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Published: Thursday, 7/28/2005

U.S. judge refuses to block execution

BY JIM PROVANCE
BLADE COLUMBUS BUREAU

COLUMBUS - A federal judge yesterday refused to halt - at least for now - the scheduled Sept. 20 execution of John Spirko, convicted in the 1982 murder of a small-town postmistress in Van Wert County.

Spirko's attorneys have asked U.S. District Judge James G. Carr in Toledo to vacate the prior decision upholding his conviction and death sentence on the grounds that the prosecution perpetrated a fraud on the court in the original appeal.

Ohio Attorney General Jim Petro will ask the judge to throw out the claim, arguing Spirko has been unable to prove the prosecution covered up its presentation of a false theory during the trial two decades ago.

The prosecution maintained that Betty Jane Mottinger, 48, was kidnapped and later stabbed to death by Spirko and his accomplice, former cellmate Delaney Gibson. An eyewitness, now deceased, identified Gibson as the man she saw outside the post office the morning of Mrs. Mottinger's disappearance.

Spirko had since shown on appeal that Gibson was in North Carolina the night before and shortly after the murder and that he had a full beard at the time. The old photo the witness used to identify him in absentia during Spirko's trial showed a clean-shaven Gibson.

"Every witness that they chose to depose, [postal inspectors] Tom Strausbaugh and Paul Hartman, all of the evidence alive today, is that Delaney Gibson was likely the second person there," said Tim Prichard, senior deputy attorney general.

"The eyewitness testified that she was 100 percent sure when she identified Delaney Gibson," he said. "She's since passed away, but there has been nothing that attacks that identification."

Spirko's attorneys hope to persuade Judge Carr to reopen the original appeal upholding the conviction, a decision upheld by the 6th U.S. Circuit Court of Appeals. The U.S. Supreme Court refused to reconsider it.

If successful in convincing Judge Carr to reopen his appeal, Spirko would seek a new trial. Meanwhile, his attorneys will prepare for an Aug. 23 hearing in which they will try to convince the Ohio Parole Board that Gov. Bob Taft should grant Spirko clemency, something he's done just once before in a death-penalty case.

On the day the 6th Circuit upheld his conviction last year, the county prosecutor dropped its indictment against Gibson.

"It's absurd to claim Delaney Gibson had any involvement," said Spirko attorney Alvin Dunn. "What they're claiming is that the information they had at the time didn't preclude the possibility he was involved.

"We believe that, when you look at everything the state knew at the time, the state knew Delaney Gibson wasn't involved in this heinous crime," he said. "If he is granted a new trial, the state will not try at all to argue that Delaney Gibson was involved."

Spirko, 59, lived in Swanton with his sister at the time of his arrest, having been recently paroled after serving time in Kentucky for a separate robbery-murder. He maintains he tried to trade false information about the Mottinger crime for leniency for himself on an unrelated assault charge and for his girlfriend, who was charged with helping to plot his failed prison escape.

Investigators dismissed as fabrications the stories he told over the course of about 2 1/2 months, but they latched onto his connection with Gibson and details they said could be known only by the killers.

"Spirko claimed that he learned all of this information from Delaney Gibson," said Mr. Prichard. "That was his defense under oath and trial and during a press conference immediately after the trial."

In a court-ordered deposition taken in June, Mr. Hartman said that, while he believes Spirko and Gibson were involved, he later came to the conclusion others were probably also involved. At the time of the trial, he expressed doubts they could win a conviction against Delaney.

"Well, at that time and after that time, I had real serious concerns about any communication between the two, and quite frankly, how does one arrive at a consensus to meet at the post office in Elgin, Ohio? A community of 61 people, not on a main highway," he said.

"So it was clear something was missing," he said. "And I never accepted then that we know enough. I further never accepted the fact that we had all the people. We didn't."

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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