Jeffrey Wogenstahl has filed a claim of actual innocence* in the Hamilton County Court of Common Pleas. The standard to be met for such a claim is very high, requiring that:
“evidence not available or presented at trial, in combination with the evidence that was presented” should show “a fair probability that no reasonable juror would have convicted the petitioner”.
Jeff cites many examples of evidence, both from his trial and post-trial, which call his conviction into question. The first group of examples are from his trial transcript; the second group were discovered post-trial:
- Peggy testified that when she arrived at Troy Beard’s apartment, Beard informed her that Eric showed up looking for her. She did not leave Beard’s house for almost an hour. When she did finally leave, she did not say anything to Eric when she saw him on the street. Instead, she went inside and went to sleep. Tr. 880; 928-34.
- Eric testified that despite realizing that Amber was missing from her bed after he returned from Troy Beard’s house, he laid on the couch, fell asleep, and never checked on her again. When Eric left the house at 5:00 a.m., he passed his mother on the street yet said nothing to her concerning Amber whereabouts. Tr. 972-75; 1008; 1012-13.
- Other State’s witnesses’ testimony contradicted Peggy Garrett’s and Eric Horn’s testimony. Compare testimony of Eric Horn, Tr. 969 (“I told [Troy Beard] that Jeff Wogenstahl told me that Peggy needed me there.”) with testimony of Troy Beard, Tr. 1116 (“[Eric] just asked me if I had seen Peggy or anything.”) and Tr. 1118 (Question: “Did [Eric] ever tell you who the person was that brought him there?” Answer: “No.”). Compare testimony of Eric Horn, Tr. 1016 (Eric stated that he did not know Vicki Mozena and did not go to the United Dairy Farmers asking about Amber’s disappearance) with testimony of Vicki Mozena, Tr. 154 (Mozena testified that Eric Horn came to the United Dairy Farmers and questioned her about Amber’s disappearance.). See also. 880; 905; 928-29; 951-52; 971-72; 988; 992-94; 1018; Grand Jury Tr. 63.
- When Kathy Roth was originally shown a photo array with Wogenstahl’s picture in it, she was unable to pick Wogenstahl out of the array. It was not until almost a year later, after she saw Wogenstahl’s picture on television, that she finally identified him. Tr. 178; 1566-69; 1587-89.
- No physical evidence linked Wogenstahl to the Garrett residence; no physical evidence linked Amber to Wogenstahl’s apartment. Defense Trial Ex. 1, 18; Exs. 74, 75; Tr. 1799; 2100-03.
- A bloodhound was used to track Wogenstahl’s scent in the parking lot where he lived (Tr. 2014-15), however there was no testimony that the bloodhound found Wogenstahl’s scent in the area where the victim’s body was discovered; nor was there testimony that the bloodhound found the victim’s scent in Wogenstahl’s apartment or car.
- Brian Noel testified that the person that he saw on Jamison Road was 6’ tall, 180-200 pounds, with facial hair and eyeglasses. Tr. 166; 1516; 1544. Wogenstahl was 5’9” tall, 165 pounds, clean shaven, and did not wear glasses. Tr. 997; 1056-57.
- Hamilton County Justice Center employee Deputy Logan testified that Wogenstahl and Bruce Wheeler did not associate with one another. “Jeff was very much alone.” Tr. 2229-31.
- Michael Kenny, Deputy Coroner, testified that there was no evidence of sexual abuse to the victim. Tr. 1428.
- Upon reviewing the case, a crime scene expert and forensic pathologist both concluded that the forensic evidence in this case completely contradicts the prosecution’s theory of the case at trial. According to these experts, Wogenstahl did not kill Amber in his car (as the State claimed at trial); he also did not kill her in his apartment or in some other undisclosed location because he could not have transported her in his car after she was already injured. Ex. 82, 83.
- The State argued at trial that the lack of physical evidence found in Wogenstahl’s apartment and on Wogenstahl’s jacket was due to bleach. Tr. 2461. A crime scene expert concluded that
“bleach will not prevent scientists from locating blood.” Ex. 83.
