Justice: Denied -- The Magazine for the Wrongly Convicted

 

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Ron Tijerina -- In Defiance/Of Justice

By Dr. Susan Sarnoff

Defiance is a remote county in northwestern Ohio that is large in area and small in population: fewer than 40,000 people reside within its 414 square miles. Defiance County has one judge and one part-time prosecutor.

I traveled there because, since writing my doctoral dissertation and a subsequent book on crime victim reimbursement policies and options, I have heard from hundreds of people who believe they were wrongfully accused of crimes, most of them sex crimes, and that those accusations were made so the accusers could qualify for victim compensation benefits. I have been skeptical about these perceptions and have concurred with few of them, and of the cases that were convincing to me, most had also convinced judges and juries of their spurious nature.

However, a few of these cases have resulted in convictions. Especially those that seemed to have incorporated many factors, such as inadequate counsel, insufficient investigation, incompetent forensic work, or even more malicious causes, such as a "vendetta" against the accused or withheld evidence.

Ironically, I had worked with sexual assault victims for many years, and my only concern about dissembling by compensation claimants before my book was published had been about the precipitous increase in claims based on sexual assault that have occurred over the past few years. I knew that the major changes in legislation, such as redefinitions of rape and removals of corroboration requirements for reports, and even reduced stigma, had primarily occurred during the previous decade and that they had been reflected in increased rape reports. I was concerned that the new increase paralleled only increases in funding, some targeted only to victims of sexual assault. I feared that some counselors were keeping victims in treatment longer than necessary or claiming that clients were sexually abused so victim compensation would pay for their counseling. It had never occurred to me that any of the latter claims would result in charges being filed against specific assailants, or that these charges could ever be taken seriously enough to result in convictions of innocent people.

So it was that I ventured to Defiance, Ohio, to observe the hearing requesting a new trial in one of the few cases where I was certain that injustice of some kind had been done. It had all the elements of a worst case scenario: an accused person who believed that because he was innocent there was no way he could be convicted; a public defender (who later became prosecutor); changes in staffing and inexperienced staff; parents of the alleged victim who both disliked the accused and received a substantial sum of money for his treatment through victim compensation and possibly exculpatory evidence that was never presented at trial.

Charges had been brought against Ron Tijerina for sexually abusing his wife's brother, Daniel Mohr. The "evidence" against Tijerina consisted of medical records that showed that Mohr's drug abuse and other behavioral problems had begun about the time that he alleged Tijerina abused him. This evidence may sound scant, but in today's hysteria about sexual abuse, and in response to concerns that it is often difficult to prosecute such cases because evidence is limited at best, courts have been willing to convict on even less.

However, Cathy Tijerina, who is both Ron's wife and Mohr's sister, knew that Mohr's problems had predated his meeting Tijerina by at least four years. And, while Mohr alleged that the abuse had begun when he had come to live with Cathy and Ron, Cathy knew that the reason that he had come to live with them in the first place was that his parents had thrown him out of their home because of his drug use and other negative behaviors. Today, Cathy knows even more. Her brother recanted to her and in a written deposition that can be introduced if a new trial is permitted.

Yet even as I made the two-hour trek from Detroit Airport to Defiance, I was unclear about who or what evil could result in such a wrongful conviction. Wouldn't our American system of checks and balances root out the horrible individual who would dare try to turn justice on its ear? It had come as a shock to me when I had worked with victims that not all were pure as driven snow, nor were all offenders evil incarnate, but I was yet to face the fact that, even with wrongful outcomes, there may never be a "smoking gun," may never be a single person identified who is solely responsible for a miscarriage of justice. In fact, there may only be people who are doing their jobs as they see them and random errors unattributable to a single person, if in fact any single person was responsible for them.

