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Ohio Innocence Project takes on Father Robinson's case

The Ohio Innocence Project has formally entered an appearance as co-counsel for Father Gerald Robinson. The appearance, filed on April 28, is expressly "For Issues Relating to DNA."

The Ohio Innocence Project, consisting of law faculty and students from the University of Cincinnati College of Law, includes  experts in DNA evidence -- specifically exculpatory DNA evidence in murder cases.

As one director of the program remarks, "We're not accepting these cases unless we really believe they [the defendants] are innocent."

And as the project's co-founder remarked, "“It’s our goal to never accept the word of a prosecutor, judge, or trial court."

I told them about the DNA evidence in Father Robinson's case a couple months ago. And they get it. They understand that when a male DNA profile is recovered from the bloody fingernail scrapings of a strangulation victim, that DNA evidence, if it doesn't match the man convicted of the crime, is in fact exculpatory.

A hearing is coming soon in his case. We can count on the prosecutor to oppose the Ohio Innocence Project's DNA testing requests. In a recent piece in the Toledo Blade, the prosecutor can be seen spluttering and saying nothing of the DNA evidence in the case except that he welcomes further review of the DNA and is confident that it does not exonerate Father Robinson.

We'll see about that.

Others are watching this case closely, including another who noticed that the Toledo Blade is quite partisan and does not tell both sides of the story. I'm not alone in thinking that numerous journalists and true crime authors have "a vested interest in Father Robinson never being found innocent."

What does it mean that the prosecutor "welcomes further review" of the DNA? Does this mean he will finally agree to run the DNA profile recovered from Sister Pahl's body and clothing through the FBI CODIS DNA database and compare it to Coral Watts and any other suspect in the murder of Sister Margaret Ann Pahl? And if he is going to stipulate to the testing, I wonder how long it will be before we may have an answer.

A Good Friday Prayer for Father Robinson

Father Gerald Robinson, the Roman Catholic priest who was wrongfully convicted of murder in 2006, is on my mind today. I've said quite a few prayers for him, and I'm not exactly the praying type.

I am told (second- and third-hand) that Ohio Inmate Number A519811 is doing rather well considering he is incarcerated for a grotesque crime that he did not commit. One correspondent advises me that he has "quite the following" at the Hocking Correctional Facility. I pray it's true.

There is a lot happening lately in his case, some of it public, some not, and those of us who are persuaded by such things as DNA evidence have cause for optimism.

GAG ORDER?

The award-winning prosecutor who secured this ridiculous "Satanic murder" conviction filed a bizarre motion in the case on Friday, February 13. Maybe he was feeling a bit superstitious. In it, he asked the trial court to impose a gag order on "all counsel."

This request is extremely unusual. Gag orders are sometimes imposed on attorneys in high-profile cases to prevent them from talking to the press. But the purpose of gag orders is to prevent pretrial publicity from tainting the jury pool and preventing a fair trial. In Father Robinson's case, the trial is over. A POST-trial motion for a gag order is not supported by any court rule or precedent that I'm aware of - and I've looked. It's ignorant. It's un-American.

The prosecutor's request for an order that would violate the free speech rights of the defense attorneys cannot possibly be justified under either the Ohio law or the First Amendment. Besides, issuing a gag order now in the Robinson case would close the barn door when the horse is out. His trial was televised; there are three books in print about the case.

Strange request, inn'it? Methinks the prosecutor fears embarrassment.

Fortunately, the trial judge has yet to dignify this request with a hearing date. Which brings me to...

A NEW JUDGE

Father Robinson's original trial was overseen by Judge Thomas Osowik, who took advantage of the publicity in the case to get himself elected to the Ohio Court of Appeals. This is wonderful, I say, because his replacement can't do worse.

The new judge assigned to the case is the Hon. Gene A. Zmuda, who was appointed to the circuit bench mere weeks ago. His background is in insurance defense law, which gives me, as someone who has always practiced in that area myself, some cause for hope. Then again, Toledo is a small town. The legal world in Toledo is a bit "incestuous," as one area practitioner once remarked to me.

NEW EVIDENCE

The attorneys handling this case now have uncovered new evidence since the trial -- critical evidence that was withheld from Robinson's trial lawyers. That evidence includes the fact that there was another named suspect in the murder of Sister Margaret Ann Pahl.

