Denver appeals court considers appeal in trooper shooting


September 25, 2020

DENVER (AP) — A lawyer for a man sentenced to death in the 1999 killing of an Oklahoma state trooper urged a Denver federal appeals court on Thursday to throw out a judge's ruling that he was not harmed by mistakes made by his original lawyers at his trial.

Kenneth Eugene Barrett was convicted in 2005 in the shooting death of Trooper David "Rocky" Eales during a drug raid at Barrett's home in Sequoyah County.

In 2015, the 10th Circuit Court of Appeals ordered that a hearing be held in eastern Oklahoma federal court to determine if his trial lawyers were deficient for not investigating Barrett's background and mental health for reasons to persuade jurors not to impose the death penalty.

A magistrate judge held a seven-day hearing in 2017, which included testimony from defense experts that Barrett suffered from brain damage and bipolar disorder and had a chaotic and abusive childhood. He recommended that a new sentencing hearing be held. However, in 2019 U.S. District Judge Ronald A. White ruled that while Barrett's lawyers were deficient, Barrett's legal rights weren't hurt by the mistakes they made, so a new sentence did not have to be considered.

One of Barrett's current lawyers, David Autry, told a panel of three 10th Circuit judges during online arguments that White should not have disregarded the magistrate's findings of fact and witness credibility without holding a hearing of his own first. Autry argued that defense experts found that Barrett's mental health problems led him to react impulsively, arguing against the government's claim that his response to the police raid was planned.

Barrett's case is similar to other cases in which the U.S. Supreme Court and the 10th Circuit have thrown out sentences because of ineffective counsel, Autry said.

However, U.S. Justice Department attorney Jeffrey Kahan faulted the defense's experts for not being familiar with the facts of the case. He said the evidence for premeditation was strong, pointing out that a neighbor testified that Barrett had showed him the AR-15 he was ready to use should law enforcement raid his home. During the raid, Bennett was able to engage 11 officers in a running gun battle, changing his targets based on their threat, Kahan said.

"This was not a man who was demonstrating an inability to act under stress," he said.


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