Exculpatory Evidence Suppressed

On October 25, 2005, Derrick Jamison left Ohio’s death row; exactly 20 years before that he was sentenced to death in Hamilton County, Ohio. The courts had recognized that the Hamilton County Prosecutor’s Office unfairly suppressed exculpatory information about his case.

Jamison is one of three death sentenced men who were granted new trials by the courts for the same reason: that the Hamilton County Prosecutor’s Office withheld significant exculpatory evidence.[i]

Jeffrey Wogenstahl’s case is similar. At the time of his and the other men’s indictment and trials, law enforcement officers were not required to give the Hamilton County Prosecutor’s Office all the records from crime investigations. The Cincinnati Police Department would pass to the Prosecutor’s Office only portions of their files for homicide cases – the portions deemed relevant to obtaining a conviction. Prosecutors, moreover, were not encouraged to search for exculpatory evidence: they were not even trained to identify it.

A Sixth Circuit Court has now recognized that in Jeff’s case, as in the other men’s, exculpatory evidence was withheld:
 “[T]he State suppressed the material in the original police file and made inaccurate statements misrepresenting the hair analysis.”
and that:

“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.”

Jeff must now wait patiently yet again: it is for a lower court to decide whether to reflect the Sixth Circuit Court’s clear message by awarding him a new trial. We hope his wait is short. We hope that, as Derrick Jamison did 13 years ago, Jeff will soon leave Ohio’s death row for good.

[i] State of Ohio, Plaintiff-Appellee, vs. Jeffrey Wogenstahl, Defendant-Appellant.  Case No. 2016-0423. Appellant Jeffrey Wogenstahl’s Motion to Remand Case to the Trial Court, filed in the Supreme Court of Ohio, October 7, 2016, pages 10 – 14.

 

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Posted in capital punishment, Cincinnati, criminal justice, death penalty, exculpatory evidence, Hamilton County Prosecutor's office, Jeffrey Wogenstahl, Ohio, USA | Tagged , , , , , , , , , , , , , , , ,

Shadow of Execution Date Lifted

Jeffrey Wogenstahl has been granted an indefinite stay of execution by the Ohio Supreme Court (see Supreme Court of Ohio Case Announcements October 24, 2018):
1995-0042. State v. Wogenstahl.
Hamilton App. No. C-930222. On appellant’s motion to reopen direct appeal. Motion denied. Appellant’s amended motion for clarification granted. Appellant’s amended motion for extension of stay of execution granted. The stay shall remain in effect until exhaustion of all state postconviction proceedings, including any appeals.
French, J., would grant appellant’s motion to reopen.
O’Connor, C.J., and Kennedy, J., would deny appellant’s amended motion for clarification and appellant’s amended motion for extension of stay of execution.
O’Donnell, J., would deny appellant’s amended motion for extension of stay of execution.
Donna J. Carr, J., of the Ninth District Court of Appeals, sitting for Fischer, J.
Eileen T. Gallagher, J., of the Eighth District Court of Appeals, sitting for DeWine, J.

The announcement acknowledges the clear message from the Sixth Circuit Court last month, which noted that Jeff’s trial was significantly flawed:
[T]he State suppressed the material in the original police file and made inaccurate statements misrepresenting the hair analysis.”
The opinion of the Sixth Circuit Court is that Jeff will be able to demonstrate in a court that no reasonable juror would have found him guilty.

We trust that this will also be the opinion of the Ohio Southern District Court, which is now considering the evidence that Jeff has presented.

The Ohio Supreme Court has unfortunately also denied Jeff’s motion which claimed that Ohio relied on a flawed statute to allow itself jurisdiction to try him. This decision will be appealed.

Despite the delays and setbacks for Jeff, we are very happy that he is no longer living under the shadow of an execution date. Life on death row is endlessly traumatic, but this news will make it a little less so. And for that we are grateful.

This post was amended on November 5, 2018, to include the wording of the Supreme Court of Ohio Case Announcement.

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Ripples of Sorrow

Jeffrey Wogenstahl’s trial was held in 1993. The following year in the state of Mississippi, another capital murder trial took place which was to change the life of one of the jurors forever.*

In July, 1994, Lindy Lou Isonhood found herself on the jury for the resentencing trial of Bobby Glen Wilcher, who had stabbed two women to death. To start with, Isonhood went along with the belief commonly held in Mississippi that “an eye for an eye” was appropriate, so a murderer deserved to die.

