Reply Brief — Walter Barton, Petitioner v. William Stange, Warden

CAPITAL CASE

No. 19-8483

IN THE SUPREME COURT OF THE UNITED STATES

WALTER BARTON

Petitioner

v.

WILLIAM STANGE

Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

REPLY TO RESPONDENTS’ BRIEF IN OPPOSITION

FREDERICK A. DUCHARDT, JR.

COUNSEL OF RECORD

Mo.Bar Enrollment Number 28868

P.O. Box 216

Trimble MO 64492

Phone: 816-213-0782

Fax: 816-635-5155

e-mail: fduchardt@yahoo.com

ATTORNEY FOR PETITIONER

TABLE OF CONTENTS

Table of Contents ............................................................................................................................. i

Table of Authorities ...................................................................................................................... i-ii

Questions Presented for Review ......................................................................................................1

Question Two Reply Argument ................................................................................................... 1-1

Conclusion .....................................................................................................................................15

Certificate of Service and Compliance ..........................................................................................16

TABLE OF AUTHORITIES

United States Supreme Court Decisions

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 10, 11

Madison v. Alabama. 139 S.Ct. 718 (2019) ......................................................................10

Napue v. Illinois, 360 U.S. 264, 266-267, 269 (1959) ........................................................5

Schlup v. Delo, 513 U.S. 298 (1995) ............................................................................... 7-9

United States Circuit Court Decisions

Amrine v. Bowersox, 238 F.3d 1023 (8th Cir. 2001) ..........................................................6

Cleveland v. Bradshaw, 693 F.3d 626 (6th Cir. 2012..........................................................7

Gomez v. Jaimet, 350 F.3d 673 (7th Cir. 2003) ..................................................................7

Griffin v. Johnson, 350 F.3d 956 (9th Cir. 2003) ...............................................................7

Royal v. Taylor, 188 F.3d 239 (4th Cir. 1999) ....................................................................7

Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2011) ....................................................................7

State Court Decisions

McKim v. Cassady, 457 S.W.3d 831, 846 (Mo.App.W.D. 2015) ................... 7

State ex rel Amrine v. Roper, 102 S.W.3d 541 (Mo.banc 2003) 2007) ......... 2

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State ex rel Clayton v. Griffith, 457 S.W.3d 735 (Mo.banc 2015) 2007) ...... 2

State ex rel Cole v. Griffith, 460 S.W.3d 349, (Mo.banc 2015) 2007) .......... 2

State ex rel Middleton v. Russell, 435 S.W.3d 83 (Mo.banc 2014) ............... 2

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QUESTIONS PRESENTED FOR REVIEW

Question One

Does new evidence of actual innocence, discussed in Schlup v. Delo, 513 U.S. 298, 327

(1995), require that it was not available at trial, as interpreted by the Eighth Circuit, or

that it was not presented to the jury, as interpreted by the Second, Seventh, Fourth, Sixth

and Ninth Circuits?

Question Two

Has the Missouri Supreme Court, and now the Eighth Circuit Panel, unreasonably

interpreted standards pronounced by this Court for determination of execution

competence, employed the wrong standard, and thereby found an incompetent man to be

competent.

REPLY ARGUMENTS

1. HOW IS IT THAT THIS CASE COMES TO THIS COURT WITH JUST

HOURS BEFORE A SCHEDULED EXECUTION?

When a condemned man petitions this Court just a day before his execution

is scheduled to occur, it is too easy for his opponents to claim that this Court

should shun the arguments and scorn the petitioner due to the “last minute” way

the matter has been presented (Brief in Opposition, p. 1, 3, 9, 16). Sometimes such

an argument is fair, but not this time.

