 3: had convinced them and he would convict me, and the
Speaker 3: law firm would help keep me in prison.
Speaker 1: I'd like to point out that the Blue Springs Police Department,
Speaker 1: city attorney for Blue Springs was also in the same
Speaker 1: law firm as the prosecutor's father, So you had a
Speaker 1: triangle of a conflict of interest here that was hidden
Speaker 1: from everyone.
Speaker 2: Every time we do an episode, I always think I've
Speaker 2: heard it all, I could say, even after doing two
Speaker 2: hundred and fifty episodes of this show, I've never heard
Speaker 2: of that the prosecutor refers the family of the woman
Speaker 2: who died to his own father's law firm. Now everybody's compromised, right,
Speaker 2: because now there's a whole nother motive for them to
Speaker 2: want to convict you of this crime so that everybody
Speaker 2: can make money.
Speaker 1: And they ultimately got a one point three five million
Speaker 1: dollar default wrongful debt judgment against my father.
Speaker 2: So now there's been this litany of errors, misconduct, malfeasans
Speaker 2: straight up insanity. I'm going to call it what it is,
Speaker 2: it's insanity. And now finally it's time for the trial.
Speaker 2: It's February nineteen ninety one, a year after the incident.
Speaker 1: Basically, the cross of the States case against my dad
Speaker 1: was that he held her up against the wall and
Speaker 1: shot her from a foot away from her face.
Speaker 3: The prosecutor put on his so called experts, saying that
Speaker 3: she was two inches away from the wall and that
Speaker 3: I had my arm across her chest and held her
Speaker 3: up against the wall and shot her and blood experts
Speaker 3: admitted that he had a week's training and he.
Speaker 1: Self taught he had taken a forty hour course on
Speaker 1: blood spatter evidence. That's all the training that their expert had.
Speaker 2: These quote unquote experts had a forty hour training course
Speaker 2: that doesn't actually teach you anything except how to act
Speaker 2: like you know what you're talking about in court pretty much, right.
Speaker 3: But he didn't tell that there was no gun shot
Speaker 3: residue on my hands or long sleeve shirt, or blood
Speaker 3: or not the nails on my lone sleeve shirt.
Speaker 1: And they said he put a bootprint on the wall,
Speaker 1: which was false. It had been there weeks prior, and
Speaker 1: in order for that bootprint to get there, his leg
Speaker 1: would have had to have bent backwards at the knee
Speaker 1: and hyper extended in order to put that bootprint there.
Speaker 2: Right, you have this bootprint that was physically impossible to
Speaker 2: have been made in this scenario. But you know what,
Speaker 2: none of it freaking matters. Why they could have produced
Speaker 2: any other made up nonsense to try to support their theory.
Speaker 2: But without Ken being covered in blood and GSR, it's
Speaker 2: all pure drivel. Blood in GSR has to be present
Speaker 2: for us to even entertain these bullshit footprints, not to
Speaker 2: mention the analysis from Bob Tressel, the renowned forensic crime investigator,
Speaker 2: that further clarifies just how bogus the state's theory was.
Speaker 2: We'll get into all of that a bit later, but
Speaker 2: unfortunately Ken didn't benefit from Bob Restol's testimony or any
Speaker 2: of this being pointed out at the original trial. Ken's attorney,
Speaker 2: Bob Duncan, couldn't be bothered to do an investigation, not
Speaker 2: even a thorough examination of the gun. Cliff what else
Speaker 2: did the state present?
Speaker 1: They also put on evidence that the gun would take
Speaker 1: ten pounds of pressure I believe it was without the
Speaker 1: hammer pulled three and a half pounds with the hammer pulled. Well,
Speaker 1: the gun needed to be examined in the exact state
Speaker 1: it was found in, and it wasn't. They had dismantled
Speaker 1: it and put it back together before testing it, so
Speaker 1: if there was any problems with the gun, they fixed
Speaker 1: it when they put it back together. Bob Duncan was
Speaker 1: asleep at the wheel, if you will, and had none
Speaker 1: of the physical evidence examined by an expert, and hadn't
Speaker 1: interviewed any witnesses. He was totally unprepared for the case
Speaker 1: to even go to trial.
