Or Maybe a Railroaded Victim
(“Chief Suspect,” Forensic Files)
This week, it’s back to Forensic Files with one of the more perplexing episodes in the series.
The evidence used to convict Jim Barton for his alleged role in a home invasion that left his wife dead seemed shaky. And unlike other accused Forensic Files spouse killers, Barton was something of a sympathetic character.
While his alleged crime was highly inadvisable, it didn’t carry much in the way of malice — if he really did it, that is. A jury thought so, and convicted him in 2005.
Eye on the prize. I checked into an epilogue for the 6-foot-5-inch former lawman, but first here’s a recap of the episode, “Chief Suspect,” along with additional information from internet research and insights from YouTube commenters.
Jim Barton was a well-liked lieutenant with the Springboro, Ohio, police department. His wife, Vickie, worked as a nurse supervisor at Sycamore Hospital.
The couple met through their love of riding and lived on a horse farm called Locust Knoll in Franklin Township, outside of Springboro. By all reports, Jim and Vickie had a happy marriage.
By the time he was around 40, Jim allegedly was aiming to win the top job of police chief, but that position would usually go to someone who resided within the city limits.
Horrific scene. On April 11, 1995, he called 911 to report finding his wife on the floor. She was undressed, not breathing, and had three bullet wounds to the head from a .22 caliber.
Someone had ransacked the household’s gun collection but didn’t steal anything.
The crime shocked the small community, and police geared up for a thorough investigation. But they found no suspects and no helpful evidence.
The case went cold for a few years, until police arrested a local career criminal named Gary Henson over an unrelated burglary. Henson said he knew something about the Vickie Barton homicide.
Suicide adds intrigue. His half-brother, William Phelps, was paid $3,000 by Jim Barton to rob his home in order to scare Vickie so that she’d agree to move away from their rural property and into the city of Springboro, Henson contended.
But Phelps went off the rails and raped and murdered Vickie, said Henson, who also told police that the original plan was for Henson himself to go along on the robbery but that he was in jail then.
Phelps committed suicide just weeks after the murder. (Henson later changed his story, testifying that Phelps had an accomplice, and the accomplice was the one who assaulted and killed Vickie.)
The revelations were more than enough reason for a cold case squad to reopen the investigation in 2003.
Detectives listened to Jim Barton’s 911 tape for any hints pertaining to a robbery-for-hire, and came up with a lot of what it considered red flags.
Tale of the tape. First, the detectives noted that Barton referred to the killers in the plural, evidence that he knew that two people committed the crime, they theorized. But as a YouTube commenter noted:
Susan Adams7 months ago “They” could be said because you don’t know if the person who committed the crime was man, woman, one person or several. Saying “they” shouldn’t have [raised] red flags.
Detectives also interpreted noise on the tape as the sounds of Barton moving objects around, possibly tampering with evidence.
But the offending noise, which the episode broadcast, sounded rather nonspecific. It could have been the house’s HVAC system or a breeze through a window.
In an interview for “Scared to Death,” a 20/20 episode about the Barton case, Jim Barton said that he looked around the house in case an assailant was still on the scene. Perhaps that accounted for some of the noise on the 911 tape.
Jumping to conclusions. Also, the theory about the attack as a scare tactic seemed a little far-fetched.
Before voting for conviction, I’d want to hear something along the lines of a secret recording of Barton admitting to the crime. No evidence like that existed. As another commenter wrote:
Sam Rod1 year ago (edited) “hmm, the evidence was terrible in convicting this guy. this was a long reach for the prosecution.“
And on the subject of long reaches, one of the prosecution’s witnesses (presumably Henson) was hypnotized in order to extract information from him, said Barton defense lawyer Jon Paul Rion.
According to the 20/20 episode, in his earliest police interviews, Henson didn’t mention a robbery-for-hire plan; he added that part of the story later.
Henson sounded like a none-too-reliable witness all in all.
A CBS story published on truthinjustice.com reported that Vickie’s friends considered the frighten-into-relocating theory a stretch as well: “It would have challenged her to be more aggressive in protecting their farm,” Vickie’s girlfriend Darlene Bisgaard told CBS.
Here’s the part that really made me lose respect for the methodology of the investigation:
Hokey experiment. On the 911 tape, Barton said, “I gotta call [unintelligible word that sounded like ‘felp’], man.” Prosecutors asserted the garbled word was “Phelps” — thereby proving that Barton was in cahoots with Henson’s half-brother, William Phelps.
Barton maintained that he said “help” as in “I gotta call for help.”
To prove otherwise, the prosecution brought in Robert Fox, an Ohio State University linguistic and acoustic-phonic expert.
“To eliminate any potential bias,” narrator Peter Thomas explained, the professor was given only two choices: Was the word “help” or “Phelps”?
But why even give him suggestions? They should have simply let him interpret the word in question instead of prejudicing him.
Fox concluded that Barton said “Phelps” despite what seemed like a lack of a final “s” sound on the tape.
Failed second marriage. And there were other weak revelations as well. Barton’s second wife, Mary Ann Lacy, said that he sometimes spent time alone in their darkened basement, which investigators translated into evidence of guilt.
But Barton had married Lacy, who was Vickie’s best friend, only 15 months after the murder, and he may have still had sorrow to process. It didn’t make him guilty of anything. Or as an online commenter put it:
Dan Kirchner1 year ago (edited) “so the 2nd wife dumped him for spending alone time in the basement?? wtf? its called a mancave these days, right?”
Another piece of new evidence the prosecutors seized upon: A waitress named Barb Palmer suddenly remembered that, 10 years earlier, she had seen Jim Barton and William Phelps eating together at a local diner called Mom’s Restaurant.
Unless they left her a $100 tip, how could she recall them after all that time?
