Tuesday, May 27, 2008 7:41 AM
A St. Louisville man says that you can make a difference to lawmakers and you should tell them what you think.
WCLT Columnist Roland Eyears testified last Thursday before an Ohio House committee about a bill that would change coroners verdicts on death certificates.
“HB 459 severely limits persons of interest, those who may file to have the cause of death re-examined. The convicted person himself would be barred unless he or she were otherwise exonerated. In such case, what would be the point? Even status as the convicted person’s spouse, natural or adopted child, sibling, or parent would not qualify them as persons of interest.”
Eyears brought up a point that what if the coroner or a person who succeeds the coroner makes a new discovery in the case and ‘wants to do the right thing.’
“Under HB 459, he or she is barred. His option would be to approach the county prosecutor who may not be willing to disturb the past, or risk dropping his conviction rate, or irritating his brothers-at-the-bar, or possibly enabling litigation. This is the first point that made me doubt that this is good faith legislation.”
On March 12th, Licking County Prosecutor Ken Oswalt testified “Before the floodgate is opened, the General Assembly must act – and quickly …” to pass the bill.
Eyears says with his background, that is a gross mis-statement
“Not during my service as a criminal court officer, not during my 20 plus years as a sworn law enforcement officer (most at a supervisory rank), not during my tenure as a criminal justice instructor, and not during my inquiries of recent months could I find a single person not mentioned herein who was even aware of ORC 313.19.”
Eyears added that despite the fact that this bill will close the door to justice, to their discredit the Republican committee members voted along strict party lines to pass it 8 to 7.
Rep Kathleen Chandler of Kent expressed concern that the bill specifies that the prosecutors’ decisions are final & not appealable.
She added the following comments “This is about 1 case.”, “This is not a good basis for passing a state law and “Clearly, this law was written by an angry prosecutor.”
Rep Lorraine Fende of Willowick said in regards to Eyears testimony that “I think you’ve changed my mind on this bill.”
The bill’s sponsor, Rep. Jay Hottinger of Newark was absent at the hearing.
Testimony of Roland C Eyears before the house committee on local & municipal government & urban revitalization in opposition to hb 459 - death certificate change process
May 15, 2008
Nearly 55 years ago, Ohio enacted Title III, Section 313.19 to formalize coroners’ verdicts on death certificates as the official mode and cause of death. It also provided that the court of common pleas in the county where the death occurred should, upon petition, hold a hearing and, if justified, order the coroner to change the official mode and cause of death. I infer that the intent of the legislature was to provide a second look where mistakes might have occurred and to enable the courts to use advancing science to correct erroneous findings.
HB 459 severely limits persons of interest, those who may file to have the cause of death re-examined. The convicted person himself would be barred unless he or she were otherwise exonerated. In such case, what would be the point? Even status as the convicted person’s spouse, natural or adopted child, sibling, or parent would not qualify them as persons of interest. Suppose a coroner or a successor coroner discovers a mistaken determination and wants to do the right thing. Under HB 459, he or she is barred. His option would be to approach the county prosecutor who may not be willing to disturb the past, or risk dropping his conviction rate, or irritating his brothers-at-the-bar, or possibly enabling litigation. This is the first point that made me doubt that this is good faith legislation.
The new filing deadline would be just 3 years from the decedent’s demise, and only then after all alternatives have been exhausted. That means only after an investigation and a trial (these could easily consume more than a year) and all appeals have been adjudicated. Given the advances in forensics, can there be any question that some determinations made decades ago, even 5 years back, can now be disproven to a scientific certainty? What’s the next step – outlaw the post-trial use of DNA in Ohio courts? Then there are expert witnesses whose credentials become discredited over time or who recant.
Under HB 459, all evidence presented will have to be new. This provision would eliminate state-of-the-art testing of existing evidence, whether such old evidence had been admitted, excluded by the trial court in error, or never introduced due to ineffective counsel.
In the absence of a truly overwhelming revelation of innocence, HB 459 will forbid the granting of a new trial based on a change in the official cause of death. This represents a reverse burden of proof far beyond that required in a criminal trial and is a virtually insurmountable hurdle.