Friday, January 31, 1997, found the Defiance County Courthouse filled with supporters for the petitioner, Ron Tijerina, most of them members of the Pentecostal Church to which he and his wife belong. As Defiance County's only judge, Joseph Schmenk had heard the original case and requested that another judge oversee the hearing, and Judge Sumner Walters of nearby Van Wert County was chosen to do so. As the County's single part-time prosecutor, Jeffrey Strausbaugh had been Tijerina's court-appointed defense attorney (only 14 months before he was elected prosecutor) and was subpoenaed as a witness in the present action. A Special Prosecutor, Daniel Gerschutz, of Putnam County, Ohio, represented the prosecution.

Having been denied both a new trial and an appeal, Tijerina's attorneys now requested that the hearing be based on new evidence that purportedly demonstrated both prosecutorial misconduct, for allegedly withholding exculpatory evidence, and ineffective assistance of counsel. The prosecution's argument, as is usually the case, was that the hearing was unwarranted because the newly discovered evidence would not have made a difference to the outcome of the case. (This argument could nullify the request, because if the evidence was not significant, neither prosecutor nor defense attorney would have been remiss in failing to present it at trial.) Judge Walters was willing to hear the request, so the hearing went forward.

Tijerina's pro-bono attorney, Joseph Loeffler, then called Cathy to the stand. Cathy Tijerina is an attractive, slender young woman with long, red hair and green eyes. She spends her time in church activities, home schooling her children -- and working for her husband's release from the Ohio State Correctional Facility in Lima.

As the mother of a daughter not much younger than Cathy, I thought of how easily a parent could conclude that no man could be good enough to deserve such a woman. So I could almost understand (but not forgive) Cathy's parents' disapproval when she fell in love with and married a man with little money and few salable skills (who also happened to be of Mexican background).

Cathy testified to the fact that, after Ron's conviction, she had retained Loeffler to challenge it. His first act had been to request all the files relevant to the case, including the Defiance County Prosecutor's file, the Fulton County Prosecutor's file (because an earlier charge had been filed by Child Protective Services in that county that had been considered inappropriate to prosecute) and the Court of Claims file on which reimbursement for counseling payments were made. Loeffler had then told Cathy to go through the files looking for any information that might not have been presented in the original trial and that might prove Ron's innocence.

Diligently combing through scads of materials, Cathy had turned up several pages of documents that she had not before heard of or seen. They dealt with three issues:

  • Mohr's interview by a Detective Hoste of Fulton County, based on a report to Child Protective Services made by a therapist in a drug rehabilitation clinic where Mohr had been an in-patient. The report said that Mohr had disclosed sexual abuse, which was found insufficient to warrant an arrest, in part because his story was inconsistent about who had abused him, what kind of abuse had occurred, and when it had happened.
  • School, mental health, and drug treatment records that showed that Mohr had begun to demonstrate negative behaviors long before he had met Tijerina.
  • Records of payments of over $49,000 from the Court of Claims in victim compensation, $3,000 paid directly to service providers, and the remaining $46,000 paid to Louise Mohr, Dan's mother, to reimburse her for the portion of Mohr's past treatment bills that had not been covered by her insurance company.

Cathy had also found a cover letter from the Fulton County Prosecutor to the Defiance County Prosecutor, noting that he was forwarding Hoste's interview and Mohr's complete treatment records to him.

Individually, each group of records was meaningful, but taken together they appear even more formidable. Another county's prosecutor reviewed more evidence than had appeared in the Defiance Prosecutor's file. It was admittedly more than the County Prosecutor had ever seen. The other county's prosecutor found insufficient evidence to prosecute, clearly because the missing information was the information most damaging to Mohr's testimony. The complete treatment records proved that Mohr's problems were not analogous to his interaction with Tijerina. Moreover, the reporting and treatment records, when considered together, show that Mohr had not "disclosed" sexual abuse until he was about to be discharged from an in-patient drug rehabilitation center -- where he was informed that he could be transferred to the center's mental health unit, if he "acknowledged" being abused, in which case the state's crime victim compensation program would pay for his treatment.

