Gillispie v. Warden, London Correctional Institution

Filing 63

DECISION AND ORDER GRANTING CONDITIONAL WRIT OF HABEAS CORPUS - The Petition for Writ of Habeas Corpus is granted. The State of Ohio is ordered to release Petitioner from custody unless he is again convicted at a trial commencing not later than July 1, 2012. Signed by Magistrate Judge Michael R Merz on 12/15/2011. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

ROGER DEAN GILLISPIE,

:
Case No. 3:09-cv-471

Petitioner,
-vs-

Magistrate Judge Michael R. Merz

DEB TIMMERMAN-COOPER,
Warden,
Respondent.

:

DECISION AND ORDER GRANTING CONDITIONAL WRIT OF HABEAS CORPUS

This is a habeas corpus action brought by Petitioner Roger Dean Gillispie pursuant
to 28 U.S.C. § 2254 seeking relief from his convictions for nine counts of rape with firearm
specifications, three counts of kidnaping with firearm specifications, three counts of gross sexual
imposition, and one count of aggravated robbery with a firearm specification and resulting sentences
which total twenty-two to fifty-six years.
The parties have consented to plenary magistrate judge jurisdiction pursuant to 28
U.S.C. § 636(c) and the matter has been referred on that basis. Doc. 9, PageID 99.

Background Facts

The Second District Court of Appeals, Montgomery County, Ohio described the facts
of the offenses of which Petitioner was convicted as follows:
In February 1991, Roger Dean Gillispie was convicted by a jury of
nine counts of rape, three counts of kidnaping, three counts of gross

sexual imposition, and one count of aggravated robbery. The rape,
kidnaping and aggravated robbery counts each carried a firearm
specification. The trial court imposed an aggregate sentence of a
minimum of 22 years to a maximum of 56 years in prison.
I
Gillispie's convictions stem from two separate sexual assaults in
August 1988.
On August 5, 1988, in the early to mid-afternoon, S.C. drove alone
to a Rite–Aid drug store on North Dixie Drive in Harrison Township
to purchase some hand lotion. After making the purchase, she
returned to her car. As she prepared to drive away, a man jumped into
the front passenger seat and pointed a chrome handgun at her head.
The assailant told S.C. to do as he said or he would shoot her.
The assailant directed S.C. to drive behind a vacant building and park
next to a dumpster. After she stopped the car, the man took the keys
and threw them under the front passenger seat. He then exposed and
fondled S.C.'s breasts, instructed S.C. to unfasten her pants, unzipped
his own pants, and forced her to perform oral sex on him. S.C. was
instructed to spit the ejaculate into a paper bag. After this, S.C. began
to ask the assailant questions to stall him from making a further
attack. During the questioning, he said his name was “Roger,” that he
was a security guard, and that he had been sexually molested as a
child. The man stated that he wanted S.C. to drive him to Columbus.
S.C. asked her assailant if she could smoke a cigarette. The man
permitted it and lit one for himself, although S.C. did not recall
seeing him smoke it. Afterwards, the assailant got out of S.C's car and
told S.C. to exit. Instead, S.C. grabbed the keys from beneath the seat
and drove away.
S.C. did not immediately contact the police concerning the rape.
Shortly after the incident, S.C. read an article in the newspaper
concerning the rape of two other women in the Miami Township
area. The article prompted S.C. to report to the Miami Township
police that she too had been attacked and raped. Approximately two
weeks after the assault, S.C. was interviewed by Miami Township
Detective Gary Bailey and a composite picture of the suspect was
developed.
S.C. described the assailant as approximately six feet tall, 200
pounds, stocky build with short, light brown hair and mustache, light
2

blue eyes, tanned skin, and strong odor of cologne. S.C. stated that he
wore a button down shirt with the top buttons undone and he wore a
gold chain with a medallion.
On Saturday, August 20, 1988, at around 7 p.m., twin sisters C.W.
and B.W. were preparing to leave from the parking lot of the Best
Products store near the Dayton Mall when a man claiming to be a
store security guard pushed his way into the back seat of their car and
brandished a small silver handgun. The assailant thrust the gun into
B.W.'s ribs and directed her to drive away from the lot. As they
drove, the man asked C.W. to light him a cigarette; the women did
not remember his smoking it, noting that they did not smell smoke.
The assailant also told them that he wanted a ride to Columbus.
The assailant directed B.W. to a secluded area near a bridge, ordered
the women from the car, and forced them at gunpoint into the woods
to a fallen log. Once there, the assailant forced the twins to expose
their breasts, which he fondled with his hands and the pistol. In
addition, the assailant forced each woman to perform oral sex on him
three times individually and once together. The women testified that,
during the course of the attack, the assailant talked frequently and
said, among other things, that his name was “Roger,” that he had
been sexually molested as a child by his grandfather, that he was
from Columbus and Texas, and that his job was killing people for
$1,000.
The assailant then blindfolded the women and led them back to their
car and placed them on the floor of the back seat. He drove them back
to the Best Products parking lot where he took $83 from their purses.
The assailant told the women to lie on the floor through two songs on
the radio or he would kill them. The women did as they were told and
the man escaped.
Later that evening, the women reported the incident to their parents
who contacted the Miami Township police. The police requested that
the women come to the police station. Once there, the women were
separately interviewed regarding the incident and each was taken to
a local hospital for a throat culture. The next day, the women were
again interviewed by the police and each assisted in developing a
joint composite picture of the offender.
State v. Gillispie, Nos. 22877, 22912, 2009 Ohio 3640, 2009 WL 2197052 at *1-*7 (Ohio App. 2nd

3

Dist. July 24, 2009); Return of Writ, Attachment 5 thereto (Doc. 16) (hereinafter “Return Att. _”);
PageID 1512-60.
State Court Proceedings

On October 4, 1990, the Montgomery County Grand Jury returned an indictment
charging Mr. Gillispie with nine counts of rape in violation of Ohio Revised Code § 2907.02(A)(2)
with firearm specifications, three counts of kidnaping in violation of Ohio Revised Code § 2905.01
with firearm specifications, three counts of gross sexual imposition in violation of Ohio Revised
Code § 2907.05(A)(1), and one count of aggravated robbery in violation of Ohio Revised Code §
2911.01(A)(1) with a firearm specification. Return, Att.1, PageID 197-76. On October 11, 1990,
Mr. Gillispie pled not guilty to all counts in the Indictment. Id., PageID 178. Mr. Gillispie has
proclaimed his innocence of these offenses consistently since then.
Prior to trial, Mr. Gillispie filed several motions including a Motion to Suppress PreTrial Identification, a Motion to Produce Brady Material which specifically sought statements that
the State did not include in its discovery material, and a Motion to Suppress evidence seized at his
home on the day police arrested him. Id., PageID 179-80; PageID 181-83; PageID 184-85.
After the trial court apparently ordered the State to produce any additional Brady
material, the State filed a Response to Order to Produce Brady Materials, representing that it had no
additional Brady material to produce. Id., PageID 186-87. Mr. Gillispie subsequently filed a
Memorandum in Support of Motion to Suppress Identification Testimony in which he primarily
challenged the photo spread identification and the in-court identification as “the fruit of the
suggestive photo spread identification.” Id., PageID 188-91. On January 4, 1991, the trial court

4

denied Mr. Gillispie’s Motion to Suppress Pre-Trial Identification and his Motion to Suppress. Id.,
PageID 196-200.
Mr. Gillispie subsequently filed a Notice of Alibi in which stated that on August 5,
1988, he was with Marie Woods and/or Brian Poulter and that on August 20, 1988, he was in
Kentucky. Id., PageID 201.
The matter proceeded to trial and on February 12, 1991, the jury returned its verdicts
finding Mr. Gillispie guilty of all counts in the Indictment with the exception of counts sixteen and
eighteen, the aggravated robbery counts. Id., PageID 202-52.
Mr. Gillispie filed a Motion for a New Trial on February 26, 1991, and a
Supplemental Memorandum in Support of Motion for New Trial. Id., PageID 253-54; 255-341. Mr.
Gillispie argued in support of his motion that there was newly discovered evidence which was
exculpatory, that the identification process was tainted, and that there was insufficient evidence to
support his convictions. Id. The trial court held a hearing on Mr. Gillispie’s motion and
subsequently granted the motion on the basis of newly discovered evidence, to wit: one pubic and
four head hairs. Id., PageID 354-57.
The court set the matter for trial on the same counts in the Indictment except the two
robbery counts on which the first jury found Mr. Gillispie not guilty. On May 28, 1991, Mr.
Gillispie filed a Notice of Alibi in which he again stated that on August 5, 1988, he was with Marie
Woods, Brian Poulter, and Lisa Glasser, and that on August 20, 1988, he was in Kentucky. Id.,
PageID 358-59. Mr. Gillispie also filed a Motion to Incorporate Previously File[d] Motions. Id.,
PageID 360-61.
On June 12, 1991, the jury returned guilty verdicts on all sixteen counts with

