COLUMBUS Attorneys for John Spirko yesterday filed a federal civil rights lawsuit in an attempt to force the state to produce 23-year-old evidence for DNA testing they say could point to a different perpetrator.
With his execution for the 1982 kidnapping and stabbing of a rural Van Wert County postmaster now 12 days away, Spirko is asking the state to conduct modern DNA tests on the paint-spattered drop-cloth that shrouded Betty Jane Mottinger s body as well as other evidence.
In the alternative, they want the evidence produced so they could order the tests themselves. The suit was assigned to U.S. District Judge David Katz in Toledo.
The FBI has already turned Spirko down, and the Ohio Parole Board has refused to reconsider its two 6-3 votes recommending Gov. Bob Taft not stop or delay Spirko s execution by lethal injection. Spirko s lawyers have yet to hear from Attorney General Jim Petro.
Our goal is to find out what still exists, what condition it s in, and whether it was ever entered into the trial s evidence, said Petro spokesman Kim Norris.
Spirko attorney Alvin Dunn said there has never been any suggestion over the years that the evidence no longer exists.
It certainly existed at the time of trial, he said.
Mr. Dunn noted forensic tests were conducted on the drop-cloth, an old theatrical curtain, but the tarp itself was not produced at trial because of the overwhelming stench.
Spirko tried last year to convince a Van Wert judge to force the issue under a state law opening a one-time window for DNA tests for inmates who can demonstrate such evidence may exonerate them. The judge ruled that, even if the tests pointed to the presence of someone other than Spirko, it would not prove Spirko wasn t there. The one-time window has since closed.
The prosecution has long maintained Spirko committed the crime with former Kentucky cell mate Delaney Gibson, even through Gibson was never tried for the crime and has been since been paroled in Kentucky on an unrelated murder conviction.
No physical evidence tied Spirko to the crime. He was largely convicted on statements he made to investigators that the state maintains only someone at the crime would know, and by eyewitness testimony placing Gibson at the scene.
Steven Drizin, law professor at Northwestern University and legal director for the school s Center on Wrongful Convictions, said DNA samples of other persons on the paint-spattered drop cloth or other items would raise new questions.
The burden then shifts to the state to say they can connect John Spirko to whoever is profiled, he said. And if they can t, then there s more than enough reasonable doubt in this case to undermine the jury s verdict.
Spirko s lawyers are particularly interested in comparing any DNA recovered from the evidence to that of Dale Dingus, a former Findlay house painter now jailed in Louisiana for rape.
In 1997, John Edwin Willier, a former Findlay man living in Tennessee, told Wyandot County investigator Bill Latham that Dingus, his former boss, admitted abducting and killing Mrs. Mottinger.
Contact Jim Provance at: firstname.lastname@example.org or 614-221-0496.