Cliff Middleton has spent 20 years locked into freeing the father he says is innocent

Cliff Middleton speaks with a preacher’s zeal and intensity. When he isn’t locked in eye contact with you, trying to convince you of his cause, his gaze wanders over your shoulder, as if looking for an invisible flock. He discusses — at length — justice, truth and his father.

Those subjects intersect in Blue Springs, in the home of Cliff’s father and stepmother. Truth and justice notwithstanding, two facts about what happened there on February 12, 1990, are not in dispute: Ken and Kathy Middleton were the only two people in their Blue Springs house, and a bullet that discharged from Ken’s .357-caliber Magnum entered the left side of Kathy’s face, ending the 46-year-old woman’s life on the couple’s dining-room floor.

Kathy had been Cliff’s stepmother since he was 5 years old. Although he lived with his biological mother most of the year, Cliff relished spending summers with his father and his father’s wife, often exploring the land that the couple owned in rural Arkansas. Cliff was 20 when Kathy died, and his father was given a prison sentence of life plus 200 years for first-degree murder and armed criminal action. Ken says Kathy’s death was a tragic accident, not a homicide. Since 1991, Cliff has spent part of every day working to prove that his father didn’t kill the woman Cliff thought of as a second mom.

Ken calls his son from prison five times a day to talk strategy. Even when Cliff is exhausted from a day of hauling cars to dealerships — a trade he followed his dad into — he picks up the phone. Cliff works on his website about Ken, meets with Ken’s lawyers, calls media outlets and meets with community activists, never giving himself a day off — not for holidays, not for his wedding, not for the births of his three children.

After 20 years of court fights, revelations about the investigation, and nonstop campaigning on his father’s behalf, Cliff still doesn’t fully understand the events leading to Kathy’s death, and neither do authorities. Now, though, Ken is preparing a final appeal motion to reopen his case and, he hopes, to earn a new trial. More than ever, he is leaning on Cliff, the one advocate he has had since his journey through the justice system began.

For Patrick Peters, the assistant Jackson County prosecutor assigned to the Middleton case, the death of Kathy Middleton was just another open-and-shut wife killing. It was nothing new to the man known in the courthouse as Dr. Death because of the half-dozen capital-punishment convictions on his résumé.

“A first-year law student could have gone in there and got a conviction,” Peters says, recalling the case.

The way Peters presented it to a jury: Ken called Kathy at work and told her that he was feeling ill, and she agreed to return home to care for him. When she arrived, Ken held his wife of 16 years against their dining-room wall, put his Smith & Wesson revolver about 8 inches from her face and executed her. When she was dead, he called 911 and shrieked to the operator that his wife had been shot. Then he ran to greet police when they arrived at the scene. Upon being told by EMTs that Kathy was dead, Ken bolted for the bathroom, pretended to wretch and began washing his hands, hoping to rid them of gunpowder residue. Riding in an ambulance to the hospital, paramedics reported that Ken feigned unconsciousness.

When it was time to tell authorities how Kathy ended up dead in their home, Ken’s story came unglued.

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His version of events starts with the gun. The revolver was one of a half-dozen or so firearms Cliff says were necessary for an avid hunter. Ken told police that the last time he had used it was the previous fall, on one of his yearly hunting trips to Colorado.

Recalling those vacations to a Pitch reporter, Ken says his wife never wanted to tag along. Instead, Ken says, she baked for him. When he mounted a horse in the morning to hunt, he took with him the revolver and a big wedge of her German chocolate cake. He had brought the gun to their Blue Springs home after worrying that it was getting dirty in their Arkansas home. All he wanted to do was clean it.

Ken spent the morning of February 12, 1990, running errands in his gray-and-white 1988 Ford pickup, a day after returning from an Arkansas trip. The gun was in his suitcase. He took it out to clean it but paused to call his wife and let her know that he was sick. He then dozed in a recliner in the couple’s living room, the gun nearby. When Kathy arrived, she saw her husband passed out and the weapon within his reach; she snapped up the .357 to put it away before walking to the dining-room phone to call Ken’s doctor. Ken’s next memory is waking on the living-room floor, then finding his wife soaking in a puddle of her own blood on the dining-room carpet. He called 911.

