Jan. 8, 2005 A District Court appellate panel reversed a Territorial Court judge decision Dec. 30 in a custody battle case that crossed the territory's borders.
The panel decided to overturn a February 2004 conviction of Christopher Barton for his failure to disclose, during his trial in Territorial Court, a disputed Florida court order.
Territorial Court Judge Leon Kendall had sentenced Barton to four months in prison Feb. 25, after a jury convicted him of three counts of concealing a material fact from the government.
The charges against Barton stemmed from a custody dispute with his ex-wife Mirna Barton.
The panel's written opinion stated that it was Mrs. Barton who misrepresented the facts to the court.
According to the panel's ruling, the prosecution charged that Barton did not disclose to the court in 2000 that he had violated a 1999 Florida Circuit Court order granting custody of his two sons to his ex-wife. At that time, he was awarded sole custody of the boys by Territorial Court Judge Ive Swan.
After becoming aware of Swan's decision, Barton's ex-wife filed an objection to the award of sole custody to Barton. She submitted documents from the Florida court showing she had been granted custody of the children.
Although the documents were not verifiable they had no official seal nor could a clerk with the Florida court verify to the Justice Department any indications of a custody award granted in the case's file Kendall ruled in February that the documents were valid and admissible evidence and amended the custody order indicating that Barton had defrauded the court by not disclosing the facts of the Florida court's proceedings, the written decision stated.
"Despite the many warning signs that the order was not a valid, authentic record of the Florida court, the trial judge allowed the document into evidence solely based on Mrs. Barton's testimony that she was given a copy by her Florida attorney," the panel's written decision stated. "Here the trial judge erred in ruling that the government met its burden of demonstrating the authenticity of the Order of Ratification."
The written decision further states that because Mrs. Barton was not a "witness with knowledge" of whether the document was valid or not, Kendall should not have admitted it as evidence.
In investigating the matter, the panel reviewed an affidavit submitted by the Florida Circuit Court judge, who presided over the Barton's case. The judge stated he had granted no custody award in the case because Barton filed exceptions to the report awarding custody to his ex-wife within the 10-day period allowed by Florida law. Although the judge had signed the Order of Ratification, it was never recorded because of Barton's filings.
Based on these facts, the panel reversed Kendall's ruling on the admissibility of the Order of Ratification, vacated Barton's 2004 conviction and remanded the case to the Territorial Court to be dismissed without prejudice.
The judges serving on the panel are District Court judges Raymond Finch and Thomas Moore and Territorial Court Judge Darryl Donohue.
In a related matter, Andy Simpson, attorney for Mr. Barton, filed a suit in federal court last week against William Curtis, an investigator for the V.I. Department of Justice, for depriving Barton of his civil rights by having him arrested without probable cause.
Editor's note: Several sentences were added for clarification to this article since its original filing.
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