“The Real Killer” Podcast

Jeffrey Wogenstahl’s case has been brought to the attention of a wider audience through a podcast, Episode 7 of “The Real Killer”. The episode’s title, “A Caricature, a Travesty, an Obscenity”, refers to the perversion of justice caused by prosecutorial misconduct in the case of Keith LaMar, another death row inmate who, like Jeff, was tried by prosecutors from Hamilton County, Ohio, in the 1990s.[i]

In the course of the episode we hear from one of Jeff’s attorneys, Kim Rigby, about the prosecutorial misconduct that was also rife in Jeff’s case. Kim explains that the First District Court of Appeals in Ohio was so concerned that it demanded an independent review of the prosecutors’ actions in withholding from the defense Eric Horn’s drug trafficking conviction.[ii] Jeff’s trial prosecutors were Joseph Deters (now Justice Joseph T. Deters of the Ohio Supreme Court), Mark Piepmeier and Rick Gibson.

Kim then describes how later even more evidence of prosecutorial misconduct was revealed, when a change in the Ohio public records law allowed her team to access the Harrison Police Department records on Jeff’s case: they found a “treasure trove of police reports and tips that were previously unknown to the defense”
The podcast touches on the case of a Hamilton County death row exoneree, Derrick Jamison;[iii] this sheds light on how so much evidence came to be concealed. Derrick Jamison’s prosecutor, Mark Piepmeier (also one of Jeff’s prosecutors) has testified that it was routine practice at the time of Jamison’s trial in 1985 for Hamilton County prosecutors to require the police to supply them only with what they called a ‘homicide book’ for a murder case. Police could decide what went into a homicide book; if exculpatory evidence was omitted from it, prosecutors were ignorant of it, so could not pass it on to the defense.

An earlier contributor, and former prosecutor, confirms that even during the 1990s “you try your case without providing the defense much evidence at all – just the bare basics”. He describes this practice as ‘outrageous’.

As Kim points out, even if Jeff’s prosecutors were unaware of what remained in his police file, they should have known about it and turned it over to the defense. But, Kim concludes,
“Frankly, the prosecutors should be seeking justice, not just convictions.”

Jamison is sure that if his attorneys had not uncovered the 35 pieces of exculpatory evidence that led to his exoneration, he would now be “in the cemetery”. Despite suffering 20 years in the bleak surroundings of death row and facing execution 7 times, he has received only $75 from the State of Ohio.

The podcast ends with good news about Elwood Jones,[iv] a death row inmate convicted in Hamilton County in 1996, who also suffered from prosecutors’ failure to pass exculpatory evidence to his defense. In December, 2022, Jones was allowed to leave prison to await a new trial. How wonderful the words of Hamilton County Judge Wende Cross must have sounded to him as she announced her decision!…
“It is clear that the failure to disclose the existence of relevant exculpatory and impeaching evidence prior to trial deprived Elwood Jones of a fair trial.  The Sixth Amendment requires a new trial as the only appropriate remedy. Accordingly, Elwood Jones’ Motion for New Trial is hereby granted.”

We hope Jeff will soon also hear words like these. A new trial with all the evidence available is, for him too, the only appropriate remedy.

This first paragraph of this post was corrected on April 27, 2023. Although the special prosecutors assigned to Keith LaMar’s case were from Hamilton County, his trial took place in Lawrence County, not Hamilton County as originally stated.

[i] For more about Keith LaMar, see New York Times, Feb 11, 2022: “Jazz Freed Keith LaMar’s Soul. Can It Help Him Get Off Death Row?”. Laura Zornosa. 

[ii] See: State of Ohio, Plaintiff-Appellee, vs. Jeffrey A. Wogenstahl, Defendant-Appellant. Appeal No. C-030945. 970 N.E.2d 447 (2004) 2004-Ohio-5994. Opinion, Court of Appeals of Ohio, First Appellate District, Hamilton County. November 12, 2004. Opinion, Judge Mark Painter: [*P2] : “… the prosecutors’ conduct needs review by other authorities.”

