Widmer’s appeal is a habeas corpus petition, which means the person must show that the court ordering imprisonment made a legal or factual error.
“Petitioner Widmer’s habeas petition involves numerous issues and an extensive record, which center around a claim of actual innocence,” Berry wrote in the appeal. “The court will benefit from the opportunity to hear counsel orally present their cases and to ask counsel any questions in order to clarify the facts and arguments.”
Black is presiding over the case for the U.S. District Court for the Southern District of Ohio in Cincinnati, but Magistrate Michael Merz will hear the oral argument on Oct. 27 in Dayton.
When Berry filed the case in the Dayton court, Attorney General Mike DeWine accused her of forum shopping and asked that the case be transferred to Cincinnati where all Warren County cases are typically heard.
Merz ruled Berry wasn’t forum shopping but the case was still transferred.
The parties agreed Merz could stay on the case but Black will be the ultimate decision maker, according to Jeff Garey, the court’s divisional manager.
After three trials and several appeals, Widmer has been sitting in prison for four-and-a-half years for drowning his new wife, Sarah, in the bathtub of their Warren County home in 2008.
The original 150-page habeas corpus petition, filed in February 2014, contains six assignments of error and a dozen grounds for relief.
Berry’s main arguments have been that the home’s bathtub was illegally seized; testimony regarding “prints” on the tub was based on “junk science;” that Widmer should have been allowed to test Sarah’s DNA for a rare genetic disorder; and that all three juries should have been told about lead detective Jeff Braley’s alleged misrepresentations of his qualifications.
Most of the error allegations were decided against Widmer by the 12th District Court of Appeals.
The Ohio and U.S. Supreme courts have refused to hear the case.
The first verdict in this case in April 2009, delivered after 23 hours of deliberations, was guilty. The crux of the case was when first responders arrived minutes after Widmer dialed 911, the bathroom and Sarah’s body were virtually dry and only her blonde hair was damp. Prosecutors claimed Widmer drowned his wife of four months and then staged his 911 call.
The verdict was tossed out after it was revealed several jurors performed at-home drying experiments and shared their findings with fellow jurors.
The jury in the second trial in 2010 was hung after 31 hours of deliberations. Several jurors said the lack of evidence of a struggle in the tiny bathroom was key and although first responders said the scene was dry, they could tell the magazines that littered the floor had been wet.
The last trial started in January 2011 and after three weeks the jury found Widmer guilty and he was sentenced to 15 years to life in prison.
Attorney general spokeswoman Jill Del Greco said the office cannot comment on the oral argument request.
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