February 2010

I just received a letter from Michael. It's a bit more introspective than some. I thought I'd post a few lines here, as written..

You know, after assessing my life over a spann of about forty some odd years, I came to the conclusion that when I came to prison I was actually a mess. 18 years of age, fresh out of the Ohio Youth Commission for about the 6th time, not very eduacated, litterally grew up through an imprisoned envirnment - all of my younger life as a child and a youngster and my teenage life. Never having grew up in a stable life or in a home where there is a happy mother and father with brothers and sisters all around, I lacked everything... It literally took my coming to prison to grow up and mature! I had stopped blaming everyone for my problems and accepted the responsibility of where I failed. I began to forgive those who I had felt had abandoned me...

I just didn't want to be the person that incarceration was trying to mold me into being. Some of the people I know who have got sucked into the system are on death row right this very moment, and others have fallen over dead by the use of drugs, and others have gotten so bitter on the inside because they wouldn't change, will probably never get out of prison until they are carried out on their deathbeds! I see and hear of them everyday, and that makes me think way back into my life, and it helps me to be able to be grateful for how I turned out in life. I am able to sit back and count all my blessings and thank God for talking to me way back when he did when I was in that 6 by 8 cell.

As I see it now, there is always more room for improvement, but when it comes to further incarceration, I can only come to the conclusion that enough is enough. They are getting too carried away with it! I have been truthful every step of the way, even to the parole board, but they too will not accpt what I say is truth, they want to give me a parole if I confess to a crime I am innocent of!

I sit in my cell and I weep to an invisible God to please help me! Sometimes it seems He is gonna help, and the I have to wait. I see this, that and the other people keep getting cleared of their crimes through DNA, and I cry out to God, "When is it gonna be my turn Father?" I somehow feel encouraged to keep believing and trusting in faith the He will somehow help me! Other times the devil tell me to just hang it up and hang myself because I am never getting out! I certainly do not want to hang myself, I want to live. And why should I kill myself when I didn't do anything. Hell, I want to be free, and if I kill myself I won't be able to be free. I am afraid that if I kill myself the truth will finally come out about my innocence, but I won't be able to be free to enjoy being found not guilty. And, I have to much to live for, and that my life is more useful than being dead. I often have read about many lives who have been torn apart, never to recover fully, and some have been mended back together! I just know that my life can probably inspire somebody elses! I just don't believe that my being put on this earth was meant for me to be in prison all of my life, I know there is more to this life than being locked up...

There are times like right now when I just want to get away from everyone and yell out, smash my fists against the wall and just cry myself to sleep in order to feel some relief in my heart and my soul! The pain is so real inside, and there is an emptiness, even though I feel I have accomplished alot in my own personal life, it feels hopeless alot of times!

Can you imagine going to prison at 18 and turning 50 behind bars? That would be bad enough if you were guilty. But, what if you were innocent of the crime for which you were convicted?

The Paths We Take...

Turns out that one of the prosecutors in Michael's case left the practice of law over twenty years ago.

Check this out. I am not kidding.

Trial Transcript

From the end of the trial transcript, 21 December 1977.

After the jury was excused, Judge Ayers said, “Michael Ustaszewski, do you have anything to say why sentence of the Court should not be pronounced against you, or do you have anything to offer in mitigation of punishment?” Michael replied, “Yes, Your Honor.”

Ayers responded, “Anything that you wish to say the Court will listen to.” Michael said simply, “I’m innocent. I wasn’t there. I don’t know what happened, and that’s it.”

The judge said, “All right. Anything else you wish to say?” Michael responded, “I believe there is some people missing, Calvin Ellis, and several other people. I don’t understand, man.” The judge said, “Thank you.”

Judge Ayers then sentenced Michael to be committed to the Ohio State Penitentiary for the rest of his natural life and told him that he was also to pay the costs of the prosecution. He told Michael to be seated and Michael asked, “Can I say another thing?” The judge said, “Certainly you may.”

Michael said, “I ain’t never in my life killed nobody or had anything to do with it.”

The judge advised Michael of his right to appeal and asked Kuhnle to file the notice of appeal on Michael’s behalf. Ayers stated that the recognizance bond was cancelled and directed that Michael be taken into custody. Again, Michael spoke. “So that means I got to go to prison for the rest of my life for something I ain’t did?” The judge: “Michael, you will be eligible for a parole hearing at the end of fifteen years.” Michael: “Fifteen years? I’m innocent.”

Michael was eighteen years, six months, and twenty days of age.

Court was adjourned at 5:00 pm.

Note: Having retired in 1982, Judge Charles W. Ayers died on 29 December 2006. I have a feeling that if he were alive to know how this played out he would be appalled.