[iii] For more about Derrick Jamison see WCPO Cinncinnati, March 21, 2023: “He was 90 minutes away from death when he got another chance at life. He’s using it to fight the death penalty”. Jessica Hart.  

[iv] For more about Elwood Jones see USA Today, March 14, 2023: “’I was a thief. I’m not a murderer.’ After nearly 30 years on death row, a retrial”. Amber Hunt.

Posted in capital punishment, death penalty, Hamilton County, Hamilton County Prosecutor's office, Jeffrey Wogenstahl, Ohio, prodecutorial misconduct, suppressed evidence, USA, wrongful convictions | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

Justice Joseph T. Deters

Today, March 17, 2023, we remember the disastrous day, 30 years ago, when Jeffrey Wogenstahl entered death row. On March 17, 1993, Jeff received his sentence of death; his removal to death row followed.

Throughout his long incarceration in prisons at Lucasville, Mansfield and Chillicothe, Jeff has consistently and clearly maintained his innocence. When first locked into a death row cell he was a young man; he is now 62. The Ohio criminal justice system has seized and secured three decades of his life.

While Jeff continues to sit on death row, the lead prosecutor from his case now sits at sessions of the Supreme Court of Ohio. Hamilton County Prosecutor Joe Deters was selected as judge by Ohio Governor Mike DeWine in a controversial move at the end of last year, taking up his post in January. The contrast in fortune between Jeff and his prosecutor is stark and disturbing.

A federal judge, Justice Karen Moore, has outlined[1] the extent of the misconduct that Justice Deters presided over while prosecuting Jeff’s case:
“I write separately to emphasize the breadth and depth of prosecutorial misconduct that occurred in this case…
The prosecution withheld Brady evidence,
seemingly suborned perjury,
improperly vouched for the credibility of state witnesses, Wheeler and Deedrick, improperly denigrated defense counsel,
improperly inflamed the jury with speculative commentary about the victim,
improperly confronted and commented personally on [Jeff],
and improperly observed that the defense had failed to call witnesses.
Moreover,… the prosecutor’s penalty-phase closing argument was riddled with improper comments regarding the nature and circumstances of the offense…

The prosecutorial misconduct here was plain and plentiful.”

Police testimony confirms[2] that Prosecutor Deters was given potentially exculpatory information during a Saturday phone call to his home, and responded with something like “Oh shit!” Yet Deters and his team claimed to have no memory of this.

Prosecutor Deters’ office fiercely opposed[3] requests for Jeff to view police records from his case. Only a legal decision overruled Deters and secured for Jeff the vast amounts of potentially exculpatory evidence contained within the suppressed records. A federal court has confirmed[4] the significance of this evidence, allowing Jeff to pursue his claim of innocence.

Despite his wide-ranging misconduct and evidence suppression in a death penalty case, Prosecutor Deters has now become Justice Joseph T. Deters. While Justice Deters is free to travel freely, meet friends and family, and choose from a vast range of leisure activities, Jeff sits and stares at the same four walls that he sees every day, facing the start of a fourth decade on death row.  

How can this be right?

[1] State v. Wogenstahl. 07-4285. United States Court of Appeals for the Sixth Circuit. February 2012. Pages 48-49 (Moore, J., concurring). uscourts. 

[2] State v. Wogenstahl. B-926287. Defendant Wogenstahl’s Motion for leave to file a Motion for New Trial, based on newly discovered evidence from the U.S. Department of Justice, filed in the Court of Common Pleas, Hamilton County, Criminal Division. Filed January 28, 2014. Pages 10 – 11. 

[3] State of Ohio ex. rel. Office of the Ohio Public Defender v. Harrison Police Department and Charles Lindsey, 2016-0410, Complaint for Writ of Mandamus, filed March 18, 2016. Exhibit 10 (page 41 of pdf).

