His lawyer asked the U.S. Sixth Circuit Court of Appeals this week to set bond, allowing Barton to be released from the Southern Ohio Correctional Facility in Lucasville.
Barton’s attorney sought the bond hearing after the court ruled the former police lieutenant should be retried within six months or released due to problems with the case used to convict him.
Barton is also scheduled for a parole hearing on June 22.
48 Hours Mystery
Barton’s case prompted international interest, including an episode of 48 Hours Mystery questioning the verdict. The show was televised for years after the trial.
Barton, a 25-year veteran of police departments in Springboro and surrounding communities, was convicted of hiring the menwho raped and murdered his wife, Vickie, during a botched burglary in 1995. She was a nurse at Sycamore Hospital and an instructor at the Kettering College of Medical Arts.
Barton was charged in 2004 after an investigation by a cold-case team, made up of detectives from Montgomery and Warren county police agencies, headed by a former Cincinnati detective.
The team identified about 10 suspects, including a serial killer who had passed through the area and one of Vickie Barton’s co-workers.
The prosecution’s case asserted that Barton hired his wife’s killers in hopes of scaring her through the burglary into leaving their home in Franklin Twp. and moving into Springboro.
Although the previous chief had lived outside Springboro, the theory was based on the idea that Barton believed he needed to live in Springboro to be named chief.
It was based in part on the testimony of Gary Henson, whose half-brother William Phelps, was one of those who allegedly broke into the Bartons’ home.
Phelps committed suicide after the incident. The cold case team exhumed Phelps’ body, but found no match between his DNA and that found at the crime scene.
Investigators used a recording of Barton’s 911 call to show he indicated he wanted to call “Phelp man” to link him to Phelps.
Henson testified that Barton paid Phelps $3,000 to stage the burglary, but pinned the rape and murder on an unidentified accomplice.
No one else has ever been tried in the case.
The court’s ruling
This month’s ruling, issued May 15, raises the issue of a single witness in the case.
“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 State suppressed material, exculpatory evidence from Barton, thereby making it more difficult for Barton to discredit this theory. There is a reasonable probability that such actions affected the outcome of the trial,” according to the ruling.
As a result, lawyer Christopher Pagan said he thought there would be “a presumption in favor of bond” by the court.
Pagan said he is hopeful the Sixth Circuit will set a reasonable bond, regardless of the state’s decision on his parole.
“I’m hoping bond will be granted and it won’t be an issue,” he said.
The ruling “at this time, does not vacate the sentence and thus does not affect his parole eligibility or hearing date,” JoEllen Smith, a spokesperson for the Ohio Department of Rehabilitation and Corrections, said in an email.
Last week, the Ohio Attorney General’s Office was deciding whether to appeal. It could ask for reconsideration by the Sixth Circuit Court or appeal to the U.S. Supreme Court.
The Sixth Circuit ruling comes after a decade of unsuccessful appeals in state and federal courts, following Barton’s conviction in 2005 after a two-week trial in Warren County Common Pleas Court.
In the ruling, the court also said prosecutors withheld evidence by failing to inform Barton’s lawyers that they had reopened another case of an alleged staged burglary involving Henson, committing a “Brady violation.”
“To reiterate: Brady requires the State to turn over all material exculpatory and impeachment evidence to the defense. It does not require the State simply to turn over some evidence, on the assumption that defense counsel will find the cookie from a trail of crumbs,” the ruling said.
By the time Barton was tried, he had remarried. His wife continues to live in a planned community in Springboro. She could not be reached for comment and Pagan declined to comment on either her or her husband’s reaction to the latest ruling.
Others who attended the trial were awaiting the attorney general’s office decision.
“I’m anxious to see what they are going to do,” said Springboro Police Chief Jeff Kruithoff. “I think it wouldn’t be pretty if it was retried.”
Warren County Prosecutor David Fornshell referred questions about the case to the attorney general’s office.
“We are reviewing the decision at this time,” Dan Tierney, spokesman for the attorney general’s office, said in an email.
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