OIP Nets Another Triple Win; Defendants To Be Set Free After 18 Years in Prison
Legal advocacy from the Ohio Innocence Project at the University of Cincinnati has helped set three men wrongfully imprisoned for murder on the path to freedom.
Cincinnati — Today three men are one step closer to freedom after being wrongly incarcerated for 18 years. Derrick Wheatt, Laurese Glover and Eugene Johnson had their convictions for the 1995 murder of Clifton Hudson Jr. thrown out after nearly a decade of legal advocacy from the Ohio Innocence Project (OIP).
Judge Nancy Margaret Russo, Cuyahoga County Court of Common Pleas, threw out the conviction, granted a new trial and set bond. The OIP expects bond to be met today, which will result in their clients' immediate release.
Their impending freedom came after a key eyewitness recanted her testimony and the revelation that information from police reports that cast doubt on the defendants’ guilt had not been disclosed to the trial team years earlier. Today’s win marks the second triple exoneration for the Ohio Innocence Project (OIP), which operates out of the University of Cincinnati’s Rosenthal Institute for Justice in the College of Law. To date, the OIP has freed 23 people on grounds of innocence, who together served more than 500 years in prison for crimes they did not commit.
“We’re excited about today’s event, but even more excited for our clients,” said Mark Godsey, the Daniel P. and Judith L. Carmichael Professor of Law and Director, Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project. “They have been fighting to prove their innocence for nearly 20 years. They had tried for exoneration twice before, and had come close in the past. OIP has worked on the case since 2006, and are happy to be with them as they finally taste their long-sought freedom.”
The OIP represented defendants Wheatt and Glover; Johnson was represented by attorneys Brett Murner and Jim Valentine. Additionally, co-counsel on this case was Carmen Naso, Senior Instructor of Law, and the law students at the Milton A. Kramer Law Clinic, Case Western Reserve School of Law in Cleveland, OH. The OIP and Kramer Law Clinic partnered on this case and plan to work together on additional cases in the future.
“UC donors who contributed to the UC OIP’s tremendous success provided case workers with the funds needed to facilitate their pursuit of justice,” said UC Foundation President Rodney M. Grabowski. “Since its founding in 2003, more than 600 donors have contributed more than $5.3 million toward the OIP’s efforts. We are forever grateful for their generosity.”
A Murder Many Years Ago
On February 10, 1995, in East Cleveland, Ohio, 19-year-old Clifton Hudson Jr. was found murdered, shot multiple times. At the time, witnesses reported seeing a person wearing dark clothing and a dark hat at the scene. Three juveniles—Wheatt, Glover and Johnson—happened to be near the scene. But, they emphasized, when the shooting started, they sped off. All three later provided the police with descriptions of the shooter that matched the basic descriptions given by other witnesses. But in a twist of events, they were charged with the crime.
A year later in 1996, the three were convicted of Hudson’s murder, based on their presence at the scene and identification by Tamika Harris, then a 14-year-old. Harris originally reported to police that she saw the shooter get in and out of the defendants’ truck; but, she insisted, she never saw the shooter’s face. It was this tip, though, that led to the group’s initial arrest.
At the trial, Harris changed her story, admitting that she never saw the shooter actually get in or out of the truck. She testified, however, that she could positively identify Eugene Johnson as the shooter. Additionally, the prosecution found what it alleged to be gunshot residue on Wheatt and Johnson. They offered to completely drop charges against Glover if he testified against his friends and also offered Wheatt probation for his testimony. Both refused and continued to assert their innocence. Unfortunately, they were convicted; Wheatt and Johnson were sentenced to 18 years to life in prison; Glover was sentenced to 15 years to life.
Finding Grounds for a New Trial
Through the years the three men continued to maintain their innocence. Then in 2004, Johnson’s attorneys, Murner and Valentine, filed a motion for a new trial on the grounds that Harris had recanted her testimony. Now an adult and in nursing school, she admitted she could not see the shooter’s face from where she stood and that she never saw anyone get in or out of the truck.
She relayed that when she went to the police station years earlier, the officers told her they had found the people responsible, showed her photos of the three defendants, and asked which of the three was the shooter. Harris said she picked the one whose jacket was closest to the one she saw: Johnson’s. Though the trial court granted a new trial on this basis, it was overturned on appeal, in part because of the alleged gunshot residue evidence.
Two years later in 2006, the OIP accepted the case. Attorneys and fellows spent hundreds of hours reviewing evidence, interviewing potential witnesses and filing motions. In fact, Brian Howe, now the attorney of record, previously worked on this case as an OIP fellow.
