Ken Middleton has a new chance at justice. Jackson County prosecutor should grant it | Opinion

On a sunny winter day in late January, Cliff Middleton walked with urgency as he entered a local coffee shop near the Crossroads area of Kansas City. He ordered a coffee. “Black with no sugar or cream,” he said to the barista. He was there to meet with a member of The Star editorial board. Cliff, a middle-aged man with graying hair, piercing green eyes and a booming voice, has fought for 32 years to free his father, Ken Middleton, from a Missouri prison.

It’s a worthy cause — but one that could be in vain if the Jackson County prosecutor’s office doesn’t right what looks like a grave injustice. Ken Middleton is serving a life sentence for the 1990 murder of his wife, Kathy Middleton. Under a new Missouri law, local prosecutors may file a motion asking a judge to vacate or set aside a guilty verdict based on new information or evidence that clears the convicted person of wrongdoing.

There is good reason to believe Middleton didn’t originally receive a fair trial, and legitimate questions linger about what really happened the day his wife died. So why not give the evidence one more look?

The prosecutor’s office remains convinced Ken Middleton received a fair shake. No judge has ordered Baker before the bench to hear Middleton’s claims, according to officials in Baker’s office. This, despite former Jackson County Circuit Court Judge Edith Messina granting Middleton a new trial in 2005.

Messina is a senior adviser to Baker today. Does Baker not trust Messina’s ability to be fair and impartial?

“The Jackson County Prosecutor’s Office has conducted four reviews of this case over the years,” read a statement. “Each review did not support Middleton’s claims of innocence. Our Conviction Integrity Unit would require new evidence to open a fifth review. We sympathize with the family but unfortunately, that doesn’t equal a wrongful conviction. We would support a review of Mr. Middleton’s sentence, given his age, by the governor of Missouri. We do not have authority to adjust his sentence.”

‘Terrifying miscarriage of justice’

“It’s a miscarriage of justice,” said Cliff Middleton. He wiped smears from the glasses he wears. He called up an email from Jason Flom, a founder board member of the Innocence Project. On his podcast “Wrongful Conviction with Jason Flom,” Flom interviewed the younger Middleton about his father’s legal saga. In the email Middleton showed us, Flom wrote: “The case of Ken Middleton is one of the most insane and terrifying miscarriages of justice I have ever heard of.”

We should all share a similar concern.

Messina oversaw Ken Middleton’s original trial, and granted the new trial after new evidence and testimony during his two-day evidentiary hearing in 2005.

Citing jurisdictional issues, the Missouri attorney general’s office appealed Messina’s order. A three-judge panel of the Missouri Court of Appeals in Kansas City agreed: Her ruling was overturned on procedural grounds, according to court documents. Despite clear and convincing evidence that Middleton’s right to a fair trial was violated, he languishes in prison while others absolved of their crimes are set free.

Baker and other high-profile elected officials fought for the release of Kevin Strickland, a Kansas City man convicted of a triple murder he did not commit. Until Baker filed a motion in support of Strickland’s freedom, he spent four decades locked up. Why won’t Baker do the same for Ken Middleton, the Blue Springs man Baker’s senior adviser Messina ruled deserved a new trial?

Middleton has what Strickland did not: a judge’s ruling affirming his claims of ineffective counsel. Under the U.S. Constitution, every defendant has a right to a fair trial. Middelton didn’t receive one, Messina ruled.

“There is nobody that has done a more thorough review of this case than Judge Messina,” Cliff Middleton said.

Unfair trial, new evidence to be considered

Does the Jackson County prosecutor’s office have a conflict in this case? Apparently so, according to a pair of legal motions filed recently in Jackson County Circuit Court.

Middleton’s team wants Baker to appoint a special prosecutor to look into the imprisoned man’s longstanding claims of innocence. In court documents filed last fall, his attorney Kent Gipson makes a compelling argument as to why Baker should step aside and remove her office from any involvement in Middleton’s post-conviction relief efforts.

By the nature of the job, Baker’s office is conflicted, Gipson argues in legal documents. During Middleton’s original trial in 1991, prosecutors engaged in nefarious conduct documented by the trial judge, Edith Messina, Gipson says. She determined in court that Middleton did not receive a fair trial as guaranteed under the U.S. Constitution.

Why hasn’t that ruling, based on new evidence submitted then, ever been challenged in court? If it had been, Middleton would likely be a free man, evidence suggests. Only a legal technicality — jurisdictional issues, not evidence of a crime, legal experts say — has kept him behind bars.

If Baker won’t use the authority she has to correct this grave injustice — and it’s clear she will not support Middleton’s quest for freedom — then she should recuse her office from the case in the interest of fairness. What does Baker have to lose by asking a fresh set of eyes to look into Middleton’s claims of innocence?

Last month, and without explanation, Jackson County Circuit Court Judge Jennifer Phillips refused to hear the motion to have Baker disqualified from this case, according to Gipson. Phillips previously worked under Baker in the prosecutor’s office. Last week, in a separate legal motion, Gipson maintained Phillips cannot be impartial and argued she should recuse herself from the same case, a grievance the judge must consider.

At the time of her appointment to the bench in 2015, Phillips was the prosecutor’s chief trial assistant for the violent crimes unit, according to biographical information available online.

“Judge Phillips … was employed as a Jackson County prosecutor during much of the relevant post-conviction litigation conducted in Mr. Middleton’s case,” Gipson wrote in court documents.

Frozen assets, inadequate defense

Before his trial in 1991, then-assistant prosecuting attorney Patrick Peters froze Middleton’s assets, preventing him from mounting a competent defense, his attorney alleges. The court refused to hear that argument. Government agents can’t restrict a defendant’s access to their hard-earned money and other assets, Gipson alleges in court documents. He’s right, according to a United States Supreme Court ruling.

In 2016’s Luis v. United States, the high court held that any pretrial restraint of a defendant’s legitimate assets that keeps them from hiring legal counsel violates the Sixth Amendment of the U.S. Constitution.

In 1991, a Jackson County jury found Middleton guilty of first-degree murder and armed criminal action in the shooting death of his wife, Kathy — a tragic incident that evidence suggests was accidental. He was sentenced to life in prison plus 200 years. In the decades since, Middleton, 78, has maintained his innocence. But by now, he has exhausted all appeals. That he could possibly die behind bars without receiving a hearing or a new trial is unconscionable.

Under a new Missouri law, Baker has an avenue to right past judicial wrongs. Why won’t she use it in this case? One erroneous conviction is one too many.

More than 17 years after Messina’s order for a new trial, Middleton remains in jail. At minimum, he deserves a hearing in front of a neutral judge. Prosecutor Baker has an ethical duty to pursue justice fully and transparently. It’s our hope she will explain in more detail why her office will not move forward to reexamine his case.