Six months ago, an execution date was sought against Mr. Barton just a day

after prior habeas proceedings ended (Doc.. 1, Appendix N). Undersigned counsel

informed that weighty issues were being investigated, and requested that no date

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setting be made until a petition could be filed (Doc. 1, Appendix O). Then, on

February 3, 2020, just three days after an expert opinion of execution

incompetence was received (Appendix F), and just a day after a juror affidavit

labeling new evidence of actual innocence “compelling”(Appendix I), a petition

was brought to the Missouri Supreme Court. The matters of execution

incompetence and actual innocence which were brought in that petition to the

Missouri Supreme Court are ones which the Missouri Supreme Court allows, and

even calls for, being brought at precisely such a juncture, State ex rel Middleton v.

Russell, 435 S.W.3d 83 (Mo.banc 2014); State ex rel Clayton v. Griffith, 457

S.W.3d 735, 752 (Mo.banc 2015); State ex rel Cole v. Griffith, 460 S.W.3d 349,

356 (Mo.banc 2015); State ex rel Amrine v. Roper, 102 S.W.3d 541, 547

(Mo.banc 2003)

The trouble was that the Missouri Supreme Court, just two weeks later, on

February 18, 2020, set a May 19, 2020 execution date without having addressed

the Petition (Doc. 1, Appendix P). As it turned out, the issues were so weighty

that, even though the Missouri Supreme Court refused to grant relief, it took them

two-and-a-half months, until April 27, 2020 to consider the matters and render a

judgment (Appendix C).

Just one week after state remedies were exhausted upon those issues, a

Petition was brought to the District Court (Doc. 1). The District Court granted a

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request for stay of execution, reasonably finding that, if the matters were weighty

enough for the Missouri Supreme Court to take two-and-a-half months to resolve,

it should not be surprising that more time than the mere days before the looming

execution date would be needed to decide the case on the merits (Appendix A).

Upon appeal from that Order, the Eighth Circuit Panel decided they knew

better, and with just two days left before the execution date, decided the merits of

the claims, and lifted the stay (Appendix B). In just a day after that, the Petition

for Certiorari was brought to this Court.

This is an example, not of a Petitioner’s sloth, but of his tenacity and speed.

2. HOW IS IT THAT, DESPITE DECADES OF DELAYS CAUSED BY

PROSECUTORIAL MISCONDUCT, RESPONDENT CAN STILL CLAIM A

NEED FOR SPEED?

Sometimes, as this Court has observed, governing bodies “deserve better”

than delays in justice caused them by obstreperous litigants (Brief in Oppostiion, p.

16-17). Bucklew v. Precythe, 139 S.Ct. 1112, 1134 (2019). This is not one of

those times.

In 2007, Missouri Supreme Court Judges called out Missouri prosecutors for

their decades-long creation in this case of a “trail of mishaps and misdeeds which

taken together, reflect poorly on the criminal justice system. State v. Barton, 711712. Now, in 2020, the Missouri Supreme Court has called out prosecutors once

again, in this instance for suborning perjury, in two consecutive trials, from their

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sole jailhouse informer, who claimed that she did not receive a dismissal of a

prosecution against her in return for her testimony, when she really did, and

prosecutors knew she did (Appendix C, p. 4).

And yet, after all of these delays occasioned by the prosecutors, the

Respondent has the audacity to claim to this Court that the State has somehow

been put upon by delays in this case (Brief in Opposition, p. 16-17). Go figure.

3. HOW IS IT THAT RESPONDENT CAN CLAIM THAT THE SORT OF

PERJURY COMMITTED BY THE INFORMER IS JUST CUMULATIVE

IMPEACHMENT WHEN THIS COURT HAS SAID DIFFERENTLY?

