May 2004 Appeals Court Denial

The two appeals court judges who voted to deny my petition cited my knowledge of facts of the crime as a reason why I was guilty, and thus they didn’t even consider my other issues. They ignored that we proved those “facts” were published in newspapers and were available to anyone who read a newspaper in the days after the crime occurred. Concerned people all over Ohio, in cafes, taverns, courthouses, and other public places, undoubtedly discussed the same facts in the days after the crime that I knew. Our proof conclusively undermined the State’s unsupported claim that those facts were not publicly available.

Judge Ronald Lee Gilman was the dissenter to the Sixth Circuit’s decision. He wrote in part,
“John Spirko lied.” This incontestable conclusion is well-documented in the majority opinion’s recitation of the many inconsistent stories that Spirko told to Inspector Hartman. But lying is not a capital offense. And while the record leaves no doubt about Spirko’s falsifications, it leaves me with considerable doubt as to whether he has been lawfully subjected to the death penalty in light of the state's alleged Brady violation. Spirko v. Mitchell, 368 F.3d 603 (6th Cir. 05/17/2004); 2004.C06.0000143 ¶67 http://www.versuslaw.com (emphasis added)

The case against Spirko is far from overwhelming. It is substantially based upon three evidentiary pillars: (1) an eyewitness who was “100% sure” that Spirko’s best friend, Delaney Gibson, was at the Elgin, Ohio post office when the postmistress was abducted, (2) another eyewitness who was “70% sure” that Spirko was also at the scene, and (3) Spirko’s knowledge of factual details concerning the murder that were not known to the general public. Each of these pillars, however, has a foundation of sand. The “certain” identification of a clean-shaven Gibson is cast in grave doubt both by photographs and receipts in the possession of the state, but not disclosed to the defense, indicating that Gibson had a full beard immediately before the date of the abduction, and by statements made to investigators by several people who said that Gibson had a full beard during the entire summer of 1982. As for Spirko’s presence at the scene, a confidence level of only 70% is far from “beyond a reasonable doubt.”
Finally, Spirko’s knowledge could have come from second-hand repetition rather than first-hand participation. Spirko, Id. at ¶68 (emphasis added).

A striking fact about the record in this case is the complete absence of any forensic evidence linking Spirko to the crime. There are no fingerprints, footprints, fibers, blood, or stolen items to bolster the state’s case. Nor is there any written or recorded confession of guilt by Spirko or incriminating testimony by a witness who turned state’s evidence.
(Although two of Spirko’s former cellmates testified at trial that Spirko admitted to them that he murdered Mottinger, those cellmates have subsequently recanted their testimony, either directly or indirectly.) We are thus left with nothing other than the three shaky pillars described above. Spirko, Id. at ¶69 (emphasis added).

For all of the reasons set forth above, this court should remand the case to the district court for an evidentiary hearing on Spirko's Brady claim. Under pre-AEDPA law, which we must follow in this case, a habeas petitioner is entitled to an evidentiary hearing if “for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.” (citation omitted) Spirko points out that, despite his requests, he has not received an evidentiary hearing on his Brady claim in any state or federal court. An evidentiary hearing would allow the district court to determine whether the state in fact violated Spirko's constitutional rights by not turning over to the defense the photos and receipts in its possession. Accordingly, this court should vacate the judgment of the district court and remand the case for an evidentiary hearing on Spirko’s Brady claim. Spirko, Id. at ¶96 (emphasis added).

Judge Gilman’s dissent was well reasoned. It indicated an understanding of the underlying issues in my case that support my innocence, and the State’s denial of due process and a fair trial to me.

As I write this, a petition to the U.S. Supreme Court is my last hope to have a court review my case. Filed in January 2005, I am requesting that the Court grant a new trial, or alternatively, an evidentiary hearing in the U.S. District Court. The Court could make its decision about whether it will accept my case for review by late March 2005.

If the Supreme Court denies my petition, then Ohio Governor Bob Taft will have to grant clemency to avert my execution for a crime I did not commit, and a crime that my prosecutors know I did not commit.

The one or more people who murdered Betty Jane Mottinger have not been brought to justice. Yet as I write this I am on track to be killed by the State of Ohio for that crime. If that happens I will not be the only person to suffer an injustice, but so will Betty Jane Mottinger - because my execution will ensure that her killer or killers will never be held responsible for murdering her.