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.

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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.

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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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Joe Deters’ Omissions

A recent article about the current state of Ohio’s death penalty touches on the case of Jeffrey Wogenstahl. It allows us to glimpse the reaction of the lead prosecutor at Jeff’s trial, Joe Deters, to Jeff’s ongoing claim of innocence.

Deters’ response is superficial.  He describes the claims as “total crap” and adds,
“I know for certain Jeffrey Wogenstahl killed Amber Garrett.”  

Really? Was he there?

Deters disregards the highly significant evidence that was concealed in police files until 2016. He fails to consider that this evidence, plus faulty hair analysis, caused the Sixth Circuit Court of Appeals to declare it likely that:
“[Jeff] can establish by clear and convincing evidence that no reasonable factfinder would have found him guilty.”

Deters certainly does not reveal that Jeff’s attorneys were forced to take legal action in order to secure the potentially exculpatory evidence from police files. And he does not divulge that at the trial his team of prosecutors committed misconduct described by a federal judge as ‘plain and plentiful’ and ‘wholly improper’.

It is thus hard to swallow Deters’ assertion that he seeks the death penalty only for the worst of the worst cases, where there is no question of guilt. In Jeff’s case several jurors, as well as the Sixth Circuit Court, have expressed doubts about the safety of his conviction; but for Deters this is of no consequence.

We are thankful that the Sixth Circuit Court has considered all the evidence. We agree with its conclusion,
“[Jeff] has shown that his claims “warrant a fuller exploration in the district court.”*

We trust the district court, unlike Joe Deters, will heed the Sixth Circuit Court’s decision and examine all the evidence that is now available. Only a complete evaluation can bring justice at last.

*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.
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Conservatives Opposing the Death Penalty

A Conservative Political Action Conference (CPAC) seems an unlikely setting for action against the US death penalty: conservatives have hitherto been associated with an unthinking “tough on crime” philosophy that included support for capital punishment. Perhaps all this is set to change: this year’s (CPAC) included a stall where Conservative activists sought to persuade delegates of the “inefficiency, inequity and inaccuracy” of the death penalty.

Hannah Cox, National Manager of Conservatives Concerned About the Death Penalty, explains she was an “ardent supporter” of the death penalty until she actually researched it. She then discovered the problems:

-many innocent people being executed
-huge expense (reducing this could cause more executions of innocents)
higher rates of violent crime in regions that use the death penalty
not applied to the “worst of the worst” (imposed according to location of crime, race of victim, and competence of defendant’s attorney)

Cox believes her movement will impact and alter the conservatives’ debate about the death penalty:
“We can do better. As conservatives, we pride ourselves on limiting government, 
using our tax dollars efficiently, and protecting the sanctity of human life. 
The death penalty fails to meet any of those measurements. Expect the trend of 
Republican support for ending the death penalty to continue to grow.”

Jeffrey Wogenstahl’s death penalty case, with his strong claim of innocence, illustrates well the points made by Cox. We wish her success.

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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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