As noted above, the Missouri Supreme Court has confirmed that Missouri

prosecutors suborned perjury from their informer not once but twice (Appendix C,

p. 4). Respondent tries to minimize that the misconduct involved should be

considered mere impeachment which would have been cumulative of other

evidence had it been received (Brief in Opposition, p. 3, 13, 14). In making this

argument, Respondent forgets to mention that Mr. Barton’s fourth trial conviction

was overturned because that Missouri Judge determined that the result of that trial

would have been different had the perjured testimony by the informer been set

straight (Doc. 1, Appendix J). Added to that is this Court’s holding, from some

sixty years ago, that prosecution-suborned perjury, denying that a benefit was

given in return for testimony when that benefit was actually given, requires a new

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trial. Napue v. Illinois, 360 U.S. 264, 266-267, 269 (1959). There is no legitimate

way to minimize the power of the truth about the informer.

4. HOW IS IT THAT RESPONDENT CONTINUES TO TOUT TRIAL

DEFENSE COUNSEL’S MISPERCEPTIONS ABOUT LAWRENCE

RENNER’S EXPERT OPINIONS WHEN WE NOW KNOW THOSE

OPINIONS DEMONSTRATE ACTUAL INNOCENCE?

All know now that Lawrence Renner, the blood spatter expert, who was

found but not used by Mr. Barton’s fifth trial counsel, firmly demonstrates Mr.

Barton’s actual innocence. Mr. Renner’s opinions are that the small stains on Mr.

Barton’s clothes would have been made precisely through the sort of accidental

touching of objects in a blood-soaked room which Mr. Barton described in his

statements to police (Appendix H). And, Mr. Renner’s opinions are that Mr.

Barton’s clothes could not have been worn by the killer because the stains there

were too few and too small in light of the number and severity of the wounds

inflicted on the victim (Appendix H).

All Respondent can argue is that defense counsel mistook what Mr. Renner

would have said (Brief in Opposition, p. 3, 13). If the question here was over the

effectiveness of defense counsel, counsel’s misperceptions would have some

bearing. But this is a claim that the actual opinions, not misconceptions, firmly

show actual innocence. That they do.

5. HOW IS IT THAT PROOF-POSITIVE ABOUT THE “COMPELLING”

NATURE OF THE NEW EVIDENCE, THE JUROR AFFIDAVITS,

CONTINUES TO BE IGNORED?

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One of the reasons why the actual innocence claim was made when it was is

that is when proof-positive was obtained about the power of the actual innocence

evidence. At that point, a Juror affidavit was obtained, explaining that the

Lawrence Renner expert opinions were “compelling” (Appendix I). Two more

Juror affidavits to the same effect have been obtained since, and one more is in the

process of being obtained (Appendix J, Appendix K, Appendix L).

The Eighth Circuit Panel never doubted the moment of the evidence, but

simply dismissed it as not new enough, and so that Court did not have occasion to

mention the Juror Affidavits (Appendix B). Respondent, on the other hand, does

question the significance of the new evidence from Mr. Renner without once

mentioning the words juror or affidavit (Brief in Opposition, p. 3, 12, 14). Thus,

the proof-positive of the “compelling” nature of the evidence stands tall, and

unanswered.

6. HOW IS IT THAT THE EIGHTH CIRCUIT PANEL, AND NOW

RESPONDENT, CAN IGNORE HOLDINGS FROM MISSOURI COURTS

AND FROM FIVE CIRCUITS THAT “NEW EVIDENCE” SIMPLY MEANS

EVIDENCE NEVER HEARD BY THE JURY AT TRIAL

As mentioned just above, the Eighth Circuit Panel relied upon an older

circuit holding related to another Missouri case and held that the blood spatter

evidence, even if momentous, could not be considered because it was knowable at

time of trial (Appendix B, p. 6). Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th

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Cir. 2001). In his petition to this Court, Mr. Barton explained that this holding is

opposite to more recent holdings by Missouri Courts, as well as the decisions by all

five of the other Circuit Courts of Appeals who have weighed in on the subject, in

addition to the original decision on the subject by this Court. All of the Courts,

including this Court, have made clear that new evidence is defined as any evidence

which the jury at trial did not hear. Schlup v. Delo, 513 U.S. 298, 327 (1995);

McKim v. Cassady, 457 S.W.3d 831, 846 (Mo.App.W.D. 2015) ;Gomez v. Jaimet,

350 F.3d 673 (7th Cir. 2003); Griffin v. Johnson, 350 F.3d 956 (9th Cir. 2003);

Cleveland v. Bradshaw, 693 F.3d 626 (6th Cir. 2012); Royal v. Taylor, 188 F.3d

239 (4th Cir. 1999); Rivas v. Fischer, 687 F.3d 514, 543 (2d Cir. 2012).