DNA taken from the crime scene didn’t match that of Gary Henson or William Phelps (authorities exhumed his body to get a sample).
Credit undeserved. But members of the jury apparently harbored few doubts. They convicted Barton of complicity to commit manslaughter. On April 15, 2005, he received a sentence of 15 to 50 years at the Southeastern Correctional Institution in Lancaster.
“Had it not been for the forensic analysis of Jim’s 911 call, the case might never have been solved,” narrator Peter Thomas concludes. But as another commenter noted:
Babalwa Brook2 years ago “I love how they are crediting forensics for solving this case when it clearly was the informant who brought up Phelps and the waitress who confirmed that dude knew Phelps smh”
The Forensic Files episode left off in 2006, but more has happened since then.
Barton wins a round. In 2015, the 6th U.S. Circuit Court of Appeals ruled that authorities improperly withheld evidence about a break-in that happened in another rural home in Warren County, where the Bartons lived.
The panel of judges also said that the state’s case hinged on “unsupported, shifting and somewhat fantastical” witness testimony (presumably referring to Henson’s assertions).
In March 2016, the U.S. Supreme Court declined to reinstate Barton’s conviction, meaning Ohio authorities would have to give him a second trial or set him free.
The following month, Jim’s third wife, Elaine Geswein Barton, put up $350,000 in bail, and he exited prison.
In September 2016, Barton avoided a new trial by entering an Alford plea, whereby the accused maintains his innocence while admitting that enough evidence exists to convict him.
Who knows? Of course, maybe Barton really did cause his wife’s death via the Fargo-like plot that Henson related. The time Barton served behind razor wire seems like adequate punishment for a crime of that nature.
From the evidence shown on Forensic Files and detailed in newspaper stories, however, his chance of being guilty seems around 50 percent. As a juror, I’d want to be 99 percent sure before convicting.
That’s all for this post. Until next week, cheers. — RR
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Thanks for this, RR – an episode I recall. Where I tentatively disagree with your analysis is on the “Phelp” matter. Why would he be saying that he has to call for “help” when he’s already doing so (he was on the ‘phone to a dispatcher doing just this per recording)? Why call for help and say you need to call for help? Second, I agree that the “s” of “Phelps” appears omitted in the recording, but it’s feasible that he may have thought that the name was indeed “Phelp” as he may not have known him and only heard the name once or twice (any evidence on this?). This latter is a moot point, but I recall thinking the former point when this issue in the episode arose. Did the prosecution ask the jury why he’d be calling for “help” twice?
I would also ask why Henson gave the story he did if untrue – what was his motivation? Jail time credit, maybe; yet if his story were lies it seems perfectly plausible, “fitting” the events just too well, it seems to me, to be fantasy. I cannot, therefore, believe that Barton didn’t plan this crime. He would, in his job, have encountered many such crimes and know the effect on the victims: an effect he plausibly wished reproduced in his wife. Yes, she could have reacted two ways: remain and improve security, or move. We can’t say what her reaction would have been – but Barton may well have had reason to believe she’d move (they may have discussed the matter, it being related to his job), so I’m not persuaded by the point that she’d have stayed, not flown.
I totally agree that reference to the killer(s) in the plural is wholly insignificant, and “movement” sounds probably so.
I’m not sure I’d agree with you that I’d need 99% certainty of guilt, which appears to be beyond the criminal evidentiary standard (though how you quantify “beyond reasonable doubt” is impossible, though probably less than 99%!) Let’s say that 99% is virtual certainty – there can be no question of guilt. Jury’s are not required to be so sure. Sorry if I’m taking you too literally!
On the FF evidence I was left believing he was guilty of a foolish attempt to effect his wife’s move that went terribly wrong on the circumstantial evidence – and I agree he’s paid the price as there was no evidence he wanted her dead. Yes, there wasn’t the strongest evidence of guilt, but it was strong enough for the jury, for me, and, it seems, for the lawyers who presumably advised the Alford plea. The guilt of a plan that went terribly wrong is also punishment, assuming he loved his wife…
His calling for help while he was already on the phone with emergency services didn’t make sense to me either. Considering all the time he spent in prison, I certainly hope he was guilty.
Thanks, RR – so it therefore seems he wasn’t calling for “help” but saying “Phelp” (a Freudian slip in the shock of finding the wife dead). QED. That and the Henson story satisfies me of guilt. As you say, I hope he was guilty since the reverse is appalling; and we agree he’s paid a high price for what he meant as the fright of the wife. Another FF episode reflecting real tragedy on both sides and, for me, one of the reasons FF is so engaging in the empathy it attracts for the injured party (in this case, to a different degree, both parties).
Looking forward to the next instalment!
PS I don’t necessarily buy all, or possible any, of this psycho-linguistic analysis of Barton’s statements (though it seems to have a certain plausibility):
http://www.statementanalysis.com/barton/
but do consider these significant:
– Barton failed a polygraph test.
– Fewer than 10 fingerprints were found in the house indicating the house was wiped clean (he would know to ensure that, but so would many criminals).
– The house looked like it had been burglarized but guns and jewellery were not taken (staged or just panic and a quick getaway after the murder?)
– It appears Barton never took the stand in his own defense since there was no mention of this on the show (assuming so, jurys ask themselves why).
Interesting link, Marcus — thanks for sending. The failed polygraph does make me wonder — plus on other FF episodes, when nothing is stolen from the home invasion site, usually a family member did it.
Forensics, Smensics after how far we’ve come in that world of forensic science and they have DNA on the body, that does not match anyone at the scene of the crime — are you kidding! Hell I’ve seen them convict a guy with a paint chip that was on a blanket where he allegedly dumped the clothes and blanket. Seems to me there is a real killer out their this case is far from over.
I tend to agree.
