Judge denies Ken Bluew a new trial, says he would have been convicted 'anywhere on the planet'
MLive.com
Dec 10, 2012
SAGINAW, MI — Kenneth T. Bluew, the former Buena Vista police officer convicted of murdering the woman who was eight months pregnant with his son, will not get a new trial.
At least not from Saginaw County Circuit Judge Darnell Jackson.
Jackson on Monday, Dec. 10, rejected each of the claims presented by Bluew's attorney and denied Bluew's motion for a new trial.
With the judge's decision, Bluew's case now can proceed to the state Court of Appeals, where Bluew has filed an appeal.
A jury in October convicted Bluew of first-degree premeditated murder in the Aug. 30, 2011, death of Jennifer Webb, and Jackson last month sentenced Bluew, 37, to the mandatory life in prison without the possibility of parole.
Bluew's attorney, Rod O'Farrell, argued that the jury selection process in Bluew's trial, over which Jackson presided in September and October, was "fundamentally flawed" and "denied (Bluew of) a jury representative of his peers."
Jackson on Monday presided over a hearing on O'Farrell's motion; as is the norm with such hearings, Bluew, the defendant, waived his right to appear and remained at the Macomb Correctional Facility in New Haven, where he is housed in general population.
The judge addressed each of O'Farrell's claims and rejected each, pointing out that he granted each of O'Farrell's pre-trial requests regarding the jury selection process. Because of the sensitive nature of the individual jury questioning that O'Farrell requested and Jackson ordered in July, the judge banned MLive and other media from reporting on the questioning.
Jackson on Monday noted that he didn't grant O'Farrell's request for a change of venue, but said that it “wouldn't have mattered.”
Bluew, the judge said, “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. The evidence in the case, including numerous blood stains, was “overwhelming,” Jackson said.
Bluew and fellow Buena Vista Police Officer Tim Patterson found Webb's body hanging by an extension cord from the roof rack of her Pontiac Aztek, parked at the northeast corner of the intersection near a ditch, in an apparent suicide. Saginaw County Medical Examiner Kanu Virani, however, testified that he ruled Webb's death a homicide by carotid neck compression through the use of a choke hold and not a suicide by strangulation.
Bluew also was convicted of assaulting a pregnant individual intentionally causing miscarriage or stillbirth of a fetus or embryo and two counts of possessing a firearm during the commission of a felony. He was fired from the Buena Vista Police Department after his conviction.
Michigan Court of Appeals hears Ken Bluew's appeal as Jennifer Webb's family learns to cope
MLive.com
Aug 08, 2014
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.
Ex-cop Ken Bluew's murder conviction upheld; court says evidence he strangled pregnant Jennifer Webb 'overwhelming'
MLive.com
Aug 13, 2014
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.
Judge 'reluctantly' reduces ex-cop Ken Bluew's sentence for assault in Jennifer Webb murder
MLive.com
Nov 3, 2014
SAGINAW, MI — A judge has "reluctantly" reduced the sentence for one charge against convicted murderer Kenneth T. Bluew, a former Buena Vista police officer who strangled Jennifer Webb, a woman eight months pregnant with his son.
Bluew remains in prison serving a sentence of life without parole.
A Michigan Court of Appeals in August sent Bluew's case back to Saginaw County Circuit Judge Darnell Jackson to have the judge either re-sentence Bluew for a related assault charge or further articulate his justification for greatly exceeding Bluew's state sentencing guidelines in handing down a 65- to 100-year sentence for that conviction.
Jackson's choosing of the former on Monday, Nov. 3, gives Bluew nothing to take back to the appellate court, which unanimously upheld Bluew's convictions and found the convictions were based on "overwhelming" evidence that showed he killed the 32-year-old Webb.
Bluew's next step is to ask the Michigan Supreme Court to hear his case, and the high court has the option of doing so.
"It is my intention to bring closure for the family of the two victims in this matter as quickly as possible," Jackson said Monday. "After much consideration, I have concluded that I cannot articulate any further reasons that I already have for exceeding the guidelines to the extent that I did."
While multiple members of Webb's family were in attendance Monday, the 39-year-old Bluew declined to be transported from the St. Louis Correctional Facility, said his attorney William White.
Saginaw court officials appointed White to represent Bluew for the re-sentencing after Bluew was represented at trial by Saginaw attorney Rod O'Farrell and at the appellate level by Christine DuBois. White said Bluew did not respond to several letters he wrote to him; instead, Bluew's mother, who lives in West Virginia, called White and told him Bluew "definitely did not want to be here in attendance."
