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As Police Officer Robert Jorg's manslaughter trial approached in late October 2001, prosecutors got a gift: a witness came forward volunteering information.
The evidence was so compelling that when Jorg's lawyer heard about it, he told the judge it was "critical" and would require a change in defense strategy.
But the jury never got to hear the surprise witness; prosecutors didn't call her, a fact that has angered the family of the late Roger Owensby Jr. in the year since a deadlocked jury ended Jorg's trial.
What the Owensby family didn't know was that there were actually two witnesses who came forward. But then, even the judge didn't know that; prosecutors apparently never told him about a second witness who surfaced.
The testimony of the two witnesses could have proven explosive. They said Jorg told them what happened the night Owensby Jr., 29, died in police custody.
Transcripts of conversations in the judge's chambers seem to indicate prosecutors misstated not only the number of witnesses but also the manner and the timing by which they were found.
For almost two years Roger Sr. and Brenda Owensby have agonized over the loss of their son, a Persian Gulf War veteran who died in police custody after leaving the Sunoco Mini-Mart in Bond Hill. The Hamilton County Coroner ruled the death a homicide caused by mechanical asphyxiation — medical terminology for suffocation.
Owensby, an unarmed man, died when Jorg allegedly knelt on his back, according to the autopsy.
One year ago a jury in Hamilton County Common Pleas Court acquitted Jorg of assault and deadlocked on involuntary manslaughter. Another jury acquitted Officer Patrick Caton of assault.
Dissatisfied with prosecutors' handling of the trials, the Owensbys have succeeded in getting the FBI to investigate their son's death. But now they also want a federal investigation of the way county prosecutors handled the Jorg case.
'We were looking for him'
Police ambush. The concept is so troubling that no one has asked — let alone answered — whether that's what happened to Owensby Jr. Did Cincinnati Police officers lie in wait to administer what one cop calls "street justice" Nov. 7, 2000, the night Owensby died? Police dispatch records, interviews with witnesses and videotapes of Owensby and police officers prior to the confrontation hint at a scenario even more troubling than the allegations of excessive force in Owensby's arrest.
But most troubling of all are accusations the Hamilton County Prosecutor's Office sat on evidence against a cop charged in Owensby's death and misled the judge about it. A CityBeat investigation has turned up:
· Multiple relevant witnesses never called to testify at trial,
· Conflicting testimony among officers that never was explored at trial, and
· Conduct by prosecutors that led to the weakening of the criminal case against Jorg.
Jorg's trial began Monday, Oct. 22, 2001, 11 months after Owensby's death. The trial was postponed in the wake of the April 2001 uprising in Over-the-Rhine, following the death of another unarmed African American at the hands of police.
On Oct. 19, three days before the trial began, state Corrections Officer Renee Hinton contacted Prosecutor Michael Allen's office, saying she had information from Jorg himself about events on Nov. 7, 2000.
On Dec. 12, 2000, five weeks after Owensby's death, Hinton and her friend Karen Harrison-Tucker were Christmas shopping at T.J. Maxx in Western Hills when they spotted Jorg in the men's department.
The two women approached Jorg. Hinton called his name. Jorg seemed not to recognize her.
"It's Hinton, from the academy," she said.
Jorg then embraced her. Hinton and Jorg attended the Cincinnati Police Academy together from January through May 1996. Hinton now works as a guard at River City Correctional Center on Colerain Avenue. Her friend, Harrison-Tucker, is a health care worker and former lab technician at River City.
"What's been going on with you?" Hinton says she asked Jorg.
"Have you been watching TV?" he replied, according to Hinton.
"Yes," Hinton said. "What happened?"
Jorg's answer, as recounted by the two women, was telling.
"A week prior [Owensby] beat up my partner," Jorg said. "We were looking for him."
Police reports and officers' testimony after Owensby's death detailed an incident involving Officer David Hunter and a suspect — possibly Owensby Jr. — one to three weeks prior. Jorg and Hunter claim the suspect blew a drug bust, got into a scuffle with Hunter and ran.