Hi,
If I remember right Phelps went to the door asking for something (gasoline container?) and Vickie told her husband about it, then a few hours later Phelps returned with another man and it was that 2nd man that committed the murder/sexual assault. I don’t think the 2nd man was ever found. I’m wondering if there was any DNA left at the scene that could be put into the US database, seems a man like that would have committed more crimes.
All-in-all an interesting story, I tend to agree on the verdict despite the shaky evidence.
I agree. And as far as the help and phelp tape, I have had scenarios where I get aggro with the person on the phone. You trying to get help and they asking you a whole lot of questions. Your main objective is to save the person so in agitation you say something to that effect because you feel the person is not listening. I have watched a few episodes of hard justice and I must say the jurors and prosecutors are sometimes very set in their minds. That would concern me if I was ever convicted. What happened to “reasonable doubt”?
There’s doubt, and reasonable doubt. That’s what went wrong in the OJ verdict. I wasn’t there (in either case) so I don’t “know” … but for me, the doubt isn’t “reasonable.”
Could it be that calling for “help” might mean he needs to call for family members or support people? The millions of things going on in your mind after coming upon a tragedy like this, I would be thinking I need help making calls — who is going to tell her mother, maybe he was acting in compactly as an officer coming upon the scene and caught himself trying to analyze the scene and thoughts in his mind came out of his mouth like I can’t do this, I need help. I listened over and over and it is clear he did say help. I rarely think someone is not guilty after watching these shows but I do not think this man did anything wrong.
Henson’s motivation, according to him, was that he was coerced into saying these things or he would be charged with “obstruction of justice.” His story was convoluted and was not in accordance with the discovery of unidentified DNA. This is a clear case of prosecutorial misconduct because all exculpatory evidence must be presented to the defense because it can be viewed as being favorable to the defendant.
I watch FF often, thanks so much for providing a forum. Seems like a weak case for a murder conviction, maybe. If the motive is for real, it proves that good help is hard to find, and Barton should have found a more mature assailant. Physiognomy is not really proof of guilt, but Barton looks like the type. If I was on the jury, The Good Ship Lollipop would have sailed to harbor same as it did on the show. Thanks again!
Hard to believe he would leave his wife’s life in the hands of a couple of criminals. (Although I suppose career criminals are the only ones who would accept a job like that.)
Beyond a reasonable doubt? Sure doesn’t sound like it.
Sounds as though the DA got a little overambitious.
I believe Jim Barton was convicted by the district attorney and jealous fellow officers who wanted to bring him down out of malice. These same people should be scrutinized — what are their current positions following Barton’s trial? There was a similar case in Rhode Island of an officer.
Hello Barbara: That others may have had motive to implicate Barton – and they may have – isn’t sufficient, legally or morally, to believe he was innocent. The best you can say on the basis you offer is precisely that others had, or could plausibly have had, motive to frame him – but that gets you nowhere near innocent status. You need to address the facts that convicted him, not just alleged motive of others for framing.
On what I know of what was presented, I’m confident of guilt. The issue wasn’t that he wanted his wife dead, of course, just to scare her, but it spectacularly and tragically backfired. That is what I’m confident he did do: made a silly but not vastly malicious decision, for a job he really wanted. I would have charged him with involuntary manslaughter at worst.
If we take the Alford plea at face value, he accepts there was enough evidence for conviction – so why shouldn’t we?
Hi Marcus,
When defendants enter Alford Pleas, they are not admitting guilt, merely stating that there is sufficient evidence to prove their guilt, as I am sure that you are aware. However, Mr. Barton would have faced a second trial and the evidence, though circumstantial (which is great evidence, in many cases), may have convicted him that second time. He was almost finished serving his first sentence. The problem is that prosecutorial misconduct was alleged (and, I believe, proven). Although it was untrue, the so-called “evidence” as presented by the prosecution could have induced the jurors (or, jury), to convict Barton again. He certainly did not want to return to prison, so in principle, Barton agreed to an Alford Plea, although he stated with certainty that he was “Not Guilty.” I can certainly empathize with him; I do not think that any reasonable human being would want to return to prison, but if evidence is presented erroneously, manufactured, or points in another direction — i.e., the unidentified DNA match — then it is understandable as to why Barton entered an Alford Plea, in my opinion. I believe that Laurie “Bambi” Bembenek did the same so that she could just leave prison with time served, or something.
Hello Carmella: Happy Christmas. I understand an AP doesn’t constitute admission of guilt – but the fact that it constitutes ‘I accept that the evidence makes me look sufficiently guilty such I would be likely to be convicted’ effectively means that defendant IS ‘guilty’ because they would (likely) be found guilty (whether they are in fact guilty or not). My point above is that if *he* by taking the plea accepts that it ‘looks like I’m guilty’ (even though I say I’m not), why should we gainsay that? If *he* accepts that he would (likely) be regarded as guilty by a jury, it makes one actually regarding him as guilty all the more reasonable, it seems to me. That was my point.
‘although he stated with certainty that he was “Not Guilty.”’: Of course, that is irrelevant. The AF makes it irrelevant – but as 90+% of convicts claims innocence it’s irrelevant period.
I do understand the dilemma that the AP can ‘resolve’: fear of conviction – or in this case re-conviction entailing a greater charge or sentence. But the fact remains that regardless of the convict’s motive for the plea it formally means that there is – or the convict accepts that there is – sufficient evidence of guilt for that verdict. Prima facie, therefore, guilt in fact is likely. The Alford guilty plea is ‘a plea of guilty containing a protestation of innocence,’ recognizing the plea-bargaining system, acknowledging that X may maintain innocence but still plead guilty in order to minimize his potential loss. The Supreme Court’s requires evidence of guilt in such a plea: “By requiring that there be some evidence of guilt in such a situation, the decision attempts to protect the ‘really’ innocent from the temptations to which plea-bargaining and defense attorneys may subject them.” Thus Barton had to be regarded by the court as more likely guilty than not to be offered the plea – rather than choosing to take it as a gamble as of right.
