1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF OHIO 3 JOHN G. SPIRKO, JR., ) 4 Plaintiff, ) 5 vs. ) CASE NO. 6 MARGARET BRADSHAW, WARDEN, ) 3:95 CV 7209 7 Defendant. ) 8 - - - 9 Deposition of PAUL M. HARTMAN, a 10 witness herein, called by the Plaintiff for 11 Examination pursuant to the Federal Rules of 12 Civil Procedure, taken before me, the 13 undersigned, Binnie Purser Martino, a Registered 14 Diplomate Reporter, Certified Realtime Reporter 15 and Notary Public in and for the State of Ohio, 16 pursuant to Notice and agreement of counsel at 17 the offices of Court Reporters of Akron, Canton 18 and Cleveland, 40 East Buchtel Avenue, Akron, 19 Ohio, on Thursday, the 16th day of June, 2005, 20 commencing at 9:35 o'clock a.m. 21 22 23 24 25 2 1 APPEARANCES: 2 3 On Behalf of the Plaintiff: 4 PILLSBURY WINTHROP SHAW PITTMAN LLP 5 BY: Thomas C. Hill, Attorney at Law 6 Alvin Dunn, Attorney at Law 7 Ashley McDonald Delja 8 Attorney at Law 9 2300 N Street, NW 10 Washington, DC 20037 11 202/663-8000 12 13 On Behalf of the Defendants: 14 STATE OF OHIO 15 OFFICE OF THE ATTORNEY GENERAL 16 BY: Timothy D. Prichard 17 Senior Deputy Attorney General 18 Charles L. Wille 19 Assistant Attorney General 20 30 East Broad Street, 23rd Floor 21 Columbus, Ohio 43215 22 614/728-7055 23 24 - - - 25 3 1 I N D E X 2 3 4 EXAMINATION (By Mr. Hill) 4 5 EXAMINATION (By Mr. Prichard) 279 6 FURTHER EXAMINATION (By Mr. Hill) 373 7 FURTHER EXAMINATION (By Mr. Prichard) 391 8 FURTHER EXAMINATION (By Mr. Hill) 395 9 FURTHER EXAMINATION (By Mr. Prichard) 397 10 FURTHER EXAMINATION (By Mr. Hill) 397 11 12 13 Plaintiff's Exhibit 90 6 14 Plaintiff's Exhibit 91 7 15 Plaintiff's Exhibit 92 80 16 Plaintiff's Exhibit 93 233 17 Plaintiff's Exhibit 94 245 18 19 20 21 22 23 24 25 4 1 PAUL M. HARTMAN 2 of lawful age, a witness herein, having been 3 first duly sworn, as hereinafter certified, 4 deposed and said as follows: 09:35:21 5 EXAMINATION 09:35:21 6 BY MR. HILL: 09:35:58 7 Q. For the record, sir, would you please state 09:36:01 8 your full name? 09:36:01 9 A. My name is Paul M. Hartman, H-a-r-t-m-a-n. 09:36:05 10 Q. Good morning, Mr. Hartman. We introduced 09:36:11 11 ourselves previously, but just for the record, I 09:36:14 12 am Tom Hill, accompanied by Alvin Dunn and 09:36:18 13 Ashley Delja, representing Mr. Spirko. You are 09:36:23 14 aware of that, correct? 09:36:24 15 A. Oh, I am indeed. 09:36:26 16 Q. And Mr. Wille and Mr. Prichard representing 09:36:31 17 the Ohio Attorney General's office. I take it 09:36:34 18 you are aware of these gentlemen as well? 09:36:36 19 A. I am indeed. 09:36:38 20 Q. Well, let me begin by asking you in your 09:36:43 21 own words just to tell me what is your 09:36:47 22 understanding of what brings you here today? 09:36:52 23 A. I was issued a subpoena, which I received 09:36:59 24 via FedEx, which commands me to appear here at 09:37:08 25 0900 hours, it now being 0937 hours, since Alvin 5 09:37:16 1 just appeared rather late, to offer testimony 09:37:18 2 and to produce documents in the matter of John 09:37:23 3 Spirko, Junior, versus Margaret Bradshaw, the 09:37:27 4 Warden, whom I assume is the Warden of the 09:37:30 5 Mansfield Correctional Facility. 09:37:32 6 Q. And do you have any understanding as to 09:37:35 7 what the substance of the inquiry is? 09:37:39 8 A. I would assume that it is generally about 09:37:42 9 the fact that the Defendant Spirko, who has been 09:37:46 10 convicted, rightfully so, of murdering Betty 09:37:50 11 Jane Mottinger in 1982 has been sentenced to 09:37:58 12 die, and that this particular matter deals with 09:38:01 13 a habeas corpus petition, seeking to vacate his 09:38:06 14 conviction. 09:38:07 15 Q. Do you have any understanding with respect 09:38:09 16 to the grounds that are under review here? 09:38:12 17 A. The only grounds that I presume is the 09:38:17 18 basis of an affidavit -- and by the way, I 09:38:19 19 produced two documents here. 09:38:21 20 Q. We will do the documents in a minute. 09:38:23 21 A. And I assume that these proceedings are 09:38:28 22 based upon assertions made by Connie Mottinger 09:38:34 23 in an affidavit, to which she swore on February 09:38:38 24 25 of 2005. 09:38:43 25 Q. As you indicated, the subpoena not only 6 09:38:50 1 requires your presence, but requires you to 09:38:53 2 produce documents. Do you have any documents 09:38:55 3 that are responsive to the subpoena? 09:38:56 4 A. I do. I have two and only two documents. 09:39:01 5 One is a document which purports to be an 09:39:05 6 affidavit of Connie Mottinger. 09:39:08 7 Q. We will give them back to you, but could I 09:39:10 8 have it. Just so the record is clear, let's 09:39:14 9 have these marked. So this would be marked -- 09:39:17 10 do you have any objection if we actually mark 09:39:19 11 these? 09:39:20 12 A. None at all. 09:39:21 13 Q. This would be marked as Exhibit 90. 09:39:23 14 (Thereupon, Plaintiff's Exhibit 90 of 15 the P.M. Hartman deposition was 16 marked for purposes of 09:39:37 17 identification.) 09:39:37 18 BY MR. HILL: 09:39:38 19 Q. And you have an additional document? 09:39:39 20 A. I have a second document, which is a 09:39:42 21 document which purports to be a transcript of a 09:39:50 22 conversation to which I was a party. The 09:39:54 23 transcript, however, is a misnomer. This is 09:39:56 24 actually more likely an inaccurate summation of 09:40:01 25 dialogue, in my view. 7 09:40:04 1 Q. And we will have that marked as Exhibit 91. 09:40:08 2 (Thereupon, Plaintiff's Exhibit 91 of 3 the P.M. Hartman deposition was 4 marked for purposes of 09:40:21 5 identification.) 09:40:21 6 BY MR. HILL: 09:40:21 7 Q. We will probably come back to this. Let me 09:40:24 8 ask you with respect to -- strike that. 09:40:26 9 This is the sum total of documents that you 09:40:30 10 have in your possession relative to Mr. Spirko 09:40:37 11 or Mr. Gibson? 09:40:39 12 A. That's correct. 09:40:45 13 Q. With respect to Exhibit 90, the affidavit, 09:40:48 14 can you tell me from where you got this? 09:40:51 15 A. That was sent to me in the e-mail by, I 09:40:55 16 believe, the Attorney General's Office. 09:40:59 17 Q. So you printed it off of your computer? 09:41:02 18 A. That's correct. 09:41:03 19 Q. And with respect to Exhibit 91, can you 09:41:10 20 tell me where that came from? 09:41:11 21 A. I received that also from the Attorney 09:41:14 22 General's Office. 09:41:15 23 Q. And did you receive it at the same time as 09:41:18 24 you received Exhibit 90? 09:41:19 25 A. No. 8 09:41:20 1 Q. Okay. In which order did you receive them? 09:41:23 2 A. My recollection is I received this first -- 09:41:26 3 Exhibit Number 90, I received first, and Exhibit 09:41:29 4 91, I received secondly. 09:41:31 5 Q. Do you recall when you received Exhibit 91? 09:41:33 6 A. I do not remember the specific date. 09:41:35 7 Q. How did you receive it? 09:41:38 8 A. It was handed to me. 09:41:39 9 Q. It was handed to you by whom? 09:41:41 10 A. By either Mr. Prichard or Mr. Wille. 09:41:45 11 Q. Where were you when it was handed to you? 09:41:47 12 A. That was at a Bob Evans Restaurant in 09:41:50 13 Mansfield, Ohio. 09:42:16 14 Q. At a Bob Evans Restaurant in Mansfield, 09:42:22 15 Ohio? 09:42:22 16 A. Correct. 09:42:23 17 Q. When it was handed to you, both Mr. Wille 09:42:25 18 and Mr. Prichard were present? 09:42:27 19 A. That's correct. 09:42:28 20 Q. Was anyone else present other than the 09:42:30 21 three of you? 09:42:31 22 A. The waitress. 09:42:33 23 Q. In your meeting, it was just the three of 09:42:38 24 you? 09:42:38 25 A. That's correct. 9 09:42:39 1 Q. And I would note that Exhibit 91 has some 09:42:51 2 handwriting on it. Is all the handwriting -- 09:42:56 3 well, whose handwriting is it? 09:42:58 4 A. Well, there is little handwriting. The 09:43:00 5 handwriting is mine. There are a number of 09:43:02 6 items circled. The circles were imprinted on 09:43:05 7 the document by me. 09:43:07 8 Q. So all the writing that is on this document 09:43:10 9 is yours? 09:43:11 10 A. Any ink impressions on the document are 09:43:13 11 mine. 09:43:14 12 Q. Okay. What, if anything, have you done in 09:43:24 13 order to prepare for today's deposition? 09:43:26 14 A. Well, the only thing I have done is reread 09:43:29 15 those two beauties, and since I am retired and 09:43:34 16 have been retired for five years, I have no 09:43:36 17 access at all to any case files. 09:43:39 18 So I am testifying here without the benefit 09:43:43 19 of having refreshed my recollection from the 09:43:46 20 case files, because you have them, the reporter 09:43:49 21 has them, the Government has them, but I do not 09:43:52 22 have them. 09:43:54 23 Q. So apart from reading these two documents, 09:44:02 24 90 and 91, is it your testimony you have done 09:44:04 25 nothing to prepare for this? 10 09:44:06 1 A. That is correct. 09:44:06 2 Q. You haven't spoken with anybody about the 09:44:09 3 subject matter? 09:44:10 4 A. No. 09:44:11 5 Q. When I say "the subject matter" -- well, 09:44:17 6 let me do something definitionally, to make this 09:44:20 7 flow easier, as we get going. 09:44:21 8 I may from time to time refer to "the 09:44:28 9 Mottinger crimes," I may from time to time refer 09:44:31 10 to "the Spirko case." I really mean them in the 09:44:35 11 same -- even though I understand they are 09:44:38 12 different terms, I may mean them in the same 09:44:40 13 way. 09:44:41 14 A. I understand. 09:44:42 15 Q. What I mean when I use them is the totality 09:44:46 16 of the events that surround or concern or are 09:44:54 17 related to the crimes for which Ms. Mottinger 09:44:57 18 was the victim, so we understand each other. 09:45:00 19 A. I understand, that's correct. 09:45:03 20 Q. I would like to go through a series of 09:45:13 21 names with you and ask you some questions with 09:45:16 22 respect to these people. 09:45:18 23 A. Sure. 09:45:22 24 Q. First of all, is it correct, is it your 09:45:28 25 recollection as well that prior to this morning, 11 09:45:30 1 that you and I have never personally met in 09:45:35 2 person? 09:45:35 3 A. We have never met face-to-face. You 09:45:39 4 placed, as I recollect, two unsolicited phone 09:45:42 5 calls to my home and we spoke. 09:45:44 6 Q. And with respect to Mr. Dunn, you have 09:45:51 7 never met Mr. Dunn? 09:45:53 8 A. No, I have not. 09:45:55 9 Q. In one of those two phone calls, Mr. Dunn 09:45:58 10 was on the phone? 09:45:59 11 A. Was a participant, yes. 09:46:01 12 Q. Other than that, you have not spoken to 09:46:03 13 Mr. Dunn? 09:46:04 14 A. No. 09:46:04 15 Q. And Ms. Delja? 09:46:06 16 A. No, I have never met her before. 09:46:08 17 Q. With respect to Mr. Prichard and Mr. Wille, 09:46:15 18 when was the first time, as best you recall, 09:46:18 19 that you had any contact with either of those 09:46:20 20 gentlemen? 09:46:20 21 A. I don't remember. I can tell you that I 09:46:22 22 have had one face-to-face meeting, at which time 09:46:26 23 I met these two gentlemen, and that was at the 09:46:30 24 Bob Evans in Mansfield, Ohio. I would believe 09:46:36 25 that was likely sometime in April. 12 09:46:38 1 Q. Of this year? 09:46:39 2 A. Of 2005, that's correct. 09:46:43 3 Q. And in terms of telephone contact, as best 09:46:48 4 you recall, when was the first time that you had 09:46:52 5 any contact with either of these gentlemen or -- 09:46:57 6 well, let's start with either of these 09:46:59 7 gentlemen? 09:46:59 8 A. Well, you know, I don't remember the dates. 09:47:02 9 But I have had prior contact with Stuart Cole, 09:47:05 10 who was at one time assigned to this case. That 09:47:09 11 goes back many years, actually. 09:47:21 12 Q. Well, understanding that you may not know 09:47:28 13 specific dates, as you sit here today, what is 09:47:31 14 your best recollection of the circumstances 09:47:36 15 under which you had the first telephone contact 09:47:42 16 with either of these gentlemen? 09:47:47 17 A. You know, I honestly don't recall the 09:47:49 18 nature of the contact or the time. 09:47:53 19 Q. Did it precede the events generally 09:47:59 20 surrounding -- let me strike that. It is not 09:48:04 21 very artfully phrased. 09:48:07 22 The events that led to us being here today 09:48:15 23 came to light around April of this year, as you 09:48:20 24 indicated, maybe a little earlier. 09:48:25 25 Have you had contact with either of these 13 09:48:29 1 gentlemen before then? 09:48:29 2 A. I am not sure what you mean by "the events 09:48:32 3 which led to us being here." 09:48:35 4 Q. Have you had contact with any of these 09:48:39 5 gentlemen prior to 2005? 09:48:45 6 A. I believe so. I believe I spoke with 09:48:48 7 Mr. Wille prior, but I am not sure. 09:48:50 8 Q. And do you have any recollection as to the 09:48:54 9 subject matter of your discussions with 09:48:56 10 Mr. Wille? 09:48:57 11 A. None whatsoever. 09:49:01 12 Q. Thomas Strausbaugh, you know him? 09:49:07 13 A. I do know him, yes. 09:49:10 14 Q. And when was -- well, he was the Postal 09:49:16 15 Inspector as well, correct? 09:49:17 16 A. He was. 09:49:18 17 Q. In fact, when he retired, you took over 09:49:25 18 responsibility for the Spirko case, is that a 09:49:30 19 fair -- 09:49:31 20 A. Yes. The case was transferred to me in 09:49:33 21 1990 when he retired. 09:49:37 22 Q. When was the last time you had any contact 09:49:39 23 with Mr. Strausbaugh? 09:49:41 24 A. Oh, years and years and years ago. And the 09:49:44 25 last time I physically saw him was the day he 14 09:49:47 1 retired, which was in the summer months of 1989, 09:49:53 2 I believe. And I may have spoken to him once or 09:50:00 3 twice on the telephone since, and that was near 09:50:03 4 the time of his retirement. 09:50:05 5 So I haven't talked to him in probably 12 09:50:08 6 or 14 years. 09:50:14 7 Q. Are you familiar with Stephen Keister? 09:50:16 8 A. Stephen Keister, the prosecutor, yes. 09:50:21 9 Q. When was the last time you had any contact 09:50:23 10 of any type with him? 09:50:24 11 A. 1984. 09:50:27 12 Q. Chuck Koch, is that name familiar with you? 09:50:31 13 A. He would be the Assistant County 09:50:35 14 Prosecutor. 09:50:35 15 Q. When was the last time you had any contact 09:50:37 16 with him? 09:50:38 17 A. 1984. 09:50:40 18 Q. Charles Kennedy, are you familiar with him? 09:50:42 19 A. I am. 09:50:43 20 Q. In which capacity are you familiar with 09:50:45 21 him? 09:50:45 22 A. He is currently, as I know it, the County 09:50:49 23 Prosecutor of Van Wert County, Ohio, who 09:50:53 24 followed Mr. Keister in that office. 09:50:56 25 Q. And when was the last time you had any 15 09:50:58 1 contact with Mr. Kennedy? 09:51:02 2 A. Oh, it has to have been at least ten years 09:51:06 3 ago. 09:51:07 4 Q. Do you recall the circumstances? 09:51:08 5 A. I do. 09:51:10 6 Q. If you could describe them. 09:51:13 7 A. Um-hum. I had some conversation with 09:51:16 8 Mr. Kennedy about the possibility of prosecuting 09:51:22 9 a third suspect in this homicide, one James 09:51:28 10 Clark Kelley. 09:51:30 11 Q. Telephonic or in person? 09:51:34 12 A. It was on the telephone. 09:51:36 13 Q. I may come back to it later, but tell me 09:51:40 14 everything you can recall about the 09:51:41 15 conversation. 09:51:41 16 A. The essence of the conversation is that I 09:51:43 17 related to Mr. Kennedy that I had strong 09:51:47 18 suspicions that James Clark Kelley and another 09:51:53 19 individual by the name of Effie Rader were also 09:51:57 20 involved in this homicide, in this series of 09:52:01 21 crimes, including robbery, abduction and murder. 09:52:06 22 And the essence of my inquiry was to 09:52:10 23 determine whether, if I were able to establish 09:52:12 24 enough evidence to overcome the presumption of 09:52:17 25 innocence, whether he would entertain a 16 09:52:20 1 prosecution of Mr. Kelley and Ms. Rader. 09:52:23 2 Q. And what do you recall Mr. Kennedy saying 09:52:26 3 to you? 09:52:26 4 A. My recollection is that Mr. Kennedy stated 09:52:29 5 to me that he would not. 09:52:31 6 Q. Was it -- did he offer some explanations? 09:52:35 7 A. He did. 09:52:38 8 Q. Please -- 09:52:42 9 A. What he stated to me was that he was 09:52:44 10 personally acquainted with Clarence Mottinger, 09:52:47 11 the victim's husband, and that the family wanted 09:52:51 12 no more part of any of this activity related to 09:52:55 13 these crimes. 09:53:00 14 Q. During that conversation, was there any 09:53:04 15 discussion about the then open indictment 09:53:08 16 against Delaney Gibson? 09:53:10 17 A. None at all that I recollect. 09:53:13 18 Q. Do you recall his name coming up? 09:53:14 19 A. None at all that I recollect. 09:53:16 20 Q. You assumed responsibility in 1990 for the 09:53:30 21 case, correct? 09:53:32 22 A. I assumed administrative responsibility for 09:53:35 23 the case in 1990, that is correct, which is to 09:53:39 24 say, the case files and the custody -- the 09:53:41 25 custody of the case files and the evidence was 17 09:53:44 1 turned over to me. 09:53:47 2 Q. And at that time, Mr. Kennedy was already 09:53:52 3 the new prosecutor in Van Wert County; is that 09:53:57 4 right? 09:53:57 5 A. I have no idea. 09:53:58 6 Q. Among -- the case file that was turned over 09:54:03 7 to the, the case for which you were responsible 09:54:06 8 was the Mottinger crimes, right? 09:54:08 9 A. That's correct. 09:54:09 10 Q. And over the years, since you assumed 09:54:14 11 responsibility in 1990, did you have occasion 09:54:17 12 from time to time to speak with Mr. Kennedy 09:54:20 13 about the status of the open case against 09:54:22 14 Mr. Gibson? 09:54:23 15 A. No, no. 09:54:25 16 Q. So your best recollection is you never 09:54:28 17 inquired as to -- 09:54:29 18 A. That's right; that's right. 09:54:30 19 Q. -- as to what was going on? 09:54:32 20 A. That's correct. Insofar as I recollect, 09:54:37 21 the conversation I just described was the one 09:54:39 22 and only contact I have had with Mr. Kennedy 09:54:43 23 since 1984 to the present date. 09:54:45 24 Q. Have you ever met Mr. Kennedy? 09:54:47 25 A. I have. 18 09:54:48 1 Q. In what context? 09:54:49 2 A. Well, I met him when we were there in Van 09:54:52 3 Wert, Ohio, conducting the investigation, and he 09:54:54 4 was an attorney about town, a pleasant fellow, 09:54:58 5 kind of short in stature and firmly a Marine, 09:55:01 6 although once a Marine, always a Marine. But he 09:55:05 7 was a Marine. A pleasant enough person, but 09:55:09 8 clearly a politician. 09:55:11 9 Q. The contacts you had with him, this would 09:55:16 10 be in the '82, '83 time frame? 09:55:18 11 A. '82 to '84, yes. 09:55:20 12 Q. Were those contacts sort of professional or 09:55:23 13 social? 09:55:23 14 A. No, no, they were more social. We would 09:55:26 15 have breakfast in the morning often in the 09:55:31 16 restaurant at the motel, and he would drop in to 09:55:37 17 have breakfast and there would be conversation 09:55:39 18 in passing. 09:55:40 19 Q. As far as you know, did he have any -- did 09:55:44 20 he have any role in '82, '84 in a professional 09:55:48 21 capacity? 09:55:48 22 A. Insofar as I am aware, he had absolutely no 09:55:50 23 role in a professional capacity, formal or 09:55:58 24 informal. 09:55:59 25 Q. When you got to know him, it was purely on 19 09:56:02 1 a social basis, because you -- well, it was 09:56:05 2 purely on a social basis? 09:56:07 3 A. That's correct. And I don't know that 09:56:10 4 "know him" would be the appropriate phrase. I 09:56:13 5 came to become an acquaintance of a sort. But 09:56:17 6 there was no real personal relationship there, 09:56:23 7 other than to say "hello." 09:56:26 8 Q. Ralph Eversole? 09:56:28 9 A. Yes. 09:56:28 10 Q. Do you know him? 09:56:29 11 A. I do know Ralph, yes. 09:56:32 12 Q. And who is he? 09:56:33 13 A. Ralph was a detective at the time of this 09:56:38 14 event at the Van Wert County Sheriff's Office. 09:56:44 15 Q. This event, again, being the Mottinger 09:56:47 16 abduction? 09:56:48 17 A. Being the abduction and murder, yes; at the 09:56:52 18 hands of your Defendant, I might add. 09:56:56 19 Q. When was the last time you had any contact 09:56:58 20 with Mr. Eversole? 09:57:00 21 A. The last time I had any contact with Ralph 09:57:03 22 Eversole was on the occasion of his retirement. 09:57:07 23 Q. Just approximately? 09:57:11 24 A. Probably in 2001. I traveled to and 09:57:15 25 attended his retirement party in Van Wert, Ohio. 20 09:57:19 1 Q. After 1984, had you maintained a social 09:57:24 2 relationship with him? 09:57:25 3 A. No, no. I have had -- I suppose in those 09:57:29 4 intervening years, I may have had one or two or 09:57:33 5 three conversations with him of a social nature, 09:57:35 6 but that was it. He was 200 miles to the west 09:57:39 7 and I was here, and life goes on, and we have 09:57:42 8 other responsibilities and other duties. 09:57:47 9 Q. Theo Bennett? 09:57:52 10 A. Yes. Fine man. 09:57:54 11 Q. Who is Mr. Bennett? 09:57:55 12 A. Mr. Bennett is a Marine, 76 years of age, 09:58:02 13 who is an author, and who is or was in the 09:58:07 14 process of preparing a manuscript, a book 09:58:12 15 bearing on the series of events surrounding the 09:58:15 16 abduction and murder of Betty Jane Mottinger at 09:58:21 17 the hands of John Spirko, your client. 09:58:26 18 Q. And when was the last time you had any 09:58:31 19 contact with Mr. Bennett? 09:58:35 20 A. Probably a couple of weeks ago, I am 09:58:38 21 guessing. 09:58:39 22 Q. Tell me the context of that. 09:58:40 23 A. That was just a telephone conversation. 09:58:44 24 Q. What was the conversation? 09:58:45 25 A. Well, the conversation was just generally 21 09:58:47 1 about how he is doing. He had gone to a cruise, 09:58:53 2 the condition of his health, as best I 09:58:57 3 recollect. 09:58:57 4 Q. Did the subject matter of the Spirko case 09:59:03 5 come up in the conversation? 09:59:04 6 A. No, no. By that time, I had received this 09:59:07 7 letter from you and a copy of the court order, 09:59:09 8 which prohibits me from discussing the subject 09:59:13 9 matter of this case with anyone. So there was 09:59:15 10 no conversation with regard to this case. 09:59:19 11 Q. When did you first meet or have any contact 09:59:22 12 with Mr. Bennett? 09:59:23 13 A. I first met Mr. Bennett at a motel in 09:59:29 14 Mansfield, Ohio, and that was a little over a 09:59:34 15 year ago, March, April, May of 2004. And that 09:59:41 16 was a meeting which was prearranged by Connie 09:59:45 17 Mottinger. 09:59:46 18 Q. And subsequent to that meeting -- obviously 09:59:51 19 we will discuss that meeting later. Subsequent 09:59:55 20 to that meeting, did you continue to have 09:59:57 21 contact with Mr. Bennett? 09:59:58 22 A. Yes, I did. 10:00:00 23 Q. Ever in person? 10:00:01 24 A. No, that was the one and only time that I 10:00:03 25 had any personal, face-to-face contact with him. 22 10:00:07 1 Again, there is a great distance, a reasonable 10:00:10 2 distance between my home in Burbank, Ohio, and 10:00:13 3 his home in the Dayton area. 10:00:22 4 Q. Well, let's -- well, there came a point in 10:00:29 5 time, as you know, you have alluded to it, where 10:00:33 6 you prepared an affidavit, or had signed an 10:00:36 7 affidavit in this case, correct, the case 10:00:40 8 recently? 10:00:41 9 A. Yes, that's correct. 10:00:42 10 Q. Do you recall the date? 10:01:08 11 A. I do not recall the date. I am retired 10:01:13 12 now, so I don't -- these things aren't -- 10:01:15 13 Q. Will you accept my representation that the 10:01:17 14 affidavit appears to have been executed on the 10:01:19 15 15th of May? 10:01:21 16 A. I won't accept 15th of May, no. 10:01:24 17 Q. I am sorry, May 1st. 10:01:26 18 A. Yes, May 1st, 2005 appears to be the date. 10:01:29 19 Q. Do you recall, going backwards from May 10:01:38 20 1st, when you spoke to Mr. Bennett previous to 10:01:41 21 that? 10:01:41 22 A. No, I don't. I am retired. I don't keep 10:01:44 23 logs of my telephone calls. They occur 10:01:47 24 spontaneously, and so I can't tell you the 10:01:51 25 dates. And, quite frankly, these are social 23 10:01:54 1 telephone calls. 10:01:56 2 MR. PRICHARD: Off the record. 10:01:57 3 (Thereupon, a discussion was held off 10:02:06 4 the record.) 10:02:06 5 THE WITNESS: These are social 10:02:08 6 calls and I don't take particular note of them, 10:02:11 7 when they occurred. And, quite frankly, at that 10:02:14 8 time there was no reason to consider the fact 10:02:16 9 that they might be subject to some judicial 10:02:19 10 inquiry. They were just phone calls. 10:02:27 11 BY MR. HILL: 10:02:28 12 Q. Connie Mottinger, you know her? 10:02:32 13 A. Yes. 10:02:32 14 Q. Have you met her before? 10:02:33 15 A. I met her for the first and only time on 10:02:37 16 the same date in 2004 that I met Mr. Bennett. 10:02:45 17 Q. Have you had any conversations with her 10:02:46 18 since that day? 10:02:51 19 A. I don't believe that I have had any 10:02:53 20 conversation on the telephone or otherwise with 10:02:55 21 her since that date. 10:03:00 22 Q. You presumably had at least some 10:03:03 23 conversation with her prior to that date? 10:03:05 24 A. That's correct. 10:03:05 25 Q. And were those conversations in order to 24 10:03:14 1 set up a meeting? 10:03:15 2 A. Yes. She called my home sometime in 10:03:20 3 advance of the meeting and asked if I would be 10:03:23 4 agreeable to meeting with Mr. Bennett to provide 10:03:26 5 information for his research on his book, and I 10:03:31 6 agreed to do so. 10:03:31 7 Q. And as far as you understood, she, along 10:03:35 8 with Mr. Bennett and Mr. Bennett's wife were 10:03:42 9 working together, that was your understanding? 