[4] In Re: Jeffrey Wogenstahl, 18-3287. United States Court of Appeals for the Sixth Circuit. September 4, 2018. Order. See especially page 8.

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Half a Lifetime Ago

Today, November 23 2022, is Jeff’s birthday: he is 62 years old. Soon after his 31st birthday – half his lifetime ago – someone murdered a child that he knew; he has never wanted to celebrate his birthday since.

Birthdays are also sad reminders of time passing. Next spring will mark 30 years since Jeff first entered a tiny cell on Ohio’s death row, convicted of a murder that he insists he did not commit.

Jeff has been waiting for over 4 years for a review of his case by his trial court, after an Appeals Court decided* that
“[Jeff] can establish by clear and convincing evidence that no reasonable [juror] would have found him guilty.”
In June this year he also filed a new motion† in the trial court, requesting a new trial. We trust this court – the Hamilton Court of Common Pleas – will respond to him soon.

We wish Jeff a peaceful birthday.

*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.

†State of Ohio, Plaintiff, vs. Jeffrey A. Wogenstahl, Defendant. B 926287 Defendant Jeffrey A. Wogenstahl’s Motion for New Trial, Filed in the Court of Common Pleas Hamilton County, Ohio. Filed June 24, 2022. (Office of the Ohio Assistant Public Defender). Print.

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Thirty Long Years

Today, November 24, 2021, marks thirty long years since the very sad time when 10 year-old Amber Garrett was reported missing from her home.

As well as being saddened to hear that a child he knew had been murdered, Jeffrey Wogenstahl was soon shocked to learn that he was the suspect.

During the thirty long years that followed, Jeff has battled to demonstrate his innocence. His incarceration has robbed him of nearly three decades of the prime of his life. This year’s anniversary of Amber’s disappearance is a stark reminder of the years that have been lost to him.

The obstacles that have faced Jeff have been enormous. Despite a federal judge highlighting  prosecutorial misconduct at the time of his trial that was ‘plain and plentiful’ and ‘wholly improper’; despite a Sixth Circuit Court noting that “the State suppressed the material in the original police file and made inaccurate statements misrepresenting the hair analysis”… despite all this, Jeff continues to spend his days on Ohio’s death row.

If the police had conducted a thorough murder investigation, they would have taken additional witness statements, for instance, about Amber’s mother behaving oddly around the time of Amber’s disappearance. More witness statements could have provided them with more insights.

For example, two witnesses, whose attempts to contact police in 1991 failed, have this year provided a description[i] of the man they saw talking to Amber’s mother in the early hours of November 24, 1991:
“heavy with a black leather jacket and blue jeans… black short hair and thick black-rimmed glasses… thin moustache… tall, probably at least six feet tall”.
This description could have alerted police to the similarity with a description given by a trial witness, Brian Noel, of a man he saw not long afterwards, near to where Amber’s body was eventually found:
“six foot, 180 – 200 pounds… a mustache and some facial hair… dark-colored jacket, bluejeans”.
Neither description fitted Jeff.

In similar vein, a crime scene expert and former police officer has described the police investigation as “[very] deficient in its thoroughness and adherence to established procedures of professional competence”.

But still Jeff must remain on death row.

Our thoughts are with him on this difficult anniversary.

[i] State of Ohio vs Jeffrey Wogenstahl. B926287. Petitioner Wogenstahl’s Second Amendment to his Successive Post-Conviction Petition, filed in the Court of Common Pleas Hamilton County, Ohio. Filed July 27, 2021. (Office of the Public Defender). Print.

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Peggy Garrett Acting Weird

Two witnesses have added their testimony to the mountain of evidence that calls Jeffrey Wogenstahl’s murder conviction into question.[i] Donald and Melissa Ellis described Peggy Garrett as “acting weird” in the company of a tall man in the Waffle House in the early hours of Sunday, November 24, 1991. As Donald recalled,
“Peggy and the man were acting weird. Peggy was running her fingers through her hair saying ‘Oh my god, oh my god. Fuck. What are we gonna do? Fuck. Fuck. Fuck.’ She was saying this over and over. Peggy had tears in her eyes. The man that she was with kept telling her ‘You gotta calm down, you gotta calm down.’”

