Missouri Court of Appeals' Western District rules lawyer to get new

Daily Record and the Kansas City Daily News-Press, Nov 14, 2007 by Charles Emerick

Western District upholds finding that state withheld useful evidence

The Missouri Court of Appeals' Western District determined Tuesday that evidence not disclosed by prosecutors during a former Kansas City lawyer's 2002 murder trial was enough to affirm a Jackson County judge's decision to set aside his conviction.

At the heart of the debate are several hours of videotaped surveillance that Richard Buchli's lawyers said were withheld from them and show that their client likely did not have enough time to commit the murder of his law partner, Richard Armitage.

"Mr. Buchli has patiently awaited this day," his lawyers from Johnson & Johnson and Gould Thompson & Bucher said in a written statement. "There is no greater injustice than sending an innocent man to prison. As two separate courts have now ruled, Richard did not receive a fair trial because vital evidence was withheld from the jury."

The attorney's declined further comment because the case is still before the court. The state has 15 days to appeal the case, Buchli's lawyers said. A spokesman for the Missouri Attorney General's Office, which argued the case on appeal, did not return a phone call seeking comment.

Armitage was found on the floor of his office in a pool of blood in May 2000. He died two days later. The cause of death was determined to be nine or more blows to his head by a blunt object.

Prosecutors contended that Buchli murdered his law partner since 1994 for financial reasons. He allegedly owed Armitage several thousand dollars.

A Jackson County jury found Buchli guilty of murder in 2002. An appeal, which challenged the sufficiency of the state's evidence, was affirmed by the Western District in 2004.

In his subsequent post-conviction motion, Buchli, 57, now incarcerated at Crossroads Correctional Center in Cameron, Mo., claimed violations of constitutional guarantees recognized by the U.S. Supreme Court in Brady v. Maryland, which held that evidence favorable to the accused must be disclosed by the prosecution.

In presenting their criminal case, prosecutors used part of a video recorded by a surveillance system on the building that housed the law office.

Phone records show Armitage was speaking with a client until 2:02 p.m. on May 5, 2000.

A witness testified at trial that he saw Buchli leave the building around 2:10 p.m.

The video shows that Buchli left the building at 2:05 p.m. The state argued that the time stamp on the video was as much as five minutes behind real time.

Prior to the jury trial, the state did not disclose the majority of a videotape showing nearly 11 hours of surveillance from the building on the day of the murder. The defense received a portion of the tape showing footage from 1:13 p.m. to 2:39 p.m.

Buchli's lawyers contend the time stamp on the video was correct and that the witness lied about seeing Buchli leave the property.

He filed the current motion to set aside the conviction in April 2005.

In his petition, Buchli argued that the new evidence showed he would not have had time to beat Armitage nine times, ensure there was no blood on his clothing, hide the murder weapon, ride the elevator down from the 13th floor and leave the parking lot in his vehicle in only three and half minutes.

Jackson County Circuit Judge Sandra Midkiff concluded in granting the motion that the state was guilty of two Brady violations. She also found six reasons for declaring that Buchli's trial attorney had been ineffective. The Western District only reached an opinion on the videotape violation.

The state argued that the tape was not material evidence and used testimony from the criminal trial to support its case.

But that testimony did not support the state's appeal, Judge Paul Spinden wrote.

The judge added that if Buchli had the entire recording he could have used it to establish that the time stamp was correct.

"(The exhibit) would have provided Buchli with plausible and persuasive evidence to support his theory of innocence by supporting his theory that he did not have enough time to commit the crime," Spinden wrote. "If believed, this evidence would have established that Buchli had only three and a half minutes to club Armitage nine times with a blunt object, clean any blood from himself and get down 13 floors to leave the building.

"Although the jury was free to believe that Buchli could have done all of these acts in less than four minutes," Spinden continued, "Buchli conceivably could have used (the exhibit) to persuade the jury that the 'time window' was too brief."

The decision required some interpretation of Brady on the part of the Western District. According to the opinion, the "courts have been less than articulate in describing what constitutes material evidence."

The Western District panel outlined its understanding of the Brady standard this way: "It appears to us, however, that the United States Supreme Court would have us ask whether or not the undisclosed evidence would have been significant to the defendant in the way that he tried his case: Would it have provided him with plausible and persuasive evidence to support his theory of innocence or would it have enabled him to present a plausible, different theory of innocence? If either question can be answered affirmatively, the evidence is material under a Brady analysis." Ultimately, the court concluded that the trial court's decision was "not clearly erroneous."