It is interesting that Mrs. Mohr was reimbursed not only for Dan's then-current treatment, but also for past treatment amounting to over $46,000 (Ohio's maximum payment is $50,000). Ohio, like most states, rarely pays for drug treatment, because drug abuse is considered chosen behavior rather than a "direct result" of a crime, so Mohr's drug treatment may not have been eligible for reimbursement in the first place, or may have been misrepresented as mental health treatment. But the circumstances also suggest that, rather than masterminding a plot to wrongfully charge her son-in-law with a crime, Mrs. Mohr and Dan may simply have welcomed a way of meeting their bills, which also shifted the blame for Dan's behavior from them -- and shifted it to someone they disliked enough to want to believe he was capable of such a crime.

Mohr's ex-wife testified that Mohr had told her that Victim Assistance Advocate Sally Foor King had warned him that if he recanted he would be charged with perjury and his mother would have to repay the compensation fund. Then current Defiance County Prosecutor Jeffrey Strausbaugh took the stand. He testified that, as Ron Tijerina's public defender, his goal had been to attack Mohr's credibility. While he could not recall seeing the items Cathy considered strategically omitted from trial, he admitted that they would have been useful to the defense. He could only conclude that he must not have had access to them, but could not explain why they were missing from the file.

Next, Loeffler had Dr. Melvin Guyer take the stand. Guyer is a Professor of Psychiatry at the University of Michigan with extensive expertise in interviewing methods and the trustworthiness of allegations, particularly those alleging abuse. Guyer also holds a doctoral degree in law. He had reviewed the newly discovered medical records and explained that they were indicative of someone extremely suggestible with a strong desire to please and a desire to blame others for his problems. Guyer's testimony made clear that Mohr's allegations were suspect for two reasons: their timing did not coincide with the dates on which he alleged Tijerina abused him, and Mohr's profile reflected that he was ripe for any suggestion, particularly one that could work to his advantage. Dr. Guyer's testimony also demonstrated why the missing evidence was critical to Tijerina's defense.

On cross-examination, Dr. Guyer was asked if he had been paid for his testimony or worked pro bono. After a moment's hesitation that caused all in the courtroom to hold their breath, he responded, "Neither, it cost me money to travel here and stay overnight."

A second expert witness, Dr. Elizabeth Loftus, a Professor of Psychology at the University of Washington, a noted expert on human memory and eyewitness testimony and author of 19 books and over 300 articles, testified that Mohr's testimony was highly suspect and appeared to be coached. She, too, explained that she had not been paid to testify, but that she did some pro-bono work each year on cases in which she believed. When asked if she had interviewed the victim, she asked the prosecutor whom he meant by the victim.

Following Detective Hoste's brief testimony that he had, indeed, interviewed Dan Mohr and had provided the transcript of his interview to the Fulton County Prosecutor, Sally Foor King, Defiance County Victim Advocate, took the stand. She testified that she had approached Peter Seibel, then County Prosecutor, about developing a Victim Assistance Program in the Prosecutor's Office. She reported that Seibel had been enthusiastic about the prospect, and had encouraged her and arranged for her to write a funding proposal with the County's grant proposal writer. She admitted that, although her original grant had required that the person who filled her role have a B. A. in Criminal Justice or four years' experience in operating a victim assistance program, that she had had neither. She also noted that the Mohr family had been her first case and that she had met with them over 100 times. She was unable to define the term "exculpatory evidence" (which means evidence that could prove the innocence of the accused), but admitted that she had provided information to the Prosecutor.

These issues are significant not only to this case, but also to general policy affecting crime victim compensation. Since the development of "outreach programs" to assist victims in learning of and filing for compensation, which are mandatory if states want federal matching funds, there have been debates about whether these programs should be placed in prosecutors' offices or other criminal justice agencies. Concerns about victims' comfort in such settings as well as possible conflicts between the role of prosecutors (presumably advocates for justice) and advocates for victims have been expressed, but the major concern has been that it is unclear whether information in the victim assistance file is discoverable by the prosecution or the defense. While programs in prosecutors' offices have been permitted (due in part to heavy lobbying by district attorneys and attorneys general), many jurisdictions have chosen not to house programs in prosecutors' offices to avoid conflict of interest concerns.