Donald and Melissa are adamant that the man with Peggy that night did not fit Jeff’s description.

Both witnesses also recall their attempts to report the incident to the police, but no police officers followed these up.[ii]

Donald and Melissa’s affidavits echo other accounts of Peggy behaving oddly around the time of Amber’s disappearance; the police notes recording these events were suppressed by the prosecution until 2016. One note refers to Peggy crying in the Waffle House, saying she had really “fucked up” because she had sold Amber for fifteen hundred dollars.

Both Donald and Melissa state that they believe Jeff to be innocent. Donald’s account concludes,
“Based on what I saw that evening, I believe that Mr Wogenstahl is innocent of killing Amber. I also believe that Peggy Garrett absolutely had something to do with her daughter’s death.”

The new affidavits add significantly to what the Sixth Circuit Court has already called “voluminous evidence casting considerable doubt on the credibility of Amber Garrett’s mother and brother and suggesting that they were implicated in her death”. They also underline the police’s failure to conduct a thorough investigation in this case.

We trust that the Hamilton County Court will swiftly reiterate the Sixth Circuit Court’s opinion that if all the evidence had been presented at the trial, no reasonable juror would have found Jeff guilty. Jeff deserves a new trial; and he deserves it soon.

[i] State of Ohio vs Jeffrey Wogenstahl. B926287. Petitioner Wogenstahl’s Second Amendment to his Successive Post-Conviction Petition, filed in the Court of Common Pleas Hamilton County, Ohio. Filed July 27, 2021. (Office of the Ohio Public Defender).

[ii] *One attempt is recorded in the police notes that were withheld until 2016. See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume I of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand Case to the Trial Court, filed October 7 2016, page 109 (Exhibit 24).

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Optimism in Ohio

The last few months have seen Ohio edging ever closer to repealing the death penalty. In December Governor DeWine remarked,
 “Lethal injection appears to us to be impossible from a practical point of view today.” Executions had then been on hold for nearly 2 years, after a judge labelled Ohio’s lethal injection protocol “cruel and unusual punishment”; and drug companies effectively halted the flow of drugs for executions.

January saw the impact of Ohio’s death penalty becoming more limited, with the signing into law of House Bill 136. This prohibits imposing or carrying out the death penalty on people whose severe mental illness at the time of the offense significantly impaired their ability to “appreciate the nature, consequences or wrongfulness” of their conduct. Mental health and criminal justice reform advocates welcomed the move, calling it “an important step forward in recognizing mental illness and breaking through years of stigma.”

Also in January we learnt from a poll that a majority of Ohioans – nearly 60% – now support replacing the death penalty with life in prison without the possibility of parole. The poll results will hearten the bipartisan coalition of politicians who are now calling for capital punishment in Ohio to be repealed.

The announcement of the politicians’ campaign coincided with the news that in Ohio there is a shockingly high rate of wrongful convictions compared with even the high rate in the USA as a whole (in Ohio there has been one exoneration for every five executions, as opposed to one exoneration for every eight executions in the country as a whole).

Our outrage at the statistics can only be intensified by the near certainty that innocent people must have been executed; indeed, the US constitution does not forbid this. And we know there are others, like Jeffrey Wogenstahl, on death row now, despite having strong claims of innocence.

The consistent direction of travel towards abolition should give us all hope. Let us hope that more politicians will heed public opinion and vote to end Ohio’s death penalty. That vote cannot come too soon.

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Jeff’s 60th Birthday

Today, November 23, 2020, Jeffrey Wogenstahl turns 60. He never celebrates his birthday: it’s too harsh a reminder that soon after his 31st birthday, someone murdered a little girl that he knew. Amber Garrett’s body was found in Bright, Indiana, clothed in her red Sunday church dress.

