The 1979 Appeal

Just a comment on something I noticed in the opinion of the Court of Appeals, 9 February 1979.

The opinion reads, "The record contains overwhelming evidence of defendant's guilt of aggravated murder, including the testimony of Michael Morris, another participant, who disclosed the details of how he and defendant robbed and stabbed Henry Cordell [sic] to death. The testimony of Michael Morris and much additional corroborative evidence attains to that high degree of probative force and certainty which the law demands to support a conviction of defendant beyond a reasonable doubt of the crime of aggravated murder. Judgment of the Common Pleas Court of Lucas County is affirmed..." [italics mine]

I don't know what evidence from the trial they reviewed. It surely isn't from the same transcripts I've read. The only corroborative evidence provided was the testimony of the fellow inmate who, having been charged with a first degree felony, was suddenly able to plead to a fourth degree felony. That was it for corroborative evidence.

Further, the "overview" provided in the opinion, as it appears in LexisNexis, states, "defendant made a statement that he had committed the crime." Who prepares these things? Nowhere, ever, did Michael make a statement that he had committed the crime. What a travesty that this appears in the the record, State of Ohio, Appellee v. Michael W. Ustaszewski, Appellant, C.A. No. L-77-299.

I keep reading, I keep thinking, I keep being shocked at how badly this whole thing played out...

The Jailhouse Informant

I thought, given my comment at the end of the previous post, that I would write a bit about the jailhouse informant - separately from all the other posts - and explain why it is I find his testimony so suspicious.

On 9 September, Detective Thomas Ross located Michael Morris at his job at a gas station. Morris ran. The following day, he was able to speak with Morris and, telling him that he was not a suspect, got Morris to agree to go to the Safety Building for "investigative purposes."

At trial, Ross said that he told Morris he was focusing on him "due to the fact that since the time of the homicide, he had not been at the YMCA, and that . . . he ran on me, and I felt there was probably involvement on his part. . ."

On the basis of Morris' statement implicating him, Michael Ustaszewski was arrested the following day, 11 September 1977. As he has every day since, Michael denied involvement in the crime.

The only evidence against Michael was the statement provided by the man who would become his co-defendant, Michael Morris. This was problematic for the prosecution. While it's not impossible to convict someone solely on the basis of a co-defendant's testimony, it's not the tightest case to make. No physical evidence, no eyewitnesses, no confession, just the statement of Morris. We're all in big trouble if that's all it takes to get convicted, but that's an issue for another post.

On Wednesday, 23 November, Michael appeared in court on a motion to suppress. At issue was the following exchange between Ross and Michael on 11 September. They are discussing Michael's claims regarding the man he claims to have been with on the night of the murder. Ross asks, "Between you and I, will you tell me what you did? Michael asks, "Is this going on tape now?" Ross replies, "Yes, it's going on tape, but it's a departmental tape. It's completely confidential." Michael responds, "All right. We was making love." Michael did not want to discuss, within earshot of other officers, what he was doing to keep money in his pocket.

Everything on the tape after the statement, "It's completely confidential" was ruled excluded. Note: This entire exchange between Ross and Michael is fascinating, but it's too lengthy to reproduce here.

The following day, Thanksgiving, 24 November, Ross again interviewed Morris. When asked, at Morris' trial, the purpose of that interview, Ross stated, "The purpose of that was to determine whether he was to testify against Michael Ustaszewski." Note: Again, the details are interesting, but too lengthy to reproduce in this post.

On Monday, 28 November, Michael Ustaszewski appeared in court. The state had requested a continuance. Michael's trial was rescheduled for 19 December. Michael was ordered released on his own recognizance (ROR'd). He was taken back to his cell at the county jail so that he could collect his belongings.

The man in one of the adjoining cells was Carl Edward G-, Jr.

G- had been arrested on 2 October and charged with aggravated robbery. Using a pipe as a weapon, he had robbed a store of $180. At Michael's trial, G- testified that he had first come into contact with Michael "about a month after [he] was there." That would mean early November.

Kuhnle [defense attorney]: Had you ever had any conversations with Mike prior to this time [the 28th] about his case?
G: No.
K: You had never discussed it, what he was in there for or anything like that?
G: No.

Several minutes later, Kuhnle asks, "During the period of time that you were in there with Mike, had he ever professed his innocence to you at all, said he didn't do it, said they have nothing on me?"

G: Yeah.
K: Then you did discuss this with Mike previously?
G: Well, that's about as far as it went.

