Appeal filed
prosecutors challenge overturning of andrew irwin murder conviction
By MARY ANN GREIER/mgrier@reviewonline.com
LISBON - Columbiana County prosecutors filed an appeal with the Ohio Supreme Court Thursday afternoon to challenge the overturning of the Andrew Irwin murder conviction, arguing the appellate court changed the rules regarding new evidence.
"If allowed to stand, criminal defendants may now choose, as a legitimate trial tactic, not to proceed with evidence known to them at trial, and instead, use such evidence as a basis to seek a new trial if the outcome of the original trial is unsatisfactory," the 15-page document said.
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.
The 7th District Court of Appeals ruled Irwin didn't receive a fair trial in March 2007 because his attorney provided ineffective assistance, although the court found no basis for numerous errors Irwin's new attorney 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.
In the memorandum explaining the reasons why the high court should take the case, the prosecutors claimed the 7th District Court created a lesser standard for evaluating motions for new trials with its decision, used conduct from a hearing for a new trial motion as a basis for finding defense counsel was ineffective during the trial, deemed evidence as new even though the defendant knew about it before trial and expanded its powers for fact-finding.
"The appellate court's ruling changes the established legal standards and will have far-reaching ramifications for countless criminal trials in the state of Ohio," the document said.
The document was signed by Prosecutor Robert Herron and assistant Prosecutor Ryan Weikart. Weikart said they also filed a motion to stay the appellate court's decision to overturn the conviction and send the case back to Columbiana County for a new trial, pending a decision by the Ohio Supreme Court.
According to the rules, newly discovered evidence must show a "strong probability" that it would change the outcome of a trial. With the decision in the Irwin case, the 7th District Court demonstrated use of a standard which says newly discovered evidence can show a "strong possibility" that it "could" change the outcome.
The appellate court cited testimony during the hearing on the motion for new trial from two people who claimed Greg Todd admitted to killing Foreman, saying their testimony "may have been just enough to create a reasonable doubt as to (Irwin's) guilt in the mind of at least one juror."
Weikart and Herron noted that since "'anything is possible,' it is imperative that our standards of judicial review deal with probabilities, not mere possibilities."
They also argued that the 7th District Court failed to make specific findings where actions by Irwin's trial attorney were prejudicial and lessened the standard by considering what "may have" been prejudice. In several instances, the court found no prejudice while pointing out what the defense attorney should have done, even alleging the jury may have developed a dislike for him as his pattern of behavior continued, which the prosecution said was speculation.
The prosecution also pointed to the court's notation that counsel was ineffective for failing to make a record on whether Irwin was shackled during the trial, although it found the defendant wasn't shackled.
"The 7th District asserts mysteriously that counsel was ineffective for failing to make a record of an event that never happened," the memorandum said.
Another argument was that the appellate court pointed out conduct by Kafantaris at the new trial hearing, which occurred after the jury made it's decision, in order to support its decision that the accumulative effect of his actions made him ineffective.
"It cannot be said that prejudice occurred at trial based upon conduct that never occurred at the trial and had no bearing on the jury's verdict," the memorandum said.
As for the argument against the newly discovered evidence, the prosecution said the defendant would have known about Todd since the two witnesses said he was there when this other person allegedly committed the murder and was in jail when this person supposedly confessed, meaning the evidence couldn't be newly discovered.
The appellate court also made it's own findings of fact, which an appellate court isn't supposed to do. The appellate court's job is to review the record. In its decision to overturn, the appellate court made note that the defendant denied making a certain statement, but the defendant never testified. The appellate court also noted the fact that Kafantaris was disbarred, which the prosecution pointed out was for conduct unrelated to the case before it.
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