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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More Good News

A recent Death Penalty Information Center (DPIC) analysis makes encouraging reading: death sentencing and executions in the USA are both declining.

During the decade that has just ended, average annual US death sentencing was less than half what it was during the previous decade. Focusing on the last five years is particularly positive:
“Fewer death sentences were imposed in the second half of the 2010s than in any other 5-year period since capital punishment resumed in the United States in 1973.”

The number of annual executions also reduced dramatically, down 45.1% in the decade beginning 2010 compared with the previous decade.

Jeffrey Wogenstahl welcomes this trend and hopes it continues. We do too.

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Encouraging News

2019 is ending on an encouraging note for the Ohio death row inmates. In mid December Governor DeWine stated that Ohio is “not very close” to resuming executions; the following week Republican House Speaker, Larry Householder, confirmed that abolition of the death penalty is among the options being considered. 

For Jeffrey Wogenstahl, abolition cannot come soon enough: he understands well that the death penalty creates additional victims.

We trust that this hopeful news will help Jeff to enjoy a peaceful Christmas.

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Guilt, Shame and Mental Torment

Ohio’s Governor DeWine has postponed two more executions because of difficulties obtaining drugs; there are now no executions scheduled in Ohio before March next year.

At the Chillicothe Correctional Institution where death row is housed, the relief of the inmates at the respite will be shared by the staff.

A former commissioner of Departments of Corrections in several US states has spoken out against the terrible impact of capital punishment on prison staff.

Allen L. Ault claims that post-traumatic stress is even worse for correctional staff involved with capital punishment than it is for battlefield veterans.  This, he believes, is because during executions the person to be killed is “a known human being who is totally defenseless when brought into the death chamber” and “poses no threat to them personally”.

Ault maintains that the “feelings of guilt, shame and mental torment” extend beyond the execution team to other prison staff. Correctional staff often form meaningful relationships over many years with inmates, supporting them as they mature and develop remorse; inevitably those staff are affected when an inmate is then killed. Ault adds that the damage spreads still further, causing “depression, anxiety and other mental and physical impacts” even in staff working in other parts of the prison.

How much greater must this trauma be where the person to be executed has a strong claim of innocence, as Jeffrey Wogenstahl has.

No civilized society should inflict this trauma on its citizens. If for no other reason, the death penalty should end.

Posted in capital punishment, death penalty, executions, Jeffrey Wogenstahl, Ohio, post-traumatic stress disorder, prison staff, USA | Tagged , , , , , , , , , , , , , , , ,

A Disturbing Ruling

A Sixth Circuit appeals court panel ruled this month that Ohio’s three-drug execution protocol does not violate the Eighth Amendment prohibition against cruel and unusual punishments. The panel’s decision is at odds with federal magistrate Judge Merz’s conclusion earlier this year that the state’s drug combination will almost certainly cause “severe pain and needless suffering.” It was Merz’s conclusion that led Governor DeWine to halt executions in Ohio.

In contrast to Merz’s 148-page analysis of expert opinions, the federal appeals court’s ruling is expressed in a brief 7 pages.

It focuses on midazolam, the first of the three lethal injection drugs, which Merz condemns because it has no analgesic effect, and causes the suffocating effects of pulmonary edema. The three appeals court judges dismiss both these findings.

The judges also remind us that since a US Supreme Court ruling earlier this year, death by slow suffocation is now deemed constitutional. They explain that the Eighth Amendment now only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.”

David Stebbins, a federal public defender involved in the Ohio execution protocol case, reacted strongly, saying the opinion “does not reflect the known facts about how the three-drug protocol acts upon the human body.” His stance was echoed by Robert Dunham, executive director of the Death Penalty Information Center, who commented that the Sixth Circuit court does not seem to want to “admit the reality of what Ohio’s protocol does”.

A spokesman for Governor DeWine stated that further litigation is likely to follow the appeals court’s judgment; and in any case concerns about Ohio’s supply of lethal injection drugs remain. Governor DeWine himself has in the past avoided expressing support for the death penalty.

Death penalty expert Doug Berman believes it unlikely that further appeals will be heard in full; and that Governor DeWine will probably play a key role in deciding “whether  and when” executions are resumed. We hope the Governor responds with “No” and “Never”. It is high time to bring this barbaric practice to an end.