5

specifications as charged in the Indictment. Id., PageID 362-406. Mr. Gillispie filed a Motion for
Judgment of Acquittal and a Motion for Mistrial and/or New Trial. Id., PageID 407-11; 412-23.
The trial court apparently denied Mr. Gillispie’s motions because in a Termination Entry dated July
2, 1991, that court sentenced Mr. Gillispie to a aggregate sentence of twenty-two to fifty-six years.
Id., PageID 424.
Mr. Gillispie timely appealed his conviction to the Montgomery County Court of
Appeals (Case number CA12941). Return Att. 2, PageID 429. Instead of filing a merit brief in the
court of appeals, on July 18, 1992, Mr. Gillispie filed a Motion for a New Trial and a Motion for
Finding that Defendant was Unavoidably Delayed in Discovery of New Evidence in the trial court
which the trial court denied on July 29, 1992. Id., PageID 430-59; 460-62; see also, PageID 471-73.
On July 14, 1992, the court of appeals entered a Show Cause Order because Mr.
Gillispie had failed to file his merit brief. Id., PageID 463-64. In response, on August 2, 1992, Mr.
Gillispie filed in the court of appeals a Motion to Remand for Consideration of New Trial. Id.,
PageID 465-73.
On August 4, 1992, Mr. Gillispie filed a Notice of Appeal, Motions for Finding of
Indigency [and] Appointment of Counsel, and Motion to Consolidate Appeal in which he, inter alia,
appealed from the trial court’s July 29, 1992, denial of his Motion for New Trial and the appeal was
assigned case number CA13585. Id., PageID 474-76. The court of appeals initially declined to
consolidate the appeals in CA12941 and CA13585 but eventually reversed itself and consolidated
the two appeals. Id., PageID 477-78; 533-34.
Mr. Gillispie filed his merit brief and raised the following three assignments of error:
ISSUE I. THE TRIAL COURT ERRED IN UPHOLDING THE
JURY CONVICTION OF THE DEFENDANT AND OVERRULING
6

DEFENDANT’S MOTIONS FOR JUDGMENT OF ACQUITTAL
AND FOR MISTRIAL AND/OR NEW TRIAL BECAUSE THE
“ALLEN CHARGES” GIVEN AT TRIAL HAD THE EFFECT OF
LOWERING THE BURDEN OF PROOF BELOW THE
REQUIRED BEYOND A REASONABLE DOUBT AND
THEREBY VIOLATING DEFENDANT’S CONSTITUTIONAL
RIGHT TO DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION
AND ARTICLE I SECTION 10 OF THE OHIO STATE
CONSTITUTION.
ISSUE II. THE TRIAL COURT ERRED IN UPHOLDING THE
JURY CONVICTION OF THE DEFENDANT AND OVERRULING
DEFENDANT’S MOTIONS FOR JUDGMENT OF ACQUITTAL
AND FOR MISTRIAL AND/OR NEW TRIAL BECAUSE THE
JURY VERDICT WAS ERRONEOUS, NOT SUPPORTED BY
THE MANIFEST WEIGHT OF THE EVIDENCE, AND NOT
BEYOND REASONABLE DOUBT THAT DEFENDANT HAD
COMMITTED THE OFFENSES AS CHARGED, AND THE
VERDICT AND SENTENCE THEREBY VIOLATED
DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS
UNDER THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND ARTICLE I SECTION 10 OF
THE OHIO STATE CONSTITUTION.
ISSUE III. THE TRIAL COURT ERRED IN SENTENCING
DEFENDANT TO CONSECUTIVE SENTENCES FOR FIREARM
SPECIFICATIONS BECAUSE THERE WAS NO SUBSTANTIAL
EVIDENCE BEYOND REASONABLE DOUBT THAT THE
OFFENDER USED AN OPERABLE HANDGUN PURSUANT TO
O.R.C. 2929.71 AND 2941.141 AND THEREBY VIOLATED
DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS
UNDER THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND ARTICLE I SECTION 10 OF
THE OHIO STATE CONSTITUTION.
Id., PageID 482.
On January 21, 1993, the court of appeals overruled Mr. Gillispie’s three assignments
of error and affirmed the trial court’s decisions. State v. Gillespie [sic], Nos. 12941, 13585, 1993
WL 10927 (Ohio App. 2nd Dist. Jan. 21, 1993); Return Att. 2, PageID 569-87.

7

Mr. Gillispie timely appealed to the Supreme Court of Ohio, Id., PageID 589, and in
his Memorandum in Support of Jurisdiction, he raised the following propositions of law:
PROPOSITION OF LAW NO. 1:
“When a jury is deadlocked in a criminal case, a trial court should
give a supplemental jury instruction with caution and only when the
circumstances are appropriate. If after giving such a charge, the jury
remains deadlocked, the trial court should order a mistrial.”
PROPOSITION OF LAW NO. 2:
“An impermissibly suggestive photographic display lacks reliability
when it is shown to a witness nearly two years following the offense
and when not corroborated by any physical or independent evidence.”
Id., Page ID 592-634. On August 11, 1993, the Ohio Supreme Court denied Mr. Gillispie leave to
appeal and dismissed his appeal as not involving any substantial constitutional question. State v.
Gillispie, 67 Ohio St.3d 1421 (1993)(table); Return Att. 2, PageID 652.
Mr. Gillispie filed a Post-Conviction Petition pursuant to Ohio Revised Code §
2953.21(A) on March 30, 1994, Id., PageID 653-58, making the following claims of ineffective
assistance of counsel:
A) COUNSEL FAILED TO USE THE OUT-OF-STATE
SUBPOENA PROCESS FOR A MATERIAL WITNESS
B) COUNSEL FAILED TO FILE THE NECESSARY PRE-TRIAL
MOTIONS
C) COUNSEL FAILED TO ESTABLISH ANY THEORY OF
DEFENSE
Id. On May 18, 1994, the trial court sustained the State’s motion for summary judgment and
dismissed Mr. Gillispie’s post-conviction petition. Id., PageID 671-74.
Mr. Gillispie appealed the denial of his petition and raised the following assignments
of error:

8

1. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT DENIED APPELLANT’S PETITION FOR POST
CONVICTION RELIEF WITHOUT FIRST HOLDING A
HEARING.
2. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT FAILED TO ISSUE FINDINGS OF FACT AND
CONCLUSIONS OF LAW.
Id., PageID 675-76; 677-700. On February 1, 1995, the court of appeals overruled Mr. Gillispie’s
assignments of error and affirmed the trial court. State v. Gillispie, No. CA 14595, 1995 WL 41334
(Ohio App. 2nd Dist. Feb. 1, 1995); Return Att. 2, PageID 720-26.
Mr. Gillispie timely appealed to the Ohio Supreme Court and in his Memorandum
in Support of Jurisdiction raised the following proposition of law:
1.
WHEN A DEFENDANT FILES A MOTION FOR
POSTCONVICTION RELIEF UNDER REVISED CODE SECTION
2953.21, AND WHEN THAT PETITION ALLEGES THAT THE
TRIAL ATTORNEY WAS INEFFECTIVE, A TRIAL COURT
MUST MOLD A HEARING ON THE PETITION
Id., PageID 727-28; 729-51. On June 14, 1995, the Ohio Supreme Court denied Mr. Gillispie leave
to appeal and dismissed his appeal as not involving any substantial constitutional question. State
v. Gillispie, 72 Ohio St.3d 1538 (1995)(table); Return Att. 2, PageID 760.
On September 7, 1997, Mr. Gillispie filed motions in the trial court for an order
compelling the State to preserve any and all evidentiary items, specifically any and all hair samples,
and for an order allowing him to have an expert perform DNA testing on any and all hair samples.
Id., PageID 761-73. The court granted Mr. Gillispie’s motions on September 9, 1997, and ordered
the State to preserve any and all evidence it held in Mr. Gillispie’s case including, but not limited
to, any and all hair samples. Id., PageID 764-65. On February 13, 1998, Mr. Gillispie engaged the
services of an expert and moved the court for an order directing the State to release hair samples to
9

Mr. Larry Dehus for DNA testing. Id., PageID 766-67.
During the pendency of the DNA-related motion, on August 7, 1998, Mr. Gillispie
filed a motion for leave to file a motion for a new trial based upon newly discovered evidence. Id.,
PageID 777-79. He represented that he had recently acquired the results of DNA testing of Glen
Rodgers, that Mr. Rodgers was currently incarcerated for committing the same type of offenses of
which Mr. Gillispie had been convicted, and that if the hair samples which were the subject of Mr.
Gillispie’s prior motions proved to be from Mr. Rodgers, Mr. Gillispie would be entitled to a new
trial. Id. During the briefing on Mr. Gillispie’s motion, the State represented that on the dates of
the crimes for which Mr. Gillispie was convicted, Mr. Rodgers was incarcerated. Id., PageID 78391. Subsequently, Mr. Gillispie filed a supplemental memorandum in support of his motion
requesting that he be permitted to test the hairs and compare the results with the F.B.I. DNA records
of convicted rapists. Id., PageID 792-94.
On February 8, 1999, the trial court issued an order in which it stated that it would
postpone its decision on Mr. Gillispie’s motion related to a new trial until the parties briefed the
issue of the June, 1991, availability of DNA testing in Ohio courts. Id., PageID 798-800. The trial
court subsequently denied Mr. Gillispie’s motion for a new trial. Id., PageID 811-15. The court did,
however, grant leave to Mr. Gillispie to have the hairs tested “under conditions satisfactory to the
court.” Id.
On January 19, 2001, Mr. Gillispie filed a motion for evidentiary hearing alleging
that the State failed to turn over the hairs for DNA testing. Id., PageID 816-18. The State replied
that it was not responsible for the missing hairs. Id., PageID 819-22. The trial court construed Mr.
Gillispie’s motion as a motion to show cause to hold the State in contempt, held a hearing on the