Moments later,
K: He had never said anything previous to this time other than the fact that I didn't do it, they haven't got anything on me?
G: [nodded affirmatively]

Prior to the 28th when Michael came back to gather his belongings, he either had discussed the case with G-, or he had not. Within a matter of minutes, G- makes both claims, ultimately agreeing that Michael had professed his innocence.

Other details about this encounter include the fact that Michael allegedly entered his cell, number four, reached through the bars to G- in cell number five, pulled the covers off his head and said words to the effect of "Just don't tell anybody that I did it." I say "words to the effect" because G- was not at all clear in his testimony saying, ". . . and he told me it was OR bond, and he said, you know, he did it, that he got out of the case and stuff, you know" and so on.

Just to be clear, here's the picture: G-, after being pushed on this point, says that they had discussed the case and that Michael had said he was innocent. Then, being ROR'd, Michael reaches through the bars to G-'s cell - an inmate that he had known for fewer than four weeks - pulls the covers off his head, wakes him up, and tells him the he had, in fact, committed the crime. You be the judge.

Let's recap the timeline...
10 September - Michael Morris is arrested. Attorney: Paul Geller.
11 September - Michael Ustaszewski is arrested. Attorney: Carl Kuhnle.
2 October - Carl G- is arrested and charged with aggravated robbery, a first degree felony. His attorney? Paul Geller.
Early November - G- encounters Michael Ustaszewski for the first time.
While incarcerated near each other during those 3 to almost 4 weeks, Michael tells G- that he is innocent.
14 November - G- pleads not guilty to aggravated robbery.
24 November [Thanksgiving Day] - Detective Ross again interviews Morris.
28 November [Monday after Thanksgiving] - The state requests a continuance, releases Michael Ustaszewski on his own recognizance. Michael allegedly then tells G- he is guilty.

And, now - for the punchline.
7 December - G- goes to trial and pleads guilty to grand theft, a fourth degree felony. Upon the request of the detective [Poiry] to whom he allegedly volunteered the information about Michael, G- is released on his own recognizance, pending sentencing.

When asked, at Michael's trial, "And how did it come that we found out your name, how did it come that we found out about you?" the following testimony was recorded:

G: Well, I was talking to Detective Poiry. Is that how you pronounce it?
Harris [prosecutor]: When did you talk to Detective Poiry?
G: About a week before I got out.
H: That would be in early December?
G: Yeah.

On cross-examination, Kuhnle asks, "When did you talk to Detective Poiry in regard to any involvement with Michael Ustaszewski?"
G: About two weeks before I got out.
K: This would have been - - you were released on December 7th?
G: Yeah.
K: And you talked to Poiry approximately two weeks before then?
G: A week or two weeks. It's really not straight with me.
K: Was it after this alleged statement by Mr. Ustaszewski?
G: Yeah.
K: And when did you hear this statement from Mr. Ustaszewski?
G: It was a Monday, the 28th, I think. I'm not sure though.
K: You're not sure of the date?
G: No.
K: Could you tell me what kind of conversation you had with Detective Poiry?
G: Well, he just asked me how I was doing, everything, and we discussed my case, and I told him what Mike said.
K: You just volunteered the information to him?
G: Yeah.
Testimony then gets to the details, above, of what Michael allegedly told him.

Am I the only one wondering why - around 28 November - just as Michael is ROR'd - Detective Poiry goes to chat up an inmate who, two weeks to the date earlier, had already been in court, pleaded not guilty, and was awaiting trial?

While some of the police testimony was damaging with regard to character, Michael was really convicted on the basis of two pieces of evidence: 1) The statement of the co-defendant Michael Morris, and 2) The statement of the last minute - and only after the state requested a continuance - jailhouse informant, Carl G-. G-'s testimony was critical.

A footnote: I am fairly confident that, when giving his statement, Morris was unaware of the felony-murder rule and/or the statute regarding aggravated murder. That is, it is not a leap to imagine that he might have thought it better to confess to having been present, but blame someone else for the stabbing. This way, in his mind, he might have imagined that he would only be charged with robbery, leaving culpability for the murder to someone else. Just a thought...

Inmate Statements

During the early years of Michael's incarceration, he was approached by at least three different inmates who claimed to know of his innocence. In each case, their alleged knowledge was based on interactions with Michael's co-defendant. I have the handwritten statements of all three. One is too faint to scan. Two others are reproduced here.

The first is the statement of an inmate who had, at one time, been a cellmate of Michael Ustaszewski's co-defendant, Michael Morris.


The second, the two pages below, is the statement of an inmate who attended group counseling sessions with Morris.


