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Published: Monday, 8/22/2011 - Updated: 3 years ago

Appeals court: No new trial for man convicted in deaths of 2 Toledo women

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS — A federal appeals court Monday overturned a lower court decision ordering a new trial for William T. Montgomery who faces execution for the 1986 murder of a Toledo woman and life in prison in the killing of her roommate.

In a splintered decision, the U.S. 6th Circuit Court of Appeals found that a police report withheld from the defense for six years was not enough to overturn the convictions of Montgomery, 45, in the deaths of Debra Ogle and Cynthia Tincher. The majority disagreed with the argument that the report might have undermined the state’s case placing the gun that killed them in Montgomery’s hands.

In that police report, witnesses claimed to have seen Ms. Ogle on March 12, 1986, when she had been missing four days and presumed dead under the prosecution’s theory.

Montgomery was handed a death sentence in Ms. Ogle’s murder and life in prison in Ms. Tincher’s death. The prosecution’s theory presented to the jury was that Ms. Ogle was murdered as part of a robbery and Ms. Tincher was killed to silence her because she could place Montgomery and co-conspirator Grover Heard with her roommate.

The Cincinnati-based 6th Circuit Monday determined that, even if the jury had known about the report at the time, it was unlikely it would have changed the outcome of the trial. The court said the report undermined Montgomery’s claim that Heard, also convicted in connection with the murders, had used Montgomery’s gun to kill the women.

Writing for the majority, Judge Julia Smith Gibbons wrote that the evidence at trial “strongly implicated Montgomery as the triggerman.’’

She noted that the women were killed with a .380-caliber pistol Montgomery bought two weeks earlier, that he was seen in possession of the gun hours before the killings, and that Montgomery had acknowledged being with both women in their apartment shortly before their deaths. The gun was delivered to police by his mother.

Several witnesses, classmates of Ms. Ogle, had told police that they saw her in her car days after the car had been found abandoned and she was presumed dead. The report was not made available to the defense at the time, and it did not come to its attention until a public records request revealed it six years later.

After learning that their report had served as the basis for U.S. District Court Judge Solomon Oliver, Jr. to order a new trial for Montgomery, the witnesses retracted their statements and said it was Ms. Ogle’s younger sister they’d seen that day.

The appeal court’s majority disagreed that, had the defense been armed with the original report at trial, it might have tipped the balance in Montgomery’s favor with the jury.

“…(W)e are not persuaded that the report was material to the relevant issue at trial: whether Montgomery or Heard was the triggerman,’’ Judge Gibbons wrote. “To the contrary, the report exonerates Heard as Ogle’s shooter because he was imprisoned by the time of the alleged sighting on March 12.’’

Judge Gilbert S. Merritt issued one of the five dissenting votes in the case favoring a new trial. He said the witnesses’ original report should have been turned over to the defense before the trial.

“In a case of blatant prosecutorial misconduct, no one has seriously contested the fact that the prosecutor suppressed the evidence simply because it was inconsistent with his theory of the case,’’ he wrote. “The district court concluded that the case should be retried in state court. We should not retry it here on appeal, as my colleagues suggest. Montgomery is entitled to a jury trial free of gross prosecutorial misconduct.’’

Montgomery has remained on death row at the Ohio State Penitentiary near Youngstown pending his appeals.



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