Of course, if there was exculpatory evidence unavailable to the jury (or prosecutor of good faith) at the time, that’s a different matter.
Hi Marcus,
Happy Christmas to you as well:)
Yes, I see your point:) It is a good one; however, circumstances can make an innocent person seem to be guilty, when in fact they are innocent. For instance, the Springboro PD saying that Barton said something which was actually inaudible via Voice Analysis, and may not be what he actually said at all, tends to make him “look” guilty anyway.
There are cases on file, such as the Scott Hornoff case, in which Hornoff repeatedly lied to his fellow police officers during suspect interrogations. Eventually, though, he was proven to be innocent of the crime after having been convicted of murder. He was largely convicted because of his lies.
Also, when the police officers and detectives investigating the case maintain that all possible suspects were thoroughly investigated and the evidence still led back to the suspect/defendant, that makes someone appear to have committed a crime that they did not actually commit. The fact that the “evidence” makes someone look guilty does not mean that is factual evidence based on relevant science rather than “junk science.”
Yes, Jim Barton may very well be guilty, but it may also be a case in which the evidence looks damning but is not factual. In the Hornoff case, he would have been better off entering an Alford Plea, as the jury (or judge) ended up convicting him. When that is a possibility, it is a gamble to go to trial because you know it makes you look really bad. But you may still be innocent. It may be improbable, but it is possible.
I appreciate your reply.
Carmella
Hello Carmella: Thanks for yours. Your valid point – circs rendering the innocent inclined to admit guilt – has been attempted to be addressed by the Supreme Ct’s requirement that APs can only be offered (and taken) where the preponderance of evidence indicates actual guilt. This isn’t perfect, of course, but theoretically no-one who isn’t ‘guilty enough’ for conviction could take an AF. But just like wrongful conviction per se, there are bound to be cases of ‘wrongful’ APs, taken to reduce a greater wrongful punishment.
Upon receiving an AP the court pronounces the defendant guilty and imposes sentence as if the defendant had otherwise been convicted of the crime. Sources disagree, as may differing states’ laws, as to what category of plea the Alford falls under: some sources state it’s a form of ‘no contest; to the factual matter of the case as given in the charges outlined by the prosecution. Others hold it’s simply one form of a guilty plea and as with other guilty pleas, the judge must see there is some factual basis for the plea (ie, not just ‘looking’ guilty but being so.)
It seems best to see the AP as a plea bargain – and as with all such bargains they may cover greater guilt – or innocence. What we can’t say of Barton is that the evidence did not reach the guilt threshold (the AP means it did, regardless of actual guilt – a subtle, if barely sustainable, distinction), even if only just; nor that he’s ‘not guilty’; nor that the AP is a compromise between guilt and acquittal (as may be viewed). If there’s a difference in the way we view this in the instant case it’s that you emphasise AP may be taken by an innocent (not theoretically possible) – it may – and I emphasise it may be taken by a guilty (as it theoretically requires) to reduce punishment. The highest-profile I can think of who took it is the infamous Michael Peterson.
Every blessing for the New Year.
Hi Marcus,
Your point is well-taken. It is just that crime-scene evidence is interpretive in many regards. In regard to forensics, some forensic science disciplines are not reliable. The Alford Plea got its name from the case of Henry Alford, who was supposedly innocent. He only took a plea deal to avoid capital punishment.
My overall opinion is that there are times when taking a plea deal is more desirable than being put to death, etc. Circumstantial evidence can make innocent people appear guilty, as you know, when they are not. I believe this may be the case with Barton. Also, we do not know that the Barton case rose to the Alford Plea standards of guilt, either.
If there is police corruption and prosecutorial misconduct, Barton may be innocent. It is a matter of record that innocent people have accepted Alford Pleas. In some cases, it is the way in which the circumstantial evidence is interpreted and presented that makes a defendant want to accept an Alford Plea. All I’m saying is that because an Alford Plea was entered, does not mean that Barton is guilty. Some elements of false confessions are similar to this.
At any rate, I am not convinced of Barton’s guilt.
Have a happy & safe New Year’s!:)
Carmella
Marcus, the issue is criminal cases is not guilt v. innocence. Juries are not tasked with determining whether defendants are innocent. Their job is to determine whether the government has proven someone guilty beyond a reasonable doubt. Juries regularly acquit people that they likely think actually committed the charged crime, but yet the state’s evidence left holes big enough to equate to a reasonable doubt. This is rooted in the principle that in our criminal justice system, it is better to acquit a guilty person than to convict an innocent one.
That he failed a polygraph is irrelevant. Polygraphs are unreliable and are not generally admissible evidence in criminal cases.
That he exercised his constitutional right to not testify is also irrelevant. Juries are instructed that they are not permitted to draw any negative inference from a defendant’s exercise of that right.
You cannot quantify the percentage of evidence necessary to exclude reasonable doubt. If jurors are 99% sure of someone’s guilt and yet the 1% remaining constitutes a “reasonable” doubt, acquittal is not just an option, it is required under our constitution.
Hello BG: I understand and agree with your formulation of jury duty, though I add a caveat that innocence/guilt and prosecution meeting its burden are not binary (‘juries are NOT tasked with’). Juries think they are doing both… within the confine of prosecutorial burden. I’m a magistrate and seen many an acquittal in for the reason(s) you state.
