July 24, 2020

Missouri Becomes First State to Carry out Execution During Pandemic

Missouri death row prisoner Walter Barton's last statement before being executed.

Missouri death row prisoner Walter Barton's last statement before being executed.

Missouri Department of Corrections

In May 19, 2020, Missouri became the first U.S. state to carry out an execution during the coronavirus pandemic. Walter Barton, 64 years old, was put to death via lethal injection for the 1991 murder of Gladys Kuehler. His last words were: “I, Walter “Arkie” Barton, am innocent, and the State of Missouri is executing an innocent man.” The execution was witnessed by members of the press and seven of Mr. Barton’s friends and relatives, including the attorneys who fought tirelessly over the course of many years to try and prove Mr. Barton’s innocence in the courts. No witnesses for the victim were in attendance at the execution.

Mr. Barton was tried five times before the State could secure a conviction and death sentence that withstood appellate review. Missouri's first attempt to convict Mr. Barton ended in a mistrial when the State failed to name witnesses for its case-in-chief. The second prosecution ended in a mistrial when the jury could not reach a unanimous verdict as to guilt. The third trial resulted in a conviction and death sentence but was overturned on direct appeal due to improper limitations by the trial court on defense closing argument. Mr. Barton’s fourth trial, which also resulted in a conviction and death sentence, was overturned on postconviction review due to the State’s use of perjured testimony by a jailhouse informant and the failure to disclose a quid pro quo deal with the informant in exchange for her testimony. The conviction and death sentence obtained in 2006 at Mr. Barton’s fifth trial, which ultimately resulted in his execution in May 2020, relied again on testimony from the same jailhouse informant who was found to have perjured herself during Mr. Barton’s fourth trial. While the Missouri Supreme Court ultimately upheld Mr. Barton’s fifth conviction and death sentence on direct appeal, it did so by a split vote of 4-3. Writing in dissent, then-Missouri Supreme Court Chief Justice Michael Wolff said he “[could not] imagine…why the Court would approve the death sentence on this sorry record.”

The State’s case relied heavily on the presence of small amounts of the victim’s blood on Mr. Barton’s shirt, together with testimony at the fifth trial from a blood spatter expert that these drops were “impact spatter” deposited in the course of carrying out the brutal attack on Ms. Kuehler. Attorneys argued that the victim’s blood on Mr. Barton’s shirt was not dispositive of guilt, as Mr. Barton—along with the victim’s neighbor and granddaughter—were the first people to discover the victim’s body in the trailer where she was killed. Mr. Barton told police at the crime scene, who became suspicious seeing the stains on his shirt, that he must have gotten blood in his shirt when he slipped trying to keep the victim’s granddaughter from touching the body. The victim’s granddaughter initially corroborated Mr. Barton’s statement but later changed her testimony at trial.

During Mr. Barton’s federal habeas proceedings, significant new evidence was developed supporting his innocence claims. Of note, counsel asked a blood spatter expert, Lawrence Renner, to review the physical evidence. Mr. Renner concluded that “the clothing taken from Walter Barton could not have been the clothing worn by Ms. Kuehler’s assailant because, even if it is assumed that all of the stains on the clothing were the blood of Ms. Kuehler, an assumption which I believe is dubious, those stains, in numbers and locations, are far, far fewer than what would be expected to be deposited by the spatter which would have occurred in inflicting the wounds on the body of Ms. Kuehler.”

Mr. Renner also noted that he “strongly disagree[d]” with the State expert’s conclusion that the stains on the shirt were the result of “impact splatter” and that he did not believe “any experienced blood spatter expert could reach such a conclusion based upon examination of this stain.” 

Mr. Renner’s expert opinion was never considered on the merits by any court, however. In federal habeas proceedings, his testimony was considered duplicative of claims challenging the blood spatter evidence already raised in state habeas proceedings, and in a new state petition filed by Mr. Barton in early 2020, the evidence was again considered insufficient to reopen a review of the case on the merits.

In late 2019, Prosecutors in Mr. Barton’s case requested the state high court set an execution date the day after the U.S. Supreme Court denied a petition for writ of certiorari in his federal habeas case. Mr. Barton’s attorney filed objections to the State’s request to set an execution date, raising claims that Mr. Barton’s neurological condition had deteriorated so much as to make him incompetent for execution. Four days later, Mr. Barton’s counsel filed a habeas petition in state court asserting Mr. Barton’s incompetence to be executed and reasserting Mr. Barton’s claims of actual innocence. On February 18, 2020—two weeks after this petition was filed, but before ruling—the Missouri Supreme Court set an execution date of May 19, 2020 for Mr. Barton. The court did not then rule on the petition pending before it until April 27, 2020—three weeks prior to the execution date it had scheduled months earlier.