That other suspect was serial killer Coral Eugene Watts. As it turns out, Sister Pahl's murder was investigated by the Coral Watts Task Force in the 1980s -- a fact that the police and prosecutors conveniently forgot when they put Father Robinson on trial. The Toledo police gave testimony under penalty of perjury that Father Robinson was the only suspect they ever had. That testimony was false.

Armed with this bombshell evidence, Father Robinson's attorneys have peppered Judge Zmuda with several pleadings recently. Among them is a motion seeking discovery. Meanwhile, the Ohio Innocence Project, attracted by the DNA evidence from the victim's fingernail scrapings (which did not match the priest), has expressed an interest in this case.

Unfortunately the Toledo media haven't read the latest pleadings, or so it seems. I haven't seen a story about the case since the prosecutor requested an illegal gag order. I hope they're not intimidated, but maybe that was the intended effect of that request all along.

I continue to closely follow every new development. I went to Toledo twice to read the pleadings myself. The judge's clerk told me I wouldn't be allowed to read the trial transcript (only "attorneys of record" are permitted to do so, she claimed). I requested the transcript anyway from the criminal clerk's office. They said they'd call me when they'd pulled it from the basement of the courthouse, or so they promised me both times. That was months ago now, and I'm still waiting for the phone to ring.

The docket for the case is online at http://www.co.lucas.oh.us/index.asp?NID=99 (Search term: Robinson Gerald; Case number: G-4801-CR-200401915-000). At this point, no hearings have been scheduled, but I look forward to another trip to Toledo sometime in May. Maybe they'll let me see the court file next time I'm down there, unless the City of Toledo has suspended the Constitution entirely.

Many people will be saying some extra prayers this weekend. Mine will include a request that Gerald Robinson be cleared and restored to his liberty, family, and friends, and that justice and common sense are resurrected in Toledo.

Shaky science in the courtroom

The USA's National Academy of Sciences has released a report detailing systematic problems with certain types of "forensic" evidence that is routinely admitted into our courts today but is based on some pretty shaky science.

Consider bite marks, tool mark comparison, and my least favorite, bloodstain transfer evidence -- the new disciplines have proliferated faster than our scientific institutions can measure and vouch for their reliability.

Nothing has been proven more reliable than DNA, and it remains the preeminent class of forensic evidence aside which all others pale.

As the Academy is advising, "Exonerations from DNA testing have shown the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis."

A press release describing the report can be found on the institution's website and fortunately the entire lengthy report can also be found for free if you scour the page.

http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589

 I'd say this one should fall under the category of tell-us-something-we-didn't-know-and-do-something-about-it. I can already think of a case in which this report should be brought to the judge's attention.

A break in Father Robinson's case?

WTOL in Toledo is reporting on an affidavit that suggests jury misconduct during Father Gerald Robinson's murder trial.

The sworn testimony of an acquaintance of one juror, if true, confirms my worst fears: the jury believed that Father Robinson was a child molester, so they convicted him of murder, despite the exclupatory DNA evidence. As one expert quoted in the piece remarks, the disclosure is "disturbing." But is it enough to get him a new trial? We can hope.

Fighting on for Father Robinson

Here's three cheers for Father Gerald Robinson's attorney because he's not giving up.

This case fits perfectly within the very, very narrow criteria for the Innocence Project. I've written, as have others. We still wait.

A concurrence re: Father Robinson

The law professors network blog EvidenceProfBlog has a slightly different take on State of Ohio v. Father Gerald Robinson. Colin Miller, assistant professor of law at Chicago's John Marshall Law School, wrote a long opinion piece criticizing the appeals court's decision on other grounds besides mine.

The professor criticizes the court's dismissal of the rough treatment of expert witness (and famous author) Kathy Reichs by the prosecution in the trial. She is a very well known and respected expert, and this case was only the second time she has ever testified for a defendant (out of hundreds of cases). She was branded a hired gun and much worse by the prosecutor.

The case would make for a good episode of Fox's TV show Bones, the professor says. He goes on: "It would seem to me that the holding is inconsistent with prior Ohio precedent.... Maybe the Ohio Supremes will spill more ink in what I imagine would be Robinson's impending appeal. "

Father Robinson: Affirmed

The Ohio Court of Appeals has upheld the murder conviction of Father Gerald Robinson. In a 95-page opinion, the court dismissed the exculpatory DNA evidence as "contamination" and approved the testimony of an expert in occult rituals, becoming the first court in the United States to allow evidence of satanic ritual in a murder case.

