STORY: "Former death row inmate Walter Ogrod suing Philadelphia after 1988 murder conviction overturned," published by CBS3 on June 2, 2021.
GIST: A former death row inmate is suing the city of Philadelphia. Walter Ogrod was convicted in the 1988 murder of 4-year-old Barbara Jean Horn in the northeast. Last year, a judge overturned the conviction after DNA evidence showed he did not commit the crime. “Well, I want the city to pay for this. Pay for putting me in a cage. I mean, you’re in there 24/7 all day, only maybe two hours out but sometimes you don’t. You have mental problems when you get out,” Ogrod said. The search continues for Horn’s killer.
The entire story can be read at:
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PASSAGE OF THE DAY: (NATIONAL REGISTRY OF EXONERATIONS): "The exoneration followed a re-investigation of the case by the Conviction Integrity Unit of the Philadelphia County District Attorney’s Office that was triggered by years of litigation seeking to overturn his conviction. It followed the 2017 publication of The Trials of Walter Ogrod: A Story of Murder, Coercion, and a Notorious Prison Snitch in Philadelphia by journalist Tom Lowenstein.
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See National Registry of Exonerations entry by Maurice Possley at the link below: (Among numerous contributing factors: 'False or misleading forensic evidence'... "After his first trial ended in a mistrial after a jury could not reach a verdict, voting eleven-one in favor of acquittal in 1993, Walter Ogrod was convicted and sentenced to death at a second trial in October 1996 for the murder of four-year-old Barbara Jean Horn in Philadelphia, Pennsylvania.
The child’s naked body had been found inside a cardboard box covered with a plastic trash bag near her Northeast Philadelphia home in the early evening hours of July 12, 1988. An assistant medical examiner identified “cerebral injuries” as the cause of death. A detective who attended the autopsy wrote in his notes that the possible murder weapon was a “2x2 or 2x4. Something lighter than a baseball bat or a tire iron.”
However, those detective notes were never disclosed to Ogrod’s defense lawyer and the prosecution’s case rested on misleading forensic evidence to argue that the girl had been killed with a heavier metal weightlifting bar.
On June 5, 2020, nearly a quarter century after his conviction, Ogrod was released from death row after evidence showed that in fact the girl was likely asphyxiated. In addition, evidence showed that a jailhouse informant falsely claimed that Ogrod confessed to the crime while in jail and the prosecution failed to disclose to the defense that the informant had mental problems.
The exoneration followed a re-investigation of the case by the Conviction Integrity Unit of the Philadelphia County District Attorney’s Office that was triggered by years of litigation seeking to overturn his conviction. It followed the 2017 publication of The Trials of Walter Ogrod: A Story of Murder, Coercion, and a Notorious Prison Snitch in Philadelphia by journalist Tom Lowenstein.
The murder sent shock waves through Philadelphia and was the subject of massive media attention. On the afternoon of July 12, 1988, the girl was last seen leaving her home in search of friends to play with. Between 1:30 p.m. and 5:30 p.m. that day, five witnesses saw a man carrying the box in which the body would be found—a man the witnesses described as in his mid-twenties or early thirties, standing 5 feet 6 inches to 5 feet 9 inches tall, weighing 165 to 175 pounds, and having either dark or sandy hair. Ogrod, who lived across the street from the girl’s home, was 6 feet 1 inch tall and weighed more than 200 pounds.
Police initially focused on two suspects. The box, which had contained a Hitachi television, was traced to the nearby home of Ruth and Joseph Ward. Their son, Wesley, an unemployed Temple University night student, was home alone when Barbara Jean went missing. A search warrant was executed at the home, but nothing was found that linked him to the crime although no DNA testing was performed. Police also investigated Ross Felice, whom two of the witnesses identified as the man they saw carrying the box. However, a grand jury declined to indict either man.
Police also collected evidence from the plastic bag and box in which the body had been found, but no DNA testing was performed on that, either. One of the witnesses who had identified Felice also identified yet another suspect, Raymond Sheehan, from a photo. But he also was not charged.
