Order upheld for new trial in 1986 slayings of 2 women

9/30/2009

More than two years after convicted killer William T. Montgomery was first granted a new trial, a federal appellate court affirmed yesterday that a police report kept from the defense during his 1986 trial could have changed the outcome of the case.

In a 2-1 decision released yesterday, judges of the 6th U.S. Circuit Court of Appeals in Cincinnati upheld the 2007 decision by Judge Solomon Oliver, Jr., of Cleveland to grant a new trial.

In addition, they affirmed the judge's subsequent ruling not to reconsider his decision.

Montgomery, 43, was convicted of the murders of two South Toledo roommates.

He was sentenced to death for the aggravated murder and aggravated robbery of Debra Ogle, 20, and to prison for the murder of Cynthia Tincher, 19.

In its decision, the majority of the appellate court agreed with Judge Oliver's assessment that a report withheld from Montgomery's defense team during his trial was "material" to the case and so could have been used by "even one juror."

The decision can be appealed to either the full appellate court or to the U.S. Supreme Court. Montgomery remains incarcerated on death row.

Prosecutor Julia Bates said the decision on how to proceed rests with the Ohio attorney general but noted that the case potentially could return to Lucas County.

"We'll be back in the trial posture to retry the case, and of course, that's what we'll do" if any future appeals fail, she said. "It's unfortunate because the document that caused all this … will not even be admitted. There will be no evidence that will be introduced that wasn't a part of the original trial.

"That's troubling but we'll do what we have to do," she said.

The decades-old police report in question stated that Ms. Ogle was seen alive four days after March 8, 1986, the day prosecutors said she died. The witnesses who were involved in that report have since written an affidavit claiming a mistake and that they had seen the victim's sister.

In their opinion, judges Gilbert Merritt and Eric Clay wrote that had the jury heard testimony from those witnesses who said they had seen Ms. Ogle alive days after prosecutors said she had been killed, "it may have raised enough doubt in the mind of one juror to sway that juror, even if he or she had voted to convict Montgomery of the murders, to reject the death penalty."

"If even one juror had rejected imposition of the death sentence, a life sentence would have been imposed," the opinion stated. "The fact that there may have existed even one juror with a doubt about Montgomery's guilt or the nature of his participation in the crime leads us to question the reliability of the verdict as to the sentence and to conclude that the police report was material to the sentence imposed."

In dissent, Judge Julia Smith Gibbons wrote that the withheld report was not material.

Attorney Rick Kerger said he was pleased with the decision but recognized the process is far from over.

He added that the judges' decision confirmed that Montgomery did not receive a complete and fair trial.

He noted that the appellate court did not address other issues he raised in his initial appeal and said that if yesterday's decision is overturned at some point, he would proceed with other arguments.

Montgomery's case had gone through - and lost - numerous appeals before Judge Oliver's order that it be retried.

Holly Hollingsworth, a spokesman for the attorney general's office, said the decision is under review.

The mothers of the victims, who expressed surprise and grief upon learning of the initial decision to grant a new trial, could not be reached for comment.

Contact Erica Blake at:

eblake@theblade.com

or 419-213-2134.