10

motion, and subsequently denied it. Id., PageID 823-28.
Mr. Gillispie appealed the trial court’s decision and raised the following assignment
of error:
Issue Presented for Review and Argument
Because the State cannot show that the missing [ ] hairs were not
exculpatory evidence and hairs ended up missing while they were
under State control, due process requires that the decision of the
lower court be reversed and that the convictions be ordered
dismissed.
Return Att. 3, PageID 831-32; 833-42. On March 29, 2002, the court of appeals overruled Mr.
Gillispie’s assignment of error and affirmed the trial court’s decision. Id., PageID 862-69.
Mr. Gillispie appealed to the Ohio Supreme Court and in his Memorandum in
Support of Jurisdiction he raised the following proposition of law:
IF THE PROSECUTION INTENDS TO PRESERVE
POTENTIALLY EXCULPATORY EVIDENCE AFTER A
DEFENDANT HAS BEEN CONVICTED, OR IF THE
PROSECUTION IS ORDERED TO PRESERVE POTENTIALLY
EXCULPATORY EVIDENCE AFTER CONVICTION, THE
FAILURE TO DO SO MEANS THAT ANY CONVICTIONS
SHOULD BE REVERSED AND THE CHARGES DISMISSED SO
LONG [ ] STATE CANNOT SHOW THAT THE MISSING
EVIDENCE WAS NOT EXCULPATORY.
Id., PageID 870-72; 873-84. On July 3, 2002, the Ohio Supreme Court denied Mr. Gillispie leave
to appeal and dismissed his appeal as not involving any substantial constitutional question. State
v. Gillispie, 96 Ohio St.3d 1441 (table); Return Att. 3; PageID 900.
Mr. Gillispie filed a Motion for Mitochondrial DNA Analysis in the trial court on
March 5, 2003. Id., PageID 901-04. On May 20, 2003, the court entered an Order to Transport
Exhibit directing that defense counsel and the assistant prosecutor jointly transport the hair samples
to the Miami Valley Regional Crime Laboratory from where the samples would be subsequently
11

sent to a laboratory in Pennsylvania for mitochondrial DNA testing. Id., PageID 905-06. The court
entered the order again on July 3, 2003. Id., PageID 907.
On October 28, 2004, Mr. Gillispie filed an Application for DNA Testing in addition
to that already done. Id., PageID 908-1096. On January 20, 2005, the court entered an order in
which it denied Mr. Gillispie’s request for DNA testing of hair samples because that testing had been
performed pursuant to a July, 2003, order it had entered and ordered the State to provide information
“as to whether any semen or seminal fluid may exist on the clothing of [one of the victims]”. Return
Att. 4, PageID 1106-07. The State subsequently informed the court the clothing at issue had been
tested prior to trial, there was no seminal fluid on the clothing, and the clothing had been released
to the victim. Id., PageID 1108-12. On March 16, 2005, the court denied Mr. Gillispie’s motion
for DNA testing noting that the State did not have possession of any of the items he wanted tested.
Id., PageID 1119-22.
Mr. Gillispie filed a Petition for Post-Conviction Relief and Motion for New Trial
on February 23, 2008. Id., PageID 1123-87. In that petition/motion, Mr. Gillispie argued that new
evidence established the following incidents of alleged police misconduct:
(1) Gillispie’s name was originally brought forth as a suspect earlier
than what was revealed at trial by Rick Wolfe, an angry co-worker of
Gillispie. Wolfe had previously served as a police officer in the same
police department investigating Gillispie. Wolf appeared to the
detectives in charge to have a work-related vendetta against Gillispie,
and furthermore had no independent basis to believe that Gillispie
committed these crimes;
(2) the veteran detectives on the case investigated this “tip” and
concluded that Gillispie was not a viable suspect for several
independent reasons;
(3) after the veteran detectives left the department and the case was
re-assigned to Moore, Moore was able to obtain identifications of
12

Gillispie by the victims through a highly improper and contaminated
identification process;
(4) reports in the file given to Moore which revealed that Gillispie
had originally been investigated and eliminated as a suspect by a
more senior and experienced detectives in his department then
disappeared and were not turned over to the defense at trial;
(5) at trial, Moore and Wolfe “sanitized” the record to make it appear
to the jury that the case against Gillispie had started much later in
time when Moore took over the case (in other words, Wolfe and
Moore hid from the jury the fact that Wolfe had previously tried to
have Gillispie implicated and the veteran detectives had recognized
Wolfe’s vendetta, the lack of a match between Gillispie and the
perpetrator, and had eliminated Gillispie as a suspect);
(6) Wolfe attempted to downplay and mitigate his vendetta against
Gillispie, which had proved so distasteful and suspicious to the
original investigating detectives, by “staging” Wolfe’s delivery of the
photos of 5 different possible suspects to Moore, to make the origins
of the case against Gillispie appear innocent and innocuous; and
(7) the state’s evidence at trial, through the false or incomplete
testimony of various witnesses, including several current and former
police officers, pulled off this misleading recitation of events, the
truth of which was unknown to the defense, the jury, the court, and
presumably even the prosecution.
Id. In addition, Mr. Gillispie argued that new evidence would reveal that Det. Moore: (1) obtained
campground receipts related to Mr. Gillispie’s alibi which Det. Moore never turned over to the
defense; (2) committed perjury to avoid admitting that he obtained and failed to disclose the receipts;
(3) harassed a potential defense witness whose truthful testimony may have threatened his (Det.
Moore’s) case to the point where she was unable to testify for the defense, turned in reports that
falsified statements made by the witness, tried to convince her to testify to facts that were not true,
tried to indoctrinate her in the belief that Mr. Gillispie was guilty, and ultimately threatened to make
false public accusations of a sexual nature against her if she did not cooperate with him. Id. Mr.

13

Gillispie also argued that new evidence indicates that the perpetrator of the crimes for which he was
convicted is likely Kevin Cobb and that new scientific developments in the field of eyewitness
identification cast doubt on the identifications of Mr. Gillispie as the perpetrator. Id. Mr. Gillispie
concluded that his conviction should be overturned on two independent grounds: (1) for
constitutional reasons relating to police misconduct, perjury, witness tampering, and Brady
violations; and (2) on the basis of newly discovered evidence sufficient to raise a reasonable doubt
and thus change the outcome of the verdict entitling him to a new trial. Id. On July 9, 2008, the trial
court overruled Mr. Gillispie’s motion for a new trial and his petition for post-conviction relief. Id.,
PageID 1278-93. Subsequently, Mr. Gillispie filed a Motion to Supplement the Record and for
Reconsideration of Denial of New Trial which the court denied on August 13, 2008. Id., PageID
1293-1305; 1309-10.
Mr. Gillispie appealed the trial court’s decisions and the court of appeals consolidated
the cases for appeal. Id., PageID 1312-13; 1314-15; 1316-19; 1320. He raised the following
assignments of error:
ASSIGNMENT OF ERROR NO. 1
1. The lower court erred in finding no Brady violations.
A. The lower court erred in finding no Brady violation in the
State’s failure to disclose supplemental reports eliminating
Gillispie as a suspect and containing other exculpatory
information, such as the fact that a key witness against
Gillispie had a vendetta against him.
B. The trial court erred in finding that the missing
campground receipts were not Brady material.
ASSIGNMENT OF ERROR NO. 2
1. The trial court erred in ignoring the unrefuted evidence of witness
14

tampering by Detective Moore.
ASSIGNMENT OF ERROR NO. 3
1. The trial court abused its discretion in denying Gillispie’s Motion
for New Trial which presented compelling new evidence of
innocence.
A. The emergence of a new alternative suspect, Kevin Cobb,
obligated the trial court to grant Gillispie’s motion for new
trial because this evidence had a reasonable probability of
changing the verdict.
B. New advances in the field of eyewitness identification
present new evidence that the photo line-up in combination
with the tactics of Detective Moore produced a faulty
identification by the victims in this case.
C. The various forms of new evidence, viewed together
rather than in a vacuum, would change the outcome of a new
trial.
Id., PageID 1321-68. On July 24, 2009, the court of appeals affirmed the trial court’s denial of Mr.
Gillispie’s post-conviction petition, overruled his first two assignments of error, and sustained his
third assignment of error in part and remanded the matter for a hearing on his claim that he should
be granted a new trial based on new evidence of an alternative suspect. State v. Gillispie, 2009 WL
2197052, supra.; Return Att. 5, PageID 1512-60. Mr. Gillispie filed a Motion for Reconsideration
of Brady Issue Surrounding Supplemental Reports which the court of appeals denied. Return Att.
6, PageID 1563-70; 1574-78.1
Mr. Gillispie appealed to the Ohio Supreme Court and in his Memorandum in

1

The Montgomery County Clerk of Courts PRO System indicates as follows: (1) the trial court held a
hearing over a three day period in 2010 and denied Mr. Gillispie’s motion for a new trial on December 29, 2010; (2)
Mr. Gillispie appealed the trial court’s decision on January 28, 2011, Case No. CA 24456; (3) the matter is
scheduled for oral argument before the court of appeals on November 1, 2011. See
http://www.clerk.co.montgomery.oh.us/pro/