- The substances that presumptively tested positive for “blood” found in Wogenstahl’s apartment were consistent with his testimony that the source of this “blood” was his cat. Tr. 2294; Exs. 73; 83.
- An eyewitness ID expert would have testified that the eyewitness accounts of Kathy Roth, Brian Noel, and Vicki Mozena were flawed and should have been challenged. Ex. 80.
- Both Peggy Garrett and Eric Horn had their memories improperly influenced via hypnosis by a Patrolman with the Harrison Police Department. Ex. 13; 33.
- Amber 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.” Ex. 17.
- Harrison police received reports that Peggy Garrett may have sold Amber for sex to an individual to whom she owed money for drugs. Exs. 51-53; see also 44, 54, 55.
- Eric Horn stated that he hoped Amber was dead and lied about his whereabouts on the evening in question. A polygraph examiner found that Eric was deceptive on several questions concerning Amber’s disappearance and murder. Exs. 28, 30, 31, 32.
- Eric perjured himself when he stated under oath that he had never done, nor dealt, illegal drugs. This was a clear lie, since he had very recently—within a month of Wogenstahl’s trial—been adjudicated as delinquent for trafficking marijuana by the same prosecutor’s office. Ex. 34.
- Bruce Wheeler, the State’s jailhouse informant, lied when he testified that he did not receive any consideration for his testimony in this case. He, in fact, did receive consideration; he only recently admitted this fact to Wogenstahl’s investigator. Exs. 35; 36.
- At the time Amber disappeared, an eyewitness saw a red car in the immediate area where police later discovered Amber’s body. Wogenstahl drove a brown sedan at the time. Ex. 70.
- Several reports indicated that Amber had been raped or sexually assaulted, and, as a result, received sexual abuse counseling. During the summer prior to her murder, there was also a report that Amber was stalked by a man who stared at her through her bedroom window. The reports occurred before Wogenstahl moved to Harrison. Exs. 41, 42, 43, 54, 55.
- Peggy Garrett frequently held parties at her residence at which illegal drugs where rampant and the mother permitted the male attendees to inappropriately touch Amber. Ex. 43.
- Amber’s oldest brother, Justin Horn, lied to the police concerning his whereabouts at the time of Amber’s disappearance and murder. Ex. 81.
- The prosecution alleged that Wogenstahl abducted Amber from her bed on a Sunday in the early morning hours. However, the police found Amber’s body clad in her church clothes, not her pajamas. Amanda Beard, a friend of Amber’s from school, also spotted Amber alive at 4:00 pm on the day of Amber’s disappearance. Exs. 63, 64, 68.
- In early 2013, twenty years after Wogenstahl’s trial, the U.S. Department of Justice engaged in a nationwide review of the scientific testimony provided by FBI laboratory examiners in cases involving microscopic hair comparison. After this review concluded, the DOJ admitted that FBI Agent Deedrick’s testimony in this case “exceeded the limits of science.” Agent Deedrick had compared a pubic hair improbably found during a visual examination of Amber’s underwear, after the underwear had previously been microscopically examined and found to contain no hair evidence (Tr. 1197-98), with a sample of Wogenstahl’s known pubic hair. Agent Deedrick then wrongly testified that these pubic hairs were a “match.” Agent Deedrick’s testimony was the only direct evidence linking Wogenstahl to Amber. A juror from Wogenstahl’s trial later signed an affidavit stating that it was this testimony from FBI Agent Deedrick that convinced her to vote to convict Wogenstahl of killing Amber. Ex, 87.
- One of the jurors who sat on Wogenstahl’s jury stated that the “evidence in the first phase was not overwhelming.” That same juror stated that information concerning alternate suspects “definitely would have caused reasonable doubt on [her] part.” Ex. 77; see also 43, 79.
Jeff’s actual innocence claim is overwhelmingly supported by the assertion of the Sixth Circuit Court that:
“Wogenstahl has made a prima facie showing that no reasonable factfinder would have found him guilty”. †
The conclusion to Jeff’s claim is obvious:
“Wogenstahl is actually innocent; this court must grant Wogenstahl a new trial.”