Fake justice: the Fogle trial transcript, 36 years later

A Review

Actress Meryl Streep and exoneree Lewis James Fogle at an Innocence Project fundraiser, New York City, 2017.

By David Loomis

INDIANA – The DNA profiling that made Lewis James Fogle a compelling story of forensic science and do-it-yourself lawyering also made him a minor celebrity. But he’s short on the public support that matters. Three years after his exoneration for a 1976 rape and murder of a Cherry Tree teen, he is unemployed.

But he is not unmotivated. Between working the legislature, the justice system and the court of public opinion, Fogle focuses on re-balancing Pennsylvania’s scales of justice that denied him 34 years of his prime and that owes him for it. He works out of a trailer here stacked with boxes of legal documents and populated by his wife, Deb; a hyperactive dog, Zoey, and several cats.

 

Deb and Jim Fogle, June 5, 2018. Photo by David Loomis.

NOW, the forensic science behind Fogle’s exoneration is secondary to the fake justice of his conviction. His 1982 trial transcript, recently made available to researchers – by Fogle’s attorneys – tells a compelling story of a different kind. (See sidebar, below.)

The back story is that DNA testing did not exist when Fogle was sent to prison in 1982.  But by 2009, the technique had exonerated scores of wrongfully convicted defendants. And the National Academy of Sciences had released a 300-page report on forensic science that cast crippling doubt on the toolbox of “CSI” research techniques, such as fingerprinting, ballistics, hair analysis, blood-spatter, bite-mark and others. DNA was singled out as superior in scientific rigor, validity and reliability. Now, DNA also is criticized as flawed forensics.

But in 2014, Fogle watched a television news story and wondered whether physical evidence taken from the victim in his case contained DNA that could exonerate him. That thought evidently did not occur to the prosecutors who put him in prison.

So Fogle pursued the evidence himself, with the assistance of the Innocence Project,  a New York-based non-profit that represented Fogle in his successful effort to prove his wrongful conviction. The organization’s cofounder now represents him in his civil lawsuit against those who prosecuted him.

Logo of a database documenting Innocence Project cases such as Jim Fogle’s.

The DNA evidence that freed Fogle was found in a paper bag in the state police lab in Greensburg in 2014, Fogle recounted in a June 2 interview in an Indiana coffeehouse. The evidence — a bit of sperm on pubic-hair combings of the victim — was turned over to an independent lab. Analysis excluded Fogle as a suspect. He was freed in 2015. County district attorney Patrick Dougherty declined to re-try him.

The discovery of the evidence was a surprise, but its analysis was not, according to attorney and Fogle advocate Barry Scheck, a co-founder of the Innocence Project.

“The one thing we know, because of post-conviction DNA tests, is that there are far more innocent people than anybody ever really believed,” says Scheck. “About half the time, we can demonstrate innocence with DNA tests.”

 

BUT DNA TESTING is just the tip of a judicial iceberg of wrongful convictions, according to Scheck.

“After the DNA exonerates them, and we go back and deconstruct the case, we find that all kinds of people were lying, or it turns out that certain forensic techniques that they thought were highly reliable are not, and things were not as they appeared to be,” Scheck says.

Scheck might as well be describing Fogle’s 1982 trial transcript in his list of errors common in convictions, like Fogle’s, that have been overturned by the Innocence Project:

 Police misconduct, including suggestive lineups

 Inadequate funding of public defenders and court-appointed attorneys

 Forensics errors

 Eyewitness testimony (“The single greatest cause of conviction of the innocent,” says Scheck)

 Police lineups

 Election of prosecutors (Assistant District Attorney William J. Martin ran for D.A. in the election of 1983 and won; he ran for election to the county bench in 1991 and won again. Today, he is the presiding judge in the county courthouse. A merit-based system would be better, Scheck says.)

These errors are “happening everywhere,” Scheck says.

 

EVERYWHERE includes Indiana County’s courthouse.

A list of contradictions, doubts, errors and questions extracted from the 557-page Fogle trial transcript was summarized by his appellate attorney, John H. Armstrong, now deceased, shortly after his client’s conviction. In his appeal, Armstrong wrote:

     The murder weapon belonged to the victim’s father and was never linked in any manner to the Defendant. Keep in mind that the police searched the Defendant’s car the day after the crime and confiscated from that car several knives.

If the victim was injured as extensively as the medical examiner testified, wouldn’t there
have been some evidence of this on the front seat of the car where she was allegedly raped? Wouldn’t there be some evidence of hair samples in the car? Where was the murder weapon at this time? How could the gun have been taken from the home and placed back in the home by the Defendant who didn’t even know the victim or her family?

Testimony is clear that there was no connection between the victim and/or her family and the Defendant.