15

Support of Jurisdiction he raised the following propositions of law:
Proposition of Law No. 1: In a case where the defendant’s defense
was to impeach the integrity and credibility of the arresting
detective’s investigation, a constitutional violation occurs pursuant
to Brady v. Maryland (1963) 373 U.S. 83, and D’Ambrosio v. Bagley
(N.D. Ohio Mar. 24, 2006), Case No. 1:00 CV 2521, affirmed, (C.A.
6 2008), 575 F.3d 489, when the State fails to disclose written reports
showing that, unknown to defendant and his attorney, the original
investigating detectives initially assigned to the case had previously
investigated and eliminated the defendant as a suspect on the
grounds, among others, that: (1) he did not fit the specific
psychological profile of the perpetrator developed by the detectives
for that particular case based on their years of experience in
investigating crimes of that nature; and (2) the detectives’
investigation of the defendant turned up facts that eliminated the
defendant as a suspect, such as the fact that the defendant’s pants size
did not match the pants size of the perpetrator as reported by the
victim.
Proposition of Law No. 2: In a case where the defendant first learns
nearly 20 years after his conviction that Brady material was not
disclosed prior to trial, and obtains the affidavit of a law enforcement
witness stating that exculpatory evidence existed, to the best of that
witness’ recollection, in written reports that had last been in the
possession of the State, the State—who is at fault for not disclosing
the report in a timely manner when memories were fresh—bears the
burden of proving that the undisclosed report was not exculpatory.
Id., PageID 1579-81; 1582-1656. On December 2, 2009, the Ohio Supreme Court denied Mr.
Gillispie leave to appeal and dismissed his appeal as not involving any substantial constitutional
question. State v. Gillispie, 123 Ohio St.3d 1510 (2009), Return Att. 6, PageID 1672.
Proceedings in this Court

On December 15, 2009, Mr. Gillispie filed his Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody in which he pled the following Ground for
Relief:
16

Ground for Relief 1
The State’s failure to disclose to the defense, prior to or during
trial, supplemental reports written by the original investigating
detectives, which eliminated Petitioner as a suspect, violated
Petitioner’s due process rights pursuant to Brady v. Maryland.
U.S. Const. amend V, XIV.
Doc. 1, PageID 1-40. After the parties engaged in extensive motion practice, on March 10, 2011,
this Court held an evidentiary hearing at which the Court heard testimony from Gary Bailey, Steven
Fritz, and Dennis Lieberman. Doc. 44, PageID 3723-25; Doc. 46, PageID 3922-4150. On June 8,
2011, the Court entered a Decision and Order in which the Court, inter alia, found that Cullen v.
Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011), which the Supreme Court decided after the
evidentiary hearing in this matter, precludes this Court from considering, in deciding the 28 U.S.C.
§ 2254(d)(1) question in Mr. Gillispie’s case, evidence that the parties introduced at the March,
2011, hearing. Doc. 62, PageID 4506-09. However, the Court noted that it agreed, at least initially,
with Mr. Gillispie’s arguments that: (1) if the court decides the § 2254(d)(1) issue favorably to Mr.
Gillispie, he would be entitled to a de novo consideration of his Brady claim in this Court; and (2)
Mr. Gillispie would be entitled to have the evidence taken at the evidentiary hearing and arguably
the materials he submitted with his Motion to Expand the Record (Doc. 52, PageID 4414-23),
considered on any de novo consideration because holding the hearing before deciding the §
2254(d)(1) issue was, at most, harmless error if the § 2254(d)(1) issue is determined favorably to
Mr. Gillispie. Id., PageID 4508. Finally, in the June 8, 2011, Order, the Court advised the parties
that it considered the § 2254(d)(1) issue ripe without further briefing. Id., PageID 4509.

Standard of Review

17

I. Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110
Stat. 1214 (Apr. 24, 1996) (“AEDPA”) applies to all habeas cases filed after April 25, 1996.
Herbert v. Billy, 160 F.3d 1131 (6th Cir. 1998), citing, Lindh v. Murphy, 521 U.S. 320 (1997). Since
Mr. Hanna filed his Petition well after the AEDPA’s effective date, the amendments to 28 U.S.C.
§ 2254 embodied in the AEDPA are applicable to his Petition.
Title 28 U.S.C. § 2254, as amended by the AEDPA, provides:
...
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254.
The AEDPA also provides that a factual finding by a state court is presumed to be
correct, and a petitioner must rebut the presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e). In addition, pursuant to the AEDPA, before a writ may issue on a claim that
was evaluated by the state courts, the federal court must conclude that the state court’s adjudication
of a question of law or mixed question of law and fact was “contrary to or an unreasonable
application of clearly established federal law as determined by the Supreme Court.” 28 U.S.C. §
2254(d)(1).

18

A state court’s decision is contrary to the Supreme Court’s clearly-established
precedent if: (1) the state court applies a rule that contradicts the governing law as set forth in
Supreme Court case law; or (2) the state court confronts a set of facts that are materially
indistinguishable from those in a decision of the Supreme Court and nevertheless arrives at a result
different from Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state
court’s decision involves an unreasonable application of clearly established federal law “if the state
court identifies the correct governing legal rule [from Supreme Court cases] but unreasonably
applies it to the facts of the particular state prisoner’s case”, “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new context where it should not
apply[,] or [if the state court] unreasonably refuses to extend that principle to a new context where
it should apply.” Williams, 529 U.S. at 407-08. For a federal court to find a state court’s application
of Supreme Court precedent unreasonable, the state court’s decision must have been more than
incorrect or erroneous; it must have been “objectively unreasonable.” Wiggins v. Smith, 539 U.S.
510, 520-21 (2003); Williams, 529 U.S. at 407, 409. An unreasonable application of federal law
is different from an incorrect application of federal law. Id. at 410 (emphasis in original). In sum,
Section 2254(d)(1) places a new constraint on the power of a federal court to grant a state prisoner’s
application for a writ of habeas corpus with respect to claims adjudicated on the merits in state
court. Id. at 412 (Justice O’Connor, concurring).
A state court decision is not “contrary to” Supreme Court law simply because it does
not specifically cite Supreme Court cases. Early v. Packer, 537 U.S. 3 (2002). Indeed, “contrary
to” does not even require awareness of Supreme Court cases, so long as neither the reasoning nor
the result of the state-court decision contradicts them. Id. at 8. The AEDPA prohibits the

19

overturning of state court decisions simply because the federal court believes that the state courts
incorrectly denied the petitioner relief:
By mistakenly making the “contrary to” determination and then
proceeding to a simple “error” inquiry, the Ninth Circuit evaded
Section 2244(d)’s requirement that decisions which are not “contrary
to” clearly established Supreme Court law can be subjected to habeas
relief only if they are not merely erroneous, but “an unreasonable
application” of clearly established federal law, or based on “an
unreasonable determination of the facts”.
Id. at 11.
For the purposes of the AEDPA, the habeas court reviews the last state court decision
on the merits. Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir. 2005), cert. denied, 546 U.S. 1100
(2006).
The AEDPA standard of review applies only to “any claim that was adjudicated on
the merits in state court proceedings.” Danner v. Motley, 448 F.3d 372, 376 (6th Cir. 2006). A state
court’s failure to articulate reasons to support its decision is not grounds for reversal under the
AEDPA. Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 792 (2011); Williams v. Anderson,
460 F.3d 789, 796 (6th Cir. 2006), citing, Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000), cert. denied,
432 U.S. 947 (2001). Where the state court fails to adjudicate a claim on the merits, the habeas court
conducts an independent review of a petitioner’s claims. Williams, supra. That independent review,
however, is not a full, de novo review of the claims, but remains deferential because the court cannot
grant relief unless the state court’s result is not in keeping with the strictures of the AEDPA.
Williams, supra.

20

Merits of the Petition

In his Petition, Mr. Gillispie has raised only one Ground for Relief. Indeed, Mr.
Gillispie acknowledges that “[w]hile [he] raised numerous claims in the state court, the only issue
that is a part of his Petition is the Brady claim stemming from the missing supplemental reports that
eliminated Gillispie as a suspect.” Doc. 1, PageID 35. The thrust of Mr. Gillispie’s position is that
he is entitled to habeas relief because the state court misapplied and/or misinterpreted D’Ambrosio
v. Bagley, No. 1:00cv2521, 2006 WL 1169926 (N.D. Ohio Mar, 24, 2006) aff’d, 527 F.3d 489 (6th
Cir. 2008). Petition, Doc. No1. 1 PageID 36.
The Montgomery County Court of Appeals was the last state court to address Mr.
Gillispie’s Brady claim on the merits. That court rejected the claim as follows:
In his first assignment of error, Gillispie claims that, contrary to
Brady, he was not provided all of the campground receipts for the
weekends of the rapes and supplemental police reports, which would
have demonstrated the “true origins” of the case against Gillispie,
Wolfe's bias against Gillispie, and Wolfe's aggressive tactics to have
charges brought against Gillispie, and that Gillispie had previously
been excluded as a suspect by Detectives Bailey and Fritz.
The prosecution's withholding of evidence favorable to an accused
“violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. “[F]avorable evidence is
material, and constitutional error results from its suppression by the
government, ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different.’ ” Kyles v. Whitley (1995), 514 U.S. 419,
433, 115 S.Ct. 1555, 131 L.Ed.2d 490, quoting United States v.
Bagley (1985), 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481.
A “reasonable probability” of a different result is demonstrated when
the government's suppression of evidence “undermines the
confidence in the outcome of the trial.” Id. at 434. “Both exculpatory
and impeachment evidence may be the subject of a Brady violation,
21

