Sunday, February 14, 2010

Irwin trial heads back to county court

POSTED: February 12, 2010

The murder case against Andrew Irwin will return to Columbiana County since the Supreme Court of Ohio decided Wednesday against hearing an appeal to challenge the overturned conviction.
The high court denied permission for the prosecution to file the appeal and dismissed the appeal "as not involving any substantial constitutional question," a one-paragraph entry signed by Chief Justice Thomas Moyer said.
County Chief Assistant Prosecutor John Gamble said they were disappointed to hear the high court's decision because the issues created by the 7th District Court of Appeals ruling in the case remain unresolved, specifically regarding new evidence required to warrant a new trial.
"They seem to have created a different standard for review and I don't know how they resolve that," Gamble said.
He said the prosecutors felt strongly that the issues raised in the notice of appeal were genuine issues of error by the appellate court. The only avenue of appeal left would be the U.S. Supreme Court, but he said their appeal doesn't raise to the level of a U.S. Constitution issue. He said their problem was mostly factual issues with the appellate decision.
Prosecutor Robert Herron and assistant Prosecutor Ryan Weikart argued in the notice of appeal that the 7th District Court of Appeals changed the rules regarding new evidence by creating a lesser standard for evaluating motions for new trials. They claimed the court referred to conduct from a hearing for a new trial motion as a basis for finding defense counsel was ineffective during the trial. They also deemed evidence as new even though the defendant knew about the alleged evidence before trial and expanded the court's powers for fact-finding.
The next phase will return the case to the Common Pleas Court docket where it first began with an indictment.
Irwin, 28, remains in a state prison serving 15 years to life for the August 2006 stabbing death of 21-year-old Emily Foreman, who died of multiple stab wounds after being attacked in her Liverpool Township home.
A jury found him guilty of murder in 2007, but the 7th District Court of Appeals overturned the conviction in September. The appellate court ordered a new trial based on ineffective assistance of counsel and alleged abuse of discretion by Judge C. Ashley Pike in previously denying a new trial based on alleged new evidence presented after Irwin was convicted.
Irwin's trial attorney, George Kafantaris, is no longer an attorney since he was stripped of his license to practice law for the rest of his life due to his dealings with clients in Trumbull County.
His appellate attorney, Margaret Robey, filed a motion in December asking Pike for appointment of trial counsel and the scheduling of a bond hearing for Irwin. Pike denied the motion for lack of jurisdiction since the high court hadn't made a decision on the state's appeal. In her motion, she noted the high court denied a stay of the appellate decision.
She'll likely refile the motion, but she couldn't be reached for comment on Irwin's next move. A message was left for her at her Cleveland office.
Kafantaris filed a "friend of the court" memorandum with the Ohio Supreme Court regarding the proposed appeal. Just recently, the same court declined to hear an appeal filed by Kafantaris to challenge a 20-day jail sentence for contempt related to his actions during the murder trial.
A telephone conference to decide when he'll serve his time is set for later this month.

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