The circumstances of this case make it totally inconceivable that the Defendant could have accomplished what the Commonwealth has alleged. The Commonwealth is alleging that the Defendant, who lives out of the area, went to a friend’s home, became involved in a beer party, left that home and drove to the home of the victim, who he didn’t know, enter a home, which he had never been in before, and obtain a rifle which was hidden in the basement of the home, enticed the victim to leave her home and go with him (the Commonwealth’s witness testified that the Defendant was not the man who picked up the victim), drove the victim from her home to a secluded area, raped her, shot her, returned to the home of his friend who was having the party, have his vehicle thoroughly searched by the Pennsylvania State Police the following day, secrete the gun back into the home prior to the Police searching his car and then leaving the area.

Armstrong continued:

     During the six years prior to the arrest of the Defendant, the Pennsylvania State Police spent numerous hours investigating this case. At best, the investigation was conducted in a shoddy, disjointed manner. Physical evidence was either neglected or ignored:

a) the bullet casing found at the scene was not checked and compared with the murder weapon or if it was and it was determined it did not come from the murder weapon, it should not have been alluded to at the trial;

b) the crime analysis officer at the scene didn’t deem it necessary to take tire prints but other officers later offered evidence of a specific car being at the scene;

c) the photo of the car offered in evidence was never established as actually belonging to the Defendant or his brother at the time of the incident;

d) knives were taken from the Defendant’s vehicle shortly after the incident but no report was made of the results of tests conducted as to whether the story of the Defendant skinning a rabbit was true or not;

e) statements were taken of the State’s three star witnesses, yet there are no records of the statements;

f) hairs were taken from the accused but no record of comparison was ever made known;

g) the murder weapon wasn’t offered at trial;

h) the car of Dennis Fogle [the defendant’s brother] was searched by the police the day after the incident; however, there were no statements of evidence found from the victim, no blood, yet testimony would make you believe that the victim suffered severe bleeding in the vaginal area; no evidence of a weapon, how did it get back in to the house; no hair samples, yet the Commonwealth has alleged that a rape occurred on the front seat of the vehicle; and

i) no evidence of sexual intercourse ever offered yet conviction was sought and obtained on second degree murder, i.e. rape-murder.

 

TRIAL AND APPEAL DOCUMENTS also allude to the jailhouse snitches that police investigators and prosecutors managed to produce to swear that Fogle confessed to them and that the prosecutors offered nothing in exchange for their testimony. Fogle’s court-appointed trial attorney, Jay Y. Rubin, described them in his closing argument as “these wonderful upright citizens who have been collectively convicted of burglary, theft and giving false information to the police.”

Attorney Jay Y. Rubin in his Indiana, Pa., law office, July 9, 2018. Photo by David Loomis.

The documents also cite stories changed by other witnesses or admissions that testimony was coached by police and prosecutors.

The documents also cite unrecorded state-police-sanctioned hypnosis by an amateur of a mental patient who, according to an affidavit of probable cause, fingered Fogle under hypnosis. The Fogle trial jury heard nothing of this because the court ruled it inadmissible, based on a Pennsylvania court precedent. However, as evidence used by police to persuade a magistrate to allow the arrest and trial of Fogle, the hypnosis tainted the judicial process from start to finish, Rubin argued.

“The hypnosis was a poison tree,” said Rubin in a July 9 interview in his Philadelphia Street law office.

 

THE FOGLE TRIAL JURY is another question. A reader of the trial transcript might wonder, given all its murk, whether jurors understood the concept of “guilty beyond a reasonable doubt.”

But, in their defense, jurors faced a dizzying, confusing and inconclusive flurry of conflicting stories and coached testimony, coupled with an absence of hard evidence linking Fogle to the crimes.

The jurors’ struggle was apparent in their decision to convict Fogle on a charge – second-degree murder, aka rape-murder — for which no evidence was presented at trial.
Compounding the jurors’ burden was this admonition of trial judge Robert C. Earley at the outset:

“You are not permitted to take notes on the testimony or anything that is said by me or by any of the attorneys in this case. When you deliberate on your verdict you have to rely on your own memory of what was said, in this courtroom by the various witnesses in this case.”

That meant jurors had to recall, sort and weigh the testimony of 30 witnesses who trooped to the stand over two relentless days of courtroom deliberations.

“It was morning, noon and night,” recalled Rubin. “It was tough to prepare for. It was a grueling kind of trial. A life was on the line.”

In 2005, Pennsylvania law was amended to permit jurors to take notes.

 

THE 1982 JURY VERDICT shocked Rubin, the judge and Fogle’s family.

Given the gaps and doubts left by the prosecution, Rubin said, he was certain he had won the case when he gave his closing argument to the jury. His shock at the jury’s verdict was shared in private by the judge, Rubin said.

Fogle’s wife, Deb, still feels the shock that she and her mother felt 36 years earlier following the verdict in the trial they sat through gavel-to-gavel.

“My mom was convinced Jim was guilty because he was a bad boy,” Deb Fogle recalled in a June 11 interview at an Indiana coffeehouse. “After the trial, she apologized to him. I don’t know how the jury convicted him. It makes no sense.”

