“I think the argument went very well, I think the court had a firm grasp of the issues and I think they understood that this tub was unlawfully seized and the expert gave improper testimony based on junk science,” she said. “I feel very good about it.”
Warren County prosecutors did not comment after the hearing.
Widmer is in prison for 15 years to life after a third jury convicted him of drowning his wife Sarah in their Warren County bathtub in 2008. During the 38-minute session Monday, the judges asked the lawyers questions about all three trials. The first trial was declared a mistrial due to juror misconduct. The second jury was hung.
Berry’s stance is that police did not specifically name the bathtub in the search warrant they obtained for the house on Crested Owl Court; they used the latent print listing as a catchall that included the tub. Also, she said when authorities ripped the fixture out of bathroom, they violated Widmer’s Fourth Amendment rights. She said law enforcement is required to be as specific as possible when filling out a search warrant.
“The Fourth Amendment requires the warrant to be as particular as possible. The term latent fingerprints is a very overly broad term to encompass a very known specific object as a bathtub in the bathtub murder,” she told the judges.
Assistant Prosecutor Michael Greer had barely begun his presentation when retired appellate Judge H.J. Bressler queried him as to the “smudges” that streaked down the backside of the tub - marks the prosecutors contend Sarah Widmer made while trying to stop her husband from dunking her head underwater.
Bressler said he couldn’t find anywhere in the case record where anyone testified the “smudges” were latent fingerprints. He also pointed out that the jury was shown pictures of the streak marks, suggesting that bringing the whole tub into court was unnecessary.
He then asked why the police - after the smudges appeared under fingerprint dust - didn’t just get another search warrant that specifically named the tub. Greer cited case law that he said did not require a second warrant.
Berry, too, came under fire when the judges asked her why defense counsel waited so long in both the second and third trials to suppress the tub. The judges also questioned why Widmer’s defense team didn’t try harder to get the fingerprint expert’s testimony stricken if they knew it was unscientific.
“This was no surprise, he had testified about this twice before,” said Judge Robert Ringland. He went on to say the defense should have asked Judge Neal Bronson to rule on a motion about the expert’s testimony.
Bressler also questioned Berry about her assignment of error regarding faulty jury instructions and her assertion the jury could have found Widmer guilty of reckless homicide or involuntary manslaughter. He pointed out the jurors were not to consider the lesser included offenses until they reached a decision on the murder charge. Berry said the erroneous jury instruction effected the jury’s thought process regardless of other jury instructions that were given.
Legal expert Ian Friedman said no one should read too much into the judge’s questions.
“The funny thing about appellate practice is that sometimes what a case may actually turn on in the eyes of the judges is something that seemed to be of little or even no value in the eyes of the lawyers,” he said. “As long as the trial record raised the issue and it was referenced in the appeal briefs, the judges are free to choose what is important or unimportant to them. Sometimes the appellate lawyer will read the final decision and wonder if any of what he or she said was heard.”
Widmer’s father, Gary Widmer, attended the hearing and was pleased with what he heard.
“I thought the judges had the prosecution guy tongue tied several times,” he said. “I thought they were asking all the right questions.”
Widmer said his son has been moved from the Warren Correctional Institution to the prison facility in Orient, which is much less restrictive. He said Ryan Widmer is hoping to get a job in the law library at that prison and he’ll be able to see him more often and for longer visits.
Contact this reporter at (513) 696-4525 or dcallahan@coxohio.com.
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