Posted in capital punishment, criminal justice, death penalty, executions, Jeffrey Wogenstahl, lethal-injection drugs, Ohio, USA | Tagged , , , , , , , , , , , , , , , , , ,

Ohio Officials Reflect

Ohio’s governor, Governor DeWine, has admitted that the state’s deception when buying execution drugs could result in legitimate users in Ohio being deprived of their medicines..

The state has been purchasing drugs for executions through its Department of Mental Health and Addiction Services, without telling pharmaceutical companies how they would be used. In response, the drugmakers have threatened to stop selling drugs to Ohio altogether, potentially putting tens of thousands of Ohioans at risk.

Governor DeWine explains that this danger must be considered when evaluating execution methods.

The Governor was due to meet House Speaker Larry Householder and Senate President Larry Obhof about “where they think we should go.”

Since then Householder has conceded that he has become “less and less supportive” of the death penalty, because of its high cost and the difficulty in procuring execution drugs.

Executions in Ohio were halted in February and are unlikely to restart soon. We hope officials will take this opportunity to end the death penalty in Ohio, once and for all.

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Eric Horn: Not Lured Away

Troy Beard lived near the home of the victim in Jeffrey Wogenstahl’s case. It was the short distance to Beard’s apartment that Jeffrey Wogenstahl drove Eric Horn in the early hours of November 24, 1991.[i]

At Jeff’s trial, Horn claimed that Jeff instigated this drive by telling him that his mother, Peggy, needed him at Beard’s apartment. Prosecutors used this as evidence that Jeff had lured Horn away from the victim’s residence. However, Jeff testified that it was Horn who asked him for a ride to Beard’s, as he (Horn) wanted to take marijuana for Peggy there.[ii]

We now know, as Jeff’s jurors did not, that Horn was both a drug user and drug trafficker. In light of this information, Jeff’s explanation for the drive seems entirely plausible.[iii]

Moreover, Beard’s testimony contradicts Horn’s on this point. Horn testified:
“I told [Beard] that Jeff Wogenstahl told me that Peggy needed me there”,
But Beard’s recollection of that conversation is different:
“[Horn] just asked me if I had seen Peggy or anything.”
Beard added that Horn did not say who had brought him there.[iv]

The prosecutors claimed that Jeff left Horn stranded at Beard’s; but this was not the case. Horn had only a few minutes’ walk to get home.[v]

There is now ample evidence that Horn was generally untrustworthy: as well as falsely denying drug use, Horn made inconsistent statements and statements that were contradicted by other witnesses. Three of Jeff’s jurors have said that if they had known the truth about Horn they might have come to different conclusions about the case. One added that Eric Horn’s story about how Jeff tricked him to get him out of the house was one of the most important pieces of evidence in the trial.

Troy Beard’s testimony suggests that Horn’s story was yet another falsehood. Together with the many other anomalies in Jeff’s case it suggests “the epitome of a miscarriage of justice”.[vi] We trust the Hamilton Court of Common Pleas will speedily grant Jeff a new trial. It is long overdue.

[i] State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Appellant Jeffrey A. Wogenstahl’s Memorandum in Support of Jurisdiction, Supreme Court of Ohio, filed March 21, 2016. P. 24 (P. 26 of pdf)
[ii]State v. Wogenstahl. 95-1165. Jeffrey Wogenstahl’s Merit Brief, filed in the Supreme Court of Ohio. Filed June 1995. Pages 12-13. J. Wogenstahl. Print.
[iii] State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Appellant Jeffrey A. Wogenstahl’s Memorandum in Support of Jurisdiction, Supreme Court of Ohio, filed March 21, 2016. P. 24 (P. 26 of pdf)
[iv] 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. Fifty-Eighth Ground for Relief,¶735, third bullet point.
[v] State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Appellant Jeffrey A. Wogenstahl’s Memorandum in Support of Jurisdiction, Supreme Court of Ohio, filed March 21, 2016. P. 24 (P. 26 of pdf)
[vi] 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. Fifty-Eighth Ground for Relief, Fifty-Eighth Ground for Relief,¶737.
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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.
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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.

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