After overturned convictions, Hamilton County prosecutor launches integrity unit

In the wake of four overturned homicide cases in Hamilton County over the past 18 months, Prosecutor Melissa Powers announced the creation of a conviction integrity unit to evaluate wrongful conviction claims.

But the effort is drawing criticism from the attorneys who work on those cases. They say they suspect nothing will change – a sentiment Powers herself echoed in an interview with The Enquirer.

"It's not something that has just brand-new started," said Powers, who sent emails in March to police chiefs throughout the county announcing the unit's formation. "It's always been part of the office. What's different about it is that there's actually a written policy."

Experts in conviction integrity units – including one from a nationally renowned agency Powers said she consulted to help craft her policy – say that Hamilton County's does not adhere to best practices. It taps longtime, in-house assistant prosecutors to run it. It requires cases to have new evidence available, or for new technologies to be able to re-test old evidence. And applicants must waive their Fifth and Sixth Amendment rights to even apply for consideration.

In a county battling allegations of relying on questionable informant testimony and withholding crucial evidence to secure potentially false convictions, announcing a conviction integrity unit could have assuaged area defense lawyers that the office was focused on making changes.

Instead, Powers made it clear the recently overturned homicide cases had no bearing on the creation of the unit and, as critics feared, little is changing in the way the office approaches wrongful conviction claims.

"It completely undermines the point of a CIU," said David Hine, who represents one of the defendants whose conviction was overturned after lengthy – and ongoing – court battles.

"They aren't trying to ensure accurate convictions are earned with integrity," Hine said. "They are trying to find another way to put the thumb on the scale in their favor and artificially lend the appearance of credibility to ill-gotten convictions."

Critics call unit a 'political stunt'

Hamilton County joins three other counties with conviction integrity units in the state: Franklin, Cuyahoga and Summit. Such units are usually praised by wrongful conviction advocates, but Cincinnati defense lawyer Bill Gallagher said Hamilton County's unit is a "political stunt."

"It doesn't have any of the components of a conviction integrity unit," he said.

Powers said her office consulted with the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School for guidance and best practices in creating the unit.

Marissa Bluestine, Quattrone's assistant director, said the units are important because studies show between 2% and 6% of convictions are in error. Successful units focus on four key elements, she said: transparency, independence, flexibility and protection from bias.

Hamilton County's unit is helmed by assistant prosecutor Rick Gibson, who has handled countless homicide cases over his tenure with the office, a job for which he applied while still a law student in 1983. His personnel file is filled with letters of thanks from family members of victims who praise his dedication and sensitivity.

The cases Gibson would be evaluating would have been prosecuted by former or current colleagues, or even by Gibson himself. Of note, one of the four recently overturned cases was originally prosecuted by Mark Piepmeier, Gibson's former partner in helming the prosecutor's criminal division. Another contested case, in which the Ohio Innocence Project is alleging that police and prosecutors withheld crucial exculpatory evidence, was prosecuted by Gibson.

"You shouldn't have lawyers who have a vested interest in the case making the decision about whether the outcome was correct," Gallagher said.

Defense lawyer Jay Clark phrased it more colloquially: "You don't put the fox in charge of the hen house."

Bluestine agreed the approach is "atypical."

"More typical would be that somebody is brought in from the outside, or somebody comes from another unit, like special investigations where they were investigating corruption in the police department or in legislative initiatives or things like that," Bluestine said. "Or somebody entirely from outside the office who was a public defender or defense counsel, or even an innocence lawyer to come in and run it."

Hamilton County's unit is set to be run entirely in-house, with Gibson reviewing the applications. If he agrees the application has merit, his next step would be to either consult with the county's top prosecutor or turn to a review board that, in Hamilton County, would consist of other selected members of the prosecutor's office, one of whom would be from the office's appeals unit.

Again, Bluestine said, that's not typical. Units' review boards often include defense lawyers, victims, innocence advocates, law professors and others. The diversity in backgrounds helps ensure cases get evaluated with fresh eyes rather than only through the lens of longtime prosecutors.

"The focus here is not about it being intentional or unethical. It has nothing to do with intentionality," Bluestine said. "This is a phenomenon of implicit bias, which is unintentional and occurs without awareness, even by extraordinarily ethical, competent and hardworking people."

Critics say that Hamilton County's unit also lacks flexibility because it excludes cases with pending appeals or other post-conviction pleadings. Powers acknowledged that the unit's scope is limited because it only considers cases in which "new information has become available."

"If it can be litigated in the courtroom, that's not what comes before us," she said. "You're talking about new information that's come to light that would say somebody is truly innocent."

For example, she said, if biological material was collected from a crime scene that was too small a sample for DNA testing at the time the crime occurred, the unit could agree to testing it.

"Now with new technologies developed, they can get DNA off of smaller and smaller samples," Powers said.

But defense attorneys counter that the prosecutor's office routinely objects to DNA testing when defendants request it. In two of the recently overturned convictions, prosecutors objected to DNA testing. In both cases, the judges sided with the defense attorneys and granted the new tests, the results of which did not match the defendants. Despite those results, Powers has maintained that both men are guilty and is moving ahead with retrials in both cases.

"Given the poor way this office is currently handling several innocence cases, I have little hope that this is anything but a cynical political move," Mark Godsey, director of the Ohio Innocence Project, said of the unit.

Powers, a Republican, is up for election in November. She faces Democratic challenger Connie Pillich, a former public defender who served as a state representative from 2009-2014.

Office focus 'is looking for the truth'

In an interview with The Enquirer, Powers downplayed the need for the unit despite having announced it on the county's website and touting it in an interview with another media outlet. She said the office has always taken allegations of wrongful convictions seriously and readily admits when prosecutors pursued the wrong suspect.