Bluew was last in Jackson's courtroom almost exactly two years ago, when the judge on Nov. 5, 2012, sentenced him to the mandatory life in prison without the possibility of parole for his jury conviction of first-degree premeditated murder and exceeded the guidelines by nearly 50 years for Bluew's conviction of assaulting a pregnant individual intentionally causing miscarriage or stillbirth of a fetus or embryo.
"Because of the absolute heinous nature of the crimes committed by (Bluew), it was my intention to impose a sentence (for the assault conviction) that would ensure that he never got out of prison," Jackson said Monday. "Now that the Court of Appeals has upheld all of (his) convictions, my original objective has hopefully been accomplished."
In ordering a re-sentencing on the assault charge, the appellate judges wrote that 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.
At the time, Jackson said he considered the death of the child Webb planned to name Braxton, who would have been a viable baby had he been born, to be first-degree murder as well. The sentencing guidelines for the assault charge did not "adequately address the actual crime (Bluew) committed," Jackson said at the time.
"In my opinion, it does not get any more substantial and compelling than that," the judge said Monday. "This was a cold and calculated murder of the kind we have not often seen in this community. The planning and carrying out of these two murders speak for themselves. There is nothing more I could add to what has already been shown, and the Court of Appeals seems fine with that. At this time, I will reluctantly re-sentence (Bluew on the assault conviction) to the maximum sentence called for by the applicable sentence guidelines."
The judge then sentenced Bluew to 18 years and nine months to 40 years in prison for the assault charge. The sentence will run concurrent with the murder sentence, the judge ruled.
Bluew's appeal for the 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.
"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 judges wrote.
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.
After O'Farrell filed a motion for a new trial, 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 was on duty as a patrol officer at the time of the murder. He was fired from the Buena Vista Police Department after his conviction.
Ex-cop Ken Bluew out of appeals after Michigan Supreme Court denies his request to appeal his murder conviction
MLive.com
Mar 5, 2015
SAGINAW, MI -- Kenneth T. Bluew, the former Buena Vista police officer who strangled a woman eight months pregnant with his son, has run out of appeals in Michigan.
The Michigan Supreme Court on Tuesday, March 3, denied Bluew's leave to appeal the state Court of Appeals' decision to uphold his convictions for killing Jennifer Webb on Aug. 30, 2011.
While individuals who are convicted of felonies by juries have the right to appeal to the Court of Appeals, they only have the option of asking the Supreme Court to hear their appeal. In making its decision, the high court weighs the facts of the defendant's case as well as any legal issues.
As is often the case, the Supreme Court ruled it is "not persuaded that the questions presented [in Bluew's case] should be reviewed by this court."
With the Tuesday decision, Bluew's options for appeal in Michigan are exhausted. He has the option of filing a federal writ of habeus corpus, which begins a civil action against the state to determine if the defendant's imprisonment is valid. That process can take years.
In the meantime, Bluew, 40, will continue to serve his mandatory sentence of life in prison without the possibility of parole for first-degree premeditated murder of the 32-year-old Webb. A jury in October 2012 convicted Bluew of that charge as well as a single count of assaulting a pregnant individual intentionally causing miscarriage or stillbirth of a fetus or embryo and two counts of possessing a firearm during the commission of a felony.
Bluew's chances for appellate success at the state level were diminished in November, when Saginaw County Circuit Judge Darnell Jackson reduced the sentence he originally handed down for the pregnant individual charge, and in August, when the Court of Appeals upheld all of Bluew's convictions mostly because of the "overwhelming" evidence against him.
While Jackson said he "reluctantly" reduced the pregnant individual charge from 65 to 100 years to 18 years and nine months to 40 years, he did so to keep in line with his intention of bringing the Webb family closure "as quickly as possible." By sentencing Bluew within his state sentencing guidelines, as opposed to exceeding those guidelines, Jackson ensured Bluew could not appeal the sentence.
The judge at the time also noted the appellate court's decision to deny Bluew's appeal on his convictions. Bluew's appeal 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.
"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 judges wrote.
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.
After O'Farrell filed a motion for a new trial, 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 on duty as a patrol officer at the time of the murder, was fired from the Buena Vista Police Department after his conviction. He remains lodged at the St. Louis Correctional Facility.