Later, he would tell police that Kathy must have dropped the gun, which hit something hard enough to make it discharge, or she fumbled with it and accidentally pulled the trigger. Ken didn’t budge from his story — that he hadn’t shot his wife — and Peters didn’t believe him. A year later, Ken stood trial for Kathy’s murder.

Ken hired Bob Duncan, a once-prominent criminal defense lawyer known for taking high-profile murder cases. Taking Ken’s case after finishing up a different murder case, with another already set to follow, Duncan was overworked and not invested, Cliff says. Duncan was addled by health problems and financial problems caused by a failed resort investment, and was no longer the gifted lawyer he once had been. Clients who went to Duncan looking for the great courtroom advocate of decades past instead got a desperate man trying to hold on to his career.

“Basically what it comes down to is, he was taking as many cases as he could to cover his ass financially,” Cliff says.

At trial, Peters demonstrated how the mechanics of the revolver and its 3.5-pound trigger pull make the gun almost impossible to fire accidentally. Duncan made no move to refute that assertion. Court records indicate that Duncan had contacted a gun expert but didn’t call him to the stand or present a deposition from him.

Peters also pointed to Ken’s rush to the bathroom after being told that Kathy was dead. Cliff says he wasn’t destroying evidence; he was distraught.

“My dad was crying next to her body. When he heard the paramedics say there is no chance of saving her, he stood up and got dizzy,” Cliff says. He had just gone to splash water on his face. “The prosecutor gets ahold of this in trial, and he wasn’t splashing water on his face no more; he was scrubbing his hands,” Cliff says. But Duncan was no help on the issue, and it was Peters’ story that the jury took with them into deliberations.

Duncan also didn’t argue that the Blue Springs police force, which rarely worked murder scenes, had conducted an inept investigation. The forensics photography, for example, hadn’t turned out, leading officers to re-create the scene later and take new pictures, using furniture indentations in the carpet to replace objects that had been there the day of Kathy’s death. Cliff points out that a boot print on the dining-room wall — Peters had argued that this showed Ken pinned Kathy there — predated the shooting and would have been hidden from view by a plant on that February 1990 afternoon. When the police restaged the room, Ken’s defense now contends, they misplaced the plant, exposing the print.

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Duncan also never presented the police request for gunpowder-residue tests on both of Kathy’s hands. (Ken’s hands had both tested negative for residue.) Police had tested Kathy’s right hand; in court documents, the police request for a test of her left hand was whited-out without explanation, and the test was never conducted.

Peters didn’t make motive a main part of his case. Maybe it was an unhappy marriage that ended with a fight. Maybe Kathy wanted a divorce (although she never filed for it), and Ken didn’t feel like splitting their assets with her. (One of Kathy’s sisters said their net worth was between $200,000 and $500,000. Ken denies this.) The reason, Peters contended, was far less important than simple arithmetic: Two people were in a house. One was shot in the head, and one wasn’t.

The trial didn’t even last a week. It took the jury less time to conclude that Ken killed his wife than it would have taken them to watch The Fugitive.

Ken and Cliff, believing that a higher court would agree that Duncan had failed Ken, hoped for an appeal.

After considering but rejecting a public defender — he says no court-appointed counsel ever showed up to meet with him — Ken hired Gerald Handley, an associate of Duncan’s, to take over the case in late 1991.

Handley filed an appeal on the grounds that Duncan had been ineffective counsel for not presenting jurors with the investigative gaffes and alternative theories of Kathy’s death. But Handley’s work turned out to be no better than Duncan’s. With a filing deadline days away, Handley sent Ken a letter in prison telling him, “I am Federal Expressing an Affidavit which must be signed and returned to us by Federal Express tomorrow so that it will be in our office for filing with your Amended Petition on Monday, November 25, 1991.”

But Handley seems to be instructing Ken to swear he’d read a filing he couldn’t have seen. In the letter’s next paragraph, the lawyer wrote: “Tomorrow I will Federal Express you a rough draft of the Amended Petition.” If Ken didn’t sign the affidavit, acknowledging that he’d read the appeal, it couldn’t be filed; but Handley hadn’t sent him the appeal yet.

