Monday was a big day for a former Kirksville dentist.
The Western District Court of Appeals heard oral arguments Monday in the appeal of Steve Barber's conviction on two felony counts.Barber was convicted a year ago on two counts of tampering with a witness. He was sentenced to five years in prison on each count, with the sentences to be served at the same time.
J. R. Hobbs the attorney for Barber argued that there is a lack of sufficient evidence for conviction in the case.
Hobbs said the mother of a child abuse victim had given their attorney Cliff Mayberry authority to negotiate a potential civil claim against longtime Kirksville attorney Tom Oswald, rising out of misconduct involving her son.
Hobbs said the family??s attorney was the one who suggested Oswald make a payment of $150,000.
Barber, who is friends with Oswald, was going to help him come up with the money.
Assistant Attorney General Shaun Mackelprang said Oswald was told the deal was off and although Barber was not present at the meeting, he was the one who gave Oswald a ride to and from the meeting.
Judge Mark Pfeiffer asked Mackelprang, ??At this point is there anything criminal about Mr. Oswald talking to one of his best friends and saying well, they're saying I have to come up with $150,000. Where does it become criminal???
??It becomes criminal because a month passes, time passes,?? Mackelprang said. ??The criminal case against Mr. Oswald is continuing to move along. And then, Mr. Barber calls up Mr. Shumaker and says I want to talk to you. Mr. Shumaker has seen and knows that Mr. Oswald and Barber are friends. He's seen them socializing together and he is concerned.??
Judge Pfeiffer then asks does Mr. Shumaker know what his co-council has done, and Mackelprang says that it is not apparent. Shumaker had testified at one point that he was not sure what Mayberry was doing at certain times.
Judge Pfeiffer then asks who was giving Barber advice.
And Mackelprang said no one.
??Well, isn??t that the problem with the tape?|is that Barber thought he was getting some advice from Shumaker??? Pfeiffer said.
??Except I don't think he thought that,?? Mackelprang said. ??During the conversation there's never any mention of a plea negotiation?|.There??s never any mention of a prior offer. There's never any mention that he's there to settle a civil case. There??s never any mention where he (says) I want your personal advice.??
Barber??s defense said that when he met with Shumaker he made it clear he was not trying to do anything illegal.
??Mr. Barber says we'll just clear the situation whatever can be done above board and legally,?? Hobbs said. ??And at the end of the conversation SS (Seth Shumaker) says if it??s legal and ethical I??ll pass it along. Barber says you'll do that? Yes, I??ll do it.??
Judge Pfeiffer said to Mackelprang isn??t this a confused guy?
??We don??t have everything,?? Pfeiffer said. ??We got some video tape. We??ve got different things, but don??t you just have a confused guy???
??I think that??s a question for the jury,?? Mackelprang said. ??Is he confused, or is he having trouble articulating what he wants with something that he knows is illegal.??
Previous stories...Barber appeal date set - Friday, August 31, 2012 Oral arguments to be heard in October.State answers in Barber's appeal - Tuesday, August 21, 2012 Barber remains free pending outcome of his appeal.Barber files appeal - Thursday, April 19, 2012 Appeal claims trial judge erred in several ways.