In the first appeal, Berry’s stance was that police improperly seized the bathtub because they did not specifically name the bathtub in the search warrant they obtained for the house on Crested Owl Court. She also said when authorities ripped the fixture out of bathroom, they violated Widmer’s Fourth Amendment rights.
The opinion, penned by Judge Robert Hendrickson, found the bathtub to be the “instrument of the crime,” giving police the right to procure it.
“We find that police had probable cause to associate the bathtub, and the markings found therein, as the instrument used to drown Sarah,” he wrote. “Because the bathtub was believed to have been used to cause Sarah’s death, the bathtub, by its very nature, became an instrument of the crime and subject to seizure.”
Berry also argued that criminologist Bill Hillard’s testimony was based on “junk science” and should not have been allowed at trial.
Hillard testified about what appear to be small hand prints streaking down the back of the tub and an apparent arm print that overlaid marks made by soap bottles on the side of the tub. No one, not even Hillard, could match the prints to any person.
The appeals judges said he was qualified to testify about the prints.
“Hillard testified he has more than 30 years of experience observing crime scenes and interpreting patterns of evidence,” Hendrickson wrote. “Hillard was more than qualified to testify as to his observation that the forearm impression came second in time to circular marks. If Widmer wanted to cast doubt on the accuracy of Hillard’s observations, he had the opportunity to do so during cross-examination.”
The inference at trial was the bottles were knocked over during the struggle between Widmer and his wife and he replaced them later.
The second appeal in the case centers around former lead detective Jeff Braley, but Berry touched on his apparent dishonesty in the first appeal as well. The judges said Judge Neal Bronson was not wrong to disallow evidence of Braley lying on a 14-year-old job application.
“Whether Braley authored the 14-year-old fabricated application was an issue collateral to Widmer’s murder trial,” the opinion reads. “Exploration of this issue was likely to ‘bog down’ the criminal trial and lead to confusion of the jury and misleading of the jury.”
Prosecutor David Fornshell said he was very satisfied with the court’s decision. When asked if the Braley part of the decision might be “foreshadowing” for the second appeal, he responded, “it implicates the same legal principles.”
Widmer’s father, Gary Widmer, said he wasn’t surprised by the decision, but it still was disappointing.
“I’m still deflated, still like always you hold out for that hope beyond hope,” he said. “It still hits you like a lead balloon, but not as hard as I think it could have.”
“We’re disappointed, but we’re more motivated than ever to continue fighting the wrongful conviction. We have winning issues that, if need be, we’ll see all the way through to the federal courts,” she said. “Law enforcement can’t come into someone’s house and start seizing things without a court’s permission. The State can’t have an expert testify that male forearm marks and female fingerprints are imprinted on a surface when there’s no science to back up that position. That’s not the way the law works. We’ll continue fighting until Ryan is free.”
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.
The first trial was declared a mistrial due to juror misconduct. The second jury was hung.
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