Free Ken Middleton

1992 Appeal Hearing

Although the 3 page brief presented by Gerald Handley was incredibly deficient, Ken was miraculously given a hearing. The points made by Handley in the “brief” brief were:

  • Ineffective Assistance of Counsel… specifically referencing Robert Duncan’s failure to introduce evidence regarding Mr. Middleton’s medical evaluation made by hospital staff immediately following the accident. Also, no evidence was introduced regarding Mr. Middleton’s medical condition just prior to Katherine’s death. This would have refuted prosecution’s contention that Mr. Middleton was “faking” illness and grief when transported to the hospital after the incident.
  • Ineffective Assistance of Counsel… Robert Duncan’s failure to assert that based on the Blue Springs Police Department’s actions during the hours following their arrival at the scene, Mr. Middleton was in effect, under arrest. Mr. Middleton was never advised of his rights (Miranda Rights) and was totally unaware that police were viewing the case as a homicide with him as a suspect. As a result, police officers testified during the trial of utterances made by Mr. Middleton and indicated that he gave multiple “statements” regarding the incident.
  • Ineffective Assistance of Counsel… Robert Duncan’s failure to investigate, counsel, and prepare expert testimony on Mr. Middleton’s behalf.
  • Ineffective Assistance of Counsel… Robert Duncan’s failure to call witnesses regarding the position in the home of key items presented by the prosecution.

View Gerald M. Handley’s Brief.

One would think that at the time of the hearing, Gerald Handley would be prepared to present all of the necessary documentation, witnesses, etc. to support the very contentions that he identified in the brief to the court. Seated next to Ken in the courtroom was not only Gerald Handley but also Robert Duncan, his original defense attorney at the time of trial.

On the day of the hearing, several individuals were at the courthouse prepared to testify. Every single item that was mentioned in the brief was supportable via testimony from these witnesses. Moments prior to the start of the proceedings, they were all gathered in the hall. While there, they saw Mr. Patrick Peters (the original prosecutor – but NOT the attorney of record associated with this hearing) approach Mildred Anderson and Geraldine Lockhart. These two ladies are both sisters of Katherine Middleton. They ultimately became the recipients of a civil judgment in excess of $1M for wrongful death against Mr. Middleton. This civil action was presented on their behalf by none other than the law firm to which Patrick Peter’s own father, William Peters, belonged. (Refer to Prosecutorial Misconduct page for further information.) Immediately following this exchange with Mildred and Geraldine, Patrick Peters walked over to a police officer in the hall. He then instructed this officer to bar entry to the hearing. This action prohibited every single witness assembled on Mr. Middleton’s behalf from entering the courtroom!

Insert multiple affidavits regarding blocked courtroom – not yet received

As mentioned before, Patrick Peters was NOT the attorney of record for the state during these proceedings. However, following Mr. Peters actions earlier in the hall, he was positioned next to the assigned prosecutor and was clearly in the driver’s seat. On no less than 13 different occasions during this incredibly short hearing (less than 2 hours!), Patrick Peters informed the court that Ken Middleton had voluntarily committed himself into a mental institution on the night of the shooting. The clear inference by Mr. Peters was that Ken had perpetrated a hoax with regard to his mental state. Both Ken and Robert Duncan were anxiously awaiting Gerald Handley’s rebuttal to these blatantly false statements. Almost a year earlier, Mr. Middleton had signed a waiver releasing his medical records to his attorneys. Neither Robert Duncan nor Gerald Handley had taken the time to retrieve and review those very records. Had they done so, they would have seen the COURT ORDERED commitment of Mr. Middleton! As dictated by Missouri law, this document was signed by a judge and two additional witnesses to Mr. Middleton’s condition. Mr. Middleton did NOT voluntarily commit himself by any stretch of the imagination. However, as both Robert Duncan and Gerald Handley produced no evidence to rebut Patrick Peter’s misrepresentation, it was taken as fact by the court!

During the proceedings, Ken repeatedly attempted to ascertain from his attorney the whereabouts of his witnesses. He was never given an explanation as to their absence nor was he given an explanation as to why they were not being summoned to the court by his attorney. Even Robert Duncan passed a note to Mr. Handley in this regard. He was obviously as taken aback as Ken. After having read the message, Mr. Handley wadded up the note and stuck it in his pocket.

At the conclusion of the hearing, Ken knew that he had once again been abandoned. For the second time, an attorney had represented him in a court of law and failed to perform even the basic duties of client representation. No witnesses were called, no expert testimony was given, no evidence was presented to refute the very key issues in the prosecution’s case. Just a mere few feet away, on the other side of the courtroom doors assembled a group of people … waiting… that could counter every single prosecutorial argument presented against Mr. Middleton! They had been silenced by the unlawful actions of Patrick Peters and the ineptitude of Mr. Middleton’s attorney, Gerald Handley.

Review of Robert Duncan's Performance During 2004 Evidentiary Hearing

Mr. Christopher O’Hara Carter, is a recognized expert in the rules of professional responsibility with regard to prosecutorial ethics and defense representation. These rules are governed by the sixth amendment to the constitution and are further defined in the 1985 Supreme Court Case, Strickland v. Washington found here

In Strickland v. Washington, the Supreme Court’s findings included the following:

1. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The same principle applies to a capital sentencing proceeding – such as the one provided by Florida law – that is sufficiently like a trial in its adversarial format and in the existence of standards for decision that counsel’s role in the proceeding is comparable to counsel’s role at trial. Pp. 684-687.

2. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Pp. 687-696.

(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case. Pp. 687-691.

(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Pp. 691-696.

In his testimony, Mr. Carter specifically addresses the Strickland v. Washington rulings and both Robert Duncan and Gerald Handley’s (Mr. Handley is a subsequent attorney involved in the case) failures to meet the standards defined by the Supreme Court’s definition as well as those identified in the Sixth Amendment (see below).

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.