Below is Michael's typed transcription of the above statement.


You might note, in the above statement, that the co-defendant, Michael Morris is alleged to have said, "The next time they showed me a page of paper, they say the white boy signed a statement that he saw me Stab the old Man - So I decided then I was taking him to Jail with me." Nowhere in the record - not in the police file, not in the trial transcripts - is there any indication that Michael Ustaszewski made such a statement.

I recently corresponded with Michael Ustaszewski about the issue of who brought up whose name when. This is what he had to say: "When the detectives came to the YMCA to interview me, they had asked me did I notice anyone not here at the Y that usually would be here. I sat and thought about it for a moment, and the only person that came to my mind was Morris. I had come up on some pot over the weekend and I was looking for him to cop some joints from me, but I hadn't seen him around for a few days, and that's when I said that I hadn't seen Morris around."

I suspect that the police genuinely thought that both men were involved in the crime, but they didn't know who, if not both of them, might actually have killed Cordle. Morris, arrested first, confessed to being at the scene, but pinned the actual murder on Ustaszewski. Ustaszewski, arrested the following day, has denied involvement in any aspect of the crime from the time of his arrest.

I have learned that the police have very broad discretion with regard to the use of lies and false evidence to try to get suspects to confess. The record here suggests that this is what was going on in this instance. I can only conclude that the police used the "He said, he said" game to try to get someone to spill it. Morris thought that it was better to admit being there, but pin the murder on someone else. Ustaszewski didn't play along.

Morris's "confession," however, was not going to be enough for a conviction. Thus, the jailhouse informant. More on that in a separate post.

Parole: Denied

First, I just want to acknowledge that Michael just had a birthday. Having been sent to prison at 18, he turned 51 on June 1st.

On the second of June I received word that Michael had been denied parole for something like the seventh or eighth time. I don't know that he was hopeful, but it would be an understatement to say that the specifics of the denial are anguish inducing.

First, a step back. When I visited Michael in April, he had been meeting with a prison psychologist. As is general practice, her report would be part of the file shared with the parole board. In the course of their conversation, she said something about him being a sex offender. He was horrified. Never has that been a part of his past. He was, of course, upset. She ended the interview. Then, he wondered, was it a set-up? Did she say that only to see how he would react? If you don't know much about prison, let me tell you that sex offenders are the lowest of the low. As my drill sergeant would have said, "Lower than whale shit and that lies on the bottom of the ocean." Not only was he upset that his file was incorrect, but that it was that, of all things. Several days after I left he met with her again. Lo' and behold, she stated that the record had been incorrect and apologized. Okay, fast forward.

First I heard that he had gone before four members of the parole board and was told that the vote was 2-2. He was told that he would then go before the full board. The next thing, I found out that he had been denied. Not only was he denied, but he found out from an inmate before he got the news! See, in Ohio, offender information is available online. You can see the parole date, etc. Apparently an inmate's wife was checking on some of the guys that she knew had gone before the board. Bad news travels fast.

Then, Michael received the official letter. His next review is October 2012. That's two years and five months. But, it's worse. Although I've not seen the actual letter yet, he tells me that under the section labeled "Rationale," the board representative wrote that the victim had been stabbed 60 times. I'm not splitting hairs over whether it really matters that is was 37 and not 60. What does, I think, matter is that the record keeping is so careless.

The letter goes on to say, "Offender has done over 32 years, has decent programs and only one ticket that resulted in segregation since last hearing. Extensive criminal record and was just released from juvenile supervision. Due to prior criminal record and very vulnerable victim this offender's release would not be consistent with the welfare and security of society." The box that is checked contains the standard language: "There is substantial reason to believe that due to the serious nature of the crime, the release of the inmate into society would create undue risk to public safety, or that due to the serious nature of the crime, the release of the inmate would not further the interest of justice or be consistent with the welfare and security of society."

Read that again closely. First, the "extensive criminal record" consisted of juvenile offenses for petty theft, marijuana possession, and other things consistent with his adjudication as delinquent and commitment to the Ohio Youth Commission. I don't believe that there were any violent crimes on his record. His arrest for Henry Cordle's murder was his first arrest as an adult. The language "extensive criminal record" and "prior criminal record" makes it sound, to me, like we're to think that, as an adult, he had a lengthy and violent criminal history. This was not the case.

But, consider this as well. Between now and October 2012, the italicized sections in the excerpt above, will not change. That is, the rationale that is provided says, essentially, Even though 'offender has done over 32 years, has decent programs . . .' the specifics of his life at the time of the conviction and the specifics of the conviction prohibit his release." What can change that will satisfy the parole board? Apparently nothing.

