CASE SUMMARY: ISSUES OF THE CASE

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Despite the direct Trial testimony of the lead detective that there were no identifiable fingerprints found at the crime scene, (Transcript page 211) it was later discovered through documents obtained from the Prosecutor's files that there were, in fact, two fingerprints "with sufficient ridge detail for comparison" found on Johnson's glasses, which were found thrown down next to her body by the killer. The Ohio Crime Lab ("BCI") issued a report of the fingerprints being compared with Johnson's, Dan Miller's, and two other suspects never mentioned at Trial, with no match. They were never compared with Matt's. 

Matt spent the next 15 years, from 1997 - 2012 trying to get his fingerprints compared with theirs, being rejected by the Trial and Appellate Courts. In 2010 (unbeknownst to Matt,) the BCI sent everything back to Ashland County, which destroyed the glasses and the prints. 

The Prosecutor knowingly withheld voluminous amounts of exculpatory evidence that proves beyond any doubt that he knew he was prosecuting an innocent man. More evidence exonerated Matt than tended to inculpate him, and the inculpatory evidence was all fabricated. While the factual evidence was withheld.

• While on remand at Ashland County Jail, communications between Matt, his Court appointed Trial Counsel and the Investigator were all conducted by phone or personal interview. During these communications, names of potential witnesses were discussed, and who could prove/dispute areas which may be presented at the Trial. Often, the very same day, those potential witnesses were called by the Prosecution! This information could only have been obtained from listening to privileged phone calls. Further, those witness names would show up in a Supplemental Discovery response as new prospective State Witnesses.
• The State intercepted the name of one of Matt's character witnesses, Marcus Hood on the phone, and subpoenaed him as a state witness, threatening to revoke his probation if he did not testify their way.
• Upon initial direct examination of the County Coroner, the Prosecution made a specific point to elicit testimony that it was “difficult or impossible” to determine whether the assailant was left or right-handed, thereby discrediting the testimony of the pathologist consulted by the Defence who was yet to testify. The only way the Prosecution could have known that Matt was planning to present this evidence was through Matt’s privileged telephone conversations with Counsel.

Prosecutors provided eleven supplemental responses to discovery stretching over the course of several weeks and extending 2 weeks beyond the original Trial date! The materials they delayed in disclosing had been in their possession since 1986, for the 1990 Trial. There was no reason whatsoever to waste such valuable time in disclosing the same. 

During discovery and Trial, no mention was made of the existence of two partial fingerprints, sufficient to make comparisons which were maintained by BCI office or the several occasions that fingerprints other than Matt’s were sent for comparison.

The prosecution never produced a copy of the report from Mansfield Police Department’s investigation into twenty-one unsolved homicides, with rumors of Police Department involvement. The report was finalized in 1989, prior to Matt’s Trial. Of note, the report focussed on four cases, including the one of Gurcia Johnson, of which Matt stood convicted. A portion of the report dealing with this homicide contained a list of several witnesses who gave investigators information regarding suspects other than Matt. The Report states that these individuals were present in the bar that night and their statements were being “retained on file for future reference”. None of these individuals had their identities disclosed to the Defence. This report, the “Greenhalgh Report” was not produced in discovery despite the exculpatory nature of evidence contained therein. The report also stated that Gurcia Johnson had been the victim of a contract hit, according to Christopher Hill, Mr. Hill’s name was not divulged to the Defense as a potential witness.

All patrons from the Kallethea were known to the prosecution and had statements taken, none of them were called to testify either for or against Matt except LaTreva Perdue who confirmed Matt was not either of the two men in question.

By referring to the Court records, it is clearly demonstrated that several witnesses of the Prosecutor were knowingly perjuring themselves by making false testimony against Matt.

• Testified Matt had been at Kallethea Bar at 3pm on December 30, 1985 with Dan Miller.
• Gave sworn testimony that Marshall Kennon (Gurcia Johnson’s brother) had given Matt’s name to her, stating Mr Kennon believed Matt to have been involved in his sister’s death. 
• Claimed to have confronted Matt with this allegation, and that Matt had shouted out, on a public street “Oh, I offed his sister”. 