Speaker 2: Did I hear this correctly? That he didn't even make
Speaker 2: an opening statement.
Speaker 1: He reserved one and he forgot to give it.
Speaker 3: I couldn't get him to do nothing. They didn't see
Speaker 3: nothing about the gunshot was do not one word of
Speaker 3: them with lighting that document out. They never seen it.
Speaker 1: Without a proper defense, you're out there, mercy.
Speaker 3: Years later, in ninety five and ninety six, he gave
Speaker 3: me three affi davids of what he had failed to do.
Speaker 3: This is my trial attorney, Robert Duncan. I did not
Speaker 3: have any physical evidence in the case examined by a
Speaker 3: forensic expert, other than to speak to a gun expert
Speaker 3: about the gun. But I did not have him examine
Speaker 3: the gun. And then he gave another affidavit and he said, father,
Speaker 3: I believe my ability to defend mister Middleton was impaired
Speaker 3: because I wasn't given information of the connection between the
Speaker 3: police department, the prosecutor, and the civil claims against mister
Speaker 3: Middleton seeking a substantial monetary recovery. This information, if for
Speaker 3: no other purpose, would have been admits as impeachment evidence
Speaker 3: showing the bias of the police and some of the witnesses.
Speaker 2: So Kathy's sister, Mildred Anderson, gave false testimony for the
Speaker 2: prosecution to show motive that Ken had secret assets in
Speaker 2: Arkansas that no one in the family was aware of.
Speaker 2: And we know this is just another lie because Mildred
Speaker 2: Anderson later said she admitted that she and the rest
Speaker 2: of the family actually did know about all of the
Speaker 2: assets before Kathy's death, which is a clear cut example
Speaker 2: of perjury.
Speaker 3: Which in Missouri in a murder case, that's a class
Speaker 3: A felony. Intact Peters colluded with her because Peter's put
Speaker 3: it in the question would be simple for her says, quote,
Speaker 3: quite a bit of holdings down in Arkansas that you
Speaker 3: and your family, including your sister, were unaware of. She says, yes.
Speaker 1: It should also be mentioned Jason that after the sisters
Speaker 1: testified to that, the prosecutor instructed the police depart meant
Speaker 1: to release eighteen thousand, seven hundred dollars worth of jewelry
Speaker 1: that was confiscated out of the house to the witness.
Speaker 1: So not only was it perjury, she was rewarded with
Speaker 1: eighteen thousand, seven hundred dollars worth of jewelry, and then.
Speaker 3: Eight years later on March at twenty fifth to ninety nine,
Speaker 3: Mildred Anderson gave foreign testimony entered Arkansas lawsuit against Kenneth
Speaker 3: Middleton which show she clearly perjured herself in nineteen ninety
Speaker 3: one and her sister coaborated it.
Speaker 2: Wow, okay, So I got to ask about what must
Speaker 2: have been the worst day all of your life, which
Speaker 2: of course is the day that the jury went out
Speaker 2: for a freaking hour and came back in and sentenced
Speaker 2: you to life without parole plus two hundred years.
Speaker 3: Well, I don't know how to describe it, but I
Speaker 3: was in chock, and until this happened, I never spent
Speaker 3: a day in jail in my life. And take you
Speaker 3: from being free in the country and working all my
Speaker 3: life to tow you in a cage is unbelievable. I
Speaker 3: can't explain.
Speaker 1: Growing up as a kid, I would have never in
Speaker 1: a million years dreamed that what happened to my dad
Speaker 1: would have happened to him. He just was, you know,
Speaker 1: a great father. He's been more of a father to
Speaker 1: me behind bars than most kids could ask for from
Speaker 1: a father on the street. And it was devastating to
Speaker 1: our whole family.
Speaker 2: So now we moved to the post conviction and there's
Speaker 2: still more insanity to come. So it's nineteen ninety two
Speaker 2: and your repellent attorney is a man named Gerald Handley
Speaker 2: who was recommended by Bob. Well, that's not a good sign.