There was forensic evidence on the body of Sister Margaret Ann Pahl. In addition to her own DNA profile, one other profile was found. It appeared on her underwear. Her fingernails were tested and in her nail clippings was found a man's blood. The DNA from the underwear matched the DNA from beneath her fingernails. Father Robinson was not the man who left his DNA on this murder victim. He was not the man who left his blood underneath her fingernails.

This, to anyone versed in DNA evidence, should have pointed away from Robinson as the perpetrator. But the Court of Appeals has accepted the prosecution's far-fetched contention that this DNA must have come from someone at the crime scene, medical responders or somebody unknown. It beggars belief to think that a medical responder somehow managed to allow himself to be scratched to the point of bleeding by the fingernails of a corpse and to simultaneously leave his DNA on her underwear as well (and failed to tell anyone). No less amazing is that the Court of Appeals co-signed this dismissal of exculpatory DNA evidence.

The testimony of Father Grob was also approved. Generally courts don't allow FBI profilers to testify, and that was one objection to his testimony. The Court of Appeals rejected the analogy, stating that Father Grob's testimony had nothing to do with "profiling." In coming to that conclusion (page 62), the court only reveals that it knows nothing about profiling.

Once again, it is noteworthy to me that an appellate court has now authorized "satanic ritual" evidence in a murder case. This is the only modern court in the United States to allow such evidence. I ran a search through Westlaw for every case in the USA containing the words "murder" and "satanic" and/or "upside-down cross." I found hundreds. I wrote down the cites. In none of those cases did an appellate court say it was acceptable for either a prosecutor or a defendant to use such evidence -- until now, that is.

Anyway, that's enough for now. I have to go kick the cat.

The opinion can be found here.

Oral Arguments in Father Robinson's Appeal

On St. Patrick's Day the 6th Circuit Court of Appeals in Toledo, Ohio heard oral arguments in the appeal of Father Gerald Robinson's murder conviction. I wasn't going to miss it, and I didn't. But I left with a sinking feeling.

The small courtroom was standing-room-only by the time the judges entered; about thirty people were there to hear arguments on that one case, which in my experience is quite an unusually large crowd.

The three-judge panel, consisting of men who between them have 67 years of experience on the bench - Judges Peter M. Handwork, Mark L. Pietrykowski, and William J. Skow - allowed fifteen minutes per side for argument, as is customary, but which wasn't much time for this factually complex case. They asked only two questions, both directed to defense counsel.

The subject of the exculpatory DNA evidence did not come up - per se. But the prosecutor did make what I thought was a stunning admission in that regard.

During the defense attorney's argument, it was posited that another priest - Father Jerome Swiatecki - may have murdered Sister Margaret Ann Pahl. In rebuttal, the prosecutor pointed out that that the State was able to secure tissue from the late Father Swiatecki. They did a comparison to the DNA (the prosecutor dismisses it as "cellular material") found on the murder victim's clothing, and, stated the prosecutor today, "he was excluded."

It was hard to bite my tongue. If the State of Ohio excluded Father Swiatecki as the murderer because he did not match the DNA, then why wasn't Father Robinson, who also did not match the DNA, also excluded!?

Needless to say the prosecutor swiftly changed the subject. I don't think we'll ever get a straight answer to the question that has bothered me for two years now. Unfortunately the panel asked no questions about DNA. Later, the prosecutor remarked that the "cellular material" "probably" came from one of the men who bagged the victim's body for removal.

But that doesn't explain how the same male DNA profile came to be found underneath the fingernails of both of her hands as well.

And if it were true - if the DNA evidence came from an innocent third party - then how could it exclude Father Swiatecki? The prosecutor tied himself into a knot trying to explain away this DNA.

Judge Skow asked if the errors made by the trial lawyers for Father Robinson weren't "invited" errors. It was quite disheartening to hear this question; will the Court of Appeals actually rule that Father Robinson's trial wasn't fair, but he won't get a new one because his own lawyers were the ones who hopelessly messed up the case?