so long as the evidence is material.” State v. Gibson, Butler App. No.
CA2007–08–187, 2008–Ohio–5932, at ¶ 25, citing Bagley, 473 U.S.
at 676. However, no constitutional violation occurs if the evidence
that was allegedly withheld is merely cumulative to evidence
presented at trial. State v. Church (Apr. 30, 1999), Clark App. No.
98–CA–36; State v. Aldridge (1997), 120 Ohio App.3d 122, 145, 697
N.E.2d 228.
...
Second, Gillispie argues that the trial court erred in finding no Brady
violation with respect to the State's failure to disclose supplemental
police reports, which indicated that Gillispie had once been
eliminated as a suspect.
At Gillispie's second trial, the State presented several witnesses who
discussed the course of the police investigation and the development
of Gillispie as a suspect. First, Robert Burling, a thirteen year veteran
of the Miami Township Police Department, testified that he
conducted an initial investigation of the rapes of the twins and
collected evidence. Burling took witness statements from the sisters,
drove them to Sycamore Hospital for throat cultures, collected their
clothing, and processed B.W.'s 1979 Chevy Camaro for evidence,
including looking for fingerprints, and collecting a Polaroid picture
and two bandanas. Burling obtained a physical description of the
rapist.
Gary Bailey, who in 1988 was a detective corporal with the Miami
Township Police Department, testified that he was assigned to
investigate the August 20, 1988, rapes the following day. Bailey's
supervisor, Sergeant Steven Fritz, also assisted. Bailey interviewed
C.W. and B.W. separately and obtained a physical description of the
perpetrator and the perpetrator's self-reported first name. The same
day, Bailey and the twins went to Best Products and to the scene of
the rapes. Bailey had the twins create a composite of their assailant,
which was distributed to the media, local retailers, and other police
departments. Bailey testified that he worked on the case “[u]ntil all
the good leads ran out.” Bailey denied that he had “occasion at any
time to interview or come in contact with a Roger Gillispie.” On
cross-examination, Bailey testified that he received more than 20
leads during his investigation, and many of those individuals came
close to the description of the perpetrator. Bailey indicated that he
received photographs for some of those leads and used them “to go
ahead and either keep the fellow as a good suspect or go ahead and
22

eliminate him as a suspect.” Bailey did not create any photo lineups
to show to B.W. and C.W. He explained on redirect examination that
none of the individuals matched or closely matched the description
given by the twins, and there were no “suitable suspects to go ahead
and create a photo spread.”
Robert Miller, a security supervisor with the Harrison Division of
General Motors and one of Gillispie's supervisors, testified that he
saw the composites in 1988 and thought they resembled Gillispie.
Miller informed the chief of plant security, but received no feedback.
When that chief left about a year later, Miller relayed his suspicion
to the new chief of security, Keith Stapleton.
Richard Wolfe, who supervised operation of the security department
for five divisions of General Motors between 1987 and 1991,
contacted the Miami Township Police Department in late 1989 or
early 1990 regarding the rapes at Best Products. Wolfe acquired the
composites from the police to see if the composites looked like
Gillispie. After viewing the composites with Stapleton, Wolfe took
the security identification cards of Gillispie and four other individuals
to the police department. Wolfe stated that he talked with Fritz and
Moore and told them that “some of us thought it looked like
[Gillispie].”
On June 15, 1990, the case was delegated to Detective Moore, who
had been assigned to the detective section in 1989. Moore reviewed
the file to date and felt that Gillispie's security identification card
“looked very much” like the suspect. Moore ran a background check
on Gillispie, “obtained his physical build,” and attempted to make
contact with him. On June 21, 1990, Moore sent Gillispie's security
card to MVRCL to have a photograph made for use in a photo lineup.
In July 1990, Moore created a photo lineup and showed it separately
to C.W. and B.W. Both selected Gillispie's photograph. Moore
showed another photo lineup to S.C. in August 1990; she also
identified Gillispie as her assailant. Moore interviewed Gillispie in
August 1990, and executed a search warrant at his home in
September 1990. Moore did not pursue any other individuals as
potential suspects.
In his petition for post-conviction relief and motion for a new trial,
Gillispie argued that he had been considered as a suspect by Bailey
and Fritz prior to Moore's involvement in the case, and that Gillispie
had, in fact, been eliminated as a suspect by those detectives.
Gillispie claimed that Moore “sanitized” the case file to make it
23

appear that he (Gillispie) did not come to the officers' attention until
June 1990. In support of these arguments, Gillispie provided
affidavits by Bailey, Fritz, and Lieberman. Fritz's affidavit states, in
relevant part:
“3. During April of 1990, Bailey and I received a tip on this case
from a Rick Wolfe, a supervisor of a local GM plant. Wolfe brought
over the picture of Roger Dean Gillispie, an employee that Wolfe had
just terminated at GM. Wolfe said that Gillispie looked like the
composite sketch of the perpetrator, and Gillispie's first name was
‘Roger,’ the same name used by the rapist. Bailey and I eliminated
Gillispie as a suspect because of the extreme differences in Gillispie's
physical appearance compared to that of the rapist, and because
Gillispie, with a solid job and clean record, did not fit the profile of
the brazen rapist in this case. Also, Wolfe's tip was suspicious. The
WANTED poster for the case had been posted for nearly 2 years at
the GM plant, but Wolfe waited until he had a nasty fight with
Gillispie, and fired him, before suddenly deciding that he should turn
in Gillispie as a suspect. Wolfe had no credible explanation for why
Gillispie should be a suspect, other than the fact that Wolfe simply
hated Gillispie for work-related reasons. As tips go, the one from
Wolfe regarding Roger Dean Gillispie was a particularly unreliable
one.”
Fritz also prepared a supplemental affidavit, which stated, in part:
“3. Since writing my First Affidavit, I have reviewed my files and
prior testimony to refresh my recollection about timelines and events
surrounding Rick Wolfe and how Gillispie became involved in this
case. When Rick Wolfe originally brought Gillispie's photo over to
the department, it must have been in 1989 or early 1990. I know this
for a few reasons. First, Bailey was still in charge of the case under
my supervision when this happened. I am sure of this. Bailey was still
in the detectives division, and was still in charge of the case. The case
was still active when this occurred. Second, a substantial period of
time passed between the time that Wolfe first brought Gillispie's
photo over, and the second time when Wolfe brought over a group of
photos after Bailey had left the department and I was about to turn
the file over to Moore. This is what I recall in addition to what I said
in my First Affidavit:
“a) Sometime while Bailey was still in charge of the case, in 1989 or
early 1990, Wolfe brought over a single photograph to the department
as a possible suspect. This photo was of Roger Dean Gillispie. When
24

Wolfe brought this photograph over to the department, he gave it to
us and presented Gillispie as a suspect at a formal meeting attended
by myself, Bailey, Wolfe, someone else from GM, and I believe
Chief Thomas Angel and Captain Marvin Scothorn. As I said before,
Bailey and I ultimately eliminated Gillispie as a suspect.
“b) After that initial meeting, I recall Wolfe calling me on occasion
and asking me about whether we were going to do anything about
Gillispie. Although I don't remember my specific responses, I
eventually told him that we were not going to bring charges against
Gillispie and did not consider him a good suspect. I can recall
discussing Wolfe's ‘tip’ with Bailey and both of us making sure that
we crossed every ‘T’ and dotted every ‘I,’ because Wolfe had been
an officer in the department before going to GM and was still friends
with some of the supervisors. We wanted to make sure that we did
our ‘due diligence’ and could explain why we were not going to
pursue Wolfe's ‘tip’ without having to embarrass Wolfe or get in hot
water with any of his friends in the department.
“c) The meeting in which Wolfe brought over Gillispie's photo, and
our process of eliminating Gillispie as a suspect, were the subject of
supplemental reports written by Bailey and submitted to me. I can
recall discussing these reports with Bailey for the reasons set forth at
paragraph (b). I can recall reviewing these reports and putting them
in the file that was later inherited by Moore. It has recently been
brought to my attention that these reports were never turned over by
Moore to the defense, and possibly not to the prosecution. I had no
knowledge of this, and assumed until recently that everything had
been turned over.
“d) Before I left the department, Wolfe tried again by bringing over
several photos. This was after Bailey and I had already eliminated
Gillispie and had filled in Wolfe that we were not moving forward
with Gillispie as a suspect. * * * I do not think that I even looked at
the photos provided by Wolfe at this point, but just stuck them in the
file. * * *.”
Bailey's affidavit reiterated much of the information in Fritz's
affidavit regarding the meeting with Wolfe and others, his
investigation of Gillispie, the elimination of Gillispie as a suspect,
and the creation of supplemental reports. He added that, as part of his
“due diligence” he noted a discrepancy between the pants size noted
by a victim when the perpetrator dropped his pants and Gillispie's
build. In addition, Bailey stated, in part:
25

