The State’s Lack of Consistency

Posted on October 16, 2016 by Justice for Willie

In a reply brief* filed with the Ohio Supreme Court on Tuesday, Jeff pursues his claim that his trial should not have been held in Ohio. This claim is being pursued in addition to his claims of innocence (which are based on flawed hair evidence at his trial, and on potentially exculpatory and impeaching evidence in his police file, which was suppressed by the state).

As explained previously, intrinsic problems with the death penalty appeals’ system mean that Jeff must pursue any legal route that may eventually allow him to clear his name and walk free. He sees the jurisdiction claim (his claim that Ohio lacked jurisdiction to try him) as a means to that end.

In Tuesday’s reply brief, Jeff addresses the state’s difficulty in establishing where it believes the murder took place. The state has constructed a suggested new theory about this, but it lacks coherence or consistency. As Jeff’s brief states:
“[T]he State’s lack of consistency highlights its failure to meet its burden, to prove beyond a reasonable doubt that the victim was killed in Ohio. If the State cannot set forth a consistent argument as to where in Ohio the victim was killed, then it certainly cannot meet its burden of proof to demonstrate that the victim was killed in Ohio.”

This point is persuasive. We trust the court will agree.

*State of Ohio v. Jeffrey Wogenstahl, 1995-0042, Reply Brief of Appellant Jeffrey Wogenstahl, filed October 11, 2016, P.6 of numbered sheets (p. 9 of whole document)  
Posted in capital punishment, criminal justice, death penalty, Jeff Wogenstahl, Jeffrey Wogenstahl, Ohio, USA | Tagged , , , , , , , , , , , , , , , , , , | Leave a comment

Revelations from Police File

Posted on October 9, 2016 by Justice for Willie

Thanks to the persistence of his legal team, Jeffrey Wogenstahl has successfully accessed what is asserted to be the full and complete Harrison Police Department file on his case. Until May 2016, most of this information had been withheld from him by both the Harrison Police Department and the Hamilton County Prosecutor’s office. 

The extent of the potentially exculpatory and impeaching evidence in the file is astonishing.  Examples are given near the beginning of a motion filed on Friday*:

  • Both the victim’s mother, Peggy Garrett’s, and brother, Eric Horn’s, memories were improperly refreshed via hypnosis by a Patrolman with the Harrison Police Department [who was neither qualified to hypnotize nor independent];
  • The victim 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”;
  • The police received reports that the victim’s mother may have sold the victim to an individual to whom she owed money for drugs;
  • The victim’s brother [Eric] had stated that he hoped the victim was dead and lied about his whereabouts on the evening in question;
  • Bruce Wheeler, the State’s jailhouse informant, lied when he testified that he did not receive any consideration for his testimony against Wogenstahl;
  • Wogenstahl drove a brown sedan at the time of the murder. An eyewitness saw a small red vehicle at the time of the victim’s disappearance in the immediate area where her body was found;
  • The victim’s mother frequently held parties at her residence at which illegal drugs where rampant and the mother permitted the male attendees to inappropriately touch the victim;
  • In May 1991, the victim had been attacked by a male (Wogenstahl was incarcerated during that time);
  • In the summer prior to her death, an adult male stalked the victim including standing outside her bedroom window;
  • The victim’s mother and brothers were actively involved in the sale and possession of illegal drugs;
  • The victim’s brother, Justin Horn, lied to the police concerning his whereabouts at the time of the victim’s disappearance and murder;
  • The blood found in Wogenstahl’s apartment was consistent with his testimony that the source of the blood was his cat;
  • The prosecution proceeded on the theory that Wogenstahl abducted the victim from her bed in the early morning hours. However, the victim was wearing her “church clothes” when her body was found instead of her pajamas.”

Jeff has a separate, but related case (Case No. 1995-0042), where he explains that his trial should not have been held in Ohio. The motion filed on Friday is for Case No. 2016-0423, in which Jeff has previously asked for a new trial, based on the flawed hair evidence presented at his trial.

Friday’s motion announces his intention to file yet another application for a new trial, based on the suppressed evidence in the police files. Based on the extent and impact of the suppression, it is unimaginable that the court will refuse. We trust that, at long last, justice will be done.