In 2009, OIP attorney David Laing filed another new trial motion based on advancements in knowledge about gunshot residue. Specifically, the type of testing used in 1995 is known to be particularly prone to false positives from other items, and is no longer used by the FBI. Further, recent studies showed the high likelihood of gunshot residue contamination from police sources, especially when the tests are not performed on scene or immediately upon arrest. This motion, however, was denied.
Late in 2013 a break in the case came when the OIP received the police reports. The reports included information that was not raised at the original trial, including the existence of two witnesses who confirmed that the shooter came from a nearby post office lot, not the defendants’ truck. One of those witnesses even claimed he recognized the shooter as a sibling of one of his classmates. The reports also showed that unknown people in a different car had shot at the victim's brother just days before the crime, and that someone had threatened the victim himself the day before the murder. There was no known connection between any of those threats and the defendants.
The OIP, on behalf of the defendants, filed another new trial motion on the basis that this information was never disclosed to the defense. A hearing on the motion was held on Jan. 29, 2015, led by OIP attorney Brian Howe and the Kramer Clinic’s Carmen Naso. “The evidence at the hearing was overwhelming,” said Howe. “None of these men should have ever been convicted."
A Day Worth Waiting For
“This has been a long day coming for Mr. Johnson, Mr. Wheatt and Mr. Glover,” said Howe. “I know it must be an incredible feeling. It is particularly important and gratifying for me because I worked on the gunshot residue motions as an OIP fellow. It’s incredible to see all of our hard work come to fruition.”
Special thanks to the many individuals who spent hundreds of hours working on this case over the years. The list includes attorneys: Brian Howe, David Laing, and Carrie Wood; and student fellows: Shabnam Allen, Nicole Billec, Amanda Bleiler, Scott Brenner, Chris Brinkman, Chris Brown, Eric Gooding, John Hill, Matt Katz, Eric Kmetz, Amanda Rieger, Bryant Strayer, Queenie Takougang, and Brandon Brown, Amanda Sanders and Shaun McPherron, who spent significant time in East Cleveland last summer canvassing the neighborhood speaking to witnesses.
Profs. Bettman and Moore Discuss Ohio v. Clark (podcast)
Professors Marianna Bettman and Janet Moore discussed Ohio v. Clark on March 2, 2015 for Bloomberg News. Listen to the podcast. (view podcast)
Director Ken Hirsh’s Article Accepted for Publication
Congratulations to Ken Hirsh, Director of the Law Library and Information Technology and Professor of Practice, who recently received notice that his article has been accepted for publication. Like Mark Twain: The Death of Academic Law Libraries Is An Exaggeration, will be published in Volume 106 of the Law Library Journal (Number 4).
2015 Judge in Residence Program featuring the Hon. Solomon Oliver, Jr.
Event Dates: March 25-27, 2015
All School Talk: Thank God for Life Tenure
Date: March 26, 2015 at 12:15 p.m.
(View schedule) (pdf)
About Solomon Oliver, Jr., Chief Judge, U.S. District Court for the Northern District of Ohio
Judge Solomon Oliver, Jr. was appointed to the U.S. District Court for the Northern District of Ohio by President William Clinton on May 9, 1994. He has served as Chief Judge of that court since June 1, 2010.
Judge Oliver was born in Bessemer, Alabama, the fourth of ten children of Reverend Solomon Oliver and Mrs. Willie Lee Oliver. He attended the segregated public schools of Bessemer, graduating from J. S. Abrams High School in 1965.
Oliver graduated from the College of Wooster with honors in 1969, majoring in philosophy and political science. He received a J.D. degree from New York University in 1972, and a master’s degree in political science from Case Western Reserve University in 1974.
Oliver served as Assistant Professor of Political Science at the College of Wooster from 1972 to 1975. From 1975 to 1976, he served as a law clerk to the late Judge William H. Hastie of the U.S. Third Circuit Court of Appeals. Judge Hastie was the first African American to serve as an Article Ill judge. From 1976 to 1982, Oliver served with the U.S. Justice Department as an Assistant U.S. Attorney in Cleveland. From July, 1978 to March, 1982, he was Chief of the Civil Section of the United States Attorney's Office. In March of 1982, he became Chief of Appellate Litigation in that office. Oliver joined Cleveland-Marshall College of Law of Cleveland State University as a faculty member in the fall of 1982. From May, 1991 to May, 1994, he served as Associate Dean of Faculty and Administration at the Law School.