That the Eighth Circuit Panel missed all of this is hardly surprising in light

of the breakneck speed with which they tried to get the merits of this case decided.

Since Respondent has the Petition staring him in the face, Respondent has no

choice but to do the very least and acknowledge a split of authority (Brief in

Opposition, p 14). Respondent urges that the split makes no difference because the

new evidence would not be convincing to reasonable jurors (Brief in Opposition, p.

14). However, as noted above, this contention is debunked by the Jurors in this

very case who term the new evidence “compelling” (Appendix I, Appendix J,

Appendix K, Appendix L). What Mr. Barton trusts is that this Court will deem all

of this to be a compelling case for a grant of certiorari.

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7. HOW IS IT NOT CLEAR THAT THE SCHLUP ACTUAL INNOCENCE

GATEWAY WAS CREATED TO REVIVE CLEARLY DEFAULTED CLAIMS?

Respondent vehemently urges that Mr. Barton should not be allowed to

bring the issue about the prosecution’s knowing presentation of perjury because it

could have been brought before, but was defaulted, and so should not be heard now

(Brief in Opposition, p. 14-15). However, it is the reviving of otherwise defaulted

claims for which the so-called gateway was created. Schlup v. Delo, 513 U.S. 298,

327 (1995).

8. HOW IS IT THAT THE CIRCUMSTANTIAL EVIDENCE IN THIS CASE

CAN BE CONSIDERED STRONG WHEN THE WEAKNESSES OF THAT

EVIDENCE CAUSED THE MISSOURI SUPREME COURT TO DIVIDE 4-3

OVER CONVICTION AND SENTENCE

Both the Eighth Circuit Panel and Respondent contend that the

circumstantial evidence against Mr. Barton was strong, but mention none of it

(Brief in Opposition, p. 14; Appendix B). The truth of the matter is that the

inherent weaknesses in this evidence is what caused the Missouri Supreme Court

to split down the middle on the sufficiency of the case, with the dissenters

specifying the shortcomings of all of this supposedly strong evidence. State v.

Barton, 240 S.W.3d 693, 711, 718-719 (Mo.banc 2007).

9. HOW IS IT THAT RESPONDENT, FOR THE VERY FIRST TIME

BEFORE THIS COURT, CAN TERM A PROPERLY BROUGHT FIRST

PETITION “SECOND AND SUCCESSIVE”

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Mr. Barton specifically alleged and showed in his Petition filed in the

District Court that this is properly a first Petition for 2254 relief (Doc. 1, p. 6-7).

In answering the District Court’s Order to show cause, Appellant did not address

or contest that this is a first 2254 Petition (Doc. 7). But now before this Court, for

the very first time, Respondent seeks dismissal of this matter as supposedly

“second and successive” (Brief in Opposition, p. 4, 15). Respondent apparently is

grasping at straws since he gives no legal reasoning or citations to support his

claim.

A 28 U.S.C. 2254 petition is considered to be a first petition so long as the

issues raised became ripe after any previous petition for Federal habeas relief was

litigated. Stewart v. Martinez-Villareal, 523 U.S. 637, 642-644 (1998). As this

Court has explained, even if the term “second” might be a correct way, in the strict

English language sense, to describe a petition, that petition is allowed, just like any

first petition, if the issue being raised was “unripe” when the previous Federal

petition was litigated.

