Wogenstahl is actually innocent.

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.”
We agree.

* State of Ohio, Plaintiff-Respondent v. Jeffrey Wogenstahl, Defendant-Petitioner. B 926287. Petitioner Wogenstahl’s Amendment to his Successive Post-Conviction Petition. In the Court of Common Pleas Hamilton County, Ohio, May 17, 2019.
†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.
Advertisements
Posted in actual innocence, capital punishment, criminal justice, death penalty, Jeffrey Wogenstahl, Ohio, USA | Tagged , , , , , , , , , , , , , , , ,

The US Supreme Court’s Exceptional Barbarity

While we were still celebrating increased conservative opposition to the death penalty, the US Supreme Court last month shunted the American death penalty into new, shocking levels of brutality. The opinion is described by various legal analysts as “bloodthirsty”, “exceptionally barbarous” and “astonishing for its harshness and cruelty”.  

The court’s decision will allow Missouri to execute Russell Bucklew, a man with a rare medical condition, who will probably suffocate in his own blood when administered lethal drugs.

Astonishingly, the court rejects Bucklew’s proposed alternative – death by nitrogen hypoxia, a method allowed by Missouri – because he supplies no detailed specifications for the administration of the gas. As Garrett Epps ponders:
“[I]t is the state that wants to kill Bucklew, and gas is the state’s designated alternative. Is it really so unreasonable to ask the state to take some responsibility for making it work?”

Matt Ford sees the decision as part of a new pattern since the court’s recent shift to the political right: it is now “incredibly difficult for prisoners to challenge the method by which they die.”

But it goes even beyond this: by deftly and cunningly casting aside decades of Eighth Amendment legal precedent, the decision endangers the prohibition on executing juveniles, people with intellectual disability and even people who committed nonhomicidal crimes. As Matt Ford concludes:
“The Eighth Amendment now seems to say whatever the court’s conservative majority think it says—any interpretation will do, as long as it keeps execution chambers running.” 

The trend is chilling.

Posted in capital punishment, criminal justice, death penalty, executions, Jeffrey Wogenstahl, Supreme Court of the United States, USA | Tagged , , , , , , , , , , , , , , , , ,

Joe Deters’ Omissions

A recent article about the current state of Ohio’s death penalty touches on the case of Jeffrey Wogenstahl. It allows us to glimpse the reaction of the lead prosecutor at Jeff’s trial, Joe Deters, to Jeff’s ongoing claim of innocence.

Deters’ response is superficial.  He describes the claims as “total crap” and adds,
“I know for certain Jeffrey Wogenstahl killed Amber Garrett.”  

Really? Was he there?

Deters disregards the highly significant evidence that was concealed in police files until 2016. He fails to consider that this evidence, plus faulty hair analysis, caused the Sixth Circuit Court of Appeals to declare it likely that:
“[Jeff] can establish by clear and convincing evidence that no reasonable factfinder would have found him guilty.”

Deters certainly does not reveal that Jeff’s attorneys were forced to take legal action in order to secure the potentially exculpatory evidence from police files. And he does not divulge that at the trial his team of prosecutors committed misconduct described by a federal judge as ‘plain and plentiful’ and ‘wholly improper’.

It is thus hard to swallow Deters’ assertion that he seeks the death penalty only for the worst of the worst cases, where there is no question of guilt. In Jeff’s case several jurors, as well as the Sixth Circuit Court, have expressed doubts about the safety of his conviction; but for Deters this is of no consequence.

We are thankful that the Sixth Circuit Court has considered all the evidence. We agree with its conclusion,
“[Jeff] has shown that his claims “warrant a fuller exploration in the district court.”*

We trust the district court, unlike Joe Deters, will heed the Sixth Circuit Court’s decision and examine all the evidence that is now available. Only a complete evaluation can bring justice at last.

*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, Joe Deters, Ohio, USA | Tagged , , , , , , , , , , , , , , , ,

Conservatives Opposing the Death Penalty

A Conservative Political Action Conference (CPAC) seems an unlikely setting for action against the US death penalty: conservatives have hitherto been associated with an unthinking “tough on crime” philosophy that included support for capital punishment. Perhaps all this is set to change: this year’s (CPAC) included a stall where Conservative activists sought to persuade delegates of the “inefficiency, inequity and inaccuracy” of the death penalty.

Hannah Cox, National Manager of Conservatives Concerned About the Death Penalty, explains she was an “ardent supporter” of the death penalty until she actually researched it. She then discovered the problems:

-many innocent people being executed
-huge expense (reducing this could cause more executions of innocents)
higher rates of violent crime in regions that use the death penalty
not applied to the “worst of the worst” (imposed according to location of crime, race of victim, and competence of defendant’s attorney)

Cox believes her movement will impact and alter the conservatives’ debate about the death penalty:
“We can do better. As conservatives, we pride ourselves on limiting government, 
using our tax dollars efficiently, and protecting the sanctity of human life. 
The death penalty fails to meet any of those measurements. Expect the trend of 
Republican support for ending the death penalty to continue to grow.”

Jeffrey Wogenstahl’s death penalty case, with his strong claim of innocence, illustrates well the points made by Cox. We wish her success.

Posted in Conservatives Concerned about the Death Penalty, criminal justice, death penalty, Jeffrey Wogenstahl, Ohio, USA, wrongful convictions | Tagged , , , , , , , , , , , , , , , ,

Cruel and Unusual Punishment

There is very good news from Ohio – executions there have been halted by the new governor, Governor Mike DeWine! 

