U.S. Attorney Sheldon J. Sperling announced Wednesday evening that the U.S. Court of Appeals for the Tenth Circuit in Denver, Colo., unanimously affirmed the conviction and death sentence of Kenneth Eugene Barrett, 47.
Barrett was convicted in federal court on Nov. 18, 2005, for intentionally killing OHP Trooper David "Rocky" Eales, a state law enforcement officer engaged in the performance of his duty. In December 2005, Barrett was formally sentenced to the death penalty for Eales' death. Barrett was also sentenced to life imprisonment without the possibility of release for both using or carrying a firearm during and in relationship to a drug trafficking crime with death resulting and using or carrying a firearm during and in relationship to a federal crime of violence, with death resulting. Barrett's federal conviction was automatically appealed, which is mandatory in federal death sentences.
Eales, along with another trooper, was shot while attempting to serve a night-time drug search warrant at Barrett's rural home northwest of Sallisaw.
Co-counsel for Barrett, Roger Hilfiger of Muskogee, said there are several options from which to choose, including asking for a rehearing before the three-judge panel.
"I don't know what his plan is," Hilfiger said, referring Your TIMES to Barrett's main attorney, Mark Henricksen of El Reno, who was unable to be reached for comment.
"It was disappointing," Hilfiger said, adding that he was not surprised by the appeals court decision.
While the defense was disappointed by the appeals court's decision, prosecutors had a different view.
"Out of a dark murderous tragedy, we see today a bright ray of judicial light," Sperling said in a prepared statement. "The appellate road is long and challenging, We will continue the battle to uphold courageous jury and judicial decisions in this epic case."
Sperling added his thanks to those who worked on the case.
"I am particularly grateful to Mike Littlefield for his work on this prosecution," Sperling said. "(Sequoyah County) Sheriff Johnny Philpot was instrumental to identify key witnesses to prove the defendant acted with premeditation.
"The Oklahoma State Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Sequoyah County Sheriff's Office, and other agents and investigators worked together to investigate this case and see justice done so far."
Both prosecutors and the defense attorneys made oral arguments before the appeals court panel in June.
In Henricksen's brief on behalf of Barrett, Henricksen alluded that the jury was confused and misled by the jury instructions in regard to the death penalty. He also claimed that the government failed to produce the names and residences of seven key witnesses for the prosecution in a timely manner. He wrote that the witness testimony was used to establish the drug offenses, the intent to kill a law enforcement officer, and other aggravating factors, which "amounted to an ambush, denying Barrett the opportunity to investigate and prepare cross-examination."
During the federal trial, the seven witnesses testified that they obtained drugs from Barrett, and claimed that Barrett planned to "go down in a blaze of glory" if police arrived at his home.
In the prosecution's response, Sperling disputed each of the arguments in Henricksen's brief.
Sperling dismissed race claims and insisted that race was not a determining factor in jury selection, but that they looked at how each juror reacted to the government, their attitudes, and dress and demeanor in order to consider the potential juror's respect toward jury service.
Sperling also argued that there was no failure to timely produce names and residences of key witnesses. In the brief, Sperling explained that on Sept. 9, 2005, the government filed a sealed motion for an order delaying the production of witness names due to concerns for witness safety. Hearings were subsequently held Sept. 13 and 14, 2005, and the parties reached an agreement that the government would give the defense all the witness names and addresses on Sept. 19. The jury selection process began on Sept. 26, 2005, and Sperling argued that they needed only to provide the information three days before trial.
In the appeals court's 80-page decision, filed Wednesday, the appeals court judges reviewed each element of Barrett's appeal, ultimately concluding that Barrett's appeal should be affirmed. To view the complete decision, visit www.ca10.uscourts.gov.
Barrett's federal trial was his third. His first state trial in Sequoyah County ended with a deadlocked jury, while his second trial resulted in a manslaughter and assault conviction. Barrett was serving a combined 30-year prison sentence for Eales' death when he was indicted in federal court.
Throughout both trials, the prosecution argued that Barrett knew he was shooting at officers who attempted to serve a search warrant at his home, while Barrett's attorneys argued Barrett was shot first and was acting in self-defense when he fired his rifle.
