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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Jurisdiction Ruling: a Reassuring Footnote

A Sixth Circuit court has denied[i] Jeffrey Wogenstahl the opportunity to make a separate appeal to establish whether Ohio had jurisdiction to try him.

Jeff wanted to appeal an Ohio Supreme Court’s ruling[ii] from 2017. In that ruling the majority judges decided that “it cannot be determined whether Amber was murdered in Ohio or Indiana” so “the offense is conclusively presumed to have taken place in Ohio” [emphasis added]. It was this presumption that resulted in the ruling that Ohio had jurisdiction to conduct Jeff’s trial.*

Jeff argued that instead of presuming that it had jurisdiction, Ohio should have been required to prove this.[iii]

He further explained that the Ohio Supreme Court’s 2017 ruling constituted a new state court direct appeal judgment, warranting further appeals; and that there is no time barrier to raising such questions of jurisdiction.[iv]

The Sixth Circuit court disagrees, thus preventing Jeff from pursuing his jurisdiction arguments separately.

A footnote to the ruling is reassuring. It indicates that this decision will not impact the issue of jurisdiction referenced in Jeff’s main ongoing litigation [his claim of innocence]. †

So Jeff can continue this fight. We wish him the greatest success. He deserves no less.

*Chef Justice O’Connor wrote a dissent, declaring,
“[F]ailing to ensure that this state has jurisdiction in such a case is a tremendous error and is a disservice to the citizens of Ohio and the victims of violent crime… [T]he state of Ohio had no jurisdiction to try Wogenstahl for murder. His aggravated-murder conviction is void and should be vacated, and Wogenstahl should be tried in Indiana for the murder.”
†The footnote reads: 1 That said, we acknowledge that Wogenstahl has raised certain claims related to subject-matter jurisdiction in state post-conviction court, where Wogenstahl is now proceeding in light of the successive petition we authorized last year. See App. R. 9 at 9 n.2 (noting “claims Fifty-Two through Fifty-Five” of Wogenstahl’s “[p]ending . . . second Post-conviction petition before the Honorable Judge Dinkelacker of the Hamilton County Court of Common Pleas”); see also 17-cv-298, R.36-2 (Second State Post-Conviction Petition) (Page ID #1675–86). Today’s ruling should in no way be taken as opining on the merits of those still-pending claims.”
[i] In re: Jeffrey Wogenstahl, Movant. No. 19-4024, Order. United States Court of Appeals for the Sixth Circuit, May 12, 2020.
[ii] Slip Opinion No. 2017 Ohio 6873, The State of Ohio, Appellee v. Wogenstahl, Appellant (No. 1995-0042—Submitted April 4, 2017—Decided July 25, 2017.) REOPENED APPEAL from the Court of Appeals for Hamilton County, No. C-930222.
[iii] State of Ohio, Plaintiff v. Jeffrey Wogenstahl, Defendant. Case No. 1995-0042, Defendant’s Motion to Reopen his Direct Appeal to Challenge the Constitutionality of Ohio Revised Code §2901.11(D) as Written in 1991. In the Supreme Court of Ohio, August 10, 2018.
[iv] In re: Jeffrey Wogenstahl, Movant. No. 19-4024, Reply to Warden’s Memorandum in Opposition to Wogenstahl’s Corrected Original Petition and Motion to Transfer Case to Federal District Court as Initial Habeas Petition. In the United States Court of Appeals for the Sixth Circuit, November 14, 2019.
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Will Ohio’s Death Penalty End?

Four times in the last decade Ohio’s Democrat Senator Nickie Antonio has sponsored a bill to abolish the death penalty in the state, without success.

This year feels different.

With executions halted because lethal injection drugs are unobtainable, pressure is building for lawmakers to find a solution that avoids the death penalty altogether.

Several Republicans are amongst those already supporting Senator Antonio’s bill. The national network known as Conservatives Concerned about the Death Penalty has spotted its opportunity: it is now targeting Ohio, explaining why the death penalty is incompatible with conservative views on religion, limiting taxpayer expense and restricting the power of government. And for the first time in its history the Columbus Dispatch, an important conservative-leaning Ohio newspaper, has called on lawmakers to end capital punishment in the state.

Others condemn the death penalty’s societal flaws. Senator Antonio herself cites its “disparities across economic and racial lines” and its failure to deter violent crime.” A further objection is the burden that weighs on prison staff when a prisoner is killed by the state. As Ohio’s Governor, Governor DeWine, has reminded us: “This is a tough, tough thing for the people who work at the Department of Corrections.” 

And always, as we know well from Jeffrey Wogenstahl’s case, there is the possibility of executing an innocent person.

This may not yet be the end of the road for capital punishment in Ohio – there will always be some opposition to change. But perhaps now enough voices are being raised for change to be considered. We hope those voices are heard.

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