Thursday, 5 June 2008

Unluckiest Man on Death Row

Joe D'Ambrosio's story offers reasonable doubt about Ohio justice.

Joe D'Ambrosio's father believed in the virtue of work. For decades, he punched the clock at General Electric, installing liners in train engines. He taught his only son that a job provides two rewards: a paycheck and self-respect.

Keenan (left) and Espinoza (center) both had checkered pasts. The only blotches on D'Ambrosio's record were two DWIs.Dad always told me, You work. I don't care if it's flipping burgers, you work,' D'Ambrosio recalls.

He intended to abide by his late father's credo, following an honorable discharge from the Army in 1985. The North Royalton native returned home after a four-year hitch that saw him awarded the Good Conduct and Army Achievement medals for his skill as a mechanic. He figured finding work in an auto shop would be easy. He found misfortune instead.

D'Ambrosio learned that his Army mechanic's certification carried no value in the private world -- he would need two years of training to become recertified. The $27,000 tuition may as well have been $27 million.

For the next three years, he pumped gas, installed car alarms, mowed lawns. He earned a paycheck, but pride proved more elusive. So he drowned his frustration at the Saloon, a Coventry Road bar that offered cheap drinks and the comfort of regulars.

D'Ambrosio had little else on his mind on August 31, 1988. At some point that Wednesday night, a voice pierced the pub's din. A gaunt man with a mustache said he was a foreman of a landscaping crew and asked if anyone needed work.

Landscaping sounded as good as anything else to D'Ambrosio. He introduced himself to Ed Espinoza, and the next day he met with Espinoza and Michael Keenan, owner of Sunshine Landscaping. Keenan hired him on the spot.

Less than a month later, he, Espinoza, and Keenan were in jail. The following February, D'Ambrosio was sentenced to death after a three-day trial -- likely the shortest capital case in state history.

Like almost every one of Ohio's 201 death-row inmates, D'Ambrosio claims innocence. But unlike the others, there are people who actually believe him. Inside the state Public Defender's Office, he is known as "the unluckiest man in the world." Two Ohio Supreme Court justices have argued his life should be spared. Death-penalty critics contend his case pulses with reasonable doubt.

D'Ambrosio appreciates the support. Still, he wishes he didn't need it.

"If I hadn't been in that bar that night and met Espinoza, I wouldn't be here now."

In September 1988, Tony Klann was 19. He looked younger. A flop-cut topped a boyish face; a rattail hinted at a free spirit. He scraped by as a deli stockboy and mowing lawns for Sunshine Landscaping. He used the money to party on life's fringes.

A haphazard student who struggled to finish high school, Klann had good attendance at the bars in Coventry and Little Italy. His friends were anyone with extra beer or pot and a couch to crash on. His girlfriend danced at a strip club. To Klann, midnight felt like noon.

"He liked people who were kind of living on the edge," says Richard Klann, Tony's father.

Richard and his then-wife, Diane, adopted Tony and his sister when they were toddlers. The Klanns represented the fifth and last set of parents for the siblings, a warm ending to their bleak foster-care odyssey.

Tony grew up "happy-go-lucky" despite a learning disability that his classmates teased him about, Richard recalls. As he grew older, he itched for freedom, leaving home at 18 with few plans and less money. "I emancipate myself," he wrote in a note to his father.

But it was a more practical Tony who met Richard for dinner at a Mayfield restaurant on Tuesday, September 20, 1988. He said he wanted to escape the drug-and-booze scene and start fresh. He talked about setting up his own landscaping business, an idea his father heartily endorsed.

"He was doing his own thing, finding his way," Richard says.

Cleveland homicide detectives Ernie Hayes and Mel Goldstein received word of a body floating in Doan Creek on Saturday afternoon, September 24. They found the victim's neck sliced from ear to ear; two puncture wounds exposed his trachea. His face, chest, back, right forearm, and left wrist were slashed. Half his forehead was bashed in. Most of his blood had drained away, turning his skin bone white.

The detectives scoured the creek bank near Martin Luther King Jr. Drive and East Boulevard for clues. "There was nothing there," Goldstein says.

In the late 1980s, the Cleveland homicide unit shone like few others, boasting an 80 percent "solve rate" on murder cases that ranked among the best for metro police forces nationwide. Success came as veteran detectives ran hard on the long leash let out by their superiors.

"You were free to do whatever you needed to do, so long as you got results," Hayes says.

Detective Leo Allen took over the case on Monday, September 26. His legwork bore results in a scant three hours.

Allen visited the Cuyahoga County morgue that morning on another case and wound up talking with three men -- Paul Lewis, James Russell, and Adam Flanik -- who were there to identify the body of a friend pulled from Doan Creek. None of them could be located for this story.

Lewis sometimes let Tony Klann stay at his Little Italy flat. Like Flanik and Russell, he knew Ed Espinoza and Michael Keenan from the neighborhood bars. He also had spoken to D'Ambrosio on occasion.

Lewis, nicknamed "Stoney" for his love of weed, said he last saw Klann alive on Friday night, September 23. He and Keenan bumped into each other around 8 p.m. that evening at the Saloon, where they had a drink before driving down Coventry Road to Coconut Joe's. Both bars have since closed.