Speaker 2: And one of the first things we come to is
Speaker 2: that what's called the twenty nine to fifteen appeal, Cliff,
Speaker 2: can you explain that to us and get us started here?
Speaker 1: After trial, the first appeal that you have in the
Speaker 1: state of Missouri is your post conviction twenty nine to fifteen.
Speaker 1: Twenty nine to fifteen is an appeal that's filed back
Speaker 1: in front of the trial judge to evaluate your trial
Speaker 1: to make sure that you had a fair trial. That's
Speaker 1: where you bring your ineffective assistance of council issues if
Speaker 1: you have any. So you have ninety days to do
Speaker 1: that in Missouri or you don't get that hearing on
Speaker 1: ineffective assistance a council. And that's right back in front
Speaker 1: of the very trial judge that just set on your
Speaker 1: trial and convicted you. So you got a high burden
Speaker 1: to meet there, right, you got to prove that you
Speaker 1: had an unfair trial and your attorney didn't do his job.
Speaker 1: Our appellent attorney at that time had a ninety day
Speaker 1: window to file an amended petition for DA and get
Speaker 1: all of his issues in the appeal. He never met
Speaker 1: with my dad, never went over any of the issues,
Speaker 1: which the law requires him to do. And at the
Speaker 1: last minute, before the ninety days was up and you
Speaker 1: could get no extensions, my dad gets a letter from
Speaker 1: his attorney telling him to sign this affidavit that all
Speaker 1: of his issues are in the amended petition, even though
Speaker 1: my dad had never seen the petition. And if you
Speaker 1: didn't sign that affidavit and have it with your amended
Speaker 1: petition when you filed it, you were out. You couldn't
Speaker 1: even get a twenty nine to fifteen hearing. So my
Speaker 1: dad had to sign it and at least hope that
Speaker 1: his attorney was going to put all of his issues
Speaker 1: in it. Well, we had to do a lot of
Speaker 1: fanagulon to get that affidavit to him before Monday, and
Speaker 1: when we got it to him on Monday, Gerald Hanley
Speaker 1: filed a three page motion on my dad's life, procedurally
Speaker 1: defaulting all of his issues on a pial. So because
Speaker 1: that attorney procedurally defaulted all of his issues, the facts
Speaker 1: and the merits of his case were never.
Speaker 3: Heard, and when we went to the evidentiary hearing, I
Speaker 3: had nine witnesses out in the hallway. When I got
Speaker 3: to the courthouse, the witnesses that knew Pat Peters through
Speaker 3: trial seen Pat Peters talking to the uniform guard, and
Speaker 3: the guard took a post at the door and wouldn't
Speaker 3: let none of my witnesses in the courtroom. I didn't
Speaker 3: know what happened to himuntil I got back to the
Speaker 3: jail and made some calls. Peters called Duncan to the
Speaker 3: stand and Duncan testified this basically, answering Peter's questions, said
Speaker 3: I checked himself into the hospital. Well, I shake him
Speaker 3: the head. It was a lie because I was forced
Speaker 3: in that mental hospital.
Speaker 1: One of the records that Bob Duncan didn't get was
Speaker 1: the medical records from the mental ward. The prosecution's theory
Speaker 1: was that it was trial strategy for Duncan to not
Speaker 1: get the medical records, because the prosecution had a witness
Speaker 1: that would have said Dad told him, if you want
Speaker 1: to get away with murder, you check yourself into a
Speaker 1: mental ward after you do it. So Judge Messina agreed
Speaker 1: and said, yeah, that's not ineffective assistance and counsel. He
Speaker 1: didn't get them records because he voluntarily checked hisself into
Speaker 1: a mental ward. Well that wasn't true, but Gerald Hanley
Speaker 1: never got the records either, so the judge never knew.
Speaker 2: This, and so the hearing ended and no witness is recalled,
Speaker 2: no expert testimony was given, and no evidence was presented
Speaker 2: to refute the state. Gerald Hanley ended up being, and
Speaker 2: this is hard to believe, but he ended up being
Speaker 2: just as disinterested as Bob Duncan was before. And so predictably,
Speaker 2: Judge Messina rejected your twenty nine to fifteen appeal. It's insane.