The standard for proving ineffective counsel is rigorous enough that very few who file for appeal on those grounds succeed. A four-page filing didn’t get the job done. When Judge Edith Messina, who was the trial judge, saw Handley’s flimsy appeal, she denied the claim that Duncan’s behavior had amounted to ineffective counsel. Ken stayed in prison, and Duncan’s reputation was protected from further damage.

“It’s a proven fact that if he [Handley] would have done his job back in ’92, my dad would have been released back then,” Cliff says. “He was a hatchet man.”

Handley concedes that his recollection of the case has faded, but he doesn’t think much of Cliff’s memory, either. Asked if he told Ken to sign the affidavit without reading the appeal, Handley says, “I’m not going to get involved with his theory, [but] that’s hardly something I would have done.”

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Through the mid-1990s, Cliff toiled to collect affidavits and depositions from people involved in the case, in order to document the poor assistance his father had received. Meanwhile, Duncan, who pleaded guilty to tax-evasion charges in 1992, tried to make amends. Beginning in 1995, two years before his death, he signed a series of affidavits, including one in which he admitted, “I did not have any of the physical evidence in this case examined by a forensics expert, other than to speak to a gun expert but did not have him examine the gun.”

Ken’s lawyers also deposed Blue Springs police officer Dave Link, whose job was to test for gunpowder residue. In the 1997 deposition, Link said his procedure was to always check both hands. He couldn’t explain why Kathy’s left hand had not been tested.

But neither the depositions from people who might have testified at the trial nor the affidavits from Duncan would do Ken any good unless he could get them in front of Messina. So, in 2002, Ken hired Jonathan Laurans, a lawyer who specialized in the labyrinthine challenges of post-conviction work. He filed an 81-page motion that was backed up with hundreds of pages of exhibits, showing alternative possibilities for how Kathy could have died, and why Ken deserved another trial.

Forensics investigator Robert Tressel testified that if Ken had been the triggerman, he would have had to shoot upward at Kathy from under the dining-room table, then roll out of the way of her falling body in less than a tenth of a millisecond in order to come away unsullied by blood and gunpowder. Furthermore, Tressel said, it would have been “virtually impossible” for Ken to have left that boot print while pinning Kathy to the wall and shooting her.

The motion was compelling enough for Messina to hold a hearing on Ken’s case in June 2004. After two days of Laurans quizzing his expert witnesses and laying out problems with the prosecution and with Ken’s defense and appeal, Messina ended the hearing to consider if Ken would get a new trial.

Jackson County Assistant Prosecutor David Kelly, who fought the appeal in court, says Messina seemed receptive to Laurans’ case.

“Both Jonathan and I knew that she was viewing his claims favorably,” Kelly says. That made him uneasy. If Messina granted Ken a new trial, Kelly would appeal that decision. If the appeals court agreed with Messina, Kelly’s choices would be to retry a 15-year-old case or let Ken walk. “Trying a case 15 to 16 years later, the likelihood that you would get a conviction is reduced,” he says.

For this reason, the Prosecutor’s Office went to Ken with a plea deal. Kelly says nothing was ever on the table, but in the likeliest outcome, Ken would have pleaded guilty to a lesser charge, not admitting that he’d killed Kathy but acknowledging that enough evidence for a conviction was there. By then, Ken had already served almost 15 years; the plea could have resulted in his release for time served or triggered a faster parole. But the lesser conviction would have stayed on his record.

But Ken told Laurans not to consider a plea under any circumstances.

“I championed it,” Laurans says. “I said, ‘Ken, you need to take this.’ The way I viewed it is, ‘I don’t care what anyone thinks. I think you ought to go home. If you have a chance to get out of this prison, you go home and be a father and a grandfather. Your family wants you home.'”

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Cliff pleaded with his father to consider a deal. “I said, ‘Dad, everybody in that courtroom knows what happened. Just come home.'”

But Ken chose a prison cell over playing with his grandkids.