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A question of truth, life, death (old article)


Karen R. Long
Plain Dealer Reporter

All along, Joe D'Ambrosio has said he is innocent.

But since he had no money, no visitors and scant education, insisting on his innocence seemed pointless, almost absurd.

Now, a Catholic priest who heard his story by accident and a veteran public defender who has heard every story in the book think D'Ambrosio is telling the truth. The pair have put thousands of hours into reconstructing a sordid murder centered in Little Italy 14 years ago.

They found out that the man hacked to death had been the only witness subpoenaed in a rape four months earlier. The accused rapist supplied police with D'Ambrosio's address and a suggestion that they investigate him.

Fourteen days after D'Ambrosio was charged in the murder, the rape indictment was dropped.

Carmen Marino was the prosecutor for both the rape and the murder. He retired a year ago. Marino now says he has no memory of the rape case, which he reassigned to another assistant county prosecutor.

That man, Lindsay Jerry, died in 1993.

Marino said his murder prosecution was both successful and ethical.

But the Ohio public defender's office has raised enough doubt about D'Ambrosio's conviction that a federal judge has ordered a review of all the evidence. In late November, U.S. District Judge Kate O'Malley ordered Cleveland police and the county coroner's and prosecutor's offices to turn over all records and original evidence from the murder and the rape to the state public defender's office.

Lawyer Joe Bodine is leading the investigation. He has worked on appeals for convicted killers for more than a decade. "Joe [D'Ambrosio] is the only client I've ever had who is utterly credible," Bodine said.

He called O'Malley's order "the single most expansive discovery order handed down" in a capital case from a judge in Ohio.

The Ohio attorney general's office must defend D'Ambrosio's conviction in federal court. "Obviously, we are very prepared," said spokeswoman Kim Norris. "The last time the victim was seen alive, D'Ambrosio was holding a knife to his throat."

On Feb. 5, a federal court officer will drive to Detroit with two hunting knives confiscated from D'Ambrosio's apartment. There, Wayne County Coroner Dr. Werner Spitz will compare them to descriptions and photos of the wounds on the victim's body. Spitz is a nationally recognized authority on such injuries. D'Ambrosio's legal team anticipates that the knives and the wounds will not match.

"A lot of guys on death row tell me they are innocent," said the Rev. Neil Kookoothe, an opponent of capital punishment who is also a lawyer. "I don't believe any of them except Joe D'Ambrosio."

Kookoothe said he remains astonished that D'Ambrosio was convicted of murder and sentenced to death without forensic evidence. D'Ambrosio waived his right to a jury. A three-judge panel found him guilty.

For the family of the murdered teenager, Tony Klann, it is unthinkable that a horror resolved in 1989 has come back to haunt them. They believe Cuyahoga County prosecutors held the right three men responsible.

"There's been rumblings about new evidence," said salesman Richard Klann, the victim's father. "I still think this jerk D'Ambrosio is guilty. I sat through every minute of the trials. Fourteen years later, the idea of more trials - it's just churning through my body all the time."

'That is what I live with'

Tony Klann had a choir-boy face and a bowl haircut that made him look younger than his 19 years. People around Little Italy and the Coventry neighborhoods knew him as "Little Tony." Klann had a sunny, social disposition. But he was frequently broke.

The week he was murdered, Tony and his girlfriend, a Cleveland State University student, met Richard Klann for dinner. Tony outlined his ideas for launching a small landscaping business. The older Klann was delighted.

His son had struggled with a learning disorder so severe he was unable to read a clock. Tony had quit Cleveland Heights High School after the 10th grade and abandoned an alternative school in Columbus the day he turned 18. When he returned to Cleveland, Tony drifted a bit and partied. Now, he seemed to have a direction. Richard Klann offered to buy a landscaping truck.

Four days later, a jogger found Tony's body floating in Doan Brook, next to Martin Luther King Jr. Drive, near Parkgate Avenue. On that Saturday afternoon in September 1988, the corpse looked so stiff and unworldly that the runner poked it with a tree branch. When divers pulled it out, they could see Tony's neck was slashed ear to ear, his windpipe punctured twice. Three large slashes opened up his chest. Defensive wounds marked his wrist and elbow.

"They hit him with a bat, breaking his forehead," Richard Klann said. "They took him down to Doan Creek and asked him to put his head back, and he did, and they slit his throat. I always taught him there was another way out besides a fight. I wish I could have said, 'Now is the time to kick them where it hurts.' Tony put his head back - that is what I live with."

Prosecutor Marino said there was no way the 5-foot-5 Tony could have fought off a trio of men. "Klann was truly an innocent person," he said. "His whole life, he didn't harm anybody."

Marino said the three men jailed for Klann's murder were not subtle. He said D'Ambrosio, Michael Keenan and Eddie Espinoza were the only ones witnesses saw drunk, carousing, swearing, shouting and later driving around with the victim.

All four knew each other through Sunshine Landscaping. Keenan, 39, owned the business and Espinoza was his foreman. D'Ambrosio met Espinoza in The Saloon, a now-defunct Coventry bar, where Espinoza offered him a landscaping job. It was three weeks before Klann was murdered.

"Keenan was a real low-life, that guy, and a convicted rapist," Marino said. "For some reason, Keenan thought Tony Klann had taken his drugs or knew who had taken his drugs. They decided to grab up this kid and force him to tell them." Marino paused. "I guess things got out of hand. Keenan got frustrated and took the kid down to Doan Creek."