*See Appellant Jeffrey Wogenstahl’s Motion to Remand Case to the Trial Court, filed in the Supreme Court of Ohio, October 7, 2016 – Case No. 2016-0423; P. 4.
Posted in capital punishment, criminal justice, death penalty, Hamilton County Prosecutor's office, Harrison Police Department, Jeff Wogenstahl, Jeffrey Wogenstahl, official misconduct, Ohio, police, prosecutorial misconduct, USA | Tagged , , , , , , , , , , , , , , , , , | Leave a comment

Tell Governor Kasich to stay executions.

Posted on October 5, 2016 by Justice for Willie

Ohio has only paid lip service to the 56 recommendations of the Ohio Supreme Court’s Joint Task Force to Review the Administration of Ohio’s Death Penalty. A recent report found:

“The death penalty in Ohio remains plagued by the very same flaws that led to its subsequent invalidation in 1978. The arbitrariness continues. The racial and geographic disparity continues. Perhaps most significant, the system’s propensity to condemn the innocent to die is far worse than anyone imagined…
It is unfortunate that the [Task Force] recommendations that will do the most to curtail unfairness and bias in Ohio’s capital punishment system have yet to be discussed in any legislative forum.”

Jeffrey Wogenstahl’s case provides very troubling examples of the ease with which the system can condemn the innocent (see information about his case here). Even supporters of the death penalty want the system to be fair and accurate: the Ohio death penalty is neither.

We urge Ohio residents to write to Governor Kasich, asking him to stay all pending executions until the recommendations of the Supreme Court’s Task Force have been considered and implemented by the legislature. You can do this on the Ohioans to Stop Executions’ website.

If you are not a resident of Ohio, you can use the Contact the Governor form to make the same request (for Issue, select Rehabilitation and Correction).

Thank you.

Posted in capital punishment, criminal justice, death penalty, executions, injustice, innocence, Jeff Wogenstahl, Jeffrey Wogenstahl, Ohio, USA, wrongful convictions | Tagged , , , , , , , , , , , , , , , | Leave a comment

Risk of Intolerable Pain and Suffering

Posted on October 3, 2016 by Justice for Willie

For death penalty opponents, whose stance is no longer opposed by the majority of the US population, today is a very sad day: the Ohio Attorney General’s office has announced that it wishes executions to resume in January. What is more, the new lethal injection protocol is expected to include midazolam, a drug which the state firmly ruled out for executions, following its use in Dennis McGuire’s botched execution in January, 2014.

Although the US Supreme Court has approved midazolam for executions in another state (Oklahoma), the court’s decision was controversial. The majority judges chose to ignore the research produced by two expert witnesses that demonstrated the risk of intolerable pain and suffering posed by using midazolam as an anaesthetic (the court instead based its decision on the testimony of one doctor of pharmacy).

Attorneys representing death row inmates say they will file a challenge soon after the new execution policy is announced at the end of this week. The drug protocol is expected to include rocuronium bromide and potassium chloride, to be administered after midazolam.

Ohioans to Stop Executions (OTSE) criticized the state for proceeding with executions without first introducing measures to address the shocking unfairness of the death penalty in Ohio.

Jeffrey Wogenstahl’s execution date was stayed by the Ohio Supreme Court in May (see here, page 3); however, today’s announcement, that the state wishes to carry out the first three executions scheduled for 2017, will sadden him and everyone else on death row. Our thoughts are with Jeff.

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

Nitrogen Asphyxiation: “Are we really going to use it for people?”

Posted on September 26, 2016 by Justice for Willie

John Murphy, executive director of the Ohio Prosecuting Attorneys Association, supports the flawed criminal justice system that produced Jeffrey Wogenstahl’s death sentence. Murphy is unconcerned that a recent OTSE report about the Ohio death penalty concludes, “the only interest served is that of Ohio prosecutors”.

Far from being troubled about the uneven application of capital punishment from county to county, Murphy defends it. He points out that the local electorate effectively decides how much the death penalty will be applied: he cites death penalty enthusiast, Joe Deters of Hamilton County (the lead prosecutor in Jeff’s case), who “keeps getting elected”.