Speaker 2: It's not because the appeal wasn'tvalid. It's because the lawyers
Speaker 2: didn't do their freaking jobs. And according to the law
Speaker 2: at that time, the trial courts jurisdiction over your case ended.
Speaker 2: So Cliff, eventually you all get a new attorney, Jonathan Lawrence,
Speaker 2: and there's a new law that gave you and your
Speaker 2: dad some hope, or maybe false hopes, but some positive
Speaker 2: things came about, nonetheless, So can you tell us what
Speaker 2: happened next?
Speaker 1: In two thousand and one, a law come down that
Speaker 1: give courts the opportunity to reevaluate cases. If you could
Speaker 1: prove your twenty nine to fifteen attorney Gerald Hanley abandoned
Speaker 1: you on your twenty nine to fifteen the trial courts
Speaker 1: could look at your case again. So my dad had
Speaker 1: done all this research on this and had done everything,
Speaker 1: and we took it to Jonathan Lawrence, and Jonathan Lawrence
Speaker 1: at first didn't think we could do it, but once
Speaker 1: he read the case law, he said, yeah, I believe
Speaker 1: we can. So Jonathan Lawrence got involved and filed an
Speaker 1: eighty one page motion and convinced Judge Messina, who denied
Speaker 1: us back in ninety two, reopened my father's case, and
Speaker 1: she held a two day evidentiary hearing in two thousand
Speaker 1: and four.
Speaker 2: And you finally have an attorney here who can do
Speaker 2: justice in your father's case, who gathered and presented some
Speaker 2: powerful expert testimony, including from investigator Chuck Gay, who had
Speaker 2: been at the courthouse for the nineteen ninety two hearing
Speaker 2: but had been prevented from entering the courtroom. Now he
Speaker 2: finally had a chance to speak.
Speaker 1: Chuck Gay was a twenty five year police officer in
Speaker 1: Long Beach, California. He had actually talked to the FBI
Speaker 1: in different courses on crime scene investigation, and he testified
Speaker 1: to the crime scene photos not coming out. You can't
Speaker 1: restage a crime scene. That's absurd, unclothing her at the scene,
Speaker 1: all of these things. Crime scene preservation is what Chuck
Speaker 1: Gay testified to and how improper it was. The gunshot
Speaker 1: residue was a real big one with him. We found
Speaker 1: out a little more about the green document. See, you
Speaker 1: have to realize before trial, when they give us that
Speaker 1: green document, it was just a copy, so it was
Speaker 1: on white paper. We really didn't know what it said underneath,
Speaker 1: but we knew something was wrong because the left hand
Speaker 1: was missing. And when our investigator after the trial went
Speaker 1: to go investigate that, the crime lab said, we didn't
Speaker 1: do that. They said, these are our documents. We use greenout.
Speaker 1: So they were pointing the finger at the police. They
Speaker 1: knew that that wasn't right. There was no initials or
Speaker 1: anything that would indicate who did it or why they
Speaker 1: did it. Myself and our attorney in twenty sixteen went
Speaker 1: to the crime lab and got this document and him
Speaker 1: and I both held it up to the light and
Speaker 1: you could see underneath the white out on the number
Speaker 1: of articles, and then underneath the other wide out off
Speaker 1: to the side, you could see the word left. And
Speaker 1: he give us an affidavit that that was the worst
Speaker 1: alteration of official documents he had ever seen in thirty
Speaker 1: two years I believe of practicing law.
Speaker 2: And you also had testimony from a ballistics expert proving
Speaker 2: that the scenario presented by the state was physically impossible.
Speaker 2: And this guy was no slouching. He had overseen over
Speaker 2: eight hundred investigations, and importantly he had been an expert
Speaker 2: for both prosecution and defense. And of course the guy
Speaker 2: I'm referring to is Bob Trestle.