Nearly four years later, in February 1992, the murder was still unsolved when the case was assigned to veteran Philadelphia Detectives Martin Devlin and Paul Worrell. The first person they interrogated was Barbara Jean’s stepfather, John Fahy, who was in his late twenties, stood 5 feet, 7 inches tall, weighed about 160 pounds, and had short brown hair.
The detectives were considered experts at solving crimes and particularly with getting confessions. However, their methods would—over time—be exposed for producing false convictions. Four months earlier, Devlin had obtained a confession that would prove false after resulting in the conviction of Anthony Wright for the 1991 murder and rape of a 77-year-old woman. Wright was exonerated in 2016 after DNA testing excluded him.
Devlin and Worrell also threatened and physically coerced witness statements and false confessions that had culminated in the conviction of Shaurn Thomas and his brother, Clayton “Mustafa” Thomas Jr. , for the 1990 murder of the seventy-eight-year-old operator of a payday-loan business. Shaurn was exonerated in 2017 and Clayton was exonerated in 2019.
Also in 2019, Willie Veasy was exonerated of a 1992 murder because Devlin and Worrell coerced a false confession from him.
Once assigned to the investigation of Barbara Jean’s murder, Devlin and Worrell began re-interviewing people who had been interviewed four years earlier. In addition to John Fahy, they interrogated Barbara Jean’s mother, Sharon. The couple was detained for more than four hours, during which Sharon was given a polygraph examination and accused of withholding information that Fahy had killed the girl. When neither confessed, they were released.
The detectives also questioned a middle school teacher and—the teacher later claimed—told him he failed a polygraph test when asked about the murder. He said he was interrogated for several hours by Devlin and Worrell before he was released.
The detectives then focused on Ogrod, who at the time of the crime was 23 years old and shared a home in the neighborhood with a couple who lived across the street from Barbara Jean. The couple’s young son, known as “Charliebird,” was a friend and playmate of the girl.
In April 1992, Worrell went to an apartment above a chandelier shop in suburban Glenside where Ogrod had moved in 1990. Ogrod was not at home, but Worrell left his business card at the chandelier shop, asking the owner to ask Ogrod to call the next day. On April 4, as requested, Ogrod drove to the Philadelphia Police Administration Building, known as the “Roundhouse,” to be interviewed—not as a suspect, according to the detectives, but as an “informational witness.”
Ogrod had no criminal record and had attended a school for youths with learning disabilities, graduating two years late. “Crazy Walter,” as he was known, had served briefly in the Army, from which he received a medical discharge based on a diagnosis of “mixed personality disorder characterized by extreme dependency.” One acquaintance said that Ogrod “seemed mentally retarded,” and other acquaintances described him as “easily manipulated,” “definitely slow,” and “an easy person to bully.” When Ogrod arrived at the Roundhouse, he had been awake for roughly thirty hours, having worked an 18-hour shift as a driver for a commercial bakery.
After a lengthy interrogation, none of which was electronically recorded, Ogrod signed each page of a 16-page statement—purportedly in his own words, but in Devlin’s handwriting— confessing to the murder and attempted sexual assault of Barbara Jean. The detectives later testified that the interrogation lasted six hours—the maximum allowed at the time. Ogrod asserted he was interrogated for 18 hours.
According to the statement, which Ogrod recanted almost immediately, the four-year-old had come to his house looking for Charliebird. He then lured her into the basement to “play doctor” and tried to force her to perform oral sex. She screamed, prompting him to strike her head at least four times with “what felt like a pipe,” but perhaps was a “pull-down bar” from his weight set.
According to the statement, Ogrod said he washed the girl’s body in the basement sink. He said he went outside to the garage through the basement back door where he got a trash bag and brought it back inside and covered the girl’s body. He said that he stuffed the girl’s clothing in an air vent or crawl space in the basement (the clothes were never found). He also said that there was blood on a rug, which he rolled up and threw away.
The statement said he carried her back outside through the rear basement door and into the garage. There he covered her in clothes and left her while he walked down the street and found the cardboard box. He said he brought the box back to the garage, put Barbara Jean inside, put the trash bag on top of her, and then walked around the neighborhood for several minutes looking for a place to leave the box. He finally left it near some trash cans.
