A Dirty Secret

It is a “dirty secret”, known by few, that the American death penalty system is “specifically engineered to ensure that those who are convicted stay convicted, guilty or not.”[i]
This is how it works.

Death sentences routinely result from poor defense lawyering at trial, which fails to establish the flaws – and often misconduct – in the prosecution’s case.

Those convicted then face the appeals process. At this point, the burden of proof shifts decisively from the state to the individual, who must now persuade a court that any newly found evidence is so “clear and convincing” that no reasonable jury, in possession of this evidence, would convict him.

 But judges still reject clear and convincing evidence if they decide either of these points is true:
1) The trial lawyer could have discovered the evidence through “reasonable diligence”.
2) The original trial was “constitutionally fair”.

In practice, this is a trap for the convicted man. He may well argue that his trial was unfair because his lawyers were thoroughly inadequate; but the reviewing court is unlikely to agree:
“[D] drunks and drug addicts and lawyers who fell asleep at crucial moments have been found good enough.”
However, even if the court did agree with him, he would still be caught by the first part of the trap: almost certainly the court would decide his new evidence could have been discovered if he had had a competent lawyer.

If this Catch-22 were not enough, the court could also decide that the claim has been made before – no matter how incompletely – and deny it.

But even if the petitioner feels that he can somehow clear these hurdles, he may not get the chance to even try. The federal court overseeing his case can – for any arbitrary reason – block him from getting the new evidence considered.

Such is the near-impossible challenge faced by the inmate who wants to demonstrate his innocence. Such is the system that piles on the stress during the long, depressing days on death row.

We trust Jeffrey Wogenstahl can remain strong, as he tries to get new evidence accepted by the judiciary. We hope that in the end he will win the new trial that he deserves.

[i] Information for this post is taken from “No Time For Trump: Killing Off The Death Penalty”, Richard North Patterson, Huffington Post, August 23, 2016




Posted in capital punishment, criminal justice, death penalty, death row, habeas corpus petition, injustice, innocence, Jeffrey Wogenstahl, Ohio, torture, USA, wrongful conviction | Tagged , , , , , , , , , , , , , , , , , , ,

A Terrible Old Rule

This summer Samuel Gross highlighted “a terrible old rule that has done great harm to the accuracy of criminal trials, and will continue to do so.” This rule has played a significant role in preventing Jeffrey Wogenstahl from receiving justice.

Gross explains that in a criminal trial the government must disclose evidence that is favourable to the defense only if it is “material” (significant). A court determines that evidence is “material” only if it believes there is a “reasonable probability” that its disclosure would have produced a trial outcome that was more favorable to the defendant.

In other words, prosecutors may conceal evidence favourable to the defendant if they decide it is not sufficiently significant to influence the jury’s verdict.

Gross explains the bias this rule produces. Prosecutors cannot possibly know what impact the evidence in question will have on the jury; they may well be tempted to withhold the evidence to make their job easier, knowing that in all probability no one will ever know. As Gross says,
“If somehow it does come outa court reviewing the case faces the same impossible question—what might have happened at trial if these facts had been known to the defense?—with an added twist: Judges are extremely reluctant to reverse jury verdicts and order new trials.”

In Jeff’s case the prosecutors hid a huge amount of information e.g. about their witnesses, about the victim and the circumstances of her disappearance, and about other suspects. Jeff learnt about some of this relatively recently, and is fighting to get a court to consider it. No court has been troubled by the concealed evidence that Jeff discovered earlier in the appeals process (prosecutors withheld information that their key witness, Eric Horn, had trafficked drugs, even though he testified to the contrary).[i]

Gross advocates radical action to restore confidence in the judicial process:
“Why not eliminate the “materiality” requirement entirely and treat access to exculpatory evidence like other aspects of a criminal defendant’s constitutional right to a fair trial? If exculpatory evidence is concealed, it’s a violation of the Constitution, period.”

We agree.

[i] Three jurors at Jeff’s trial have since signed affidavits stating that information about Eric Horn selling drugs could have altered their opinions and decisions at the trial.