10:03:44 10 A. That is my understanding, that's correct. 10:03:47 11 Q. I should have asked you, I think it is 10:03:49 12 Marlene Bennett? 10:03:50 13 A. Yes. 10:03:51 14 Q. You are familiar with her as well? 10:03:53 15 A. I met her on that occasion also. She would 10:03:55 16 be Mr. Bennett's wife. 10:03:57 17 Q. Have you had subsequent phone conversations 10:03:59 18 with her? 10:04:00 19 A. Not to my recollection. 10:04:07 20 MR. HILL: Can we go off the 10:04:10 21 record for a moment, please. 10:04:14 22 (Thereupon, a discussion was held off 10:04:55 23 the record.) 10:04:55 24 BY MR. HILL: 10:04:57 25 Q. Within the past year or so, let's just say 25 10:05:08 1 in 2005 -- 10:05:11 2 A. Okay. 10:05:11 3 Q. No, that won't work. Starting in 2004, it 10:05:23 4 is my understanding that you had a meeting and 10:05:26 5 conversation that you have alluded to with 10:05:28 6 Mr. Bennett, Mr. and Mrs. Bennett and Connie 10:05:35 7 Mottinger, and you are aware that was tape 10:05:37 8 recorded, correct? 10:05:39 9 A. I was indeed, yes. 10:05:40 10 Q. And it is my further understanding that you 10:05:42 11 had -- well, let me ask you the open-ended 10:05:47 12 questions. 10:05:47 13 Since 2004, how many conversations have you 10:05:52 14 had? Can you identify the conversations you 10:05:54 15 have had with people that were tape recorded or 10:05:56 16 video recorded, as far as you know? 10:05:59 17 A. The only conversations of which I am 10:06:07 18 reasonably confident, is there was a 10:06:10 19 conversation with Mr. Bennett that was tape 10:06:12 20 recorded. 10:06:13 21 Q. When you say "a conversation," are you 10:06:14 22 referring to the one in the hotel room? 10:06:16 23 A. In the hotel, that's correct. I was 10:06:20 24 visited by a Plain Dealer reporter, Robert 10:06:23 25 Paynter, who was acting as your agent, and that 26 10:06:27 1 conversation was recorded; and there were two 10:06:32 2 conversations where you called my home and I 10:06:34 3 truly believe, contrary to my request, you have 10:06:37 4 recorded those conversations. So there would be 10:06:39 5 four. 10:06:39 6 Q. Okay. Any others that you recall? 10:06:42 7 A. None that I am aware, or that I recall. 10:06:53 8 Q. Are you familiar with another journalist by 10:06:58 9 the name of Morgan Faust? 10:07:00 10 A. Yes, I am. 10:07:01 11 Q. Does that refresh your recollection? 10:07:03 12 A. Yes, that was a videotape event concerning 10:07:08 13 a documentary that she is preparing in 10:07:11 14 connection with these death penalty issues. 10:07:14 15 Q. And that was videotaped as well? 10:07:15 16 A. That's right, yes. 10:07:17 17 Q. Other than those, are you aware of any 10:07:20 18 conversations you have had that have been 10:07:23 19 recorded? 10:07:23 20 A. I am not aware of any. 10:07:30 21 Q. Now, again, we are talking about the time 10:07:33 22 frames, let's say the time frame beginning with 10:07:36 23 your meeting with Ms. Mottinger and the 10:07:42 24 Bennetts, so from that time to the present, with 10:07:47 25 whom else have you had discussions that involve 27 10:07:49 1 in any fashion the substance of the Spirko case? 10:07:57 2 A. Well, I have had discussions with you, 10:08:00 3 because you have called my home. I have had 10:08:03 4 discussions with Mr. Prichard and Mr. Wille, and 10:08:08 5 to the best of my recollection, those are the 10:08:11 6 only discussions I have had with regard to the 10:08:15 7 substance of this case, largely because I am 10:08:17 8 retired. 10:08:27 9 Q. Now, in connection with this case, there 10:08:30 10 have been over the years many pleadings filed in 10:08:36 11 court? 10:08:36 12 A. Yes, there have been. 10:08:37 13 Q. And you are aware of that? 10:08:38 14 A. Oh, yes, I am. 10:08:40 15 Q. Again, using the benchmark point as the 10:08:50 16 interview or the discussion you had with 10:08:53 17 Ms. Mottinger and the Bennetts, have you read 10:08:55 18 any pleadings in this case? 10:09:01 19 A. I have not read any pleadings, to the best 10:09:07 20 of my recollection. And actually, in recent 10:09:09 21 years, the only document that I recall reading 10:09:15 22 was Judge Carr's initial decision, opinion on 10:09:21 23 the habeas request of the Defendant in this 10:09:25 24 case, which seems to me to have been issued in 10:09:29 25 the year 2002 perhaps, to the best of my 28 10:09:32 1 recollection. 10:09:33 2 Q. How did you get a copy of it? 10:09:38 3 A. I don't remember that, to tell you the 10:09:40 4 truth. I do remember reading it. I don't know 10:09:42 5 if I got it online. I just don't remember. In 10:09:50 6 fact, I don't know where the document is now. I 10:09:53 7 looked for it and couldn't find it. I don't 10:09:56 8 know what happened in that regard. 10:09:58 9 I just remember reading the document. I 10:10:00 10 can't tell you how I got it, where I got it. 10:10:02 11 But, again, my recollection is that I had seen a 10:10:05 12 copy of it in 2002, as I can best remember. 10:10:13 13 Q. And the Sixth Circuit, there was a Sixth 10:10:17 14 Circuit opinion after Judge Carr, as best you 10:10:19 15 know. You have not read that? 10:10:20 16 A. I have not read that, no. 10:10:24 17 Q. There have been periodic press accounts of 10:10:27 18 the case? 10:10:28 19 A. Yes. 10:10:31 20 Q. Let me call your attention in particular to 10:10:35 21 a reasonably lengthy series of articles that 10:10:39 22 were done in the Cleveland Plain Dealer in 10:10:42 23 January. Have you read those? 10:10:43 24 A. No. 10:10:49 25 Q. So the series of articles that you were 29 10:10:51 1 interviewed for and which both quote you and 10:11:00 2 have photographed you in those articles, you 10:11:04 3 haven't read those? 10:11:04 4 A. No. 10:11:05 5 Q. Have you seen them? 10:11:06 6 A. I saw, I think what would have likely been 10:11:11 7 the last one. And I glanced and I saw some 10:11:16 8 color reproductions of my original case notes, 10:11:22 9 which appeared in the paper, which I thought was 10:11:24 10 real interesting, in fact. 10:11:26 11 But I didn't read the article, because it 10:11:28 12 is the same old timeworn crap. I can rephrase 10:11:44 13 that, if you would like. 10:11:45 14 Q. No, you use whatever language you want to 10:11:48 15 use. You purposely chose not to read the 10:11:55 16 articles, I mean, you -- 10:11:57 17 A. It is not that I purposely chose not to. I 10:12:01 18 didn't bother, because I clearly understood that 10:12:04 19 Paynter had his own agenda and that he was 10:12:06 20 acting and functioning during the interview and 10:12:09 21 thereafter as your agent, and promoting your 10:12:12 22 cause. 10:12:13 23 So I figured, "Why even bother," although I 10:12:17 24 will tell you that my family members have read 10:12:20 25 that; and the real difficulty I have here is 30 10:12:22 1 they are distressed when they see this kind of 10:12:25 2 bullshit in print. That is an aside. No, I 10:12:30 3 wouldn't waste my money on that rag. 10:12:46 4 Q. There have been other articles from time to 10:12:48 5 time in other newspapers. 10:12:49 6 A. I am sure there have been. 10:12:51 7 Q. Do you recall reading them? 10:12:51 8 A. I have read one from an article in some 10:12:58 9 Mansfield newspaper, and the only reason I came 10:13:02 10 to that was that one of my associates, one of my 10:13:09 11 friends sent me the e-mail article, which is the 10:13:14 12 only reason I came to know it or see it. 10:13:20 13 And I sent an e-mail to the author of that 10:13:24 14 article in response to some of the shaded 10:13:31 15 comments of Mr. Dunn. 10:13:33 16 Q. Do you still have a copy of that e-mail? 10:13:35 17 A. No, no. 10:13:36 18 Q. Is it saved on your hard drive? 10:13:38 19 A. No. It is likely, if anyone would have it, 10:13:41 20 it would be the reporter, who actually 10:13:44 21 inaccurately stated that I was not available for 10:13:47 22 comment thereafter, which was not true. 10:13:53 23 Q. Let's back up a little bit. If you could 10:14:01 24 give us your professional background, sort of 10:14:06 25 the -- 31 10:14:06 1 A. Curriculum vitae? 10:14:10 2 Q. Yes, the one-minute version. 10:14:12 3 A. Okay. I am the father of three, the 10:14:17 4 grandfather of seven. I am a graduate of the 10:14:20 5 Cleveland State University, graduated with a BA 10:14:22 6 degree in 1970, spent a little time in law 10:14:26 7 school at Cleveland Marshall Law School. 10:14:29 8 I worked briefly for the Cuyahoga County 10:14:33 9 Sheriff's Office. 10:14:35 10 Q. Was that after your time at the law school? 10:14:38 11 A. Yes, yes, it was after my time at the law 10:14:41 12 school. I came on the job, I was appointed to 10:14:45 13 the Postal Service as an Inspector in 1973. 10:14:50 14 Q. This was after your brief time at the 10:14:52 15 Cuyahoga County Sheriff's Office? 10:14:54 16 A. That's correct. And retired in March of 10:14:57 17 2000 from that job. My total service time per 10:15:01 18 the Office of Personnel Management is 27 years, 10:15:05 19 nine months and 11 days. 10:15:08 20 Following my retirement, I worked for about 10:15:10 21 two years as the Administrator of the Chippewa 10:15:14 22 Lake, Ohio Police Department, and from there I 10:15:19 23 became employed as an investigator for the 10:15:21 24 Northeast Ohio Network, which is a council of 10:15:24 25 governments in northeast Ohio. 32 10:15:28 1 My services as an investigator are 10:15:31 2 contracted with the Medina County Board of MRDD, 10:15:35 3 so I am currently employed on a part-time basis 10:15:39 4 investigating incidents that involve the health 10:15:43 5 and safety of the consumers of the board. And 10:15:47 6 those would be persons who function below a 10:15:51 7 certain intellectual level. 10:15:53 8 That brings us from 1970 to date. 10:15:56 9 Q. Focusing on your time with the Postal 10:16:01 10 Inspectors, was your -- were you based in 10:16:04 11 Cleveland the entire time? 10:16:06 12 A. Aside from my initial training period, when 10:16:09 13 I was assigned to Washington, D.C., thereafter, 10:16:13 14 I have always been assigned to Cleveland, Ohio. 10:16:16 15 Q. And what was your -- upon retirement, what 10:16:19 16 was your position? 10:16:20 17 A. When I retired, I was the supervisor of the 10:16:24 18 violent crime squad. 10:16:28 19 Q. In that capacity, how many people were you 10:16:30 20 supervising? 10:16:31 21 A. I had supervised a squad of nine 10:16:35 22 inspectors. 10:16:35 23 Q. And when did you assume that role? 10:16:38 24 A. I assumed that role in 1990. 10:16:41 25 Q. Okay. Is that related to or coincident 33 10:16:47 1 with Mr. Strausbaugh's retirement? 10:16:50 2 A. I was promoted to that position 10:16:53 3 approximately six months after his retirement. 10:16:55 4 Q. Is that a position that he had held? 10:16:58 5 A. It is indeed, yes. 10:17:01 6 Q. Back in the '82 to '84 time frame, what was 10:17:06 7 your title? 10:17:07 8 A. Postal Inspector. I was just a grunt. 10:17:12 9 Q. And who was your immediate boss in those 10:17:15 10 days, somebody out of Cleveland? 10:17:20 11 A. Yes. That would have been Inspector 10:17:28 12 Stanley Wood, and at the time that the 10:17:37 13 initial -- at the time that the body of the 10:17:38 14 victim was found, I had been in trial, in a 10:17:44 15 fraud trial for 14 weeks, and was sent, along 10:17:49 16 with other inspectors, to Van Wert, Ohio. So at 10:17:52 17 the time, I was assigned to the fraud team. 10:17:56 18 Q. Within the Postal Inspector Service -- and 10:18:05 19 I may not be using these terms exactly 10:18:08 20 precisely, so I apologize. 10:18:10 21 A. That is all right. It is the Postal 10:18:13 22 Inspection Service. 10:18:14 23 Q. Is there some procedure, as there is in, I 10:18:20 24 think, most law enforcement authorities, where 10:18:24 25 if some one citizen or otherwise has a complaint 34 10:18:28 1 against somebody, there is a mechanism to file a 10:18:31 2 complaint and then have it investigated? 10:18:33 3 A. Yes. 10:18:34 4 Q. Does that have a name, that process? 10:18:37 5 A. Well, we just knew it to be an Internal 10:18:40 6 Affairs function. 10:18:42 7 Q. Okay. During your tenure in the 27-plus 10:18:50 8 years, were you ever subject to any complaint? 10:18:53 9 A. To the best of my knowledge, I never had a 10:18:55 10 complaint. I was the subject of one Internal 10:18:57 11 Affairs investigation, and that is when I shot a 10:19:00 12 suspect in May of 1993. 10:19:02 13 Q. That is a routine investigation any time 10:19:06 14 there is a shooting? 10:19:07 15 A. That's correct; mandatory. 10:19:10 16 Q. And I take it you were -- it was found to 10:19:14 17 be a justified shooting? 10:19:15 18 A. It was ruled by the prosecutor as 10:19:17 19 justifiable shooting. The offender survived and 10:19:22 20 went to prison, and the Internal Affairs 10:19:25 21 investigation found that I had acted justifiably 10:19:30 22 when I shot a person, who likely would have 10:19:32 23 otherwise killed me. 10:19:42 24 Q. From whom and how did you learn that Connie 10:19:51 25 Mottinger had spoken to myself and Mr. Dunn? 35 10:19:56 1 A. I learned that in a conversation with Theo 10:20:00 2 Bennett. 10:20:01 3 Q. And do you recall -- well, two questions. 10:20:07 4 First of all, do you recall when that was? If 10:20:11 5 you recall the date, that is great. But if you 10:20:14 6 don't recall the date, when it was relative to 10:20:18 7 when it was that he was telling you that 10:20:20 8 Ms. Mottinger had had or was meeting with us? 10:20:24 9 A. I do not remember the precise date. And I 10:20:32 10 don't know when she was meeting with you or what 10:20:35 11 occasioned that meeting. He did make mention of 10:20:38 12 the fact that it was difficult to imagine that 10:20:43 13 Connie Mottinger had traveled to Washington, 10:20:47 14 D.C. to meet with the FBI and the defense 10:20:54 15 attorneys, as I understand it. At least that 10:20:57 16 was his representation to me. 10:20:58 17 Q. What you are relaying is what he said to 10:21:01 18 you? 10:21:01 19 A. Um-hum. 10:21:02 20 Q. And was it your impression from the 10:21:04 21 conversation that she had already been to 10:21:11 22 Washington or was going to Washington or was en 10:21:15 23 route to Washington? 10:21:16 24 A. It was my understanding that the event had 10:21:19 25 occurred in the past tense. In other words, it 36 10:21:22 1 had already occurred. 10:21:23 2 Q. And what do you remember about what 10:21:25 3 Mr. Bennett said to you, other than what you 10:21:27 4 have just told us? 10:21:28 5 A. That is all I remember of it. 10:21:32 6 Q. Did you have any -- and did you have a 10:21:36 7 response to Mr. Bennett? 10:21:38 8 A. Yeah. I couldn't believe it. And I 10:21:41 9 couldn't believe it, because she had been so 10:21:45 10 adamantly championing the cause of the Defendant 10:21:50 11 Spirko's prompt execution, and suddenly she was 10:21:54 12 now paying a visit to your office. And I 10:21:57 13 thought that odd. 10:22:04 14 Q. You expressed that to Mr. Bennett? 10:22:08 15 A. I certainly did. 10:22:11 16 Q. Now, I will give you the predicate for 10:22:19 17 this. It is my understanding that subsequent, 10:22:25 18 shortly after Ms. Mottinger's meeting with you 10:22:30 19 about a year ago, shortly thereafter, 10:22:35 20 Ms. Mottinger had a communication with Mr. Wille 10:22:42 21 in which she explained to Mr. Wille certain 10:22:48 22 things that had transpired at that meeting. 10:22:51 23 My question, first of all, do you know 10:22:53 24 whether that is the case or not? 10:22:54 25 A. I have no idea whether or not that 37 10:22:56 1 occurred. 10:22:56 2 Q. But my question is, do you remember 10:22:59 3 receiving any phone call or any communication 10:23:02 4 from Mr. Wille or anybody else from the Ohio 10:23:05 5 Attorney General's Office asking you or 10:23:09 6 discussing with you the subject matter of a 10:23:11 7 meeting that you had had -- 10:23:13 8 A. No. 10:23:14 9 Q. -- with Ms. Mottinger? 10:23:16 10 A. That's right, no, I have no recollection. 10:23:20 11 In fact, not only do I not have a recollection, 10:23:22 12 I can state with a certain amount of certainty 10:23:24 13 that there was no such phone call. 10:23:26 14 Q. Because you would remember it? 10:23:27 15 A. I think I would remember that, yes. 10:23:29 16 Q. Now, when Mr. Bennett called you -- I made 10:23:40 17 an assumption there. Was it Mr. Bennett who 10:23:43 18 called you, or were you happening to be chatting 10:23:48 19 with Mr. Bennett? 10:23:49 20 A. I don't remember who placed the call. But 10:23:52 21 again, it was just a social phone call. 10:23:54 22 Q. The purpose of the call was not to inform 10:23:55 23 you about Ms. Mottinger? 10:23:57 24 A. Again, I don't remember who placed the 10:23:59 25 phone call. But that issue came up sort of as a 38 10:24:01 1 collateral matter. It wasn't the thrust of our 10:24:05 2 conversation. I view Mr. Bennett at this time 10:24:10 3 as a friend, you know. And I speak with him 10:24:13 4 about many things, because he is a nice man. 10:24:16 5 And I respect his service to the United States, 10:24:19 6 which has been honorable, I have read his book. 10:24:24 7 But he is a good person. 10:24:26 8 So these conversations that I have had with 10:24:29 9 him are not centered on this case. 10:24:34 10 Q. The book you have read, that is a book 10:24:40 11 about his -- is it about his military career? 10:24:43 12 A. It is a book about a portion of his 10:24:45 13 military service on Vieques Island. 10:24:55 14 Q. Is that an online publication? 10:24:58 15 A. Well, it is a -- it is a paperback book 10:25:04 16 that I have a copy of it. 10:25:06 17 Q. Provided to you by him? 10:25:08 18 A. He gave it to me when we met in Mansfield. 10:25:16 19 Q. Now, after that meeting in Mansfield, I 10:25:19 20 mean, how regularly did you have contact with 10:25:21 21 him thereafter? 10:25:23 22 A. Periodically. I can't give you a frequency 10:25:27 23 or say with what regularity. We have spoken 10:25:31 24 several times. I don't call him weekly or 10:25:34 25 necessarily monthly. It is just when the spirit 39 10:25:37 1 moves, I call him or he calls me. 10:25:39 2 Q. And this relationship developed out of this 10:25:47 3 meeting in Mansfield? 10:25:48 4 A. That's correct; that's correct. 10:25:50 5 Q. When you had the conversation with 10:26:06 6 Mr. Bennett after you first learned that 10:26:09 7 Mrs. Mottinger had come to Washington, during 10:26:14 8 the course of that conversation, was there any 10:26:15 9 discussion with Mr. Bennett about the physical 10:26:18 10 tape-recording, the tapes that had been made 10:26:25 11 during the meeting with you? 10:26:27 12 A. None that I recollect. 10:26:28 13 Q. And at any point, from that point forward 10:26:32 14 to the present, do you recall any conversations 10:26:34 15 with Mr. Bennett that involved the tapes in any 10:26:39 16 fashion? 10:26:39 17 A. I do, yes. 10:26:41 18 Q. Give me your best recollection of those 10:26:44 19 conversations. 10:26:44 20 A. Well, my best recollection -- and this is 10:26:49 21 likely after he had his shoulder surgery. He 10:26:52 22 indicated to me, Mr. Bennett indicated to me 10:26:55 23 that he had received several calls, telephone 10:26:58 24 calls from Alvin Dunn, who in his words had been 10:27:02 25 pestering him about these tapes. So he informed 40 10:27:07 1 me that he went out with a hammer and beat them 10:27:10 2 to submission. That is all I know of the tapes. 10:27:15 3 And insofar as I am aware, that is the only 10:27:18 4 conversation that there was about the tapes. 10:27:21 5 Q. That solitary conversation? 10:27:23 6 A. As I recollect. 10:27:24 7 Q. Did you ever have a conversation in 10:27:30 8 which -- where the tapes came up prior to his 10:27:36 9 reporting to you that he had beat them into 10:27:38 10 submission? 10:27:38 11 A. None that I recollect. 10:27:45 12 Q. When you initially had a conversation with 10:27:46 13 him at which he told you that Ms. Mottinger had 10:27:49 14 come to Washington, during that conversation, 10:27:54 15 did the subject matter of the tapes, of 10:27:58 16 Mrs. Mottinger's request of him to get the tapes 10:28:01 17 come up? 10:28:01 18 A. None that I recollect. 10:28:03 19 Q. Did you ever voice any opinion or make any 10:28:14 20 statement to him suggesting what he should or 10:28:16 21 should not do with the tapes? 10:28:17 22 A. No, no, not at all. 10:28:20 23 Q. When you executed your affidavit in this 10:28:31 24 case -- 10:28:32 25 A. Yes. 41 10:28:33 1 Q. -- at that point, had you already had the 10:28:36 2 conversation with Mr. Bennett in which he had 10:28:39 3 indicated that the tapes had been beaten into 10:28:41 4 submission? 10:28:43 5 A. I would believe so, yes. 10:29:07 6 Q. Well, let's talk about, not for the moment 10:29:23 7 the substance of it, but the preparation of it. 10:29:25 8 Let's talk about your affidavit, which has 10:29:28 9 previously been marked as Exhibit -- has it 10:29:32 10 previously been marked? 10:29:33 11 MR. DUNN: Yes, 3. 10:29:38 12 BY MR. HILL: 10:29:39 13 Q. You are more than welcome to look at it. I 10:29:41 14 am not going to ask you about the substance of 10:29:43 15 it. 10:29:44 16 A. If I might, please. 10:29:45 17 (Handing.) 10:29:47 18 Q. Actually, let's swap, because that has my 10:29:50 19 markings on it. 10:29:51 20 A. Okay. And you have this as Exhibit 3? 10:29:55 21 Q. Yes. 10:29:56 22 A. Go ahead, sir. 10:29:57 23 Q. As I said, I am not going to ask you right 10:29:59 24 now about the substance of it. 10:30:01 25 A. That is all right. 42 10:30:02 1 Q. Tell me, again, in your own words, as best 10:30:08 2 you recall, the process by which this affidavit 10:30:11 3 came to be prepared and executed. 10:30:14 4 A. Yes. I received a call, I believe, from 10:30:18 5 Mr. Wille, when we discussed ultimately or 10:30:27 6 eventually the content of this affidavit. 10:30:34 7 Q. When you say "we discussed" -- 10:30:38 8 A. We discussed events which would lead to the 10:30:42 9 framing of this affidavit, is the correct way to 10:30:47 10 describe the process. That the affidavit -- not 10:30:57 11 this affidavit, but a precursor was prepared by 10:31:03 12 someone at the Attorney General's Office and 10:31:05 13 sent to me in the e-mail. 10:31:09 14 I reviewed it, corrected it for factual 10:31:13 15 errors and made some changes, which is to say, 10:31:22 16 amended the document so that it would comport 10:31:25 17 with my recollection of the events. 10:31:29 18 I then printed it, had it notarized, as I 10:31:37 19 recollect, and then took this document and 10:31:40 20 placed it in the FedEx box at the intersections 10:31:46 21 of Route 224 and Interstate 71 at a truck stop, 10:31:56 22 Truck Stops of America truck stop. 10:32:00 23 Q. The version that was originally sent to you 10:32:11 24 by the Attorney General's Office -- 10:32:14 25 A. Yes. 43 10:32:15 1 Q. -- if I understood you correctly, is 10:32:18 2 different from the version that is in front of 10:32:20 3 you now? 10:32:20 4 A. Yes. 10:32:20 5 Q. The version that was sent to you by the 10:32:23 6 Attorney General's Office, do you have a copy of 10:32:25 7 it? 10:32:25 8 A. I do not. 10:32:26 9 Q. Okay. It was sent to you by e-mail? 10:32:30 10 A. That's correct. 10:32:31 11 Q. And, again, just so I am clear, you printed 10:32:38 12 it out, made changes to it? 10:32:42 13 A. Correct. I made changes, I revised the 10:32:45 14 content, so that it comported with my 10:32:48 15 recollection of the events. 10:32:51 16 Q. And did you have the capability of sort of 10:32:57 17 editing on the computer, or did it require you 10:33:00 18 to sort of retype the whole thing? 10:33:02 19 A. I edited it on the computer. My 10:33:06 20 recollection is that the document was 10:33:08 21 transmitted to me in Microsoft Word format. I 10:33:13 22 have Microsoft Word on my computer, so it 10:33:17 23 permitted me to edit the document and make the 10:33:22 24 changes. 10:33:24 25 Q. And before you executed it and after you 44 10:33:27 1 made the changes, did you have any discussions 10:33:29 2 with Mr. Wille? 10:33:31 3 A. I don't believe that I have had any 10:33:41 4 conversation. 10:33:41 5 Q. Or anyone else, for that matter? 10:33:44 6 A. None that I am aware that I can remember. 10:33:48 7 Q. So you didn't consult with them about the 10:33:50 8 changes you were making? 10:33:51 9 A. No, no, I made the changes. 10:33:52 10 Q. I understand that you made the changes. 10:33:54 11 A. That's correct. 10:33:55 12 Q. But you didn't -- well, you didn't 10:33:58 13 communicate with them at all about whether or 10:34:00 14 not those changes were, you know, relevant to 10:34:04 15 the issues that they thought were at hand or 10:34:06 16 anything like that? 10:34:07 17 A. Right. I sent back in the e-mail the 10:34:11 18 document that I -- and with the changes, and 10:34:17 19 that is the -- that is my recollection of the 10:34:21 20 content. 10:34:22 21 MR. HILL: Okay. For the 10:34:27 22 record, we would like to get a copy of the 10:34:32 23 original draft. 