Monday, November 19, 2012

Officer Kenneth Bluew - Appeal

Also See:

Jennifer Webb murder:
http://michiganoidv.blogspot.com/2011/09/murder-of-jennifer-webb-august-31-2011.html

Officer Kenneth Bluew arrested for Jennifer Webb's murder: http://michiganoidv.blogspot.com/2011/08/officer-ken-bluew-arrested-for-murder_30.html

Jennifer Webb murder case:
http://michiganoidv.blogspot.com/2011/08/officer-ken-bluew-webb-murder-case.html

Officer Bluew trial for murder of Jennifer Webb:
http://michiganoidv.blogspot.com/2011/08/officer-bluew-trial-for-murder-of.html

Officer Bluew sentenced to life in prision for murdering Jennifer Webb: http://michiganoidv.blogspot.com/2011/08/officer-bluew-sentenced-for-murder-of.html



AUGUST 12, 2014:  Kenneth Bluew's conviction for the murder of Jennifer Webb was upheld by the Michigan Court Of Appeals.





News articles are below the Appeal Court documents



  






































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Ex-cop Ken Bluew's murder conviction upheld; court says evidence he strangled pregnant Jennifer Webb 'overwhelming'
By: Andy Hoag
MLive
August 13, 2014 at 11:00 AM
Updated August 13, 2014 at 12:16 PM
http://www.mlive.com/news/saginaw/index.ssf/2014/08/ken_bluews_murder_conviction_u.html



LANSING, MI — The Michigan Court of Appeals has upheld the first-degree murder conviction of Kenneth T. Bluew, a former Buena Vista police officer who strangled a woman eight months pregnant with his son.

One week after hearing oral arguments in Lansing on Bluew's appeal, appellate judges Henry William Saad, Donald S. Owens, and Kirsten Frank Kelly on Tuesday, Aug. 12, unanimously upheld Bluew's conviction for the Aug. 30, 2011, first-degree premeditated murder of Jennifer Webb, for which Bluew is serving a sentence of life in prison without the possibility of parole.

Bluew's case still is headed back to Saginaw County Circuit Court, though, because the appellate judges want Circuit Judge Darnell Jackson to articulate further his justification for greatly exceeding Bluew's state sentencing guidelines for his conviction for assaulting a pregnant individual intentionally causing miscarriage or stillbirth of a fetus or embryo. On that charge, Jackson added nearly 50 years to Bluew's sentence.



Bluew's appeal of his murder conviction hinged on his claim that his trial attorney, Rod O'Farrell, was ineffective because O'Farrell did not call expert witnesses to dispute the testimony of Saginaw County Forensic Pathologist Dr. Kanu Virani, then the county's medical examiner, who ruled Webb's death a homicide by carotid neck compression through the use of a choke hold and not a suicide by strangulation.

The appellate judges, while noting the high standard required to prove ineffective counsel, ruled the cause of Webb's death was immaterial based on the "overwhelming" evidence against Bluew.

"Although the affidavits of (the experts proposed by Bluew on appeal) may raise a question as to whether the victim died from hanging as opposed to a chokehold, they do not raise any reasonable question as to whether (Bluew) killed the victim in light of the overwhelming evidence of guilt presented at trial," the judges wrote.

Some of the evidence included Bluew's DNA matching blood stains both on her person and in and around Webb's Pontiac Aztek found at North Outer and Hack in Buena Vista Township. That evidence "would not have been found if (Bluew) was simply present at the scene to investigate the crime as part of his duties as a police officer," the judges wrote.

Prosecutors at trial said Bluew, who was married but not to Webb, met in a secluded area, where Bluew strangled her. Bluew then made it appear as if she committed suicide and was at the scene when other officers arrived to investigate, prosecutors said.

"In the end, the means by which the victim died is immaterial where there is overwhelming evidence that (Bluew) killed the victim by means of a violent assault," the appellate judges wrote.

Bluew can appeal the judges' ruling to the Michigan Supreme Court, which has the option of hearing Bluew's case. If the state Supreme Court were to deny Bluew's request, he then could proceed with a federal appeal.

Among the "overwhelming" evidence against Bluew also was his denying that he had sex with Webb until Michigan State Police Detective Sgt. Allan Ogg, now retired, and Jason Teddy, now a lieutenant, asked to swab his inner cheek to obtain a DNA sample; his and only his fingerprints being on a typed suicide note found in Webb's purse; his blood and Webb's saliva being on the inside and outside, respectively, of a piece of latex glove found at the scene; and his right index fingerprint being on the suicide note prior to Bluew receiving an injury to the finger that caused him to leave a bloody fingerprint on Webb's vehicle's door.



