Toledoan loses fight for new murder trial

8/23/2011

COLUMBUS -- A Toledo man convicted in the 1986 murders of two roommates saw his hopes for a new trial dashed Monday with a splintered 11-5 decision by a Cincinnati-based federal appeals court.

The U.S. 6th Circuit Court of Appeals overturned a lower court decision ordering a new trial for William T. Montgomery, 45, who again faces execution for the murder of Debra Ogle, 20, and a life sentence for that of her South Toledo roommate, Cynthia Tincher, 19.

His appeals attorney, Rick Kerger, said he will ask the U.S. Supreme Court to hear an appeal.

In a ruling that elicited six separate opinions, the appeals court's majority found that a police report withheld from Montgomery's defense at trial was not enough to overturn his convictions.

The majority disagreed that the report would have undermined the state's case that placed in his hand the gun that killed the women.

In that police report, witnesses claimed to have seen Ms. Ogle alive on March 12, 1986, four days after she'd been reported missing and presumed dead.

The prosecution's theory was that robbery was the motive in Ms. Ogle's murder and Ms. Tincher was killed because she could place Montgomery and co-conspirator, Grover Heard, with her roommate.

At trial, Montgomery had pointed the finger at Heard, who struck a deal with prosecutors for his testimony.

However, writing for the majority, Judge Julia Smith Gibbons wrote that the evidence "strongly implicated Montgomery as the triggerman."

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

Several witnesses, classmates of Ms. Ogle, had told police that they saw her days after the car had been found abandoned. The report did not come to the defense's attention until a public records request revealed it six years later.

"…We 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."

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

Judge Gilbert S. Merritt, one of the five dissenting votes and author of one of three separate dissenting opinions, called the withholding of the original report "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.

Lucas County Prosecutor Julia Bates said that the decision "vindicates" the work of prosecutors on the case. She noted that her husband, Common Pleas Judge James Bates, was the assistant prosecutor who handled the case.

The initial reversal of the conviction was the result of information on a police report proven to be "a nonissue," she said.

"There was no hiding of evidence … ," Ms. Bates said. "These are the kinds of petty, minute, details that cause angst for the family years later."

Mr. Kerger said he was most disappointed in the court's assumption that, had the witnesses' report been made available at trial, they would have retracted their testimony as they did six years later.

"They go back and assume that [Ms. Ogle's friends] would have testified then as they did in the affidavit [later]," he said.

"I'm not aware of any basis for that assumption. The problem is that this is rewarding the state for not disclosing materials.

"[The friends] were under pressure, knowing that if they didn't change their testimony, it is possible the conviction of the murderer of their friend is going to be set aside, as opposed to trying to decide who it was that did it," he said.

Staff writer Erica Blake contributed to this report.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.