John’s case that put him in prison for (effectively) the rest of his life (39 years when the court was done) centered around two main issues: Did his participation in BDSM sex with the woman who introduced him to this peculiar form of gratification meet the criteria for sexual assault? Specifically, did he forcibly compel her to comply with his sexual demands, or was their sex consensual? Also, did she indicate to him that she was unwilling to voluntarily consent to the sex act?
John was tried from July 10-12, 2012. Prior to trial, the trial judge stripped John of most of the defenses that would have explained his sexual encounters with his accuser, Jessica Merritt. The judge ruled that Kentucky’s expansive “rape shield” law stripped John of most of his defenses in explaining why the incident leading to his charges was not aberrant, and in fact was customary for the way that they had sex. The court did not allow other men who the alleged victim threatened with rape allegations to testify. It did not allow the man she had sex with just a few hours after the intrusive sexual assault exam took place to testify (what woman suffering from a sexual assault has sex just a few hours after the alleged assault?). It disallowed other tapes showing similar patterns of behavior between John and this woman. It allowed no mention of her previous sexual history.
But the court did allow the prosecutors to argue that John’s training and experience as a combat veteran sufficed to explain why this Jessica Merritt never said “No” during the entire sexual encounter. It allowed the prosecutor to wave firearms legally owned by John near the jurors as another prosecutor argued to them. It allowed Jessica to testify that she was “in fear” of John and his weapons, even though she carried on a relationship with him for almost two years, and demanded that he see her the day that she alleged sexual assault. After disarming John of all of his legal arguments, the jury logically found that he was guilty because there was no explanation for his actions put before them by John’s legal counsel with 30+ years’ experience. Effectively, if there was 36” worth of information on the yardstick of John Buckley’s case, the jury saw just a few inches of that yardstick. Their conclusion was logical, and John was found guilty.
John spent from 2013-2015 preparing his appeal to the Kentucky Supreme Court with his superb appellate counsel, Sam Potter Esq. Sam works for the Kentucky Department of Public Advocacy. See (http://dpa.ky.gov/who_we_are/post_trials/Pages/default.aspx)
On May 14, 2015 the Kentucky Supreme Court affirmed John’s trial convictions from July 12, 2012. While the Kentucky Supreme Court agreed with some of the merits of the four constitutional arguments made, they noted that the case did not rise to the level of reversible error. . See:
The appeals process now moves into the discretionary phase, which questions the professional competency of his trial attorney Andy Stephens under RCr 11.42. This is a Rule of Kentucky Criminal Procedure that allows John to challenge his trial counsel Andy Stephens’ ineffective assistance of counsel at trial. That can take several years. It starts with the trial court, where John was convicted. If the court refuses to find that Mr. Stephens was negligent in his representation to the point of ineffective assistance of counsel, or was not acting in John’s best interests but rather the best interests of the prosecution, then the case will be appealed to the Kentucky Court of Appeals. This could take several more years. If the Kentucky Court of Appeals rules against John, then he will appeal to the Kentucky Supreme Court once again, this time solely on the issue of whether Andy Stephens ineffectively represented John at trial. This second appeal to the Kentucky Supreme Court is purely at the discretion of that court. Few appeals of this sort find their way again to that Court if the Kentucky Court of Appeals rules against John.
Once these state courts are done with the appeals outlined above, then the real work begins. John’s best hope of reversal of his conviction on appeal has always rested with the federal courts. He cannot appeal to the Federal District Court in the Eastern District of Kentucky until all of the state appeals outlined above are completed. At that point, John can file a writ of habeas corpus – almost literally, show me the body – and begin the appeals process all over again at the federal level. That means the first level will be to the Federal District Court, then to the 6th Federal Circuit Court of Appeals, and then to the U.S. Supreme Court. All of these appeals will take years.
What is John’s goal in the appeals process? He seeks a new trial, with experienced trial counsel that is not beholden to the Fayette County, Kentucky Commonwealth Attorney (the title for a District Attorney, or DA, in the Commonwealth of Kentucky). Our argument has been that John was doomed by a conspiracy between police, the Commonwealth Attorney, and perhaps his own trial counsel to convict John of crimes that he did not commit. There is plenty of evidence for that conclusion, but it’s logical that a Kentucky state appeals court would be reluctant to question the judgment of a Kentucky state trial judge. One of the first lessons learned in law school is that a federal court will generally be more objective than a state court on many issues. That’s the hope of John, and of his family and friends. A federal judge will see the conspiracy, and the errors made at trial at John’s trial from July 10-12, 2012.
So…we begin the process of these lengthy appeals. If you pray, pray for John’s safety during this process. John has lost years of his life to date from this false accusation. So, we ask that you pray for his success. He deserves it. So does his children and family. Ultimately so do the people of the Commonwealth of Kentucky. Someone needs to show that loose policing and prosecution, based upon personal vendettas, cannot stand in the home of the free and the land of the brave. That’s for dictatorships…not for us.