You (and I) may think the polygraph *ought* to be irrelevant, and it is legally but it is NOT probatively. From US Dept of Justice:
‘Although polygraph results are not used in criminal courts, the police have found the polygraph an effective tool in eliminating subjects, determining whether a crime has been committed, obtaining admissions of guilt, and gathering additional information. The polygraph is not infallible; it is subject to both misuse and abuse. However, the polygraph has nonetheless proven helpful in determining the truth in criminal investigations. Further, its contribution is particularly unique, because it often successfully resolves a crime when other investigative techniques have failed.
It is most definitely not, then, regarded as irrelevant to the investigation.
That a negative inference both is or ought to be legally impermissible from defendant declining to testify (and is instructed this) doesn’t mean that the jury doesn’t make an adverse inference in fact, such that it is *not* irrelevant to them. Juries may well expect the innocent defendant – particularly of murder of ‘a loved one’ – to proclaim it personally and insistently. Failure to do so leads to speculation that they or their counsel think their is weakness in their defence and wonder if that’s because they’re guilty. This is human nature and is not neutralised by instruction that it should be neutralised… Defence counsel has a dilemma here, of course. A guilty defendant is more likely to convey guilt in such a situation and an innocent, innocence – but that can go awry. In this case the jury may have had a reasonable expectation that a police officer, used to giving evidence and dealing with the public, would not have difficulty giving true testimony in court (and that if he were ill or such like his counsel would have stated so).
There is some slim evidence of increase in the percentage of acquittals when the jury heard from the accused, and when both the accused and other defense witnesses testify, the acquittal rates rise substantially. The explanation is that jurors are more likely to accept an alternative to the prosecution’s theory of guilt when it is presented in terms of a story, supported by witnesses. This point makes sense -the testimony and story might resonate based on the juror’s prior experiences rather than just presenting the argument that the State didn’t do a good enough job.
It seems clear he said f’help. He’s reeling into overdrive, turbo mode after finding his wife dead and wants to come out of the nightmare and immediately find the killer. 8 minutes on 911… you’d want an ambulance, forensics, everything asap, and the 911 people were methodically asking questions. As a police officer, he just wanted to catch the criminals right away. Hence wants help.
“They” is ridiculous and well covered above.
Henson probably got a kick out of helping to convict a cop !
As for the state of the house, if Phelps wanted to burglarize and finds himself with a nipple – biting psycho rapists and guns…I’d say he wanted to get and cut losses. Remember, he was going to get Henson in the deal initially, but the idiot was sitting in a cell. So Phelps lands a partner in crime and sh*t his pants.
The real killer probably dead otherwise DNA would have turned up. Or maybe he’s learned to dispose if bodies….
Many get upset about the marriage to the maid of honor. They were both grieving, get a hit of empathy+sex hormones, wed and realize tragedy and a deep desire for comfort has brought them together.
Those 2 jurors are idiots. Sure, they’ll believe 1 individual convicted of multiple crimes rather than 3 (!) of single crimes.
Unbelievable conviction imo. Very good read, thanks.
Thanks, Maude — great theory about Henson’s helping to convict a cop. It could have been quite the power trip for a career criminal.
Maude: “It seems clear he said f’help.” I thought the audio evidence persuasive. It’s implausible to me to argue that DURING the 911 call he says he’s got to call for help – as though he’s forgotten he’s doing just that. So that and the audio analysis pretty strongly suggests ‘Phelps.’ For me ‘Phelp/s’ was a slip made in panic as it was dawning on him that his plan had gone terribly wrong. And I think this is a more plausible explanation than asking for help by calling 911… then saying that you’ve got to ask for help. On the prosecution’s theory, of course he’s ‘got to call Phelp/s’ – to ask what the hell went wrong!
There’s also the fact that although the house was trashed nothing of value was taken. Why, if not staged? Why would a stranger kill the wife, rummage around and take no valuables? It’s possible he/they got the jitters and left before grabbing anything – but the more likely explanation is surely the one the prosecution offered? “… if Phelps wanted to burglarize…” The point, according to the prosecution, is precisely that he didn’t: Barton had merely told him to make it look like a burglary – which it did, except they were too dumb to do the job properly by forgetting to take valuables, or Phelps/partner panicked when the unpremeditated murder was committed.
I think it perfectly plausible that a (staged) burglary might prompt a move – particularly if one’s wife had said she felt vulnerable/isolated (she may or may not, but if she had, it could have planted the idea in Barton).
I’d say the prosecution’s version is the most coherent of all explanations for the events. This is insufficient to convict, but the jury were persuaded with that explanation combined with other evidential factors. It’s too easy for those not in court to disagree with the verdict when we’re not privvy to the evidence but essentially relying on ‘snippets’ and reportage. That doesn’t mean we can’t argue over the nature of the snippets!
“Complicity to commit manslaughter” sounds right. He was guilty of that, even if that wasn’t his intention. That’s why his “Alford plea” works, in my opinion. He instigated the circumstances even if he didn’t foresee the actual outcome.
Rini: An Alford plea doesn’t have to ‘work’ for any crime: it’s simply a form of plea-bargain and doesn’t imply innocence or ‘badness of fit of the charge,’ being merely a means for the defendant to minimise his loss. Insofar as Barton *was* guilty, the Alford doesn’t in fact work – depending on what you mean by ‘work’ – as it serves to deny guilt and therefore fact (in his case, of *some* wicked intent). Intention v. outcome (of crime) has no relevance to the Alford plea; and in Barton’s case he simply denied he was guilty of *anything* to do with the crime (hiring thugs to frighten the wife), never mind what he was actually charged with.