Dan Miller, Delores Waters, Marshall Smith, Nancy Mason and Matt all contradicted this testimony.  Further, Nancy Williams confirmed Judy Taylor was in Maine on December 30, 1985.

It is important to note that at the time of the Trial, Dan Miller was under indictment for lying to police.
 

• On this occasion, however, he perjured his testimony. This perjury was illustrated by Matt and by LaTreva Perdue, who was known to have been with Gurcia Johnson on December 30, 1985. LaTreva Perdue was a State Witness. She clearly stated that Matt was not one of the two men with her and Gurcia Johnson that evening. Of note - neither Counsel asked if Miller had been one of the two men who had been with LaTreva Perdue or Gurcia Johnson that night.
• Testified he had been with Matt (on an unspecified date), but presumed to have occurred on December 30, 1985, and that Dan had driven Matt’s pick-up truck to the Kallethea Bar. That they picked up an unidentified woman and took her out to Mifflin, where Matt and the woman got out of the truck and Matt returned to the truck without her a few minutes later. The location that Dan testified they had gone is miles away from the where the murder occurred. 

Delores Waters and Becky Davis contradicted Dan Miller’s testimony and stated Matt was not present in the Kallethea Bar on December 30, 1985 .

John Harris and Joseph DeVore testified that they were both with Matt on December 30, 1985 in a blue Oldsmobile on the other side of the city.

How could Matt and his Trial Counsel defend deliberate false statements under Oath? These two witnesses served to severely prejudice the proceedings against Matt and deprive him of a fair Trial.

Prosecutors intimidated Ronald Perkins, a man of limited intellect, into making an admission, that his testimony on direct examination had been wrong, and maybe he didn’t take possession of the truck he purchased for parts from Matt five months prior to the murder when he had thought. Confusion of the witness and improper conduct of the Prosecutor is clearly demonstrated on the Court record, wherein Mr. Perkins stated he changed his mind about when he got the truck, out in the hallway, a few minutes earlier because the Prosecutor had told him so. 

Sequestration is rare and extreme. Therefore, it is unusual and inexplicable for the Jury to have been sequestered. This was a 5-year-old murder case, it was not a major publicity case and held no chance of juror intimidation, etc., and then to have the heating cut off!?

On January 20, 1991 the Jury retired to the L&K Motel in Ashland to deliberate the case. They returned to the Court the following day. On January 30, 1991 at approximately 4.50pm, the Jury was informed if a verdict was not reached within 10 minutes, they would be returned to the same motel and return to commence deliberations the next day. Within 10 minutes they reached a verdict!

It was later discovered that the motel had some maintenance troubles and consequently there was no heating in any of the rooms! 

One juror made a comment to the effect of “I don’t care if he is guilty or not. I am not going back to that motel with no heat. I am going home to my family. I am going to vote to convict and let the appeals Court figure it out. Upon hearing that, several jurors changed their vote, and a verdict was reached!

In summary, the Trial Court coerced a verdict from the Jury.

This worked to prejudice Matt further, as the Prosecutor's closing remarks to the Jury was that if they made a mistake, the appellate Court would sort it all out!

Ohio revised code §2315.03 mandates Jury must be kept in a convenient place, and an unheated motel in January in Ohio cannot be considered convenient!

In the Ohio Pattern Jury Instruction publication, it states:

“.. In the absence of direct evidence, circumstantial evidence, by itself, will justify a finding of guilty if the circumstances are entirely consistent with the Defendant’s guilt and are inconsistent or irreconcilable with any reasonable theory of the Defendant’s innocence and be so convincing as to exclude a reasonable doubt of the Defendant’s guilt.”

The only evidence at Trial indicative of guilt was the testimony of several individuals who admittedly disliked Matt, who claimed “he told me he did it”. Had the Jury followed the law as instructed by the Trial Court, there was far more evidence going towards a reasonable theory of innocence [misidentification] than that which supported a finding of guilt. 

