Jeffrey Wogenstahl’s trial was marred by both pervasive prosecutorial misconduct and the withholding of extensive, significant evidence from the jury. Combined, these elements raise extremely serious questions about the fairness of Jeff’s trial (see Jeff’s Trial below).
The Harrison Police Department and the Hamilton County Prosecutor’s office unjustifiably withheld police records about Jeff’s case. Jeff was unable to access these until May 3, 2016, after legal pressure was brought to bear. Significant suppressed information emerged that is relevant to all aspects of his case (see below).
A 2015 forensics report criticizes the original investigation in Jeff’s case as extremely “deficient in its thoroughness and adherence to established procedures of professional competence”. One of its conclusions is:
“The State’s contention that the victim was murdered elsewhere, or in Wogenstahl’s car, which was then used to transport the victim to the scene, is not supported by the physical evidence in the car, at the scene or on the victim.”
A 2015 report on eyewitness identification highlights serious doubts about the reliability of eyewitness testimony in Jeff’s case.
Nine people have been exonerated from Ohio’s death row since 1976. The number of innocent people executed is unknown; the US constitution does not forbid the execution of an innocent person.
Jeff’s case features most of the ‘symptoms’ of a wrongful homicide conviction, as defined by the National Registry of Exonerations*, viz:
– official misconduct (occurs in 69%* of false homicide convictions),
– perjury/ false accusation (occurs in 69%* of false homicide convictions),
– false or misleading forensic evidence (occurs in 24%* of false homicide convictions).
– Mistaken witness ID (occurs in 25%* of false homicide convictions) must also be considered a strong possibility in Jeff’s case, as is shown in Jeff’s Trial below (see more about the eyewitness testimony in Jeff’s case here).
*See second graph, % EXONERATIONS BY CONTRIBUTING FACTOR AND TYPE OF CRIME, Homicide. Statistics accessed October 28, 2018.
– Jailhouse informants feature in 23% US death penalty cases where the convicted person has ultimately been exonerated.
The rules of the US death penalty system and the “materiality” rule make it extremely difficult for an innocent death row inmate to be granted a new trial. Because of the ‘doctrine of prosecutorial sovereign immunity’, it is impossible to sue a prosecutor if he frames an innocent person for capital murder.
Events that led to Jeff’s Conviction
Saturday November 23, 1991 was Jeff Wogenstahl’s thirty-first birthday.
That night Peggy Garrett left her son, Eric Horn, to babysit three of her other children, including 10 year-old Amber. Jeff testified that he showed up at the Garrett residence at about 3 am, while Horn was still babysitting, to buy marijuana from him. At Horn’s request Jeff then drove him to a house two blocks away and dropped him off there.[i] Jeff testified that he (Jeff) then drove home alone.
The next afternoon Amber Garrett was reported missing from her home. The following Wednesday her body was found in a wooded area near West Harrison, Indiana.
Jeff was arrested the following day. There is no evidence of an investigation into anyone other than Jeff.
In 1993, Jeff was convicted of Amber’s murder. He was sentenced to death. He has always maintained his innocence. His most recent execution date was April 17, 2019, but he was granted an indefinite stay of execution by the Supreme Court of Ohio, following a favorable order by the United States Court of Appeal for the Sixth Circuit.
Jeff is pursuing his claim of innocence (for instance, see Reply to State’s Motion to Dismiss Successive Post-Conviction Petition). On September 4, 2018, the United States Court of Appeal for the Sixth Circuit sent Jeff’s innocence claim back to the district court for a fuller exploration of the legal implications of the State’s suppression of material in the original police file and its inaccurate statements misrepresenting the hair analysis. The Sixth Circuit Court’s decision states:
“[C]onsidering the voluminous evidence casting considerable doubt on the credibility of Amber Garrett’s mother and brother and suggesting that they were implicated in her death, as well as the newly discovered scientific inaccuracies in the testimony regarding the hair analysis, Wogenstahl has made a prima facie showing that he can establish by clear and convincing evidence that no reasonable factfinder would have found him guilty.” See more at On Motion to Authorize the Filing of a Second or Successive Application for Habeas Corpus. No. 1:17-cv-00298—Thomas M. Rose, District Judge.
Because the rules of the American death penalty system and the “materiality” rule unfairly impact claims of innocence, it is crucial to pursue any other claims that could result in a new trial. In Jeff’s case, he has pursued a claim that he should have been tried in Indiana, not in Ohio, because the state hypothesized that Amber was murdered in Indiana. This claim has been rejected by the Ohio Supreme Court in spite of Chief Justice O’Connor’s declaration that:
“[F]ailing to ensure that this state has jurisdiction in such a case is a tremendous error and is a disservice to the citizens of Ohio and the victims of violent crime.”
The court’s decision is being appealed.