10:34:36 24 MR. PRICHARD: That is not adopted 10:34:37 25 by the witness. So you will have to make your 45 10:34:39 1 request to Judge Carr. 10:34:44 2 MR. HILL: Okay. Just again, 10:34:50 3 for the record, so that we can appropriately do 10:34:52 4 this, can you at least represent that it 10:34:55 5 physically exists, that you have it? 10:34:57 6 MR. PRICHARD: No, I can't 10:34:59 7 represent that at all. What? 10:35:03 8 MR. WILLE: We just have to 10:35:04 9 check, because I don't know. 10:35:07 10 MR. PRICHARD: I don't know 10:35:08 11 either. 10:35:09 12 BY MR. HILL: 10:35:10 13 Q. Do you have an understanding as to who 10:35:12 14 drafted the one that you originally saw? 10:35:14 15 A. I have no idea who drafted it. My concern 10:35:18 16 was whether or not it was reasonably accurate, 10:35:20 17 and it was, with the exception of there were 10:35:25 18 some limitations, and again, I corrected it and 10:35:28 19 edited it and amended it. 10:35:30 20 Q. What is your recollection of the changes 10:35:31 21 that you made? 10:35:32 22 A. My recollection is on paragraph 2, line 3, 10:35:41 23 I changed the time frame in which the body was 10:35:44 24 found. I believe that the original stated three 10:35:49 25 weeks, and the fact of the matter is, her body 46 10:35:51 1 was found six weeks after, reasonably, after the 10:35:54 2 time of the abduction. 10:36:17 3 I made a change on paragraph 3, the top of 10:36:21 4 page 2, adding the fact that he described not 10:36:24 5 only the purse, but the contents. So I added 10:36:27 6 the words, "Contents, specifically U.S. Postal 10:36:34 7 Service Money Order vouchers." 10:36:51 8 In paragraph 4, the first line, I changed 10:36:56 9 the language from "my investigation" to "the 10:37:00 10 task force investigation." 10:37:36 11 In paragraph 5, in the last four lines, I 10:37:43 12 added: "I have not developed any information or 10:37:47 13 evidence, during many years of investigation of 10:37:49 14 this matter, which would contradict the 10:37:52 15 eyewitness identification of Delaney Gibson at 10:37:55 16 or near the Elgin, Ohio Post Office on the 10:37:59 17 morning of August 9, 1982." 10:38:59 18 I believe that I added on paragraph 9 the 10:39:07 19 following language, which would be the four last 10:39:10 20 lines: "Subsequent investigation determined 10:39:13 21 that Mr. Baumgardner suffered an industrial 10:39:17 22 accident in Pasadena, Texas on August 9, 1982, 10:39:22 23 and received medical treatment on the same date. 10:39:25 24 Based on this information, Mr. Baumgardner was 10:39:28 25 eliminated as a suspect. I have no knowledge of 47 10:39:31 1 any alleged x-ray film." 10:39:41 2 On paragraph 10, my recollection is that I 10:39:56 3 added the last sentence, which reads: "I also 10:39:59 4 recall that notes of my interviews, along with 10:40:01 5 my formal Memoranda bearing on the same series 10:40:04 6 of interviews, were presented to the defense in 10:40:08 7 discovery and discussed during my testimony." 10:40:12 8 Those, as I recollect, are the changes, the 10:40:15 9 additions that I made to this document. 10:40:17 10 Q. From your present recollection? 10:40:20 11 A. Yes. 10:40:21 12 Q. Now, Exhibit 91, which you have provided us 10:40:25 13 earlier, I think what you have characterized as 10:40:32 14 "the purported transcript"? 10:40:33 15 A. Yes, that's correct. 10:40:35 16 Q. Do you recall whether or not you received 10:40:38 17 this before or after you executed your 10:40:41 18 affidavit? 10:40:44 19 A. I believe I received that after I executed 10:40:46 20 the affidavit. 10:40:48 21 Q. Now, if I understand your testimony, I 10:40:55 22 think it is fairly clear, correct, the execution 10:40:58 23 of the affidavit and the events that led to it, 10:41:05 24 were done telephonically and electronically 10:41:08 25 between you and the Attorney General's Office? 48 10:41:10 1 A. That's correct. 10:41:11 2 Q. But there did come a time where you 10:41:13 3 testified where you met with these gentlemen at 10:41:15 4 a Bob Evans Restaurant? 10:41:17 5 A. Yes. 10:41:17 6 Q. Was that before or after the execution of 10:41:19 7 the affidavit? 10:41:23 8 A. I think it would likely be after, but I am 10:41:27 9 not certain. 10:41:27 10 Q. Again, I think your testimony -- well, 10:41:30 11 maybe not. My memory isn't so good. 10:41:34 12 I thought you had testified that you 10:41:36 13 received this from them at that meeting. 10:41:39 14 A. I did indeed, yes. 10:41:41 15 Q. So that would suggest that the meeting was 10:41:44 16 after the execution of the affidavit, if, in 10:41:47 17 fact, your testimony a minute ago that you think 10:41:50 18 you got this after the execution of the 10:41:52 19 affidavit is correct, right? Did I just lose 10:41:55 20 you? 10:41:56 21 A. Yes, you did. And the realities are, I 10:41:59 22 cannot independently fix the date. And I don't 10:42:02 23 recollect whether it was before or after I 10:42:04 24 signed the affidavit. 10:42:05 25 Q. What was the purpose of your meeting at the 49 10:42:10 1 Bob Evans Restaurant? 10:42:11 2 A. To discuss this document. 10:42:15 3 Q. Was any writing, to the best of your 10:42:16 4 knowledge, prepared at that meeting or 10:42:18 5 surrounding that meeting? 10:42:20 6 A. I don't quite understand the question. 10:42:25 7 Q. Was there any written document that was 10:42:29 8 either produced or created during the meeting 10:42:33 9 that you had with these gentlemen? 10:42:35 10 A. If your question is, did I take notes, I 10:42:40 11 did not. 10:42:41 12 Q. And as far as you know, I mean, I assume 10:42:44 13 they were taking notes probably? 10:42:47 14 A. I don't remember that either, to tell you 10:42:49 15 the truth. In fact, I am not so sure that 10:42:51 16 anyone took any notes, to be honest. 10:42:53 17 Q. But nobody gave you anything to sign at 10:42:56 18 that meeting? 10:42:56 19 A. Not that I recollect. 10:43:01 20 Q. This might be an appropriate time to, at 10:43:11 21 least for me, to take a three-minute bathroom 10:43:14 22 break. 10:43:16 23 A. Cool. 10:43:17 24 (Thereupon, a recess was taken.) 25 50 10:50:25 1 BY MR. HILL: 10:50:34 2 Q. Were you on the scene in Elgin on August 10:50:37 3 the 9th? 10:50:39 4 A. I was not, I was in trial in Federal Court. 10:50:45 5 Q. Do you recall maybe specifically or 10:50:47 6 approximately when it is that you came on board 10:50:48 7 the team, as it were? 10:50:50 8 A. I was sent to Elgin, Ohio, on or about 10:50:54 9 September the 18th of 1982. 10:50:57 10 Q. Is it a fair characterization then to say 10:51:04 11 that prior to September 18th, or thereabouts, 10:51:07 12 you didn't have any -- you didn't play any role 10:51:10 13 in the Mottinger cases? 10:51:12 14 A. That is correct. I was in trial in Federal 10:51:15 15 Court and my attentions were directed toward 10:51:19 16 that trial and all the matters attendant 10:51:25 17 thereto. 10:51:25 18 Q. When did you come down to Elgin? I mean, 10:51:33 19 was it literally going to Elgin on September 10:51:37 20 18th, or is that the shorthand for being part of 10:51:42 21 the case? 10:51:44 22 A. It is precisely that. We went, proceeded 10:51:49 23 directly to the motel in Van Wert, Ohio. There 10:51:53 24 were several cars of us actually. And we went 10:51:56 25 in procession, if you will, to Van Wert. 51 10:52:00 1 Q. And were there several of you who had been 10:52:03 2 involved in this trial and now were being 10:52:05 3 reassigned? 10:52:06 4 A. I was the only person who was pulled from 10:52:08 5 this trial, and it had been a protracted fraud 10:52:12 6 trial that went 14 weeks, and another inspector 10:52:17 7 and I worked on that trial, worked on the case 10:52:19 8 for some years. 10:52:23 9 When the body was found, the bosses pulled 10:52:25 10 me and sent me there and let the other 10:52:28 11 inspectors stay with the trial matter. 10:52:34 12 Q. Well, is it accurate to say that the 10:52:42 13 investigation -- on or about September 18th and 10:52:46 14 thereafter, the investigation was being 10:52:48 15 physically run out of Van Wert? 10:52:51 16 A. That is accurate, yes. 10:52:52 17 Q. Sort of where the headquarters were? 10:52:55 18 A. That's right. 10:52:56 19 Q. It was being run out of a motel, is that 10:52:59 20 where the offices were? 10:53:00 21 A. Yes, at the Best Western Motel, what was 10:53:03 22 then the Best Western Motel. 10:53:05 23 Q. Did you take up residence at that Best 10:53:09 24 Western? 10:53:09 25 A. I did. 52 10:53:09 1 Q. Pretty much beginning around September 10:53:12 2 18th? 10:53:13 3 A. Yes. 10:53:15 4 Q. And for how long did that remain your home 10:53:20 5 away from home, as it were? 10:53:22 6 A. About two years. 10:53:23 7 Q. And was it during that two-year period or 10:53:28 8 so, was this your full-time case? Were you 10:53:32 9 working on other cases? 10:53:33 10 A. I was assigned exclusively to this case for 10:53:36 11 that two-year period of time. 10:53:40 12 Q. So no other responsibilities? 10:53:41 13 A. No other responsibilities, other than to go 10:53:43 14 to the range and qualify with the firearm, as is 10:53:45 15 required on an annual basis. 10:53:47 16 Q. But no other cases? 10:53:48 17 A. No other caseload, that's right. 10:53:51 18 Q. By September 18th, was somebody in charge 10:53:54 19 of the investigation? 10:53:55 20 A. Yes. 10:53:55 21 Q. Who was that? 10:53:56 22 A. That would be Inspector Strausbaugh. 10:53:59 23 Q. Do you know when he assumed that role? 10:54:03 24 A. That would have been on August the 9th, 10:54:06 25 1982. The case was assigned to him out of 53 10:54:09 1 Columbus. 10:54:18 2 Q. I think over the years the term "task 10:54:21 3 force" has been used. Is that an accurate 10:54:23 4 description of the group? 10:54:24 5 A. Yes, it is. 10:54:26 6 Q. And did the task force consist of both 10:54:30 7 Federal and State officials? 10:54:31 8 A. It did. And it varied in size over time. 10:54:36 9 As you would expect, there were significant 10:54:38 10 numbers of people there at the outset, and as 10:54:40 11 time went on, the numbers dwindled. 10:54:47 12 Q. At the time that you were assigned it, on 10:54:54 13 or about September 18th, had the body been found 10:54:58 14 yet? 10:54:58 15 A. Yes. That was the occasion that required 10:54:59 16 my presence there. 10:55:03 17 Q. And had that occurred pretty close to 10:55:07 18 the -- do you remember when that happened? 10:55:08 19 A. It happened, I believe, on the 18th. So 10:55:14 20 the body was found on a Saturday, and on Sunday 10:55:18 21 morning, perhaps the 19th, we were all en route 10:55:22 22 from Cleveland to Van Wert. So we were 10:55:26 23 dispatched the day following the date on which 10:55:28 24 the body was found, as I recollect. 10:55:31 25 Q. So you never saw the body in the field? 54 10:55:33 1 A. I did not see the body at the scene. It 10:55:36 2 had already been removed and taken to the County 10:55:40 3 Coroner's Office in Toledo. 10:55:43 4 Q. Now, could you, in your own words, sort of 10:55:49 5 describe organizationally how things were run. 10:55:58 6 And that is probably too general a question. 10:56:00 7 Maybe I ought to ask it more specifically. 10:56:03 8 Were there regular meetings that were held 10:56:07 9 among investigators? I am now focusing on sort 10:56:14 10 of the September '82 time frame. 10:56:18 11 A. There may have been briefings. But there 10:56:22 12 was -- and I don't remember them. But it was a 10:56:26 13 time of accelerated activity. And as I 10:56:30 14 recollect, people were being assigned leads and 10:56:32 15 to run out and do interviews. 10:56:38 16 Q. Who was doing this assigning? 10:56:40 17 A. That would be Inspector Strausbaugh. 10:56:43 18 Q. So it was generally regarded that he was in 10:56:47 19 charge? 10:56:47 20 A. That is correct. 10:56:49 21 Q. And so it wasn't a whole bunch of people 10:56:56 22 running off in separate directions? 10:56:57 23 A. Doing their own thing, no, it was not. 10:57:00 24 Q. It was coordinated? 10:57:01 25 A. Coordinated to the extent that is possible 55 10:57:03 1 with so many people. But, yes. 10:57:05 2 Q. Do you recall whether there were sort of 10:57:13 3 regular briefings where sort of, to the extent 10:57:17 4 possible, everybody would get together at 8:00 10:57:19 5 in the morning or something and sort of discuss 10:57:21 6 what was going on? 10:57:22 7 A. Yes. Every morning at breakfast, we would 10:57:25 8 sort of informally kick this matter around and 10:57:28 9 discuss what had been learned and such as that. 10:57:30 10 And occasionally, we would have a formal event, 10:57:35 11 a formal meeting, if you will. But very few of 10:57:38 12 those. 10:57:42 13 It seemed to me that Sheriff Brittsan and 10:57:49 14 Ralph Eversole and Stan Owens, all from the Van 10:57:57 15 Wert County Sheriff's Office would come down for 10:58:00 16 breakfast in the morning and we would sit around 10:58:02 17 and eat breakfast and discuss what we had 10:58:05 18 learned and kick around theories and hypotheses. 10:58:08 19 Q. And at this stage of the investigation, 10:58:09 20 approximately how many people from the Postal 10:58:14 21 Service Inspection Service were involved, as 10:58:15 22 best you recall? 10:58:19 23 A. My best guess is probably 40 at that date, 10:58:25 24 in September of 1982. 10:58:27 25 Q. Okay. Was the FBI involved? 56 10:58:31 1 A. Yes. 10:58:31 2 Q. Did they have agents on the scene? 10:58:34 3 A. No. They had an agent assigned, Bob 10:58:37 4 Crewdson was his name. He was assigned out of 10:58:47 5 the Toledo office to a field office in Lima, and 10:58:51 6 he had come over and assisted early on, but 10:58:56 7 ultimately he faded away also. 10:58:58 8 Q. Was there any sort of -- well, let me back 10:59:11 9 up. I am assuming that the investigation, as it 10:59:14 10 was proceeding, was generating paperwork, people 10:59:19 11 were -- 10:59:19 12 A. Tons of paperwork, yes. 10:59:21 13 Q. Okay. Notes, memoranda, that sort of 10:59:24 14 thing? 10:59:24 15 A. Correct. 10:59:25 16 Q. Was there a protocol as to how people were 10:59:29 17 expected to memorialize things? 10:59:32 18 A. Yes. The notes themselves were to be 10:59:43 19 provided to one inspector who was responsible 10:59:48 20 for filing them and categorizing the files. 10:59:53 21 Q. Do you happen to recall who that was? 10:59:56 22 A. That would be a young lad by the name of 10:59:58 23 Dan Bonda, B-o-n-d-a. 11:00:01 24 Q. A Postal Inspector? 11:00:03 25 A. That's correct. He was a brand new kid 57 11:00:06 1 then, right out of the academy, and with 11:00:09 2 virtually no experience, a good job for a 11:00:14 3 rookie. 11:00:17 4 Q. And I mean, so people, as they did their 11:00:21 5 notes, they were supposed to turn them in to 11:00:24 6 Mr. Bonda, who was supposed to keep them in an 11:00:27 7 organized fashion? 11:00:28 8 A. That's correct. 11:00:29 9 Q. And were people also expected to turn their 11:00:32 10 notes into memoranda, into formal -- 11:00:37 11 A. It is difficult for me to answer that, and 11:00:39 12 the reason I say that is I don't know if that 11:00:47 13 was done, partly because of the support 11:00:50 14 limitations we had at the scene. 11:00:53 15 In other words, we did not have secretaries 11:00:55 16 to type. Some documents were reduced to 11:01:02 17 memoranda. I cannot tell you how many or who 11:01:06 18 did those things. And as in all such things, 11:01:12 19 you have certain individuals who are more 11:01:14 20 faithful to doing the job properly, and others 11:01:22 21 who slough it off. So I cannot say, or assert 11:01:29 22 that memoranda of interviews were prepared 11:01:33 23 consistently by every person involved. 11:01:35 24 Q. Was it your practice to prepare them? 11:01:37 25 A. It was. 58 11:01:37 1 Q. And when you prepared -- 11:01:40 2 A. Not on each and every interview. But on 11:01:43 3 the important interviews, yes. 11:01:44 4 Q. And would you actually prepare them 11:01:48 5 yourself, physically prepare them yourself when 11:01:50 6 you did, sit down at a -- 11:01:52 7 A. No, I would not type. What I did is 11:01:55 8 dictated them and sent the tapes to Cleveland, 11:01:59 9 and then the support staff would type them and 11:02:02 10 send them back. 11:02:03 11 Q. And then when they were sent back, you 11:02:06 12 would review them? 11:02:06 13 A. And sign them, that's correct. 11:02:08 14 Q. And then you would give them to Mr. Bonda 11:02:10 15 and he would file them appropriately? 11:02:12 16 A. They would be filed in the case file, yes, 11:02:15 17 one would hope appropriately. 11:02:17 18 Q. The case file, is this what eventually came 11:02:20 19 to be known as the file cabinets that were in 11:02:24 20 that room? 11:02:26 21 A. Yes. There were two file cabinets, eight 11:02:29 22 file drawers. 11:02:30 23 Q. And if things were done the way they were 11:02:32 24 supposed to have been done, that is where 11:02:35 25 everything would go, any paperwork? 59 11:02:37 1 A. That's correct. That was the case file. 11:02:42 2 Q. And did all of you have access to the case 11:02:46 3 file, so that if you needed to look something 11:02:49 4 up, you could go look it up? 11:02:50 5 A. Yes. 11:02:51 6 Q. Were things circulated outside of the case 11:02:53 7 file, so that there were general sort of -- you 11:02:56 8 know, make copies and give memoranda to one 11:02:59 9 another? 11:03:00 10 A. I don't recollect that. 11:03:01 11 Q. I think you identified earlier Mr. Keister 11:03:09 12 as the prosecuting attorney for Van Wert County 11:03:14 13 at the time. 11:03:19 14 A. That is correct. 11:03:20 15 Q. In this, let's focus on the time period 11:03:22 16 from about August, which predates your arrival, 11:03:25 17 August of '82 through January of '83. Okay? 11:03:33 18 A. (Witness nodding head up and down.) 11:03:36 19 Q. What role, if any, as best you recall, did 11:03:41 20 Mr. Keister play in the investigative effort? 11:03:44 21 A. Mr. Keister was the prosecutor. As the 11:03:50 22 prosecutor, ultimately it was expected that, 11:03:54 23 given the hopeful outcome that we would identify 11:03:58 24 one or more offenders, he would prosecute. 11:04:01 25 So he had no -- as I recollect, he had no 60 11:04:05 1 role in directing the investigation, but rather 11:04:09 2 was updated as to the progress by Inspector 11:04:17 3 Strausbaugh, who was the case agent. 11:04:19 4 Q. And did you participate in any of those 11:04:22 5 sort of briefings or meetings or -- 11:04:25 6 A. No. It wasn't my job. 11:04:27 7 Q. Okay. And that is your understanding, 11:04:31 8 based upon sort of your general memory of what 11:04:38 9 you were being told, was the -- I mean, you 11:04:41 10 didn't participate in that process, but you had 11:04:43 11 an awareness that that was going on? 11:04:46 12 A. Yes. Technically, whenever there is a task 11:04:49 13 force investigation, and I have participated in 11:04:52 14 many, the case agent's responsibility largely is 11:04:59 15 to direct the investigative activity and to 11:05:02 16 maintain liaison with the prosecutor in any 11:05:07 17 case, not necessarily just this one, but in any 11:05:10 18 such matters. 11:05:11 19 Q. What is your recollection, if you have any, 11:05:17 20 with respect to the respective roles that may 11:05:23 21 have been played by Mr. Keister or the U.S. 11:05:26 22 Attorney in Toledo, again, during this period of 11:05:30 23 time, what I would -- let's say the August to 11:05:33 24 January period of time? 11:05:35 25 A. I don't know -- it seems to me that we 61 11:05:53 1 obtained some Federal Grand Jury subpoenas 11:05:56 2 through the Office of the United States Attorney 11:06:03 3 and the returns were made to the Federal Grand 11:06:06 4 Jury. 11:06:07 5 Q. Document kind of subpoenas? 11:06:08 6 A. Yes. 11:06:09 7 Q. Record kind of subpoenas? 11:06:10 8 A. That's correct. 11:06:11 9 Q. Not testimonial subpoenas? 11:06:15 10 A. No. Insofar as I am aware, there was no 11:06:18 11 Grand Jury testimony taken at the Federal level 11:06:21 12 concerning this matter. 11:06:22 13 Q. Now, there obviously came a point in time, 11:06:26 14 because the cases were charged in State Court, 11:06:31 15 where a decision was made that this case would 11:06:34 16 be prosecuted in Van Wert County. There was 11:06:41 17 concurrent jurisdiction, potential concurrent 11:06:45 18 jurisdiction with the Federal Court, correct? 11:06:49 19 A. That is correct. 11:06:49 20 Q. Do you have any understanding or 11:06:52 21 recollection as to how that decision was made 11:06:54 22 and by whom and when it was made? 11:06:56 23 A. No, I was not a party to any of those 11:07:02 24 discussions or decisions. My job was to go out 11:07:06 25 and interview people, gather the evidence and 62 11:07:07 1 come back. That is what I did. 11:07:09 2 Q. Just as a general working matter, as you 11:07:11 3 think back on it, do you have a sense of at what 11:07:15 4 point in time it became clear to you that this 11:07:18 5 was going to be brought in Van Wert County, as 11:07:21 6 opposed to anything else? 11:07:23 7 A. None whatsoever. Again, my focus was to 11:07:27 8 develop the information and the evidence, and 11:07:30 9 someone else's responsibility was to worry about 11:07:33 10 those matters. 11:07:44 11 Q. There came a point in time where you met my 11:07:50 12 client, right? 11:07:50 13 A. Oh, yes, there did. 11:07:52 14 Q. And that was in October, correct, for the 11:07:58 15 first time? 11:08:02 16 A. I would think it is November. But I am 11:08:04 17 uncertain as to the specific date. 11:08:06 18 Q. Okay. But it is fair to say that you then 11:08:11 19 met with him a considerable number of times? 11:08:16 20 A. On a -- yes. I met with him 13 times, I 11:08:26 21 believe. 11:08:28 22 Q. And that was between either, you know, 11:08:32 23 October or November when you began, and January? 11:08:37 24 A. January 13th of 1983, that's right. 11:08:40 25 Q. And January 13th, 1983, is the last time 63 11:08:43 1 you met with him prior to trial; is that right? 11:08:46 2 A. That's correct. 11:08:47 3 Q. Subsequent to trial, you met with him once, 11:08:50 4 though? 11:08:50 5 A. I did, yes. 11:08:52 6 Q. And once and only once, I take it? 11:08:56 7 A. Yes, once and only once. 11:09:02 8 Q. Now, how did it come -- and it is -- I 11:09:08 9 mean, it is an accurate characterization that 11:09:10 10 you were the investigator who had the principal 11:09:17 11 responsibility for interviewing Mr. Spirko? 11:09:20 12 A. Yes, that's correct. That would be after 11:09:21 13 the initial investigation -- or the initial 11:09:24 14 interview conducted by two other inspectors. 11:09:26 15 Q. But after that initial interview, which you 11:09:29 16 did not participate in, correct? 11:09:31 17 A. That's correct, I did not. 11:09:33 18 Q. Then one way or the other, it became your 11:09:38 19 responsibility, if you will, to conduct the 11:09:40 20 interviews, is that -- 11:09:42 21 A. That's correct. I assumed that 11:09:44 22 responsibility. 11:09:45 23 Q. Now, how did it come to pass that that 11:09:50 24 assignment went to you, if you know? 11:09:52 25 A. Well, for one thing, I had had significant 64 11:09:57 1 experience investigating aggravated robberies, 11:10:04 2 and I just simply informed the team leader, 11:10:08 3 Inspector Strausbaugh, that I would prefer to 11:10:11 4 work on this particular individual, and I did 11:10:13 5 that, he granted that request, and then I 11:10:15 6 proceeded to Toledo, Ohio, and spent some time 11:10:19 7 there. 11:10:24 8 Q. And you made that request of Inspector 11:10:33 9 Strausbaugh because it was a particular -- why 11:10:35 10 did you make that request? 11:10:35 11 A. Because nobody can do it like I can do it. 11:10:38 12 Q. So you had confidence that you could do a 11:10:40 13 good job? 11:10:41 14 A. Absolutely. 11:10:42 15 Q. And that was based upon a judgment that you 11:10:54 16 made relatively early on before you made the 11:10:59 17 request, that this individual might have some 11:11:05 18 involvement, was that fair? 11:11:07 19 A. No, that is not fair. 11:11:08 20 Q. Well, then you tell me, in your words, did 11:11:18 21 it appear that this person had information that 11:11:21 22 was valuable and you wanted to -- 11:11:23 23 A. Yes, absolutely, absolutely. 11:11:25 24 Q. Let me ask you, were any of the -- is 11:11:45 25 "interview" a fair word to use? 65 11:11:48 1 A. That is a fair word, yes. They certainly 11:11:53 2 were not interrogations, let me tell you that. 11:11:58 3 Q. The interviews you conducted of Mr. Spirko, 11:12:02 4 were they tape recorded? 11:12:05 5 A. No. 11:12:07 6 Q. Okay. Well, tell me why they weren't tape 11:12:15 7 recorded. 11:12:16 8 A. They were not tape recorded because, in my 11:12:19 9 opinion, the tape recorder poses an impediment 11:12:24 10 to communication with another person. The other 11:12:29 11 individual has a tendency to be more guarded. 11:12:32 12 And what I was seeking here was the truth. 11:12:36 13 And in my 28-year career, I have only used 11:12:39 14 a tape recorder once or twice, and that was for 11:12:42 15 the purpose of recording statements of people 11:12:45 16 who were functionally illiterate. They lacked 11:12:49 17 the capacity to read and to write. 11:12:50 18 Otherwise, I never use a tape recorder in 11:12:53 19 any case. 11:12:55 20 Q. And because in the cases you used it, 11:12:59 21 because they were functionally illiterate -- 11:13:02 22 A. Yes. 11:13:03 23 Q. -- you wouldn't be able to get a statement 11:13:05 24 from them, do I understand your -- 11:13:08 25 A. Yes, because the suspect lacked the 66 11:13:10 1 capacity to furnish a written or typewritten 11:13:13 2 statement. 