Jorg told the women he'd been angry that Owensby had gotten away, Hinton says.
Hinton asked how he knew Owensby was in the area the night of Nov. 7. He told her he "got a call that he was up there." Jorg was not coy about describing what happened to Owensby.
"He was talking to me like we were still in the academy together," she says.
Jorg reminded Hinton what they had learned at the police academy, she says.
"We were trained that if someone does something to your partner, you want to kick their ass," she says. "His demeanor was such that 'We got our man' and they were just doing their job. At that point I had to remind Jorg that a human life had been taken. He did not seem to have any remorse at all about the event."
As the two women left the store, they were struck by the 20-minute conversation they had just had with Jorg. But 10 months passed before the women contacted anyone about the encounter.
"It just did not sit well with us," Harrison-Tucker says. "We never stopped thinking or talking about it. When it was in the news more, we decided that someone needed to be called."
Hinton called the county prosecutor's office, talked to a secretary and left a message that she and another woman had information pertaining to the Jorg case.
Harrison-Tucker received a call from William Fletcher, the chief investigator in the prosecutor's office. Fletcher took her statement over the phone. The conversation was very brief, Harrison-Tucker says.
Fletcher asked her if Jorg had said, "We were looking for him."
"Yes," she replied.
Fletcher said he would call her back. He never did, according to Harrison-Tucker.
The prosecutor's office called Hinton at work Monday, Oct. 22. Later that afternoon an investigator arrived at River City Correctional Center to tape Hinton's statement. She told her story in the presence of two of her supervisors, Arnold Weathers, security chief, and Ron Buchanan, assistant security chief.
The investigator remembered Hinton from the academy. He asked how she remembered the date of the encounter with Jorg. Hinton said her friend, Harrison-Tucker, had been scheduled for surgery the next day, Dec. 13.
The investigator also asked about Jorg's demeanor. Did Jorg say he had been looking for Owensby? Yes, Hinton said. The investigator told Hinton that if the story stood, she would be contacted to testify at the trial the next day.
A short time later that afternoon Hinton received another phone call, asking her to meet with Assistant Prosecutor Mark Piepmeier the next morning, Tuesday, Oct. 23. She agreed. She also decided to call Owensby's civil attorney, John Helbling, whose name she had read in a newspaper.
Hinton left a voice message on Helbling's phone at 3:11 p.m. Monday, Oct. 22. He did not return her call until the next morning, sometime between 7:30 and 8 a.m.
Hinton's meeting Tuesday morning with Piepmeier was very brief. He did not invite her into his office to speak; they sat on a chair in the reception area. He did not record the conversation or have a court reporter present. He had a pad of paper but wrote nothing down.
Hinton says that as she relayed her story Piepmeier continually cut her off. She told him Jorg had stated police were looking for Owensby and that someone had called him to Sam's Carry Out in Bond Hill after spotting Owensby. Piepmeier's response was, "Jorg is a good guy."
"But he had no remorse," Hinton replied.
Hinton says she was stunned and frustrated by Piepmeier's attitude. Piepmeier asked why Hinton had come forward.
"My mother taught me to tell the truth," she said. "I needed to lift this off of me. I come down here to tell him that Jorg was looking for Owensby, he was called by his partner to come to the store because Owensby was there and he had no remorse. Piepmeier keeps saying that he is a good guy."
Asked if she were available to testify, Hinton said yes. She never heard from Piepmeier again.
'He lied in our face'
Before the trial resumed that morning, Tuesday, Oct. 23, 2001, Common Pleas Judge Thomas C. Nurre convened a discussion in chambers with Piepmeier, Assistant Prosecutor Tom Longano and Scott Croswell, Jorg's attorney.
Piepmeier erroneously told Nurre he had just received a phone call from the Owensby family's attorney, John Helbling, about a new witness coming forward. In fact, two witnesses had come forward, both Hinton and Harrison-Tucker. But the prosecutors mentioned only Hinton. What's more, they told the judge that Hinton had just materialized.