On April 6, 1992, Ogrod was arrested on charges of murder and involuntary deviate sexual intercourse.
He went to trial in October 1993 in Philadelphia County Court of Common Pleas. The prosecution relied principally upon the signed confession, which Judge Juanita Kidd Stout held admissible despite a psychiatrist’s testimony that it was not in Ogrod’s style of speaking.
Ogrod testified and denied committing the crime. He said that, during the interrogation, the detectives had persuaded him—briefly—that he must have done it. There was no physical evidence linking him to the crime. The murder weapon had not been, and never was, recovered.
Ogrod said the detectives falsely told him that there witnesses who had identified him carrying the box and fed him details about the crime. He said the detectives threatened to take him to jail and tell other inmates about the crime, which would result in him being attacked and beaten. The detectives also offered him mental health treatment if he confessed, he testified.
Devlin and Worrell testified that the statement was a verbatim transcript of the questions asked and Ogrod’s answers. Devin said he would formulate a question, write it down, and then ask it. He said he then wrote down Ogrod’s response.
On November 4, 1993, after nine hours of deliberation at the end of the eight-and-a-half-day trial, the jury foreman sent a note to Judge Stout stating that the jury was deadlocked eleven-to-one. Stout summoned the parties to the courtroom, but before court reconvened, the foreman informed her that the jury had reached a verdict after all—to acquit Ogrod.
The jury was brought into the courtroom. When the Judge Stout announced that the verdict was an acquittal, one juror declared, “I do not agree with the verdict.”
As a result, Judge Stout declared a mistrial.
Nearly two years later, in September 1996, Ogrod went to trial again. Almost two months earlier, the prosecution disclosed to his court-appointed lawyer, Mark Greenberg, that two repeat felons, Jay Wolchansky and John Hall, had come forward some eighteen months earlier to claim that Ogrod had confessed to them when the three were in jail together.
Hall was a serial informant known as “the Monsignor” for his success in obtaining, or rather claiming to obtain, jailhouse confessions. Hall was not called to testify against Ogrod, but Wolchansky, under the alias of Jason Banachowski, testified that Ogrod had admitted luring Barbara Jean into his house and trying to force her to perform oral sex, but when “she became hysterical . . . he grabbed a weight bar and smacked her in the head with it.”
Wolchansky, who claimed that he expected nothing in exchange for his testimony and denied that he had a history of any mental problems, added that Ogrod had told him that his mother—by this time deceased—had accused him of the killing, to which he had replied, “Damn right I did, and if you know what’s best for you, you’ll keep quiet.”
Assistant medical examiner Paul Hoyer had conducted the autopsy and reported five blunt injuries to the head causing four lacerations, but no skull fracture. Hoyer had identified a bruise on the girl’s left shoulder as being consistent with being inflicted at the time of the head injuries.
Chief Medical Examiner Dr. Haresh Mirchandani testified to the autopsy results based upon his review of Hoyer’s records. He said the girl’s death was caused by blows to the head and that a weight bar was consistent with what could have caused those injuries.
Dr. Lucy Rorke, a forensic neuropathologist, testified similarly that as a result of blows to the head, the victim’s brain swelled. There were axonal injuries indicating the brain rotated inside the skull. She said the head injuries were consistent with having been caused by an object like the weight bar or a tire iron. Assistant Philadelphia County district attorney Judith Rubino asked Dr. Rorke if she was able to determine, from the damage to the brain, what actually caused Barbara Jean to die. Dr. Rorke did not answer the question. However, she said there was no indication of suffocation, as in a hand over the child’s mouth.
On Greenberg’s advice, Ogrod did not testify at the retrial. Greenberg, moreover, presented nothing to rebut the confession testimony and did not challenge the claim that the murder weapon had been a weight bar, which never was recovered. He focused instead on the possibility that one of the initial suspects, Ross Felice, had committed the crime.