11:13:16 3 Q. Did Mr. Spirko provide a written or 11:13:21 4 typewritten statement that he signed or 11:13:23 5 initialed or anything of that nature? 11:13:24 6 A. He refused. 11:13:25 7 Q. He was asked and he denied? 11:13:28 8 A. He was asked, yes, and he refused. In 11:13:30 9 fact, early on, on the very first interview, he 11:13:33 10 told me, "I am not giving any written 11:13:36 11 statements, I am not signing anything." I said, 11:13:38 12 "Okay." 11:13:40 13 He was holding all the apples at that time, 11:13:43 14 although he did -- he executed the warning and 11:13:46 15 waivers as acknowledgment that he was advised of 11:13:48 16 his rights. But he refused it from the outset 11:13:50 17 to give statements, a written statement. 11:13:52 18 Q. And was that a request that you made 11:13:55 19 repeatedly? 11:13:56 20 A. Probably once or twice. But he was pretty 11:14:00 21 firm in his position that he would not provide a 11:14:07 22 written statement. 11:14:08 23 Q. This was at the first meeting? 11:14:09 24 A. Oh, yes, absolutely, because the fact of 11:14:11 25 the matter is, that when we conducted the first 67 11:14:15 1 interview, which really was -- excuse me -- a 11:14:18 2 two-part interview over two days, I asked him if 11:14:21 3 he would provide me a statement, a written 11:14:23 4 statement, because he had entered into plea 11:14:26 5 negotiations and an agreement which required him 11:14:28 6 to tell the truth, but he refused. 11:14:34 7 Q. So at that point, isn't he the functional 11:14:38 8 equivalent of an illiterate, if he is not going 11:14:41 9 to give you a statement, the illiterate can't 11:14:45 10 give you one? 11:14:46 11 A. No, no, he is not. Oh, no, no, no, no, no. 11:14:49 12 He is not a functional illiterate, insofar as I 11:14:53 13 am aware. 11:14:54 14 Q. I meant from your investigator's point of 11:14:56 15 view, you weren't going to be able to get the 11:14:59 16 written statement. So my question is, did you 11:15:01 17 reconsider the question of whether or not to 11:15:03 18 tape record then? 11:15:04 19 A. No, I did not, because that tape recorder, 11:15:07 20 again, would be an impediment, in my view, to 11:15:11 21 him relating any of the number of various 11:15:15 22 versions of this crime as he later did. Hoping, 11:15:24 23 as I did, that he might sooner or later actually 11:15:27 24 tell the truth. 11:15:27 25 Q. It became pretty obvious to you throughout 68 11:15:30 1 this process that he wasn't telling you the 11:15:32 2 truth; is that correct? 11:15:33 3 A. As time went on, yes. And specifically, he 11:15:35 4 had entered into an agreement, a plea agreement 11:15:38 5 that he would receive certain consideration in 11:15:43 6 exchange for complete and totally accurate 11:15:49 7 information. 11:15:51 8 Well, by the time that we got to the second 11:15:54 9 version of events, he was already changing the 11:15:57 10 story. So at that point in time, it is clear 11:15:59 11 that he had reneged on the deal. 11:16:02 12 Q. And in fact, there were quite a series of 11:16:08 13 false stories that he gave you, right? 11:16:11 14 A. Yes, there were. About 13 would be my 11:16:15 15 guess. 11:16:16 16 Q. And it is also fair to say, isn't it, that 11:16:21 17 in your judgment, at least, he never gave you a 11:16:23 18 story that was true in its totality? 11:16:27 19 A. He never provided totally accurate details 11:16:31 20 and information. I am convinced of that, yes. 11:16:33 21 Q. Now, in this sort of progression that goes 11:16:39 22 on for two and a half months, is that about 11:16:43 23 right? 11:16:44 24 A. November to January 13th, about two and a 11:16:48 25 half months from beginning to end, yes. 69 11:16:51 1 Q. Okay. Did there come -- did there come a 11:16:59 2 point in that progression where he, in your 11:17:03 3 mind, became a suspect, as opposed to someone 11:17:08 4 who had knowledge? 11:17:09 5 A. Yes. 11:17:10 6 Q. And do you recall approximately when that 11:17:15 7 was in the sequence? 11:17:18 8 A. Well, during the first interview, I was 11:17:23 9 struck by his gestures and response and reaction 11:17:31 10 to the actual murder of the victim. Red flag 11:17:38 11 went up right there. Would you like me to 11:17:40 12 articulate what happened? I will be glad to. 11:17:43 13 We were sitting in -- I was doing the 11:17:46 14 interview in a day room, for want of a better 11:17:50 15 term, in the Lucas County Jail, and I was seated 11:17:54 16 at a desk writing notes, basically somewhat like 11:17:58 17 a school desk with a writing surface, and 11:18:04 18 Mr. Spirko was seated in front of me on a 11:18:07 19 folding chair. 11:18:09 20 And he was relating these events which he 11:18:12 21 claimed to have heard from a person whom he 11:18:18 22 identified as Napoleon, if I remember right. As 11:18:26 23 he was describing these events that were 11:18:28 24 allegedly told to him at a party, he got to the 11:18:33 25 point in the narrative where he was describing 70 11:18:37 1 the manner in which it was told to him allegedly 11:18:40 2 that the victim was murdered. 11:18:42 3 And at that time, as he sat there and began 11:18:45 4 describing the stabbing of the victim as 11:18:49 5 allegedly told to him, he looked up at the 11:18:51 6 corner of the room behind me, his eyes started 11:18:55 7 to tear, he began to tremble, the muscles in his 11:19:03 8 chest began to twitch uncontrollably, and as he 11:19:06 9 spoke, he flushed, and as he was describing the 11:19:09 10 murder of the victim, he held his hand, his left 11:19:13 11 hand as if he were holding a knife in a 11:19:15 12 horizontal plane and he was thrusting with his 11:19:19 13 left hand. 11:19:21 14 Now, that series of responses that 11:19:28 15 correlated with his description was certainly 11:19:34 16 not lost on me, because I was aware that the 11:19:38 17 victim had been stabbed on the right side of her 11:19:43 18 body and that the blade had been inserted on a 11:19:46 19 horizontal plane. Significant, in my view. 11:19:50 20 Nevertheless, as time went on, I 11:19:54 21 interviewed him and interviewed him and 11:19:56 22 interviewed him, and each of these stories he 11:20:02 23 would name different people for being 11:20:05 24 responsible for these acts. But there came a 11:20:10 25 time when, you know, he would say these 71 11:20:12 1 different things that suggested intimate 11:20:15 2 knowledge of the crime. 11:20:17 3 And ultimately, there came a time, I said, 11:20:20 4 "This is the guy, this is the guy," because he 11:20:23 5 knows these intimate details and he names -- he 11:20:26 6 provides conflicting identities of the persons 11:20:29 7 who he alleges are responsible for the act. 11:20:32 8 Q. So he was -- over a period of time, he was 11:20:34 9 attributing his information to a whole 11:20:39 10 different -- a whole series of people or 11:20:43 11 characters; is that right? 11:20:46 12 A. Yes, yes. 11:20:48 13 Q. And from an investigative point of view, 11:20:51 14 did you, either yourself or have others then 11:20:56 15 seek to sort of confirm or eliminate these 11:21:03 16 various individuals that he named? 11:21:05 17 A. We made attempts to corroborate each and 11:21:10 18 every one of his stories, which would include 11:21:13 19 identifying people whom he named as the 11:21:18 20 offenders in this matter. 11:21:20 21 Q. Okay. And in the process of doing that, 11:21:25 22 you concluded that these people that he was 11:21:27 23 naming, many of whom were being named by 11:21:30 24 nickname; is that right? 11:21:31 25 A. That's correct. 72 11:21:33 1 Q. In some instances these were real people, 11:21:38 2 and in some instances, you weren't able to even 11:21:42 3 corroborate that they were real people; is that 11:21:44 4 right? 11:21:44 5 A. I think that we identified nearly everyone 11:21:47 6 who he named by nickname. 11:21:49 7 Q. As a real person? 11:21:50 8 A. As a real person. He gave us nicknames, 11:21:55 9 Rooster, Dirty Dan, Napoleon, these are all 11:22:01 10 people who we ultimately identified and 11:22:04 11 interviewed actually. 11:22:08 12 The interesting thing that I found about 11:22:11 13 interviewing this person, this Defendant, was 11:22:15 14 that he lacked the intellectual capacity to 11:22:24 15 completely fabricate persons and events. He 11:22:30 16 would take a person from a real person, and then 11:22:35 17 just plug them in in another place in his 11:22:39 18 reality. It was an odd facet of his 11:22:44 19 personality, but I recognized that early on. 11:22:47 20 Q. So then you investigated these various 11:22:49 21 people and you concluded that, in fact, they had 11:22:51 22 no involvement? 11:22:52 23 A. Yes, correct. 11:22:53 24 Q. And there were a whole series of these 11:22:55 25 people? 73 11:22:55 1 A. There are a whole series of people and a 11:22:57 2 whole series of stories, yes. 11:23:00 3 Q. Now, and increasingly over time, you became 11:23:11 4 convinced that although none of these people 11:23:15 5 that he was attributing these things to were, in 11:23:18 6 fact, involved, you became convinced that he had 11:23:21 7 some involvement? 11:23:22 8 A. Correct. 11:23:23 9 Q. Well, is it fair to say that you were also 11:23:32 10 fairly convinced and the investigators as a 11:23:35 11 whole were fairly convinced that this was the 11:23:38 12 work of more than one person? 11:23:40 13 A. Oh, yes. It was clearly my impression that 11:23:43 14 it was the work of four people. That is what 11:23:45 15 the evidence suggested to me. 11:23:47 16 Q. And the evidence, what is your recollection 11:23:50 17 of the evidence that suggested to you the number 11:23:53 18 four? 11:23:53 19 A. Well, there were -- there was a car parked 11:24:02 20 in front of the post office at the time, which 11:24:04 21 was a two-tone copper, brown colored Chevrolet 11:24:08 22 Monte Carlo, at least that is what we believed 11:24:11 23 it to be. There was a witness that saw a person 11:24:16 24 standing at the front of the car leaning against 11:24:20 25 the car as the victim pulled up to the post 74 11:24:23 1 office. 11:24:23 2 Q. Let me interrupt you for one moment. Just 11:24:27 3 so I am clear, what you are describing now, are 11:24:32 4 these things based upon your discussions with 11:24:34 5 witnesses or what you came to learn that they 11:24:36 6 had said to other investigators? 11:24:38 7 A. What I had learned from interviews and the 11:24:43 8 investigation of other investigators, because I 11:24:46 9 was not there at the scene. 11:24:46 10 Q. Not your personal interviews? 11:24:50 11 A. That's correct. 11:24:51 12 Q. I am sorry. 11:24:52 13 A. So as I reconstructed the scene, there is a 11:24:56 14 person, one suspect leaning against the car, 11:25:02 15 which is parked in front of the post office 11:25:04 16 facing southbound. A witness has observed a 11:25:11 17 female standing by a window on the -- a double 11:25:16 18 hung window on the south side of the post 11:25:23 19 office. There was at least one person inside, 11:25:26 20 and I suspect two. 11:25:28 21 I believe that there are two automobiles 11:25:30 22 involved in this offense. One is the vehicle 11:25:34 23 that was seen by the witness parked in front of 11:25:37 24 the post office, and I believe there is another 11:25:42 25 vehicle parked over a rise at a set of railroad 75 11:25:48 1 tracks. 11:25:51 2 And that once this victim was abducted, two 11:25:54 3 people ran to the other car, dropping a set of 11:25:59 4 keys along the way, and both automobiles, in my 11:26:03 5 view, went southbound and that was the last of 11:26:06 6 them at that scene. 11:26:09 7 Q. You mentioned dropping a set of keys? 11:26:13 8 A. Yes. 11:26:13 9 Q. Is it your understanding that keys were 11:26:15 10 recovered? 11:26:17 11 A. Yes, keys were recovered on the date of the 11:26:20 12 offense at the scene. And those keys were 11:26:23 13 dropped down the roadway toward the railroad 11:26:28 14 tracks. 11:26:29 15 Q. And what kind of keys? 11:26:30 16 A. The key ring contained several keys, what 11:26:34 17 appeared to be a house or apartment key and 11:26:37 18 maybe two of them. It contained an old style 11:26:42 19 Ford automobile key and it contained a post 11:26:46 20 office lockbox key. 11:26:49 21 Q. And these keys -- you personally have 11:26:55 22 examined and seen these keys? 11:26:56 23 A. Not only that, I went to every household in 11:26:59 24 Elgin, Ohio, to confirm that those keys did not 11:27:02 25 belong to anyone in the community. 76 11:27:06 1 Q. And you, in fact, confirmed that? 11:27:08 2 A. I did. Bearing in mind that the population 11:27:11 3 of Elgin at the time, I believe, was 61 people, 11:27:14 4 so it wasn't a particularly difficult task. 11:27:18 5 Q. And the lockbox key that was recovered, I 11:27:24 6 take it you investigated and determined that 11:27:26 7 that was not a lockbox key for any lockbox in 11:27:30 8 the Elgin Post Office? 11:27:32 9 A. That is correct. In fact, those boxes did 11:27:34 10 not have keys. They were the combination style 11:27:37 11 boxes. 11:27:41 12 Q. Now, is it accurate to say that at no time 11:27:50 13 have any of those keys been linked to any 11:27:54 14 particular automobile or locks? 11:27:57 15 A. That is accurate, yes. 11:28:00 16 Q. To the present day? 11:28:01 17 A. That's correct, unfortunately. 11:28:04 18 Q. Those keys are -- they exist someplace? 11:28:08 19 A. Yes. 11:28:10 20 Q. Do you know where? 11:28:11 21 A. They should be with the case file, or the 11:28:15 22 evidence in the case file. 11:28:22 23 Q. Anyway -- 11:28:23 24 A. However, as an aside, all of the letters 11:28:26 25 that were mailed to the postal facilities and 77 11:28:30 1 the responses should clearly be in the case 11:28:33 2 file. 11:28:36 3 Q. I am sorry, all of the -- 11:28:37 4 A. There were letters sent to postal 11:28:40 5 facilities in Ohio, Kentucky, Indiana -- Ohio, 11:28:47 6 Michigan, western Pennsylvania, Kentucky, 11:28:53 7 Indiana, requesting information as to the 11:28:56 8 identity or as to whether or not a specific post 11:29:03 9 office held a lock with a serial number that 11:29:06 10 corresponds to the key. 11:29:08 11 And those responses were mailed back to us, 11:29:10 12 and all of those responses should be in the case 11:29:13 13 file. 11:29:14 14 Q. And this was done during the investigation 11:29:17 15 stage of the case? 11:29:18 16 A. That's correct, that's correct. 11:29:19 17 Q. Pretrial? 11:29:21 18 A. Yes, correct. 11:29:23 19 Q. Now, there came a point in time, did there 11:29:36 20 not, when you, at least one point in time, maybe 11:29:39 21 more, where you visited John Spirko's sister's 11:29:48 22 home? 11:29:48 23 A. I did. 11:29:49 24 Q. Was that once or more than one? 11:29:51 25 A. Oh, it was several times. Her name was 78 11:29:54 1 Cathy Carpenter. 11:29:56 2 Q. There came a point in time where you 11:29:58 3 recovered some items from the home; is that 11:30:01 4 right? 11:30:01 5 A. I don't remember recovering any items from 11:30:03 6 that residence. 11:30:06 7 Q. Do you recall looking through items that 11:30:08 8 were at the residence? 11:30:08 9 A. I don't recall that either. 11:30:12 10 Q. Specifically, do you have any recollection 11:30:20 11 of coming across either some photographs or 11:30:25 12 letters or an address book or something at Cathy 11:30:30 13 Carpenter's residence that bore the name of 11:30:32 14 Delaney Gibson or the identity of Delaney 11:30:37 15 Gibson? 11:30:37 16 A. I have no recollection of that. 11:30:38 17 Q. How did you first become aware of Delaney 11:30:41 18 Gibson, the name? When did -- 11:30:44 19 A. I think that we had identified him as a 11:30:51 20 former cellmate of Defendant Spirko, along with 11:30:56 21 several other people. 11:30:59 22 Q. Identified him, and that was during -- 11:31:04 23 sometime during the process when you were 11:31:07 24 interviewing Mr. Spirko? 11:31:09 25 A. I don't remember when it was. I would 79 11:31:11 1 think it was likely prior to the time that he 11:31:14 2 was interviewed. 11:31:15 3 Q. And what did you know -- what, if anything, 11:31:19 4 did you know about Mr. Gibson, did you learn 11:31:21 5 about Mr. Gibson? 11:31:23 6 A. I didn't learn anything. To cast this 11:31:25 7 thing in the proper context, there were a number 11:31:29 8 of inspectors there from Kentucky, and they had 11:31:38 9 contacted, if I recollect, the state 11:31:40 10 penitentiary at Eddyville, Kentucky, and had 11:31:46 11 acquired the names of Mr. Spirko's cellmates and 11:31:50 12 associates, as I recollect. 11:31:51 13 Q. And that information had been conveyed to 11:31:55 14 everybody, including yourself, and somehow you 11:31:59 15 became aware of that? 11:31:59 16 A. I became aware of the inquiry. I don't 11:32:02 17 remember all of the names or those things. 11:32:10 18 It seems to me that I first became aware of 11:32:13 19 Delaney Gibson as a person when he was mentioned 11:32:16 20 by Mr. Spirko, that is my recollection. 11:32:21 21 Now, may I take a quick run to the rest 11:32:23 22 room, if you don't mind? 11:32:25 23 (Thereupon, a recess was taken.) 11:43:36 24 BY MR. HILL: 11:43:45 25 Q. We were talking about, I think when we 80 11:43:47 1 broke off, how Delaney Gibson's name came up as 11:43:51 2 best of your recall. 11:43:55 3 I think your answer was that you thought it 11:43:59 4 initially came from Mr. Spirko? 11:44:06 5 A. Yes. And my recollection is he referred to 11:44:09 6 him as Lanny. 11:44:13 7 MR. HILL: Let me just have 11:44:16 8 marked as whatever number we are up to, this 11:44:24 9 document. 11:44:25 10 (Thereupon, Plaintiff's Exhibit 92 of 11 the P.M. Hartman deposition was 12 marked for purposes of 11:44:47 13 identification.) 11:44:47 14 BY MR. HILL: 11:44:48 15 Q. Mr. Hartman, you have been presented with 11:44:51 16 what has been marked as Exhibit 92. First of 11:44:53 17 all, if you could just not look at the specifics 11:44:58 18 of the document, but just the form. Is this a 11:45:00 19 form that you are familiar with? 11:45:01 20 A. Yes, it is, um-hum. 11:45:04 21 Q. And what form is this? 11:45:05 22 A. This is just simply a memorandum of 11:45:08 23 interview. It is the format, actually, in which 11:45:10 24 we prepared these memoranda. 11:45:12 25 Q. And is this the format when you testified 81 11:45:16 1 earlier this morning that you would -- that you 11:45:20 2 would dictate notes and send them to 11:45:24 3 Cleveland -- or dictate memoranda, I shouldn't 11:45:28 4 say "notes," and send them to Cleveland and they 11:45:30 5 would come back, is this what came back 11:45:32 6 essentially? 11:45:33 7 A. Yes. 11:45:33 8 Q. And this would be the kind of documents 11:45:35 9 that you would routinely prepare in significant 11:45:42 10 interviews; is that right? 11:45:44 11 A. That's correct, yes. 11:45:45 12 Q. And these would be filed in that ultimately 11:45:47 13 the case file? 11:45:48 14 A. That's correct. 11:45:49 15 Q. Now, drawing your attention to this 11:46:01 16 specific exhibit, can you identify it? 11:46:07 17 A. This particular exhibit is a memorandum of 11:46:12 18 interview which was prepared by me concerning an 11:46:17 19 interview of the Defendant John Spirko, 11:46:24 20 reference an interview that occurred at the 11:46:25 21 United States Penitentiary in Leavenworth, 11:46:30 22 Kansas, on January 11th of 1983. 11:46:35 23 Q. And just in general terms, do you remember 11:46:36 24 that interview? 11:46:37 25 A. I do. 82 11:46:38 1 Q. And this is one of the last interviews you 11:46:45 2 did of Mr. Spirko; is that right? 11:46:47 3 A. This would be the second to last, yes. 11:46:49 4 Q. Okay. And actually, Mr. Pfeiffer was 11:46:53 5 present with you? 11:46:54 6 A. He was indeed, yes. 11:46:56 7 Q. By the way, was he present at many of the 11:46:59 8 interviews you did? 11:47:00 9 A. No. 11:47:08 10 Q. Do you have any recollection as to why he 11:47:10 11 was present at this particular interview? 11:47:12 12 A. He and I traveled together to Kansas City, 11:47:18 13 Kansas, to conduct these interviews. I don't 11:47:21 14 know the reason why two people went. I don't 11:47:25 15 remember. 11:47:25 16 Q. Are you familiar with the community Bear 11:47:35 17 Branch, Kentucky? 11:47:37 18 A. Yes. Well, I have been there. 11:47:40 19 Q. And as it relates to this case in 11:47:43 20 particular, what is the significance of Bear 11:47:46 21 Branch? 11:47:46 22 A. That was the hometown of Delaney Gibson. 11:47:50 23 Q. And it is a fairly small place as well? 11:47:52 24 A. It is pretty much a "Y" in the road, yes. 11:47:55 25 Q. Sort of like Elgin? I have never been 83 11:47:58 1 there. 11:47:58 2 A. Smaller would be my belief. It is more 11:48:01 3 rural. The housing, as I recollect, is not 11:48:04 4 centrally located. The center of commerce there 11:48:08 5 is the post office. 11:48:10 6 Q. In Bear Branch? 11:48:12 7 A. Yes, um-hum. 11:48:15 8 Q. Just so the record is clear here, there is 11:48:19 9 one business in Elgin, correct, but it is not a 11:48:21 10 retail -- I mean, and a post office, there is 11:48:25 11 really no commerce in Elgin, other than the 11:48:28 12 grain business, right? 11:48:28 13 A. There is the Elgin Grain Company, at least 11:48:31 14 at that time named thusly, and the post office. 11:48:34 15 There is no other -- there is no retail 11:48:38 16 establishment. 11:48:39 17 Q. Anyway, Bear Branch is a pretty small 11:48:42 18 place? 11:48:42 19 A. Yes, it is. Very small. 11:48:43 20 Q. Now, if I could draw your attention to the 11:48:47 21 third paragraph of your memorandum, is it 11:48:55 22 accurate that it certainly suggests that you 11:49:02 23 introduced this in your conversation with 11:49:05 24 Mr. Spirko, the name of Bear Branch, Kentucky? 11:49:08 25 A. It would seem so, yes. 84 11:49:10 1 Q. And does this refresh your recollection at 11:49:14 2 all? I mean, is it fair to say that you 11:49:18 3 introduced that name knowing that, in fact, 11:49:22 4 Mr. Spirko's former cellmate, Delaney Gibson, 11:49:27 5 was from Bear Branch, Kentucky? 11:49:29 6 A. I would think that is likely, yes. 11:49:31 7 Q. And that it was subsequent to that that 11:49:34 8 Mr. Spirko then mentioned the name of Delaney 11:49:37 9 Gibson? 11:49:39 10 A. I don't know, I don't remember. I don't 11:49:42 11 know what preceded the prior interviews. But 11:49:46 12 during this interview, it is clear that he did. 11:49:48 13 Q. I mean, during this interview, it is clear 11:49:50 14 that he mentioned the name subsequent to your 11:49:52 15 mentioning Bear Branch? 11:49:54 16 A. That's correct; that's correct. 11:49:55 17 Q. Now, just give that back to the court 11:50:10 18 reporter. The interviews you conducted of 11:50:26 19 Mr. Gibson, we have established that they 11:50:31 20 weren't recorded? 11:50:31 21 A. Of Mr. Gibson? 11:50:32 22 Q. I mean, Mr. Spirko. 11:50:34 23 A. That's correct, they were not recorded. 11:50:35 24 Q. And we have established that Mr. Spirko did 11:50:39 25 not produce any signed or initialed statements 85 11:50:42 1 of his own? 11:50:42 2 A. That's correct. 11:50:43 3 Q. Tell me, was there a consistent process by 11:50:50 4 which you made a -- by which you memorialized 11:50:55 5 what went on? 11:50:56 6 A. Yes, yes. 11:50:56 7 Q. Describe what that was, please. 11:50:59 8 A. Sure. During the interviews, I would 11:51:01 9 simply write notes, normally as fast as I could; 11:51:05 10 and because the Defendant Spirko was a difficult 11:51:08 11 person to interview, I learned quickly that he 11:51:14 12 did not respond to questions with answers that 11:51:17 13 were responsive to questions. 11:51:19 14 So ultimately, once I got him talking, he 11:51:22 15 would get to rolling and talking, and that is 11:51:24 16 it, and then I would just write. When the 11:51:27 17 interviews were completed, I would go back to 11:51:29 18 the hotel, motel, wherever I was staying, and 11:51:31 19 would prepare promptly the memos of interview, 11:51:37 20 based upon what had been discussed. 11:51:39 21 Normally they were completed within an hour 11:51:42 22 or two. 11:51:43 23 Q. And would those memoranda of interview 11:51:46 24 actually be handwritten or dictated? 11:51:48 25 A. Normally, I believe, they would be 86 11:51:51 1 dictated. 11:51:52 2 Q. And ultimately the cassettes would make 11:51:56 3 their way to -- 11:51:57 4 A. They would be sent in the mails to 11:52:00 5 Cleveland and the secretaries would type them 11:52:01 6 and send them back, as I recollect. 11:52:03 7 Q. And as you were doing, conducting the 11:52:07 8 interview and taking notes, I mean, obviously, I 11:52:10 9 assume Mr. Spirko knew you were taking notes? 11:52:13 10 A. Absolutely. 11:52:13 11 Q. And were you writing on just a normal 11:52:17 12 notepad typically? 11:52:20 13 A. Yes, Government notepad. Most of them, I 11:52:24 14 think, were like white paper, 8 1/2 x 11 pads of 11:52:28 15 paper, as I recollect. 11:52:30 16 Q. And just trying essentially to write down 11:52:32 17 what he was telling you? 11:52:34 18 A. Yes, as quickly as possible, because he 11:52:38 19 talks, and I was a younger man then, but I can't 11:52:42 20 write as fast as people talk. So write, write, 11:52:45 21 write. 