What the State Suppressed about Justin Horn*

According to Peggy Garrett’s testimony, Justin Horn (Peggy’s son) was away from their apartment for the weekend when her daughter, Amber, went missing. Peggy stated that Justin left on the Friday afternoon, and did not return until about 3 pm on the Sunday.

But the state suppressed documents that impeach Peggy’s testimony.

Police records, disclosed only in 2016, include a statement made by Justin, in which he claims he was in the family’s apartment both on the Saturday and on the Sunday of that weekend. He states that on Saturday he went out at about 12 noon, and returned that evening for a short time, before leaving again; he returned at about 8 am on Sunday, woke Peggy and spoke to her, and left again at about 11 am.†

Another police document that was withheld includes this sentence:
“Justin came home about 4:45 a.m. and Erick [sic] left about 0500.”‡

If Jeffrey Wogenstahl’s attorney had been aware of these documents he could have investigated Justin Horn, as well as his friend who, according to Justin, was with him in the apartment on the Sunday morning. The defense could also have cross-examined the detectives as to whether they questioned Justin further about his whereabouts on the evening/ early morning of that weekend.

Two more suppressed documents detail an incident the previous month, when a young girl matching the description of Amber was seen being chased by two boys who matched the description of her brothers, Eric and Justin Horn; she appeared terrified of them. If this information had been available to the defense counsel, he could have questioned Justin about this as well.§  

The withholding of so much significant information about Justin Horn, as well as about other aspects of Jeff’s case (for instance, see here, here, here and here), weakened the defense case at trial and resulted in serious gaps in what the jury heard. Jeff’s trial was far from fair. We trust that a court will soon accept this. Jeff should have a new trial.

*Information from this post is taken from State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 23 and pages 70 – 71.
†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 87 (Exhibit 14).
‡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 125 (Exhibit 27).
§See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendixto Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 43 (Exhibit 46) and page 44 (Exhibit 47).
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Posted in capital punishment, criminal justice, death penalty, Jeff Wogenstahl, Jeffrey Wogenstahl, Justin Horn, official misconduct, Ohio, USA, wrongful conviction | Tagged , , , , , , , , , , , , , , , , , ,

Shifting Opinions

Twenty-three years ago, Jeffrey Wogenstahl was immersed in reading law books and writing his own appeal, because he felt that his legal representation at trial had been inadequate.

There have been many changes since then. One that should gladden Jeff is the big decline in American public support for the death penalty. Gallup polls indicate that from an all-time high of 80% support in 1994, the level of approval has been declining, and was only 55% last month.

Using different questions, a Pew Research Center poll last year determined that even fewer of the US public –49% – support the death penalty.

Gallup’s report on last month’s poll concludes with “Implications”. And of those, the following is particularly relevant to Ohio:
Thirty-one states, primarily in Republican-leaning regions, allow the death penalty. The likelihood of many of those states changing their laws hinges on whether rank-and-file Republican support for capital punishment remains high or declines in the future.”

We can only hope that rank-and-file Republican voters in Ohio will gain in understanding about the unfairnessbrutality and excessive cost of the death penalty, and demand an end to it. For Jeff and for us, that will be a day to celebrate!

Posted in capital punishment, criminal justice, death penalty, Gallup polls, Jeffrey Wogenstahl, Ohio, public opinion, USA | Tagged , , , , , , , , , , , , ,

The Pursuit of Torture

On Wednesday this week, Jeffrey Wogenstahl’s fellow inmate, Alva Campbell, is set to die.

As a child, Alva Campbell was forced by his father to play games of torture. One was the electrical current game: all the children held hands with their father while he stuck his finger in an electrical socket and one of the children held a faucet to act as a ground; all felt the shock of the electricity flowing through them.

Constantly subjected to this and other abuse, torture would have been internalized as normal by Campbell. The state attempted to support him in later childhood, but by placing him in “dysfunctional and often dangerous environments” it instead added to his emotional instability.

Tragically, Campbell moved into adulthood still broken by his childhood experience of violence, danger, instability and torture. And in this broken condition he committed murder.[i]

On Wednesday, staff working for the state of Ohio will attempt to kill Campbell by injecting him with three drugs. His frailty could cause complications: during a rehearsal staff could not find a vein suitable for inserting an IV.

