More than just Innocence

Speaking at Ohio’s Death Penalty Lobby Day last week, Ohio Republican Sen. Bill Seitz of Cincinnati assured death penalty opponents that he is “very, very dedicated” to doing “everything humanly possible to ensure that an innocent person is not subjected to death at the hands of the state.”  

Senator Seitz should, then, be extremely worried about the case of Jeffrey Wogenstahl, whose claim of innocence is compelling. Though a federal judge described prosecutorial misconduct at his trial as ‘plain and plentiful’ and ‘wholly improper’,* Jeff has as yet been unable to persuade a court that prosecutor misconduct went far beyond even this.

Particularly suspicious is the strange, apparently incriminating materialization of a pubic hair on a garment that had previously yielded nothing during an extremely thorough earlier examination.** The FBI hair expert conferred with the prosecutor a week before describing the alleged hair at Jeff’s trial; the prosecutor then wrongly assured the jury that this hair was linked to Jeff***:
“He said that is Wogenstahl’s hair.”
The evidence strongly suggests that the FBI agent provided false testimony, which was used by the unscrupulous prosecutor to persuade the jury that Jeff attempted to rape the child victim.

Missing and much missed at the Death Penalty Lobby Day was former Director of the Ohio Department of Correction and Rehabilitation, Terry Collins, who died unexpectedly last month. Collins believed that innocent people have probably already been executed by the state of Ohio.****  Jeff’s closeness to execution confirms the near certainty that Collins was correct. Humans are fallible: doing everything humanly possible to prevent mistakes can never be enough to end wrongful executions.

There is, however, more than just innocence at stake here: Senator Seitz should also be aware of the impact of the death penalty on the citizens of Ohio. As Martin LeFevre wrote earlier this week:
“The atavistic impulses of hate and vengeance that give rise to State-sanctioned murder are drawn from the same source as individual murder, even if they are called by the more palatable names of retribution and punishment… When the State murders murderers, it makes accomplices of all its citizens… To be a civilizing influence, the State must respond with humaneness to inhumanness.”

Terry Collins would have agreed. The potential to execute innocents like Jeff is horrifying; but the problem with the death penalty is greater even than this. Its fallout contaminates all Ohioans. OTSE† is right to demand its end.

*‘I write separately to emphasize the breadth and depth of prosecutorial misconduct that occurred in this case…
[M]ost of the prosecutorial action and commentary…  were wholly improper.  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 petitioner, and improperly observed that the defense had failed to call witnesses. Moreover, the Ohio Supreme Court recognized that the prosecutor’s penalty-phase “closing argument was riddled with improper comments regarding the nature and circumstances of the offense.”… The prosecutorial misconduct here was plain and plentiful.’

Judge Karen Moore. See State v. Wogenstahl. 07-4285. United States Court of Appeals for the Sixth Circuit. February 2012. Pages 48-49 (Moore, J., concurring). uscourts. Web. August 24 2014
**See Official Crime Laboratory Report (dated November 25 1991)
***See letter, Re: State v. Wogenstahl, from US Department of Justice, August 20, 2013
“We have determined that the microscopic hair comparison analysis testimony or laboratory report presented in this case included statements that exceeded the limits of science and were, therefore, invalid. (1) the examiner stated or implied that the evidentiary hair could be associated with a specific individual to the exclusion of all others this type of testimony exceeded the limits of the science; (2) the examiner assigned to the positive association a statistical weight or probability or provided a likelihood or rareness of the positive association that could lead the jury to believe that valid statistical weight can be assigned to a microscopic hair associationthis type of testimony exceeded the limits of the science; and (3) the examiner cites the number of cases or hair analyses worked in the laboratory and the number of samples from different individuals that could not be distinguished from one another as a predictive value to bolster the conclusion that a hair belongs to a specific individual. This type of testimony exceeded the limits of science.”
**** I don’t know for a fact that anybody that I ever witnessed be executed was not guilty. But statistical data would say that there’s a good probability of that.”
Terry Collins at 14.35 of
 video clip.
†Ohioans to Stop Executions, who organized the Death Penalty Lobby Day


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