"So we just found this out this morning," Piepmeier said. "I don't know that we could use the person, but we're checking it out."
Longano, too, told the judge the witness was a surprise — even though investigators had spoken to both women a day earlier.
"We're going to follow up on it this afternoon," Longano said. "But we wanted everyone to know as soon as possible."
The following day, before Jorg's trial resumed, came another discussion in chambers among Nurre, Piepmeier, Longano and Croswell.
Piepmeier said he had gotten Hinton's phone number from Helbling via Nurre's staff. The two prosecutors then claimed that the first conversation with Hinton came Wednesday morning, when in fact contact had been made with her prior to the trial even starting.
The prosecutors asked to supplement their discovery with this new witness. Because the trial had already begun, defense attorney Croswell objected. But Croswell offered to go to a mistrial and start over so that he could prepare his case with the new evidence.
"No one can dispute that it is a very critical piece of evidence either way," Croswell said.
Longano and Piepmeier said they had to consult with their boss; only Prosecutor Mike Allen could make a decision as to what to do.
Returning to the judge's chambers, Longano and Piepmeier said they had met with Allen and the Owensbys.
"And it is our feeling that we would like to continue on with the trial and not use this particular witness in our case in chief," Longano said. "We're not going to use her in rebuttal at all. We will not mention the fact that she exists."
Indeed prosecutors decided to keep Hinton's evidence from the public.
"We are not telling the press anything," Longano said.
Efforts by CityBeat to interview Allen, Piepmeier and Longano were unsuccessful.
The Owensbys give a different account of their meeting with prosecutors. They wanted to stop the proceedings with a mistrial and start over so Hinton could testify. They say Allen promised the Owensbys that if the trial ended in a hung jury, he would re-try Jorg.
"Mike Allen promised he would re-try Jorg and bring in the new witness," says Roger Owensby Sr. "He did not say anything about the breakdown of how the jury might vote. He lied in our face."
Adding to the Owensbys' anger is the fact that they first learned from CityBeat that Hinton wasn't alone; they say Allen never told them there were two witnesses — just as the assistant prosecutors apparently never told the judge.
"We are shocked that there are two," Owensby Sr. says. "All this time, since day two of the trial, we only knew that one person came forward. And now a whole year later to find out that there are two! One can verify each other's story. It goes back to the beginning of the cover-up, that they try to protect these officers for what they did to our son. It hurts. What do they think we are, sub-human or something? It hurts very deeply."
Dead men don't walk
Close viewing of the surveillance tape from the Sunoco store where Owensby died reveals the presence of many more available witnesses, none of them called by prosecutors to testify.
Nov. 7, 2000, was a warm night. The double doors to the Sunoco Mini-Mart were propped open for patrons. One of the four cameras that survey the store is in a position to view the counter, pointing out the front door with the sidewalk in view.
The videotape acquired by CityBeat begins at 7:10 p.m. Roger Owensby Jr. is in line to purchase a soft drink and two cigars. At 7:26 p.m. Jorg is seen walking into view at the front door — his nightstick already in hand. At 7:30 p.m. Owensby walks toward the exit to leave but is stopped by Jorg.
At 7:33 p.m. Owensby sets his drink on the ground and complies with a search that lasts 15 minutes, until 7:48 p.m., when he decides to bolt.
Two credible witnesses are seen in the tape — Saber Jamil Ayyad, part owner of the store, and Wessam Khalil, a clerk. Both had a front-row seat to the stop, the search and the tragedy that ensued. Yet they never got to tell their story in court. They were taken to the Cincinnati Police Criminal Investigations Section (CIS) for multiple interviews by homicide investigators, but the prosecutors never used them.
Ayyad said he witnessed Owensby being searched. In his interview with CIS, he said police officers told him at the store that night that they found nothing.
"Then I seen the officers was talking to this guy," Ayyad said. "Right. They search him and everything, that he got nothing on him."