11:52:45 22 Q. Did you ever, in the course of interviewing 11:52:50 23 him, sort of show him your notes and say, "Is 11:52:55 24 this right," or, "Is this spelled right," or 11:52:57 25 anything like that? 87 11:52:58 1 A. No, no, no. 11:52:59 2 Q. All right. There came a point in time when 11:53:06 3 you had your last interview of Mr. Spirko, the 11:53:11 4 one after the one that you have seen the 11:53:13 5 memorandum with regard to. 11:53:15 6 A. Yes. Based on the date there, it would 11:53:18 7 appear to have been on January the 12th of 1983. 11:53:21 8 Q. And in the same fashion that you had sought 11:53:27 9 to corroborate, if you will, I think that was 11:53:33 10 the word you had used, I think, the involvement 11:53:39 11 of the other people who had been mentioned by 11:53:45 12 Mr. Spirko, did you try and do the same thing 11:53:48 13 for Mr. Gibson? 11:53:49 14 A. Yes. 11:53:50 15 Q. And what did that entail doing, as best you 11:53:53 16 recall? 11:53:53 17 A. Well -- 11:53:58 18 Q. This is in January of '83 now, I believe 11:54:00 19 you are. 11:54:01 20 A. My recollection was that this issue now 11:54:07 21 came down to apprehending him, since he was a 11:54:11 22 fugitive from justice with, I recollect, two 11:54:16 23 outstanding warrants for homicide committed in 11:54:20 24 the State of Kentucky. 11:54:21 25 Q. This is -- he was a fugitive from justice 88 11:54:25 1 for things unrelated to this -- 11:54:26 2 A. Unrelated to this offense, that's correct. 11:54:31 3 Q. Before we get there, let me jog your memory 11:54:35 4 a bit and see if it jogs your memory. 11:54:38 5 Do you recall whether or not -- just so you 11:54:41 6 understand, I fully intend, after we do this 11:54:43 7 sort of from memory, I am not trying to -- I 11:54:47 8 will show you some documents which may help you 11:54:50 9 ultimately. 11:54:50 10 A. Fine. 11:54:51 11 Q. Did there come a point at which there was 11:54:53 12 an effort to make some sort of an eyewitness 11:54:58 13 identification, some sort of -- with respect to 11:55:02 14 either Mr. Spirko or Mr. Gibson? 11:55:04 15 A. Yes. 11:55:05 16 Q. Do you remember when that was? 11:55:06 17 A. I do not remember the date. 11:55:10 18 Q. Let me posit to you that it was also in 11:55:13 19 January of '83, so it was relatively 11:55:16 20 contemporaneous, it was after -- 11:55:18 21 A. I don't remember that. 11:55:19 22 Q. My question is, what do you remember about 11:55:24 23 that process? 11:55:25 24 A. I did not participate in that process at 11:55:26 25 all. I did not participate in the display of 89 11:55:30 1 the photo array, I did not prepare the photo 11:55:33 2 array, I did not interview that person, the 11:55:37 3 witness, Opal Seibert, who made the 11:55:49 4 identification. So I had no part to play in 11:55:51 5 that process. 11:55:53 6 Q. Did you have a part to play in the decision 11:55:56 7 whether or not to show photos at all? 11:55:58 8 A. None. 11:55:58 9 Q. Whose decision was that? 11:55:59 10 A. Inspector Strausbaugh. 11:56:02 11 Q. Were you made aware of it before it 11:56:04 12 happened? 11:56:05 13 A. I was made aware of it after the fact. 11:56:10 14 Q. You are certainly aware now that this was a 11:56:12 15 photo spread that contained a photograph of 11:56:15 16 Mr. Gibson and a photograph of Mr. Spirko? 11:56:18 17 A. I am not aware of the photos that were in 11:56:22 18 the array. 11:56:22 19 Q. I don't mean the specific photos, but are 11:56:25 20 you aware there was a photograph of Delaney 11:56:29 21 Gibson in the photo spread? 11:56:32 22 A. I am not aware. I have no recollection of 11:56:34 23 ever seeing the spread. I am assuming there 11:56:36 24 was, but I have no direct knowledge. 11:56:38 25 Q. Well, you are aware, aren't you, even 90 11:56:42 1 though you didn't participate in it, that Opal 11:56:44 2 Seibert identified a photograph which was 11:56:47 3 represented to be the photograph of Delaney 11:56:49 4 Gibson? 11:56:50 5 A. Yes, I was informed that, correct. 11:56:51 6 Q. And similarly, you were informed that Mark 11:56:55 7 Lewis made a 70 percent positive identification 11:56:59 8 of a photograph that was represented to be that 11:57:02 9 of John Spirko, you became aware of that? 11:57:04 10 A. I don't remember that. 11:57:10 11 Q. But your memory is that nobody, 11:57:18 12 Mr. Strausbaugh or no one else, sort of 11:57:20 13 consulted with you and said, "Should we go show 11:57:22 14 a photo spread to these witnesses?" 11:57:24 15 A. No, no. I have no recollection of that. 11:57:26 16 And again, he was the case agent. So he would 11:57:31 17 make those -- he would be empowered to make 11:57:35 18 those decisions independently, without 11:57:37 19 consulting me. 11:57:37 20 Q. Do you know whether or not any of the other 11:57:40 21 many individuals whom Mr. Spirko had mentioned 11:57:42 22 in his interviews with you over the two and a 11:57:46 23 half month period, Napoleon, Rooster and Dirty 11:57:51 24 Dan and these people, who I believe you 11:57:52 25 testified turned out to be real people, right? 91 11:57:55 1 A. That's correct, yes. 11:57:57 2 Q. Do you know whether Opal Seibert or Mark 11:58:01 3 Lewis or, for that matter, any witness was 11:58:04 4 shown -- was asked to see if they could make a 11:58:07 5 photo spread identification with respect to any 11:58:10 6 of those people? 11:58:10 7 A. I do not know. 11:58:11 8 Q. You don't have any recollection? 11:58:12 9 A. I have no recollection. 11:58:14 10 Q. But does this -- at this point -- you 11:58:26 11 became aware after the photo spreads were shown, 11:58:31 12 I assume you became aware fairly much 11:58:34 13 immediately thereafter, that Opal Seibert, in 11:58:37 14 fact, had identified Mr. Gibson? 11:58:40 15 A. I don't know that either, because I was in 11:58:43 16 the habit of traveling places to further this 11:58:48 17 investigation. So I don't know at what point in 11:58:50 18 time I would have been informed of this. I 11:58:54 19 don't know if I was even in the community at the 11:58:58 20 time this photo array was shown. 11:59:11 21 Q. At some point you -- well, you testified 11:59:16 22 that Mr. Gibson was, in fact, a fugitive? 11:59:20 23 A. That is correct. 11:59:21 24 Q. Okay. And whatever it was that he was a 11:59:24 25 fugitive for was not really a matter that would 92 11:59:27 1 normally be within the jurisdiction of the 11:59:30 2 Postal Service, correct? 11:59:32 3 A. That is correct. 11:59:33 4 Q. So if there were no connection with the 11:59:37 5 Mottinger crimes, there would be no reason for 11:59:40 6 the Postal Service to be looking for him. If 11:59:44 7 they happened to stumble on him, that was one 11:59:47 8 thing. That would not be a Postal Service 11:59:49 9 function? 11:59:49 10 A. Setting aside the provisions of this case, 11:59:53 11 that is correct. 11:59:53 12 Q. Now, do you recall that there came a time 12:00:00 13 where you participated in efforts to locate 12:00:02 14 Mr. Gibson? 12:00:03 15 A. Yes. 12:00:04 16 Q. And do you recall what part of the country 12:00:06 17 that was in? 12:00:07 18 A. Ultimately, he was arrested in the vicinity 12:00:12 19 of Asheville, North Carolina. 12:00:16 20 Q. Do you recall whether you had gone to a 12:00:20 21 different location than Asheville originally? 12:00:24 22 A. I myself had personally gone to Naples, 12:00:27 23 Florida, to look for him. 12:00:29 24 Q. And, again, in your own words, tell us how 12:00:33 25 it is that you found yourself in Naples, 93 12:00:37 1 Florida. 12:00:39 2 A. I had learned through the investigation 12:00:42 3 that -- or I reasonably suspected, is the way to 12:00:47 4 put it, that Delaney Gibson was working on a 12:00:51 5 migrant farm crew. And in checking with the 12:00:56 6 United States Department of Agriculture, 12:01:00 7 learning that the agriculture department keeps 12:01:04 8 records of these migrant crews, which was 12:01:08 9 something that I learned, and that the 12:01:10 10 particular crew on which we suspected Mr. Gibson 12:01:14 11 had been working was then thought to be at 12:01:17 12 Naples, Florida. 12:01:20 13 So I proceeded there with other inspectors 12:01:25 14 in an attempt to take him into custody and to 12:01:30 15 interview him in connection with this homicide 12:01:34 16 investigation. 12:01:36 17 Q. Right. And you would have taken him into 12:01:38 18 custody, obviously, on the outstanding matters, 12:01:41 19 the other outstanding matters? 12:01:43 20 A. On the outstanding arrest warrants in 12:01:46 21 Kentucky, that's correct. 12:01:46 22 Q. But while doing so, you would have had the 12:01:49 23 opportunity, you hoped, to be able to ask him 12:01:52 24 questions about the Mottinger case? 12:01:53 25 A. Yes. Although, I don't recollect -- I 94 12:01:58 1 don't remember the date on which he was 12:02:01 2 indicted, so it may very well have been that 12:02:03 3 there was an outstanding warrant from Ohio as 12:02:06 4 well. I don't remember. 12:02:07 5 Q. Let me represent to you that he was 12:02:08 6 indicted in September of '83. 12:02:11 7 A. All right. Then it is likely that that 12:02:16 8 event -- the event of my travel to Naples 12:02:22 9 preceded his indictment, if that is indeed a 12:02:25 10 correct date. 12:02:26 11 Q. Do you recall when you went, do you recall 12:02:27 12 the approximate time you went to Naples? 12:02:30 13 A. My recollection is it was likely in March. 12:02:34 14 Q. I think your recollection is correct, it 12:02:35 15 was in the March, April time frame. 12:02:38 16 A. The only reason I remember that is, while 12:02:40 17 traveling south, we hit some snow flurries, not 12:02:44 18 likely the summer months. 12:02:48 19 Q. Now, in March, in this March, April time 12:02:52 20 frame, and again, you are going to have the 12:02:54 21 benefit of looking at some documents, but I 12:02:56 22 think it is important to see if we can get your 12:02:59 23 sort of unrefreshed recollection first. 12:03:01 24 A. Right. 12:03:04 25 Q. What was your understanding of the status 95 12:03:09 1 of Mr. Gibson vis-a-vis the Mottinger crimes? 12:03:14 2 A. He was a suspect. 12:03:17 3 Q. And he was a suspect based upon what? 12:03:25 4 A. I would assume that he -- I am assuming 12:03:30 5 that he would have been a suspect because of the 12:03:34 6 identification of him by Ms. Seibert. 12:03:38 7 Q. So I mean, sort of putting this chronology 12:03:43 8 together, in other words, he was a suspect based 12:03:46 9 upon something in addition to the fact that 12:03:49 10 Mr. Spirko had told you about him? 12:03:51 11 A. That's correct. 12:03:52 12 Q. That, in and of itself, was not sufficient 12:03:57 13 to give rise to the suspect characterization? 12:03:59 14 A. That's right; that's right. 12:04:01 15 Q. Now, let me ask you, have you ever met Opal 12:04:15 16 Seibert? 12:04:16 17 A. I have no recollection of ever meeting or 12:04:19 18 speaking with Ms. Seibert. I knew where she 12:04:23 19 lived and I knew at the time that she was 81 12:04:25 20 years old, as I believe. 12:04:27 21 Q. At the time of the crime? 12:04:28 22 A. At the time of the crime, yes. 12:04:29 23 Q. And is it accurate that it is your 12:04:45 24 understanding that her identification of 12:04:48 25 Mr. Gibson was in a photo spread? 96 12:04:50 1 A. That is my understanding, that's correct. 12:04:52 2 Q. Just generally at that time, at least, in 12:04:56 3 your career, what was your -- as a trained 12:05:02 4 investigator, what was your opinion of 12:05:05 5 eyewitness identifications and I guess -- and 12:05:10 6 then more specifically, eyewitness 12:05:12 7 identifications based on photo spreads? 12:05:14 8 A. Well, not being a hotshot homicide 12:05:17 9 detective, nevertheless, I had pretty 12:05:23 10 significant experience dealing with robbery 12:05:27 11 offenses, aggravated robberies, meaning 12:05:31 12 robberies with weapons involved. 12:05:34 13 And my personal experience is that I did 12:05:38 14 not believe, in this case specifically, that one 12:05:41 15 eyewitness identification was sufficient to 12:05:44 16 carry the day, to overcome the presumption of 12:05:47 17 innocence. 12:05:49 18 In other words, corroboration is a good 12:05:54 19 thing, other evidence is a good thing. 12:05:56 20 Q. I mean, is it fair to say that you were, 12:06:01 21 just generally as an investigator, somewhat -- I 12:06:07 22 don't want to put words -- skeptical of 12:06:09 23 eyewitness identifications, or concerned that 12:06:12 24 they may not be the most reliable form of 12:06:15 25 evidence? 97 12:06:15 1 A. I am not comfortable relying on them solely 12:06:19 2 as the only evidence. Now, sometimes, I will 12:06:27 3 say, "If that is all you have, that is all you 12:06:28 4 have," and you have to go forward. 12:06:30 5 But I didn't believe, in this case 12:06:37 6 particularly, that one eyewitness identification 12:06:40 7 would be sufficient for a jury to find this man 12:06:43 8 guilty of murder. That was my personal opinion 12:06:49 9 as opposed to fact. 12:06:50 10 Q. Right, I understand. When you went down to 12:07:00 11 Florida, to Naples -- 12:07:02 12 A. Yes. 12:07:03 13 Q. -- is it -- in the hopes of capturing 12:07:15 14 Mr. Gibson, is it fair to say that at that point 12:07:20 15 in time, at least you had an open mind with 12:07:25 16 respect to the question of whether he had any 12:07:27 17 involvement in the Mottinger case? 12:07:28 18 A. Oh, absolutely. At that point in time, I 12:07:33 19 was armed with the knowledge that he had been 12:07:37 20 identified. So clearly, he is a good suspect, a 12:07:41 21 real good suspect. 12:07:43 22 So I had an open mind, to the extent that, 12:07:48 23 yes. And again, we are talking in terms of 12:07:55 24 different weights of evidence. In other words, 12:07:58 25 probable cause, clearly, there was probable 98 12:08:00 1 cause to believe that he committed the offense. 12:08:03 2 However, at that time and at any time since 12:08:09 3 then, it was my opinion that we did not have 12:08:13 4 evidence beyond a reasonable doubt. 12:08:16 5 Q. Okay. And maybe you thought of, in those 12:08:23 6 legal standards, maybe that is how your thinking 12:08:26 7 was? 12:08:26 8 A. That is how I think in assessing these 12:08:29 9 cases. It is a trained manner in which to 12:08:33 10 assess cases. 12:08:34 11 Q. Do you recall that when you were in 12:08:37 12 Florida -- and, again, you have to understand 12:08:41 13 there is nothing secret here -- when you were in 12:08:45 14 Florida, that you, in addition to trying to 12:08:47 15 locate Mr. Gibson, that you interviewed a number 12:08:51 16 of people? 12:08:51 17 A. That's correct. 12:08:52 18 Q. And do you recall that in the process of 12:08:54 19 interviewing these people, you were trying to 12:08:58 20 find out various things about Mr. Gibson? 12:09:00 21 A. That would be correct, yes. 12:09:01 22 Q. What is it that you remember trying to find 12:09:05 23 out? 12:09:06 24 A. It seemed to me that we were trying to 12:09:10 25 learn general things about him, his habits, his 99 12:09:15 1 characteristics, his behavioral characteristics, 12:09:20 2 I suppose. Furthermore, we were trying to 12:09:23 3 establish his whereabouts on August the 9th of 12:09:28 4 1982. 12:09:29 5 Q. And in the process of trying to do the 12:09:32 6 latter, at least his whereabouts, you 12:09:34 7 interviewed co-workers and bosses and that sort 12:09:38 8 of thing, is that your memory? 12:09:39 9 A. That is my recollection. Although there 12:09:42 10 were very few of those, because most of these 12:09:46 11 co-workers were migrant farm workers who spoke 12:09:49 12 solely Spanish, and I am not fluent in Spanish. 12:09:54 13 Q. But you did conduct some interviews? 12:09:56 14 A. We did, yes. 12:09:57 15 Q. And your fellow co-workers did as well? 12:10:03 16 A. That is correct. 12:10:11 17 Q. Do you also recall talking to people and 12:10:14 18 speaking to people about any physical 12:10:17 19 characteristics of Mr. Gibson? 12:10:18 20 A. I do not. 12:10:29 21 Q. Now, Mr. Gibson, did there come a point 12:10:32 22 where he was arrested? 12:10:34 23 A. Yes. 12:10:34 24 Q. And you have already said that was in the 12:10:36 25 Asheville, North Carolina, area? 100 12:10:38 1 A. That is correct. 12:10:38 2 Q. And when that happened, were you in 12:10:41 3 Florida? 12:10:41 4 A. I was in Florida. 12:10:42 5 Q. And you were notified that he had been 12:10:47 6 arrested? 12:10:47 7 A. That is correct. 12:10:48 8 Q. Did you go to North Carolina at that time? 12:10:50 9 A. I did not; I did not. 12:10:51 10 Q. So you did not meet him in North Carolina? 12:10:53 11 A. No. I have never laid eyes on the man. 12:10:56 12 Q. You have never met Delaney Gibson? 12:10:58 13 A. I have not. 12:10:59 14 Q. You have never spoken to him? 12:11:00 15 A. I have not. 12:11:02 16 Q. Did you become aware of at that point in 12:11:08 17 time anything about what the investigators who 12:11:11 18 did speak with him in North Carolina had 12:11:14 19 learned? 12:11:15 20 A. Well, it was my understanding that he had 12:11:17 21 been interviewed by other officers, and that he 12:11:22 22 denied any involvement in this offense, as I 12:11:28 23 clearly recollect. 12:11:29 24 Q. Do you recollect anything in addition to 12:11:33 25 that? 101 12:11:33 1 A. Yes. It is my understanding from Inspector 12:11:37 2 Strausbaugh that a number of telephone records 12:11:43 3 from pay stations -- and I believe he stated in 12:11:47 4 a 25-mile vicinity of Delaney Gibson's home, had 12:11:51 5 been subpoenaed. And the purpose for that was 12:11:55 6 an attempt to establish some telephone 12:11:58 7 communication from this area of North Carolina 12:12:02 8 to Toledo, Ohio. 12:12:04 9 Q. And that was negative? 12:12:06 10 A. Well, we found a couple of phone calls to 12:12:09 11 Toledo, as I recollect. But we could never 12:12:14 12 establish any, as I remember, any connection 12:12:17 13 with those phone calls and John Spirko at 12:12:23 14 Toledo, and clearly we didn't know who made the 12:12:26 15 calls in North Carolina. 12:12:28 16 But there were no telephone calls to 12:12:31 17 Spirko's residence. 12:12:34 18 Q. And the significance of that investigative 12:12:39 19 effort, at least, had to do with the fact that 12:12:43 20 there was -- that you believed and others 12:12:50 21 believed that there had to have been, whether 12:12:52 22 you can find it or not, but there had to have 12:12:55 23 been some contact between Mr. Spirko and whoever 12:12:57 24 else he did it with, prior to the crime 12:12:59 25 occurring? 102 12:13:00 1 A. I would have reasonably expected there to 12:13:04 2 be some communication between these two men. 12:13:07 3 And we were looking to establish that, and those 12:13:12 4 efforts failed. 12:13:15 5 Q. Do you recall being advised that when he 12:13:18 6 was -- when Mr. Gibson was arrested in April of 12:13:22 7 '83 in North Carolina, that he had a full beard? 12:13:26 8 A. Yes. Well, I will take that back. I do 12:13:30 9 not remember that. I don't know whether he was 12:13:33 10 bearded or clean-shaven when he was arrested. 12:13:37 11 Q. But obviously -- there was something about 12:13:41 12 my question that made you initially say yes. 12:13:43 13 A. Yes, that's correct. 12:13:44 14 Q. So can you explain that? 12:13:47 15 A. Yes. There were some photographs taken of 12:13:49 16 Delaney Gibson allegedly on or about August the 12:13:53 17 8th of 1982, and in those photographs, he had a 12:13:57 18 beard. 12:14:00 19 Q. Do you remember that when you were in 12:14:03 20 Florida, in Naples, interviewing people that 12:14:06 21 that was a subject, among others, of the 12:14:08 22 interviews that you conducted, as to whether he 12:14:11 23 had a beard or not? 12:14:12 24 A. I don't remember that. 12:14:14 25 Q. Okay. Let me represent to you that the 103 12:14:25 1 indictments occurred in September of '83. Let 12:14:37 2 me represent to you that both Mr. Spirko and 12:14:39 3 Mr. Gibson were indicted on the same day. 12:14:42 4 A. That is a fair representation, yes. 12:14:47 5 Q. First of all, as best -- what is your best 12:14:50 6 recollection as to discussions or events or -- 12:15:01 7 discussions or events that led up to the 12:15:03 8 indictment, that preceded the indictment? 12:15:07 9 A. Well, the sum of the investigation to that 12:15:12 10 time was reduced to a document to which we 12:15:17 11 referred as a presentation letter to the 12:15:21 12 prosecutor. I prepared that document and gave 12:15:27 13 it to Inspector Strausbaugh, whom I would assume 12:15:31 14 presented it to the prosecutor. 12:15:42 15 Q. Let me show you Exhibit 50. Is that the -- 12:16:01 16 Mr. Hartman, is that the presentation letter 12:16:03 17 that you refer to? 12:16:05 18 A. Yes, sir, that is it. That is the document 12:16:06 19 that I prepared. 12:16:07 20 Q. And authored by you? 12:16:09 21 A. Yes, it is authored by me. 12:16:10 22 Q. And now, flip to the rear of it. Beginning 12:16:16 23 on page 52, there are a list of exhibits listed. 12:16:26 24 A. All right. 12:16:27 25 Q. And although the copy you have doesn't have 104 12:16:29 1 exhibits appended to it, do you recall whether 12:16:33 2 the original one that you prepared had those 12:16:35 3 exhibits appended to it? 12:16:39 4 A. I do not believe they were. 12:16:42 5 Q. Okay. This is a fairly detailed and fairly 12:16:48 6 lengthy report. 12:16:50 7 A. It is. And it took some time to prepare 12:16:52 8 it, I must say. 12:16:53 9 Q. I was going to ask, how long did it take 12:16:55 10 you to prepare it? 12:16:56 11 A. My best guess is it probably took me two 12:16:59 12 weeks to put all this on paper. 12:17:02 13 Q. Do you recall if it was the approximate two 12:17:04 14 weeks immediately preceding its date? 12:17:06 15 A. I would assume so, yes. 12:17:08 16 Q. Okay. And it is dated September 12th; is 12:17:12 17 that right? 12:17:12 18 A. Yes. 12:17:13 19 Q. And -- 12:17:15 20 A. That would be the date on which it was 12:17:17 21 typed, if I remember rightly. Now, this could 12:17:25 22 either be the date on which it was typed or the 12:17:28 23 date on which I began the letter. And I don't 12:17:33 24 remember the precise date of the indictment. 12:17:38 25 Q. I was about to tell you that or give you 105 12:17:41 1 that. I just want to be sure when I do it. I 12:17:46 2 don't think I can do it from memory. 12:18:00 3 Let me show you Exhibits 20 and 21, those 12:18:03 4 are, in fact, the indictments. I think you will 12:18:06 5 see, if you look at it, that the indictments 12:18:08 6 were returned on the 13th of September. 12:18:17 7 A. All right. Well, then this would have been 12:18:19 8 the date that the document was typed. 12:18:23 9 Q. Or was completed being typed or whatever? 12:18:26 10 A. That's right. 12:18:28 11 Q. Now, what is your -- as I said, it is a 12:18:40 12 fairly detailed and lengthy memorandum. 12:18:44 13 A. Yes, 57 pages in length, it appears. 12:18:47 14 Q. And with a number of attachments that may 12:18:50 15 or may not have been there? 12:18:51 16 A. That's right. 12:18:52 17 Q. It would seem to me, it would take a fair 12:18:57 18 amount of time for anybody to sort of absorb the 12:19:00 19 information in there, so it would seem to me 12:19:03 20 that somehow the information had been 12:19:08 21 communicated -- if the purpose of the 12:19:10 22 presentation letter is to sort of set out the 12:19:13 23 case for the prosecutor -- 12:19:15 24 A. Yes, factually. 12:19:17 25 Q. -- that somehow that must have been 106 12:19:19 1 communicated to him prior to the actual date on 12:19:22 2 the memo in order to have an indictment the next 12:19:25 3 day on the 13th? 12:19:26 4 A. I would believe that is an accurate 12:19:29 5 assessment, yes. 12:19:30 6 Q. Now, that is just an assumption that you 12:19:32 7 have made and I have made. 12:19:34 8 A. Yes. 12:19:34 9 Q. Do you remember anything about that? 12:19:36 10 A. I do not. The only thing I can conclude 12:19:38 11 from the dates is it is likely that he prepared 12:19:42 12 the indictment based upon conversations with 12:19:45 13 Inspector Strausbaugh. 12:19:46 14 Q. Did you have conversations with Mr. Keister 12:19:49 15 about the indictments? 12:19:51 16 A. No, none that I recollect. 12:19:53 17 Q. Okay. Do you recall any conversations with 12:19:55 18 anybody prior to the indictment -- well, as to 12:20:01 19 the question of who should be indicted? 12:20:03 20 A. Yes. 12:20:04 21 Q. What do you remember? 12:20:05 22 A. I had conversations with my peers, other 12:20:08 23 inspectors. And it went to the weight of the 12:20:13 24 evidence and whether or not Gibson should be 12:20:18 25 indicted at the same time. And it was my 107 12:20:22 1 opinion that, as I stated, or testified earlier, 12:20:29 2 I believed there was probable cause to believe 12:20:31 3 that he committed the offense; however, I did 12:20:34 4 not feel the weight of the evidence was 12:20:36 5 sufficient to overcome the presumption of 12:20:38 6 innocence. 12:20:38 7 Q. You expressed this to your -- 12:20:40 8 A. I expressed this to my peers, yes. There 12:20:42 9 was a divergence of opinions, I will say that. 12:20:46 10 In fact, I was likely the lone voice in this. 12:20:49 11 It has been my habit and custom throughout my 12:20:53 12 career to present a case for charges only when I 12:20:58 13 personally believe I have got enough evidence to 12:21:00 14 sustain a conviction, which is perhaps why in 12:21:03 15 the course of 28 years I have lost one Defendant 12:21:06 16 in trial. 12:21:10 17 It was my opinion that the weight of the 12:21:12 18 evidence was not there to convict Mr. Gibson. 