Reopening Missouri Amid the Pandemic Means Executing a Possibly Innocent Man

In the years he spent living under a death sentence in Missouri, Mark Gill occasionally chatted with Walter Barton about what they would do if they ever got out of prison. “His thing was, he wanted to go fishing,” Gill remembered. “He wanted to watch the sun come up and go fishing all day.”

Barton was from Arkansas, so that’s what everyone called him: “Arkansas,” or “Arkie” for short. Gill met him shortly after being sentenced to die in 2004; he struck Gill as hyper and high-strung. “I mean in a good way, it ain’t nothing bad,” Gill said. “He couldn’t sit still. He always had to be moving.”

Much of that energy was directed at working on his case, Gill said. Barton had been tried five times and ultimately sentenced to die for a crime he swore he didn’t commit. The 1991 murder occurred not long after Missouri’s condemned population was moved from Jefferson City to the Potosi Correctional Center in Mineral Point, following a lawsuit challenging the conditions on death row. At Potosi, they were granted more freedom of movement, including access to the law library. “He was always in there,” Gill recalled. “He would always say he didn’t do it.” Gill believed him. “You wouldn’t fight that hard if you did do it.”

Gill’s own death sentence was eventually overturned. In 2017, he was resentenced to life without parole. By that time, he had seen a lot of men taken to their deaths. To most of the outside world, they were simply murderers, but to him, they were his neighbors: guys who joined him for meals or games of chess. The first execution carried out during his time at Potosi was his cellmate, Stanley Hall, executed in 2005. A captain came to the door and started reading the death order, Gill recalled, and Hall got up and said, “‘Hey, I’ll see you later.’ And I said, ‘No you won’t, they’re fixing to kill you.’”

Hall’s execution “messed me up a little bit,” Gill said. But then there were more. His friend Dennis Skillicorn was killed in 2009, followed by Skillicorn’s co-defendant Allen Nicklasson in 2013. John Winfield was executed in 2014, then Richard Strong the next year. “I had survivor’s guilt for a while,” Gill said. “I still do.”

On February 18, 2020, Missouri set an execution date for Barton. Gill got the news during a legal visit at the Jefferson City Correctional Center, where he is now serving a life sentence. Soon afterward, the coronavirus turned the world upside down. For a moment, it looked like the pandemic would force the state to grant Barton a temporary reprieve. But on April 27, the Missouri Supreme Court denied a stay of execution.

A few days later, Gill wrote an email to Elyse Max, the head of Missourians for Alternatives to the Death Penalty. “I think of Arkie every day,” he wrote. He urged Max to try to meet Missouri Gov. Mike Parson in person, to ask him to intervene. But on May 5, a spokesperson said the governor planned to let the execution proceed. Gill saw it on the news the next morning. If nothing changes, Barton will be the 48th person to be executed in Missouri since Gill was sentenced to die. “I wish I could have taken a bunch of the guys with me when I got on the bus and left,” he said.

Five Trials and a Trail of Misdeeds

If Missouri kills Barton on May 19, it will be the first execution to move forward amid a global pandemic that until now has forced the country’s death machinery to a halt. Texas has delayed six executions amid Covid-19. Tennessee has also put an execution on hold. But as states start to reopen, Missouri appears determined to be the first to break the short pause on state-sanctioned killing.

Prison officials point to a number of planned precautions for Barton’s execution. “We plan to limit the number of witnesses in each room and space them out within each room,” a spokesperson told the St. Louis Post-Dispatch last week. “We have ample access to hand sanitizer, fabric face masks and other supplies, as needed.”

But beyond the problems that come with carrying out an execution in the midst of a deadly pandemic, there are also serious questions about Barton’s case that have never been resolved. Among them is his innocence claim. Almost no physical evidence linked him to the crime, and a number of key witnesses have recanted their testimony. One Missouri Supreme Court judge decried the state’s maneuvering in the case, writing in 2007 that “Barton has gone to trial five separate times for the same offense, and prosecutorial misconduct has plagued the trials from the outset and has allowed the state opportunities to bolster its evidence.”

“Prosecutorial misconduct has plagued the trials from the outset.”

On October 9, 1991, 81-year-old Gladys Kuehler was found murdered in her home at the Riverview Trailer Park in Ozark, Missouri. It was a brutal and bloody crime. She had been stabbed more than 50 times and partially eviscerated. She bled out on her bedroom floor.

It wouldn’t be long before police arrested Walter Barton and charged him with murder. He had lived at the park and was friends with Kuehler, who was the park’s manager. In fact, he’d been at her trailer that afternoon — he’d asked to borrow $20 — and he’d answered her phone around 3 p.m., when the park’s owners called to talk about a new tenant moving in, which also happened to be around the time that investigators surmised that Kuehler had been killed.

And there was forensic evidence: A small blood spot found on Barton’s shirt was a biological match to Kuehler.

Barton had an explanation for that. He, Kuehler’s granddaughter Debbie Selvidge, and a neighbor had found the body. When they discovered Kuehler, lying naked and bloody next to the bed, Selvidge had rushed forward and Barton had pulled her back, he said. The blood must have transferred in the process. Selvidge confirmed the account to police. But later, when Barton went on trial, she changed her story, saying that Barton had never even entered Kuehler’s bedroom. A blood-pattern expert said the drop came from “high velocity” spatter — meaning as Kuehler was assaulted — and it could not have been picked up casually, as Barton described. Barton was convicted and sentenced to death.