Jeff has also filed a claim that Ohio relied on a flawed statute to allow itself jurisdiction to try him. This claim has been dismissed by the Supreme Court of Ohio; the decision is being appealed.
- The jurors at Jeff’s trial did not see the results of DNA testing which excluded Jeff as the originator of semen stains found on Amber’s comforter; they were instead shown a report that was inconclusive.[ii]
- The jurors did not see test results which made no link between the victim and Jeff’s car, clothing, or apartment. (In 2017, Ohio Supreme Court Chief Justice O’Connor noted, “The blood never tested in the apartment – we don’t know whether it was human or animal blood, so that’s not probative.“) Similarly, the jury remained ignorant of test results revealing no forensic evidence linking him to items submitted from the victim,[iii] and no relevant forensic evidence in a vacuum trash bin at a car wash,[iv] where a witness said she saw a man inside a parked car similar to Jeff’s on the morning of November 24.[v]
- Prosecutorial misconduct at Jeff’s trial was ‘plain and plentiful’ and ‘wholly improper’, as a federal judge noted in 2012: “The prosecution withheld Brady evidence, seemingly suborned perjury, improperly vouched for the credibility of state witnesses, Wheeler and Deedrick, improperly denigrated defense counsel, improperly inflamed the jury with speculative commentary about the victim, improperly confronted and commented personally on [Wogenstahl], and improperly observed that the defense had failed to call witnesses. Moreover,… the prosecutor’s penalty-phase closing argument was riddled with improper comments regarding the nature and circumstances of the offense.”[vi]
- Prosecutors were aware that their key witness, Eric Horn, lied when testifying he had never used or sold drugs; they chose to withhold important evidence that this witness had earlier been arrested for trafficking in marijuana, and had received a juvenile delinquency adjudication for drug offences.
- This perjury allowed the state to falsely establish Horn’s credibility in a trial where the integrity of the key participants was fundamental.[vii]
- Notwithstanding the veneer of honesty afforded him by prosecutorial misconduct, Horn’s important testimony was inconsistent and improbable. For example, despite saying that he saw Amber getting ready for her bath at 10 pm and in her bedroom at 11 pm, Horn testified that he thought Amber was sleeping at a friend’s house that night; he then further contradicted himself by stating that he assumed Peggy had returned at 3.30 am and had taken Amber out, leaving the other two children alone.[viii]
- In a separate case, Eric Horn was later charged with Rape, which was pled down to Corruption of a Minor.[ix]
- The scale of known prosecutorial misconduct in this case casts doubt on prosecutors’ conduct in other aspects of the proceedings. For instance, FBI agent Deedrick testified in court that he found on the victim’s underwear a pubic hair that could be linked to Jeff; yet no hair had been apparent when the underwear was examined, scraped and closely inspected by the forensic specialist at the Trace Evidence section of the Hamilton County Coroner’s Office one year previously, shortly after the body was found.[x] See Official Crime Laboratory Report (dated November 25 1991): Results (dated March 23 1992), page 10: “A visual examination of the victim’s clothing revealed no hair, patterned marks or other trace elements. The garments were scraped down over a large sheet of clean white paper to remove the surface debris. Microscopic examination of the debris revealed no trace elements.”
Deedrick’s testimony was given one week after he met with the prosecutors.[xi]
The prosecutor restated Deedrick’s testimony and made it pivotal to the case: he improperly vouched for Deedrick’s credentials before telling the jury,
“He said that is Wogenstahl’s hair.”[xii]
- Significantly, this deeply suspect hair evidence was furthermore analysed incorrectly by the FBI agent. In 2013 the Department of Justice admitted that important portions of Deedrick’s crucial trial testimony must be disregarded because it ‘exceeded the limits of the science’ in linking the pubic hair to Jeff.”[xiii] The Innocence Network and National Association of Criminal Defense Lawyers have written of Jeff’s case: “False testimony infects the entirety of the expert’s opinion… The jury heard the invalid testimony, which repeatedly and erroneously bolstered the conclusions and weight of the hair testimony.”
- The elimination of the hair testimony has removed the only corroborating evidence for the highly questionable testimony of the prosecutors’ jailhouse snitch witness, Bruce Wheeler.[xiv] Wheeler claimed to have heard Jeff confessing to raping the victim; the version of events recounted by Wheeler is contradicted by the physical evidence, as well as the coroner’s evidence at trial.[xv] At his trial, the dubious jailhouse snitch testimony was one of the very few pieces of evidence that purported to link Jeff directly to the crime.[xvi]
In 2017 Ohio Supreme Court Chief Justice O’Connor dismissed Wheeler’s testimony as irrelevant: “But that jailhouse – you know – informant – his account was so discredited, with some of the information that he threw in there, that both sides said, ‘Well, that’s not right. That never happened.'” (See here.) See more about Wheeler’s testimony here, and about snitch testimony in general here.
