By David Loomis
INDIANA – On April 20, a federal appeals court in Pittsburgh issued a ruling in a lawsuit brought by Lewis James “Jim” Fogle, the Indiana County man wrongfully convicted in 1982 for the 1976 rape and murder of a Cherry Tree teen.
For Fogle, the ruling was good news. For criminal justice in Indiana County, the ruling was discouraging news.
In 2018, following his exoneration, Fogle filed a federal lawsuit against Indiana County, the county’s prosecutors and state police officers who he says trumped up charges that sent him to prison. He spent 34 years behind bars for a crime that DNA forensic analysis showed he could not have committed.
The recent appeals court ruling addressed only a preliminary question of whether prosecutors were guaranteed absolute immunity from lawsuits for conduct of their official duties. (The state troopers were not part of the preliminary question.)
In the ruling that the court labeled “precedential,” the three-judge panel concluded that the prosecutors enjoyed only qualified immunity. Therefore, they could be sued.
“Immunity from civil liability enjoyed by prosecutors hinges on the sanctity of our judicial process, not ‘any special esteem,’” the ruling said. “And so only truly prosecutorial functions, not investigative conduct, justify complete protection from suit.” (Italics added)
The county prosecutors’ unprotected investigative conduct in Fogle’s case fits a profile that the Innocence Project (partners in Fogle’s defense) has drawn of prosecution “errors” that have contributed to thousands of criminal convictions, like Fogle’s, that have been overturned nationwide.
ERRORS IN THE Fogle case are detailed in the appeals court’s 31-page ruling. In some particulars they make the Keystone Kops looks competent.
For example, investigators brought in an amateur hypnotist to try to nail down an unreliable witness’s shifting stories. The appeals court picks up the narrative on Page 7 of its ruling. (“Elderkin” is Earl Elderkin, the unreliable witness “known in town as ‘Spaceman,’ because he claimed that he and his kids were from outer space.” “Olson” is Indiana County District Attorney Gregory A. Olson, one of the investigators, along with state troopers.)
The Troopers turned to hypnosis to try to clarify Elderkin’s stories. Olson’s choice of expert was unusual: an English teacher with no formal hypnosis training. Unusual too was the actual hypnosis session, with the “hypnotist” acting “[a]t the behest of Defendants” to use “undue suggestion to obtain a statement from Elderkin.” But even that direction proved insufficient, as Elderkin waffled between versions of his earlier statements and a new story implicating, for the first time, both Dennis [Fogle] and Lewis Fogle. Following the hypnosis sessions, Olson and the State Troopers again interviewed Elderkin. And this time, he at last provided a firm statement naming the Fogle brothers as two of four attackers. That statement became the cornerstone of the investigation.
Even the investigators’ protected conduct reads like an indictment. D.A. Olson and others, the ruling states, are “absolutely immune” for:
— launching the prosecution against Fogle
— failing to include information in their probable-cause affidavit
— withholding material exculpatory and impeachment evidence
— making misrepresentations to the court.
Immune or not, prosecutors built the Fogle case on what the appeals court chronicles as threats of arrest, intimidation, wide-ranging inconsistencies, a steady stream of suggestion and jailhouse informants.
At trial, jurors sat through 30 witnesses in two packed days of testimony during which they were prohibited from taking notes. No wonder they convicted Fogle for a crime – second-degree murder (aka, murder-rape) – for which he was not charged.
FOGLE WELCOMED the recent appeals court ruling.
“I think it’s a great thing,” he said in a May 6 phone interview from his home here.
He predicted a favorable outcome when a trial is scheduled in federal district court in Pittsburgh, possibly as soon as September, so his attorneys say.
“The state will have to offer me a settlement,” Fogle asserted. “They don’t want to go to trial.”
Fogle, on the other hand, is conflicted.
“I hope the sonofabitch goes to trial,” he said.
But despite his exoneration, his conviction on a murder charge prevents him from getting credit from banks, for example.
“I’d rather settle the thing,” he concluded. “I need the money.”
Individual defendants in the case were not available for comment on Friday. The state troopers are retired or deceased. Olson stepped down from the Indiana County Court of Common Pleas in January 2011 after 12 years on the bench.
Only William J. Martin, Olson’s assistant district attorney for Fogle’s trial, remains in the county courthouse. He is presiding judge of the Court of Common Pleas. His term expires in 2021. His courthouse office phone went unanswered at midday on Friday.
FOGLE’S CASE is not the only one to raise questions about murder investigations in Indiana County. The cold-case 1985 homicide of state-police informant Dave Alexander is another. So is the homicide case of defendant Ronald Lee Weiss.
The appeals court ruling in the Fogle case shines fresh light on those questions. It also reminds Indiana County citizens and victims’ families that convictions are lacking in all three cases for many of the same reasons.
And Fogle’s case should redirect legislative attention to compensation for the wrongfully convicted. The federal government, the District of Columbia and 35 states have compensation statutes of some kind. Pennsylvania does not.
Expungement of Fogle’s conviction, and those of other exonerees, would be another legislative step in the right direction.
David Loomis, Ph.D., emeritus professor of journalism at Indiana University of Pennsylvania, is editor of The HawkEye.
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