Posted in Brady evidence, capital punishment, criminal justice, death penalty, Jeffrey Wogenstahl, jurors, Ohio, prosecutorial misconduct, USA, wrongful convictions | Tagged , , , , , , , , , , , , , , , , , , ,

More Victims and More Grieving Families

September 13, 2017 was to have been Jeffrey Wogenstahl’s day of execution. Following a rescheduling, the date has been reallocated to Gary Otte.[i]

Otte differs from Jeff in having no claim of innocence. Nonetheless, Otte’s case highlights many concerns about the process of justice, e.g.:
-Otte was persuaded by his attorneys to opt for a 3-judge trial, rather than a jury trial.
-He was heavily medicated during his trial, and unable to understand what was happening.
-Mitigating factors in his case (the extensive bullying that he suffered as a child, and his depression linked to substance abuse) were not fully and effectively presented in court.
-He was only 20 years old when he committed his crimes.

Otte’s father feels that an adequate trial could have helped the families of the two victims:
I understand the anger that the victims’ families feel. But just maybe if there had been a jury trial it could have helped all the families understand why it happened and feel a better sense of closure. They would have gotten a lot more information about the cause and effect of the crime.

If Otte is killed on Wednesday, the family and friends of the victims are unlikely to derive the peace they hope for.[ii] Nor will his execution prevent a similar crime happening: but better support for bullied children and troubled young people might do so.

On the other hand, many new victims will emerge as a result of Otte’s execution. His family members have begged for clemency, noting that his execution will cause them overwhelming suffering. Gary’s mother says,
Gary’s execution would devastate our family. It would leave a void in our life that would be impossible to fill.
and his sister echoes this:
Executing my brother would be extremely hard for me and my family. We all love Gary and don’t want to lose him. I am very worried about my parents and how they will handle this. I am very worried about my dad due to heart problems.

We leave the final word to Marietta Jaeger-Lane, whose 7 year-old daughter, Susie, was murdered in 1973; she writes eloquently about why state-sanctioned murder must end:
Loved ones, wrenched from our lives by violent crime, deserve more beautiful, noble and honourable memorials than pre-meditated, state-sanctioned killings. The death penalty only creates more victims and more grieving families. By becoming that which we deplore – people who kill people – we insult the sacred memory of all our precious victims.

For information about how to ask Ohio Governor Kasich to rethink clemency for Gary Otte, please read the Amnesty International USA Urgent Action information sheet.

Update: Employees of the State of Ohio killed Gary Otte on September 13, 2017.

[i] Most of the information for this post is taken from the minutes of the Parole Board meeting, Re Gary Otte, CCI #A264-667, held February 2, 2017.
[ii] See, for instance, the experience of families of victims of the Oklahoma City bombing: “Six months after the bombing a poll taken in Oklahoma City of victims’ families and survivors showed that 85 per cent wanted the death penalty for Tim McVeigh. Six years later that figure had dropped to nearly half, and now most of those who supported his execution have come to believe it was a mistake. In other words, they didn’t feel any better after Tim McVeigh was taken from his cell and killed.”




Posted in capital punishment, criminal justice, death penalty, executions, Gary Otte, Jeffrey Wogenstahl, mitigating factors, Ohio, USA | Tagged , , , , , , , , , , , , , , , , , ,

Move to Toledo Abandoned

The men on death row in Ohio will no longer need to worry about relocating to a prison in Toledo: the proposed move has been abandoned ten months after it was announced. Jeffrey Wogenstahl and the other death row inmates at Chillicothe Correctional Institution were notified last week that they will not, after all, be moving to Toledo.

The move would have meant rationalizing precious belongings to fit into the volume allocated for packing. It would have entailed a long journey in shackles, uncomfortable and devoid of dignity. It would have involved getting to know new staff and a different building (more modern, but without windows that open to waft in the smells of outdoors).

It was October, 2016 when the move to Toledo was first announced. Since then, rumors about the likely timescale have suggested the move would be delayed: it could happen after Christmas, maybe later; and maybe not even until summer 2017. As time has gone by, more doubt has crept in about whether the move was going to happen at all. So last week’s announcement has come as no surprise, but has finally lifted the stress of uncertainty.

We are pleased that there is now one less unknown for Jeff to face. And we hope it is not long before he can demonstrate his innocence, and leave death row behind for good. 

