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.

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

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.


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