In handing down the sentence for the fetus charge, and also denying Bluew a new trial, Jackson cited the "overwhelming" evidence when he exceeded Bluew's sentencing guidelines by nearly 50 years and sentenced him to 65 to 100 years in prison.

When judges exceed the guidelines, they must state one or more "substantial and compelling" reasons for doing so, and Jackson said Bluew "committed what accounts to first-degree premeditated murder of the baby."

"I understand you weren't charged with first-degree premeditated murder ... because of statutory interpretation," Jackson said. "But I still believe that's what you're guilty of."

In their ruling, the appellate judges stated Jackson's reference to Bluew's actions being "plotted and planned" is a factor that is not taken into account in the variables that make up the guidelines for the fetus charge. The judges added, however, that Jackson "did not justify" such a great departure from the guidelines.

"Although we could speculate that the trial court's sentence of 65 to 100 years' imprisonment was meant to reflect a life sentence for the first-degree premeditated murder of the unborn child, where it is not clear why the trial court made a particular departure, we cannot substitute our judgment about why the departure was justified," the judges wrote.

Such a sentence as the one Bluew received "would fall only within the appropriate guideline range of someone who committed a similar crime" but had a much more extensive criminal history that Bluew lacked, the judges wrote. The Michigan Supreme Court has suggested that when a defendant has no criminal history, a 15-year departure "may be disproportionate," the judges added.

"Because we cannot clearly determine why the trial court selected a minimum sentence that greatly exceeded the appropriate guidelines range," the judges concluded, "we must vacate (Bluew's) sentence ... and remand the case to the trial court to explain why the sentence ... is more proportionate to the offense and the offender ... or to resentence the defendant."

The resentencing does not affect Bluew's sentence of life in prison without parole for Webb's murder.

Circuit Court officials had yet to set a resentencing date for Bluew, who was fired from the Buena Vista Police Department after his conviction and remains lodged at the Alger Correctional Facility in Munising in Michigan's Upper Peninsula.
















Ken Bluew timeline: From Jennifer Webb's death to murder conviction appeal
By: Andy Hoag
MLive
August 08, 2014 at 11:25 AM 

SAGINAW, MI — Three years ago in early August, the names Jennifer Webb and Kenneth Bluew did not mean what they do today.

Webb was a 32-year-old expectant mother working in customer service at P.F. Markey, and Bluew was in his second stint as a police officer with the Buena Vista Police Department.

But Webb was carrying Bluew's son, and while some of Webb's family and friends knew that, Bluew's wife and family did not.

By the end of that August, investigators were beginning to link Bluew to the death of Webb, whose body was found late Aug. 30, 2011, at North Outer and Hack in Buena Vista Township. Her body was found hanging by an extension cord from her Pontiac Aztek after an apparent suicide that prosecutors said Bluew staged after strangling her.

Prosecutors soon charged Bluew with first-degree murder, and a jury more than a year later convicted him, sending him to prison for the rest of his life.

Below is an interactive timeline that depicts the events that began with Webb's death and concluded, for now, with Bluew's appeal hearing.


































































































































Michigan Court of Appeals hears Ken Bluew's appeal as Jennifer Webb's family learns to cope
By: Andy Hoag
MLive
August 08, 2014 at 7:15 AM
Updated August 08, 2014 at 8:55 AM
http://www.mlive.com/news/saginaw/index.ssf/2014/08/michigan_court_of_appeals_hear.html

LANSING, MI — Nearly three years have passed since Jennifer Webb died at the hands of Kenneth T. Bluew, an on-duty Buena Vista police officer and the father of the son Webb carried.

Family and friends of the 32-year-old expectant mother have shared a meal on the Aug. 30 anniversary of her death and her birthday, April 12, each year.

They will not continue the tradition for the day of her death anymore.

"Her birthday is more of a happy time, and (if) we go on the third anniversary (of the murder), it brings it all freshly back, and everybody's sad," says her sister, Angie Webb. "I still have trouble — baby showers for friends, if it's a boy, I can't do it yet. It's hard."

For Webb and her parents, Don and Dawn Webb, "Jenny" was at the forefront of their minds this week when a reporter told them that Bluew is seeking a new trial.