As a general matter, both execution incompetence claims

and actual innocence claims fall into this proper, first petition category, particularly

when the issues, in the first instance, have been litigated in State Court. Schlup v.

Delo, 513 U.S. 298, 313 (1995); Stewart v. Martinez-Villareal, supra. In the

Petition to the District Court were the matters of execution incompetence and

actual innocence which became ripe for the first time when the Missouri Supreme

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Court ruled upon those matters on April 27, 2020 (Appendix C). Thus, this is

clearly a first petition in addressing these newly exhausted issues.

10. HOW IS IT THAT THE MISSOURI SUPREME COURT CAN BE

HONEST ABOUT HOW THEY USED THE WRONG STANDARD TO JUDGE

EXECUTION COMPETENCE, BUT NO ONE ELSE CAN?

In their opinion at page 7, fn. 5, the Missouri Supreme Court freely admitted

that, in finding Mr. Barton competent for execution, they were employing the very

standard suggested by Justice Powell in his concurrence in Ford v. Wainwright,

477 U.S. 399, at page 422, “that the Eighth Amendment forbids the execution only

of those who are unaware of the punishment they are about to suffer and why they

are to suffer it.” The Missouri Supreme Court went on to find Mr. Barton

competent for execution based upon one of the opinions expressed by Dr. Patricia

Zapf that, if that was the standard for competence, Mr. Barton would be competent

(Appendix F, p. 15). However, as Mr. Barton has already carefully explained in

his Petition for Certiorari, this Court has made clear that is not the applicable

standard, and that in light of other conclusions by Dr. Zapf, Mr. Barton is clearly

not competent under applicable standards (Petition, p. 24-28). Mr. Barton even

went so far as to explain, at pages 31-34 in his Petition to this Court, how his

situation is strikingly similar to that for which relief was granted in Madison v.

Alabama. 139 S.Ct. 718, 728 (2019) (Petition, p. 31-34).

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The Eighth Circuit, and now Respondent, cannot find candor similar to that

of the Missouri Supreme Court. Instead, neither even mention Ford, and both

trying to convince that the very wording of the Missouri Supreme Court

determination actually meets the correct standard (Brief in Opposition, p. 3, 6, 11).

It clearly does not.

CONCLUSION

WHEREFORE, in light of the foregoing, and in light of the premises set for

in Mr. Barton’s petition to this Court, Mr. Barton prays that this Honorable Court

enter its Order in this case granting to Mr. Barton its writ of certiorari to the Eighth

Circuit Court of Appeals, and granting any further relief which this Court deems

just and proper under the circumstances.

Respectfully submitted

/s/Frederick A. Duchardt, Jr.

FREDERICK A. DUCHARDT, JR.

COUNSEL OF RECORD

Mo.Bar Enrollment Number 28868

P.O. Box 216

Trimble MO 64492

Phone: 816-213-0782

Fax: 816-635-5155

e-mail: fduchardt@yahoo.com

ATTORNEY FOR MR. BARTON

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CERTIFICATE OF SERVICE AND COMPLIANCE

It is hereby certified

 that required privacy act redactions have been made to the foregoing,

 that this reply complies with the typeface requirements of Supreme Court

Rule 34.1(g) because the document was prepared in Microsoft Word using

Times New Roman 14 font style and typesize,

 that, the countable portions of this reply number 11 pages, and therefore this

reply complies with the dictates of Supreme Court Rules 33.2(b) and

34.1(g),

 that, this item was converted to pdf format for electronic filing and was

properly scanned for viruses, with none being found, and

 that, copies of the foregoing were e-mailed and postal mailed to the

following on this 19th day of May, 2020

Michael Spillane

Assistant Attorney General

P.O. Box 899

Jefferson City, Mo. 65102

mike.spillane@ago.mo.gov

/s/Frederick A. Duchardt, Jr.

FREDERICK A. DUCHARDT, JR.

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