Initially Governor DeWine postponed the scheduled execution of Warren Keith Henness; later he stopped other scheduled executions indefinitely. The governor even sounded ambivalent about the death penalty itself:
“It is the law of the state of Ohio. I’m going to let it go at that at this point. We are seeing, clearly, some challenges that you all have reported in regard to carrying out the death penalty. I’m not going to go down that path any more today… I think there is a lot of things we know today that we have the benefit of seeing how it has played out since 1981.”

The freeze on executions has been precipitated by a federal judge’s ruling which included a damning appraisal of midazolam, the first drug in Ohio’s execution protocol. Judge Merz found that midazolam has no analgesic effect and causes the “waterboarding” effects of pulmonary edema. 

Governor DeWine has ordered a review of Ohio’s execution protocol and has declared:
“Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.”

It is likely that the review and the ensuing legal challenges will take some years.

Even though Jeffrey Wogenstahl no longer has a scheduled execution date, this announcement is a relief to him. As Ohio death row exoneree Derrick Jamison remembers it, living through the executions of the other men on death row is “like a dark cloud… over the State of Ohio… horrible”.

We hope that Governor DeWine will go further and highlight the harm that the death penalty does. We hope that on his watch capital punishment in Ohio will end.

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

Do they deserve to kill?

Warren Keith Henness is scheduled to be executed in Ohio on Wednesday, February 13, 2019. He claims innocence of the murder of which he was convicted, but is seeking only to have his death sentence commuted to incarceration, without death. 

Many of those who have known Hennes on Ohio’s death row – inmates and staff alike – have confirmed that he would contribute well to any prison system, with his remarkable skills in supporting other inmates and negotiating peaceful outcomes between them at times when tempers are frayed. He has no history of violence, either before or after his conviction.

The State’s theory in Henness’s case rested heavily on the testimony of two witnesses, one of whom was Henness’s wife. Both witnesses were drug addicts – unreliable and motivated to lie; both were readily impeachable. Fingerprints and blood samples from the crime scene did not match Henness. The State destroyed potentially exonerating evidence from that scene. A recent investigation concluded that crime-scene evidence was inconsistent with the State’s theory of the case.

Henness’s legal representation at trial was almost non-existent; the post-conviction petition filed on his behalf failed to address this. The crime of which Henness was convicted was not a so-called “worst-of-the-worst” murder for which Ohio permits the death penalty.

Despite the weight of evidence in his favor, the Ohio Adult Parole Authority has rejected Henness’s plea for clemency. His only remaining hope is that the new Ohio Governor, Gov. Mike DeWine, may recognize the disturbing flaws in his case and recommend clemency.

Bryan Stevenson’s observation comes to mind in Henness’s case:
“The death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, Do we deserve to kill?”* 

Do staff in Ohio really deserve to undergo the murderous task of killing the peace-loving Henness? Will they deserve the trauma that lies ahead of them as a result of that killing?

Of course not. If not for Henness, then for the potential killers, this execution should be stopped.†

*From Bryan Stevenson, Just Mercy: A Story of Justice and Redemption, Scribe Publications, 2015.  Page 313. Bryan Stevenson is the founder and executive director of the Equal Justice Initiative.

†Please sign the petition asking Governor DeWine to stop the execution of
Warren “Keith” Henness. 

Update: Governor DeWine has ordered a reprieve of execution for Warren Keith Henness until September 12, 2019, following increased concerns about the effects of one of the drugs scheduled to be used for the execution. Governor DeWine has also ordered a review of Ohio’s options for execution drugs.

Posted in capital punishment, death penalty, executions, Jeffrey Wogenstahl, Ohio, USA, Warren Keith Henness | Tagged , , , , , , , , , , , , , , , , , , ,

Scope for Pitfalls Ahead

2018 has brought Jeffrey Wogenstahl a huge breakthrough – a federal court decision that spelled out the travesty that was his trial. As Jeff knows only too well, however, there is scope for pitfalls ahead. If he needed any proof of that, the case of Anthony Apanovitch is a stark reminder.

Apanovitch was sentenced to death in Cuyahoga County Court, Ohio in 1985. He spent 30 years on death row for a crime which he always maintained he did not commit. On one occasion he suffered the huge stress of coming within days of execution.

In 2015 a Cuyahoga County judge decided that Apanovitch was entitled to a new trial for murder, following a DNA test that excluded him as the rapist in his case. The judge even agreed to set bond, with the result that Apanovitch was able to leave death row and go to live at home with his family while awaiting his new trial.

What must have been his shock and horror, then, to find himself being taken back to death row earlier this month? And how must his family members have felt to watch him being unceremoniously removed from them?

It was an Ohio Supreme Court’s ruling that caused the disruption: it stated that the trial court had lacked jurisdiction to consider his appeal. The case has been returned to the trial court for “further proceedings”.

Apanovitch spent a few days on death row before being taken to a county prison, to ponder his uncertain future.

Jeff’s case is now being considered by his trial court. And, despite the clear language in the federal court decision that sent it there, there could be many ups and downs ahead.

We wish Jeff a happy Christmas; and a 2019 which leads him, without setbacks, closer to getting the justice that he deserves.

Posted in Anthony Aponovitch, capital punishment, criminal justice, death penalty, DNA testing, Jeffrey Wogenstahl, Ohio, Ohio Supreme Court, USA, wrongful convictions | Tagged , , , , , , , , , , , , , , , , , ,