But a few days later Ayyad saw a news report saying police had found drugs on Owensby. Ayyad told homicide investigators that Owensby was searched and nothing was found. He also stated in the interview that one of the cigars Owensby had purchased fell out of his right pants pocket as officers were searching him.
Ayyad said he could not see Owensby lying on the ground because so many officers had piled on top of him. Owensby did not walk to the police car, Ayyad told investigators; his feet were dragging under him.
Close scrutiny of Ayyad's statement to CIS — released to the Owensby family's attorneys in connection with a wrongful death lawsuit against the city — shows two pages are missing. Prosecutors failed to turn over other evidence, as well, according to attorney Mark Tillar. The attorneys first received copies of the videotapes, for example, from CityBeat. Attorneys also received no audio tapes, in particular the tape of Hinton's statement to CIS.
Ayyad's statements contradict officers' testimony and prosecutors' statements during the trials of Jorg and Caton.
In court, all parties treated Owensby's search as if it were a pat-down — merely touching the outside of Owensby's clothing to check for weapons. During closing arguments in Jorg's trial, Longano referred to the search as a "little bit of a pat-down."
But the search appears to have been anything but "a little bit." The surveillance tape shows the search lasting from 7:33 p.m. to 7:48 p.m. Then police and Owensby run out of camera view. The length of the search, coupled with Ayyad's observation that a cigar fell from Owensby's right pants pocket, indicates the search was anything but "a little bit." It might not even have been legal: Owensby wasn't wanted on any charge and officers had no probable cause that he was committing a crime.
Homicide investigators also interviewed Khalil.
"I seen a bunch of people, a bunch of police officers, on the top of something," Khalil told them. He describes the altercation as "wrestling" and "shoving-wise like pushing, like press him on the ground."
Police reported two rocks of crack cocaine and a bag of marijuana were found on Owensby the night he died, but there is official confusion on that point. On Nov. 18, 2000, The Cincinnati Post quoted Chief Thomas Streicher saying he was unaware of drugs at the scene.
"I don't know what occurred," Streicher told The Post. "This giant mystery just keeps rolling on. If the police submitted it, I don't know what the hell happened. I don't know about the substance or where it came from. This is brand new."
In fact, no drugs were ever introduced as evidence at trial. The Owensbys don't believe their son had drugs on him. They think the drugs were planted later as part of a cover-up. Owensby Sr. asks why the drugs had not been confiscated during the lengthy search the store clerk witnessed.
"How does a cigar fall out of pants pockets during the search, but nothing else?" Owensby Sr. says.
The Owensbys have spoken several times with Ayyad since their son's death. Ayyad says he badly wanted to testify. He says he hasn't seen anything like this since he lived in Palestine. Ayyad has broken down in tears while speaking to the Owensbys about watching their son die. He wanted to tell what he saw. He wanted to tell the truth.
Prosecutors did subpoena Ayyad. He sat in the courthouse hallway for several days, then was released from the subpoena before he got a chance to talk.
Ticket books and paybacks
Police officers' testimony as to why and when they were in the area of Sam's Carry Out, adjacent to the Sunoco Mini-Mart, has its own kinks. Officers Jorg, Caton and Hunter testified they had been summoned via mobile data transmission because officers Darren Sellers and Alex Hasse needed an NTA (notice to appear) ticket book.
Sellers and Hasse had made a minor drug arrest at 2092 Seymour Ave., Sam's Carry Out. Jorg and Caton arrived at the scene in one car, Hunter in another. The five officers were parked in back of Sam's, talking about a suspect who had earlier gotten away from Hunter.
Coincidentally, just then a man they thought matched the description of the suspect walked by them and into the Sunoco Mini-Mart.
In both Jorg's and Caton's trials, officers described the NTA ticket book issue. The details are significant because they explain why so many cops were at the scene.
Hunter testified Oct. 25, 2001, in Caton's trial.