But then Isonhood looked towards Wilcher… and saw “a living, breathing human being”. If that person had been her son, she realized, she would have wanted him to be punished, but not killed. Unfortunately, she says, the court misled her into believing that the death penalty was the only option. She watched as Wilcher was sentenced to death.

Isonhood was to suffer post traumatic stress disorder as a result: she experienced anger, depression and anxiety. Before his execution she befriended Wilcher to ask for his forgiveness, which was freely given.

Isonhood has discovered that some of her fellow jurors were similarly burdened. Her experience has alerted her to the “ripples of sorrow” radiating from the death penalty, which can affect everyone it touches. She now opposes capital punishment.

Three jurors in Jeff’s case have expressed uncertainty about his guilt, after learning that the state suppressed potentially exculpatory evidence. The possibility of suffering trauma must surely be all the greater for jurors who find they may have condemned an innocent man to death.

We commend Isonhood for helping to raise public awareness about the insidious impact of the death penalty. Too many people are damaged by it. It is time for it to end.

*Information from this post is taken from:
Jamie Patterson, Isonhood Lives with the Regret of Sending Man to his Death, The Yazoo Herald, July 16, 2018.
Lindy Isonhood, The Unseen Anguish of a Death Sentence, Medium, July 2, 2018.
Lindy Lou, Juror Number 2 Trailer, Human Rights Watch, June 9, 2017.

This post was corrected on 10/28/2018. It originally stated that Jeff’s trial was in November, 1994, whereas in reality his trial was in 1993. November, 1994 was the month when Jeff’s convictions and death sentence were affirmed by the First District Court of Appeals.

Posted in capital punishment, criminal justice, death penalty, executions, Jeffrey Wogenstahl, jurors, Lindy Lou Isonhood,, Ohio, post-traumatic stress disorder, USA | Tagged , , , , , , , , , , , , , , , ,

No reasonable fact finder would have found him guilty

At long last a court has taken seriously Jeffrey Wogenstahl’s claim that his trial was unfair!* The United States Court of Appeal for the Sixth Circuit has sent Jeff’s case back to the district court. The focus of the district court’s deliberation will be the State’s suppression of material in the original police file and its inaccurate statements misrepresenting hair analysis.

The Sixth Circuit Court ruling notes that the evidence suppressed or distorted by the State was impeaching. And the majority judges’ statement outlines the extent to which the State’s deception harmed Jeff at his trial:
“[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.”

One of the three Sixth Circuit judges dissented without fuller discussion.

Nonetheless, nearly 24 years after his trial, Jeff has finally heard a court declare “no reasonable factfinder would have found him guilty.” And for the time being that is enough. Now is a moment to savor.

*See In Re: Jeffrey Wogenstahl. 18-3287. 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. United States Court of Appeal for the Sixth Circuit. September 4, 2018.
Posted in capital punishment, criminal justice, death penalty, Jeffrey Wogenstahl, Ohio, USA, wrongful conviction | Tagged , , , , , , , , , , , , , , , , , ,

Amber Garrett: Sold for Fifteen Hundred Dollars?

The prosecutors at Jeffrey Wogenstahl’s trial suppressed reports suggesting that Amber Garrett’s mother, Peggy, sold Amber for fifteen hundred dollars to pay off drug debts.[i]

Peggy Garrett’s drug selling and use were known to Jeff’s prosecutors, but they failed to pass this information on to the defense. Prosecutors withheld Indiana police reports showing that in 1982 Peggy had been convicted of selling 5 pills of Methaqualone on one occasion and 6 tablets of LSD on another.[ii] The reports impeached her trial testimony that her conviction was for selling merely “a couple of pills”.

The prosecutors likewise failed to produce police notes indicating that Peggy was seen “doing Coke” in the early hours of the day when Amber was reported missing,[iii] and that Peggy was heavily in debt to her drug suppliers.[iv]

Astonishingly, police records were also suppressed that linked Peggy directly to Amber’s disappearance. One person told police that Peggy was at the Waffle House crying, and saying she had really “fucked up” because she had sold Amber for fifteen hundred dollars.[v] Another individual stated in a verbal and written statement that a waitress told him Peggy was at the Waffle House with no money on the day before Amber disappeared, but that two days later she returned, claiming to have fifteen hundred dollars in her purse.[vi]

A third suppressed police record showed that several people overheard Peggy saying at the inquest:
“He said that he wasn’t going to beat her that bad.”[vii]

It is inconceivable that these extensive, pertinent records could have been considered irrelevant to Jeff’s case. Indeed, one juror told an investigator in 2015 that she “thought the victim’s mother was definitely involved and that she’d probably sold Amber for drugs or money in the past.” She stated that “other jurors felt the same way and wanted the mother charged.” She believed that “the mother and brother had probably gotten their story together to cover up that the mother was drunk.”[viii]

It is clear that if all this suppressed evidence had been available to the jury, the outcome of Jeff’s trial could have been different. It is clear that Jeff deserves a new trial.