Speaker 4: I'm Bob Trestle. I'm a forensic crime scene investigator. When
Speaker 4: I first looked at the case, the bullet was found
Speaker 4: across the room after it had struck the doorframe, ricocheted
Speaker 4: up to the ceiling and over to on the other
Speaker 4: side of the dining room. So we began looking at
Speaker 4: the angles that the bullet hook in striking the doorframe
Speaker 4: exiting the doorframe. Their lab came up with what we
Speaker 4: call a muzzle to target, or the barrel of the whip,
Speaker 4: it having to be approximately eight inches from her face,
Speaker 4: where the bullet entered, So then we started looking at
Speaker 4: the gun. The gun's the three fifty seven magnum. You
Speaker 4: get the length of the barrel, chamber and the grip area,
Speaker 4: so although the barrel's eight inches from her face, the
Speaker 4: gun is almost fourteen inches and total length away from
Speaker 4: her face. And then we started looking at the wounds themselves.
Speaker 4: Pretty well, a straight shot gunshot when with little deviation
Speaker 4: on the upward or downward plane, and with the bullet
Speaker 4: not deviating very much right or left, the shot had
Speaker 4: come from directly in front of her the upper trajectory.
Speaker 4: Because we know where it strikes on the wall and
Speaker 4: then Rick shaves off, we know it's going upward, so
Speaker 4: she has to have her upper body bent over or
Speaker 4: her head bent over towards the table order to receive
Speaker 4: that gunshot one and there's only about two feet distance
Speaker 4: between the table and the walls, and so you've got
Speaker 4: to get two people almost directly in front of each other.
Speaker 4: But the gun's got to be held way down low,
Speaker 4: and in order to get the distances that we saw,
Speaker 4: the gun has got to be almost on top of
Speaker 4: the table. So where can the shooter be at that
Speaker 4: point when we finally did all the calculations in order
Speaker 4: for someone to be directly in front of her, if
Speaker 4: a shooter was the one that fired this weapon, he
Speaker 4: would have to be under the table. That makes no
Speaker 4: sense whatsoever. There's no direct forensic evidence, either by blood tissue,
Speaker 4: gunshot residue, things of that nature that indicate that Middleton
Speaker 4: fired this gun killing his wife.
Speaker 2: And so all of this powerful expert testimony has been heard.
Speaker 2: And to top it all off, there was one more
Speaker 2: witness that testified on your father's behalf former governor of Missouri. Yes,
Speaker 2: you heard that correctly. The former governor of Missouri, Joseph P. Teesdale,
Speaker 2: testified on Kensby had and he had extensive trial experience
Speaker 2: as an assistant US attorney, prosecuting attorney, and as a
Speaker 2: trial lawyer. And he testified to the quote suspect conduct
Speaker 2: of the prosecutors and the quote ineffective performance of the
Speaker 2: defense council. And at the end of the testimony, former
Speaker 2: Governor Teesdale was asked what he would have done if
Speaker 2: this case had been presented to him in his capacity
Speaker 2: as governor, and he replied that this was the worst
Speaker 2: case of constitutional violations that he had ever witnessed in
Speaker 2: forty one years of practicing law, and that he and
Speaker 2: this is a direct quote, would clearly have pardoned mister
Speaker 2: Middleton of all wrongdoing end quote.
Speaker 3: That's a strong statement.
Speaker 1: He had gotten familiar with Dad's case a few years before,
Speaker 1: and I reached out to him when we got this
Speaker 1: evidentiary hearing and asked him what his costs would be
Speaker 1: for him to come testify, and he said, I don't
Speaker 1: want any money. I want a steak dinner when your
Speaker 1: dad gets out of there. And it meant a lot
Speaker 1: to me.
Speaker 2: So, finally, this information that you've been trying to get
Speaker 2: heard for so many years, the ineffective counsel, the prosecutorial
Speaker 2: misconduct and complex of interest of botched investigation and altered reports,
Speaker 2: you're finally able to get that before the judge, and
Speaker 2: even a more conservative judge, Judge Messina, could not deny
Speaker 2: the merits of Kin's case.