I know what you mean by its working in his case, but it must be borne in mind that manslaughter precisely doesn’t involve intention to kill but rather a reckless disregard for life (the fright itself could have killed her, for example, if her heart were weak): that’s why he was charged as he was and not with murder – so he was, in fact, we believe, guilty as charged…
Too many. Just remember ‘too many factors.’ Period. How many factors will we justify on behalf of Mr Jim Barton? That in itself leads to doubt. That is enough proof that he is guilty. This he said due to that, house is too clean due to this, a criminal testifying due to that, waitress said that due to again something else! polygraph failed due to yet another justification! I mean come on already! See, a single piece of evidence here can be argued upon. Collectively so many!? When you find yourself trying to justify so many of them!, you surely have to ask yourself how come there are so many!. Right? Also when we try to become a phd on things, please dont forget common sense too. There just can’t be too many! And we find ourselves justifying every, single, evidence! Good lord. Take the common sense route, simplify it, when there are so many, then its him guys! Like I said, just remember, there are ‘too many factors.’ Hence, guilty. No doubt. This is a law enforcement officer. I would have thought he would get away with it, they are experts on such things! They are just too good and very VERY hard to be properly caught with evidence(who do u think the golden state killer was and got away for almost half a century!!!). Btw, good job Marcus! Nice proper way of dismantling doubts and also in being open to the fact that if Barton is innocent, then its appalling. Same goes for RR (who wrote this?). Thanks for being open and respectful of Marcus’s opinions.
A most unconvincing case. Much was made of the informant Henson’s knowing that the victim had been bitten on the breast, a fact not publicly revealed until then. But couldn’t this knowledge have come to him indirectly from the real perpetrator via the prison grapevine? This was a convict who spent much of his adult life incarcerated. It’s very suspicious that of the two perpetrators he named as having been hired by Barton, one was untraceable (he said he didn’t know his name) and the other dead.
Failure of a polygraph test is probably overrated as evidence of guilt. There’s at least one other case where a completely innocent spouse of the victim flunked it. I can’t remember the name of the episode of Forensic Files, but it was the case of a woman who was raped and murdered in Concord CA.
Robert: I think you overstate your case. If it was as unconvincing as you state, why did the jury convict him (ie, were they really so obtuse)? We are simply not in a position to ‘rehear’ these cases, only to consider the arguments used (that we know of). It’s another matter to suggest that the jury was wrong so emphatically. The farthest we can go is to suggest that they may have been wrong – particularly where the quantum of evidence was finely balanced in their deliberations (not that we’re generally privy to this).
I agree about polygraphs – the reason they’re not admissible. But while there are cases of proven failure, for the most part they seem probatively accurate as one means among necessary others. On the ground that hard cases (their failures) make bad law, I’d suggest they have some value – but only some – in cumulative grounds for indictment or not. On saying that, they’ve never been used here in UK, being deemed too unreliable.
If we take the Alford plea at face value, Barton (and presumably his lawyer) accepted there was enough evidence properly to convict (even if faux evidence) – so it’s surely odd that it should be suggested that there wasn’t, as you do?
Hi Robert,
I agree with you regarding polygraphs. Yes, in many cases, they are proof of guilt, but in some, they are not, as they can be misinterpreted (just as with circumstantial evidence). This is the main reason that they are inadmissible in court. Not everyone who takes a polygraph is psychologically stable at the time of the test and this leads to a misinterpretation of the reading(s). Good point!
Carmella
They should keep looking for the person of the DNA they found on his wife, like how they found golden state killer.
I’m very glad that Mr. Barton is free. Three other inmates stated under oath that Henson’s testimony was false, according to Henson himself. Besides, it should be noted that there is NO mandate to live in town if he became chief of policd, the supposed motive.
The whole scenario was ridiculous and the prosecutors and the jury should be ashamed of themselves.
Didn’t they understand reasonable doubt?
It’s scary to think this could happen. Could be you or me.
Mary: “… it should be noted that there is NO mandate to live in town if he became chief of police, the supposed motive.” The point is that he THOUGHT (so it’s claimed) he either had to or his chance was better if he did, not what was in fact the case.
An Alford plea – denial, but recognition that there’s enough evidence to convict – cannot simply be dismissed as ridiculous otherwise the basis of the plea is ridiculous, because, logically, there isn’t enough evidence to convict…
The case IS over as he accepted an Alford Plea, is now released and it’s very unlikely to be re-heard (The Supreme Court has rejected attempts to re-hear cases in which this plea was made). The Alford represents his acceptance that there was sufficient evidence to convict – so you cannot justifiably suggest that the evidence against him was slim/non-existent/whatever you mean to imply. It wasn’t overwhelming – but neither was it dismissible.
However, if he’s innocent the true perpetrator of the crime remains free without fear of being pursued and can possibly strike again. One of the most infamous cases recently involving an Alford plea was that of the West Memphis Three – three Arkansas teens convicted of murdering three eight-year-old boys in 1994. Two of the defendants received life sentences. The third was sentenced to death. They always maintained their innocence.
In 2007, DNA evidence established that the West Memphis Three could not be connected to the crime scene. Their convictions were reversed in 2010. The prosecution, however, continued to push the case and threatened to retry them. By that time one was quite ill and his defense team feared that he would die in prison.
Rather than trusting the judicial system they accepted Alford pleas, which acknowledged that prosecutors had enough evidence to convict them but allowed them to maintain their innocence. They were immediately released but have to serve ten years on probation and are still convicted felons.
With the rapid increase of exonerations for wrongful convictions, the Alford plea has become the preferred choice for prosecutors. It ends the matter with a conviction, and it also prevents the defendant from suing the state or from receiving statutorily-authorized payments for the wrongful conviction.
The Arkansas case has always fascinated me. There’s a great documentary about it, “Paradise Lost: The Child Murders at Robin Hood Hills.” I couldn’t find any free downloads of the movie on YouTube, but I think it’s available on Amazon Prime.
What evidence was there that Phelps was involved?