Judge Oliver has written articles and lectured on a wide range of topics at colleges and universities, at continuing legal education seminars and at judicial conferences. Judge Oliver was especially gratified to deliver a keynote address entitled, "The Role of Judicial Review in a Democracy" in March, 1995 at a conference of East African judges in Arusha, Tanzania. His most recent publications include an article on educating law students for the practice of law, an article on alternative dispute resolution (ADR) and a chapter on summary judgment.
Oliver has received various awards, including the Distinguished Alumni Award from the College of Wooster and the Distinguished Alumni Award from New York University Black, Latino, Asian Pacific American Law Alumni Association. He has also received an Honorary Doctor of Laws Degree from the University of Akron and an Honorary Doctor of Laws Degree from New England School of Law-Boston.
Judge Oliver previously served as a member of the Judicial Conference of the United States, the policy-making body of the federa1judiciary, and currently serves on its Advisory Committee on Civil Rules. He is a member of the American Law Institute, the American Bar Foundation and the Board of Trustees of the College of Wooster. He previously served as Chair of the Council of the ABA Section of Legal Education and Admissions to the Bar and is its Immediate Past Chair. He has also co-chaired the ABA Litigation Section's Minority Trial Lawyer Committee.
Karen Kovach Talks about Technology, Law Review, and the Value of Good Client Service
A theme in Karen Kovach’s life has been a preference for variety. This resulted in what might be considered a non-traditional career path to law. At the dawn of the age of computers, Kovach’92 worked for eight years in the field of computer programming, partially due to some advice she took from her father. “I didn’t know a lot about computers, but I knew it was going to be a growing field,” she said. “My dad has always been a big influence in my life, and on his recommendation I gave it a try. It turned out to be the thing I enjoyed best since leaving high school.”
After spending nearly a decade in the computer programming field, Kovach came to UC Law. “I really thought I would continue to work in the area of technology after law school, whether it be copyright or otherwise,” she explained of her expectations as a law student. However, while she was a student here, Kovach worked on Law Review, writing a piece on an issue in the area of criminal law. It interested her so much that she ended up externing in juvenile court. After law school, she became a magistrate in the Hamilton County Court of Common Pleas, which was something she had not anticipated at the outset of her legal career. What had started out as a daunting law review assignment had turned into a passion and a career.
After more than 10 years on the bench, Kovach left the court and worked for the next 11 years at PowerNet Global Communications, a leading telecommunications company. It was there that she honed her skills in issue spotting and project management, while helping her colleagues understand the legal angles of their business plans and ideas. Now, she employs these skills as Deputy General Counsel for the University of Cincinnati.
Having started last April, it has been an enjoyable year for Kovach back at the university. “I consider myself very fortunate to have started working here,” she said. “Coaching and management are aspects of my job, and I love that I get to lead a team working with some great attorneys here as well as the young folks around the university.”
The variety of legal issues at UC serves to keep her on her toes and always learning something new. “Leaving PowerNet Global I remember thinking that I might miss the focus on technology that I had working at a telecommunications company,” she explained. “But as it turns out, UC has technology issues as well, and also all of the free speech, religion, and labor and employment concerns that come with a public institution.” The diversity that UC offers her in terms of assignments has turned out to fit well with her preference for variety. She compared the job to law school in how she continues to learn about different issues as they arise.
Kovach reflected on her career path, noting that the desire to do something is the most important factor. “Nothing is ever out of bounds,” she said. “You can always do something that you want to do; you just have to figure out how to get to where you want to be.” From computer programming to the courtroom to different roles as a general counsel, Kovach ‘s path has certainly exemplified this theme.
In parting, she shared this advice: “Work really hard at learning to provide really good client service. Regardless of the context of your job, whether it be as a general counsel, as a firm attorney, or otherwise, it’s all about concentrating on what your client needs. If you can do that, you’ll be successful in whatever you choose to do.”
Thom Jackson’85 Shares the Biggest Lessons of His Career and the Importance of Homework
Hamilton, OH born Thom Jackson ‘85 loves to share what he calls “the story my CV doesn’t tell”: the account of one of the biggest breaks in his career – how a proposed $1500 settlement led to a position on a national taskforce, a $5 million settlement, and a big lesson. Students and alumni alike can all learn from this basic, but important, tenet: do your homework.
Jackson studied political science at DePauw University before coming to the College of Law. Here, he was involved in many student organizations, including the Black Law Students Association, the Student Bar Association, and the American Civil Liberties Union. In addition to making some lasting relationships, the classroom lesson that has perhaps impacted his career in the biggest way has been the skill in analyzing complex regulations that he learned in his third-year regulatory class focusing on drug approval. That class and lessons learned would soon come in handy.