When asked to point to specific cases in which prosecutors reversed their stance on a conviction, she provided details for just one case: a 1990 conviction reversal in which a serial killer confessed to a crime for which someone else had already served nearly nine years in prison.

Randall Lynn Ayers was 17 when he was arrested on suspicion of raping and shooting a 15-year-old Price Hill girl. While there was no physical evidence against Ayers, the victim identified him from a group of high school students and later testified in court that Ayers had accosted her in November 1981 at a payphone, then raped her and shot at her three times. One bullet hit her in the neck and another grazed her head.

Nine years after the assault, Robert Minton was arrested on suspicion of killing two other women during separate robberies. After his arrest, Minton told police that he was also responsible for the rape of the teen whose testimony got Ayers sentenced to 15 to 50 years in prison.

The prosecutor's office asked that Ayers be released and his conviction vacated. Minton is still incarcerated at the London Correctional Institution. Ayers struggled after his release from prison. He died by suicide at age 41 in 2005, according to the Hamilton County Coroner's Office.

"Our office's focus is looking for the truth, searching for the truth and obtaining justice," Powers said in touting Ayers' overturned conviction. She added that the conviction integrity unit "is just an extension of that."

Cole Bieler, a longtime Cincinnati lawyer who represented Ayers after his exoneration, said the prosecutor's office played little role in the case.

"It's not my intention to give anybody a black eye, but it was not a matter of some organization ‒ some police department or law enforcement or prosecutor's office ‒ saying, 'Hey, let's double-check.' It wasn't a result of that at all," Bieler said.

"You might even say it was a miracle that the truth came out because nobody went looking for it."

Powers' critics scoffed at the notion the office could point to no other wrongful convictions in the interim.

"So over 40 years, they've never made a mistake," Clark said. "In 40 years, they're literally batting a thousand? I'm gonna call bulls--- on that because in 40 years, you think anyone is perfect? No. They want to believe that because to believe otherwise would have to acknowledge the human factor of that and that they aren't infallible."

Powers said there might be other cases, but Ayers' was the only one she remembered.

Four homicide convictions overturned since 2022

Of the four homicide cases overturned since late 2022, prosecutors maintain they were rightful convictions, despite judges finding flaws major enough to overturn them. Prosecutors fought in each case for the convictions to either be reinstated or for the defendant to plead to a related-but-lesser charge. Those cases were against:

• Marcus Sapp , convicted in 2010 of killing Andrew Cunningham. Judge Jody Luebbers overturned the conviction in January 2023 both because of questions about police’s use of a jailhouse informant and alleged violations of the Brady rule, which requires prosecutors disclose potentially exculpatory material to the defense. Prosecutors maintain Sapp is guilty and are moving forward with a retrial.

• Marty Levingston , convicted in 2008 of killing Michael Grace. Judge Wende Cross overturned the conviction in February 2023, again because of shaky jailhouse informant testimony and alleged Brady violations. Prosecutors agreed not to fight the order for a new trial on the condition that Levingston plead guilty to a lesser charge.

• Elwood Jones , convicted and sentenced to death in the 1994 beating of Rhoda Nathan, a New Jersey grandmother attacked while she stayed in a Blue Ash hotel. The conviction was overturned in late 2022 after Cross determined police and prosecutors withheld thousands of pages of investigative documents, some of which could have changed the outcome of Jones’ 1995 trial and 1996 death-row sentencing. Prosecutors are fighting to reinstate the conviction.

• Lamont Hunter , convicted and sentenced to death in 2007 of killing 3-year-old Trustin Blue. A deputy coroner changed her opinion about the nature of injuries to Trustin’s body after she reviewed evidence not initially disclosed by doctors. Hunter avoided a new trial by pleading guilty to a lesser charge of involuntary manslaughter.

Godsey said that in his experience with the Ohio Innocence Project, Hamilton County prosecutors refuse to consider that they could have made any mistakes.

"There's no attitude of, 'Let's try to be objective,'" Godsey said. "For these units to work, you have to have somebody who hasn't been there for 20 years, who's an outsider, who's been told, 'You have political insulation.'"

Powers disagreed. She said assistant prosecutors in her office thoroughly investigate cases and are confident in the defendant's guilt before moving forward with trial.

Hine, one of Jones' lawyers, said that confidence is actually a hindrance, making it impossible for prosecutors to be open to the notion that they might occasionally err.

He pointed to a sign that hangs as decoration in the prosecutor's office on each of the five floors it occupies in the William Howard Taft Center. It reads:

“You cannot withdraw under any condition. If you go, this line will be flanked. If you go, the enemy will sweep up over the hillside and take this entire army from the rear. You must defend this place to the last.”

The quote was supposedly said to Col. Joshua Chamberlain on July 2, 1863, as his troops readied for bloodshed in the Battle of Gettysburg.

"The attitude reflected is: We fight everything. We always defend our past work. We always take the position that a mistake hasn't been made, and we drive it to the hilt," Godsey said.

In a recent filing in Jones' case, Hine included an image of the sign , which he said endorses a "win-at-all-costs mindset that undermines the pursuit of truth."

Powers said the sign has no real meaning beyond suggesting the office is "the last line of defense."

"It's about the safety of the community," Powers said. "This office is about making sure our community is safe. But that doesn't mean that we convict wrong people, innocent people. This office has never stood for that. We do everything we can to make sure that we're seeking the truth."

This article originally appeared on Cincinnati Enquirer: After overturned convictions, Hamilton County prosecutor launches integrity unit