[i] Information for this post is taken from: State of Ohio, Plaintiff-Appellee, vs. Jeffrey Wogenstahl, Defendant-Appellant.  Case No. 2016-0423. Appellant Jeffrey Wogenstahl’s Motion to Remand Case to the Trial Court, filed in the Supreme Court of Ohio, October 7, 2016; pages 21 – 23, page 41 and pages 52 – 53. 
[ii] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 1 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, pages 110 to 120 (Exhibit 25).
[iii] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 1 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 108 (Exhibit 23).
[iv] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, pages 49 – 51 (Exhibits 51, 52 and 53).
[v] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 54 (Exhibit 56).
[vi] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 55 (Exhibit 57).
[vii] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 56 (Exhibit 58).
[viii] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 38 (Exhibit 43).

 

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Fundamental Flaws

We are pleased to report that Ohio Governor John Kasich has commuted the death sentence of Raymond Tibbetts to life in prison without the possibility of parole. Citing “fundamental flaws” at the sentencing stage of Tibbetts’ trial, the Governor explained:
“[T]he defense’s failure to present sufficient mitigating evidence, coupled with an inaccurate description of Tibbetts’ childhood by the prosecution, essentially prevented the jury from making an informed decision about whether Tibbetts deserved the death sentence.”

Ross Geiger, a juror at Tibbetts’ trial, had discovered this breakdown of justice by chance, and alerted Governor Kasich to it. The Ohio Parole Board then played down Geiger’s concerns, recommending that Tibbetts’ death sentence remained appropriate. Fortunately, the Governor chose to overrule the Board’s recommendation.

Sadly, the three men who have been executed in Ohio since July 2017* were similarly disadvantaged at the mitigation phase of their trials, but no juror raised concerns about their sentencing.

In Jeffrey Wogenstahl’s case no fewer than three jurors have stated that if significant evidence had not been withheld by the prosecution, they might have made different decisions at the guilt phase of his trial. Thus if the State of Ohio had not grossly violated Jeff’s constitutional rights there is a good chance that he would have been found innocent.

Jeff has waited too long for justice. It is time for the fundamental flaws in his case to be exposed.

*Ronald Phillips, Gary Otte and Robert Van Hook
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A Time of Elevated Torture

Robert Van Hook has been on Ohio’s death row longer than Jeffrey Wogenstahl. The state plans to kill Van Hook on Wednesday, July 18. He has extended family and friends who will mourn his death; they are the unintended victims of Van Hook’s death sentence.

The period leading up to and following Van Hook’s scheduled killing is also a time of elevated psychological torture for all Ohio death row inmates.

According to a certified psychiatrist and clinical psychologist, Van Hook meets the criteria for post-traumatic stress disorder, borderline personality disorder and substance abuse disorder, all of which stem from a chaotic and unstable upbringing that included sexual abuse. Together, post-traumatic stress disorder and borderline personality disorder constitute a major disorder that equates with disease.

The seriousness of Van Hook’s disorders was not made clear at his trial. Indeed, his attorneys had only three and a half months from the time of his arrest until the trial; this was insufficient for the necessary investigation and development of mitigation evidence. Courts have been divided as to whether Van Hook’s death sentence should stand: one judge blamed the Hamilton County trial court as deficient for not exploring all mitigating factors.

Governor Kasich has rejected Van Hook’s appeal for clemency. OTSE (Ohioans to Stop Executions) asks that we request the Governor to stay the scheduled execution* until the reforms made by the Ohio Supreme Court Task Force on the Administration of Ohio’s Death Penalty are addressed. These reforms would exclude from the death penalty defendants who suffer from serious mental illness. 

We urge you to act on OTSE’s plea.

*The Governor can be phoned at 855-782-6925, or emailed via his website.

Update: Employees of the State of Ohio killed Robert Van Hook on July 18, 2018.

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