Instead of going into private practice in his hometown as a general practitioner—something he had strongly considered doing—Jackson made a decision that would ultimately impact the direction his career would go. “In Chicago I started out in a litigation position with the Department of Health and Human Services,” he said. “I gained tremendous litigation experience, and I excelled, in no small part, due to my third-year classroom experience dealing with complex regulations.” And tremendous his experience was. He argued cases in federal district courts and in the United States Court of Appeals in the Sixth, Seventh and Eighth Circuits.
Then came one of the biggest turning points of his career. Working on several cases, he saw one that was a much smaller case than the others, so Jackson decided he would try to settle it quickly. “When I called opposing counsel to get an agreement for the $1,500 I thought this case was worth, he told me something I will never forget: ‘Do your homework.’”
Noting that to a young practitioner those words hit home, he began to look deeper into the case, and he soon found that there was regulation which, if enforced, could get Medicare $10 billion that it was otherwise without. “I wrote a 15-page memo on enforcing the regulation. The next thing I knew, I was on a national taskforce.” Jackson tied the story together by sharing that the $1,500 case from earlier actually resolved in a settlement of about $5 million. “Doing his homework” paid off after all.
Jackson set his sights on becoming a general counsel. He supplemented his litigation skills over time with experience in mergers and acquisitions, a move to which he attributes much of his success. After working as general counsel in several companies, he has risen through the ranks and is now the CEO and President of EdisonLearning, Inc., a company that has pioneered bringing business metrics into the education context. The company is a leading international educational services provider, creating effective and sustainable solutions to raise student achievement.
Today, EdisonLearning serves 150,000 students in the United States and the United Kingdom, and has recently signed agreements, expanding to Ghana and Botswana.
“There are several things, looking back, I would say to myself as a law student,” he shared. “First, finish strong. While your grades may not ultimately serve as an indicator of how successful you will be in the profession, it has a great impact on where you start out. Second, don’t stop planning. Plan your career as much, if not more, than you planned your education. The best way to get to where you want to go is to have an idea of what steps you need to take to get there. Study the people who are succeeding in the field you want to get into and emulate them. Third, remember that no opportunity is too small. What I initially thought was only a $1,500 case turned into a $5 million case and a huge step forward in my career. Finally, I would tell myself to dream bigger. While it is easy to look at my successes and see that I have done many things right, I often think back to a number of decisions where I turned down an opportunity because I did not feel I was ready for them. Especially as a young lawyer, I found myself to be too self-guarded.”
Professor Sperino’s Article Cited by Hawaii Supreme Court
Professor Sandra Sperino’s article "Beyond McDonnell Douglas," 34 Berkeley J. Emp. & Lab. L. 257 (2013), was cited by the Hawaii Supreme Court in its discussion of how to use the McDonnell Douglas test in the context of state law. The citation is Adams v. CDM Media USA, Inc., 2015 WL 769745, No. SCWC-12-00000741 (Hawaii Feb. 24, 2015).
In her Friend of the Court Blog, Sperino discussed the case. (read the post)
Professor Mank Quoted in Tennessean News Story on Environment Battle
Federal regulators have weighed in on a long-running lawsuit alleging that the city of Franklin’s sewage treatment plant has illegally polluted the Harpeth River — a rare move, some said, that reflects the case’s broader significance.
In a brief filed last week by the U.S. Department of Justice on behalf of the Environmental Protection Agency, regulators roundly rejected claims by the city that a local environmental group couldn’t sue in federal court over alleged sewage discharge permit violations, which include allowing untreated waste to flow into the river and failing to properly monitor the condition of the water.
Though the city relies on those claims in asking for the lawsuit to be moved down to state, rather than federal, court, the brief concluded that “those arguments fail.”
The brief added that enforcement of the provisions of that permit, which allows the city to pump treated wastewater into a protected waterway, is “squarely within the scope” of a federal pollution mitigation program and that citizens can sue over alleged violations.
Franklin City Administrator Eric Stuckey said the city stands by its claims that state — not federal — court is the right place to make arguments about whether the city has been complying with its permit.
He emphasized that the brief doesn’t say anything about the lawsuit’s allegations and that neither state nor federal regulators have cited the city for violations.
Rather, it’s just a question of “where is the appropriate venue to have this discussion.”
“We think we have made good faith efforts to comply (with the permit),” he said.
But the Harpeth River Watershed Association, which filed the lawsuit, said the EPA’s decision to get involved in the lawsuit speaks volumes.