Bluew's new attorney on Tuesday, Aug. 5, argued for a retrial before the Michigan Court of Appeals in Lansing.

Bluew, 39, is serving life in prison without the possibility of parole for the first-degree premeditated murder of Webb, who was going to name their son Braxton. Webb died late Aug. 30, 2011, at North Outer and Hack in Buena Vista Township.


Her body was found hanging by an extension cord from her Pontiac Aztek after an apparent suicide that prosecutors said Bluew staged after strangling her.

The prosecution's contention was based on what Circuit Judge Darnell Jackson labeled as "overwhelming" evidence that included the testimony of county Forensic Pathologist Dr. Kanu Virani, then the county's medical examiner, who ruled Webb's death a homicide by carotid neck compression through the use of a choke hold and not a suicide by strangulation.

Bluew's appellate attorney, Christine DuBois, focused her appeal on Virani's determination and what she said Bluew's trial attorney, Rod O'Farrell, should have done to dispute it. DuBois argued Bluew had ineffective counsel because O'Farrell did not call expert witnesses, namely a forensic pathologist and someone involved with pressure point control tactics to refute Virani's testimony.

DuBois and county Assistant Prosecutor Randy Price delivered brief arguments Tuesday that supplemented written arguments filed months ago. The appellate court, as is usually the case, did not rule on the appeal Tuesday and will do so later in a written opinion.


Not forgotten
As they await a decision, Webb's family, who did not attend Tuesday's hearing, continues to both endure Jenny's death while also honoring her life.

A memorial to her and Braxton remains at the location of her death, and the Webbs constructed a memorial garden in her honor at their home in Bridgeport Township. They also have provided memorial gardens to the Children's Zoo at Celebration Square in Saginaw and the Bridgeport Historical Society.

"When someone who you love like that is killed, you just don't want them to be forgotten," her mother says.

As is the case with most deaths of a loved one, some days are better than others, Webb's sister adds.

"The bad days don't come quite as often as they used to," Angie says, "but there's still some days when it hits you, and it's just a bad day. You don't want anybody to talk to you. You don't want nothing."

And the process of learning to cope with those bad days isn't complete, if it ever will be.

"It's still an ongoing hardship for everybody," Don says. "You don't forget about it. She's not here to live life with us."

Close call?
While whether appellate judges Henry William Saad, Donald S. Owens and Kirsten Frank Kelly have a hard decision ahead of them will lie within their ruling, oral argument hearings such as the one Tuesday generally shed some insight into how the judges are leaning in their decision.

Rather than allow the attorneys to regurgitate written arguments, the judges ask the attorneys to address and expound on specific points of what they wrote.

Bluew's Oakland County attorney, DuBois, began with her argument regarding Virani and the expert witnesses she thought O'Farrell should have called on Bluew's behalf. If the jurors had heard from those witnesses, DuBois argued, they "likely would have found reasonable doubt in the manner and cause of death."

It was not long, though, before Judge Kelly interrupted DuBois.

"The evidence was pretty overwhelming," Kelly said. "Are you saying this is a close call? ... He was there and caused the death."


DuBois said the trial was "polluted" by testimony regarding a pressure point control tactics instruction manual found in Bluew's vehicle. The manual does not teach the lateral vascular neck restraint, which Virani demonstrated to the jury by applying it to then-Saginaw County Prosecutor Michael D. Thomas, DuBois said. 

A pressure point control tactics instructor from whom DuBois obtained a sworn affidavit stated Virani's findings on Webb's injuries were not consistent with the use of the restraint Virani demonstrated, DuBois wrote in her appeal.

DuBois also obtained a sworn affidavit from Wayne County Chief Medical Examiner Dr. Carl J. Schmidt, who stated "not only that there was an incomplete evaluation of Webb's injuries during the autopsy but significant inaccuracies in Dr. Virani's findings."

Price, the prosecutor, said that prior to the trial beginning, O'Farrell consulted with two expert witnesses and listed them as potential witnesses. O'Farrell ultimately decided against calling those witnesses to testify, Price said, making his decision simply "trial strategy" rather than ineffective counsel.

"There was no denial of a substantial defense in this matter," Price said, noting a standard used to determine ineffective counsel.

Price was brief with his argument on that issue, and the judges did not probe him further on it. They did, however, ask him about Circuit Judge Jackson's decision to sentence Bluew to 65 to 100 years in prison for assaulting a pregnant individual intentionally causing miscarriage or stillbirth of a fetus or embryo.