Posted in capital punishment, Chillicothe Correctional Institution, criminal justice, death penalty, death row, Jeffrey Wogenstahl, Ohio, USA | Tagged , , , , , , , , , , , , , ,

The Majority Judges Erred

Jeffrey Wogenstahl has appealed an unfavorable Ohio Supreme Court ruling.*  Last month five of the judges rejected his claim that Ohio lacked jurisdiction to try him for murder; but Chief Justice O’Connor wrote a compelling dissent in his support (see more here).

In his appeal, Jeff claims the majority judges erred in assuming that it is his responsibility to prove that the murder occurred in Indiana.” He notes that, on the contrary, it is the State’s duty to establish that Ohio had jurisdiction to try him for murder.

Jeff also criticizes the majority judges for their improper speculation about what could have happened at the time of the murder: they should have limited themselves to examining the evidence.

Jeff agrees with Chief Justice O’Connor that, according to the State’s theory at trial, the murder occurred in Indiana:
“The State presented and argued at trial facts that can only establish one scenario—Amber was alive when she was taken from her house in Ohio, and she was murdered in Indiana, in a place within close proximity to where her body was later discovered.”

Jeff notes that his trial counsel should have raised the issue of jurisdiction, and could be judged ineffective for having failed to do so.

Jeff contemplates the possibility that the court’s ruling be allowed to stand, even though this would have improperly shifted the burden of proof to himself to “establish that the murder occurred in Indiana”. He argues that, particularly if the court’s ruling does stand, he should be allowed to introduce additional information to demonstrate that the majority judges’ theories are unsupported by the facts (and to show how trial counsel could have rebutted their theories).

Jeff lists the additional, highly pertinent, information which he wishes to present (which he attaches as exhibits in a separate motion):
Exhibit 1 (affidavit of Carl J. Schmidt, M.D, M.P.H. (finding that “to a reasonable degree of medical certainty . . . the victim in this case was killed outside of the car seen in the pictured. . . . ”);
Exhibit 2 (affidavit of Gary A. Rini, M.F.S. (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.”)
Exhibit 3 (two affidavits of Bruce Wheeler that would challenge his credibility by admitting that he received consideration for his testimony in Wogenstahl’s case).

We trust the Ohio Supreme Court will reconsider its arguments, and find in Jeff’s favor. He should have a new trial.

*Most of the information for this post is taken from State of Ohio v. Jeffrey Wogenstahl, 1995-0042. Appellant Jeffrey Wogenstahl’s Motion for Rehearing and/or Reconsideration. Supreme Court of Ohio. August 4, 2017.
Posted in capital punishment, criminal justice, death penalty, Indiana, Jeff Wogenstahl, Jeffrey Wogenstahl, jurisdiction, Ohio Supreme Court, USA | Tagged , , , , , , , , , , , , , , , ,

Chief Justice O’Connor’s Detailed Appraisal

In a 5:2 decision, the Supreme Court of Ohio has rejected Jeffrey Wogenstahl’s claim that Ohio lacked jurisdiction to try him for murder.* In order to reach their decision, the judges examined the state’s theory of events surrounding the murder of Amber Garrett. Jeff’s claim was that the state hypothesized that Amber was murdered in Indiana; and therefore he should have been tried in Indiana, not in Ohio.

The majority judges disagreed with Jeff. They found that the state’s version of events allowed for the possibility of the murder having occurred in Ohio; they based this conjecture on the layout of roads near the Ohio-Indiana border, which, they said, could have allowed Jeff to double back into Ohio in order to kill the victim there.

In her dissent, Chief Justice O’Connor examined the road layout more carefully, and concluded that such a doubling back was impossible, based on the state’s own premise about what happened.

The majority also suggested that the victim could have been fatally injured in Ohio, before dying in Indiana. If this was what happened, Ohio would have had jurisdiction to try Jeff.

Again, Chief Justice O’Connor made a more thorough evaluation of the state’s position at trial. She established that, given the lack of blood evidence, and the state’s tight timeline of events, the fatal blows could not have been struck in Ohio.

All the judges dismissed the state’s claim that Amber could have been murdered in Jeff’s apartment.

Justice French suggested that the court should consider whether the statute cited by the majority is constitutional. Chief Justice O’Connor noted that this statute is irrelevant if both the injury and the murder happened in Ohio (as is the case in her interpretation of the state’s hypothesis).