In her closing argument, Rubino suggested that Ogrod’s silence was indicative of guilt, telling the jury that the “defendant admitted to his mother that he killed Barbara Jean and threatened his own mother; there had been no denial of that.” Judge Stout sustained a defense objection. However, at the time, Rubino had in her file correspondence from Ogrod’s mother written in 1992 before she died that was sent to the Pennsylvania governor’s office describing Ogrod’s “infirmities and the mistreatment he suffered at the hands of interrogating detectives” and pleading for his release because he was innocent. Rubino also argued that Wolchansky had nothing to gain for testifying—a claim that was not true based on records later revealed.
On October 8, 1996, the jury convicted Ogrod of murder and attempted involuntary deviate sexual intercourse. The day after that, jurors deliberated less than ninety minutes before unanimously agreeing that Ogrod deserved to die. Judge Stout formally imposed the death sentence on November 8, 1996.
More than seven years later, on December 30, 2003, the Pennsylvania Supreme Court affirmed Ogrod’s conviction and death sentence, rebuffing his claims, including that Rubino had impermissibly commented on his silence. Five months before Ogrod’s conviction and death sentence were affirmed, Raymond Sheehan pled guilty and was sentenced to life in prison for the murder and rape of a 10-year-old girl in 1987—the year before the Horn murder and in the same neighborhood.
After the U.S. Supreme Court denied certiorari in Ogrod’s case, a team of lawyers from the Federal Community Defender Office in Philadelphia and pro bono attorneys from the Philadelphia firm of Bingham McCutchen LLP brought a state law petition for a writ of habeas corpus. The petition included a series of affidavits, including one from John Hall, who by then was dead, stating that Wolchansky, who also was dead, had never talked to Ogrod “in any detail.” Hall said that he provided all of the information to Wolchansky. In addition, Hall’s widow gave an affidavit stating that Hall had told her that Ogrod had not confessed in jail.
The petition also had a statement from a man who said he had been in Ogrod’s basement shortly after Barbara Jean’s body was found and that he saw no blood or any sign of a clean-up. A forensic pathologist provided an affidavit saying that the murder weapon could not have been the weight bar. Dr. Hoyer, who performed the autopsy, agreed with that opinion.
The petition said a witness recalled that the man carrying the box had lit a cigarette and that there was evidence that Ogrod was a non-smoker.
The petition also claimed that Ogrod’s trial defense attorney provided an inadequate legal defense by failing to obtain an expert in false confessions to explain why Ogrod, in light of his sleep deprivation and limited intellect, had been especially vulnerable to psychologically coercive interrogation techniques employed by police. The petition also said that the prosecution had failed to disclose that Hall and Wolchansky had received leniency in exchange for their cooperation in the Ogrod case.
Judge Shelley Robins New, a former Philadelphia assistant district attorney who had worked as a homicide prosecutor alongside Judith Rubino until 1995, was assigned to the case. She declined a request to step off the case because of her background in the district attorney’s office. In April 2013, a little more than 21 months after Ogrod’s petition was filed, the prosecution moved to dismiss the petition without an evidentiary hearing.
In 2014, DNA testing was performed on evidence gathered from the homes of Ross Felice and Wesley Ward—two of the initial suspects. The DNA of Barbara Jean was not found. In 2017, the prosecution agreed to an evidentiary hearing on whether Ogrod’s trial defense attorney had provided an inadequate legal defense for failing to retain expert assistance to challenge the testimony about the murder weapon, for failing to present expert evidence relating to the confession, and for failing to offer mitigation evidence during the penalty phase of trial.
In February 2018, Ogrod’s legal team asked the Philadelphia County District Attorney’s Office Conviction Integrity Unit to review the case. Shortly thereafter, the CIU began re-investigating the case and turned over the prosecution’s file—more than 40,000 pages.
In February 2020, CIU chief Patricia Cummings and Assistant District Attorney Carrie Wood filed an additional response to the defense petition asking that Ogrod’s convictions be vacated.
“At trial, Ogrod found himself adrift in a perfect storm of unreliable scientific evidence, prosecutorial misconduct, Brady violations, and false testimony,” Cummings and Wood said in the response.