Three years after the crimes, a jailhouse snitch (Gary Henson) said Phelps was involved. (He initially said Phelps raped and murdered Vickie, but later said it was an accomplice who had done that, and DNA evidence proved it wasn’t Phelps who had assaulted her.)
And that’s it. That’s it??!! Yes, that’s it. There’s no evidence Phelps was ever in the Barton home: so no DNA, no fingerprints, nothing.
Oh, also, when Jim Barton called 911, he said he had to call Phelps. How do we know that he said “Phelps” and not “felp” (“for help”) (which is what it sounds like)? Because Jim was involved. And how do we know Jim was involved? Because he said “Phelps” not “felp” (“for help”).
And a waitress remembered that, 10 years earlier, she had seen Jim and Phelps eating together at a local diner. And Phelps committed suicide just months after the murder.
That, apparently, is the sum total of evidence for believing Phelps was involved. And if he wasn’t involved, that leaves a huge hole in the evidence against Jim.
And just days after the “guilty” verdict, three men who had known Henson in prison, testified, respectively, that Henson had told them that he didn’t know if Jim was guilty, that the prosecutors forced him to testify, and that he knew Jim was innocent. But when faced with this new evidence, two jurors said it didn’t change their minds about their “guilty” verdict.
‘Oh, also, when Jim Barton called 911, he said he had to call Phelps. How do we know that he said “Phelps” and not “felp” (“for help”) (which is what it sounds like)? Because Jim was involved. And how do we know Jim was involved? Because he said “Phelps” not “felp” (“for help”).’
But why, when you’re ALREADY calling for help on 911 would you then say you’ve got to call for help? That would be most odd (and from a lawman who must often call for help/back-up etc). The more reasonable interpretation, it seems to me, is that he was saying ‘Phelps’ Freudian-wise – and the sound analysis work done averred he DID say ‘Phelps.’ If I were a jury member I’d find it pretty convincing he said that name. Then the question becomes who is Phelps and what is his potential connection to this crime…
I don’t for a minute think Barton wanted his wife sexually assaulted and murdered – but I do think he knew ‘Phelps’ and was in cahoots with him viz some incident with the wife which went terribly wrong… So did the jury.
“Phelps” or “for help?” Quoting from the CBS article:
“Forensic audio expert Tom Owen testified for the defense. “The word is a two syllable word, ‘for help.’ It has two beats. And after you slow it down, you can clearly hear that.” Owen narrowed in on the critical tenth of a second on the tape, playing the call slowly.”
Why would he want to call for help when he was already on the phone with 911? What does a patrol officer do when, in response to a 911 call, he enters a house and discovers a murder victim? He calls for backup and for the major crimes unit. In other words, he needs help and calls for help. Why should Jim wait for the patrol officer to do that, why not short-circuit the process and do it himself?
Charles: Was Owen’s testimony conceded by the prosecution? Him averring that “fo’ help” is clear isn’t, I suspect, shared by prosecution. If it was conceded, fine.
To your second point, one could, surely, equally say that a man experienced in trauma/crime scenes (albeit his own) wouldn’t panic by ‘misspeaking’ but know quite well he’s already calling for help when he repeats it, doing it more collectedly that the average member of the public. As the 911 call would be immediately diverted to local police and ambulance to send personnel out, I don’t see your point. If he’d slipped into police mode, why call 911 in the first place and not use his direct contact?
The explanation for these two issues is interpretative (particularly the second). I’m agnostic on the ‘correct’ interpretations per se; it’s only in examining the totality of evidence that the explanations for the above better fit one or the other scenario (arrangement of crime or not).
Charles: I’ve perused court appeal doc on the above: ‘There has been considerable debate over the contents of this call. At trial, Barton presented two experts who testified that he said, “I gotta call for help, man.” The State rebutted this testimony with an expert of its own, who concluded that Barton said, “I gotta call Phelp, man.”
These dueling interpretations are consonant with each side’s theory of the case. If Barton actually asked Henson and Phelps to stage a burglary at his house, he might well have wanted to contact them to understand how and why the burglary had gone awry. On the other hand, if Barton had no part in his wife’s murder, he might—in the shock of the moment—have declared that he needed to call for help, even though he was already on the line with a 911 operator.’
In other words, experts differ (as is not uncommon). It would be fair to say that what Barton said IS NOT ‘clear’ – at least to the court (and therefore to us).
As I suggested earlier, if for other reasons one thinks Barton is likely innocent, that equates with ‘for help’; if guilty, more likely ‘Phelp’.
The appeal court’s characterisation above seems to me perfectly reasonable, and no amount of third-party dispute about what he said will advance the case. I doubt that even if better sound analysis equipment became available it’d help ‘cos it was likely Barton’s own lack of enunciational clarity that causes the dispute.
“Then the question becomes who is Phelps and what is his potential connection to this crime”
I don’t think the sequence of events was that the police listened to the 911 call, thought he was saying “Phelp”, and then started looking for someone of that name. Instead, I think the informant gave them the name Phelps, and then they tried to fit that name to the “felp” in the phone call. Changing the evidence to fit the theory.
“The State rebutted this testimony with an expert of its own”
This implies that the State disproved the Defense experts. But if instead the State’s expert had testified first, the court could then state that the Defense rebutted the State’s testimony.
Call me cynical, but I think appeal courts are reluctant to say that a lower court made a mistake, it’s like saying the system you’ve spent your life and career working for and believing in, is flawed. And anyway, I’m not sure that this is the sort of technical legal error they are looking for.
If people are evenly split, as robzuc argued earlier this month, then that’s not sufficient to even meet a “balance of probabilities” standard of proof, let alone “beyond reasonable doubt”
.
“If Barton actually asked Henson and Phelps to stage a burglary”
What is the evidence that he asked them? I was arguing that this was circular reasoning.