2010

Although the year is starting off as an incredibly busy one, I'm going to try to post relevant information, links, etc. now and again.

First, I know that I always prefer to put a face to a name, so here's a photo of Michael. Unfortunately, it's from January 1983, just a little more than five years after he was incarcerated.


You might also be interested in knowing that information for the 2010 Innocence Network Conference is now available online.

I'm planning to attend the conference in Atlanta and then drive up to Ohio to visit Michael. It's hard to plan ahead like that as there are so many things that can change, but if you don't plan, it doesn't happen.

That's about it for now. If you have happened upon this blog because of your interest in wrongful convictions, please consider sharing it with others. Thanks!

Childhood

I asked Michael to write a little bit about his childhood, his youth. Understandably, he doesn't want to be critical of his birth parents so what I can share is limited. Although his father is deceased, his mother is alive and now visits him periodically.

He writes, I forgave my Mom and Dad years ago for what I went through as a child, as a youngster and as a teenager. What he is comfortable sharing, I think, says a lot about why he ended up as and where he did.

The following is from Michael, with the full names of his siblings removed and indicated by initials only.

I was born June first at 5:50 p.m. in 1959, and I was the 3rd boy born. I have an older brother named A, and then a brother named R, and then I was born. I have a sister that is a year younger than me, her name is K, and then I have another sister named T that is a year younger than K. Us 5 kids are all a year a part. My Mother and Father divorced while we were all young children. I had learned that my mother took all 5 of us, but then my dad came and got us 3 boys and he put us in orphanage homes. I ended up staying in an orphanage home the longest, and I never had that much contact with my Mom and Dad for many many years, yet, inside I knew I wasn't where I was supposed to be, I was supposed to be home with my family. I wasn't aware what was going on between my Mom and Dad. I was in the custody of Catholic Charities and was bounced around from the Villa (Saint Anthony's Villa Orphanage Home in Toledo, Ohio) to many Foster care homes. I was even thrown in Dayton Psychiatric Hospital, and then thrown into Maumee Youth Camp (Maumee, Ohio). Excuse me, the real name is Dayton's Children's Psychiatric Hospital in Dayton, Ohio.

When I was at the Villa I remember waking up in a baby crib yelling, screaming and crying because there was a Monster outside the window trying to get in the room at me, the Nun would come and turn on the light and picking me out of the baby crib and putting me in her bosom and trying to calm me down! I only remember bits and pieces of that place, and I only remember bits and pieces of the 2nd time I was in the Villa (at a new location). I remember parts of the Children's Psychiatric Hospital in Dayton, where I ended up running away, and I remember bits and pieces of Maumee Youth Camp, I ended up running from that place too. I was in a few foster homes and a few group homes in between. I remember my first stealing offense when I ran away from Maumee, I stole a candy bar out of a drug store and ate it on the steps outside. I was hungry. I also remember going in some people's homes to find something to eat when I ran away from Dayton. I had become a member of the Boys Club several years later in the 70's. However, my first Juvenile sentence occurred in 1970 for possession of marijuana and discharging a firearm downtown on July 4th, I ended up going to the Ohio Youth Commission about 5 or 6 times. . .

Between the summer of 1970, when Michael turned eleven years old, and April of 1977, Michael was, as he writes, in and out of the Ohio Youth Commission. On 1 June 1977, Michael turned 18. In August, because of conflicts with his father, he was living in the YMCA on Jefferson Avenue in Toledo, working the streets and odd jobs, and receiving a $4.oo per diem from the state for meals.

Summary of Michael's Case

In 1977, Michael Ustaszewski, solely on the basis of the testimony of another defendant and a jailhouse informant - both of whom happened to have the same attorney, was convicted of aggravated murder. The results of examination of the limited physical evidence were deemed inconclusive.

In 2004-2006, Michael worked with the Innocence Project only to discover that, per the order of the Lucas County Prosecutor's Office, the evidence had been destroyed.

Michael was convicted in December 1977. Notice of appeal was filed on 10 January 1978. The Court of Appeals affirmed the conviction on 9 February 1979.

Why then the following result of the post-conviction DNA petition? The investigating officer's affidavit states, "On January 24, 1979, per the prosecutor's office, all evidence was destroyed."

Why would the prosecutor's office order the Toledo Police Department to destroy evidence on something as serious as aggravated murder?

And, even if that makes sense, why was evidence destroyed before the Court of Appeals even published their ruling on the lower court results?

Why, over 25 years later, would one of the lead detectives on the original case be the one assigned to locate evidence? Yes, the above-referenced affidavit was signed by the same officer. Evidence that, if it exonerated Michael, might have implicated that same detective in a miscarriage of justice. Talk about the fox guarding the hen house.

