The judges at the Ohio Supreme Court have two separate filings from Jeffrey Wogenstahl before them.

One, a jurisdiction claim (that Jeff’s trial should not have been held in Ohio, but in Indiana) has resulted in his stay of execution and the re-opening of his direct appeals.

The other supports his claim of innocence with newly discovered evidence, that forensic hair evidence at his trial was flawed. Presumably it was this memorandum that legal expert, Martin Pinales, had in mind when he speculated the Court might be ‘“very troubled” about some evidence in the case, perhaps hair analysis evidence’. But, in fact, it was the jurisdiction claim, to which the Court has responded.

Pinales’ conjecture is not surprising, given that a damning amicus curiae* memorandum suggests there is much cause for concern in the Hamilton County Court of Appeals’ dismissal of Jeff’s claim that the newly discovered hair evidence warrants a new trial. The amicus curiae memorandum, from the NACDL** and Innocence Network, includes the following:

 “The lower court’s decision has important and troubling implications that extend beyond the facts of Mr Wogenstahl’s case… The lower court incorrectly issued a blanket statement that the science of hair microscopy is not at issue in MHCA [Microscopic Hair Comparison Analysis] Review cases, when in fact the agreed limits of science and what types of statements exceed those limits forms the very basis of the review…

 “The lower court improperly implied that the presence of limiting language would somehow cure the false and misleading conclusions that were nevertheless proffered as “scientific” evidence of guilt. But an expert is simply not free to testify falsely so long as she occasionally throws in a disclaimer. False testimony infects the entirety of the expert’s opinion and cannot be mitigated or parsed out to save the opinion as a whole…

“[T]he lower court attempted to save the “match” between the pubic hair and Mr Wogenstahl by severing the erroneous testimony from the expert opinion testimony as a whole… This simply cannot be done. The jury heard the invalid testimony, which repeatedly and erroneously bolstered the conclusions and weight of the hair testimony.”

What the Ohio Supreme Court thinks of this memorandum we do not know: it has not responded. But clearly there are compelling reasons for Jeff’s voice to be heard, regardless of the outcome of his jurisdiction claim. Whether in Indiana or Ohio, Jeff deserves a new trial.

 *friend of the court

** National Association of Criminal Defense Lawyers