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Judge declares Ohio military vet who spent two decades on death row ’wrongfully imprisoned’

A Cuyahoga County judge can hear the case of former death row inmate Joe D'Ambrosio, who argues that he was wrongfully imprisoned for 20 years after his conviction was overturned. (Gus Chan, The Plain Dealer/TNS)

A judge in Cuyahoga County declared that former death row inmate Joe D’Ambrosio, who spent two decades on death row, was wrongfully imprisoned due to prosecutorial misconduct at his 1989 murder trial.

The designation is one in a long line of legal procedures that now allows D’Ambrosio to seek money from the state for his time behind bars.

The order handed down Monday by Common Pleas Court Judge Michael Russo marks the latest victory in D’Ambrosio’s 30-year legal crusade to clear his name in the grisly 1988 murder of Tony Klann.

A judge declared the 58-year-old wrongfully imprisoned in 2012 only to have the Ohio Supreme Court strip the designation from him two years later due to an awkwardly worded law that lawmakers have since changed. D’Ambrosio expressed guarded optimism when reached by phone Wednesday.

“It looks good, but I’m not getting excited because I’ve played this roller coaster before,” D’Ambrosio said.

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The Cuyahoga County Prosecutor’s Office, which fought D’Ambrosio’s efforts under three different elected prosecutors and argued that the state’s new wrongful imprisonment law was unconstitutional, has 30 days to decide whether to appeal Russo’s decision to the 8th District Court of Appeals.

Ryan Miday, a spokesman for County Prosecutor Michael O’Malley, said the office would evaluate the decision and declined to comment.

D’Ambrosio’s case was among several high-profile cases that triggered reforms to the way prosecutors and defense attorneys exchange evidence before a trial. It also served as the focus of a 2014 CNN documentary and brought his name into the national conversation among those advocating an end to the death penalty.

D’Ambrosio’s lawyer, Terry Gilbert of the Friedman and Gilbert law firm, said he hopes Monday’s decision from Russo marks the end of the legal battle between D’Ambrosio and the Cuyahoga County Prosecutor’s Office.

“He lost a big part of his adult life, living under very difficult conditions under death row. He was days away from being executed, and had to suffer the pain and trauma of living day-to-day under those conditions,” Gilbert said. “If anybody deserves some financial compensation, it’s Joe D’Ambrosio.”

The conviction

D’Ambrosio, then 26, was a military veteran with a clean record when police accused him and Thomas Michael Keenan of slitting Klann’s throat at Doan Creek in what is now Cleveland’s Rockefeller Park. A third man, Edward Espinoza, struck a deal with prosecutors and agreed to plead guilty to lesser charges in exchange for his testimony against D’Ambrosio and Keenan. Espinoza’s testimony that he participated in the killing with Keenan and D’Ambrosio was the linchpin in the state’s case that included no physical evidence. A three-judge panel convicted D’Ambrosio, and a jury in a separate trial convicted Keenan. Both men received the death penalty.

Espinoza served 12 years after pleading guilty to manslaughter and other crimes. He left prison in 2001.

Then assistant Cuyahoga County prosecutor Carmen Marino was the lead prosecutor in the case. Bill Mason, who went on to be elected County Prosecutor from 2002 to 2012, sat second chair.

Keenan’s conviction was overturned in 1992 after appeals court judges found Marino made inflammatory and inappropriate comments and actions during the closing argument, including taking a bowie knife and stabbing it into a wooden table in the courtroom. He was convicted again and again received the death penalty.

Divine intervention

Courts repeatedly upheld D’Ambrosio’s conviction until 2006, after a prison chaplain and former nurse with a law degree agreed to look at his case. The chaplain discovered several critical pieces of evidence in the Cleveland police’s, county prosecutor’s and county coroner’s case files never saw the light at D’Ambrosio’s trial.

The records included police reports where detectives concluded Klann couldn’t have been killed at Doan Creek as Espinoza said. Another report showed the man who originally identified D’Ambrosio as a suspect in Klann’s death was accused of rape in a case where Klann was set to testify, thereby giving him the motive to kill Klann, according to court records.

The Ohio Innocence Project and attorneys from the high-powered Jones-Day law firm took D’Ambrosio’s case after the Rev. Neil Kookoothe’s discovery. The lawyers used the evidence to convince U.S. District Court Judge Kathleen O’Malley to call a hearing that resulted in the judge overturning D’Ambrosio’s conviction and ordering a new trial in a blistering opinion that also called out Marino for withholding evidence in several other cases during his career.

As a new team of prosecutors prepared to prosecute D’Ambrosio in 2009, Common Pleas Court Judge Joan Synenberg found the office again withheld evidence and information, including that Espinoza, the key witness, had died.

Judge O’Malley then barred the state from trying D’Ambrosio again for murder and ordered him released from prison. An appeals court upheld the decision and the U.S. Supreme Court declined to take up the case.

The case against Keenan remained pending until he pleaded guilty in February 2016 to aggravated burglary and kidnapping charges in a deal that allowed him to leave prison.

Wrongful imprisonment quest

D’Ambrosio’s quest to declare himself wrongfully imprisoned has also been turbulent. State law at the time allowed people to be declared wrongfully imprisoned through two avenues – if a procedural error resulted in their release, or if they could prove they were innocent of the crime committed. Judge Michael Russo in 2012 granted D’Ambrosio’s request in 2012 under the first theory. The prosecutor’s office, then under Timothy J. McGinty, appealed the decision until it reached the Ohio Supreme Court in 2014. The justices overturned Russo’s finding based on a recent opinion where the court held that the wording of the state’s wrongful imprisonment law required the procedural error to have occurred after the defendant was sentenced, and not during the trial.

State lawmakers in 2019 passed bipartisan legislation amending the statute so that anyone who imprisoned for any procedural error, including prosecutors’ withholding evidence, was eligible for a declaration of wrongfully imprisoned. The lawmakers also made the law apply retroactively, meaning anyone who denied that designation under the old law could file a new application.

The Ohio Prosecuting Attorney’s Association opposed the legislation. Assistant Cuyahoga County Prosecutor Brian Gutkowski testified before the Ohio legislature and penned an op-ed against the legislation arguing that only those who can prove their innocence should get reimbursed for their time behind bars.

D’Ambrosio refiled his wrongful imprisonment application under the 2019 law and the prosecutor’s office again opposed it by arguing in part that the 2019 law change was unconstitutional because it applied retroactively.

Russo rejected the state’s arguments in opposition and granted D’Ambrosio summary judgment declaring him wrongfully imprisoned.

D’Ambrosio said if he ever receives money from the state, it will help him retire. He was unable to work and pay into Social Security or a retirement account while he was in prison, so he has almost no savings. Employers are hesitant to hire someone sent to death row, even though a court threw out his conviction. He said he works for Kookoothe’s church in North Olmsted doing maintenance and odd-jobs and travels the world speaking out against the death penalty.

“The money will never give me back my life,” D’Ambrosio said. “I’m a penny pincher. I can make a penny cry, I can squeeze it so hard. But no matter how much I save, it isn’t going to be enough to retire on. I’m 58 years old. My back’s messed up. I need something to retire on.”

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