Speaker 1: So this was all powerful evidence that the jury never heard.
Speaker 1: After all this evidence was put forward, Judge Messina took
Speaker 1: it under advisement and would not rule on the case
Speaker 1: for eleven more months. Two weeks after the hearing was over,
Speaker 1: the prosecutors come to my dad with an Alford plea.
Speaker 1: If he would plead to an Alford plea and plead
Speaker 1: guilty to second degree, he could walk out of prison
Speaker 1: a free man. But even though all of his appeals
Speaker 1: were exhausted and we were setting in front of very
Speaker 1: conservative judge, my father refused the offered plea. For him
Speaker 1: to turn that down with all appeals exhausted, that speaks
Speaker 1: volumes to his innocence.
Speaker 2: And on May twenty fifth, two thousand and five, Judge
Speaker 2: Messina came back and vacated Ken's nineteen ninety one conviction
Speaker 2: and granted him a new trial. So the same judge
Speaker 2: who denied him in nineteen ninety two overturned his conviction.
Speaker 1: Judge Messina found eight different points of ineffective assistance and
Speaker 1: counsel on Bob Duncan. The man had three other capital
Speaker 1: murder cases overturned at the same time he was handling
Speaker 1: my dad's case.
Speaker 2: But just six days after this incredible news, you get
Speaker 2: a huge punch to the gun.
Speaker 1: What does the Jackson County Prosecutor's office do? They appeal
Speaker 1: the decision. So if he would plead guilty after that hearing,
Speaker 1: they were willing to let him go, but when he
Speaker 1: stood by his innocence and the trial judge agreed and
Speaker 1: overturned his conviction, they appealed it. They ruled that Judge
Speaker 1: Messina didn't have jurisdiction to issue that new trial. They
Speaker 1: never got to the merits or the facts that she
Speaker 1: ruled he was wrongfully convicted in violation of his sixth
Speaker 1: Amendment right to constitutional effective representation. They never got to
Speaker 1: any of that. They just said she didn't have jurisdiction.
Speaker 2: And this is now seventeen long years ago. It's crazy.
Speaker 2: I mean, the court heard the merits of his innocence
Speaker 2: and decided he should get a new trial, but outside
Speaker 2: of the twenty nine to fifteen of pell proceedings, it
Speaker 2: was ruled that the trial court didn't have jurisdiction. So
Speaker 2: Ken has just been sitting there since two thousand and four,
Speaker 2: awaiting a miracle or a change in the law so
Speaker 2: that his case could be heard again, and that finally happened.
Speaker 2: In August of twenty one, a new law was passed
Speaker 2: in Missouri that allows a case to go before the
Speaker 2: trial judge outside of a twenty nine to fifteen hearing.
Speaker 2: So what that means is that if a prosecutor knows
Speaker 2: that a man is innocent, as the current prosecutor has
Speaker 2: implied in Ken's case, they're no longer jurisdictionally barred from
Speaker 2: doing something about it. Judge Massin has already ruled on this,
Speaker 2: and she's now an advisor to the current prosecutor Jean
Speaker 2: Peters Baker. And Baker already made use of this new
Speaker 2: law in Kevin Strickland's case in the fall of twenty
Speaker 2: twenty one. Yet strangely she has yet to act in
Speaker 2: Ken's case. It's mystifying and maddening at the same time. So, Cliff,
Speaker 2: what's going on with all of this?
Speaker 1: Now, this new law, Yes, it's about a prosecutor's right
Speaker 1: to file emotion, but it's also about a court's right
Speaker 1: to have jurisdiction to consider and hear the matter. Well,
Speaker 1: now they're given the most in court's jurisdiction, but the
Speaker 1: prosecutor has to file it. So in our case, we've
Speaker 1: already proved everything there is with this statute. This statute
Speaker 1: lays out that upon the filing of such a motion,
Speaker 1: the court shall have a hearing and issue of findings
Speaker 1: in facts and conclusions of law on all issues presented.
