- Light rain
MIDDLETOWN, Ohio - The fight for Ryan Widmer to possibly get a fourth trial is now in the hands of the 12th District Court of Appeals.
A three-judge panel heard arguments in Middletown on Monday with much of the focus on the bathtub taken from Widmers' Hamilton Township home and evidence collected from that tub.
Widmer, 32 was convicted in the 2008 bathtub drowning of his wife Sarah in their Warren County home. His first conviction was overturned because of jury misconduct. His second trial ended in a hung jury. And, he is appealing the murder conviction from his third trial.
Widmer's attorney, Michele Berry, focused much of her presentation on Monday on whether the bathtub was admissible in the trial because it was not listed in the search warrant of Widmer's home.
Berry argued before the judges that it was a violation of the 4th Amendment for the police to remove the tub from the home without it being listed on the search warrant.
Warrant County Assistant Prosecutor Michael Greer argued that latent fingerprints were listed on the search warrant and evidence collected from the tub made the tub admissible. That led Judge Robert Hendrickson to ask the question, "Are smudges the same as fingerprints?"
Greer argued that some experts use the terms "smudges" and "fingerprints" interchangeably.
Judge Bressler commented, "Mr. Greer, I don't see anything anywhere in the record of anybody ever identifying these smudges as latent finger prints. I saw them identified as impressions or as smudges."
The judges then questioned whether a fingerprint expert can be called on to testify on the characteristics of smudges or impressions. During the trial, an expert testified that smudges and impressions were discovered in the tub matching a large male and a small woman.
Greer said the same bodily mechanism that creates a fingerprint can create a smudge.
Judge Hendrickson told Greer a forearm impression is not a fingerprint, so the expert cannot be called an expert in forearm impression.
Widmer's attorney said she was satisfied with the way the proceeding went on Monday.
"The court had a firm grasp on the issues and I think they understood that this tub was unlawfully seized and the expert gave improper testimony based on junk science. I feel very good abut it."
The judges will take all of the arguments and briefs filed under advisement. They could take as much as 60 days to offer a ruling.
Copyright 2012 Scripps Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.