Of course, it wasn’t that straightforward. Barton would be tried five times before the conviction would stick. The first trial, in April 1993, was over before it began; the state failed to provide the defense with a list of the witnesses it would call at trial, so the judge declared a mistrial. Six months later, Barton was tried a second time and again it ended in a mistrial, this time after the jury deadlocked on a verdict.

Walter Barton at the Potosi Correctional Center in February 2020.

In each of the next two trials, jurors convicted Barton and he was sentenced to die, but those convictions were ultimately overturned because of errors or misconduct. Most notably, the prosecution failed to disclose to the defense important information about its star witness, Katherine Allen, a jailhouse snitch who said Barton confessed to her. According to Allen, who was in jail with Barton as he awaited trial, Barton twice threatened to kill her, “like he killed that old lady.”

Allen testified that she had been convicted before — six times, she said — but denied that she got any deal for testifying against Barton. Neither of those claims was true. It turns out that Allen had been convicted 29 times, for things like forgery and credit card fraud, and that prosecutors had dismissed a pending case in exchange for her testimony, information the state had withheld. In 2004, Barton’s fourth conviction was set aside.

At his fifth trial, the state used Allen again, and again she testified that she’d been convicted just six times and hadn’t received any deal in exchange for her testimony. The defense confronted her, but asked about just 12 of her 29 convictions, and then failed to challenge her with evidence that additional charges had been dropped in consideration for her testimony.

“Five trials should be a huge red flag.”

This time around, the Missouri Supreme Court upheld Barton’s conviction by a 4-3 majority. In his dissent, Judge Michael Wolff was skeptical. “From the first mistrial in 1993 through three completed trials, post-conviction proceedings, multiple appeals, there is a trail of mishaps and misdeeds that, taken together, reflect poorly on the criminal justice system,” he wrote in 2007. “The evidence that links Barton to the crime is not particularly compelling.”

There were “glaring inadequacies” in that evidence, Wolff wrote, particularly where the blood stain was concerned, which was the only physical evidence tying Barton to the crime. The murder was uniquely bloody, and yet there was just a small spot on his shirt. Barton hadn’t changed clothes that afternoon, and witnesses who saw him did not report there being any blood on him. He’d washed his hands at a neighbor’s mobile home, but no blood was found in the sink. It would be reasonable to expect that Kuehler’s killer would be covered in blood, Wolff wrote. “How could Burton have perpetrated the kind of violent, forceful attack that killed Ms. Kuehler and walked away quite unstained by the effort?”

And there is evidence that has never been explained — including a hair found on Kuehler’s stomach and blood under her nails, neither of which match Barton. “In order to reach its result, the majority of the court … must imagine that the evidence is better than it is,” Wolff wrote. “I can imagine why the court would affirm the conviction of Walter Barton. After all, at least 36 of the 48 jurors who have heard the evidence — tainted though it may be — have voted to convict. If this were not a criminal trial, that would be a landslide. I cannot imagine, however, why the court would approve the death sentence on this sorry record.”

The First Execution of the Pandemic

In the intervening years, Barton’s lawyers have tried to draw the court’s attention to many of the flaws that so bothered Wolff — the inconclusive blood evidence, the lying jailhouse snitch — but without success. In its April 27 opinion, the current state Supreme Court rejected their latest attempt to prove Barton’s innocence, clearing the way for his execution to go forward. Barton’s evidence “is simply additional evidence that might have been used to impeach a jailhouse informant and provide competing expert testimony to explain the presence on his clothes,” the court wrote. “While this might have been helpful, it does not show actual innocence.”

Sean O’Brien, a law professor at the University of Missouri, Kansas City, who has represented innocent clients facing the death penalty, says that longtime inadequacies in Missouri’s criminal justice system hinder the ability of defendants like Barton to mount a good defense, let alone prove their innocence. Barton’s situation is particularly troubling, he said. “Five trials should be a huge red flag” that something is fundamentally wrong with the case.

“We had to talk to those jurors in a parking lot with the wind blowing.”

In a clemency application, Barton’s current lawyer, Frederick Duchardt, argues that the necessary scrutiny into his client’s wrongful conviction has been hamstrung by the coronavirus crisis. An investigation preceding the pandemic revealed that at least one juror from the fifth trial “had serious questions about Mr. Barton’s guilt,” Duchardt wrote. Defense investigators have since spoken to additional jurors who have echoed these concerns, but the pandemic has made it impossible to discuss the case with the level of care and detail the process demands. “We had to talk to those jurors in a parking lot with the wind blowing,” Duchardt told The Intercept. “Socially distanced.” Although they have gathered crucial information, he said, “we have just scratched the surface.”

Without a reprieve, further investigation will never happen. “The decision whether to execute Barton now lies solely in the hands of Gov. Parson,” says Max of Missourians for Alternatives to the Death Penalty. In conjunction with Death Penalty Action, the group has gathered thousands of signatures on a petition urging the governor to change his mind and intervene. Should the execution move forward, a virtual vigil will take place on May 19.

Max is not optimistic that the governor will show compassion. He has granted clemency only once during his term and “has publicly stated he does not plan to release any vulnerable prisoners during the pandemic,” she said. “Executing Barton at this time would be a display of the extreme faults in the priorities of the criminal justice system in Missouri.”