Attorney seeks 4th trial for Widmer

Question raised about trial court’s decision to allow tub as evidence.

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By Denise G. Callahan, Staff Writer Updated 11:17 AM Tuesday, December 13, 2011

MIDDLETOWN — The attorney representing Ryan Widmer on Monday asked the 12th District Court of Appeals to overturn the convicted killer’s conviction and grant him a fourth trial.

Michele Berry, in the appeal, argues that the bathtub, the key piece of evidence in Widmer’s three murder trials in Warren County Common Pleas Court, was improperly seized and should never have been used at trial.

Widmer is serving 15 years to life for drowning his wife, Sarah Widmer, in the bathtub of their Warren County home in August 2008.

Ineffective assistance of counsel, improper expert testimony regarding fingerprints on the tub and erroneous jury instructions are some other reasons for a new trial that Berry cited in the 55-page appeal.

She wrote that because police did not specifically include the bathtub in their search warrants, they should never have seized it as evidence.

She also said the trial attorneys failed to properly represent Widmer because they waited so long to ask that the tub be suppressed as evidence in the second and third trials.

Judge Neal Bronson denied the motions as untimely, not on the merits of the arguments.

“The fundamental nature of the search warrants constitutional deficiency is so obvious that, barring a strategic decision, failure to seek suppression of the bathtub and all evidence related to the bathtub following its unconstitutional seizure could be considered nothing but ineffective assistance,” she wrote.

Berry also challenged the validity of testimony by the prosecutor’s expert, Bill Hillard, who said what looked to be small handprints streaking down the backside of the tub came from a small woman.

“Hillard’s testimony purporting to identify forearm prints and ‘fingerprint streak’ marks, assign gender to these marks and identify from which direction the marks started and ended — is not based on scientifically valid methodology,” Berry wrote in the appeal. “In fact, Hillard admitted that the alleged methodology for identifying body part impressions is debunked and regarded as unreliable by the scientific community.”

Berry said Hillard, a criminologist, was admitted as an expert witness, which gave him credibility with the jury even though he was testifying to things that are beyond his expertise.

In the first trial, the jury returned a guilty verdict. That verdict against Widmer was overturned when juror misconduct was found. The second jury could not unanimously agree on a verdict. In the third trial, Widmer was convicted of murder.

County Prosecutor David Fornshell said he found it a little “ironic” that Berry would raise ineffective assistance of counsel arguments, since she has been an attorney of record in the case during at least the last two trials. However, Berry said the prosecutor is well aware she has never been one of Widmer’s trial attorneys and she filed papers with the court to have her name taken off the list of attorneys of record following the first appeal.

Fornshell also said the bathtub issue is new and equally puzzling to him.

“It’s interesting that on one hand there’s this argument that there was not sufficient evidence to support a murder charge,” he said. “But on the other hand they’re saying this bathtub was so damning, if you will, or prejudicial in terms of it proving Widmer murdered his wife, that allowing it in and not suppressing it early on was actually ineffective assistance of counsel.”

Legal expert Ian Friedman read the appellate brief but said he didn’t want to comment on the merits of the arguments until Fornshell’s side responds. He said Berry highlighted the difficulties that have plagued this case.

“Despite Mr. Widmer’s conviction, many still question his guilt,” Friedman said. “The defense appeal does a good job highlighting valid questions that the appellate court will have to address. Regardless of the outcome even at this level, people will still remain split on whether the conviction was sound.”

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