If you read the trial transcripts, as I have, you would think, well, maybe... Michael certainly made some stupid decisions. But, there's a reason he was living at the YMCA on release from the Ohio Youth Commission. He'd be the first to tell you he said and did some stupid things. But, the whole picture - something not put before the court - suggests that, while he had engage in criminal behavior, he didn't kill anyone.

From the day he was arrested, over 32 years ago, Michael has professed his innocence. He remains incarcerated in the state of Ohio.

Notes

Toledo Blade, Monday, 12 Sep 1977
"A second man was arrested Sunday in connection. . ."

Common Pleas Court Criminal Appearance Docket, No. 124
All notes refer to Ustaszewski, except where otherwise noted.

Sept 14 - ORIGINAL indictment for AGGRAVATED MURDER. . .

Sept 23 - Pursuant to the command hereof, I did on the 16th [sic] day of September, 1977, arrest within the named defendant, Michael Ustasaewski [sic] and now have in my custody for safe keeping. And on the 16th day of September, 1977, I also served a true and certified copy of the indictment found against said defendant. DONALD T. HICKEY, Sheriff.

Sept 26 - Carl Kuhnle is hereby appointed counsel for the defendant.
Sept 26 - At the request of counsel for the defendant, case continued to September 30, 1977, at 9:00 a.m. for arraignment.
Sept 26 - Attorney, Carl Kuhnle is hereby appointed as counsel for the defendant.
Sept 27 - At the request of counsel for defendant, case continued to September 30, 1977, for arraignment.

Sept 30 - Defendant present in court with counsel, Carl Kuhnle; State of Ohio represented by David Cooper, Asst. Pros. Attorney.

Oct 19 - Motion to Compel Defendants to Submit to Blood Testing, filed.

Nov 9 - Motion to Suppress, filed.

Nov 18 - Order, filed.

Nov 22 - Defendant present in court with counsel, Carl Kuhnle. . . Hearing had on request of counsel for information to be supplied by the Lucas County Welfare Department. Request of counsel granted. Welfare Department is ordered to supply the information to counsel for defendant and the Prosecutor.

Nov 23 - Defendant present in court with counsel, Carl Kuhnle. . . Case called for hearing on motion to suppress. Witness sworn; evidence adduced. Arguments presented. Motion granted in part and overruled in part. Trial date of November 28, 1977 confirmed.

Nov 28 - Defendant present in court with counsel, Carl Kuhnle. . . At the request of the State of Ohio and with the consent of counsel for defendant, trial date vacated. Case rescheduled for trial December 19, 1977, at 9 a.m. Defendant ordered released on his own recognizance. [Bolding mine]

Nov 28 - Recognizance of Accused, filed.

Dec 2 - Defendant present in court with counsel, Carl Kuhnle. . . Case called for hearing on motion to compel hair sampling. Hearing had. Motion granted by consent.

Dec 9 - Co-defendant Morris waives trial by jury. [Morris]

Dec 12 - "Case called for trial by a panel of three judges consisting of Hon. Peter M. Handwork, The Hon. Reno R. Riley, Jr., and the Hon. Robert V. Franklin, Jr." [Morris]

Dec 13 - "...this three-judge panel found defendant guilty of aggravated murder. . . . committed to the Department of Correction and Rehabilitation of the State of Ohio for transfer to the Ohio Penitentiary at Lucasville where he will serve the balance of his natural life. . ." [Morris]

Dec 16 - Hearing had on State of Ohio's request for revocation of the OR bond in this matter. Carl Kuhnle present on behalf of defendant. . . Request denied.

Dec 19 - Case called for trial. Court Reporter Ordered. Defendant, Michael W. Ustaszewski, present in court with counsel, Carl Kuhnle. . . Jury empaneled and sworn. Evidence adduced.

Dec 20 - Trial resumed. Evidence adduced.

Dec 21 - Trial resumed. Evidence adduced. Closing arguments of counsel concluded. Court charged the jury. Jury retired to consider its verdict at 1:00 o'clock p.m. and at 4:40 p.m. returned with a verdict as follows: "For verdict find and say that we find the defendant, Michael W. Ustaszewski, guilty of aggravated murder." 12 jurors concurreing [sic] therein. At the request of the defense the jury was polled and each juror indicated that the verdict read was his/her verdict. Whereupon, the Court inquired of the defendant if he had anything to sat [sic] before judgment is pronounced; defendant made certain statements. it is ordered . . . for the rest of his natural life.

Dec 28 - Notice of Appeal and praecipe filed.