Cliff and Ken have had a long time to wonder if that was the right decision. Eleven months after the hearing, Messina made her ruling. She determined that Handley’s conduct during the appeal amounted to abandonment of counsel, which, coupled with Duncan’s ineffectiveness during the trial, warranted a new trial. Ken was elated.

The Middletons’ glee, however, didn’t last long. The Prosecutor’s Office appealed, and the Missouri Court of Appeals ruled that Messina didn’t have jurisdiction to reopen Ken’s appeal. The three-judge panel overturned her ruling, and Ken was back where he started.

What lent an air of absurdity to this outcome was that two other Duncan clients from the late 1980s and early ’90s had been far more successful fighting for new trials. Edward Reuscher III, convicted for the 1989 beating and stabbing death of a sleeping man, had his murder conviction overturned by the Missouri Supreme Court after it determined that Duncan had been ineffective. And Leamon White, sentenced to death for slashing the throats of three people in 1987, killing one, had his conviction overturned in 2004 on grounds of ineffective counsel. Unlike Ken, he took a plea deal rather than standing trial a second time. He walked out of prison in 2006.

Meanwhile, Ken wondered what made his case different.

After 15 years of laboring for even the smallest legal victory, Ken says, the appeals court ruling was an emotional turning point for him.

“I just crawled into a hole,” he says. “I just felt like giving up.”

Laurans was disappointed not to walk his client out of prison when a plea might have been made. He filed a mostly ceremonial appeal with the U.S. Court of Appeals in St. Louis; it was rejected.

With his father’s legal avenues running out, Cliff found other ways to campaign for Ken. In 2007, he spent $4,000 on a billboard on Interstate 70, advertising his website where he documents Ken’s case. He is also a capable press secretary for Ken, giving interviews in which legal terms such as de novo, standard of review, and Rule 29.15 proceeding roll off his tongue like the ingredients of an old family recipe. His efforts, however, have yielded no results.

Ken’s family has sold off most of the acreage he owned in Arkansas to pay for his defense. Kathy’s sisters, who were awarded $1.35 million in a wrongful death civil suit, are now going after the remaining 89 acres, land that Cliff says his dad’s family has lived on for more than 100 years. Cliff estimates that he has sunk $50,000 of his own money into his father’s defense. With Ken’s siblings kicking in what they can, his family, he says, has spent around $400,000 defending him and representing him in civil court.

The Middletons’ latest advocate is Kent Gipson, a Kansas City lawyer who, like Laurans, concentrates on post-conviction litigation. Unlike Laurans, though, Gipson sees grounds to file another motion to reopen Ken’s appeal. Gipson has written the motion, but Ken and Cliff haven’t yet told him to file it. Cliff admits that part of the reason for their delay is the fear that Messina will reject it. Neither man wants to relive the 11 months they waited to hear her 2005 ruling. And both say this will be their last effort to put Ken’s case in front of Messina again.

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Ken and Cliff are probably putting off another disappointment. Last year, Jackson County Prosecutor Jim Kanatzar met with Cliff and activist Alvin Brooks and told them that he didn’t believe Ken deserved a new trial. “I do not believe that the claimed deficiencies in Mr. Duncan’s representation dictate a need to take steps to nullify the Court of Appeals’ decision which held that Judge Messina lacked jurisdiction to reconsider the Rule 29.15 motion,” he wrote Cliff last fall. “Nor do I believe that the evidence presented at the post-conviction hearings by Mr. Middleton credibly suggest the likelihood of a different trial outcome.”

Arguments such as Kanatzar’s haven’t fazed Cliff in the 20 years he has focused on his father’s case, and he says it won’t now. He’s resigned to the fact that his father’s case is going to continue to dominate his life. He sees his duty as proving that prosecutors have been wrong for two decades, regardless of what happens next in court.

“I am going to expose what happened to my father.” Cliff says. “It’s something I’ll never give up.”

Ken is almost 65, and he says he’ll keep fighting. Asked whether he regrets that his son has devoted so much of his life to fighting alongside him, Ken thinks for a minute.

“Guilt? About what?” he asks.

About the years lost to Cliff in pursuit of the case. Giving up the appeals would give Ken’s son his life back.

“If I had had a fair trial, I might consider it,” he says.