Free Ken Middleton

Rulings 2005 to Present

Judge Messina’s Ruling

On May 26 th of 2005, Judge Edith Messina issued her ruling. She vacated Mr. Middleton’s 1991 conviction and granted him a new trial. In summary, she stated: “… this Court finds Mr. Middleton was abandoned by post-conviction counsel, thus providing just cause to re-open his Rule 29.15 proceeding. Further, in light of the evidence and law presented at hearing and in the briefs submitted by counsel, the Court finds that Movant was denied effective assistance of counsel and orders that Mr. Middleton’s convictions and sentences vacated and set aside, and grants Mr. Middleton a new trial.”

View an excerpt from Judge Messina’s ruling here.

Six days later, on June 1, the state filed a notice of appeal.

View Missouri State notice of appeal document here.

On June 27, 2005 Mr. Middleton filed a motion (pro se) to reinstate his 1991 bond. This request was summarily denied. Mr. Middleton was to remain incarcerated as the state fought against Judge Messina’s ruling.

View Request to Reinstate Bond here.

Newspaper article that summarizes Mr. Middleton’s status as of July of 2005.

Attorney General, Jeremiah Nixon, named as Prosecutor

In August of 2005, the prosecuting attorney requested that the prosecutor’s office be allowed to WITHDRAW as the attorney of record with regard to the state’s appeal. The reason for this motion? A conflict of interest in the prosecutor’s office. One of the assistant prosecutors, Ms. Bronwyn Werner had previously represented Ken Middleton while engaged in the private practice of law. The prosecutor’s office had been in contact with the Missouri Attorney General, Jeremiah Nixon. The Attorney General’s office had agreed to represent the state of Missouri. As a result, Mr. Middleton’s prosecutor was now the Missouri Attorney General. One must ask… was Bronwyn Werner not a member of the prosecutor’s office at the time of the 2004 evidentiary hearing? Why was the prosecutor’s office only now making the argument that there was a conflict of interest with regard to Mr. Middleton’s case?

In the Attorney General Jeremiah Nixon’s appeal brief, he contended that a) post-conviction counsel did not abandon their client and b) the trial court had no jurisdiction to grant Mr. Middleton relief under Rule 29.15. However, Jeremiah Nixon went even further. He stated the following: “And, certainly there was no showing of an altered report…” with regard to the CLEARLY modified gunshot residue document that was referenced in the 2004 hearing. Either Mr. Nixon was ill-advised with regard to the testimony in the appeal hearing –or- he was DELIBERATELY misleading the Court in his brief. In either case, Mr. Nixon’s actions in this instance are at minimum questionable and at most actionable for mail fraud! (United States v. McDougal, 137 F.3d 547, 553 (8th Cir. 1998) )

View document requesting withdrawal of prosecutor.

View excerpt from Missouri Attorney General, Jeremiah Nixon’s cross appeal.

View “Altered” Residue Document with notations.

Appellate Court’s Ruling on Cross-Appeal

On June 27 th of 2006, the Western District Appellate Court issued their ruling. They REVERSED Messina’s ruling of 2005. Their reversal was purely PROCEDURAL. At no point in their summary did they address ANY of the actual specifics of Mr. Middleton’s 2004 hearing. The Court of Appeals did NOT reach the underlying merits of the case. They instead simply ruled that Messina erred in re-opening the 29.15. They completely ignored the overwhelming facts that, in essence, discounted the prosecution’s case against him… in its entirety! In short, they chose to disregard the fact that Mr. Middleton was innocent.

View the Appellate Court’s Ruling.

One point worth noting… the Court’s decision was handed down by 3 judges from the 11 member Western District Missouri Appeal’s Court. Ronald Holliger (presiding judge), Harold L. Lowenstein, and Robert G. Ulrich. Based on their own operating rule, a review should have been performed en banc (with all judges or a quorum of judges present) prior to issuance of their decision. An En Banc Review did NOT occur in this case.

Review Rule XXXI. Court En Banc Review of Division Opinions.

View newspaper article reflecting the repeated “twists” associated with
Mr. Middleton’s case

Motion for Rehearing and/or Transfer

On July 10th, 2006 Jonathan Laurans filed yet another motion on Ken Middleton’s behalf. In this motion, Mr. Laurans asserted that the Appellate Court’s decision of June 27th did NOT take into consideration the evidentiary particulars that were presented in the 2004 hearing. He repeated the facts regarding the failures of Duncan, Handley, and even the Public Defender’s office.