In March 2020, despite increasing awareness of COVID-19 in the United States, attorneys for Mr. Barton began conducting juror interviews in preparation for clemency proceedings. Unfortunately, exactly as this critical investigation got underway, the COVID-19 crisis accelerated. In order to adhere to newly mandated social distancing guidelines, attorneys for Mr. Barton were forced to meet with jurors in open spaces such as empty parking lots, where they passed Mr. Renner’s blood spatter affidavit back and forth in gloved hands and fielded juror questions six-feet-apart over the noise of the wind. In a motion seeking a stay of execution, Mr. Barton’s attorneys wrote:

Since this Court’s February 18, 2020 execution date setting, undersigned counsel has been fully engaged in preparations for a proper presentation to the Governor of a petition for executive clemency. However, those efforts are now being stymied by travel and meeting restrictions which have been imposed. In the opinion of undersigned counsel, it will now be impossible, prior to the currently scheduled execution date, to complete the necessary work for proper presentation of an executive clemency petition.

Despite these conditions, Mr. Barton’s attorneys secured three separate statements from jurors, including the foreman, declaring that Mr. Renner’s testimony was compelling and would have made them reconsider their support for a death sentence because the blood-spatter evidence was the most dispositive evidence of guilt in the case.

This information was transmitted to Missouri Governor Mike Parson in clemency filings and supportive letters at the same time it was also raised in the courts, and Mr. Barton supplemented his legal filings with information regarding the increasing difficulty the COVID-19 pandemic was creating in developing important evidence in support of his claims. In the opinion denying Mr. Barton’s petition, however, the court did not address the juror information or any of the claims about the inability of Mr. Barton’s counsel to provide adequate representation during the pandemic.

Mr. Barton then timely sought review of the state court’s denial of relief in federal court, reasserting the claims of actual innocence and incompetency to be executed and also addressing the complications in continued representation created by the pandemic.

On May 15, 2020, U.S. District Court for the Western District of Missouri Judge Brian C. Wimes stayed the execution for 30 days, stating that it required more time than the less-than-two-weeks prior to the scheduled execution to review the issues before it. However, on May 17, 2020—two days before Mr. Barton was scheduled to be executed—a panel for the Eighth Circuit Court of Appeals vacated the stay and ruled on the merits of Mr. Barton’s petition, effectively eliminating all remaining avenues for relief aside from the U.S. Supreme Court. Again, this opinion made no mention of the limitations imposed by the COVID-19 crisis on counsel’s ongoing representation of Mr. Barton.

As these issues continued to play out in the courts, awareness of Mr. Barton’s case began to grow. A week prior to the execution the ABA submitted a letter to Governor Parson regarding the issues identified in the case and the problematic decision to move forward despite the pandemic. Several other national groups spoke out as well, including the Innocence Project and the MacArthur Justice Center. Death penalty abolition groups such as Missourians for Alternatives to the Death Penalty (MADP) and Witness to Innocence (WTI) held socially distant news conferences and, on the day of the execution, a remote vigil was held online to honor Mr. Barton and other victims of state violence.

In denying clemency, Governor Parson never spoke directly to the issues raised in Mr. Barton’s case. The day before the execution, in a press conference regarding COVID-19, he was asked whether he saw any reason to intervene, to which he responded he did not. He made no further statements, either written or spoken, regarding the lingering doubt around guilt, the limitations the pandemic had placed on counsel’s ability to effectively represent Mr. Barton in the days before execution, or the concern that the execution would itself be unsafe and a violation of social distancing guidelines in light of the pandemic. In Missouri, the clemency power rests entirely with the governor, who is not under any obligation to provide reasons for granting or denying clemency requests.

On May 19, 2020, the U.S. Supreme Court denied Mr. Barton’s requested stay of execution with no noted dissents. The execution took place at Missouri’s Eastern Reception, Diagnostic and Correctional Center (E.R.D.C.C.) in Bonne Terre, where witnesses reported having their temperatures checked before being permitted to enter the facility but also noted various instances in which social distancing among the witnesses and guards was not possible. Mr. Barton was declared dead at 6:10pm, CT.

Prior to Mr. Barton’s execution, E.R.D.C.C. reported no cases of COVID-19. Roughly three weeks following the execution, officials announced that testing had revealed an outbreak at the facility. There are currently 49 documented cases among prisoners in the facility and eight among staff.

1st Trial Mistrial State failed to name witnesses for its case-in-chief
2nd Trial
Mistrial Jury could not reach unanimous verdict on guilt
3rd Trial
Conviction Overturned on direct appeal due to improper limitations by the trial court on defense closing argument
4th Trial
Conviction Overturned on postconviction review due to State's use of perjured testimony by a jailhouse informant
5th Trial
Conviction Upheld by Missouri Supreme Court on 4-3 split.