Dec 29 - Attorney Kenneth Rohrs appointed to represent defendant for purposed of appeal.

Apr 7 [1978] - Transcript of Proceedings, filed. Certified to the Court of Appeals.

//END//

Common Pleas Court, Lucas County, OHIO,
Trial Docket Orders and Motion Docket Entries

2-21-79 - Mandate from the Court of Appeals affirming decision of Common Pleas Court filed.

6-14-83 - Motion to Proceed in Forma Pauperis in Postconviction Proceedings, filed.

6-14-83 - Postconviction Petition, filed.

6-30-83 - Motion to dismiss postconviction petition filed.

7-25-83 - Motion for friend and power of attorney filed.

7-26-83 - Motion for subpoena to produce witnesses at hearing filed.

7-27-83 - Since Larry Dean Robinson is not admitted to the practice of law in the State of Ohio, therefore not permitted to practice in this court, request for subpoena is found not well taken and is hereby denied.

8-3-83 - The motion of the State of Ohio to dismiss the defendant's petition for post-conviction relief found well taken and is hereby granted.

8-22-83 - Petition for Writ of Habeas Corpus and Memorandum, filed.

8-22-83 - Motion for Free Copying Service, filed.

8-22-83 - Motion to Proceed in Forma Pauperis in Habeas Corpus Proceedings, filed.

8/23/83 - Application for a writ of habeas corpus filed in the wrong jurisdiction and is hereby dismissed.

9-28-83 - Notice of Aopeal [sic] filed. Prosecutor notified.

9-30-83 - Motion to Proceed in Forma Pauperis in Postconviction Proceedings, filed.

9-30-83 - Petition to Vacate or set Aside Sentence, and Affidavit of Indigency, filed.

10-13-83 - Motions filed 7/30/83 over ruled. See entry of 8/3/83

10-17-83 - Petitioner's Motion for Judgment in Default, in Postconviction Proceedings, filed.

10-18-83 - Petitioner's motion for a default judgment denied.

10-27-83 - Motion for Judge to Disqualify Himself on Gounds [sic] of Bias and Prejudice and Affidavit, filed.

12-2-83 - Mandate Affirming Decision of Common Pleas, filed.

1-18-84 - Notice sent to Supreme Court of Ohio by Certified Mail. . .

1-18-84 - Return Receipt. . .

3-12-84 - Pursuant to the court's ruling of October 13, 1983, which denied defendant's petition for post-conviction relief filed September 30, 1983, findings of fact and conclusions of law (file-stamped March 7, 1984) are ordered filed instanter.

3-26-84 - Notice of Appeal, filed. Prosecutor notified.

3-26-84 - Praecipe, filed. Court reporter notified.

5-1-84 - Mandate from Supreme Court Overruling Motion for Leave to Appeal from the Court of Appeals, filed.

5-1-84 - Mandate from Supreme Court Dismissing Appeal from the Court of Appeals, filed.

6-22-84 - Mandate Affirming Decision of Common Please, filed.

A visit to the Criminal File room at the Lucas County Courthouse on Tuesday, 1 Sep 2009, resulted in no records dating from 6/22/84 until 11/13/1998.

//END//

Clerk of Courts Docket - electronic

11-13-1998 - Case cont'd from Manual Docket
Please see the HP-3000 and.or the paper Appearance Docket for information on events which occurred prior to July 1, 1997.
[As above, no records after 6/22/84, but before either 7/1/97 or 11/13/98 were found.]

1998 records refer to Morris.

10-28-2004 - Motion, application for DNA testing, filed by Professor Mark Godsey, University of Cincinnati, Prosecutor notified.

10-28-2004 - Various motions, etc., were filed/heard between the this date and 2/1/2006.

2-1-2006 - The judgment of the Lucas County Court of Common Pleas is reversed and we therefore remand this case to the trial court to make findings that comport with the thoroughness mandated by this statutory scheme.

2-1-2006 - Various motions, etc. were filed/heard between this date and 1/30/2008, when the electronic docket ceases.

//END//

Court of Appeals of Ohio, Sixth District, Lucas County, State of Ohio Appellee v. Michael W. Ustaszewski Appellant, No. L-05-1226, Jan. 27, 2006.
 
The Court of Appeals, Singer, P.J., held that State's responsive pleading failed to demonstrate reasonable diligence in locating DNA evidence. Reversed and remanded.

Supreme Court of Ohio, State v. Ustaszewski, NO. 2008-1233, September 10, 2008
On motion for leave to file delayed appeal. Motion denied.

Supreme Court of Ohio, State v. Ustaszewski, December 03, 2008
On motion for reconsideration. Motion denied.

See here and here for electronic dockets.