The only other question posed was again aimed at defense counsel. Judge Handwork asked: What does the defense make of the evidence that the letter-opener owned by Father Robinson fit neatly into a "defect" or hole in the victim's mandible bone? It was a good question reflecting preparation on the judge's part. Unfortunately, the panel may begin deliberations while laboring under the impression that this was objective and irrefutible evidence, rather than the opinion of an expert who "could not exclude" the letter opener as the object that made the hole. As defense counsel pointed out, "If 'it could not be excluded' could be a basis for guilt, God help us all."

I hope that the appellate court will not discount the only truly objective evidence in the case: the unknown male DNA profile recovered from the victim's underwear and fingernails.

"All the evidence is entirely consistent with Robinson being the killer," the prosecutor concluded.

Except, of course, for that pesky DNA.

Oral Argument

Next week I'm going to Toledo.

Father Robinson Update

A woman who accused Father Gerald Robinson of satanic sexual abuse filed suit against him and many others in 2005. That suit was dismissed on statute of limitations grounds, since she alleged "clerical ritual and sexual abuse" that supposedly took place decades ago. In an opinion issued a few days ago, the Court of Appeals for Ohio reversed that decision and sent the case back to the trial court to be fully litigated.

Then, in my opinion, the civil case will be revealed for what it really is: a hoax perpetrated by a mentally ill woman who is really fifteen years too late with this claim.

Ritual abuse claims were popular for a while in the 1980s and early 1990s. But the Federal Bureau of Investigation undertook a comprehensive investigation of the phenomenon in 1992 - and didn't find diddly squat to support it. Many legal scholars have expressly and resoundingly rejected these claims. Police officers who have investigated alleged ritual murders have rejected it, most notably Terry L. Kern, who wrote this thoughtful article about a satanic abuse case he investigated.

The Toledo Blade wrote a piece on the reinstatement of the civil suit written by David Yonke, author of Sin, Shame, And Secrets. Meanwhile Fred Rosen's take on the case comes out this week. It's When Satan Wore A Cross. Although I disagree with their conclusions, I cannot denigrate any true crime author - anyone who has spent hundreds of hours on research and writing. But I can't bring myself to agree with the guilty verdict.

Not when the DNA tests revealed that the man who was convicted of the murder was not the same man who managed to leave his DNA in the left-hand fingernail scrapings, right-hand fingernail scrapings, and on the underwear of Sister Pahl. In the Robinson case, an outrageously sensationalized prosecution coupled with milquetoast defense lawyers (and the despicable cover-ups in the Catholic church in general) led, in my opinion, to a wrongful conviction in this case.

The appeals court's decision in the civil case is purely procedural. The appellate judges were required by law to assume that everything Jane Doe pleaded in her complaint is true. They determined that the "discovery rule" trumped the statute of limitations - that the plaintiff must be excused for not suing twenty years ago because she did not know then whom to sue.

What she pleaded, per the opinion, is this:

Survivor Doe specifically alleges that the crimes began to occur while she was attending St. Adalbert from 1968 through 1972. She was kidnapped against her will and "held either against her will or by beguilement in the basement of St. Adalbert's." While being held there, she was used in elaborate, ritualistic ceremonies. The people perpetrating the crimes were dressed in nun habits and referred to themselves with the first name of a woman and then their own name. Robinson called himself "Mary Jerry" and Mazuchowski called himself "Carrie Jerry." Appellant has recalled suppressed memories of another yet unknown man who was referred to as Sue.

After appellant left St. Adalbert school, the abuse continued in a wooded area. Her mother, who also participated in the ceremonies, took her to them. [Jane Doe] was intimidated from disclosing the events of all the satanic ceremonies at the time they occurred because the perpetrators threatened to kill her if she told, caused her to believe that she was Satan's child, and demoralized her.

That is, if media accounts are accurate, only the tip of a satanic iceberg.

The reversal of the dismissal is in my opinion a good turn of events for Father Robinson and the Church. These allegations will now receive a full airing when Jane Doe is questioned under oath and her attorneys are required to support these allegations with evidence.

More importantly, unless the Catholic church settles the case - which seems unlikely, since they've said from day one that her claim is without merit - and also assuming that a decent set of lawyers is hired to defend Robinson this time (unlike the unprepared schmucks who phoned it in during his criminal case),  it all might come out in the wash.