Janice Morse reports:
Until now, decisions directly affecting Widmer have been made in Warren County. Common Pleas Judge Neal Bronson twice declared mistrials in the highly publicized 2008 bathtub drowning of Widmer’s wife, Sarah, 24, in Hamilton Township.
After Widmer stood trial a third time last year, a jury convicted him of murder; now 31,Widmer is serving a mandatory prison term of 15 years to life.
So far, Bronson has shot down several of Widmer’s lawyers’ attempts to get his conviction thrown out. Prosecutors contend the conviction should stand.
But today, a three-judge panel will hear arguments from both sides and will review the work of Bronson and other authorities. The appellate judges must rule whether any mistakes in the case were serious enough to warrant another retrial for Widmer.
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The fight promises to be difficult, legal experts say.
“The 12th District is more of a conservative district … they have a reputation for rarely reversing jury decisions. But this case might be an exception,” said Mark Krumbein, a longtime Cincinnati defense lawyer who has been an ardent follower of the Widmer case since it began.
But another Widmer watcher, Mike Allen, former Hamilton County prosecutor and current defense lawyer, said: “There may have been small errors made but as far as serious, reversible errors, I just don’t see it.”
Christo Lassiter, professor of law at the University of Cincinnati, says today’s hearing “is critically important as it is his first, best opportunity to challenge the procedures leading to his conviction. … It sets the stage for the appellate life of this case.”
This the first of two Widmer appeals pending with the Middletown court. The initial appeal, which will be heard today, will focus on whether authorities made any serious legal errors before or during Widmer’s third trial.
The second appeal, to be heard at a later date, will center on issues that arose after Widmer was convicted. Those include Bronson’s refusal to grant a retrial based on new evidence about the lead detective on the case, Jeff Braley, who resigned last year amid allegations of resume fraud.
The appeals judges who will hear the arguments in the first appeal – Robert Ringland, Robert Hendrickson and retired Judge H.J. Bressler – are likely to take several weeks or even possibly months to render a decision.
Two of the appeals court’s five judges were excluded from the Widmer panel to avoid any potential conflict of interest.
Judge Rachel Hutzel was ineligible to hear the appeal because she served as Warren County prosecutor while most of Widmer’s case was pending. Judge Robin Piper recused himself; before he became a judge, he was Butler County prosecutor, and reporters and others had sought comments from him about the case. His recusal led to Bressler being appointed to fill Piper’s slot on the panel.
In Widmer’s appeal, attorney Michele Berry alleges authorities illegally removed the bathtub from the Widmers’ home. She says its seizure wasn’t permitted under a search warrant.
Prosecutors argued that a lack of fingerprints on the tub indicated that Widmer wiped the tub clean. A criminalist testified that finger-like “streaks” could have been made by a smaller hand, possibly of a female, and that a forearm mark likely came from a male. While prosecutors pointed to that testimony as evidence that Widmer forcibly drowned his wife, Berry says the criminalist’s testimony lacked a scientific basis.
“So the argument is: The bathtub was being used as evidence improperly, an expert was using junk science and then came a conviction for murder – it’s one plus one equals murder,” Krumbein said.
But Allen said Widmer’s strongest attack may target Braley’s role: “I think it’s a pretty compelling argument that that the entire investigation was tainted, and that defense should have been permitted to dig into Braley’s credibility issues in the third trial.”
Lassiter said the prosecution won a hard-fought verdict, and he predicts that the current Warren County prosecutor, David Fornshell, or his representative who handles appeal issues, “will approach the case on appeal with all the smugness of a winning coach holding the ball while time runs out.”
“The public must be forewarned that an appellate court is obligated to sustain the trial result unless reversible error occurred,” Lassiter said. A reversible error is a serious mistake that violated a person’s right to a fair trial or broke other legal rules. “This is especially true when the trial result is the product of a jury verdict. Thus the defense bears the burden to show reversible error. The defense has its work cut out for it.”