- Two extensive searches on Jeff’s car revealed almost no evidence to indicate that Amber had been in Jeff’s car.[xvii] A minute speck of blood, found on the inside of the door handle on the left rear door, was linked to Amber by DNA testing performed nine years later.[xviii] This minute blood speck is inconsistent with the prosecution’s theory of the case, where they claimed that Jeff murdered Amber in his car.
(Read a 2015 forensics report about Jeff’s case here; and read about DNA tests in general here.)
- No fingerprints belonging to the victim were found anywhere in Jeff’s apartment or car.[xix]
- Prosecutors accounted for the lack of forensic evidence by theorizing that Jeff had thoroughly cleaned his car and clothing; however, this theory was unsubstantiated by evidence.[xx]
- No witness testified to seeing Jeff and the victim together at any time. Eyewitness identification focused on a person and a car seen in the area near where the victim’s body was recovered[xxi]: testimony was vague, confused and open to doubt. Prosecutors improperly bolstered the credibility of one witness’s testimony, who more than a year after the crime said it was Jeff that she saw in a moving car for 5 seconds in the dark, from a distance. She had, however, failed to identify him immediately after the murder. Another witness gave a description (glasses, height, weight and facial hair) that did not match Jeff.[xxii]
(See more about the eyewitness identification in Jeff’s case here, and about eyewitness testimony in general here.)
- A police bloodhound was unable to locate Amber’s scent in Jeff’s car or near his apartment; this information was not made known to the jury.[xxiii]
- Prosecutors speculated that plant material found on Jeff’s clothing and bed sheet came from the area where the victim’s body was found; however, such vegetation, common throughout the Midwest, does not link specifically to the crime.[xxiv]
- Two witnesses placed Jeff near his apartment at about 5.00 – 5.30 am, only two hours after the time when the prosecution claims Jeff kidnapped and murdered Amber.[xxv]
- Jeff’s trial counsel neglected to call crucial witnesses, made prejudicial comments against Jeff and put adverse evidence before the jury during the mitigation phase.[xxvi]
- Prosecutors postulated that the murder was committed in the state of Indiana; this renders Jeff’s Ohio conviction and death sentence invalid.[xxvii] Oral argument about this was heard by the court (see oral argument here). On July 25, 2017 the court rejected this claim (see more here); Jeff asked the court to reconsider, but without success (see more here). The court’s decision is being appealed.
Suppressed Police File
The police file that was suppressed by the Harrison Police Department and the Hamilton County Prosecutor’s office until May 3, 2016, includes the following additional points (from Appellant Jeffrey Wogenstahl’s Motion to Remand Case to the Trial Court, filed in the Supreme Court of Ohio, October 7, 2016 – Case No. 2016-0423):
- Both the victim’s mother, Peggy Garrett’s, and brother, Eric Horn’s, memories were improperly refreshed via hypnosis by a Patrolman with the Harrison Police Department [who was neither qualified to hypnotize nor independent] – see more here and here;
- The victim kept a diary in which she wrote the following concerning her life and her mother: “I hate myself. I hate my life. I hate my classmates. . . . Sometimes I just feel like running away or killing myself. . . . Just yesterday before I came to school my mom beat me she was punching me in the back. She just would not stop” [Peggy falsely testified that she and Amber were close];
- The police received reports that the victim’s mother may have sold the victim to an individual to whom she owed money for drugs (see more here);
- The victim’s brother [Eric] had stated that he hoped the victim was dead and lied about his whereabouts on the evening in question (see more about what the State suppressed about Eric Horn here);
- Bruce Wheeler, the State’s jailhouse informant, lied when he testified that he did not receive any consideration for his testimony against Wogenstahl [see more here];
- Wogenstahl drove a brown sedan at the time of the murder. An eyewitness saw a small red vehicle at the time of the victim’s disappearance in the immediate area where her body was found;
- The victim’s mother frequently held parties at her residence at which illegal drugs where rampant and the mother permitted the male attendees to inappropriately touch the victim;
- In May 1991, the victim had been attacked by a male (Wogenstahl was incarcerated during that time) – see more here;
- In the summer prior to her death, an adult male stalked the victim including standing outside her bedroom window (see more here);
- The victim’s mother and brothers were actively involved in the sale and possession of illegal drugs;
- The victim’s brother, Justin Horn lied to the police concerning his whereabouts at the time of the victim’s disappearance and murder (see more here);
- The blood found in Wogenstahl’s apartment was consistent with his testimony that the source of the blood was his cat;
- The prosecution proceeded on the theory that Wogenstahl abducted the victim from her bed in the early morning hours. However, the victim was wearing her “church clothes” when her body was found instead of her pajamas.” (See more here.)