Court overturns Irwin conviction
LISBON - An appellate court overturned the murder conviction of Andrew Irwin Wednesday, sending the case back to Columbiana County for a new trial.
The 7th District Court of Appeals ruled Irwin didn't receive a fair trial the first time around in March 2007 because his attorney provided ineffective assistance, although the court found no basis for numerous errors Irwin's new attorney, Margaret Robey, tried to claim occurred during the trial.
The court also ruled that Common Pleas Court Judge C. Ashley Pike abused his discretion when he denied Irwin's motion for a new trial based on alleged new evidence presented during a two-day hearing shortly after his conviction.
Irwin, 28, of East Liverpool, remains jailed in a state prison where he's been serving a sentence of 15 years to life for the August 2006 murder of 21-year-old Emily Foreman, who was stabbed multiple times at her Liverpool Township residence and later died.
His trial attorney, George Kafantaris, had his license to practice law permanently revoked when he was disbarred for life earlier this year due to dishonest dealings with clients in Trumbull County. A theft charge remains pending against him in Trumbull County related to money missing from a Probate Court case.
He's still facing a possible 20-day jail sentence in Columbiana County for two contempt charges related to his actions during the Irwin murder trial. The 7th District Court of Appeals, which found Pike's order against Kafantaris reasonable, agreed to stay the sentence pending his appeal of the contempt sentence to the Ohio Supreme Court.
The prosecution in the Irwin murder case will have 14 days to file an appeal with the Ohio Supreme Court to challenge the overturning of the conviction.
"We'll be examining the court's reasoning to see if appealable issues exist and if there are, we will actively pursue those avenues," county Chief Assistant Prosecutor John Gamble said after being contacted by phone about the decision. He said an appeal was likely.
County Prosecutor Robert Herron said there are limited bases on which they can file an appeal, but said they'll be reviewing the decision.
"If we have to retry this case, then that's what we'll do," he said by phone. "I am absolutely confident in the decision that was reached by the jury in the first trial."
Herron noted that the issues used as a basis by the appellate court for the decision weren't new, referring to the issues raised in the motion for a new trial. He said those issues won't change their approach to the case.
Those issues included a claim by Kafantaris that a witness, Jason Beaver, said a man identified as Greg Todd confessed to him that he stabbed Foreman and he couldn't believe Irwin was taking the blame for him. In the hearing on the motion for new trial, Beaver testified about the alleged confession, but Todd also testified and denied that it happened. Pike believed Todd and threw out the motion, taking note of polygraph tests taken by the two which showed Todd to be truthful and Beaver to not be truthful.
In overturning the conviction, the appellate court said Pike abused his discretion in denying the motion for new trial because the new evidence about Todd's alleged confession satisfied all the requirements for granting a new trial.
The court said the evidence may have been enough to cause reasonable doubt, which could have changed the outcome of the trial. The evidence also must have been discovered since the trial and could not have been discovered before trial. According to the court, Beaver told the defendant's family about the confession the night before the last day of trial. When Kafantaris asked for a continuance to find Beaver to have him testify, it was denied and he was told to raise the issue in a new trial motion. Todd had apparently been on the defense witness list but was never interviewed prior to trial, which was something the court said Pike pointed out. The court, however, said it was unlikely that Todd would have confessed if he had been interviewed.
The appellate court said the alleged confession was material to Irwin's defense and hadn't been raised before. It also didn't contradict other testimony because no one testified that someone else may have confessed to the crime.
As for the polygraph results, or lie detector tests, the defendant claimed they shouldn't have been considered because he didn't stipulate to the results. The court agreed they should have never been in evidence, but noted that Kafantaris was the one who used the polygraph examiner as a witness and asked that the tests be placed into evidence.
The appellate court pointed to numerous errors made by Kafantaris during the trial and the hearing for a new trial which resulted in his ineffective assistance of his client, such as the allowance of the polygraph results.
The court ruled the errors also resulted in a cumulative error, meaning the accumulation of errors led to an unfair trial even though the errors by themselves weren't considered enough to warrant overturning the conviction.
The new attorney for Irwin argued Kafantaris didn't interview the witnesses before trial, but the court said the record only showed one instance where a witness wasn't interviewed, referring to Todd. His testimony wouldn't have helped, the appellate court said. Irwin's attorney said a change of venue should have been requested due to pretrial publicity, but again the appellate court disagreed.
When it came to the argument that Kafantaris was unprepared to question witnesses and didn't object to alleged prosecutorial conduct during closing arguments, the court agreed he should have raised an objection.
As for the handling of witnesses, the court said Irwin failed to show how the handling of the witnesses could have changed the outcome of the trial, but then the court outlined how Kafantaris "frequently made speeches, editorialized, made improper comments, and lost his way both while conducting voir dire (jury selection) and in questioning witnesses. These missteps accumulated during trial."
The appellate court acknowledged that throughout the proceedings, Pike admonished Kafantaris for his actions and this could have caused the jury to develop a dislike for the defense attorney which could have "unintentionally" been held against Irwin.
Other examples of ineffectiveness by Kafantaris included his failure to have Beaver testify during the final day of the trial, his failure to make the record clear about whether his client was shackled in view of the jury, his failure to properly investigate a call made to police by a potential witness and his failure to abide by Pike's warnings about his behavior.
The court only agreed with two of the 12 errors raised by Irwin's attorney, ruling against arguments over jury selection, the disallowing of letters allegedly written by the victim as evidence, use of exhibits, the defendant's absence during the first day of the new trial hearing because Kafantaris failed to have him transported from prison, the denial of Kafantaris wanting to treat Todd and two other witnesses as hostile witnesses, allegations of unfair bias by Pike and prosecutorial misconduct.
The court also ruled that there was no evidence to show that Irwin was wearing leg irons during the trial which were visible to the jury. There was also no violation of Irwin's rights when Pike denied a motion for a continuance during the new trial hearing so Kafantaris could search for an alleged witness, the ruling said.