Espinoza, 26, became the prosecution's star witness. Based on his testimony, D'Ambrosio and Keenan were sentenced to die. Espinoza took a plea of voluntary manslaughter and served 12 years of a 15- to 75-year sentence. He was freed, with no parole obligations, in 2001.

On the witness stand, Espinoza described a party scene marinated in alcohol and cocaine. He testified the crime started with a night of drinking in Coventry bars that escalated when Keenan discovered drugs missing from his work truck. He suspected a man named Paul Lewis, known as "Stoney" because of his affinity for being high.

Espinoza testified that "Little Tony" was plucked off Mayfield Road and enlisted in pursuit of Lewis, who lived in Klann's apartment building. But Lewis was not home that night. Espinoza said that sometime before daybreak, the chase ended in a surreal butchery. He said Klann cried out for mercy while D'Ambrosio pursued him with a curved hunting knife, splashing after the bleeding boy in Doan Brook.

That sounded wrong to Kookoothe, an associate pastor at St. Clarence Catholic Church in North Olmsted. The priest was visiting another death-row inmate when he stopped at the cell next door and heard D'Ambrosio's story. "There was something about Joe that just doesn't click with the crime," he said. "He was personable, straightforward. My curiosity started to grow."

Kookoothe, with degrees in nursing and law earned before his ordination, followed that curiosity to the coroner's office. He asked to see the photographs of Klann's injuries. He stopped when he got to the close-up shots of the two holes in the trachea. With such an injury, no victim - physiologically - could have begged for mercy. Yet Espinoza testified that D'Ambrosio had jumped into the creek to "finish the job" after Keenan had nearly severed the teenager's head.

"Just from the nursing perspective, I saw those punctures in the trachea and I thought, 'Oh my. Something is not right,' " Kookoothe said. The punctures insinuated to him that somebody wanted Klann to shut up.

An accidental tip

A dozen years after Tony Klann's body was cremated, Richard Klann unintentionally tipped D'Ambrosio's lawyers to a new lead. He remembered that his son told him about seeing a man raped in his apartment building. Richard Klann didn't sense that his son feared for his life, but Tony wanted out of the neighborhood.

Kookoothe decided to check police records of sex crimes around the time of Klann's death.

"I took the names of people involved in the [murder] case - Mike Keenan, Eddie Espinoza, Paul Lewis -and pulled up the criminal records," the priest said. "When I pulled up Paul Lewis, there was a rape case, so I asked for the microfiche. I see the one witness subpoenaed on the rape is Anthony Klann. My heart went into my stomach. Here was this guy testifying against Joe and he is indicted for rape."

The rape victim was a legally blind man living in Klann and Lewis' apartment building on East 120th Street, in the shadow of Holy Rosary Church. On Oct. 20, 1988, 14 days after the indictments for Klann's murder, the rape charge against Lewis was dropped.

"Counsel realizes that even suggesting that the prosecutor might have concealed a critical deal struck with a key witness implies serious transgression," D'Ambrosio's lawyers wrote in an appeals brief. "But it would not be uncharacteristic for Prosecutor Marino to have engaged in such a deceptive act. Carmen Marino has a long history of prosecutorial misconduct."

Marino dismissed the accusation as "lying and disingenuous." He said he did not remember a Paul Lewis rape prosecution. Marino keeps his old case logs, with a record of their outcomes. He brought out his log for 1988. It showed that he had three murder prosecutions that summer. A notation indicated that at crunch time with those trials, Marino gave the Lewis prosecution to Lindsay Jerry, a colleague who later died of cancer.

Marino said he had no idea why the rape case was dismissed.

The rape victim thinks his justice was traded off for Lewis' testimony. In an interview, the victim said the moment he heard that Klann was murdered, he called Cleveland police to suggest that crime was connected to the sexual assault on him. The victim said no one followed up until last fall, when D'Ambrosio's lawyers found him.

"I was 22 years old. What did I know about the law?" asked the victim, who now lives in Lakewood. "I'm surprised no one contacted me. I thought that was pretty cold. Tony got murdered and Paul Lewis is the squeal guy on that whole case."

Facts don't add up

For D'Ambrosio's advocates, his story has an "Of Mice and Men" quality. The John Steinbeck novel features a big, slow-witted, but honest man caught in a tragic murder.

At 6 feet 2 and 200 pounds, D'Ambrosio keeps his shoulders back and his gaze direct. He is proud of his four years as an Army mechanic. Book learning was not his strength, but D'Ambrosio was good with his hands. He eked out a 1.9 GPA at North Royalton High School and enlisted. D'Ambrosio loved the service, even basic training. He made sergeant in three years.

When he returned to civilian life, and Cleveland, D'Ambrosio expected to make better than a soldier's wages. Two years of odd jobs had left him without a checking account, without a driver's license and on the verge of eviction from his apartment. At age 26, he was ready to re-enlist.

Instead, Cleveland police appeared at his door. His last day of freedom was Sept. 26, 1988.

"I had no idea what was going on," said D'Ambrosio during an interview at the Mansfield Correctional Institution last month. "None of my family had ever been in trouble. None of my friends. You just don't break the law. That's what it's there for. I grew up believing in Perry Mason: Sit back and let the lawyer do his job." D'Ambrosio paused. "That's what got me here."

