Last May, the 6th Circuit ordered Barton be retried in Warren County Common Pleas Court or be released within six months, overturning a conviction for which he has already served 11 years in prison.
This deadline was stayed, while the case was under review by the U.S. Supreme Court, which declined to hear the appeal in an order issued a week ago.
In interviews last week, Heck and Allen drew upon 80 years as lawyers to offer perspectives on those challenges, as well as potential outcomes in the case, begun in 1995 when Vickie Barton was raped and killed at the couple’s horse farm near Interstate 75 in Franklin Twp.
Warren County Prosecutor David Fornshell said he plans to retry Barton, but Allen said both sides might be wise to reach an agreement.
“One resolution of this for the prosecutor would be to craft a deal for time served,” Allen said. “That’s a credible resolution. That’s a responsible resolution to it from his part.”
While not cleared of the crime, Barton would be able to return home to Springboro.
Heck agreed a plea was an option and noted survivors or victims were “the ones who really suffer” during retrials.
“They have to relive the tragedy all over again. Personally I always hate to see that,” said Heck, prosecutor for four decades in Montgomery County.
Last Monday, Barton's lawyer, Christopher Pagan, said he was "looking forward to the next step" after the U.S. Supreme Court declined to take up an appeal of the 6th Circuit ruling, but did not respond to questions for this article.
Fornshell declined to be interviewed for this story, but previously said in a text message that he planned to retry Barton “assuming our witnesses are still available.”
In the absence of witnesses who cannot be located, are unable to appear due to medical problems, or for some other issue; or who have died, Heck and Allen said previous testimony and statements from witnesses or testimony during the 2005 trial could be used.
“I would rather have the live person, ” said Heck, a prosecutor in Montgomery County since 1972. “If they are not there, you can still use their testimony.”
Barton was accused of hiring those responsible for raping and killing Vickie Barton in a botched burglary intended to scare her into moving into Springboro, so he cold be police chief.
He was convicted of aggravated burglary and involuntary manslaughter after a two-week trial and a sentenced to 15-to-50 years in prison.
The 6th Circuit ruling discredits the testimony of Gary Henson, who told the jury his stepbrother was one of those who raped and killed Vickie Barton during a botched burglary.
“The State’s theory here rests on the testimony of a single witness —not even an eyewitness, in fact. That witness presented an unsupported, shifting, and somewhat fantastical story at trial,” the 6th Circuit opinion said.
The 6th Circuit also ruled the prosecution withheld evidence regarding another possibly staged burglary that could have helped in Barton’s defense. This was discovered by the defense after the trial.
“That makes it very tough on a prosecutor,” said Allen, who now works in private practice.
Other new evidence could help either side, as well as technological crime fighting tools, such as DNA analysis.
One of the prosecutors from Barton’s 2005 trial, Andy Sievers, has left the office and works as a local magistrate in probate and juvenile court. The other, Leslie Meyer, is an attorney for the Bureau of Workers Compensation in Cincinnati.
John Newsom, the head of the cold-case team who investigated the Barton case and a key trial witness, retired last year.
John Judge James Flannery also retired last year. Typically the case would be assigned to his successor, Mike Gilb, appointed by Gov. John Kasich last July, but defeated in the March primary by Timothy Tepe.
Heck said bringing new prosecutors up to speed was a factor, but Allen noted Sievers “was just a phone call away.” Allen said uncertainty due to Gilb’s status could come into play, while Heck said, ““Any judge is going to have to hear it as if it’s a brand-new trial.”
Retrials are rare. Allen said he had handled two death penalty murder retrials as a defense attorney, but no retrials as a prosecutor.
“It’s a real challenge. It’s a challenge to both sides,” he said. “But I think more a challenge to the prosecutor.”
Heck estimated he had retried five cases, including one rape trial three times before conviction.
“There’s always challenges that are unique to retrying a case,” Heck said, suggesting too much is made of a witness’ loss of memory over time.
“In some cases, nothing is going to erase that from their memory,” he said.
“In this case, this prosecutor, Dave Fornshell, he’s experienced, he’s a good lawyer. I’m sure he’ll know what the challenges are and he’ll meet those head on,” Heck said.
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