Turning 60 is especially bitter for Jeff: he is reminded that he has spent the years between 31 and 60 fighting to get a judge to recognise his innocence. And for most of that time he‘s been incarcerated, and living under the threat of death.

Finally, two years ago, the United States Court of Appeal for the Sixth Circuit noted the prosecutors’ extensive misconduct at Jeff’s trial (suppression of material and misrepresentation of hair analysis). The judges concluded that the original court should revisit the case, in light of the “clear and convincing evidence that no reasonable factfinder would have found [Jeff] guilty.”

The Hamilton County Common Pleas Court, where Jeff was tried, and where his case has now returned, will soon have a new judge. Judge Patrick Dinkelacker, Jeff’s trial judge, was voted out earlier this month, to be replaced by Judge Christian Jenkins. We hope that Judge Jenkins’s fresh appraisal of Jeff’s case will allow him to see more clearly the many anomalies within it.

We wish Jeffrey Wogenstahl a peaceful 60th birthday.

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2020 US Election

The death penalty is not mentioned in the President Trump’s vague bullet points that replace the usual platform for the Republican Party in an election year. However, the restoration of federal executions this year confirms the party’s support for capital punishment.

The lethal injections that have so far killed seven federal inmates use secretly acquired drugs, which are not approved for use in executions. Victims’ families have been sidelined, leading sometimes to their retraumatization; defense teams have been kept insufficiently informed; a Native American prohibition against the death penalty was ignored; and the preparation for a federal execution has led to a prison outbreak of Covid-19.

On the other hand, the Democratic Party is clear in its abolitionist stance:  “Democrats continue to support abolishing the death penalty.” This position was originally adopted in 2016:
“We will abolish the death penalty, which has proven to be a cruel and unusual form of punishment. It has no place in the United States of America. The application of the death penalty is arbitrary and unjust. The cost to taxpayers far exceeds those of life imprisonment. It does not deter crime. And, exonerations show a dangerous lack of reliability for what is an irreversible punishment.”

If you oppose the death penalty, as Jeffrey Wogenstahl has every reason to, it is clear which way you should vote.*

*The Libertarian Party and Green Party also oppose the death penalty; the Republican Party and Constitution Party support it.

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Covid-19 on Death Row

Covid-19 has come to Ohio’s death row: 23 death row inmates have tested positive for the virus. None of the cases is in the block where Jeffrey Wogenstahl is incarcerated.

The inmates who have contracted the virus are in isolation. Of the 23 men with Covid-19, 10 are asymptomatic.

On death row, masks are worn by staff, and are available to inmates. Hand sanitizer and soap are also available.

Ohio’s prison system has been hard hit by the virus, with over 5,200 prisoners who have tested positive for Covid-19 as of July 30.

Our thoughts are with Jeff at this worrying time.

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Excessive and Inhuman

Jeffrey Wogenstahl has been on death row for an astonishing 27 years. He’s not alone in suffering such a long period of incarceration: of the 138 inmates on Ohio’s death row, 71 have been imprisoned for 20 years or more; and of those, 41, including Jeff himself, have been there for over a quarter of a century.

Recent rulings by the Inter-American Commission on Human Rights (IACHR) have concluded that such protracted periods of incarceration on death row violate the American Declaration of Human Rights.

The commission has pronounced that spending 20 years on death row, under the continuing threat of execution, is “excessive and inhuman”, and greatly exceeds the length of time that international and domestic courts have characterized as cruel, inhumane and degrading treatment.

The Death Penalty Information Center (DPIC) has found that in the USA as a whole, more than half of death row prisoners (at least 1,300 inmates) have been incarcerated for 20 years or longer.  Such extensive breaches of human rights are shocking.

We commend DPIC for shining a light onto this shameful aspect of capital punishment in the USA. It adds to the many reasons for opposing the death penalty. We should not kill people to show that killing people is wrong. The death penalty should end.

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