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.

Posted in capital punishment, Chillicothe Correctional Institution, criminal justice, death penalty, death row, Jeff Wogenstahl, Jeffrey Wogenstahl, Ohio, USA | Tagged , , , , , , , , , , ,

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.

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

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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