In doing so, Jackson exceeded Bluew's state sentencing guidelines by nearly 50 years. When judges exceed the guidelines, they must state "substantial and compelling" reasons for doing so, and Jackson said Bluew "committed what accounts to first-degree premeditated murder of the baby."


"I understand you weren't charged with first-degree premeditated murder ... because of statutory interpretation," Jackson said. "But I still believe that's what you're guilty of."

Appellate Judge Owens questioned the enhancement, noting the charge itself, and the sentencing guideline enhancements that go along with it, reflects the seriousness of the crime. Owens also compared the killing of a fetus or embryo to abortion, which he noted is legal.

If the appellate judges rule Jackson's reasons for departing from the guidelines were not "substantial and compelling," they could remand the case back to him for re-sentencing. The sentence Jackson hands down still could prove moot if Bluew's appeal on the murder charge fails.

Among the "overwhelming" evidence against Bluew was his denying that he had sex with Webb until Michigan State Police Detective Sgt. Allan Ogg, now retired, and Jason Teddy, now a lieutenant, asked to swab his inner cheek to obtain a DNA sample; his and only his fingerprints being on a typed suicide note found in Webb's purse; his blood on the inside and Webb's saliva on the outside of a piece of latex glove found at the scene; and his right index fingerprint being on the suicide note prior to Bluew receiving an injury to the finger that caused him to leave a bloody fingerprint on Webb's vehicle door.

Judge Jackson said Bluew "left so much evidence at the scene that we could have tried this case anywhere on the planet" and it still would have resulted in a conviction.

Bluew, who was fired from the Buena Vista Police Department after his conviction, remains lodged at the Alger Correctional Facility in Munising in Michigan's Upper Peninsula.
— Andy Hoag covers courts for MLive/The Saginaw News. 














August 05, 2014:







Jennifer Webb's family 'upset' after prosecutors don't inform them of Ken Bluew appeal hearing
By: Andy Hoag
MLive
August 06, 2014 at 4:46 PM 


SAGINAW, MI — An appellate attorney for Kenneth T. Bluew, the former Buena Vista police officer convicted of murdering the woman who was eight months pregnant with his son, argued for a new trial Tuesday, Aug. 5, before the Michigan Court of Appeals.

The family of the victim, Jennifer Webb, did not know about the hearing, an oversight for which prosecutors have apologized.

The Saginaw News on Tuesday informed the Webb family — Don and Dawn Webb and Jennifer "Jenny" Webb's sister, Angie Webb — of the hearing after listening to oral arguments on the case at the Court of Appeals in Lansing.

While the appellate court has yet to make a ruling on the case, the Webbs were not happy they did not find out about the appeal from the Saginaw County Prosecutor's Office.

"I'm a little upset that we weren't notified," Don Webb told The Saginaw News. "That was supposedly part of what we were told at the time, if anything comes up concerning him, then we would be contacted and notified of it."

A recent personnel change in the prosecutor's office resulted in the failure to notify the Webbs, officials there said. A secretary who handles appeals paperwork left the office, according to county Prosecutor John McColgan Jr. and Chief Assistant Prosecutor Christopher Boyd. That secretary would inform the office's victims right advocate of upcoming appeal hearings, and the outgoing secretary did not tell her replacement about that duty, the prosecutors said.

Family members of Bluew, who is serving life in prison without the possibility of parole for first-degree premeditated murder of Webb, attended Tuesday's hearing.

County Assistant Prosecutor Randy Price, who argued the case Tuesday in Lansing, spoke to the Webbs on Wednesday and apologized for the error, Boyd said. Price informed the Webbs that the prosecutor's office intends to never have that mistake happen again, McColgan and Boyd said.

Bluew's appellate attorney argued Bluew should receive a new trial because Bluew's trial attorney, Rod O'Farrell, did not call expert witnesses who would dispute the prosecution's theory of how Bluew killed Webb late Aug. 30, 2011, at North Outer and Hack in Buena Vista Township.

Webb's body was found hanging by an extension cord from her Pontiac Aztek after an apparent suicide that prosecutors said Bluew, who was on duty, staged after strangling her.

Bluew was fired from the Buena Vista Police Department after his conviction. He remains lodged at the Alger Correctional Facility in Munising in Michigan's Upper Peninsula.


















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