Mr. Laurans also pointed out that this same Court, just weeks prior to their ruling, penned two decisions which quite clearly conflicted with the standard of review performed in Ken Middleton’s case. He also identified a decision made by the court on the very same day that Mr. Middleton’s case was decided which was clearly inconsistent.

View Jonathan Laurans COMPELLING Brief following the Appeal Court’s Ruling on Cross-Appeal.

On August 29, 2006 Mr. Middleton’s Motion for Rehearing and/or Transfer was denied.

View Notice regarding Motion.

Application for Transfer to Missouri Supreme Court

Once again, on September 7th 2006, Jonathan Laurans filed a brief on Ken Middleton’s behalf. In this instance, he was requesting relief from the Missouri Supreme Court. At minimum he was requesting that the Supreme Court should send the case back to the Circuit Court for findings of fact and conclusions of law pertaining to the “miscarriage of justice” issue Judge Messina explicitly reserved reaching in light of her decision to grant Mr. Middleton a new trial under rule 29.15. The following text is excerpted directly from Judge Messina’s 2005 decision:

“Because this Court finds Mr. Middleton was abandoned by his Rule 29.15 counsel, this court did not address the alternative basis urged for jurisdiction, namely that the record reflects a gross miscarriage of justice.”

View Application for Transfer to Missouri Supreme Court.

Insert the Missouri Court of Appeals Mandate(to be scanned)

Following the filing of this brief, on October 30th 2006, Judge Edith Messina DISMISSED the re-opening of the 2003 29.15 motion pursuant to the Mandate of the Missouri Court of Appeals’ decision of September 28 th 2006.

View Judge Messina’s Order: 1006MessinaOrder(to be scanned)

Conflicting Opinions from the Same Court / Same Justices / Same Rule of Law

The same Missouri Court of Appeals Western District applied the following standard in Johnson v. State, 189 S.W.3d 698, 700 (Mo. App. W.D. 2006) and Edgington v. State, 189 S.W.3d 703, 705 (Mo. App. W.D. 2006)

Standard of Review

Appellate review of the denial of a motion to reopen post-conviction proceedings is treated the same as the appellate review of the denial of post-conviction motions, which is limited to a determination of whether the findings and conclusions of law of the motion court are clearly erroneous. Daugherty v. State, 159 S.W.3d 405, 407 (Mo. App. 2005). “Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made.” Id.

Additionally, on the same day Ken Middleton’s opinion came down (6/27/06), one of the same judges, Harold Lowenstein, ruled in Fenton v. State, WD 65502 (6/27/06), asserting:


Review is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous… The state contends there is no authority to reopen a rule 27.26 (rule used prior to 29.15) motion at this late date. However, the recent Brown decision from the southern district does indeed allow a reopening on the theory of abandonment. The same rationale holds true for jurisdiction of a motion court to hear abandonment claim under the current rule 29.15 so long as the original pro se motion was timely filed. State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217-18 (Mo. banc 2001 ) (where there was a ten year gap);Daugherty v. State, 116 S.W.3d 616, 617 (Mo.App. 2003) (where abandonment occurred some twelve years prior to the action).

In Summary

The court of appeals refused to apply the above same Standard of Review for Ken Middleton and ruled his de novo and completely ignored Judge Messina’s 38-page ruling giving him a new trial and reversed her decision.

Would you feel the court of appeals was “corrupt” if you were treated in this fashion and clearly denied equal protection of the law under the 14 th amendment to the United States Constitution?

Note: de novo … This term is used to refer to a trial which starts over, which wipes the slate clean and begins all over again, as if any previous partial or complete hearing had not occurred.

Missouri Supreme Court

In addition to its decision-making powers, the Missouri Supreme Court supervises all lower courts in the state (to include the Western Appellate). You may contact the Clerk of the Missouri Supreme Court via the address below to request a review of the clearly contradictory rulings handed down by the Western Appellate District.

Thomas F. Simon, Clerk
Supreme Court of Missouri
Post Office Box 150
Jefferson City, MO 65102
Phone: (573) 751-4144
Fax: (573) 751-7514

MO Supreme Court Denial of Transfer 09/26/2006

See Anthony Smith vs. State WD66129 (March 6, 2007) for Standard of Review