CINCINNATI — Defense attorneys asked a judge Tuesday for a new trial for a man who was convicted 30 years ago for the kidnapping and murder of a 10-year-old girl.
Jeffrey Wogenstahl was convicted by a Hamilton County jury in 1993 for the murder of Amber Garrett. Wogenstahl has been on death row since his conviction.
Three days after Garrett went missing in 1991, police found her body in an overgrown area off the side of the road. The girl had several stab wounds and blunt-force trauma to the head.
On Tuesday, defense attorneys said new, previously suppressed evidence may cast doubt on the prior conviction. They're asking Hamilton County Judge Christian Jenkins to vacate Wogenstahl's conviction and grant him a new trial, with defense attorney Sarah Gelsomino saying it's the only right decision.
Wogenstahl's attorneys claim investigative files from the time of Garrett's murder were never shared with his original defense attorneys, including Harrison Police records, FBI records and Hamilton County Coroner's Lab records.
"This conviction violates due process. It is a miscarriage of justice," Gelsomino said. "We are here, especially in this case judge, especially in this case. This is a capital murder case. We need to get it right."
The defense's argument is based on what they say are inconsistent eyewitness accounts, faulty testimony from a jailhouse informant and questionable physical evidence. They also said Harrison police withheld an interview officers conducted with Garrett's best friend, Amanda Beard.
According to court documents, Beard told police she saw Garrett the Sunday morning she was taken around 10 a.m. in a blue pickup truck headed toward Indiana. Though, the original prosecution team theorized in court that Garrett died around 3:30 a.m. that same Sunday.
During Wednesday's testimony, the judge heard from Mellisa Ellis. She said she knew Garrett's parents, Peggy and Robert Garrett, in 1991.
She also calims she and her late husband, Donald, saw Peggy the morning their daughter went missing around 2:30 a.m. at a Waffle House. Ellis claims they later brought that information to Harrison police.
Ellis said she saw Peggy sitting with a man the Ellises didn't know, and she described him in detail in a 2021 affidavit for the defense.
During the prosecution's cross-examination, they questioned why Ellis's 2021 recounting of that early morning encounter had more information than her original police report.
Mark Krumbein, Wogenstahl's first chair of defense during the 1993 trial, also took the witness stand Wednesday.
The defense questioned him on certain law enforcement documents from the time of the trial, which they and Krumbein claim were never shared and may have painted a different picture for the jury.
Prosecuting attorney Phil Cummings questions included a discussion on how laws about the discovery process have changed since the time of the trial, saying lists of eliminated suspects, dead-end leads and more were not something that was required to be turned over in Ohio 30 years ago.
"If Wogenstahl didn't do this, then he has to be the unluckiest S.O.B. in history — to be seen by multiple witnesses at all the relevant crime scenes in the exact time frame when this had to have occurred," Cummings said during Tuesday's hearing.
Cummings said the new evidence the defense presented is "minor," arguing that it wouldn't change the original conviction.
"Every court, every state, every federal court that looked at Wogenstahl's direct appeal upheld the conviction, and they always would say the same thing, 'overwhelming evidence,'" Cummings said. "And I want to stop here for a second and note, this is (not just) the prosecutor saying overwhelming evidence."
During his case to Jenkins, Cummings cited a key piece of evidence: the jacket Wogenstahl wore the night Garrett went missing.
Cummings said foliage found in the jacket was consistent with foliage at the scene where Garrett's body was found.
Day three of testimony began on Thursday with Wogenstahl's former attorney, Elizabeth Arrick. She said she worked on his case in 2013 for the Office of the Ohio Public Defender's Death Penalty Department.
When asked if she had reviewed the full record of the Wogenstahl case in 2013, Arrick said yes.
The defense is arguing for a new trial, in part, based on Harrison Police records they claim were never shared with Wogenstahl's original defense team.
In reviewing the original case file, Arrick said she never received those police records either.
"I remember when we got these records, and they presented to me as something I had not seen before in his case and then in the course of preparing to file a petition," she said.
The prosecution chose not to cross-examine Arrick.
The second witness called to testify was a juror from Wogenstahl's 1993 trial, who we are choosing not to name. Her testimony centered on her recollections as a juror, what evidence moved her to convict Wogenstahl and the doubts she had about the decision.
"(The prosecution) really had no physical evidence," she said.
She explained that she took issue with the fact no murder weapon had been presented during the course of the trial.
In the cross-examination, assistant prosecuting attorney Elizabeth Polston pushed back on that notion, citing the speck of blood evidence found in Wogenstahl's car and pubic hair found in Garrett's underwear. An FBI agent testified during the trial that the hair could be linked to Wogenstahl.
The former juror responded, "The prosecutor said (the hair) was insignificant because they couldn't prove (it) one way or the other."
Wogenstahl's defense plans to call on one more witness on Friday and another sometime next week.