The prosecution’s own witnesses clearly supported the fact that Matt was innocent. 

One specific witness testimony clearly destroys any claim that the circumstances were “entirely consistent with guilt and wholly inconsistent or irreconcilable with any reasonable theory of innocence”. Indeed LaTreva Perdue, the best friend of the victim, and the only witness brought by the Prosecutor who was known to have been present with the victim and the men involved in the murder, affirmatively stated that Matt was NOT one of the two men. 

The physical evidence all supported Matt’s innocence.

Six months after Matt’s Trial, the Ohio Supreme Court overruled the circumstantial evidence instruction necessity. The fact is that the Kulig instruction was prevailing law at the time of Matt’s Trial and the Jury was properly instructed under Kulig. However, despite the evidence weighing heavily in favor of innocence, the jury failed to follow the law on circumstantial evidence, as given by the Trial Court, and demonstrated by the Court record. This violated Matt’s right to a fair Trial by an impartial Jury and to due process.

• In the closing remarks to the Jury, the Prosecutor inferred those certain witnesses were not called because they would not have helped the Defense. 
• Went too far to explain what testimony one witness would have presented and made repeated references to questions that had been disallowed upon proper objection by the Defense and urged the Jury to guess at what the answers may have been having objections not being sustained. 
• Disparaging comments about the raising of objections by Defense counsel.
• Improperly bolstering his witnesses’ credibility indicating they were reluctant witnesses
• Implying he had some knowledge outside the record which would support Matt’s guilt.
• Used sarcasm to cast aspersions about Matt by name-calling i.e., “Mr. Salesman who lies to sell himself as someone he is not”.
• Asking jurors to infer evidence from the fact that he was disallowed by the Court from pursuing improper lines of questioning
• Asking the Jury to ignore the law, as instructed by Trial Court, to find Matt guilty based on a theory of aiding and abetting.

A continued pattern of misconduct on the part of the prosecution clearly exceeded the normal degree of latitude afforded a criminal Prosecutor.

In a case like this, where there is no overwhelming evidence of guilt, there stands a far more reasonable probability of Prosecutorial misconduct. This can infect the proceedings and affect the judgment of the Jury – contributing to the verdict, thus denying Matt a fair trial and due process.

• Failed to thoroughly research, investigate and prepare for Trial, as evidenced by late disclosure of the Greenhalgh Report. Matt had been in prison for 2 years before he heard of or had sight of the Report.
•  List of witnesses never contacted.
• Failed to find any readily available evidence or witnesses.
• Never checked with BCI for fingerprint evidence or reports, etc..
• Two witnesses were not called to give evidence, because of not knowing what the Prosecutor may have suggested to the witnesses.
• Failure to object to repeated incidents of Prosecutorial misconduct.
• Counsel failed to make objections; it was their duty to raise objections and request curative instructions or mistrial. At the least, the errors would have been properly preserved for appellate review and on appeal, the errors would have been reviewed under the harmless error standard rather than under the plain error standard.
• Counsel failed to object to the erroneous Jury instruction, the Court instructed Jury on essential elements of Aggravated Murder and upon motion of the Prosecutor the essential elements of the lesser included offense of murder.  However, Trial Court gave an “acquittal first”. This was clearly erroneous and violative of Petitioner's due process rights. This acquittal first instruction required the Jury to find the petitioner not guilty of aggravated murder before processing to consider the lesser included offense of murder. This instruction deemed improper in Ohio since 1988.
• Counsel had a duty to be armed with relevant law and facts, ensuring the Jury was properly instructed, they should have raised an objection to improper instructions and by failing to object to the above paragraph, the Court administered coercive Jury instruction that could have affected the outcome of this entirely circumstantial case.  It prejudiced Matt and failed to make the adversarial process work at Trial, rendering the proceedings unfair and the outcome therefore inherently unreliable.
• The hiring of Spognardi, with zero credibility.