“it was likely Barton’s own lack of enunciational clarity that causes the dispute”
Yes. His explanation is that he was just slurring the words together. Which I find easy to believe. For example, people will often say “I’m” instead of “I am”.
“Why would he want to call for help when he was already on the phone with 911?”
I have no problem believing that someone – even a trained professional such as a police officer or medical doctor – can be cool, calm and collected when dealing with someone else’s emergency, but go to pieces if having to deal with an emergency that affects them personally, especially someone they love. A nurse once told me that the doctors in her hospital weren’t allowed to treat their own pregnant wife because, if something went wrong, it was THEIR wife whose life was in danger, and THEIR baby’s life as well.
I think this was the Michelle Anglin case, but I’ll use more general terms in case my memory is faulty. I recall one case in which a real estate agent was murdered. She had a friend or relative who, when attempts to contact her failed, first phoned the agent’s boyfriend/husband, who was himself a police officer, asking him to go to the model house the agent was showing, to investigate – and then also phoned 911, because she wanted to go through the official channels. And she told the 911 operator to inform the responding officer that he would find a police officer already on the scene.
In another case, and I realize this is fiction but it may have been based on a real case, there was an episode of the TV series “Without a Trace” in which the head of the unit was staying in an hotel when he heard a woman in a panic calling out for her boyfriend/husband who had suddenly vanished. So he told the woman to call 911, and then he called the individual members of his team to come and help.
So it seems perfectly reasonable to me to not just call 911, but to call for other help as well.
I think we might have to agree to disagree on this.
I’d also like to take this opportunity to comment on Alford pleas. In one episode of “The Jeff Probst Show”, he said he knew why someone would take such a plea: because he wanted to get out of jail! I agree. And I think the plea means that neither side is confident of victory.
And I’m going to give my opinion on polygraphs. I think the true accuracy is unknowable, but I will go with a figure of 90%. I believe the machine accurately measures the body’s responses to the questions (provided it’s correctly done). But it’s up to the operator to determine if, for example, a parent’s strong reaction when they deny killing their baby is due to guilt, or because they are so horrified at the mere thought of what that baby went through. So it really boils down to the operator’s personal judgment – and they are fallible, just like everyone else.
Lie detectors are not admissible in court for a reason. Phelps or help? Hogwash! What was the internet debate a few years ago where half thought it said one thing, the other half another thing? Very weak circumstantial evidence. And ten years later a waitress remembered a clandestine meeting IN PUBLIC I’m assuming to plan the crime? Come on! Reasonable doubt personified. And all because he wanted “to move”? PS: love FF uses same actor for Phelps in diner as man needed gas!
…To move, you omit, *for promotion*, which we can reasonably assume he wanted (if not expected) ‘cos he’d applied more than once before (even if testimony as to him wanting it is disregarded). The ‘internet debate’ is irrelevant; the prosecution’s forensic aural evidence was that he said ‘Phelps’ – something the jury would reasonably accept, unless plausibly challenged by the defence. I suggest that reasonable people would find ‘Phelps’ significant – particularly because the alternative makes no contextual sense (and it does indeed seem to be either ‘for help’ or ‘Phelp(s)’. While NO prompting as to what was said should’ve been given t – that was stupid, if that’s what is found to’ve been said, there’s little comeback, except to aver that ‘Phelp(s)’ is insignificant – but that’s stretching.
This facet of the prosecution’s case is entirely plausible (as the jury found), even if others are less secure.
Great to read through this article and thread – unlike most other episodes involving a gun, they don’t go on to talk about finding the murder weapon or connecting the weapon to Barton or the supposed murderer in anyway? Was there just insufficient evidence? They also didn’t lay out a clear timeline of exact time of death, Barton’s whereabouts, his call logs throughout the day or prior days, or when organising to meet with Phelps at the restaurant or even after the fact – he never tried to contact Phelps to figure out what happened? They also didn’t establish how they might have known each other or how Barton initiated contact? Did they contact more of Phelps’ friends or family to learn more about the three months between the crime and his suicide, other than his wife and brother to see if they remember seeing him that evening and what he was acting like or his known associates at the time? Just so many questions, I’m surprised Barton was convicted, especially considering the shakiness of Phelps’ brother’s testimony. I just hope they can find the man who actually assaulted and killed her; also surprised his DNA has not surfaced since or they haven’t connected him from another crime – people who bite don’t tend to just do it once…
I agree — the case lacked the type of forensic evidence normally needed for a conviction.
Check missing persons or people who mysteriously disappeared in the area around the same time after murder. Jim probably killed him in retaliation, otherwise why withhold the information on the guy who raped and murdered your wife who you did want to be raped and murdered? Plus he’s a cop, he had enough time and experience to cover it up. That’s why the DNA has never shown up again. Dude dead. I would also relook at the suicide case too to make sure it wasn’t staged (or coerced).
I just recently watched this episode- but I agree with you 100%. I’m not saying he is innocent but I don’t think as a juror I could convict. I found this post after googling the case because I felt the same way you do!
Why volunteer to take a polygraph unless you are trying to prove your innocence? I’ve seen other episodes where people who were proven innocent failed, btw.
AND No way that waitress remembered the guys from 10 years earlier-
The 911 call… when something traumatic happens, 911 isn’t the only help to call… maybe he needed help dealing with what happened, help cleaning up, help making notifications- there’s other help needed in that horrible situation. He was a cop — I’m not sure he would slip up like that on the phone.
I also think it really means something that the victim’s mother and friends don’t believe the prosecution’s theory — and supported him, even showing up to court… that speaks volumes.
Anyway, maybe he did do it—I don’t know, but it’s interesting this guy got convicted and OJ didn’t, smh.
SMH with you over O.J.