The association “appreciates the rare step the U.S. Department of Justice and the U.S. Attorney’s Office in town took … to confirm that citizens like us may indisputably enforce a law designed to protect public health and the environment,” board president Matt Dobson said in a statement.
“We have renewed optimism that our efforts will result in improving the water quality to meet state-required standards for this Tennessee gem that belongs to everyone,” he said.
Anne Davis, a staff attorney with the Southern Environmental Law Center who is representing the association in the case, added in a statement that she was unaware of any other cases in which the EPA decided to file a similar statement.
It’s a move, she said, “that highlights the gravity of Franklin’s attempts to undermine the Clean Water Act.”
Though the document, a friend of the court brief, isn’t a binding ruling, it makes a strong statement that probably will catch a judge’s attention, said Brad Mank, a University of Cincinnati College of Law professor specializing in environmental law.
And it’s unusual for the EPA to get involved at this stage in the case, he said.
Typically, he said, federal regulators hold off until a case has reached an appeals court, where a ruling could have the weight of precedent.
Mank said he couldn’t speculate why the EPA would choose to weigh in now.
However, he said, it’s possible that the federal agency is “trying to clarify the law” — about who’s allowed to sue over water pollution issues and in which court — without waiting until a case goes through a lengthy appeals process.
Furthermore, he said, it makes a difference whether the case is heard in state court or federal court: State court judges, who are elected to regular terms, could be more sympathetic to the city’s arguments and they may be less accustomed to hearing highly complex environmental cases.
Federal judges, by contrast, have lifetime tenures.
Still, Mank emphasized, “it’s complicated” because each federal environmental law is different.
A U.S. Department of Justice spokesman said the agency wouldn’t comment beyond what was in the brief.
Franklin city officials said that attorneys are working on a more detailed response to the brief to be filed within a 21-day deadline.
Professor Mank’s Articles Accepted for Publication
Congratulations to Professor Brad Mank, who recently received notice that two of his articles have been accepted for publication. Standing to View Other People's Land: The D.C. Circuit's Divided Decision in Sierra Club v. Jewell, will be published in Volume 40 of the Columbia Journal of Environmental Law (2015). Volume 18 of the University of Pennsylvania Journal of Constitutional Law will feature Prudential Standing Doctrine Abolished or Waiting for a Comeback?: Lexmark International, Inc. v. Static Control Components, Inc., sometime in 2015 or 2016.
Kari Jones Talks About Giving Back to UC Law
Originally from “The Land of 10,000 Lakes” (aka Minnesota) Kari Jones ’04 moved to Northern Kentucky before attending the University of Kentucky for her undergraduate studies. As a UK student, Jones studied journalism and advertising. After graduating, she considered law school, but when she married her husband and started a family, she chose to put her legal aspirations on the back burner. In the interim, Jones worked for 12 years with a software development company in Blue Ash.
“I always had a plan to return to the classroom to study law,” she shared, and she did so in 2001. She enjoyed her experience as a law student, during which she was a member of Law Review and involved in the Student Bar Association. After working with Ulmer & Berne LLP as a summer associate during law school, Jones continued on with the firm after graduation in 2004. As an associate, she was on the civil litigation team working on a variety of cases, including those involving medical malpractice, construction defects, and personal injury. “The variety and activity of working in litigation was something that I enjoyed,” she shared. “While it was still very much an office-setting job, I enjoyed the opportunities outside the office, whether it was at court or taking depositions or visiting clients. You’re never really sure what you’re going to encounter.”
Jones resigned her position with Ulmer & Berne LLP with the arrival of her next child, and spent several years at home. She picked up the hobby of running and ran in several half-marathons. After five years at home, Jones was back in the job market and noticed a job opening with the College of Law. “I had always thought to come back to UC Law,” she said. “My time at the law school had been truly enjoyable, and to be able to come back and contribute once again to the law school community was an opportunity I could not pass up.” Now, Jones is an associate with the Office of Academic and Student Affairs. She works with both the law school’s Registrar’s Office, assisting with requests and reviewing files, and the Admissions Office, talking with prospective students and handling marketing and outreach work.
Jones Shares How to Excel at Work and Life
“Find your passion,” advises Jones. “Don’t do something just because it is the only thing you think you can do.” There is no denying that there can be a lot of pressure on law students, and she readily acknowledged that; however, she also has seen what a little patience and drive can lead to. “I’ve seen my friends and classmates go out and do so many different things since we graduated, and it has really stood out to me that those who have found what they love doing are excelling in work and in life.”