D'Ambrosio's three-day trial was the shortest capital trial in modern Ohio history. "You don't have to be a lawyer, let alone a rocket scientist, to realize some of this doesn't make any sense," Kookoothe said. "His legal representation was awful."

The priest started a list of facts that didn't add up:

The first homicide detectives on the scene, Mel Goldstein and Ernest Hayes, concluded Klann had been killed elsewhere and dumped in Doan Brook.

Despite the bloody nature of the murder, there was no blood found anywhere around the creek. The bank was undisturbed. No bent or broken underbrush showed signs of a struggle.

Klann's body had scrape marks along the shoulder blades, consistent with being dragged.

The time element didn't track. D'Ambrosio admits to being out with Klann, Keenan and Espinoza on Thursday night, Sept. 22, when Coconut Joe's served 25-cent shots. But D'Ambrosio says he was dropped off unevent- fully at his apartment after the search for Lewis had proved futile.

In court, Espinoza repeatedly switched his testimony about the murder date. Marino argued that the hunt for Lewis began Friday night and Klann was murdered early Saturday.

Prosecutors found a man who corroborated Espinoza. The witness testified he looked out his Little Italy window and saw D'Ambrosio sitting in a truck and holding a knife to Klann as the smaller man wept. D'Ambrosio's team counters now that the sight angles and darkness would preclude seeing any such scene.

D'Ambrosio claims he and Klann were sitting quietly in the truck, listening to the radio, while Espinoza and Keenan barged around looking for Lewis.

D'Ambrosio had no criminal history. His only legal trouble was two DUI convictions.

Marino's recollection was similar. "Mike Keenan was a sociopath," Marino said. "Joe D'Ambrosio was a kid who had everything going for him. He had the bad luck to hook up with Keenan, who was really dangerous."

Asked about the discrepancies at the crime scene, Marino shrugged. "Things are really strange," he said. "What you expect at the scene is what you get 75 percent of the time. Look at the [Sam] Sheppard case."

'We're on God's time'

D'Ambrosio may be the one man on Ohio's death row to say his childhood was happy. He was the longed-for boy born to Italian-Americans Joe and Dorothy D'Ambrosio. His father died when he was 17, his mother in 1998. Their son said two things help him endure his years of shackles and cinderblock.

"My dad brought me up right," said D'Ambrosio, who shaves his head and wears multiple tattoos. "I had my military training. Between those two things, I know I can't let this get to me. Once this nightmare is over, I got to go back to the world."

D'Ambrosio wants that world to see him as a man in the wrong place at the right time, the day before Klann's murder. Asked if alcohol contributed to Klann's death, he shot back, "I have no idea. I wasn't there. The bar stuff and all that happened 24 hours before Anthony Klann died. All Espinoza did was put the two days together."

In 1994, D'Ambrosio passed up an offer to move off death row in exchange for testifying in Keenan's retrial. "I won't lie for them, " D'Ambrosio said. "Lying on the witness stand is what got me here in the first place. My immortal soul is worth much more than that."

D'Ambrosio said he does not blame God for his predicament. "I blame the people who corrupted the system. That's man's work.

"We're on God's time," he said. "Now he allows me a good attorney and new evidence and people coming forward. I'll be on God's schedule when I'm freed. I don't let myself get happy, though, because I can't see the next thing coming."

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Cold-Case Murder May Lead to Death Penalty

ST. CLAIRSVILLE — At 63 years of age, Eugene Blake has spent more than half his life in West Virginia’s penal system for the murder of two women. If convicted in the 1982 murder of Lansing resident Mark Withers, he could be taking up residence on Ohio’s death row.

Blake was named in a three-count indictment Wednesday charging him with the March 19, 1982, murder of then 21-year-old Withers, who resided at 13 East Center St., Lansing.

Withers was shot to death, and his 17-year-old female companion was raped during the early morning hours while the two were parked at Gould Park in Bridgeport.

During a Thursday news conference, Belmont County Prosecutor Christopher Berhalter said Blake is charged with three counts of aggravated murder. Berhalter said the three murder charges stem from different specifications associated with the Withers murder, pointing out that Blake faces the death penalty if convicted.

Blake had been housed at the Mountain State’s medium security Huttonsville Correctional Center but was moved recently to the Mount Olive Correctional Complex, West Virginia’s only maximum security prison.

Berhalter said Blake was moved within the past couple of months after Ohio authorities expressed interest in him. The Mount Olive facility was opened Feb. 14, 1995, as a replacement for the aged West Virginia Penitentiary at Moundsville.

Blake’s prison time began in the late 1960s in Wayne County, W.Va.

He was convicted March 29, 1968, of the Jan. 15, 1967, stabbing death of Donna Jean Ball, 18, a Chesapeake and Potomac Telephone Co. operator who was on her way home after work. Trial documents indicate Blake forced Ball’s car off the road on a secluded area of W.Va. 75 in Wayne County. He stabbed her eight times before she broke away long enough to stop a passing motorist.

After getting into the motorist’s vehicle, Ball pointed toward Blake.

“That’s the car. That’s the man,” she screamed.