Even more problematic are two of the drugs, pancuronium bromide and potassium chloride: Ohio had promised to stop using them for lethal injections, but then reinstated them, deftly avoiding litigation regarding their constitutionality. The function of the remaining drug, midazolam, is to mask the extreme pain caused by the other two drugs; yet credible experts have testified that midazolam is unsuitable for this purpose, and experience in other states confirms its inadequacy.[ii]

To minimize his potential torture, Campbell has asked to be killed by firing squad instead; his request has been refused.

Soon Campbell’s life will have come full circle. Torture awaited him when he was born; torture accompanied him throughout childhood and beyond. And on Wednesday torture inflicted by the state will pursue him to his final moment of life. 

It is time for “a civil, thoughtful conversation among the American people, legislatures, and the courts—on the meaning of the [Eighth] Amendment’s prohibition on cruel and unusual punishment.[iii]

Update: The killing of Alva Campbell was delayed after officials were unable to locate a suitable vein. He was “poked and prodded” for nearly two hours before the decison to delay was made. He has been given a new execution date of June 5, 2019.

[i] Minutes of the Parole Board meeting, Re Alva Campbell Jr., CCI #A354-963 on October 12, 2017, 
[ii] Dissent, Karen Nelson Moore, United States Court of Appeal for the Sixth Circuit, In Re: Ohio Execution Protocol, No 17-3076, June 28 2017. For instance:
There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling [immense]  pain.” (page 16)
“[T]here no question that the State has publicly taken inconsistent positions, concealed facts from Plaintiffs to gain strategic advantage, and attempted at every turn to deny Plaintiffs an opportunity to try their constitutional claims… The majority has ensured that the State will be rewarded [for such behaviour]”. (page 40) 
[iii] Dissent, Jane B. Stranch, United States Court of Appeal for the Sixth Circuit, In Re: Ohio Execution Protocol, No 17-3076, June 28 2017, page 42.
Posted in Alva Campbell, capital punishment, criminal justice, death penalty, executions, Jeffrey Wogenstahl, lethal-injection drugs, lethal-injection protocol, midazolam, Ohio, torture, USA | Tagged , , , , , , , , , , , , , , , , , , ,

An Unseemly Spectacle

Alva Campbell is next in line to be executed by the State of Ohio.*

For the last month of his life, Campbell will have been intensely monitored: two corrections officers watch him round the clock to ensure there is no suicide. The state is determined to do the killing itself.

In Campbell’s case the monitoring creates a particularly gruesome display for those, like Jeffrey Wogenstahl, who share death row with him. Campbell is frail: he has had portions of his lung, thyroid, prostate, colon, and intestine removed and has a colostomy bag; he has problems related to his heart (and to cancer, pneumonia, sarcoidosis and MRSA); he is frequently short of breath; and he uses a walking frame. He moves slowly: if he leaves his cell, he and his two watchers form a slow, macabre procession.

One may guess that his poor health is linked to the horrendous abuse and systematic torture that he suffered throughout childhood. A sociologist with 30 years’ involvement in capital cases refers to Campbell’s childhood home as “a place of total chaos, turmoil, pain, and deprivation” and adds that he “never witnessed an upbringing as bad as Campbell’s.”  A forensic psychologist explains:
“The violence that Campbell has exhibited as an adult is… a barometer of the amount of trauma he experienced growing up.”

At his trial, however, Campbell’s lawyer neglected to make it plain that his client’s detrimental experiences continued after he left the family home at age 10; worse still, the prosecution claimed falsely that Campbell was eventually given the support needed to turn his life round. Campbell was failed at trial, just as he was failed during the critical years of his childhood.

Campbell’s current lawyer believes that executing this terminally ill man when he is unable to walk or breathe without assistance would result in an “unseemly spectacle.”

Governor Kasich has yet to announce whether he will grant clemency and stay Campbell’s imminent execution. But for the inmates on death row, the unseemly spectacle of his grotesque death watch has already begun.

To ask Ohio Governor, John Kasich, not to execute Alva Campbell, please visit Ohioans to Stop Executions.

*Alva Campbell is scheduled to be executed on November 15, 2017.
Information for this post is taken from the minutes of the Parole Board meeting, Re Alva Campbell Jr., CCI #A354-963, on October 12, 2017, and from US News (AP), October 20, 2017: Condemned Killer’s Attorney Disappointed in Denial of Mercy.
Posted in Alva Campbell, capital punishment, Chillicothe Correctional Institution, criminal justice, death penalty, Jeffrey Wogenstahl, mitigating factors, mitigation, Ohio, torture, USA | Tagged , , , , , , , , , , , , , , , ,

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 , , , , , , , , , , , , , , , , , ,