The filing included a 54-page stipulation of facts signed by Cummings and assistant district attorney Carrie Wood as well as Federal Community Defender Office attorneys Tracy Ulstad, Samuel Angell, and Loren Stewart, as well as Andrew Gallo and Robert McDonnell from the firm of Morgan, Lewis Y Bockius LLP, and James Rollins from the firm of Nelson Mullins Riley & Scarborough LLP.
The defense and prosecution agreed that Ogrod’s trial defense lawyer had never been provided with a multitude of exculpatory evidence.
This information included:
--Records showing that Hall had cooperated with prosecutors in multiple cases—including 12 murders, in Philadelphia and other counties. One of those cases had been handled by Rubino, the prosecutor in Ogrod’s second trial.
--Notes from a police investigation of a separate crime at the Ogrod home two years before Barbara Jean was killed. At that time, it was clear that the rear basement door was barricaded and could not have been used—as Ogrod’s confession purported—to go out to the garage and come back into the basement.
-- Notes taken by Rubino during her pretrial interview with forensic neuropathologist Rorke, which showed that Rorke had said the probable cause of death was asphyxiation.
--Records showing that Wolchansky had significant and longstanding mental health issues, including schizophrenia, which he denied during his testimony.
--Notes from the autopsy taken by the detective indicating the murder weapon was “lighter than a baseball bat or tire iron,” which contradicted the prosecution theory that Ogrod used a heavier weightlifting bar.
--Interviews with nine of Ogrod’s former teachers who described him as “a complacent, socially inadequate youngster who followed the lead of others, who was unable to make decisions for himself, and would do anything to please others.
--The correspondence from Ogrod’s mother written in 1992 before she died that was sent to the Pennsylvania governor’s office describing Ogrod’s “infirmities and the mistreatment he suffered at the hands of interrogating detectives and pleading for his release”—contrary to Wolchansky’s claim that Ogrod’s mother believed he was guilty.
The CIU retained Dr. Ljubisa J. Dragovic, an expert in forensic pathology and neuropathology. Dragovic concluded, after reviewing the evidence that the “conclusions reached by Drs. Hoyer and Mirchandani that Barbara Jean died from cerebral injuries are not supported by medical science.” Dr. Dragovic also said that bruises on Barbara Jean that Hoyer and Mirchandani said were caused by being struck were in fact “hickeys.”
Dr. Ian Hood, a forensic pathologist, also reviewed the evidence and concluded that she most likely died of asphyxiation. Dr. Hood said the “hickeys” were likely inflicted by an adult.
Dr. Kirk L. Thibault, a biomechanical engineer and an expert in human injury biomechanics, also evaluated the case and concluded that Barbara Jean was not struck with the weight bar because of the absence of skull fractures and underlying brain injuries.
In addition, DNA testing had been performed on the wash used to clean Barbara Jean’s body at the autopsy. The testing revealed a male profile that was not Ogrod or Dr. Hoyer, who conducted the autopsy. The profile was submitted to the state and national DNA databases, but no match was found. On June 5, 2020, the joint motion for a new trial was granted and Ogrod was released on bond. It was an emotional hearing during which Carrie Wood, a member of the Conviction Integrity Unit, apologized to Ogrod and his family, as well as to the family of Barbara Jean.
“I am sorry it took 28 years for us to listen to what Barbara Jean was trying to tell us…that you are innocent,” Wood said tearfully. “That the words on that statement came from detectives and not you. And that we not only stole 28 years of your life, but that we threatened to execute you based on falsehoods.”
On June 10, Common Pleas Court Judge Leon W. Tucker granted the prosecution motion to dismiss the case.
On June 18, 2020, Andrew Swainson was exonerated of a Philadelphia murder investigated by Detective Manuel Santiago, who worked with Detective Devlin. Swainson was released after more than 31 years in prison.
In June 2021, Ogrod filed a federal lawsuit against the city of Philadelphia and several police officers, including Devlin and Worrell."
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5752
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