Given these confusions, it might be legitimate for a program to refuse all requests for information from either prosecution or defense or to agree to both. But Ms. King provided information to the prosecutor and not to the defense, although her file held exculpatory information. This demonstrates at least ignorance of the complexities of her role, not surprising in light of her lack of experience or training.

The final witness, former Defiance County Prosecutor Peter Seibel, then took the stand. He explained that as prosecutor he saw his job as not to get convictions, but to get evidence before a jury. Asked about Ms. King, he explained that he had met her when she had come to his office selling copy machines. She had offered to help develop a victim assistance program in his office, but he had had concerns about conflicts and agreed to support the development of a victim assistance program in Defiance County only if it was not placed in the Prosecutor's Office. He also expressed concern that such a program, acting as a buffer between victims and prosecutors, suggested that the Prosecutor's Office was insensitive, and that if that was the case, the Prosecutor's Office should be improved rather than augmented. However, Seibel had agreed to support Sally King's request for grant funds because he saw any additional funds coming into his office as helpful to his economically depressed community.

The policy issues in this case are interesting for many reasons. They exemplify why, while efforts are being made to limit appeals, if such limitations are permitted, they should be keyed in inverse proportion to the severity of the charges and sentences and the seriousness of the reasons for the appeal. I agree that we should not reopen every case in which an "i" goes undotted or a "t" uncrossed. But we must not limit appeals when original trials were clearly unfair. Furthermore, we must be especially willing to reopen cases based on charges of sexual abuse that were brought during the so-called "witch hunt," when questionable and limited "evidence," presented without expert rebuttal, were permitted to place many people in prisons for long, often life, sentences -- evidence which has since been questioned and, in some cases, even debunked.

We must also require that, if victim assistance programs are permitted to continue operating in prosecutors' offices, guidelines be established to ensure the autonomy of the programs and the training of its staffs. There must be clarification of the confidentiality, if any, of victim assistance records, as well as the right of the defense to obtain them. These issues should be addressed for programs not housed under the auspices of prosecutors, as well.

We must also look at the way we reimburse counseling, drug treatment and, I would argue, other medical bills as well. As long as some people have limited or no insurance, they will try to obtain coverage from alternative benefits. But we can not allow this financial desperation to result in false charges of crimes, especially sex crimes, which are at least as stigmatizing to the falsely accused as they are to their real victims.

Finally, we must ask at what point small, unattributable errors ever add up to a preponderance large enough to equate with a single egregious error that would clearly make a conviction appealable. Because even if we make future changes to appellate law, sex crime investigations, victim assistance program operation and victim compensation, many people like Ron Tijerina will remain stuck in a system that did not -- could not -- have experience or competence in dealing with them at the time of their original trials.

Ron and Cathy face additional problems. Cathy's parents have threatened to "have Child Protective Services take her kids away." They claim that the Tijerina children's asthma is the result of their stress over Cathy's activities in trying to free Ron.

It is equally likely, however, that their asthma is due to the stress of knowing their father is in prison for a crime he did not commit, a crime that has also caused a rift in the Mohr family. Cathy told me a story about how upset her older son would become when leaving his father in the prison visiting room, until Ron came up with a solution, "No more good-byes. From now on, at the end of each visit we just say, 'Next time.'" I can't help but wonder, if there has been defiance of justice, doesn't Ron Tijerina -- and don't all prisoners like him -- deserve a "next time"?

UPDATE: Mr. Tijerina's request for a new trial was denied. He comes up for parole for the first time in January 2001.

This article was originally published in The Ohio Vindicator, the journal of the Ohio Defense Bar, in Spring 1997. Dr. Susan Sarnoff is a social policy analyst and the author of the 1996 Praeger publication, Paying for Crime: The Policies and Possibilities of Crime Victim Reimbursement. Her book on government's acceptance of "junk science,"Sanctified Snake Oil, will be published by Praeger in early 2001. She can be reached at Sarnoff@ohio.edu.

 

Justice Denied

 

 

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