In his March 12 testimony before this committee, Kenneth Oswalt, Licking County’s appointed Prosecuting Attorney referenced the case of Virginia Lefever. Since he opened that door, I’ll walk through it. In 1988 Lefever, a registered nurse, was days away from finalizing her divorce from an often violent, confirmed drug abuser who had many times threatened suicide. When he visited the family home to pick up some belongings, he became ill, was allowed to spend the night, and vociferously refused medical treatment. By morning his condition was no better, so he was transported to a hospital where he subsequently died. During her bench trial, Lefever was found guilty of murder and sent to prison where she remains. In March, 2005, this woman, joined by her daughter, filed an action under ORC 313.19 seeking to have the cause of death reconsidered. They asserted that the testimonies of 2 coroners and a technician were contradicted by accepted medical principles, pharmaceutical science, and hospital records. Eventually, in January, 2006, Jon Spahr, the original trial judge, found a few minutes to rule against Lefever. When Ohio’s 5th District Court of Appeals reversed and remanded the case back in December, 2006, the justices cited 4 principal, elemental errors. Prosecutor Oswalt appealed to the Ohio Supreme Court and lost. The rulings were crystal clear: Judge Spahr had denied due process. Following various delays, discovery was due January 1, 2008. Prosecutor Oswalt then requested an additional 90 days so he could get up to speed, which pushed that deadline off to April 1. Get up to speed? The man had followed the case for years and through both recent appeals? He was always up to speed. The trial court then alleged that the next available slot would be July 28. Word reaches me that Prosecutor Oswalt has since sought yet another postponement.
When the judge in Virginia LeFever’s bench trial found her guilty of murder, he added that he didn’t know how she did it, nor could he articulate a motive. Can I state to a metaphysical certainty that Lefever did not terminate her nearly ex-husband? Of course not; I wasn’t there. And I’m not here to argue that. But the record proves that officers of the court in Licking County have systematically thumbed their noses at the law to deny this woman her day in court. They are slowly loosing. They’ve stalled as long as they can. Now, they want the Ohio legislature to do what they cannot legally accomplish. To that end they enlisted the aid of Licking County’s quintessential politician State Representative/State Senator/State Representative Jay Hottinger who sponsored this odious bill in January.
A contemporary of LeFever is Denni E. Frase, also a registered nurse, who was convicted in 1995 of causing the 1993 morphine poisoning death of her fiancée, a man who I am reliably informed was an alcoholic, a drug addict, and someone who would swallow virtually anything. She recently filed a Complaint requesting an Evidentiary Hearing under ORC 313.19. Kenneth Oswalt prosecuted her and has maintained an intense interest in keeping this lowest rated risk, model inmate incarcerated.
While I have no intention of involving this committee or myself in scientific trivia, I will briefly make these important points that are common to both women. One, medical authorities now know that blood draw sites are critical. If a sample is drawn from the decedent’s heart, it will typically test nearly 300 percent higher than will a tissue draw. Heart draws were standard procedure through the mid-nineties in the Franklin County Coroner’s Office.
Two, “Post-mortem drug redistribution” is an area of forensic science that was not well understood 10 years ago, although it’s been common knowledge for decades that, upon death, chemical changes begin. State-of-the-art medical science demonstrates that many drugs, when introduced into the body, chemically bind at the molecular level to proteins in the blood and certain tissues. Almost immediately following death, the cells begin to destruct by a process termed “autolysis.” Drug levels then climb as their molecules become unbound and, thus, show up on tests.
The time lapse between death and a blood sample draw at autopsy is telling. In the case of LeFever and Frase, decedents were autopsied 21 and 15 hours following death, respectively.
Additionally, expert testimony in the Frase trial is demonstrably wrong and runs counter to medical science. Accordingly, there is a high probability that in neither case did a crime occur; rather the deaths were accidental overdoses.
Note that the final section of HB 459 states that it would apply even to pending cases. No grandfathering. For reasons unknown to me, Prosecutor Oswalt is one of the Licking County officials who is on a mission to keep LeFever and Frase in prison for the remainder of their lives for crimes that very probably never occurred. Where’s the justice?
On March 12 Prosecutor Kenneth Oswalt testified, “Before the floodgate is opened, the General Assembly must act – and quickly …” This is precisely the device used by politicians literally since the days of ancient Rome; tell the lawmakers it’s imperative that they transfer more power to the government immediately before some sort of floodgate opens & imperils if not destroys the state. Could this ploy be much more disingenuous? Not during my service as a criminal court officer, not during my 20 plus years as a sworn law enforcement officer (most at a supervisory rank), not during my tenure as a criminal justice instructor, and not during my inquiries of recent months could I find a single person not mentioned herein who was even aware of ORC 313.19.
We are an incarcerating country. One in 99 adult males is behind bars, and 7 million Americans are under some type of corrective supervision. Are prisons, as some say, full of innocent people? Not really. They’re mostly full of guilty people. But according to a recent study, at least 10 percent of inmates are innocent.
In summary, HB 459 would impose incredible limits on “persons of interest” who could file, a nearly impossible time limit, new evidence only, no use permitted to justify a new trial, and no grandfathering. It is not good faith legislation designed to close a “loophole” as Oswalt has insisted. Neither is it an open door to freedom. It’s a rarely used way to reexamine possible miscarriages of justice.
HB 459 is a bad bill. It’s vindictive. It flies in the face of justice. Furthermore, it’s a completely unnecessary piece of legislation. Accordingly, I urge that this committee and the entire Ohio House reject HB 459.
Thank you for taking my remarks.
Roland C. Eyears