Blake sped away. The motorist drove to Ball’s home to alert her family then continued to Cabell-Huntington Hospital, where Ball was pronounced dead. The woman died in the rear seat of the car en route to the hospital.

Blake was sentenced to life without mercy in the West Virginia Penitentiary, but he only served 10 years because on Dec. 23, 1976, then-Gov. Arch Moore commuted Blake’s sentence to life with mercy. Blake was paroled in 1979.

Moore could not be reached for comment Thursday.

While awaiting trial for the Ball murder, Blake was sent to the Weston State Hospital for mental evaluation and on Aug. 25, 1967, he and eight others escaped from the facility.

Blake was recaptured three days later in a car he had stolen after overpowering a Pickle Street farmer and his wife. Police found a shotgun in the stolen car.

Another murder conviction for Blake came in Ohio County on Oct. 18, 1985, when Blake was found guilty of the Oct. 17, 1984, rape and murder of Maryann Hope Helmbright, a 13-year-old Wheeling girl. Prosecutors proved Blake had taken Helmbright from the former Silver Fox Bar he managed on Market Street.

A former bartender testified he saw Blake and Helmbright emerge from a back room of the bar between 1:30 and 2 a.m. on Oct. 24. The witness said as the two were leaving the bar, Blake muttered to him, “Take a good look ..., it’s the last time you’ll see her pretty young face.”

Testimony said Blake took Helmbright to Wheeling Island, where he shot her in the head. He then transported her body to the Morgantown area, where a hunter found her body 75 feet off Chapline Hill Road.

Blake was again sentenced to life without mercy. In addition, under West Virginia’s three strikes law he received yet another life without mercy sentence to be served consecutively with his sentence for for killing Helmbright.

Those sentences were later vacated by the West Virginia Supreme Court of Appeals; Blake was returned to Ohio County for a new trial.

Rather than face another jury, Blake pleaded guilty to the charge and, as part of a plea agreement, he was sentenced to 15 years to life. As a result of that plea agreement, he is eligible for parole again in 2011.

At Thursday’s news conference, Berhalter said Ohio authorities are seeking to have Blake extradited from West Virginia to face the Withers murder charges. Berhalter also credited work of the Bridgeport Police Department, the Ohio Attorney General’s Office and the Ohio Bureau of Criminal Identification and Investigation in solving the case.

“I would be remiss if I didn’t specifically note all the outstanding work of BCI&I Agent Charles Snyder,” Berhalter added.

BCI&I Superintendent Robert Fiatal commended those who solved the crime and pointed to the expertise of forensic scientists who developed DNA evidence.

“DNA was a lead producer in this case,” he said.

Berhalter also read a statement from the Withers family in which they expressed gratitude for the case being solved.

“For our family, these past few days have been bittersweet,” the family wrote. “Even though we now have some resolution, it has caused us to relive a horrible event from the past. We ask you (the media) respect our privacy.”

At the time of the Withers murder, Bridgeport Patrolman Tony Leonard told reporters the assailant walked up to the car, knocked on the window and began screaming for Withers to unlock the door and give him their money.

A newspaper account of the crime reported there were two theories of what had happened: One source reported the man knocked on the car window and when Withers rolled down the glass, he was shot in the temple; another report said Withers was dragged from the car and then shot.

The reports said the female companion, a Wheeling resident at the time, described the assailant as a white male, 6 feet, 4 inches tall, between 250 and 260 pounds with blond hair. She said he was wearing a ski mask, tan cowboy boots, a silver wrist watch and a silver belt buckle with the initial “G” on it.

Police told reporters after Withers was shot, “his body was thrown over a fence down a hill near the park.”

Published reports said the girl was raped after Withers was killed and, when the assailant left the area, she walked to a nearby residence and awakened the residents and called the police.

Former Bridgeport Patrolman Brad Johnson said he and Leonard found the body and later found the girl, who “took off from the park by herself.”

The girl reportedly told authorities that after the shooter threw Withers’ body over the fence, he returned to the vehicle and demanded she have sex with him or he would kill her.

According to the report, the girl was forced into a wooded area, raped three times within one and one-half hours and told to walk for several minutes before returning to the car.

The assailant then walked out of the woods. She was treated and released at the former Martins Ferry Hospital.

Joe D'Ambrosio: Man on death row should get new trial, court rules

A Cleveland man who has spent nearly two decades on Death Row must be given a new trial or let out of a prison, a federal appeals court ruled Thursday.
The three-judge panel agreed with a ruling made in 2006 by U.S. District Judge Kate O'Malley that Joe D'Ambrosio is entitled to a new trial because prosecutors withheld several pieces of crucial evidence that could have exonerated him.

Turning over the evidence would likely have resulted in a different verdict for D'Ambrosio, who was found guilty and sentenced to death after a trial in 1989, the court said in its opinion.

Supporters of D'Ambrosio, 47, hailed Thursday's decision and called on prosecutors to release him from a state prison near Youngstown.

"We're hoping the state does the right thing," John Lewis, part of a team of lawyers from Jones Day who are representing D'Ambrosio for free. "In our view, the evidence that was withheld shows D'Ambrosio did not commit this crime."

Cuyahoga County Prosecutor Bill Mason, through a spokesperson, said he is still considering whether to appeal the decision or retry the case. "We're disappointed in the ruling," Mason said in the statement.