Chief Justice O’Connor concluded her dissent:
“[T]he state of Ohio had no jurisdiction to try Wogenstahl for murder. His aggravated-murder conviction is void and should be vacated, and Wogenstahl should be tried in Indiana for the murder.”

Jeff will appeal the Supreme Court’s decision. We trust that Chief Justice O’Connor’s detailed appraisal will be accepted by more judges. Whether in Ohio or Indiana, Jeff deserves a new trial.

*Information for this post is taken from Slip Opinion No. 2017-Ohio-6873, The State of Ohio, Appellee v. Wogenstahl, Appellant. Supreme Court of Ohio, July 25, 2017.
Posted in capital punishment, criminal justice, death penalty, Indiana, Jeffrey Wogenstahl, Ohio, Ohio Supreme Court, USA, wrongful convictions | Tagged , , , , , , , , , , , , , , , , , ,

Ronald Phillips: Breakdown of Criminal Justice

A ruling by a federal court makes it more likely that executions will resume in Ohio on July 26, despite warnings that the state’s drug protocol could cause immense pain. The first person due to face this pain is Ronald Phillips.[i]

Phillips is used to suffering pain: his childhood consisted of intense, frequent “abuse, chaos, and dysfunction… in which criminal activity, sexual deviancy, and physical abuse were not only acceptable but were the norm”. His father first raped him when he was 4. His parents taught him and his siblings to lie to officials to conceal the criminality, thus blocking escape routes for the children. As a result, Phillips grew up a confused, ashamed, angry, and guilt-ridden individual.

Phillips finally fled home at the age of 17, having acquired from his upbringing a personality disorder with borderline and paranoid features that left him unable to trust others. Often such individuals gravitate to others with similar disorders; thus it was that Phillips took up with a woman whose problems with sexual boundaries compounded his own ignorance of what constituted abuse.

Phillips insists that when he was abusing his girlfriend’s daughter, Sheila, it never occurred to him that what he was doing was wrong. One psychologist who assessed Phillips explains:
“To someone like Phillips, abusing Sheila was not something that would be clearly wrong in his mind.” 

Sheila died as a result of the abuse at the age of 3½, in 1993.

At the time of his trial, still terrified of his father, Phillips was unwilling to report his own catastrophic childhood abuse, but disclosed it much later; his reluctance to confront the impact of his disastrous past is typical of such cases. His trial counsel failed to ask his step-sister, Mary Phillips, to testify about the abuse in his childhood home. His lawyers and investigator also failed to produce Children’s Services Board records that could have alerted jurors to mitigating factors in Phillips’s case; this resulted in “a complete breakdown of the criminal justice system”. 

On death row a prison Christian group has provided Phillips with the therapy of interacting with people he trusts and feels comfortable with; this is allowing him to recover. Phillips now deeply regrets the abuse he inflicted on Sheila, and believes he is “a salvageable human being”.

Executing Phillips will not prevent deaths like that of Sheila; additional intervention and support for those who are severely damaged, like Phillips, might do so. Family and friends of the victim are unlikely to derive the peace they hope for from another death.[ii]

On the other hand, Phillips’s execution will probably traumatize a whole range of innocent people, including his step-sister, siblings, friends, jurors, and attorneys, as well as other death row inmates and prison staff, especially the executioners. And many other Ohioans will be shocked and ashamed that their state is planning to kill a man who caused death while his mind was disordered because of his horrific childhood.

The American Civil Liberties Union of Ohio has started a petition asking Ohio’s Governor Kasich not to carry out this and other scheduled executions (including that of Jeffrey Wogenstahl). We urge you to sign it. 

Update: Employees of the State of Ohio killed Ronald Phillips on July 26, 2017.

[i] Most of the information for this post can be found in the minutes of the Parole Board meeting, Re Ronald Phillips, CCI #A279-109, held October 16, 2013.  Phillips’s more recent clemency appeal, in December, 2016, was also rejected.  
[ii]See, for instance, the experience of families of victims of the Oklahoma City bombing: “Six months after the bombing a poll taken in Oklahoma City of victims’ families and survivors showed that 85 per cent wanted the death penalty for Tim McVeigh. Six years later that figure had dropped to nearly half, and now most of those who supported his execution have come to believe it was a mistake. In other words, they didn’t feel any better after Tim McVeigh was taken from his cell and killed.”
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