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Ellen Belcher is the Dayton Daily News opinion pages editor. She writes about state government, education, the environment, higher education and all things Dayton.
Martin Gottlieb is an editorial writer and columnist for the Dayton Daily News opinion pages. He focuses on the political process itself and does such national issues as war, the economy, taxes and Social Security, as well as a hodge-podge of local and state issues.Home > Blogs > A Matter of Opinion > Archives > 2009 > July > 29
Wednesday, July 29, 2009
Martin Gottlieb: Rape case ruling clears way for focus on who did it
Jim Petro says, “Every day I wake up thinking about (Roger) Dean Gillispie,” a convicted rapist who’s languishing in prison. Petro, one of his lawyers, is convinced he’s innocent.
Petro is a longtime politician: attorney general, state auditor, Cuyahoga County commissioner, possible candidate for chief justice of the Ohio Supreme Court. He does have a feel for lines that get attention. So maybe you don’t want to take him at his word.
But he is far from the only one who has Gillispie on his mind.
Gillispie was convicted in 1991 on nine counts of rape, plus related crimes (kidnapping, robbery), on the basis of testimony by the victims. Parking lots outside a drug store in Harrison Twp. and near the Dayton Mall were crime scenes.
There was no physical evidence. Gillispie had had no major trouble with the law before that and has been a model prisoner since. His defenders think the eyewitness testimonies were achieved through manipulation and just don’t hold up. They say the victims’ original descriptions of the assailant don’t come close to matching Gillispie’s appearance.
Gillispie is now defended by the well-respected Innocence Project, operating out of the University of Cincinnati School of Law. (The project has been a leader in overturning convictions with DNA evidence. However, there’s no DNA in this case.) Last Friday the Gillispie situation was ruled upon by the Ohio 2nd District Court of Appeals. That’s the court just above the county level (common pleas) court in the Dayton region.
The ruling was not entirely satisfying to either side. But from a certain point of view, it might be considered perfect.
If you are eager to make sure the innocent aren’t jailed, but you are skeptical when convictions are overturned on technical grounds — procedural issues, call them what you will — this was your decision.
The three-judge unanimous ruling (Jeffrey Froelich — doing the writing — Mike Fain and James Brogan) rejected lots of complaints by the defense about how the case has been handled by police, prosecutors and courts.
Petro had been particularly hopeful that the court might free Gillispie pending a new trial, on grounds of violation of something called the Brady rule. That rule requires that prosecutors make sure a defendant’s lawyers know about any evidence that the prosecutors have that might work in the defendant’s behalf. The Gillispie side said crucial material was withheld.
But the Brady claim was not upheld. Gillispie did not get freed. A new trial was not ordered.
But the court did call for a new hearing. It pointed to new evidence that suggests that somebody else might have done the crimes. (You can read the decision at the court’s Web site at mcohio.org/SecondDistrictAppeals. Look for “opinions.”)
In that regard, the court overruled Montgomery County Common Pleas Judge A. J. Wagner on a crucial point. Wagner had turned down the request for a new trial or new hearing in the case. He noted that Gillispie had actually been convicted in two trials on the same charges, and he said the Gillispie side has no important new evidence. The identity of the other suspect has, indeed, been known for years. He was even referred to in a previous trial.
But the appeals court said new evidence that has materialized since that trial includes the fact that the other man did a couple of things during the crime that the rapist did, according to victims. He bragged of being a contract killer, and he used the name “Roger” about his brother, even though that wasn’t his brother’s name.
Also, when confronted out of court by a lawyer about the rapes, the other suspect asked about “the ladies” before he was told there was more than one victim. And he has a “distinctively authoritative” voice, like the described rapist.
Also, the Gillispie team submitted “several purported photographs of (the second suspect)… which are similar to the composites and descriptions by the victims,” the court said.
So now Wagner holds a hearing — perhaps in September — to see if there should be a new trial.
The appeals court decision is thorough and impressive. It goes through arguments that lawyers have been flinging at each other and at others for years, trying to get to the bottom of each, or at least to the legal import.
The decision brings all the questions down to one:
After all these years, do we really know who did these crimes?
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