12:21:22 19 My peers believed that it was sufficient; I did 12:21:26 20 not. And in the course of those exchanges, I 12:21:33 21 always assumed the role of the devil's advocate, 12:21:38 22 as I do throughout my whole career, particularly 12:21:42 23 as a supervisor. 12:21:44 24 And invariably the question came, where is 12:21:46 25 the proof, where is the proof that will convict 108 12:21:48 1 this man of this offense? Because I, again, did 12:21:51 2 not believe that one eyewitness identification 12:21:53 3 would carry the day, in my opinion. 12:21:58 4 Q. And we will come back to this. But that 12:22:01 5 was your opinion viewed in the totality of all 12:22:06 6 the information that you had developed? 12:22:08 7 A. Then available, that is correct. 12:22:10 8 Q. With respect to issues as to Mr. Gibson's 12:22:15 9 whereabouts, with respect to issues as to the 12:22:19 10 inability to establish any contact between 12:22:22 11 Spirko and Gibson? 12:22:24 12 A. Yes. 12:22:24 13 Q. With respect to his appearance, all of 12:22:26 14 those issues together? 12:22:27 15 A. Yes. In other words, the weight of the 12:22:32 16 evidence, in my own opinion, was not sufficient 12:22:35 17 at that time to overcome the presumption of 12:22:37 18 innocence. 12:22:38 19 Q. And it was your own -- it was your view 12:22:43 20 that it was -- it was your view -- if the 12:22:55 21 decision had been yours -- it wasn't yours, 12:23:01 22 right? 12:23:01 23 A. It was not mine, no. 12:23:02 24 Q. If the decision had been yours -- let's not 12:23:06 25 make it into this case. Let's talk more 109 12:23:09 1 generally. 12:23:09 2 A. All right. 12:23:09 3 Q. If you were the decision-maker, you would 12:23:14 4 not indict cases unless you believed that you 12:23:18 5 could convict somebody beyond a reasonable 12:23:22 6 doubt. Is that what I am hearing you say? 12:23:25 7 A. That is what you are hearing me say. That 12:23:27 8 was my habit. However, let me tell you this. 12:23:31 9 There are -- like all matters in life, there are 12:23:33 10 exceptions to that. For example, I have 12:23:36 11 indicted and convicted people for committing 12:23:41 12 these violent offenses when there was nothing 12:23:45 13 else other than the minimal amount of evidence, 12:23:47 14 and I had questions as to whether I could 12:23:49 15 convict, but ultimately did. 12:23:51 16 So in part, that decision is predicated 12:23:56 17 upon the likelihood of developing other evidence 12:24:01 18 and the likelihood of success. 12:24:03 19 Q. In other words, that decision is -- in 12:24:06 20 those instances, these other instances that you 12:24:10 21 are referring to, the decision to go forward 12:24:14 22 might be predicated upon a belief that you can 12:24:16 23 still develop additional evidence? 12:24:18 24 A. That's correct. And in those cases, I 12:24:20 25 would not have even brought the case to the 110 12:24:22 1 prosecutor until I was ready to go forward. 12:24:26 2 Q. Have you ever had a situation in your 12:24:30 3 career, again, putting this case aside for the 12:24:34 4 moment, but have you ever had a situation in 12:24:36 5 your career where you have gone to a prosecutor 12:24:38 6 and said, "I don't think we should go forward on 12:24:41 7 this case," and you have been overruled? 12:24:44 8 A. No. 12:24:45 9 Q. How about the converse of that? Have you 12:24:47 10 ever had a situation where you have gone to a 12:24:49 11 prosecutor and said, "I think we should go 12:24:52 12 forward" and he said, "No"? 12:24:55 13 A. Oh, yes, oh, yes, yes. 12:24:57 14 Q. And in those instances, again, to the best 12:25:01 15 of your recollection, are these instances based 12:25:03 16 upon a differing evaluation of the evidence or 12:25:06 17 other concerns as to why we should or shouldn't 12:25:08 18 go forward? 12:25:11 19 A. They were based upon the weight of the 12:25:13 20 evidence, and again, these were violent crimes. 12:25:17 21 And quite honestly, the prosecutor that I am 12:25:20 22 thinking of just didn't want to fight the fight. 12:25:26 23 Let me run down to the head quickly for a 12:25:28 24 moment. 12:25:29 25 Q. Absolutely. 111 12:25:30 1 (Thereupon, a recess was taken.) 12:32:29 2 BY MR. HILL: 12:32:38 3 Q. Mr. Hartman, the discussions with peers 12:32:42 4 that you just mentioned, as best you recall, 12:32:45 5 with whom were they? 12:32:46 6 A. They were with other inspectors assigned on 12:32:49 7 a permanent basis to the task force. 12:32:51 8 Q. And which names do you recall? 12:32:55 9 A. Well, I remember Gary Roberts, Sally Wolfe, 12:33:07 10 Jerry Richardson, Pete Sullivan and likely Tom 12:33:19 11 Strausbaugh. 12:33:21 12 Q. How about Mr. -- I just ask because we just 12:33:24 13 talked about him a minute ago, how about 12:33:27 14 Mr. Pfeiffer? 12:33:28 15 A. I don't believe so. 12:33:30 16 Q. The other people you just mentioned are 12:33:32 17 people that your best recollection is you had 12:33:35 18 discussions concerning -- 12:33:39 19 A. The weight of the evidence with regard to 12:33:42 20 Gibson. 12:33:42 21 Q. -- whether or not an indictment should be 12:33:45 22 sought? 12:33:48 23 A. Yes, that's correct. 12:33:51 24 Q. Okay. And do you recall when those 12:33:54 25 occurred, those discussions? 112 12:33:55 1 A. No. They were ongoing. Part of the 12:34:00 2 feature of a task force investigation is you are 12:34:03 3 all together, you are always bouncing ideas off 12:34:05 4 of each other and understandably discussing the 12:34:08 5 case. 12:34:08 6 So I can't fix the time. I just know that 12:34:11 7 I had these conversations with my peers. 12:34:14 8 Q. Okay. Now, your last interview with 12:34:20 9 Mr. Spirko was in January, correct, of 2003? 12:34:24 10 A. Yes, January the 12th, I believe, 1983. 12:34:28 11 Q. 1983, I am sorry, not 2003. What, if 12:34:37 12 anything, as best you can recall today, occurred 12:34:40 13 between January 12th of 2003 and September of 12:34:47 14 2003 with respect to the -- let me start all 12:34:57 15 over again. 12:34:58 16 Was anything of an evidentiary value, as 12:35:03 17 best you recall, added to the case against 12:35:05 18 Mr. Spirko between January and September? 12:35:13 19 A. I don't recollect. 12:35:15 20 Q. How about with respect to Mr. Gibson? 12:35:20 21 A. I don't recollect that either. 12:35:23 22 Q. Now, do you have any understanding as to 12:35:26 23 what it was that prompted the indictment to be 12:35:29 24 issued in September? 12:35:33 25 A. Does your question go to the timing of the 113 12:35:38 1 indictment? 12:35:39 2 Q. My question really was, from my review of 12:36:25 3 the record of the state of the evidentiary 12:36:28 4 record, by the end of January of 1983, it was 12:36:33 5 virtually identical to the state of the 12:36:34 6 evidentiary record in September of 1983. And I 12:36:39 7 was asking you whether anything had transpired 12:36:42 8 between that, that led to the indictment? 12:36:45 9 A. I believe the primary activity there was 12:36:47 10 the attempt to locate Delaney Gibson. 12:36:50 11 Q. And he was initially located in -- well, he 12:36:54 12 was located in April, is that right, of '83? 12:36:57 13 A. I don't recall the date. But sometime in 12:36:59 14 the spring, as I recollect. 12:37:01 15 Q. But in any event, do you recall any 12:37:06 16 discussions, do you recall anything that would 12:37:09 17 shed any light as to what had occurred that 12:37:13 18 prompted the indictment to come out when it came 12:37:16 19 out? 12:37:16 20 A. Nothing at all. I do not know why that 12:37:20 21 date was selected. I don't know if, in fact, 12:37:23 22 there was a reason to forestall it or to delay 12:37:28 23 it. To me, that was a decision made by the 12:37:31 24 prosecutor and I am not aware of any factors or 12:37:35 25 variables that played into that decision. 114 12:37:37 1 Q. Do you recall what role, if any, 12:37:40 2 Mr. Keister was playing throughout this period 12:37:43 3 of time? 12:37:43 4 A. He was the prosecutor, the county 12:37:45 5 prosecutor in the case. 12:37:47 6 Q. Was he meeting with you guys on a regular 12:37:49 7 basis? 12:37:49 8 A. He wasn't meeting with me on a regular 12:37:52 9 basis for sure. I had little contact with him 12:37:55 10 throughout the course of the case. I am 12:38:01 11 assuming that there was regular contact between 12:38:03 12 Inspector Strausbaugh and he, because of 12:38:07 13 Inspector Strausbaugh's responsibilities to the 12:38:11 14 case. 12:38:15 15 But I remember having gone to a barbecue, a 12:38:20 16 cook-out at Mr. Keister's home one evening 12:38:24 17 during the summer months, and I also remember 12:38:29 18 traveling with Mr. Keister and other inspectors 12:38:32 19 up to the Milwaukee, Wisconsin area in 12:38:36 20 preparation for the trial. 12:38:38 21 Aside from that, I had little or no contact 12:38:41 22 with Mr. Keister. 12:38:42 23 Q. The presentation letter, Exhibit 50, which 12:38:47 24 you have looked at previously, this is directed 12:38:52 25 at a prosecutor, the prosecutor? 115 12:38:55 1 A. Yes. This presentation letter is intended 12:39:01 2 to set out the framework of the prosecution, as 12:39:06 3 seen by the officer, the agent. 12:39:09 4 It is a proposed manner of prosecuting the 12:39:12 5 case and setting forth the evidence and the 12:39:16 6 witnesses from which the prosecutor may or may 12:39:18 7 not wish to be guided. 12:39:19 8 Q. And is it also the intent to inform the 12:39:26 9 prosecutor of any pitfalls or problems in the 12:39:29 10 case? 12:39:30 11 A. Yes. 12:39:30 12 Q. So it is the good, the bad and the ugly? 12:39:33 13 A. That's right. It is intended to convey the 12:39:37 14 facts. 12:39:39 15 Q. And in situations, now, we are talking 12:39:41 16 generally now, not this one, but in situations 12:39:44 17 where, subsequent to the presentation letter 12:39:48 18 being prepared, additional evidence is 12:39:53 19 developed, what is the typical format for 12:39:56 20 conveying that information to the prosecutor? 12:39:59 21 A. Well, it is my own experience that if, for 12:40:03 22 example, additional witnesses or information is 12:40:06 23 received, memoranda of interview are prepared, 12:40:10 24 and those documents are also provided to the 12:40:13 25 prosecutor. 116 12:40:15 1 Q. Is a supplement or an addendum to the 12:40:19 2 presentation letter created? 12:40:20 3 A. It could be considered that. But normally 12:40:23 4 it is just the document itself, which would be 12:40:25 5 the memorandum of interview, or plural, 12:40:27 6 memoranda. 12:40:30 7 Q. In this particular case, once indictments 12:40:33 8 came down in September, did Mr. Keister, did his 12:40:36 9 role, as far as you could perceive, change? Did 12:40:41 10 his involvement change? 12:40:42 11 A. Well, it was clear that he was going to 12:40:44 12 prosecute the case. So there came a time when 12:40:51 13 the exhibits and the evidence were all boxed up 12:40:55 14 and taken over to the sheriff's office, as I 12:41:00 15 recollect. And I believe that he and Inspector 12:41:05 16 Strausbaugh referenced them from that location. 12:41:07 17 Q. And Mr. Keister had access to all of those 12:41:11 18 files, as did Mr. Strausbaugh? 12:41:13 19 A. I don't know if he had direct physical 12:41:15 20 access. But I would presume that to be the 12:41:18 21 case, since it is our policy not to withhold any 12:41:21 22 information or evidence from the prosecutor. 12:41:23 23 Q. Who directed your efforts postindictment in 12:41:33 24 this case? 12:41:34 25 A. Inspector Strausbaugh. 117 12:41:35 1 Q. He continued to direct your efforts? 12:41:38 2 A. That's correct. 12:41:39 3 Q. So there was no change in terms of -- 12:41:43 4 A. Responsibility, that's correct. 12:41:45 5 Q. -- responsibility? 12:41:46 6 A. There was not, no. 12:41:48 7 Q. Now, do you recall at the point in time 12:41:50 8 when Mr. Gibson was rearrested? 12:41:55 9 A. Yes, he was rearrested. He escaped from 12:41:59 10 custody and was rearrested by the FBI, as I 12:42:05 11 recollect. 12:42:05 12 Q. Do you recall where that was? 12:42:07 13 A. I don't remember. 12:42:08 14 Q. And at the time that he was rearrested -- I 12:42:15 15 will posit to you that it was in Alabama. 12:42:19 16 A. That may be. I do recollect that there was 12:42:21 17 a gun involved and he was charged with 12:42:24 18 possession -- firearms violation, I believe. 12:42:27 19 Q. Do you recall at that point -- he is now in 12:42:30 20 physical custody? 12:42:30 21 A. All right. 12:42:31 22 Q. Postindictment, I will represent to you was 12:42:34 23 in December of '83. 12:42:36 24 A. All right. 12:42:37 25 Q. Do you recall any discussions of any kind 118 12:42:41 1 as to what to do with him? 12:42:43 2 A. I do not. I think there was a general 12:42:47 3 sense of joy that he had been apprehended again, 12:42:54 4 and my recollection is that there was some 12:42:57 5 confidence that he had been taken into Federal 12:43:00 6 custody and would not likely escape again from a 12:43:03 7 Federal institution. 12:43:08 8 Q. Do you recall at that point in time -- this 12:43:12 9 would be the December '83 time frame -- any 12:43:15 10 discussions with anybody about whether or not he 12:43:20 11 should be brought to Ohio to stand trial? 12:43:24 12 A. I do not. It was my understanding that he 12:43:30 13 was going to be charged with the Federal 12:43:33 14 offense, the gun violation, and then brought to 12:43:40 15 Kentucky to stand trial on a murder case. That 12:43:43 16 is my recollection of it. 12:43:44 17 Q. Okay. That is your recollection of -- 12:43:46 18 A. So in other words, we were in line. 12:43:48 19 Q. That was your recollection of the 12:43:53 20 conclusion of what was going to happen, if you 12:43:56 21 will. But my question is, do you have any 12:43:59 22 recollection of the decision-making process that 12:44:01 23 led to that conclusion? 12:44:02 24 A. No, because I was not party to that. 12:44:04 25 Q. Do you recall whether you had any of the 119 12:44:07 1 continuing discussions that you had with the 12:44:09 2 people that you identified earlier, concerning 12:44:14 3 your concern that there wasn't sufficient 12:44:16 4 evidence to convict him? 12:44:18 5 A. No. It seems to me, the best I can 12:44:22 6 recollect, that once the indictment was 12:44:27 7 returned, it was a fait accompli. And after 12:44:32 8 that point in time, as I recollect, there was no 12:44:35 9 more discussion, because the deed had been done. 12:44:39 10 So at this point in time, it is time to 12:44:42 11 move forward. 12:44:43 12 Q. It was a fait accompli in the sense that he 12:44:46 13 would now be tried? 12:44:47 14 A. That he had been indicted and the case was 12:44:50 15 lodged. 12:44:50 16 Q. And that he would be tried? 12:44:52 17 A. Yes, ultimately. 12:44:53 18 Q. That has never happened, right? 12:44:54 19 A. No, it has not happened. In part, I 12:44:57 20 suppose, because the sole witness against him, 12:44:59 21 the lady who identified him, is now deceased. 12:45:03 22 Q. Well, that occurred in -- do you know when 12:45:06 23 that occurred? 12:45:06 24 A. I do not know when that occurred. 12:45:08 25 Q. I will posit to you that that occurred in 120 12:45:11 1 1991. 12:45:12 2 A. All right. I don't know. But I know she 12:45:17 3 is deceased, and certainly upon her death, there 12:45:20 4 was no way to bring any prosecution against him, 12:45:23 5 because the only witness wasn't available to 12:45:27 6 testify. And insofar as I am aware, seances are 12:45:32 7 not permissible as evidence in the court. 12:45:36 8 Q. Do you remember a time when you went to 12:45:38 9 North Carolina? 12:45:39 10 A. Yes. 12:45:40 11 Q. Do you remember when that was? 12:45:41 12 A. I don't. It seems to me it was the late 12:45:46 13 summer, fall months. I don't remember what 12:45:47 14 year. 12:45:47 15 Q. It was actually -- again, we will show you 12:45:50 16 memos. 12:45:51 17 A. All right. 12:45:52 18 Q. I think it was primarily in January of 12:45:56 19 '94 -- '84. 12:45:58 20 A. It may be. I don't remember. I don't 12:46:00 21 remember. 12:46:01 22 Q. All right. Now, January of '84 is 12:46:05 23 postindictment, correct? 12:46:07 24 A. Yes. 12:46:09 25 Q. Did somebody assign you to go to North 121 12:46:17 1 Carolina? 12:46:17 2 A. No. I took it -- I am sorry. I don't 12:46:21 3 remember. I am confusing events, bearing in 12:46:26 4 mind that I have not seen any of these records 12:46:28 5 or files for 20-some years. 12:46:31 6 Q. Well, would you have been in a position to 12:46:34 7 take it upon yourself to go to North Carolina -- 12:46:39 8 A. Oh, yes, absolutely, absolutely. 12:46:42 9 Q. You didn't need Mr. Strausbaugh's 12:46:45 10 authority? 12:46:46 11 A. I went wherever the evidence took me or 12:46:49 12 wherever the case took me. More often than not, 12:46:52 13 I would say, "I am going here because I have to 12:46:55 14 do that or this." So I don't recollect the 12:46:57 15 circumstances under which I went, whether I was 12:46:59 16 directed to go or whether I exercised my own 12:47:03 17 initiative. 12:47:04 18 Q. Do you remember going? 12:47:07 19 A. Yes. 12:47:08 20 Q. Do you remember what the purpose of your 12:47:10 21 trip was? 12:47:11 22 A. Yes, yes, I do. And that is why I find it 12:47:15 23 hard to believe it was in January, because the 12:47:18 24 weather was pleasant, as I recollect. 12:47:20 25 But I went in an attempt to verify 122 12:47:24 1 information that had been, previously been given 12:47:27 2 to me by Margie Gibson, the wife of Delaney 12:47:30 3 Gibson. Specifically she had provided to me a 12:47:35 4 receipt for the sale or the purchase of auto 12:47:40 5 parts from an auto parts dealer in Canton, North 12:47:45 6 Carolina, and my recollection is that about 12:47:49 7 Wednesday prior to the August the 9th, which 12:47:53 8 would be about August 5th or 6th, according to 12:47:58 9 the receipt, and according to statements made by 12:48:02 10 Margie Gibson, Delaney Gibson had purchased auto 12:48:07 11 parts from this auto parts dealer. 12:48:09 12 I went there and interviewed that man, 12:48:12 13 whose name I no longer recollect, and was 12:48:15 14 convinced at the conclusion that the receipt 12:48:21 15 represented an arm's length transaction, and 12:48:24 16 that it could be reasonably assumed that on or 12:48:29 17 about the 5th or 6th of August, Delaney Gibson 12:48:33 18 purchased those auto parts from this dealer. 12:48:35 19 Q. Whatever the date on the receipt was? 12:48:37 20 A. Yes. And it just seemed to me, my 12:48:40 21 recollection is, it was at midweek prior to that 12:48:43 22 weekend. The records will bear that out, will 12:48:47 23 establish the date. 12:48:48 24 I also went to look at a McDonald's 12:48:55 25 restaurant, which was located along the highway 123 12:48:58 1 in Canton, North Carolina, on Route 19, I 12:49:01 2 believe, to compare it with photographs that I 12:49:03 3 had received previously from Margie Gibson. And 12:49:08 4 those photographs she represented to me were 12:49:11 5 taken the weekend of August 7th and 8th. So I 12:49:17 6 physically compared the photographs to the 12:49:20 7 restaurant and they appeared to be one and the 12:49:24 8 same location. 12:49:25 9 Q. You concluded that, in fact -- 12:49:27 10 A. I concluded, based upon -- and in fact, I 12:49:29 11 took photographs of the restaurant as well. 12:49:39 12 Q. Did you receive photographs from any other 12:49:42 13 sources? 12:49:42 14 A. No. 12:49:42 15 Q. Just Margie Gibson? 12:49:44 16 A. Just Margie Gibson. My recollection is 12:49:47 17 there were a total of 58 photographs. They were 12:49:51 18 pictures, family photographs basically, Margie, 12:49:55 19 Delaney and their young son, who I think also is 12:49:58 20 named Delaney, and the Bentleys, who would be, 12:50:02 21 as I recollect, Delaney Gibson's cousin, either 12:50:06 22 that or Margie's cousin. 12:50:08 23 Q. Who were visiting with them that weekend? 12:50:09 24 A. Who were alleged to have been visiting them 12:50:12 25 that weekend, yes. 124 12:50:15 1 Q. Do you remember anything about how Delaney 12:50:17 2 Gibson was depicted in those photographs? 12:50:20 3 A. Yes, in those photographs, he was depicted 12:50:22 4 as wearing a full beard. 12:50:23 5 Q. Do you recall if he was wearing glasses in 12:50:25 6 the photograph? 12:50:25 7 A. I don't remember. 12:50:26 8 Q. Do you recall going to -- do you recall 12:50:40 9 making efforts to confirm when the film was 12:50:44 10 processed? 12:50:45 11 A. Yes, I do. 12:50:45 12 Q. What do you remember about that? 12:50:48 13 A. Margie Gibson informed me that these 12:50:52 14 photographs were taken to a K-Mart and I believe 12:50:57 15 a K-Mart in Canton, North Carolina. I am not 12:51:04 16 sure of the location. But I went to the K-Mart 12:51:07 17 that she indicated that these photos had been 12:51:12 18 processed and examined their records and, to the 12:51:15 19 best of my recollection, determined that they 12:51:17 20 were processed at or about the time of this 12:51:21 21 series of events in 1982. 12:51:24 22 Q. Would it refresh your memory at all if I 12:51:28 23 asked you whether you actually remember having 12:51:31 24 received a total of 58 photographs, but some 12:51:34 25 from the Bentleys and some from Margie Gibson? 125 12:51:37 1 A. I don't remember that. 12:51:39 2 Q. Do you remember confirming that processing 12:51:42 3 of photographs at two separate locations? 12:51:44 4 A. I don't. I remember one. And for whatever 12:51:46 5 reason, I want to say Hazard, Kentucky, but I 12:51:51 6 don't remember. 12:51:53 7 Q. Do you remember going to any hotels or 12:51:56 8 motels to confirm the Bentleys' presence there? 12:52:02 9 A. Yes. I went to a motel, maybe Best 12:52:12 10 Western, but I am not sure whether the motel was 12:52:15 11 able to produce the records of the stay or of 12:52:18 12 the visit. 12:52:18 13 Q. And is it -- whatever records, whatever 12:52:23 14 work you did, you memorialized in memoranda? 12:52:29 15 A. I would believe so. I have no independent 12:52:32 16 recollection of doing that, but it was my custom 12:52:34 17 and my habit. 12:52:37 18 Q. And the documents you received, the 12:52:39 19 photographs and the receipts and any other 12:52:43 20 documents you might have received, you retained 12:52:46 21 those? 12:52:46 22 A. They would have all gone to the case file, 12:52:49 23 that's correct. 12:52:49 24 Q. And when you say "the case file," you are 12:52:51 25 referring to the -- 126 12:52:52 1 A. The system of records that we maintained in 12:52:56 2 Van Wert, Ohio. 12:52:58 3 Q. And do you recall -- well, is it fair to 12:53:03 4 say that at the completion of your 12:53:09 5 investigation, the investigative work, quite 12:53:12 6 thorough investigative work that you did, is it 12:53:17 7 fair to say that you had at least concluded that 12:53:21 8 Delaney Gibson was at that location in North 12:53:25 9 Carolina up until the point in time where the 12:53:33 10 Bentleys say they parted company with them; is 12:53:37 11 that fair to say? 12:53:37 12 A. I think it is fair to say that, if called, 12:53:41 13 the Bentleys would testify that they left the 12:53:45 14 company of Delaney Gibson at the McDonald's 12:53:49 15 restaurant at about 6 p.m. on the night of 12:53:53 16 August the 8th of 1982. 12:53:56 17 If you accept that testimony as credible -- 12:53:58 18 and I throw that caveat in for a reason. That 12:54:02 19 is, that I had had a number of prior 12:54:05 20 conversations with Mr. Bentley, and during those 12:54:11 21 prior conversations, he had clearly not been 12:54:14 22 truthful with me with regard to the location of 12:54:17 23 Delaney Gibson. 12:54:18 24 In other words, I knew he knew. I could 12:54:20 25 tell by his answers he knew, and I called him 127 12:54:23 1 repeatedly. It was only after prompting by 12:54:28 2 Margie that he came forward with this 12:54:30 3 information. So is there a credibility issue or 12:54:33 4 question? Yes, there is. 12:54:34 5 However, at the same time I considered that 12:54:39 6 evidence or that potential testimony in the best 12:54:43 7 light of the Defendant as a jury would be 12:54:45 8 instructed to do in trial. So could he have 12:54:53 9 left there on the night of August the 7th? 12:54:56 10 Possibly. Could it have been the prior weekend? 12:54:59 11 Possibly. But I accepted -- I took what he told 12:55:02 12 me. 12:55:02 13 Q. Just so we are clear, it is true, correct, 12:55:06 14 and you knew it, that throughout this period of 12:55:09 15 time in August of 1982, Mr. Gibson was a 12:55:13 16 fugitive from serious charges? 12:55:16 17 A. Oh, absolutely, he was, yes. 12:55:17 18 Q. So completely and totally independent of 12:55:20 19 anything that had gone on in Elgin, Ohio, there 12:55:23 20 were people who were not anxious to acknowledge 12:55:28 21 their presence with him? 12:55:29 22 A. That's right. Because he didn't want to go 12:55:31 23 to the gray bar hotel. 12:55:33 24 Q. And you knew that? 12:55:34 25 A. I certainly did. 128 12:55:39 1 Q. So any reluctance that you may have sensed 12:55:42 2 from the Bentleys at any particular point, I am 12:55:45 3 sure you attributed to the fact that they were 12:55:48 4 in the presence of someone who they knew was a 12:55:50 5 fugitive. 