"I brought my ticket book up," he said. "I noticed that there were some ticket books already on the hood of the police cruiser. Then I asked, 'What are you guys doing?' They had somebody in the car. He was still in the process of being cited."
Sellers testified Oct. 26 in Caton's trial.
"At the time we didn't have an NTA book, which is a minor misdemeanor citation book," he said. "We didn't have any, and that's when we called for officers Jorg and Caton to bring us one."
Officer Alex Hasse testified Oct. 26 that he was in the process of writing a citation when the suspect the officers had been discussing walked by.
"I was in the vehicle writing the ticket, apparently, when he (Owensby) walked by," Hasse said.
But close review of the Homicide Unit's report calls the officers' testimony into serious question. The person cited by Hasse and Sellers was Steven Williams. He was charged with misdemeanor drug abuse. In testimony, the officers claimed that this took place sometime after 7 p.m. — about the time they saw Owensby walk by them. But Hasse's ticket citing Williams was written at 5:35 p.m. — some 90 minutes before Owensby entered the Sunoco Mini-Mart.
If the ticket had already been written, why would Hasse and Sellers call for officers to bring a citation book? Were Jorg, Caton and Hunter perhaps called for another purpose — or, more to the point, to deal with another person?
That discrepancy warrants closer examination, according to Clarence Williams, police chief of Riviera Beach, Fla., a former Cincinnati officer and former president of the Sentinels Police Association. The discrepancies in officers' testimony and the time the ticket was issued would definitely raise attention if he were investigating the case, Williams says.
"Officers usually don't have hour and a half gaps in times issuing those things," he says.
Since the conclusion of Jorg's trial, Officer Victor Spellen has admitted he lied under oath about Jorg's description of the type of "head wrap" he used on Owensby. Spellen says he lied out of loyalty to a fellow cop; Jorg was his field-training officer. Spellen is now on administrative leave.
The other officers' conflicting accounts of their activities the night Owensby died, however, received no attention at trial.
Did police target the wrong man?
The suspect in the earlier scuffle described by Jorg and Hunter involved a man known to them only as "L.A." The suspect had blown a drug bust and ran. Hunter chased L.A., grabbing hold of his hooded sweatshirt, but the man ripped out of the shirt and got away.
An abundance of statements on videotape and audio tape and in court testimony describe the scuffle between Hunter and L.A.
Recollection of the date of the scuffle varies widely. Sept. 27, 2000, was often mentioned in the Jorg and Caton trials. Piepmeier refers to the event as "about a month, month and a half" prior to Nov. 7, 2000. Defense attorney Croswell referred to the scuffle as two to three weeks before Nov. 7. Sellers testified that Jorg had said it happened a few days before Nov. 7. Sgt. William Watts testified that Jorg told him it happened one week before Nov. 7. Jorg himself stated in a taped interview with police internal investigations that the altercation happened two weeks prior to Nov. 7. The complaint in Jorg's lawsuit against the city, claiming he was made a scapegoat in Owensby's death, refers to the altercation.
"On or about Oct. 27, 2000, Cincinnati Police Officer David Hunter was assaulted by a person known to him as 'L.A.,' " the complaint says.
If, in fact, the incident occurred three weeks before Nov. 7, Owensby could not have been involved. He was incarcerated at the Queensgate Correctional Center beginning Oct. 13 on drug and assault charges that were later dismissed.
Here, too, the official record is in dispute. The sheriff's office says Owensby was released Oct. 23. But his parents insist Owensby stayed in jail until Nov. 2, five days before he was killed. They say they remember their granddaughter being upset that her father was in jail during Halloween.
"The family believes the records are in error," Tillar says. "Apparently there's some error in the records, which we can't explain."
But the dates given for the alleged assault — for which no arrest warrant was issued and no known police report exists — are not the only problem with Jorg's and Hunter's account of the confrontation with L.A. Hunter testified he wasn't sure Owensby was the suspect who had escaped, because Owensby had facial hair when he was spotted Nov. 7 at the Sunoco Mini-Mart. L.A., however, was clean-shaven, according to Hunter. Jorg also referred to L.A.'s lack of facial hair. Caton made reference to Hunter having difficulty recognizing Owensby because of his facial hair.