D'Ambrosio claims he was wrongly convicted for the 1988 murder of Tony Klann, then 19. Klann was found dead in Doan Brook, stabbed in his chest and with his throat slashed.

Following a weeklong hearing in 2004, O'Malley ruled that prosecutors withheld 10 pieces of evidence that could have helped exonerate D'Ambrosio and should have been turned over to the defense under court rules.

In one instance, prosecutors did not tell D'Ambrosio's lawyer that the man who accused D'Ambrosio of the murder had his own motive for killing Klann. The man -- Paul Lewis -- was charged in a rape case in which Klann was the only witness.

Also, defense attorneys were not told that the two homicide detectives investigating the case believed Klann was killed elsewhere and then dumped in Doan Brook. That directly contradicted the testimony of Eddie Espinoza, the state's only eyewitness. Espinoza pleaded guilty to manslaughter and served a reduced sentence -- 12 years -- for his testimony.

"The most telling piece of evidence was from the police officers," Lewis said. "These are police officers who came willingly to a hearing and testified that they did not believe the crime was committed where (Espinoza) said the crime occurred."

Shortly after Klann's body was found on Sept. 24, 1988, Paul Lewis pointed investigators to D'Ambrosio, Thomas "Michael" Keenan and Espinoza, who worked together landscaping.

The trio was looking for Lewis because Keenan believed Lewis had stolen drugs from him. Espinoza later testified that they found Klann in Little Italy and forced him into their truck because they thought Klann could lead them to Lewis.

Espinoza testified during the 1989 trial that the men drove to Doan Brook, where Keenan slit Klann's throat and pushed him into the creek. Klann begged for his life and tried to escape, but D'Ambrosio caught him and killed him, Espinoza testified.

However, detectives said they found no blood on the creek bed, signs of a struggle or tire marks leading to the creek.

At the time of the murder, Lewis faced charges for raping Klann's roommate. Klann was the only witness subpoenaed to testify against Lewis.

Ralph DeFranco, D'Ambrosio's lawyer in the murder trial, testified that prosecutors never told him about the rape case. Former Assistant County Prosecutor Carmen Marino knew about Lewis' rape case but did not inform DeFranco, as he was obligated to do, O'Malley said in her order for a new trial two years ago.

O'Malley said in that ruling that defense lawyers could have crafted a different strategy had they known about the case.

The appeals court Thursday upheld O'Malley's ruling and concurred that D'Ambrosio would probably not have been found guilty if the evidence was turned over.

The state can ask the appeals court to reconsider the ruling as a whole. The state can also petition the U.S. Supreme Court. Neither body is obligated to hear the case, Lewis said.

D'Ambrosio will likely remain jailed during the appeals process. He has remained in prison since O'Malley initially ruled in March 2006 that he deserved a new trial.

Wednesday, 4 June 2008

Ruling on death penalty due soon

ELYRIA — Attorneys challenging the state’s lethal injection process on behalf of two accused killers failed to prove that the way the state executes prisoners is unconstitutional or that it violates Ohio law, according to prosecutors defending the process.

The state’s protocols are not only constitutional, they meet the requirements of an Ohio law that requires executions to be quick and painless, Assistant Lorain County Prosecutor Tony Cillo wrote in his closing argument, filed Tuesday.

“Because the undisputed evidence establishes that the properly anesthetized inmate cannot feel pain, Ohio’s three-drug cocktail is, by definition, ‘painless,’ ” Cillo wrote.

Lorain County Common Pleas Judge James Burge said he will likely issue a ruling in the cases of Ruben Rivera and Ronald McCloud, who could face execution if convicted in separate killings in Lorain, within the next two weeks.

Jeff Gamso, one of the attorneys representing the pair, has conceded that the three-drug cocktail used by Ohio in executions offers a painless death if properly administered, but he argued that the state can’t guarantee that nothing will go wrong in the execution process

Cillo asked Burge to throw out the closing argument submitted by Gamso, who also serves as legal director for the American Civil Liberties Union’s Ohio chapter, saying that he didn’t follow the judge’s instructions on how he should present his argument.

Gamso also had asked Burge to reconsider allowing him to interview the three members of the execution team with medical training, something Burge had previously refused.

In his closing argument, Cillo also renewed his objections to Burge even holding hearings on the constitutionality of lethal injection, saying that the judge shouldn’t even consider the issue unless McCloud and Rivera are convicted and sentenced to death.

Burge and the Ohio Supreme Court both rejected that argument, and Burge held hearings earlier this year in which two anesthesiologists testified that the lethal injection protocols used in Ohio were sound, as long as they are done correctly.

But the defense expert, Mark Heath, argued that if the first drug in the process — a sedative — didn’t keep an inmate unconscious, the second and third drugs — which paralyze the condemned inmate and stop his heart — would cause excruciating pain.

Mark Dershwitz, who testified for prosecutors in the case, said the amount of the sedative used by the state is powerful enough to kill an inmate without the aid of the other two drugs.

That prompted Gamso to say that the state should switch to using only the sedative, although he remains opposed to the death penalty.

Cillo countered that a recent U.S. Supreme Court decision upheld lethal injection and Gamso had failed to prove that there was a significant chance of something going wrong.

Contact Brad Dicken at 329-7147 or

Do defendants in Georgia have any right at all to competent representation?