12:55:51 6 A. That's correct, that's correct. They were 12:55:53 7 hiding him. 12:56:04 8 Q. Today, is it your testimony then that 12:56:20 9 you -- were you satisfied that Delaney Gibson 12:56:23 10 was in Canton, North Carolina on the weekend of 12:56:28 11 August 7 and 8, after you completed your 12:56:32 12 investigation? You personally, were you 12:56:34 13 satisfied of that? 12:56:35 14 A. I was satisfied that he was there on the 12:56:38 15 date he purchased the auto parts, whatever date 12:56:40 16 that was, because that is a third party, no 12:56:43 17 interest in this case. 12:56:46 18 I was prepared to accept as a practical 12:56:48 19 matter that there would be testimony admitted at 12:56:53 20 trial from the Bentleys that they were with 12:56:56 21 Mr. Gibson up to approximately 6 p.m. on the 12:57:00 22 night of August the 8th, on the afternoon of 12:57:04 23 August the 8th. 12:57:06 24 I wasn't convinced totally of the accuracy 12:57:09 25 of the statement, but I was prepared to accept 129 12:57:11 1 it, knowing that it would be offered in 12:57:13 2 testimony, or I anticipated that. 12:57:14 3 Q. And then you were convinced that, in fact, 12:57:21 4 the photographs that were presented to you 12:57:23 5 depicted scenes in North Carolina? 12:57:25 6 A. Yes, I am, yes. 12:57:26 7 Q. And depicted Delaney Gibson? 12:57:28 8 A. That's correct. 12:57:29 9 Q. And you were convinced that the photographs 12:57:31 10 were processed at a time that was at least 12:57:33 11 consistent with the weekend of August 7th and 12:57:39 12 8th? 12:57:39 13 A. Yes, that's correct. 12:57:40 14 Q. Now, having acquired this information in 12:57:47 15 January of '84, did you simply file these memos 12:57:57 16 and the photographs, go to the file cabinet and 12:58:02 17 put them in the file cabinet? 12:58:05 18 A. Likely -- I have no independent 12:58:07 19 recollection of where I put what. This is 12:58:09 20 20-some years ago. Likely, I would have given 12:58:12 21 them to Inspector Strausbaugh for his review. 12:58:15 22 Q. Do you have any recollection of discussing 12:58:18 23 with anybody what you had found on this trip? 12:58:21 24 A. No, I don't. 12:58:23 25 Q. Is it fair to say that the trip itself, and 130 12:58:25 1 what you remember having done and what we have 12:58:27 2 just discussed that you did, that the purpose of 12:58:30 3 the trip was to see if you could corroborate, if 12:58:34 4 you will, what you had been told from Margie 12:58:38 5 Gibson about her husband's whereabouts that 12:58:41 6 weekend? 12:58:41 7 A. Absolutely. It was an attempt to determine 12:58:44 8 the truth of this matter, which is to say, where 12:58:47 9 he had been, one way or the other. 12:58:48 10 Q. And is it fair to say that certainly 12:58:50 11 nothing in your investigation contradicted what 12:58:54 12 Margie Gibson had told you? 12:58:59 13 A. Nothing that I developed contradicted 12:59:02 14 anything that she told me about his whereabouts 12:59:05 15 on that weekend, meaning the 7th and the 8th. 12:59:08 16 Q. And is it also fair -- I am just -- is it 12:59:12 17 fair to say that when you first spoke to Margie 12:59:15 18 Gibson and she gave you the photographs, in your 12:59:22 19 trained opinion as a trained investigator who 12:59:27 20 has interviewed a lot of witnesses, that it had 12:59:30 21 the ring of truth to you, you thought this may 12:59:33 22 check out as accurate? 12:59:35 23 A. No, I can't say that. But it certainly was 12:59:39 24 worth checking. And when I spoke with Margie 12:59:44 25 Gibson at her home, she insisted that her 131 12:59:47 1 husband had nothing to do with this specific 12:59:49 2 homicide. 12:59:50 3 Q. Now, if there had been -- hypothetically, 12:59:54 4 if there were a trial of Delaney Gibson -- 12:59:57 5 A. Yes. 12:59:58 6 Q. -- is this information that you and -- and 13:00:02 7 Delaney Gibson was in trial and you had 13:00:05 8 developed this information, would this be 13:00:06 9 information that you would feel obliged to share 13:00:10 10 with the prosecutor, make him aware of it? 13:00:13 11 A. Absolutely, absolutely. 13:00:14 12 Q. So that he could make his decisions and he 13:00:18 13 could fulfill whatever obligations he sees fit? 13:00:21 14 A. Discovery, absolutely. 13:00:25 15 Q. So if this had been the prosecution of 13:00:30 16 Delaney Gibson, is it fair to say that you would 13:00:32 17 have somehow made sure that Mr. Keister was 13:00:36 18 aware of it? 13:00:38 19 A. I am confident that the case agent would 13:00:41 20 have made Mr. Keister aware of it. 13:00:43 21 Q. But you wouldn't have just left it to the 13:00:46 22 case agent, you would have at least asked the 13:00:48 23 case agent, "Have you told Keister about this 13:00:51 24 stuff?" 13:00:51 25 A. No, not necessarily. Because I have enough 132 13:00:54 1 faith and confidence in my own troops that the 13:00:57 2 case agent is going to discharge his assigned 13:01:01 3 responsibilities. So I have the faith that he 13:01:03 4 would do those things. 13:01:04 5 Q. Well, you would have at least made the case 13:01:08 6 agent aware of what you understood the 13:01:14 7 significance of this evidence to be? 13:01:16 8 A. That is correct. 13:01:17 9 Q. And again, if this were a prosecution of 13:01:22 10 Delaney Gibson, you would have viewed this 13:01:25 11 evidence that you had developed in North 13:01:27 12 Carolina to be discoverable by the defense; is 13:01:32 13 that right? 13:01:32 14 A. Yes, I would. 13:01:33 15 Q. Okay. 13:01:34 16 A. Although I am not a lawyer, but, yes, I 13:01:38 17 would. My understanding of the case law is that 13:01:41 18 the Defendant has a right to know that. 13:01:42 19 Q. Because? 13:01:43 20 A. It would be used against him potentially, 13:01:46 21 or in this case it would be exculpatory to a 13:01:50 22 degree. 13:02:04 23 Q. I don't need it for -- off the record. 13:02:07 24 (Thereupon, a discussion was held off 13:13:43 25 the record.) 133 13:13:43 1 BY MR. HILL: 13:13:49 2 Q. Mr. Hartman, do you know whether a detainer 13:13:55 3 was lodged against Delaney Gibson? 13:13:57 4 A. I do not know. 13:13:59 5 Q. Do you recall any discussions with respect 13:14:03 6 to whether or not to lodge a detainer? 13:14:06 7 A. I do not know. I have no recollection of 13:14:08 8 ever engaging in such discussions, nor do I know 13:14:12 9 that a detainer was or was not lodged. 13:14:15 10 Q. What was your understanding, if any, of the 13:14:26 11 discovery process in this case? 13:14:28 12 A. My understanding was that Judge Walters 13:14:34 13 ordered all of the files to be reviewed by an 13:14:38 14 ombudsman, if you will, a separate, third-party 13:14:41 15 attorney who had no interest or involvement in 13:14:44 16 this case. It is my understanding that that 13:14:48 17 person, whoever he was, reviewed all the files 13:14:53 18 and made a determination as to what was and what 13:14:56 19 was not discoverable, and that the 13:15:02 20 discoverable -- the items deemed to be 13:15:04 21 discoverable were copied and turned over to the 13:15:06 22 Defendant. That is my understanding. 13:15:08 23 Q. And is that an understanding that you had 13:15:11 24 from firsthand participation in the process at 13:15:14 25 all? 134 13:15:15 1 A. No. 13:15:15 2 Q. I will represent to you that the name of 13:15:17 3 the -- do you know the name of the ombudsman? 13:15:20 4 A. I do not. 13:15:21 5 Q. I will represent that his name was John 13:15:24 6 Sabol. Did you ever meet him, to the best of 13:15:27 7 your knowledge? 13:15:28 8 A. No. 13:15:28 9 Q. Did you ever give him any briefings before 13:15:30 10 he reviewed the documents? 13:15:31 11 A. No. I have no recollection of any contact 13:15:33 12 with the man. 13:15:37 13 Q. Do you have any recollections of any 13:15:40 14 discussions with anybody as to what should or 13:15:45 15 should not be turned over to the defense? 13:15:47 16 A. No. Not my job. 13:15:51 17 Q. Did you participate or overhear any 13:15:55 18 conversations, anything that you may recall that 13:15:57 19 would shed some light on the discovery issue? 13:16:01 20 A. I have none. I have just related to you my 13:16:05 21 understanding, and that was my understanding. I 13:16:10 22 didn't participate in the preparation of any 13:16:12 23 documents or review of folders. Nor was I 13:16:17 24 present when Mr. Sabol would have reviewed any 13:16:24 25 such documents. I didn't witness any of that. 135 13:16:27 1 It was likely that I was perhaps somewhere else 13:16:30 2 when this process was ongoing. 13:16:33 3 Q. If I were to represent to you that the 13:16:45 4 photographs that you had recovered from Margie 13:16:53 5 Gibson and/or the Bentleys and the receipt that 13:16:56 6 you made reference to, and any other sort of 13:17:02 7 documentary evidence surrounding your trip to 13:17:04 8 North Carolina was not in the files that was 13:17:08 9 reviewed by the ombudsman, would you have any 13:17:11 10 explanation for that? 13:17:13 11 MR. PRICHARD: I object as to 13:17:15 12 evidence not in the record. 13:17:19 13 MR. HILL: Noted. 13:17:20 14 THE WITNESS: I would find it 13:17:21 15 hard to believe that that material was not in 13:17:23 16 the case file. 13:17:25 17 BY MR. HILL: 13:17:25 18 Q. Okay. 13:17:26 19 A. And likely -- again, unless these records 13:17:31 20 were reviewed at a time that I was developing 13:17:34 21 this information, otherwise, all this material 13:17:38 22 routinely went to the case file. 13:17:40 23 Q. And do you remember that there was some -- 13:17:45 24 after the trial, some years after the trial, 13:17:47 25 there was litigation concerning access to the 136 13:17:50 1 files by appellate counsel? 13:17:52 2 A. Oh, yes, there was a lot of that. 13:17:54 3 Q. Okay. And do you recall that as part of 13:17:56 4 that litigation, ultimately, there was an order 13:17:59 5 by Judge Carr to allow review of the documents? 13:18:03 6 A. Yes. I don't know who the judge was, but I 13:18:07 7 know that there was an order, and that 13:18:11 8 ultimately those documents were all bundled up, 13:18:17 9 packed up, if you will, by me in the presence of 13:18:21 10 two attorneys from the capital -- or the Public 13:18:27 11 Defender's Office in Columbus, Ohio, and they 13:18:32 12 witnessed the whole procedure. 13:18:34 13 The records were placed into CON-CON 13:18:37 14 containers and shipped from Van Wert, Ohio, to 13:18:45 15 Washington, D.C. to our headquarters, where then 13:18:47 16 our headquarters people dealt with issues of 13:18:50 17 copying and such as that. 13:18:52 18 Q. Now, the boxing of those documents at that 13:18:59 19 time occurred in Van Wert? I mean physically, 13:19:02 20 that process was in Van Wert? 13:19:04 21 A. Yes. The records, the files were 13:19:07 22 maintained at Van Wert, Ohio, in the sheriff's 13:19:10 23 office. 13:19:10 24 Q. Now, do you happen to have any 13:19:12 25 recollection, as we sit here today, since you 137 13:19:14 1 were the one who boxed them up, as to whether or 13:19:18 2 not the photographs were in the files? 13:19:20 3 A. I don't know; I don't know. 13:19:27 4 Q. Again, that question is, if -- well, do you 13:19:31 5 recall that subsequent to the initial 13:19:33 6 production, there was some further litigation 13:19:36 7 with respect to -- and that further litigation 13:19:44 8 reflected the fact that the photographs were not 13:19:46 9 in that initial submission? 13:19:48 10 A. I don't recollect that. 13:19:50 11 Q. Do you recollect that the photographs were 13:19:54 12 subsequently recovered or represented to us to 13:19:56 13 be recovered from your desk file, do you recall 13:19:58 14 that? 13:19:59 15 A. I don't recollect that either. 13:20:00 16 Q. Do you recall finding the photographs 13:20:03 17 subsequently? 13:20:03 18 A. No, I don't; I don't. 13:20:05 19 Q. You have no memory of that at all? 13:20:07 20 A. None. 13:20:07 21 Q. Mr. Hartman, do you recall, again, during 13:20:39 22 the litigation, the post-trial litigation -- 13:20:42 23 A. Over many years. 13:20:44 24 Q. Right. Do you recall at any point during 13:20:46 25 that time you being asked by anybody where the 138 13:20:49 1 photographs were? 13:20:50 2 A. I have no recollection of that. 13:20:51 3 Q. You don't recall anybody from the Postal 13:20:53 4 Service inquiring of you? 13:20:54 5 A. I don't remember, honestly. 13:20:56 6 Q. As you went to trial or as the trial 13:21:08 7 commenced in August of 1984 -- and you were a 13:21:13 8 witness at that trial, correct? 13:21:16 9 A. Yes, I was. 13:21:17 10 Q. And you didn't -- as a result of being a 13:21:20 11 witness, you were sequestered from other 13:21:23 12 witnesses, correct? 13:21:24 13 A. I was. There was a separation of 13:21:25 14 witnesses. So I was not present when other 13:21:27 15 people testified. 13:21:29 16 Q. And as you recall back on it now, what was 13:21:39 17 your, as one of the principal investigators in 13:21:43 18 the case, what was your theory, if you will, as 13:21:48 19 to what had happened? 13:21:52 20 A. Are you asking my testimony? 13:21:54 21 Q. No, I am not asking your testimony. I am 13:21:57 22 asking your theory as to how this crime 13:22:02 23 occurred. 13:22:02 24 A. At the time -- and there have been 13:22:08 25 theories, to me have evolved over years as I 139 13:22:11 1 have gained more and more information and 13:22:13 2 continued to work on this case, which I did 13:22:15 3 until my retirement. 13:22:20 4 At the time the theory was that Delaney 13:22:27 5 Gibson and John Spirko traveled to the post 13:22:36 6 office, conducted the robbery of the post 13:22:44 7 office, fled the scene and subsequently killed 13:22:49 8 and dumped the body of the postmaster in 13:22:53 9 Findlay, Ohio. 13:22:54 10 Q. That was the theory? 13:22:56 11 A. That was the theory. 13:22:59 12 Q. As in the prosecution theory? 13:23:01 13 A. Yes. 13:23:02 14 Q. And my question is, do you share completely 13:23:04 15 in that theory, in your own -- this is just your 13:23:08 16 own -- 13:23:08 17 A. In my own mind? 13:23:10 18 Q. Yes. 13:23:12 19 A. I had doubts about the theory, because of 13:23:19 20 my own personal belief that we could not convict 13:23:25 21 Delaney Gibson. So I guess I am confusing -- or 13:23:29 22 for the purposes of this discussion, I am 13:23:32 23 commingling theory with practicality. 13:23:36 24 Q. I am just asking you what you thought, you 13:23:38 25 yourself, what you thought had happened. 140 13:23:40 1 A. I thought both these guys went and did the 13:23:43 2 offense is what I thought. But I didn't know 13:23:48 3 enough to put all the pieces together. 13:23:55 4 Q. What was your theory as to how they had 13:24:00 5 communicated or met or where they had met? 13:24:03 6 A. Well, at that time, and after that time, I 13:24:06 7 had real serious concerns about any 13:24:11 8 communication between the two, and quite 13:24:15 9 frankly, how does one arrive at a consensus to 13:24:23 10 meet at the post office in Elgin, Ohio? A 13:24:28 11 community of 61 people, not on a main highway. 13:24:33 12 So it was clear something was missing. And 13:24:37 13 I never accepted then that we knew enough. I 13:24:45 14 further never accepted the fact that we had all 13:24:47 15 the people. We didn't. It was clear, plain as 13:24:52 16 the nose on your face, for a couple of reasons. 13:24:54 17 One, Delaney Gibson was a person who has 13:24:59 18 admittedly a violent past and a criminal record, 13:25:03 19 multiple homicides. Those homicides, however, 13:25:07 20 seem to arise from personal disputes with other 13:25:11 21 people, no robberies that I can recollect. So 13:25:18 22 he would, in anger, shoot people, for which he 13:25:22 23 paid a price. 13:25:24 24 Defendant Spirko, on the other hand, had 13:25:28 25 committed a prior robbery/murder, but it being 141 13:25:32 1 of an elderly female in a hotel room in 13:25:36 2 Covington, Kentucky in 1969. He was a car 13:25:42 3 thief, a petty thief and a mugger of women. He 13:25:46 4 was a follower, not a leader, a follower. 13:25:52 5 The bottom line is, he was a follower. 13:25:58 6 Gibson, being the other person, was clearly not 13:26:01 7 the man, you know, I emphasize the word "the." 13:26:04 8 He wasn't, in my view, the planner, the person 13:26:07 9 who directed -- the prime mover, if you will, 13:26:12 10 the person who moved everyone to the postal 13:26:14 11 facility, because their prior history of 13:26:19 12 criminal activity just didn't suggest that they 13:26:21 13 were capable of doing that. 13:26:26 14 There came a later date, however, when I 13:26:29 15 have come up with another person who is their 13:26:31 16 associate who did. 13:26:33 17 Q. When you say it is "their associate," is 13:26:37 18 whose associate? 13:26:38 19 A. Is an associate of Delaney Gibson and John 13:26:43 20 Spirko. 13:26:45 21 Q. This is Mr. Kelley you are referring to? 13:26:47 22 A. This is James Clark Kelley, that's correct. 13:26:50 23 Q. And it is your present theory that 13:26:52 24 Mr. Kelley was involved? 13:26:54 25 A. Yes, absolutely. 142 13:26:55 1 Q. Along with Mr. Spirko? 13:26:56 2 A. And Mr. Gibson and Effie Rader, and it is 13:27:01 3 my belief that Mr. Kelley is the person who 13:27:05 4 targeted the post office, because he had a 13:27:10 5 history of postal crime. 13:27:21 6 He had been raising postal money orders, 13:27:25 7 which is how I first came upon him. But beyond 13:27:28 8 that, when I had been at Madison, Indiana and 13:27:32 9 talked with a detective sergeant at the Indiana 13:27:36 10 State Police, they had investigated a burglary 13:27:40 11 of a post office and had developed information 13:27:44 12 that, much like this case, in fact, Mr. Kelley 13:27:46 13 had broken into the post office to burglarize 13:27:50 14 it, and during the early morning hours, the 13:27:52 15 postmaster of that facility entered and Kelley 13:27:55 16 took off through the back door, remarkably 13:28:01 17 similar to this. 13:28:30 18 Q. Mr. Hartman, let me show you Exhibits 12 13:29:19 19 and 13 and ask you whether you recall whether 13:29:21 20 you have seen those before? 13:29:23 21 A. I have. 13:29:25 22 Q. Do you know what they are? 13:29:26 23 A. These are composite -- they are sketches. 13:29:33 24 Q. And do you know -- 13:29:36 25 A. These are sketches of the suspect from a 143 13:29:42 1 witness to the robbery of the Elgin, Ohio Post 13:29:47 2 Office on August the 9th of 1982. 13:29:50 3 Q. And do you know who the witness was who 13:29:56 4 assisted the police artist in drawing those? 13:29:59 5 A. I do not. 13:30:00 6 Q. I would represent to you that it was Opal 13:30:09 7 Seibert. 13:30:09 8 A. All right. 13:30:10 9 Q. The person depicted in those sketches, does 13:30:13 10 that person have facial hair? 13:30:15 11 A. No. 13:30:15 12 Q. Was the person wearing glasses? 13:30:17 13 A. Yes. 13:30:22 14 Q. And do you remember whether you were -- I 13:30:28 15 mean, as being an investigator involved in this 13:30:31 16 case, I assume that these were sketches that 13:30:33 17 back at that time were sketches that you were 13:30:38 18 fairly intimately aware of? 13:30:40 19 A. I was aware of them, and I believe that -- 13:30:44 20 excuse me -- that this sketch, I think, was used 13:30:48 21 to formulate the wanted circular. 13:30:53 22 Q. You may not remember them today, but you 13:30:57 23 certainly -- 13:30:58 24 A. I have seen them before. 13:31:00 25 Q. -- have seen them before? 144 13:31:01 1 A. But I don't care for them, to be honest 13:31:05 2 with you. I think sketches and identity 13:31:08 3 composites stink. They are not worth much of 13:31:15 4 anything. I have yet to see one in any case 13:31:17 5 that really resembles the suspect. That is in 13:31:20 6 28 years, I haven't seen one. 13:31:22 7 So is it a standard procedure, standard 13:31:25 8 operating procedure? Sure. But they don't do 13:31:29 9 anything for me. 13:31:31 10 Q. So if you were making the closing argument 13:31:33 11 as the prosecutor in the case, you wouldn't pay 13:31:36 12 much attention to them? 13:31:38 13 A. I wouldn't. That is my own personal 13:31:42 14 opinion. 13:31:42 15 Q. Right, I understand. Let me show you 13:31:48 16 Exhibit 14 and ask if you happen to be able to 13:31:50 17 identify that? 13:31:53 18 A. This appears to be a photograph of Delaney 13:31:58 19 Gibson, Junior. 13:31:59 20 Q. And I think you have seen it before? 13:32:01 21 A. Well, I recognize his face, so, yes, I -- 13:32:04 22 Q. You have never seen him, right? 13:32:06 23 A. I have never seen him personally, no. But 13:32:09 24 I would believe this is Delaney Gibson, Junior. 13:32:12 25 Q. And you never saw the photo spread itself, 145 13:32:15 1 correct? 13:32:16 2 A. No. 13:32:16 3 Q. Even after the fact? 13:32:17 4 A. I have no recollection of ever seeing the 13:32:21 5 spread before, during or after. I don't know 13:32:23 6 what photos were displayed. 13:32:25 7 Q. Let me have 16. Let me show you what has 13:32:59 8 been previously marked as Exhibit 16. I ask 13:33:08 9 you, do you recognize the handwriting? 13:33:10 10 A. No. 13:33:11 11 Q. Do you know whose initials they are in the 13:33:13 12 upper right? 13:33:14 13 A. No. 13:33:14 14 Q. Do you recall ever having seen it before? 13:33:18 15 A. No. 13:33:19 16 Q. There is a reference at the top of it to 13:33:22 17 "Lanny Gibson still willing to take polygraph, 13:33:26 18 the sooner the better. Never talked to JS after 13:33:31 19 escape." Do you remember any discussion with 13:33:35 20 anybody about Gibson taking a polygraph? 13:33:38 21 A. No, no, I don't. 13:33:40 22 Q. You were never -- do you remember ever 13:33:42 23 proposing to anybody that Gibson be given a 13:33:47 24 polygraph? 13:33:47 25 A. No. Inspector Strausbaugh and the 146 13:33:51 1 lieutenant from the Van Wert County Sheriff's 13:33:57 2 Office seemed to take the lead with regard to 13:34:00 3 Gibson, so I had very little to do with it. 13:34:03 4 Q. If I could have that back just so we can 13:34:08 5 keep it. 13:34:11 6 (Handing.) 13:34:35 7 Q. I show you Exhibit 49. I ask you whether 13:34:40 8 you can identify that? 13:34:41 9 A. That appears to be an arrest photograph of 13:34:49 10 Delaney Gibson. 13:34:50 11 Q. Is it dated? 13:34:51 12 A. Taken at the Buncombe County Sheriff's 13:35:06 13 Office in Asheville, North Carolina. It appears 13:35:11 14 to have been taken on April the 18th of 1983. 13:35:15 15 Q. And do you know if you have seen this 13:35:19 16 before? 13:35:19 17 A. I don't remember having seen this photo. 13:35:21 18 Q. In this photograph, is Mr. Gibson bearded 13:35:26 19 or not? 13:35:26 20 A. He was wearing a full beard, mustache, yes. 13:35:31 21 Q. How do you know it is Gibson or what makes 13:35:50 22 you think it is Gibson? 13:35:53 23 A. It looks like the same person to me, except 13:35:57 24 he has got a beard. 13:35:59 25 Q. So you just recognize him sort of from 147 13:36:01 1 memory? 13:36:02 2 A. Yes. 13:36:03 3 Q. And when I say "from memory," from prior 13:36:07 4 photographs you have seen of him? 13:36:08 5 A. Um-hum. 13:36:09 6 Q. Because you have never seen him in person? 13:36:11 7 A. That's right, I have never seen him in 13:36:13 8 person. I may have seen that photograph; I may 13:36:15 9 not have. I don't remember. 13:36:41 10 Q. Bear with me. Let me show you Exhibit 43 13:36:55 11 and ask you if -- first of all, is this the 13:37:03 12 form, another sort of form of report used by the 13:37:07 13 Postal Service? 13:37:08 14 A. Yes. This is a P.S. form 2029. This is 13:37:12 15 our standard, was our standard reporting format 13:37:16 16 at the time. 13:37:17 17 Q. This is not your memo or your report? 13:37:20 18 A. No, it is not. 13:37:21 19 Q. It is Mr. Strausbaugh's, correct? 13:37:24 20 A. Correct, yes. 13:37:25 21 Q. I want to draw your attention to paragraph 13:37:29 22 2 and ask you to look at that and tell me 13:37:31 23 whether that at all refreshes your memory with 13:37:35 24 respect to any discussions that anyone may have 13:37:38 25 had that you are aware of with Mr. Keister 148 13:37:43 1 concerning what was to become of Mr. Gibson upon 13:37:46 2 his arrest? 13:37:46 3 A. I have no recollection. The only thing I 13:37:49 4 can tell you -- the only thing I really remember 13:37:51 5 about this event is one morning I got a call 13:37:54 6 from an FBI agent who said, "I am going to get 13:37:58 7 'im." I said, "Well, not if I get him first." 13:38:01 8 That is it. 13:38:02 9 I don't remember where he was arrested, nor 13:38:04 10 do I recollect any conversation as to when and 13:38:10 11 where he would be brought to trial. 13:38:13 12 I do know independently that once you file 13:38:16 13 a detainer, it moves the process along, and that 13:38:22 14 brings the case to trial quickly. 13:38:28 15 Q. You don't know whether a detainer was 13:38:32 16 filed? 13:38:33 17 A. I do not, no. The realities with, if this 13:38:36 18 decision were mine, I would have waited and I 13:38:38 19 would have waited because he would have served 13:38:41 20 out his sentence in the United States 13:38:44 21 Penitentiary and then in Kentucky, and then as 13:38:46 22 he was about to be released, I would have then 13:38:49 23 put a detainer on him and brought him to court. 13:38:52 24 That way, the court couldn't run the sentences 13:38:55 25 all together. It is a practical issue. 149 13:38:57 1 Q. Let's talk about that for a minute. 13:38:59 2 Mr. Gibson was indicted on capital murder 13:39:02 3 charges, right? 13:39:03 4 A. Right. 13:39:04 5 Q. And the State of Ohio was seeking the death 13:39:06 6 penalty, right? 13:39:07 7 A. I assume so. 13:39:08 8 Q. You don't remember? 