I realize that the US abandoned a rehabilitative model of corrections long ago. It's all about retribution, punishment, isolation. But, why, then, even have a parole system? Nobody - nobody, nobody, nobody - can change the circumstances of his or her life prior to incarceration. And, nobody can change the circumstances of the crime for which s/he was convicted. If that's the case, then doesn't a parole review have to consider what you've done during your incarceration? How much time has past? Have you "paid your debt to society"? If a parole board is only interested in facts that cannot be changed, there's no point in going through the motions.

Let me be clear. I wholeheartedly believe that Michael is innocent of the murder of Henry Cordle. But, since the parole board doesn't think so, let's look at this from the perspective of someone who believes him to be guilty. What about the time served? The programs completed? The maturity? The parole system seems to have decided that what Michael has done - or not done - since 21 Dec 1977 is meaningless. All that matters are the circumstances of his life prior to that date. And, those he cannot change.

The "Search" for DNA Evidence

At the time of Michael's trial, forensic testing was - by comparison to today - prehistoric. There was, apparently, no testing of the knives that were seized. It doesn't even appear that they were given to the folks at the Bureau of Criminal Investigation for testing. There were apparently some small stains of something on the jeans that were seized from Michael's room; while they were able to identify them as blood, they were unable to determine if they were human or animal, let alone type the blood. And, I would add - small stains of blood on jeans allegedly worn by someone who stabbed someone 37 times? This time of year I get blood on my clothes just by slapping a mosquito...

The note regarding the fingernail scrapings of the victim is illegible, but no lab results tied them to either defendant. None of the other evidence (i.e., blood from the scene and items from the scene) was used to tie either defendant to the scene. The technology was just too limited.

When DNA evidence started to be tested with new - and incredibly advanced - techniques and state law permitted such requests, Michael immediately pursued this option. He was confident that the knives would reveal no trace of blood. Yes, even when "cleaned," the new technology can show amazing things. He was confident that the knives and fingernails scrapings would exonerate him.

In response to his application for DNA testing, in 2005 the state went "looking" for DNA evidence so that it could be tested. If you click on the below images, they will enlarge. You will see that a police officer in the Property Room stated that the property room journal noted, "On January 24, 1979, per the prosecutor's office, all evidence was destroyed." What I can't figure out is why the evidence was ordered destroyed so quickly. When did the Court of Appeals affirm the Lucas County Common Pleas Court decision? February 9, 1979.

It is true that the actual appeal might have taken place earlier, even before January 24th. I don't have that information (yet). But, it still seems a bit hasty to have destroyed the evidence thirteen months after a conviction for aggravated murder that resulted in a life sentence. Hasty even for the 70s.

Perhaps most intriguing - it's one thing to have the prosecutor go looking for evidence that might exonerate someone they convicted. It's another thing to have the person who was the lead detective on the case go looking. Thomas Ross, "serving as a Secret Service Investigator by and/or on behalf of the Criminal Division, Lucas County Prosecutor's Office" was sent to do the looking. He was the person who interrogated Michael back in 1977. Below is his two page affidavit of 17 Feb 2005, stating that no evidence was to be found. Call me crazy, but...


After an appeal, regarding the search for evidence, in which the Court told the state, essentially, "No, you actually have to try to find the evidence," the prosecutor's office again sent Thomas Ross on the hunt.

Below is the two page affidavit, again, stating that no evidence could be found. The affidavit makes reference to the serologist leaving the evidence in court on "12-12-77." This was during the co-defendant's trial, not Michael's. His trial began a week later, on December 19th. Note the care with which the document is prepared. Michael's last name is misspelled, as are several other things. Yes, it's a difficult Polish name, but c'mon. Note: I was shocked at the number of errors in both the investigative file and the trial transcripts.



Finally, this is the affidavit of Charles Broshious, a "Special Deputy" with the Lucas County Sheriff's Department. He states that he searched the courthouse and came up empty.


No evidence = No DNA. No DNA = no DNA testing of evidence. No DNA testing of evidence = a much more difficult situation.

Was the evidence really destroyed? Maybe. Only recently did Ohio pass a law addressing the preservation of evidence. Or, with the fox guarding the hen house, did they just not happen to"find" it? Chances are we'll never know.

But, it seems an egregious error to send the man who was the lead detective on the case looking for evidence that might well have shown that when he got his man, he got the wrong guy.