“6. At Gillispie's trial, I simply came to court and answered the
questions asked of me in an honest way. At the second trial, I was not
asked anything about my investigation of Gillispie. At the first trial,
I was asked whether I had ever followed up on any ‘leads' with
respect to Gillispie. I answered, ‘No, sir.’ I cannot recall now why I
answered ‘no,’ but it must have been because I did not consider
Gillispie to be serious enough of a tip to consider it a lead.
“7. * * * When I testified, it never occurred to me that there might be
a discovery violation. I naturally would have assumed that the law
had been complied with and that I simply was not asked about these
reports, and the facts and events contained in the reports, for reasons
that did not concern me. * * * ”
Attorney Dennis Lieberman stated in his affidavit that he did not
receive Bailey's supplemental reports and did not receive the
information in his reports orally or in any other form. He stated that,
to the contrary, “the State made it appear as if the case against
Gillispie originated when Wolfe, in April 1990, brought over
photographs of 5 GM employees and gave them to Detective Moore.
The history of Wolfe having tried earlier with a single photo of
Gillispie, and of Bailey and Fritz eliminating Gillispie as a viable
suspect, was not made available to me, or the jury.” Lieberman
further indicated that “[i]t would have been very important and
helpful to me at trial to have had this information. My defense at trial
was misidentification of Gillispie by the victims. * * * Had I had the
information contained in the supplemental reports regarding the early
case history in this case, I would have used it to impeach Wolfe,
Moore and Bailey. * * * I believe that this information would have
changed the outcome of the trial had it been made known to me. I
consider this extremely important and powerful information that was
not provided in violation of Brady.”
In its opposition memorandum, the State emphasized that Fritz was
Gillispie's investigator at the time of trial, and he should have known
about the alleged missing detective reports regarding Gillispie's
elimination as a suspect. The State further asserted that the detectives'
decision to eliminate Gillispie as a suspect was baseless, that
Gillispie matched the description of the assailant, and that neither the
jury nor the defense was misled about how and when Gillispie came
to the attention of the police.
In his reply memorandum, Gillispie disputed that he should have
known of the supplemental reports due to Fritz's involvement as an
26

investigator for the defense. Fritz provided a second supplemental
affidavit, indicating that he was instructed by Lieberman “to perform
specific tasks, such as obtain particular documents or interview
witnesses as he instructed. I did not go over the discovery provided
by the State. I was not hired to sit through the trial to make sure that
the early stages of the investigation were presented to the jury in a
fair and accurate light. It never occurred to me that they would not be
presented in an accurate light.”
Fritz further stated:
“I was operating under the assumption the entire time that Mr.
Lieberman* * * had possession of the reports created by Bailey, and
approved by me, eliminating Gillispie as a suspect. When he had
questions about something, he asked me. I let him do the attorney
work, and I did the footwork of an investigator when I was asked to
do something. * * * My job was to get things Lieberman didn't have
already, and what he told me he needed. * * * ” (Emphasis in
original.)
Lieberman also denied in a supplemental affidavit that he should
have had knowledge of the supplemental reports:
“2. The idea that I, as Mr. Gillispie's defense attorney, knew or
should have know[n] of the Brady violation (relating to the
undisclosed reports by Detective Bailey eliminating Gillispie as a
suspect) because Mr. Steven Fritz worked in a limited capacity as an
investigator for the defense is without merit. Like any investigator
who is hired by a defense lawyer who has limited funds, Mr. Fritz *
* * was hired to perform specific tasks on an ad hoc basis. * * * Mr.
Fritz was not involved in ‘big picture’ analysis or strategy or
anything of that nature. As would be the case with any defense
investigator, Fritz was not hired to go through discovery to see if any
reports were missing * * *. I depended on the good faith of the police
department, as I am entitled to do by law, to ensure that proper
discovery was made and that the State's witnesses would not perjure
themselves at trial.”
Lieberman indicated that the he would have used the supplemental
reports at trial to impeach Wolfe and Moore about the origins of the
case against Gillispie, to have Bailey testify as to investigative
techniques and practices, and to attack the motives and competence
of Moore's investigation.

27

The trial court rejected Gillispie's assertion that the alleged removal
of supplemental police reports from the case file constituted a Brady
violation. The court explained:
“The Court finds that the reports were allegedly created by Bailey,
reviewed by Detective Steven Fritz and placed in the file by Fritz
prior to trial. Of particular importance to the Court is that Fritz, who
was lead detective on this case, left the Miami Township Police
Department in June of 1990 and went to work for the defense to
prepare for the trial. If those documents existed, Fritz would have
known it prior to trial. Any attempt by the police to ‘sanitize’ the
record of the investigation would have been futile because Fritz had
first hand knowledge. Because the records, or the lack thereof was
known at the time of trial, this is not new evidence.
“Pursuant to Brady, the defense bears the burden of proving that the
State suppressed or did not disclose material, exculpatory evidence.
If this evidence existed, the defense knew of its existence because its
investigator, Fritz, put it into the file. It is hard to imagine the need
for further disclosure. Certainly due diligence at the time would have
required the Police to produce these records or declare that they did
not exist. Further, there is absolutely no admissible evidence that
these records, if they exist, are material or exculpatory. The defense
has not met its burden.”
Gillispie asserts that the trial court's ruling ignores the unrefuted
affidavits of Fritz and Lieberman. In his appellate brief and at oral
argument, Gillispie relied upon D'Ambrosio v. Bagley (N.D.Ohio
Mar. 24, 2006), Case No. 1:00 CV 2521, 2006 WL 1169926
affirmed, (C.A.6 2008), 527 F.3d 489, to support his claim that the
opinions of the original investigating officers constitute Brady
evidence.
As an initial matter, we agree with Gillispie that the trial court did not
reasonably conclude, as a matter of law, that the State did not need to
disclose the supplemental reports, because Gillispie had access to that
information from Fritz. Although Fritz performed work as an
investigator for the defense prior to Gillispie's trial, the affidavits of
Fritz and Lieberman, if believed, indicate that Fritz's duties as an
investigator for the defense would not have reasonably led defense
counsel to have discussions with Fritz regarding the supplemental
reports. Fritz's role was limited to discrete assignments, and he did
not review the complete discovery packet from the State as part of his
duties. Unlike information that Gillispie should have known based on
28

personal knowledge, such as the individuals who were present with
him when he was camping, the defense had no basis for believing that
they lacked any police reports regarding Gillispie that were prepared
prior to June 1990, when Moore took over the case. Moore was
questioned at a December 1990 suppression hearing as to whether
Gillispie was a suspect prior to June 1990, when Rick Wolfe brought
some security identification cards to him, and Moore responded
negatively. Thus, the defense had no reason to ask Fritz about
whether Gillispie's name had been raised as a potential suspect prior
to Moore's investigation when neither Moore nor the discovery
packet gave any hint that Gillispie had previously been considered.
The State offered no evidence to refute Gillispie's assertion that the
defense had no knowledge, at the time of trial, that Gillispie had been
considered and eliminated as a suspect.
Nevertheless, the trial court properly concluded that Gillispie failed
to establish that the supplemental reports, if they exist, are potentially
exculpatory or material. The evidence allegedly contained within the
reports concerned how Gillispie first came to the attention of the
police through Gillispie's former supervisors at GM and that the
initial investigating detectives concluded that Gillispie was not a
viable suspect. As stated above, Wolff [sic] and Miller testified that
they brought Gillispie to the attention of the police based on their
comparison of Gillispie's appearance with the composites. Although
defense counsel may have preferred to know that the GM supervisors
had an alleged vendetta against Gillispie, that fact has little
significance as to Gillispie's guilt or innocence. The allegation that
the GM employees may have been motivated by a “vendetta” against
Gillispie when they spoke with the detectives had no bearing on the
strength of the State's case against Gillispie or whether Gillispie had
committed the offenses.
In addition, the police detectives' opinion that Gillispie was not a
viable suspect has little, if any, relevance to Gillispie's guilt or
innocence. The affidavits do not assert that the detective's opinion
was based on the discovery of evidence that would have exonerated
Gillispie, such as evidence to support an alibi.
In this respect, Fritz and Bailey's opinions are distinguishable from
the police officers' opinions in D’Ambrosio. In a petition for a writ of
habeas corpus, D'Ambrosio claimed, among other things, that the
prosecution violated Brady when it failed to disclose reports from the
two initial investigating officers, who had surmised the victim had
been killed elsewhere and dumped in Doan's Creek; these reports
29

were contrary to the State's theory of the case at trial that D'Ambrosio
and two other men, Edward Espinoza and Thomas Keenan, had taken
the victim to Doan's Creek and killed him there.FN5 Agreeing with
D'Ambrosio, the federal district court found that “the defense
undoubtedly could have used this evidence to impeach Espinoza's
testimony during trial. * * * [A]ny information that would tend to
undercut Espinoza's account of the murder could have been used to
impeach him.”
FN5. D'Ambrosio was convicted of aggravated burglary
and the kidnaping and murder of Anthony Klann. According
to the evidence at trial, D'Ambrosio and Espinoza had gone
with Keenan to look for Paul Lewis, who Keenan believed
had stolen drugs from him. The three encountered Klann, a
friend of Lewis. They forced him into Keenan's truck and
questioned him repeatedly about Lewis's whereabouts.
Eventually, Keenan drove the group to Doan's Creek, where
Keenan cut Klann's throat with a knife and pushed him into
the creek. After Klann got up and began to run, D'Ambrosio
grabbed the knife from Keenan, caught up with Klann, and
killed him.
The court rejected the Respondent's assertion that Brady did not
apply, because the “mere” opinion of the initial investigating officers
was inadmissible under the Ohio Rules of Evidence. The court
recognized that the United States Supreme Court “has held that there
is no Brady violation where the prosecution withheld evidence that
would have been inadmissible.” Id., citing Wood v. Bartholomew
(1995), 516 U.S. 1, 6, 116 S.Ct. 7, 113 L.Ed.2d 1. The court noted,
however, that several Ohio appellate districts have construed Evid.R.
701 to permit a police officer to testify about his or her own crime
scene conclusions based on that officer's personal observations. The
court thus concluded that the initial investigating officers would have
been permitted to testify regarding their impressions of how the
victim was killed.
Unlike the reports in D'Ambrosio, Bailey and Fritz's affidavits do not
indicate that their supplemental reports contained undisclosed
information that contradicted the State's theory of how the rapes
occurred or that tended to show that Gillispie was not the perpetrator.
Simply stated, Bailey and Fritz's affidavits contain no facts that
undermine the State's case against Gillispie, which was based
substantially on the eyewitness identifications. Rather, their affidavits
merely established that the detectives believed that they had no
30

