Widmer attorneys file appeal, contend bathtub evidence seized illegally

LEBANON, Ohio - Attorneys for Ryan Widmer filed an appeal Monday claiming six errors were made during his third murder trial that violated his constitutional rights.

Widmer, 32, was convicted Feb. 15, 2011 in the drowning death of his wife Sarah in their Hamilton Township home in 2008.

Michelle Berry filed the appeal brief on Monday with the 12th District Court of Appeals. One of the judges on that court is Rachel Hutzel, the former Warren County prosecutor who was in that position during the first two trials, and for part of the third.

In the 64 page brief Berry said, "Trial counsel provided ineffective assistance in violation of the Sixth and Fourteenth Amendments by failing to timely prosecute what would have been a meritorious motion to suppress the bathtub and all evidence related to said tub discovered following its unlawful seizure. The state unconstitutionally seized the bathtub pursuant to a search warrant which neither listed the bathtub as an item to be seized nor could be construed to validly include the bathtub under the broad  latent fingerprint language."

The appeal also argues that Widmer was denied a fair trial because a prosecution expert, Bill Hillard, a criminologist, testified outside his area of expertise regarding body part impressions. "The admission of impermissible expert opinion testimony that reached beyond the expert's purported expertise, lacked scientific foundation and was based on a methodology that has been proven unreliable."

The brief continued, "Widmer was also denied the right to adequately confront this evidence in violation of his sixth amendment rights."

The third error argued in the brief claims that the court failed to properly instruct the jury on all lesser-included offenses of murder, and that defense attorneys failed to make sure the jury got that instruction before they began to deliberate.

Berry also claims in the appeal that Judge Bronson violated Widmer's rights when he quashed the defense subpoenas seeking to further investigate Lt. Jeff Braley's background. They also wanted to cross examine Braley who was the lead investigator in the case.

On that point, veteran Cincinnati attorney Mark Krumbein says Widmer might well win another trial.

Krumbein tells 9 News, "There is a smudge in the bathtub that they are really claiming that Sarah Widmer made as she was struggling while she was being killed. Who made that smudge? Was it Lt. Braley when he was,... who knows? It really has tainted the entire scene of the alleged murder."

Braley has since resigned from the Hamilton Township police department after an investigation found that he lied on his job application.

Judge Neal Bronson allowed jurors to consider involuntary manslaughter in addition to murder which was a last minute request by the prosecution.

Berry also argues that the evidence presented was only enough to possibly convict someone of involuntary manslaughter or reckless homicide, not murder.

The appeal asks the appeal court to vacate his murder conviction and give him a fourth trial.

The first trial resulted in a conviction which was later overturned due to juror misconduct.

The second trial ended with a hung jury.

It is not clear when the court of appeals will make a decision on the appeal. Krumbein says although the Appeals Court has indicated interest in the case, it could still takes weeks or months to give the appeal consideration and render a decision.

Widmer is serving 15 years to life in prison.

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