During his five years as a justice of the Georgia Supreme Court, four of them as chief justice, Norman S. Fletcher says he voted to affirm "countless" murder convictions and a significant number of death sentences. But today Judge Fletcher is having second thoughts about one man he voted to send to the executioner in June 1993.

Curtis Osborne is scheduled to be put to death by the state of Georgia tomorrow night for a gruesome double murder he committed in 1990. There is no question that Osborne is guilty. But Fletcher says neither Osborne's jury nor the Georgia Supreme Court knew the full truth about his history at the time they made their decisions. Most importantly, he says, they didn't know that Osborne's lawyer was a racist and had never put in the time needed to present his client's mental problems and abused past, having concluded that, "The little nigger deserves the death penalty."

On Monday, despite a letter from Fletcher and other testimony, the Georgia parole board rejected without comment Osborne's appeal to have his sentence commuted to life in prison. This is a monument to the bankruptcy of the constitutional right to be represented by an attorney. The Supreme Court has never explicitly stated what level of competence is required to satisfy the Sixth Amendment's right to counsel, instead inviting state and local bar associations to come up with their own standards. But the local bars have been notoriously unwilling to challenge the performance of their bad-egg members. This case demonstrates that it's past time for the high court to wade back in and demand rigorous standards to which lawyers are held accountable. Osborne's lawyers are filing a series of last-minute appeals in an attempt to save his life.

The lawyer that Georgia assigned to Curtis Osborne, Johnny Mostiler, barely lifted a finger to defend him. Mostiler never hired a psychiatrist to examine evidence that Osborne was a victim of childhood abuse, and was borderline retarded, despite a court-ordered sanity evaluation that had found "indications of depression, paranoia, and suicidal ideation." He never examined the history of mental illness in Osborne's family because, he said, he didn't know how to conduct that kind of investigation. Mostiler called no expert witnesses to testify for his client and didn't bother to interview the state's experts before they appeared at trial. And he rejected appointment of a second attorney to help with Osborne's defense, which the American Bar Association and all serious death penalty litigators say is essential if a capital murder defendant is to receive a fair trial.

And then there is the matter of Mostiler's alleged racism and how it might have affected his defense of Osborne. The most explosive evidence of racial bias is contained in an affidavit by one Gerald Steven Huey, a client of Mostiler's. In addition to the quote Judge Fletcher cites, Huey says Mostiler made it clear that he would not be spending much money on Osborne's defense because "that little nigger deserves the chair." Huey also charges that Mostiler was offered a plea bargain under which Osborne would have received a life sentence in exchange for a guilty plea, but that the lawyer said he "would never tell Mr. Osborne about it because he deserved to die."

Huey might not be the most credible witness on the planet. He's serving a life sentence for murdering and dismembering a drinking pal and didn't come forward with his claims until 2000, long after Osborne's trial and appeal. By then, Mostiler was dead and couldn't defend himself. But Huey isn't alone in suggesting that Mostiler's racism might have infected Osborne's defense. In March 2000, Derrick Middlebrooks, an African-American on trial for selling cocaine, asked the trial court judge to replace Mostiler, saying the lawyer told him that he wouldn't go to a particular neighborhood "because them niggers would kill him."

Asked by the trial judge about the comments, Mostiler didn't deny them. And in a new affidavit filed on Monday, Arlene Evans, who practiced law in the same county as Mostiler, says she also heard him use "racial slurs like 'nigger.' " She recounted one conversation in which, "Mr. Mostiler said he thought young black men were lazy and asked me why I thought that was so."

Perhaps most importantly, Evans says she has first-hand knowledge of Mostiler's failure to adequately defend Osborne. Evans was initially assigned to Osborne's case, after he was charged with murder in 1990. Because she had never tried a death penalty case, she asked the court to appoint co-counsel, and Mostiler was assigned to work alongside her. But over the next several months, Evans said Mostiler "was always too busy to meet with me or me and Mr. Osborne." Evans says she withdrew from the case in April 1991, eight months after Osborne's arrest, out of frustration, "Because I did not feel I was qualified to handle a death penalty case, and because I did not believe Mr. Mostiler was prepared to defend Curtis Osborne." Unfortunately for Osborne, that left him with only Mostiler. Although Evans insists she has spoken out about her former co-counsel before, it is a great pity that her detailed allegations did not surface until Monday.

In his letter to the parole board, Judge Fletcher explains why he did nothing to correct the injustice in Osborne's representation when the case came to him on appeal in 1993. His "weak response," he said, was a result of the limited review appellate judges provide: They can address only issues raised and ruled on by a lower court judge. Because of Mostiler's "grave shortcomings," the mitigating evidence about his past that might have saved Osborne's life never got a hearing. One state trial judge considered and rejected a claim that Osborne deserved a new trial because of Mostiler's ineffective lawyering, but that ruling came before the evidence of Mostiler's racial views emerged. No court has addressed the evidence that Mostiler's failure to act on his client's behalf might have resulted from his racial animosity. Now the only chance for Osborne is that the Georgia Supreme Court or the U.S. Supreme Court will order a lower court to review Mostiler's track record. It's a slim one.