She recounted leaving the courtroom and hearing in the hallway a reporter’s question to district attorney Gregory A. Olson: “Did you get the right man?”

Olson’s reply: “I got the man I wanted.”

Indiana County Court of Common Pleas President Judge William J. Martin. From the court’s website.

Olson stepped down from the Indiana County bench when he retired in 2011.

Assistant District Attorney William J. Martin, now the presiding judge on the Indiana County bench, did not return a July 12 phone message requesting an interview about the Fogle trial he helped prosecute and the conviction he helped win.

The forewoman of the Fogle trial jury could not be found in Indiana County public records.

 

MOST STATES agree that an exception should be made to the doctrine of sovereign immunity and that the government should repay for such injustices. The U.S. government, the District of Columbia and 33 of the 50 states have laws on the books providing compensation  for wrongfully convicted defendants, according to the Innocence Project.

Pennsylvania is not among them. Legislation to benefit Fogle has been introduced into the General Assembly. It has not advanced.

Such inaction mystifies Fogle’s Innocence Project attorney Karen Thompson.

Innocence Project attorney Karen Thompson and Jim Fogle at his 2015 release from prison.

“I can’t understand how [anyone can] feel OK about putting someone in this situation and then let them out with nothing, not even ‘I’m sorry,’” Thompson says.

Showing the way is Texas, which compensates the wrongfully convicted with $80,000 for each year spent in prison, plus an annuity of the same amount. If that provision were in effect in Pennsylvania, Fogle would have received $2.7 million for his 34 years behind bars, and he would be receiving an additional $80,000 a year (less than the annual salary paid to Pennsylvania lawmakers).

In May, the governor of Kansas signed similar provisions into law. The same month, the governor of Maryland signed into law a measure with similar provisions extended to defendants who found guilty through a plea bargain.

That’s a trend. But the Keystone State legislature is unmoved. So Fogle last year filed a lawsuit in federal District Court in Pittsburgh seeking compensatory and punitive damages from Indiana County, two former county prosecutors (Olson and Martin) and seven state police officers involved with the investigation that tried and wrongfully imprisoned him.

How wrongful was it? As Fogle’s attorneys summarized in their 32-page federal lawsuit filed in 2018, a stalled investigation grown cold five years after the victim’s rape and murder led state police and county prosecutors to “engage in multiple acts of misconduct to cobble together a case by any means necessary. Jim Fogle was the victim of that malfeasance.”

Such malfeasance is compounded by court officials who resist calls for recourse for the wrongly convicted. As attorney Scheck notes, prosecutors don’t like to admit they are wrong, they may not have been in office when the crime was committed, they don’t want to upset survivors and family members, and they have a conflict when they acknowledge misconduct by police with whom they collaborate on criminal investigations.

 

BUT THE EXONERATION of Fogle and the errors evident in his trial prompt questions.

“What are you doing about finding the real culprit?” Rubin asked.

In a July 20 phone interview from her New York City office, Innocence Project sttorney Thompson predicted that the federal civil lawsuit alleging malfeasance by state police investigators and county prosecutors in Fogle’s trial will bring to the stand retired judge Olson and current judge Martin, among others.

Jim Fogle, July 5, 2018. Photo by David Loomis.

Meanwhile, Fogle wonders, who should repay society’s debt to him, tattooed grandad of two who turns 67 in September? And how many other Indiana County criminal convictions are as wrongful as his?

David Loomis, Ph.D., is a journalism professor at Indiana University of Pennsylvania and editor of The HawkEye.

 

Sidebar: How this story was reported

INDIANA — In October 2017, the administrative office of the Indiana County court denied a request to provide a copy of the 1982 Commonwealth v. Lewis James Fogle trial transcript at no cost for a university journalism research project.

The office did not respond to a follow-up January 2018 request to provide an estimate of the cost of a transcript. The office did not respond to a follow-up phone request in February 2018. And the court reporter who was named by the court administrator’s office as the worker who would need to transcribe the transcript from the original audio recording did not respond to a phone message.

The office of Judge William J. Martin, the presiding judge at the county courthouse, did not return a phone message left at his office on July 12. Martin was the assistant district attorney who co-prosecuted the 1982 Fogle case.

The district attorney in the Fogle case, Gregory A. Olson, retired from the county bench in 2011.

First page of Commonwealth v. Lewis James Fogle, the 1982 trial transcript.

In spring 2018, a copy of the 557-page transcript of the two-day trial was provided by the Innocence Project, a New York-based non-profit that in 25 years has exonerated 350 wrongfully convicted defendants, including Fogle.

DNA testing in the organization’s primary tool. But the broader goal of the group – and of groups like it – is to identify and prevent similar injustices.

In exchange for access to the trial transcript, the Innocence Project requested that the following statement be included in resulting research:

“The opinions, findings, and conclusions or recommendations expressed in this article are those of the author and do not reflect the views of the Innocence Project or attorneys Winston and Strawn, who provided case documentation.”

— David Loomis

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