Both Roger Sr. and Brenda Owensby say their son had facial hair for close to a year. Owensby Sr. says his son started growing his hair and beard after leaving the U.S. Army a year earlier.
Mark Gissiner, director of the Office of Municipal Investigations (OMI), hired Dr. Cyril Wecht, coroner of Allegheny County, Pa., to review the cause and manner of Owensby Jr.'s death.
"Mechanical asphyxia is a difficult area," Gissiner says. "Dr. Wecht explains things well in layman's terms."
He asserts that hiring Wecht for a second opinion is not a reflection on the Hamilton County Coroner's Office or a reaction to Jorg's lawsuit against city and county officials.
"Hopefully we can get some answers as to why Roger Owensby died," Gissiner says. "My job is to determine whether officers committed any administrative or procedural violations."
OMI has hired Wecht in the past to review deaths in police custody. Jermaine Hill died in custody Oct. 4, 2000, five weeks prior to Owensby's death. The Hamilton County Coroner ruled the cause of death "intoxication by the combined effects of cocaine and alcohol." Hill apparently swallowed crack cocaine while being chased by police.
Wecht's review supported the county coroner's finding, as he has in the case of Owensby's death.
The Owensby family described themselves as "happy and pleased" when Wecht's report was released last month. Roger Owensby Jr. left behind an 11-year-old daughter, Myiesha. She called her grandparents the day Wecht's report was released and asked, "Grandma, did you see the news? Grandma, the next time you go to court, I want to go."
Brenda Owensby says her granddaughter isn't ready to talk about her father yet but wants to be in court next time there is a hearing pertaining to his death.
Autopsy reviews by Wecht aren't the only thing Cincinnati has in common with Pittsburgh. Five years ago that city entered into a consent decree with the U.S. Department of Justice. The catalyst was eerily similar to Owensby's death.
On Oct. 12, 1995, a 31-year-old black businessman named Jonny Gammage died after police pulled over his luxury sedan for "tapping his brakes." Four more officers arrived on the scene, and a struggle ensued.
Officers wrestled Gammage to the ground and restrained him on the pavement, where he died. Wecht ruled the cause of death was compression of the neck and chest.
A six-member coroner's jury recommended that all five officers be charged with homicide. The prosecuting attorney decided to charge three of the five with involuntary manslaughter. One was acquitted. After mistrials, charges were dropped against the other two.
In February 1999, the Justice Department said it wouldn't file civil rights charges in Gammage's death. Federal prosecutors said they couldn't prove five white police officers had used unreasonable force to subdue the black businessman.
Former U.S. Attorney Sharon Zealey says the standard to indict on federal civil rights charges is extremely high.
"It involves malice aforethought, a malicious intent to violate a person's civil rights," she says.
Federal investigators are not bound by the local jurisdiction's investigation. The Owensbys hope that because of new information — more witnesses, proof of conflicting testimony by police — an honest investigation will take place.
"We have already met with seven FBI agents from Washington, D.C., but they won't do anything until the city releases its report," Owensby Sr. says.
The Owensbys also want the county prosecutor's office investigated for misconduct.
"When the top law enforcement officer will not act in good faith, who can you complain to?" Owensby Sr. says.
The Owensbys have filed a wrongful death suit in federal court. U.S. District Judge S. Arthur Spiegel has encouraged the Owensbys and the city to settle the case. The next hearing is scheduled for mid-October. The Owensbys say they're going to trial.
"We have nothing to lose," Owensby Sr. says. "We have already lost our son."
Brenda Owensby remembers the look on her son's face when she viewed his body at University Hospital.
"When we looked at him, I said, 'Roger, he is scared,' " she says. "He just had a scared look on his face, like it was frozen in fear and pain. You know your child. He suffered. Part of us just left with him." ©