If Your Lawyer Wants You Executed

By David Von Drehle

In 1990, Curtis Osborne, a small-time cocaine dealer and addict, killed two people in a dispute over $400. His crime revulsed the town of Griffin, Georgia, one measure of which was the bigoted remark a local inmate reported hearing at the jail: "That little nigger deserves the chair."

As repulsive as the remark was on its own, far more disturbing was the fact that the person alleged to have uttered it was Osborne's own court-appointed lawyer. And somehow, through years of appeals in state and federal courts, no tribunal has squarely confronted this basic but fundamental question: is a person on trial for his life entitled to a lawyer who does not hold him in contempt and believe he should be executed?

Osborne is scheduled to be executed Wednesday. His last-ditch plea to have his sentence commuted to life in prison was denied this morning by the state Board of Pardons and Paroles, despite supportive letters from Georgia luminaries including former President Jimmy Carter and former deputy attorney general Larry Thompson — a Democrat and a Republican, respectively.

His case is a vivid example of the way legal "technicalities" have tipped the scales from favoring death row prisoners to favoring the state. Georgia officials, after all, never had to try to prove that Osborne's lawyer was not a bigot, or even that his feelings about his client shouldn't matter one way or the other. Instead, they were the beneficiaries of court rulings that said the issue was moot for procedural reasons.

From the record of his case, Curtis Osborne was a numbskull junkie who managed to sell his friend's motorcycle for $400, then pocketed the money. When the friend came after the cash, Osborne shot the man and his girlfriend at close range. He later tried to explain the gunshot residue on his hands by saying that he fed his dog doses of gunpowder, but the authorities weren't impressed. Osborne eventually cracked and confessed.

Soon after, the flamboyant Johnny Mostiler, a local lawyer known for his abundant jewelry, handlebar moustache and overwhelming caseload, became his attorney. In those days, Mostiler represented all the indigent inmates in the county for a flat annual fee, hundreds and hundreds of felony cases. His clients often filed into court shackled to one another in rows to enter their guilty pleas, according to a profile in American Prospect magazine. So suffice it to say that he didn't have a lot of time for Osborne.

Preparation for a first-rate capital defense can often take hundreds of hours, including an extensive investigation of the accused's childhood, mental health, drug abuse history and so on. But the law does not promise a first-rate defense. As a panel of judges from the 11th Circuit Court of Appeals said in denying Osborne's request for a new trial, "for a petitioner to show deficient performance" by an attorney, "he must establish that no competent counsel would have taken the action that his counsel did take." And how do you show that? "There are no absolute rules," the judges said vaguely.

So throughout Osborne's legal odyssey state and federal judges combed through his appeals in an effort to decide just how third-rate Mostiler's work actually was. Osborne argued that Mostiler should have uncovered exculpatory evidence. The courts decided that the evidence wasn't exculpatory enough. Osborne's lawyers said Mostiler should have called experts to challenge the prosecution case. Courts decided that experts would not have changed the outcome. Osborne challenged the failure to conduct a robust examination of the role of mental illness and addiction in his unraveling. The courts believed Mostiler's testimony that he never saw any evidence of drug abuse or illness. Instead, Mostiler chose to argue to the jury that Osborne's crimes were not premeditated, an ultimately unsuccessful strategy that appeals courts found to be nonetheless reasonable.

All in all, Osborne's has been a fairly typical capital appeal, in which the defense team heaps allegations on the original lawyer — the high-living Mostiler died of a coronary in 2000 — while the prosecution extols the brilliance of the condemned man's trial attorney. "Mostiler was the toughest trial lawyer in Spalding County," one prosecutor declared of a man far better known for engineering guilty pleas than for winning cases in the courtroom.

Which leaves the alleged racist remarks and the attorney's apparent belief that his own client deserved to die.

Those words didn't actually surface until years after they were allegedly uttered, when another Mostiler client at the time of Osborne's trial reported the slur. He said Mostiler indicated that he wasn't planning to work very hard to save the killer and that he wasn't telling Osborne that the state was offering a plea bargain to life in prison. The issue of the plea deal had already been raised in an earlier appeal before the lawyer's death, and when Mostiler testified that he conveyed the state's offer and Osborne turned it down, the appellate judges chose to believe him over his former client.

It's too late to ask him about the n-word in Osborne's case — but this is not the first time Mostiler has been accused of using the word to describe a client. In another case, a defendant unsuccessfully tried to get a new lawyer because Mostiler was calling him hateful names. When the judge turned to the lawyer, Mostiler didn't deny it. "I honestly can't say whether I said it or not. I don't use those terms out in public," was as far as he would go.

But neither Mostiler nor the State of Georgia was ever pressed on the matter. State courts ruled that Osborne waited too long to raise the issue, and federal courts deferred to that decision. The 11th Circuit panel closed the matter in dry and technical terms: "The state trial court relied upon Georgia procedural rules in denying Osborne relief on this claim. As such, the claim is barred from federal review."

Of course, we are talking about a confessed killer of two people. Some Americans believe that all such aggravated murders should be punished by death. That's not the law, however: in 1976, the Supreme Court ruled that mandatory death sentences are unconstitutional. Instead, each capital case must be individually scrutinized on its own merits.

But is this individual scrutiny possible when the prisoner's attorney slurs him and says he deserves to die? For Curtis Osborne, the ultimate insult is that such a crucial question is barred from review.