Speaker 1: That's exactly what Judge Messina did. So we've already been
Speaker 1: successful at securing a new trial from my father, but
Speaker 1: the only thing we didn't have was jurisdiction. Well, now
Speaker 1: this new law gives the court's jurisdiction, but the prosecutor
Speaker 1: has been reluctant to file it. So now that this
Speaker 1: new law has passed, I believe the next steps are
Speaker 1: for Jane to file emotion conceding jurisdiction. That's it. We
Speaker 1: don't need anything else from her but a one page
Speaker 1: motion conceding jurisdiction and allow a court there in Jackson
Speaker 1: County to get to the merits of the trial Judge
Speaker 1: Edith Messina's order overturning my dad's conviction.
Speaker 2: Cliff, we are our audience out there listening now. Is
Speaker 2: there some thing you'd like them to do? What can
Speaker 2: they do to help to write this horrible injustice?
Speaker 1: Yes, you'd go to our website at free Hyphenkenmiddleton dot com.
Speaker 1: There's a wealth of very compelling documents that support everything
Speaker 1: we spoke about today. If we said it today, rest assured.
Speaker 1: You can go to our website and find it, and
Speaker 1: on the homepage right up front, there's a petition asking
Speaker 1: Jean Peters Baker to abide by her oath and follow
Speaker 1: the plain language of this new Missouri statute. It's as
Speaker 1: simple as a one page motion conceding jurisdiction so that
Speaker 1: my dad can once again prove his innocence and come
Speaker 1: home to the family that waits him.
Speaker 2: Right, we'll have that linked in the bio as well
Speaker 2: as a link to Silver Creek Entertainment. I believe there's
Speaker 2: a film on the way about Ken's case, and it
Speaker 2: can't come soon enough as far as I'm concerned. You know,
Speaker 2: I'm reading and really looking forward to watching it. So
Speaker 2: check that out, click on the link in the bio.
Speaker 2: And now, guys, we have a tradition here and it's
Speaker 2: really my favorite part of the show. It's called closing arguments.
Speaker 2: And closing arguments is very simple. It works like this.
Speaker 2: I'm just gonna turn my microphone off, kick back in
Speaker 2: my chair with my headphones on. You'll try to volume
Speaker 2: up a little bit and just listen to anything else
Speaker 2: you'd like to say, anything at all you have to
Speaker 2: say to our audience. So Cliff, why don't you go first?
Speaker 2: And Ken, we'll let you close us out I'd like.
Speaker 1: To thank you for using your celebrity to bring awareness
Speaker 1: to wrong for convictions, given a voice to the voiceless.
Speaker 1: It's an amazing thing what you're doing. It's encouraging other
Speaker 1: celebrities like Kim Kardashian and John Grisham and Johnny Depp
Speaker 1: and you know a lot of others to take up
Speaker 1: the cause and stand up for justice. And so i'd
Speaker 1: like to thank you again, Jason, and now Ken over
Speaker 1: to you.
Speaker 3: Well, what I'd like to say here or that all
Speaker 3: of the people it's listening, I would appreciate it more
Speaker 3: than words can explain. Anything they can do, sign a petition,
Speaker 3: sign letters to Baker to get her to follow the statue,
Speaker 3: anything anybody can do to help it clearer and get
Speaker 3: the same justice as Kevin Strickland. God, I would appreciate
Speaker 3: it more than words can say.
Speaker 2: Thank you for listening to wrongful Conviction. I'd like to
Speaker 2: thank our production team Connor Hall, Justin Golden, Jeff Cliburn,
Speaker 2: and Kevin Wardis. With research by Lyla Robinson. The music
Speaker 2: in this production was supplied by three time OSCAR nominated
Speaker 2: composer Jay Ralph. Be sure to follow us on Instagram.
Speaker 2: At Wrongful Conviction, on Facebook at Wrongful Conviction podcast, and
Speaker 2: on Twitter at wrong Conviction, as well as at Lava
Speaker 2: for Good. On all three platforms, you can also follow
Speaker 2: me on both TikTok and Instagram at its Jason flam
Speaker 2: Ravel Conviction is the production of Lava for Good podcasts
Speaker 2: and association with Signal Company Number one