It is shocking, then, that Deters has committed misconduct in at least one death penalty case. In Jeff’s case a federal judge described prosecutorial misconduct as “wholly improper” and “plain and plentiful”*; the misconduct included being aware that the key witness was lying when he testified that he had never used or sold drugs. And further, unacknowledged misconduct may well have occurred in the case (see here). 

None of this worries Murphy: his only concern is that executions in Ohio are on hold (pharmaceutical companies have refused to authorize their products for lethal injections). Murphy’s solution? A new execution method: he suggests nitrogen gas. He shows little scientific understanding, comparing nitrogen with nitrous oxide, used by dentists. A letter from a physician, Dr. Groner, puts him right:
“Nitrous oxide (N2O) is an anesthetic. Nitrogen (N2) is an inert gas: It has no effect on the human body. That’s like stating that water (H2O) and oxygen (O2) are very similar.” 

Groner continues:
“Ohio has disallowed gas chambers to euthanize animals* — are we really going to use it for people?”

Instead of promoting a highly suspect execution method, Murphy would do better to help produce the changes** needed to reduce the incidence of “premeditated attempted murder” by prosecutors. And the public should consider carefully before voting for overzealous*** prosecutors, like Joe Deters.

 

* See also the Marshall Project’s “A Perfect Killing Device”: “…the American Veterinary Medical Association’s 2013 Guidelines for the Euthanasia of Animals state that nitrogen asphyxiation is not appropriate for dogs, cats, and lab animals, because they become aware that they are being killed while still conscious”. 
** For examples of the most significant recommended changes, see OTSE’s “A Relic of the Past: Ohio’s Dwindling Death Penalty”, pp 13 -14.
***‘Overzealous’ is a word often used to describe prosecutors who secure the most death sentences e.g. see Fair Punishment Project’s “Too Broken to Fix, Part 1, An In-depth Look at America’s Outlier Death Penalty Counties” pp. 3 – 4, section entitled “Overzealous Prosecutors”.
Posted in capital punishment, criminal justice, death penalty, death row, executions, Jeffrey Wogenstahl, nitrogen asphyxiation, Ohio, prodecutorial misconduct, USA | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

Ohio’s Death Penalty: Flawed Public Policy

Posted on September 13, 2016 by Justice for Willie

It is clear that Ohio’s lawmakers have no wish to mend the state’s flawed death penalty system. An OTSE (Ohioans to Stop Executions) report* has outlined how “abysmal” the efforts of Ohio’s leaders have been in bringing about change to a structure in which “the only interest served is that of Ohio prosecutors”.

In April, 2014, an Ohio Supreme Court Task Force made 56 recommendations for changes in the capital punishment process. Of these, only 4 have been approved; moreover, their content is extremely limited in addressing unfairness.

6 more recommendations are under consideration, 4 of which are contained in Senate Bill 139. This bill has been weakened following the intervention of the Ohio Prosecuting Attorneys Association and the Attorney General’s Office, who introduced changes that impede transparency.

Most worryingly, the Task Force recommendations with the greatest potential to reduce injustice and bias in Ohio’s death penalty system have not yet been discussed in any legislative forum.**

Jeffrey Wogenstahl’s is one of the death penalty cases hindered by the state legislature’s unwillingness to abandon the status quo. His case is of particular concern, having suffered from very similar problems to the Ohio death penalty exonerations listed in the OTSE report: Jeff’s case was blighted by official misconduct, perjury, implausible snitch testimony, false forensic evidence and flimsy eyewitness testimony.

Given the many signs of wrongful conviction in Jeff’s case, it seems unimaginable that his appeals were dismissed by court after court until, finally, he was assigned an execution date. Fortunately, that date was stayed by the Ohio Supreme Court earlier this year to allow him to claim that he should not have been tried in Ohio.

Nonetheless, the report lists Jeff’s execution date as September 13, 2017 – exactly a year from today. This reflects information in the Ohio Department of Rehabilitation and Correction’s Execution Schedule, which, bizarrely, still displays an execution date for Jeff, despite his stay of execution date and re-opening of direct appeal.

The OTSE report concludes:

“Ohio’s death penalty system must be abandoned. Thirty-six years of administration of such a flawed public policy is more than enough. Ohio can make its criminal justice system better for victims’ families, its law enforcement agencies, its courts and its citizens by removing the ultimate penalty.”