credible evidence, while they were conducting the investigation, that
Gillispie was the perpetrator. The detectives' opinions that Gillispie
does not resemble the composites and that he does not fit the profile
of the person who they believed would commit this type of rape
offense do not tend to establish Gillispie's innocence or to undermine
the State's case against him, and the bases for those opinions—a
comparison of Gillispie to the composites and information regarding
Gillispie's background—was known to the defense.
Based on the record before it, the trial court did not err in finding, as
a matter of law and without a hearing, that no Brady violation
occurred with respect to the supplemental reports.
Gillispie’s assignment of error is overruled ... at to the supplemental
reports.
Gillispie, 2009 WL 2197052 at *8-20; Return Att. 5, PageID 1528-47.

Positions of the Parties

Mr. Gillispie argues in support of his sole Ground for Relief that at trial his counsel
attempted to raise the defense that the inexperienced, rookie detective Scott Moore conducted the
investigation of Mr. Gillispie in a reckless and thoughtless manner and that counsel spent a
significant amount of time examining Det. Moore about his actions and judgments in the case and
why he had focused on Mr. Gillispie as opposed to other seemingly more viable suspects. Id.,
PageID 36-37. Mr. Gillispie alleges that as in D’Ambrosio, there were reports that existed but which
the State did not disclose and which completely contradicted Det. Moore’s and the State’s theory
of the case. Id., PageID 37. Mr. Gillispie claims that the original investigating detectives wrote the
reports at issue and that the reports reflect that the original detectives did not consider him (Mr.
Gillispie) a viable suspect. Id. Mr. Gillispie claims further that if his trial counsel had those reports

31

in their possession, they would have had “tremendous ammunition to further impeach the integrity
of Moore’s investigation.” Id.
Mr. Gillispie alleges that information contained in the reports, or that defense counsel
would have learned through further investigation had the reports not been improperly destroyed or
hidden, include:
(1) A psychological profile of the likely perpetrator had been
developed by the department that Det. Moore simply disregarded
when he decided to go after Mr. Gillispie;
(2) A victim report seeing the pants size of the perpetrator, and this
did not match the size of pants that someone with Mr. Gillispie’s
build would have worn;
(3) The person who brought the “tip” regarding Mr. Gillispie to the
attention of the police department had an apparent vendetta against
Gillispie; the experienced detectives in charge at the time knew that
vendetta tips are common and are not to be given much weight;
(4) Mr. Gillispie did not match the physical description of the
perpetrator; and
(5) More experienced detectives in the department—the same
detectives who previously trained and supervised Moore—believed
that it would be improper to use a photo lineup in this case due to the
passage of time (faded memories of victims) and the fact that so
many characteristics of the perpetrator turned on subtle distinctions
such as hair color shade or sound of voice.
Id., PageID 39. Simply stated, Mr. Gillispie’s position is that had his defense counsel known these
things, they would have had “substantial ammunition with which to impeach the caliber and
integrity of Moore’s investigation” and the State’s failure to disclose the reports constituted a Brady
violation that entitles him to habeas relief. Id.
Respondent first argues that Mr. Gillispie’s Petition is barred by the AEDPA statute
of limitation. Doc. 16, PageID 143. Respondent alleges that Mr. Gillispie’s conviction became final
32

upon the expiration of the time of seeking direct review under 28 U.S.C. § 2244(d)(1)(A), the Ohio
Supreme Court’s decision denying leave to appeal was filed August 26, 1993, and therefore, absent
tolling, Mr. Gillispie should have filed his Petition in November, 1994. Id., PageID 143-44.
Respondent points out that although the running of the limitations period may be tolled during the
pendency of a “properly filed” application for state post-conviction relief or other collateral relief
with respect to the pertinent judgment or claims under 28 U.S.C. § 2244(d)(2), there were multiple
occasions after 1994 when there were no state collateral proceedings pending for more than a year.
Id., PageID 144. Respondent argues further that, while Mr. Gillispie did have a post-conviction
proceeding pending from March 30, 1994, to June 14, 1995, when the Ohio Supreme Court denied
jurisdiction to hear Mr. Gillispie’s appeal from the prior courts’ denial of his post-conviction
petition, he filed nothing in the state or federal courts until over two years after the conclusion of
that proceeding, when on September 4, 1997, he filed in the trial court his motion to preserve
evidence. Respondent’s position is that under these facts, Mr. Gillispie’s federal habeas time period
expired on June 14, 1996. Id. Respondent also argues that Mr. Gillispie may not avail himself of
a later AEDPA start date under 28 U.S.C. § 2244(d)(1)(D) because he had access to the factual
predicate underlying his Brady claim in that Det. Fritz, the same former police detective who
allegedly reviewed and filed the documents in question, served as Mr. Gillispie’s investigator from
the time of his initial trial. Id. Respondent argues further that whether or not Mr. Gillispie
questioned Det. Fritz on this subject matter does not change the fact that he could have exercised
such diligence well before February 13, 2008, the date he essentially filed the post-conviction
petition alleging the claim he brings in the instant petition. Id.
Respondent argues in the alternative that regardless of the time bar, Mr. Gillispie’s

33

Petition is without merit. Id., PageID 145. After acknowledging the State’s obligation to disclose
evidence in its possession that is both favorable to the accused and material to guilt or punishment,
Respondent first alleges that there is no Brady violation where a defendant knew or should have
known the essential facts permitting him to take advantage of any exculpatory information or where
the evidence is available from another source because in such case, there is really nothing for the
government to disclose. Id., PageID 150. Respondent alleges further that the reports at issue do not
meet the “materiality” prong of Brady because they would not establish Mr. Gillispie’s innocence
or even undermine the State’s case based on the witnesses’ identification against him and therefore,
as the state court of appeals concluded, there was not a reasonable probability that had the State
disclosed the evidence, the result of the proceeding would have been different. Id., PageID 150-51.
Next, Respondent argues that even if the reports were constitutionally “material,” the
state appellate court erred by rejecting the trial court’s finding that the State did not need to disclose
the supplemental reports because Mr. Gillispie had access to the information via alternative sources,
to wit: Det. Fritz. Id., PageID 160.
In Reply, Mr. Gillispie argues first that Kyles v. Whitley, 514 U.S. 419, 445-46
(1995), and “a line of cases” therefrom, hold that a Brady violation occurs when the State fails to
disclose information or materials that impeach the quality of the police investigation, show that the
police investigation was shoddy or negligent, or cause the jury to question the “thoroughness and
good faith” of the police investigation. Doc. 27, PageID 1899-1900. Mr. Gillispie argues further
that the state courts consistently ignored this sub-component of the Brady doctrine as if it does not
exist. Id., PageID 1900. Mr. Gillispie also argues that part of his trial defense was that Det. Moore,
a rookie detective at the time, acted negligently and recklessly, and that the reports which are the

34

subject of this claim would have supported that theory. Id., PageID 1907.
Mr. Gillispie argues next that he did not have access to the reports at issue simply
because former Det. Fritz worked as an investigator for the defense and therefore the state court of
appeals decided that issue correctly. Id., PageID 1908. Essentially, Mr. Gillispie’s position is that
Det. Fritz had a limited role in his defense as an investigator and did not have access to nor did he
review the entire file. Id., PageID 1914. Mr. Gillispie argues that because he did not review the
discovery which the State produced, Det. Fritz would not have known whether the reports at issue
were missing. Id.
Analysis

The AEDPA includes a one-year period of limitations for habeas petitions brought
by prisoners challenging state court judgments. The statute provides:
(1) A 1–year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of—
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
35

diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
28 U.S.C. § 2244(d).
Mr. Gillispie’s Brady claim relates to newly-discovered evidence. That evidence
includes information in the police file which included, inter alia, a psychological profile of the likely
perpetrator, a victim report with respect to the perpetrator’s pants size, and a report that the
detectives who originally investigated the matter did not consider Mr. Gillispie a viable suspect.
The state courts accepted that the discovery of this new evidence in or around November 2007 was
timely for purposes of his February 23, 2008, petition for post-conviction relief and motion for new
trial (Appx. to Return of Writ, PageID 1140). Therefore this Court accepts the November 2007 date
as the date on which the statute of limitation begins to run under 28 U.S.C. § 2244(d)(1)(D)2.
As noted above, Mr. Gillispie filed a state post-conviction petition with respect to his
Brady claim on February 23, 2008, the trial court denied the petition on August 12, 2008, the court
of appeals affirmed the trial court on July 24, 2009, and on December 2, 2009, the Ohio Supreme
Court denied Mr. Gillispie leave to appeal and dismissed his appeal as not involving any substantial
constitutional question. Mr. Gillispie filed his habeas petition in this Court on December 15, 2009.
Therefore the statute of limitations ran for a total of 128 days, having been tolled during the
pendency of his state exhaustion efforts pursuant to 28 U.S.C. § 2244(d)(2). That State’s limitations