We agree. It is time for Ohio’s prosecutors to relinquish the advantages that benefit them, and them alone. The death penalty must die.

*A Relic of the Past: Ohio’s Dwindling Death Penalty 
**For examples of such significant recommendations, see A Relic of the Past: Ohio’s Dwindling Death Penalty, pp 13 -14.
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Not Indicative of a Murderer

Posted on August 29, 2016 by Justice for Willie

One of the filings from Jeffrey Wogenstahl that is now before the Ohio Supreme Court supports his claim of innocence. This claim was dismissed by the Hamilton County  Court of Appeals last December, a decision which has been roundly criticized for its inaccurate interpretation of how the MHCA* Review results impacted Jeff’s case.

A point made by the Appeals’ court was that Jeff changed his explanation about why he drove Eric Horn from the victim’s home to a nearby apartment:
    •Jeff’s original explanation, in a statement given to police on November 24, 1991, was that he had played a joke on Horn by telling him that his mother needed him at a nearby apartment.
    •From November 25, 1991 – and ever since, including on oath, at his trial – Jeff has said instead that he visited Horn to buy marijuana; and that he then helped Horn by driving him to the nearby apartment so Horn could deliver marijuana to his (Horn’s) mother.

Jeff explained that he initially circumvented the truth because, as a parolee, he hoped to avoid returning to prison; and that, moreover, he did not wish to implicate Horn as a drug dealer.** At that time Jeff had no idea he was about to become the sole suspect in a murder case.

As Jeff’s memorandum states,
“Avoiding the truth here would have been natural as his status as a parolee; it is not necessarily indicative of a murderer.”***

Horn’s testimony, on the other hand, is of huge concern: he lied under oath at Jeff’s trial, saying that he had never used or sold drugs. The prosecutors connived at the perjury, withholding critical evidence that Horn had previously been arrested for trafficking in marijuana, and had received a juvenile delinquency adjudication for drug offences.

Horn’s perjury must have greatly diminished Jeff’s credibility with the jury, and increased the likelihood that he would be convicted. It also begs the question, “What else did Horn lie about?”

Jeff deserves a new trial where a jury can evaluate Horn’s testimony, free of perjury. We trust that, at long last, the court will agree.

*Microscopic Hair Comparison Analysis Review,  which reported in April 2015 that FBI hair agent/analysts made errors in at least 90 percent of cases in which hair was tested.
** 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.
***State v. Wogenstahl. 2016-0423. Appellant Jeffrey A. Wogenstahl’s Memorandum in Support of Jurisdiction, filed in the Supreme Court of Ohio. Filed March 21, 2016. Pages 23 – 24 (pages 25 – 26 of the whole document)
Posted in capital punishment, criminal justice, death penalty, injustice, Jeffrey Wogenstahl, Ohio, perjured testimony, prosecutorial misconduct, USA | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

We will abolish the death penalty

Posted on August 15, 2016 by Justice for Willie

At long last one of the two biggest US political parties has committed to abolish the death penalty! The Democratic Party proposes:

“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.” *

The stance is undoubtedly influenced by the views of former Democratic presidential candidate, Bernie Sanders, a longstanding opponent of the death penalty. Speaking to the Senate last year, Sanders declared:
“I believe it is time for the United States of America to join almost every other Western, industrialized country on Earth in saying no to the death penalty.”

The Democrats’ platform would not lead to instant change: the necessary legal and administrative changes would take time. And it is notable that the statement conflicts with the views of the Democratic Presidential nominee, Hillary Clinton, who still supports “very limited use” of the federal death penalty in “particularly heinous” terrorist crimes, for instance, for Dylann Roof.

Clinton’s presidential running mate, Tim Kaine, may welcome the party’s new objective, as he admits he is conflicted over the 11 executions that he presided over as governor of Virginia:
“I really struggled with that as governor. I have a moral position against the death penalty.”

Despite the obstacles that remain to be cleared, the Democratic Party’s stated aim of abolishing the death penalty is welcome. The Libertarian Party and Green Party also oppose the death penalty; the Republican Party and Constitution Party support it.

In Ohio, where Jeffrey Wogenstahl sits on death row, Governor John Kasich is a Republican and supports the death penalty; he thus allows his party’s values to overrule those of his Catholic religion.

Death penalty opponents should remember where their vote could count in ending the death penalty for good.

* P.16 of 2016 DEMOCRATIC PARTY PLATFORM (P. 20 of whole document)
Posted in capital punishment, criminal justice, death penalty, Democratic Party, Jeffrey Wogenstahl, Ohio, USA | Tagged , , , , , , , , , , , , , , , , , , | 2 Comments

A Question of Jurisdiction

Posted on August 2, 2016 by Justice for Willie

Yesterday Jeff’s lawyers addressed the issue which the Ohio Supreme Court has invited them to raise, namely that Jeff’s trial court did not have jurisdiction to try him.

The relevant statute in force at the time of the crime of which Jeff was convicted included this portion about homicide:

“In homicide…, the offense is either the act that causes death, or the physical contact that causes death, or the death itself. If any part of the body of a homicide victim is found in this state, the death is presumed to have occurred within this state.”*

At Jeff’s trial the prosecution used witness testimony to convince the jury that the victim was killed not in Ohio, but in Indiana (a map was used by the state to set out its case that the victim’s death occurred in Indiana).  The victim’s body was recovered from a wooded area in Indiana. The prosecutor’s closing remarks underlined the state’s point that the victim died in Indiana; an appeal court later further strengthened this point by ruling that the prosecutor’s remarks were no more than a recital of facts.

From this it seems clear that Jeff’s trial should not have been held in Ohio. Although Jeff’s trial lawyer queried whether Hamilton County was an appropriate venue, he failed to question whether the court had jurisdiction to try Jeff. But the point is considered so fundamental that it can never be waived: Jeff is entitled to raise it even now, nearly 25 years after the crime.

If the Ohio Supreme Court agrees with Jeff, the implications are profound:
“If a court acts without jurisdiction, then any proclamation by the court is void.”**

Jeff deserves a new trial where he can raise his claim of innocence. If the court accepts that his trial court lacked jurisdiction, he could get that new trial in Indiana. We hope that he will.

*See Merit Brief of Appellant Jeffrey Wogenstahl, filed August 1, 2016 (P. 13 of whole document).
**See Merit Brief of Appellant Jeffrey Wogenstahl, filed August 1, 2016 (P. 11 of whole document).

 

Posted in capital punishment, criminal justice, death penalty, Jeffrey Wogenstahl, jurisdiction, Ohio, subject-matter jurisdiction, USA | Tagged , , , , , , , , , , , , , , , , | Leave a comment

Police Records Withheld

Posted on July 17, 2016 by Justice for Willie

In any criminal case, police records and summaries are very important; if the case has a history of egregious state misconduct, access to those records becomes critically urgent. If the case that has been tainted by misconduct is a death penalty one, the withholding of police records is unconscionable.

Shockingly, despite Jeffrey Wogenstahl’s death sentence, and the extensive known prosecutorial misconduct in his case, relevant police records were withheld until legal pressure was brought to bear:
“The Harrison Police Department, as well as the Hamilton County Prosecutor’s office (the same office that suborned perjury and utilized the false and unscientific evidence at issue here in order to convict the Appellant) unjustifiably refused to release the records in question.” *

Accordingly, Jeff asked the Ohio Supreme Court to order the Harrison Police Department “to immediately provide the police reports and summaries”. He was unable to view the documents until May 3, 2016; the contents provided shockingly exculpatory evidence.**

This post was corrected on October 9, 2016, to reflect information in a motion filed on October 7, 2016.

*See Appellant Jeffrey Wogenstahl’s Memorandum in Support of Jurisdiction, filed in the Supreme Court of Ohio, March 21, 2016 – Case No. 2016-0423; PP 2-3 (referring to Jeff’s Complaint for Writ of Mandamus).
**See Appellant Jeffrey Wogenstahl’s Motion to Remand Case to the Trial Court, filed in the Supreme Court of Ohio, October 7, 2016 – Case No. 2016-0423; P. 4. 
Posted in capital punishment, criminal justice, death penalty, Jeffrey Wogenstahl, Ohio, police, prosecutorial misconduct, USA | Tagged , , , , , , , , , , , , , , , , , , | Leave a comment