2

Respondent’s analysis has the statute expiring in June, 1996, but that is only two
months after the AEDPA was enacted. No habeas petition filed before April 24, 1997, is barred
by 28 U.S.C. § 2244 because the earliest date on which the statute could begin to run was the
AEDPA’s effective date, April 24, 1996.
36

defense is therefore unavailing.
The State has a duty to produce exculpatory evidence in a criminal case. If the State
withholds evidence and it is material, the conviction must be reversed. Brady v. Maryland, 373 U.S.
83 (1963). "Evidence is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. A 'reasonable
probability' is a probability sufficient to undermine confidence in the outcome." United States v.
Bagley, 473 U.S. 667, 683 (1985). “The proper Brady inquiry is whether the cumulative effect of
the withheld evidence leads us to conclude that there is a reasonable probability that the result of the
trial would have been different.” Apanovitch v. Bobby, 649 F.3d 468, 477 (6th Cir. 2011), citing
Doan v. Carter, 548 F.3d 449, 460 (6th Cir. 2008).
Impeachment evidence as well as exculpatory evidence falls within the rule. Bagley,
473 U.S. at 676. A reviewing court is to assess materiality in light of the evidence actually
presented at trial. Kyles v. Whitley, 514 U.S. 419 (1995). Materiality does not require a showing
by a preponderance that the ultimate result would have been acquittal. Id. at 434 (citations omitted).
Once constitutional error under Bagley is shown, there is no need for further harmless error analysis.
Id. at 435; Castleberry v. Brigano, 349 F.3d 286 (6th Cir. 2003); United States v. Frost, 125 F.3d
346, 383 (6th Cir. 1997). The Bagley test is to be applied to suppressed evidence collectively
considered, and not on an item-by-item basis. Kyles, 514 U.S. at 466.
“[T]here are relevant distinctions between impeachment and exculpatory evidence
for Brady purposes. For instance, "[w]here the undisclosed evidence merely furnishes an additional
basis on which to challenge a witness whose credibility has already been shown to be questionable
or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be

37

cumulative, and hence not material." Jalowiec v. Bradshaw, 757 F.3d 293, 313 (6th Cir. 2011),
quoting Robinson v. Mills, 592 F.3d 730, 736 (6th Cir. 2010) (internal quotation marks omitted).
Brady "is concerned only with cases in which the government possesses information
which the defendant does not, and the government's failure to disclose the information deprives the
defendant of a fair trial." United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994). There is no
Brady violation where the defendant knew or should have known the essential facts permitting him
to take advantage of any exculpatory information or where the evidence is available to the defendant
from another source. United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991). This includes
information that is available from public records, e.g., of a witness’s criminal record. Storey v.
Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011), citing Owens v. Guida, 549 F.3d 399, 418 (6th Cir.
2008). No Brady violation occurs where the government does not disclose witness statements but
the defendant knew that the witness had potentially exculpatory information. United States v. Todd,
920 F.2d 399, 405 (6th Cir. 1990).
There are three essential components of a true Brady violation: the evidence at issue
must be favorable to the accused, either because it is exculpatory or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued. Strickler v. Greene, 527 U.S. 263 (1999):
In Brady, this Court held "that the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution." 373
U.S., at 87, 83 S.Ct. 1194. We have since held that the duty to
disclose such evidence is applicable even though there has been no
request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96
S.Ct. 2392, 49 L.Ed.2d 342 (1976), and that the duty encompasses
impeachment evidence as well as exculpatory evidence, United States
v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
38

Such evidence is material "if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different." Id., at 682, 105 S.Ct. 3375;
see also Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995). Moreover, the rule encompasses evidence
"known only to police investigators and not to the prosecutor." Id., at
438, 115 S.Ct. 1555. In order to comply with Brady, therefore, "the
individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government's behalf in this case,
including the police." Kyles, 514 U.S., at 437, 115 S.Ct. 1555.
These cases, together with earlier cases condemning the knowing use
of perjured testimony, illustrate the special role played by the
American prosecutor in the search for truth in criminal trials. Within
the federal system, for example, we have said that the United States
Attorney is "the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done." Berger v. United States,
295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).
Id. at 280-81; accord, Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002).
To prevail on a Brady claim, the petitioner must show that the withheld exculpatory
evidence was material; that is, it “could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.” Van Hook v. Bobby, 661 F.3d 264, 267 (6th Cir.
2011), quoting, Kyles, 514 U.S. at 435.
This Court owes deference to the state court’s decision unless it was “contrary to, or
involved an unreasonable application of, clearly established” Supreme Court precedent (28 U.S.C.
§ 2254(d)(1)) or it was “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding” (28 U.S.C. § 2254(d)(2)).
First, this Court agrees with the state court that the State was required, pursuant to
Brady, to disclose the material at issue. However, in light of the total record, the Court finds that

39

it cannot defer to the state courts’ materiality conclusion.
Briefly stated, the evidence in this case established that the crimes for which Mr.
Gillispie was tried and convicted occurred in August 1988 and Mr. Gillispie was arrested and
charged in the fall of 1990. In late 1989 or early 1990, during the initial investigation, detectives
Fritz and Bailey considered Mr. Gillispie as a suspect after Rick Wolfe brought to the detectives a
picture of Mr. Gillispie whom Mr. Wolfe had just terminated as an employee at General Motors
(GM). The investigating detectives noted that the “Wanted” poster for the case had been posted for
almost two years at GM, but that Mr. Wolfe did not bring Mr. Gillispie to the detectives’ attention
until after he (Mr. Wolfe) had a fight with Mr. Gillispie and terminated his employment.
Nevertheless, the original investigating detectives eliminated Mr. Gillispie as a suspect because he
did not fit the physical description of the rapist which the victims had given nor did he fit the profile
of the rapist. Eventually, Detective Fritz informed Mr. Wolfe that he and Det. Bailey did not
consider Mr. Gillispie a good suspect and that there were not going to be charges brought against
him. At some point after Dets. Fritz and Bailey had eliminated Mr. Gillispie as a suspect, Mr. Wolfe
again approached the detectives about the rape case and brought several photographs to them.
Because the investigators had already eliminated Mr. Gillispie as a suspect, Det. Fritz just put the
photos into the case file. Det. Bailey prepared supplemental reports describing the events involving
Mr. Wolfe, their investigation of Mr. Gillispie, their elimination of Mr. Gillispie as a suspect, and
their reasons therefor.
When Det. Moore, who had recently been promoted to detective, took over the
investigations in June 1990 almost two years after the crimes were committed, he contacted the
victims and presented a photo spread to them. The photo of Mr. Gillispie was closer and larger than

40

the other photos in the spread and, unlike the other photos, had a matte finish. The victims identified
Mr. Gillispie.
There was, of course, absolutely no physical evidence that connected Mr. Gillispie
to the crimes. However, the parties agree that at the trial, the three victims each testified that Mr.
Gillispie was the person who committed the crimes. Nevertheless, at some point in deliberations
the jury was deadlocked eight to four in favor of acquittal. See Gillespie [sic], 1993 WL 10927 at
*3. It was not until the trial court delivered an Allen charge to the jury that it convicted Mr. Gillispie
That fact sheds light on the relative weakness of the case the State presented to the jury.
The jury never heard testimony about the original investigating officers, Dets. Fritz
and Bailey, eliminating Mr. Gillispie as a suspect nor the reasons why they eliminated him. While
Dets. Fritz’s and Bailey’s opinions as to why Mr. Gillispie was not a good suspect certainly do not
directly go to the issue of Mr. Gillispie’s guilt or innocence, they clearly go to the quality of the
investigation which took place subsequent to Dets. Fritz’s and Bailey’s investigation. The withheld
information is material which would have allowed Mr. Gillispie’s counsel to impeach Det. Moore
with respect to his investigation of the crimes for which Mr. Gillispie was tried and convicted. Cf,
D’Ambrosio v. Bagley, No. 1:00-CV-2521, 2006 WL 1169926 (N.D.Ohio Mar. 24, 2006), aff’d, 527
F.3d 489 (6th Cir. 2008). In view of the State’s case, that information “could reasonably be taken
to put the whole case in such a different light as to undermine confidence in the verdict.” VanHook,
supra.
“Materiality” for purposes of Brady analysis is a mixed question of law and fact.
United States v. Phillip, 948 F.2d 241 (6th Cir. 1991). The state courts’ determination that the
evidence in question is not material is both an unreasonable determination of the facts in light of the

41

evidence presented to those courts and an objectively unreasonable application of Brady and its
progeny.
This Court concludes that Mr. Gillispie’s Ground for Relief 1 is meritorious.
Specifically, the Court finds that Mr. Gillispie was denied his right to due process pursuant to the
Fourteenth Amendment as interpreted in Brady, to be apprised of all material exculpatory and
impeachment information which the State holds.
Accordingly, the Petition for Writ of Habeas Corpus is granted. The State of Ohio
is ordered to release Petitioner from custody unless he is again convicted at a trial commencing not
later than July 1, 2012.
December 15, 2011.
s/ Michael R. Merz
United States Magistrate Judge
J:\Gillispie_merits.wpd

42