13:39:09 9 A. I don't remember. I would have to look at 13:39:11 10 the indictment. I don't know if he was indicted 13:39:13 11 with specifications or not. 13:39:16 12 Q. I will represent to you that he was. 13:39:18 13 A. Okay. 13:39:18 14 Q. But sitting here today, you don't remember 13:39:23 15 the Gibson indictment was with specifications? 13:39:26 16 A. I don't remember that, no. But I will be 13:39:28 17 glad to read the indictment now. I don't 13:39:30 18 remember it, no. 13:39:31 19 Q. I am just asking what you remember. 13:39:34 20 A. I don't remember. 13:39:35 21 Q. Were you -- well, let me ask you this: 13:39:40 22 Prior to Mr. Spirko, prior to the trial itself, 13:39:43 23 were you aware that his indictment was with 13:39:48 24 specifications? 13:39:48 25 A. Yes, I was. 150 13:39:49 1 Q. Were you consulted at all or did you have 13:39:55 2 any conversations in which you voiced your 13:40:00 3 opinion as to whether or not it should be an 13:40:02 4 indictment with specifications or not? 13:40:03 5 A. Yes, I do. I voiced them to the team 13:40:07 6 leaders, Inspector Strausbaugh, that we ought to 13:40:10 7 bring this case in State Court rather than 13:40:13 8 Federal Court, because in the State of Ohio, 13:40:15 9 there is a death penalty and at the time in the 13:40:17 10 Federal system, there was none. 13:40:19 11 Q. And to whom did you express that? 13:40:20 12 A. Inspector Strausbaugh and my peers. That 13:40:23 13 was my opinion. 13:40:24 14 Q. The same ones that you identified earlier? 13:40:26 15 A. Yes, that's correct. 13:40:27 16 Q. Did you express that to Mr. Keister? 13:40:30 17 A. Not that I recollect. Again, not my job. 13:40:34 18 So it was not my responsibility to voice my 13:40:37 19 opinions to him, it was Inspector Strausbaugh's 13:40:41 20 responsibility to assert an agency position, 13:40:45 21 there being a difference. 13:40:46 22 Q. But ultimately the decision was 13:40:50 23 Mr. Keister's? 13:40:51 24 A. That's correct, it was his decision, not 13:40:53 25 mine, not Inspector Strausbaugh's. 151 13:40:55 1 Q. Do you remember voicing the same opinion 13:40:58 2 with respect to Mr. Gibson? 13:41:00 3 A. No. And the reason being, that he was a 13:41:07 4 fugitive, he was a fugitive, he is out there 13:41:11 5 wandering the countryside someplace, and there 13:41:14 6 was a question, when, if ever, we would 13:41:16 7 ultimately apprehend him. 13:41:18 8 Q. Why would his fugitive status impact upon 13:41:20 9 what the indictment would say? 13:41:23 10 A. Well, at the time the person who loomed 13:41:29 11 large in my consciousness was Mr. Spirko, a bird 13:41:32 12 in the hand. 13:41:33 13 Q. I understand that. But they were indicted 13:41:36 14 at the same time. 13:41:36 15 A. Yes, I understand that. 13:41:37 16 Q. So the decision as to how to charge them 13:41:41 17 was made at the same time? 13:41:41 18 A. Apparently so. 13:41:42 19 Q. So my question is, did you view -- did you 13:41:46 20 have a different opinion with respect to what -- 13:41:50 21 how Mr. Gibson should be charged than you did 13:41:53 22 with respect to how Mr. Spirko should be 13:41:55 23 charged? 13:41:55 24 A. I doubt it. I don't remember specifically, 13:41:57 25 but I would doubt it. 152 13:41:58 1 Q. But you remember voicing your opinion with 13:42:01 2 respect to Mr. Spirko? 13:42:02 3 A. Yes. Because he and I in part had such 13:42:05 4 intimate contact over a period of time. And I 13:42:07 5 was convinced not only was he involved, but he 13:42:10 6 is the person, in my view, who took the life of 13:42:13 7 the postmaster. 13:42:14 8 Q. So you did feel that the death penalty was 13:42:21 9 more appropriate for him than for Mr. Gibson? 13:42:24 10 A. Absolutely, absolutely. He is the killer. 13:42:27 11 Q. Now -- 13:42:29 12 A. I am not saying it is inappropriate for 13:42:31 13 Mr. Gibson. But the most deserving person, in 13:42:35 14 my mind, is Mr. Spirko. 13:42:38 15 Q. Now, you don't have any recollection of any 13:42:46 16 discussions about what to do with Mr. Gibson 13:42:48 17 when he was arrested by the FBI? 13:42:51 18 A. No, I do not. And it grieved me to know 13:42:58 19 that they arrested him instead of me, to be 13:43:01 20 perfectly candid. 13:43:04 21 Q. Let me show you Exhibit 42. I have shown 13:43:31 22 you Exhibit 42, and I ask you, first of all, 13:43:38 23 whose handwriting is it? 13:43:39 24 A. That is the handwriting of an inspector, 13:43:43 25 Sally Wolfe. 153 13:43:43 1 Q. I ask you to turn to the end of the 13:43:46 2 document. 13:43:47 3 (Witness complies with the request.) 13:43:52 4 Q. And it bears Sally Wolfe's signature or 13:44:02 5 name, and it also bears your name and 13:44:04 6 Mr. Richardson's? 13:44:06 7 A. That's correct. 13:44:08 8 Q. Now, in a document like this, is the whole 13:44:14 9 document, as far as you know, written in Sally 13:44:16 10 Wolfe's handwriting? 13:44:17 11 A. Yes, these are just notes, case notes. 13:44:20 12 Q. Is the fact that all three of your names 13:44:22 13 appear at the end, does that suggest that all 13:44:25 14 three of you participated in some or part of 13:44:27 15 these interviews? 13:44:27 16 A. That's correct. That is exactly what it 13:44:30 17 suggests, that all three of us were present. 13:44:32 18 Q. And this would have -- these interviews 13:44:34 19 were of a Juan Flores? 13:44:37 20 A. That's correct. 13:44:38 21 Q. Do you remember Mr. Flores? 13:44:41 22 A. Yes, I do. 13:44:41 23 Q. And Mr. Flores was, in fact, sort of the 13:44:46 24 crew chief of this migrant group; is that right? 13:44:51 25 A. Yes. I am sorry, the -- yes. He was like 154 13:44:57 1 assistant to the crew chief, as I recollect. 13:45:00 2 But he was one of the few people who spoke 13:45:03 3 English. 13:45:04 4 Q. And you spoke with him several times, 13:45:06 5 right? 13:45:06 6 A. I just remembered speaking with him one 13:45:08 7 time. 13:45:13 8 Q. And this interview occurred in April of 13:45:18 9 '83; is that right? 13:45:19 10 A. That's right. That would have been at the 13:45:22 11 time that we proceeded to Naples, Florida, in an 13:45:26 12 attempt to apprehend Delaney Gibson, Junior. 13:45:31 13 Q. If I draw your attention to the third page 13:45:36 14 of these notes, the next-to-the-last paragraph 13:45:39 15 from the bottom, is this consistent with your 13:45:43 16 recollection that Mr. Flores reported that 13:45:48 17 Mr. Gibson had worked, had been in North 13:45:52 18 Carolina from June of '82 to October of '82? 13:45:54 19 A. That's right. 13:45:55 20 Q. Is that consistent with your recollection 13:45:59 21 as to what generally your investigation had 13:46:02 22 determined as to where -- as to his general 13:46:05 23 whereabouts? 13:46:05 24 A. His general whereabouts, yes. He was in 13:46:08 25 the vicinity of Canton, North Carolina. And my 155 13:46:12 1 recollection is that he dropped off of this crew 13:46:15 2 when he was at Canton, North Carolina. 13:46:17 3 Q. In October of '82? 13:46:18 4 A. I don't remember the specific date. And I 13:46:23 5 am not sure that there are any documents that 13:46:26 6 support the specific dates. I believe this was 13:46:30 7 Mr. Flores' recollection. But I do recollect 13:46:34 8 after the crew moved on, Mr. Gibson and his wife 13:46:38 9 and child stayed on and worked at the Burress 13:46:41 10 farm. 13:46:50 11 Q. I will show you Exhibit 51. Do you 13:47:17 12 recognize the handwriting? 13:47:21 13 A. No. 13:47:24 14 Q. It appears to be an interview by Ms. Wolfe 13:47:28 15 and Mr. Richardson; is that right? 13:47:30 16 A. Yes. 13:47:33 17 Q. The person interviewed was Isabell 13:47:36 18 Cervantes, do you recall her at all? 13:47:39 19 A. No. 13:47:39 20 Q. I direct your attention to the last 13:47:41 21 paragraph on the page, that first page. 13:47:47 22 A. Yes. 13:47:48 23 Q. Well, it refers to Jimmy. "Jimmy" was an 13:47:56 24 alias that Lanny Gibson was operating under 13:48:00 25 there. It was his brother's name? 156 13:48:02 1 A. He had assumed his brother's identity, 13:48:05 2 that's correct. 13:48:05 3 Q. She further stated that Jimmy's beard was 13:48:09 4 always the same, do you see that? 13:48:10 5 A. Yes, I do. 13:48:12 6 Q. Do you recall his, Mr. Gibson's bearded 13:48:16 7 appearance being an issue of investigative 13:48:18 8 interest? 13:48:19 9 A. Yes. 13:48:36 10 Q. Let me show you 52 and ask you, again, is 13:48:50 11 this Inspector Wolfe's handwriting? 13:48:52 12 A. It is. 13:48:52 13 Q. It bears your name as well, correct? 13:48:55 14 A. It does. 13:48:56 15 Q. On the top, it says "3rd Interview of Juan 13:49:00 16 Flores." Does that by any chance refresh your 13:49:03 17 recollection as to how many times you met with 13:49:04 18 Mr. Flores? 13:49:05 19 A. No. 13:49:05 20 Q. But it would suggest it was at least three 13:49:08 21 times, right? 13:49:09 22 A. I don't remember. This was in 1983. This 13:49:11 23 now being 2005, I don't remember. 13:49:13 24 Q. I know you don't remember. But I said it 13:49:16 25 suggests that -- 157 13:49:17 1 A. It may suggest that, yes. 13:49:19 2 Q. Again, looking at the larger paragraph, 13:49:21 3 Juan Flores and Johnny Valdez, do you remember 13:49:24 4 who Mr. Valdez was? 13:49:26 5 A. Yes, I do. 13:49:27 6 Q. Who was he? 13:49:28 7 A. He was the assistant crew chief to Juan 13:49:34 8 Flores, I believe. He was the person who, I 13:49:36 9 believe, spoke English. 13:49:38 10 Q. "Juan Flores and Johnny Valdez both stated 13:49:41 11 that Gibson's beard always looked the same. No 13:49:43 12 longer or no shorter. They both agreed that 13 Gibson's beard looked exactly like Postal 13:49:46 14 Inspector's Paul Hartman's beard as of this 13:49:48 15 date. Same in length and same in color - light 13:49:52 16 and reddish brown." You have aged some? 13:49:54 17 A. I have. My beard is now white. It used to 13:49:57 18 be auburn. But at the time, I guess the 13:49:59 19 question comes, what was the length of my beard 13:50:03 20 at the time. And it was relatively short. 13:50:06 21 Q. How would you describe it relative to its 13:50:10 22 current -- 13:50:10 23 A. Significantly shorter than it is now. 13:50:15 24 Q. But with respect to Mr. Gibson, at least, 13:50:18 25 we do come to later photographs that show his 158 13:50:22 1 beard? 13:50:22 2 A. Fully bearded, yes. 13:50:30 3 Q. By the way, does that happen to refresh 13:50:37 4 your memory in terms of someone commenting on 13:50:40 5 your appearance as they were describing 13:50:43 6 somebody? Does that ring any bells? 13:50:45 7 A. No. 13:50:45 8 Q. And, again, does that confirm your 13:50:51 9 recollection that Mr. Gibson's beard's 13:50:56 10 appearance, again, was a matter of investigative 13:50:59 11 interest? 13:50:59 12 A. Oh, yes, absolutely. 13:51:02 13 Q. It was a matter you were inquiring of 13:51:06 14 people about? 13:51:07 15 A. Most certainly. The reason being that 13:51:09 16 witnesses did not describe a bearded person at 13:51:11 17 the scene, and that when he was arrested, he had 13:51:17 18 a beard, and when we interviewed these people, 13:51:21 19 at the time of the arrests, they asserted the 13:51:24 20 fact that at a time, he wore a beard, so, yes. 13:51:28 21 Q. And the fact that you had the photographs 13:51:30 22 that you had recovered showed him with a beard? 13:51:33 23 A. That's correct. 13:51:34 24 Q. Do you recall also establishing the fact 13:51:45 25 that the witnesses described him as having a 159 13:51:49 1 beard not only before August the 9th, but 13:51:54 2 subsequently and continuously, do you recall 13:51:56 3 that that is what you were being told? 13:51:58 4 A. I think that the general impression I have 13:52:00 5 from reading these documents is that he was 13:52:03 6 generally bearded. Although one of them 13:52:05 7 indicates that there was a time when he shaved 13:52:07 8 off the beard. 13:52:08 9 Q. It indicates there was a time when he might 13:52:10 10 have shaved off the beard? 13:52:11 11 A. That's correct. 13:52:12 12 Q. Do you recall when you were in Florida also 13:52:47 13 investigating the issue of the records that were 13:52:49 14 maintained with respect to the number, the 13:52:53 15 volume of tomatoes that were being picked? 13:52:57 16 A. Yes. 13:52:57 17 Q. What is your recollection? 13:52:58 18 A. My recollection is there were no records. 13:53:05 19 There was a chit system. As I recollect, on a 13:53:08 20 daily basis, for every bucket of tomatoes you 13:53:13 21 got a chit, and at the end of the day, you would 13:53:17 22 be compensated on the number of chits you 13:53:19 23 presented to the paymaster. But my recollection 13:53:22 24 is there were no specific records that would fix 13:53:27 25 his employment anywhere on August the 9th of 160 13:53:29 1 1982. 13:53:30 2 Q. Well, do you have a recollection with 13:53:33 3 respect to this chit system, this system of 13:53:36 4 payment, that during this time period Delaney 13:53:44 5 Gibson was being paid, if you will, under his 13:53:48 6 wife's name, because of his fugitive status, do 13:53:51 7 you recall that? 13:53:52 8 A. I don't remember that. 13:53:57 9 Q. Let me show you Exhibit 55 and ask you, 13:54:13 10 first of all, do you recognize the handwriting 13:54:14 11 on this one? 13:54:15 12 A. Yes, the handwriting on this is mine, and 13:54:17 13 this is a copy of my notes. 13:54:24 14 Q. So these are your writings then? 13:54:28 15 A. Yes, yes, they are. 13:54:29 16 Q. Okay. And these are notes that you, again, 13:54:33 17 that you took with respect to an interview of 13:54:36 18 Mr. Flores and Mr. Valdez? 13:54:40 19 A. That's correct, on April 22 of 1983, and I 13:54:44 20 don't know if these are not companion to other 13:54:49 21 notes taken by other inspectors on the same 13:54:52 22 date, specifically Inspector Wolfe. 13:54:54 23 Q. In other words, you might both have been 13:54:56 24 taking notes? 13:54:56 25 A. In other words, we might have both taken 161 13:55:00 1 notes and submitted them to the file. 13:55:03 2 Q. Let me draw your attention first -- 13:55:11 3 obviously, look at whatever you want to look at. 13:55:13 4 But look at the second page, if I could draw 13:55:15 5 your attention there. 13:55:17 6 (Witness complies with the request.) 13:55:20 7 A. Okay. 13:55:20 8 Q. The paragraph beginning, the third 13:55:23 9 paragraph down. 13:55:24 10 A. Yes, sir. 13:55:25 11 Q. I think, tell me if I am reading your 13:55:27 12 handwriting correctly, "Flores recollected one 13:55:30 13 occasion in N.C. --" 13:55:34 14 A. North Carolina. 13:55:34 15 Q. "-- when Gibson held tokens until the end 13:55:37 16 of the week, at which time Lanny --" 13:55:40 17 A. Redeemed. 13:55:41 18 Q. "-- redeemed the tokens and Flores averaged 13:55:44 19 the daily earnings over the week." 13:55:48 20 A. Correct. 13:55:49 21 Q. It is not bringing back any memories of the 13:55:52 22 discussion about the system? 13:55:53 23 A. I am reading the notes. But I don't 13:55:55 24 remember the conversation. 13:56:00 25 Q. The next paragraph, "Flores recollected 162 13:56:03 1 that Lanny would go into the fields with 13:56:07 2 Margie." 13:56:09 3 A. Yes. 13:56:09 4 Q. Looking at the next page, page 3, if I can 13:56:15 5 direct your attention to the second paragraph, 13:56:18 6 again, tell me if I am reading your handwriting 13:56:21 7 correctly. "When running his time/count" -- 13:56:24 8 "When reviewing --" excuse me, I think. 13:56:26 9 A. That's correct. 13:56:27 10 Q. "-- his time/count records for 8/10/82, 13:56:31 11 Flores indicated the volume reflected would seem 13:56:34 12 to indicate that two persons were picking on 13:56:38 13 that date. When Gibson worked for Flores at 13:56:42 14 Canton, North Carolina, Delaney requested that 13:56:45 15 all daily time recordings be made in Margie's 13:56:48 16 name, a request with which Flores complied, 13:56:51 17 although he considered --" 13:56:53 18 A. Considered it. 13:56:54 19 Q. "-- considered it a bit unusual"? 13:56:56 20 A. That's right. 13:56:57 21 Q. And does that refresh your memory at all 13:56:59 22 with respect to records that reflected at least 13:57:04 23 the volume consistent with two persons that were 13:57:12 24 picked by the Gibsons on the 10th? 13:57:17 25 A. No. 163 13:57:17 1 Q. It doesn't refresh your memory? 13:57:23 2 A. No. 13:57:24 3 Q. And, again, the next page, the second full 13:57:32 4 paragraph, do I read it correctly -- 13:57:36 5 A. At the top of the page, sir? 13:57:38 6 Q. Second paragraph. Do I read that correctly 13:57:40 7 as, "Flores advised that he did not particularly 13:57:43 8 enforce daily collection of tokens at Canton, 13:57:47 9 North Carolina, since picking was light. Since 13:57:51 10 the crew was picking pink tomatoes, the busiest 13:57:57 11 days were Monday and Tuesday (after Saturday and 13:58:00 12 Sunday off)"? 13:58:02 13 A. That's correct. I think the word is the 13:58:05 14 "heaviest" days. 13:58:07 15 Q. The heaviest days, okay. Thank you. 13:58:11 16 MR. PRICHARD: We will indicate 13:58:12 17 during this pause our continuing objection to 13:58:16 18 all the evidence and materials that were 13:58:18 19 previously considered by the District Court in 13:58:29 20 its previous decision. 13:58:41 21 MR. HILL: Obviously you do 13:58:44 22 what you want to do. I am perfectly willing to 13:58:47 23 accept it as a standing objection. 13:58:49 24 MR. PRICHARD: Understood. I feel 13:58:51 25 more comfortable if I say it from time to time. 164 13:58:54 1 BY MR. HILL: 13:58:55 2 Q. Mr. Hartman, the page that is Bates stamped 13:58:58 3 4616, third check mark from the bottom, do I 13:59:08 4 read that correctly to say, "Volume for 8/10/82 13:59:12 5 represents work for two people"? 13:59:14 6 A. That's right. 13:59:15 7 Q. "When Lanny went to work at North 13:59:21 8 Carolina/requested"? 13:59:22 9 A. Yes. 13:59:27 10 Q. And the second line that I read, there 13:59:32 11 is -- in front of each of those lines, the first 13:59:35 12 line, "Volume for 8/10/82 represents work for 13:59:38 13 two people," there is a slash mark in front of 13:59:42 14 the line. And the next line is a slash mark, 13:59:44 15 "When Lanny went to work at North 13:59:48 16 Carolina/requested," does your use of a slash 13:59:51 17 mark at the beginning indicate these are sort of 13:59:53 18 separate thoughts? 13:59:53 19 A. Yes. 13:59:53 20 Q. And the second line I just read, does that 13:59:57 21 suggest to you that you made a request to get 13:59:59 22 some sort of indication when he went to work in 14:00:03 23 North Carolina? 14:00:04 24 A. Well, if you read that entry thoroughly, it 14:00:08 25 says, "When Lanny went to work at North 165 14:00:12 1 Carolina/requested all entries made in Margie's 14:00:15 2 name." 14:00:16 3 Q. That is a continuation of that? 14:00:18 4 A. Yes. So that suggests that a request was 14:00:22 5 made for those records. Whether they were 14:00:30 6 received or not is unknown to me. At least I 14:00:34 7 don't recollect. 14:00:34 8 Q. The prior entry, the one prior entry and 14:00:39 9 the one you read previously on page 3, I think 14:00:41 10 it was, suggests that you -- particularly the 14:00:45 11 one on page 3, "When reviewing his time/count 14:00:51 12 records for 8/10/82," would indicate at least at 14:00:55 13 that moment there were some records that were 14:00:57 14 being reviewed, correct? Do you see where I am, 14:01:01 15 4613 Bates stamp? We already looked at that. 14:01:07 16 A. 4613? 14:01:09 17 Q. The second paragraph. 14:01:14 18 A. Yes, it would seem that he was referencing 14:01:16 19 some record. 14:01:17 20 Q. Right. And then finally, look at, if I 14:01:26 21 could have you look at page 4643 Bates stamp. 14:01:45 22 A. All right, sir. 14:01:46 23 Q. The last paragraph on the page, again, I 14:01:48 24 want to make sure I am reading your handwriting 14:01:50 25 correctly: "On or about the first of July, 166 14:01:52 1 1982, the Gibsons proceeded with Flores and crew 14:01:58 2 to Canton, North Carolina, where they picked 14:02:02 3 tomatoes for Carroll Burress. Flores stayed at 14:02:20 4 Canton, North Carolina, until approximately 14:02:23 5 10/1/82, at which time he returned to Naples, 14:02:26 6 Florida. However, the Gibsons stayed behind at 14:02:29 7 Canton, North Carolina, claiming that they no 14:02:32 8 longer wanted to travel. Flores claimed not to 14:02:37 9 have seen Delaney since that time." Is that 14:02:39 10 consistent with your recollection you testified 14:02:42 11 to earlier? 14:02:43 12 A. Yes. 14:03:13 13 Q. Okay. Mr. Hartman, let me show you Exhibit 14:03:52 14 30. And I ask you, first of all, is this a 14:03:58 15 memorandum prepared by you? 14:04:03 16 A. Yes, it is. 14:04:04 17 Q. And does this memorandum reflect your 14:04:10 18 receipt of, among other things, your receipt of 14:04:15 19 photographs from Margie Gibson? 14:04:23 20 A. Yes. 14:04:24 21 Q. Where did this interview occur, by the way? 14:04:26 22 A. This apparently happened at the residence, 14:04:28 23 per this memorandum, of Bobby Eversole. 14:04:33 24 Q. At what location, where? 14:04:35 25 A. At Bear Branch, Kentucky, on the afternoon 167 14:04:38 1 of January 11, 1984. 14:04:41 2 Q. And does this also, does this memorandum 14:04:45 3 reflect your receipt from Mrs. Gibson of three 14:04:51 4 receipts from the D and W Automotive Outlet in 14:04:54 5 North Carolina? 14:04:55 6 A. Well, it indicates that I received a total 14:04:58 7 of 18 photographs and negatives, the envelopes 14:05:03 8 in which the photographs and negatives were 14:05:05 9 contained, three receipts were received issued 14:05:12 10 by D and W Automotive Outlet Discount Sales - 14:05:18 11 Fletcher Bazaar. 14:05:18 12 Q. And one of those receipts is in the name of 14:05:21 13 Jim Gibson, which you characterize as a known 14:05:23 14 alias of Delaney Gibson; is that correct? 14:05:26 15 A. That's correct. 14:05:27 16 Q. Is that the one you were referring to 14:05:28 17 earlier in your testimony? 14:05:30 18 A. Yes, it would be the August 7, 1982, 14:05:32 19 receipt that fixes his location at Canton, North 14:05:40 20 Carolina. 14:05:40 21 Q. On August 7th? 14:05:42 22 A. And August 7. So I was mistaken with 14:05:45 23 regard to the date. 14:05:46 24 Q. Okay. And the rest of the memo, again, I 14:05:50 25 mean, obviously, the memo -- I mean, this is as 168 14:05:54 1 accurate as you could have made it at the time, 14:05:56 2 right? 14:05:56 3 A. It reflects the information given to me at 14:05:58 4 the time. 14:05:59 5 Q. In an accurate way, I mean -- 14:06:01 6 A. Yes. 14:06:01 7 Q. Any of the memos that you have -- 14:06:04 8 A. It was my attempt to accurately portray the 14:06:07 9 information given to me. 14:06:12 10 Q. Let me show you Exhibit 29, if I might, and 14:06:30 11 ask you, again, this is one of your memos? 14:06:33 12 A. It is. It was prepared by me. 14:06:35 13 Q. And prepared right around the same time in 14:06:38 14 Hazard, Kentucky, right? 14:06:40 15 A. Yes. Well -- 14:06:42 16 Q. January 11? 14:06:44 17 A. Yes. 14:06:44 18 Q. Are Hazard and Bear Branch near one 14:06:49 19 another? 14:06:49 20 A. No. Hazard is in eastern Kentucky, some 14:06:52 21 significant distance from Bear Branch. 14:06:55 22 Q. And this reflects an interview you did of 14:06:59 23 Michael and Brenda Bentley; is that right? 14:07:02 24 A. It does. 14:07:03 25 Q. And referring you to the fourth paragraph 169 14:07:15 1 from the end, does that reflect that Brenda 14:07:22 2 Bentley turned photographs over to you? 14:07:24 3 A. Yes. 14:07:25 4 Q. Forty photographs, correct? 14:07:28 5 A. That's correct. 14:07:29 6 Q. And indicated to you where she had them 14:07:34 7 developed, at a department store in Hazard, 14:07:37 8 Kentucky? 14:07:38 9 A. That's right, yes. 14:07:39 10 Q. Does that help you in any way recall 40 14:07:42 11 here and 18 from Margie Gibson? 14:07:45 12 A. It doesn't jar my independent recollection. 14:07:47 13 But I take the record at face value. But 14:07:50 14 somehow there was the name -- or Hazard, 14:07:55 15 Kentucky came up in my memory in connection with 14:07:58 16 photographs. 14:07:58 17 Q. Now, this memo of your interview of the 14:08:02 18 Bentleys doesn't reflect anyplace in your memo 14:08:06 19 any skepticism you had about the Bentleys, does 14:08:09 20 it? 14:08:09 21 A. No. This went directly to the events of 14:08:14 22 that day. 14:08:22 23 Q. Let me show you Exhibit 28, and ask you 14:08:35 24 if -- this is a memo of yours? 14:08:37 25 A. Yes, it is. 170 14:08:38 1 Q. And this memo reflects, does it not, your 14:08:45 2 confirmation at the Maloney Department Store in 14:08:49 3 Hazard, Kentucky, that, in fact, Mrs. Bentley 14:08:53 4 had dropped off two rolls for processing on 14:08:56 5 August the 10th, right? 14:08:57 6 A. It does indeed. 14:08:59 7 Q. Do you recall making those efforts at this 14:09:02 8 point? 14:09:02 9 A. I remember being in Hazard, Kentucky, and 14:09:04 10 going to a store up on a hill. But everything 14:09:07 11 in Hazard is on a hill. But, no. 14:09:14 12 Q. But again, you have no reason to believe 14:09:16 13 that the information you put in here is anything 14:09:17 14 less than accurate? 14:09:18 15 A. No, it seems to me -- no, it is accurately 14:09:23 16 stated and just part of thoroughly conducting 14:09:26 17 the case. 14:09:32 18 Q. Let me hand you 27. I will show you 14:09:42 19 Exhibit 27 and again, this is a memo done by 14:09:50 20 you? 14:09:50 21 A. Yes. 14:09:51 22 Q. In Canton, North Carolina; is that right? 14:09:55 23 A. Yes. 14:09:55 24 Q. And does this memo reflect your effort to 14:09:59 25 corroborate that Margie Gibson had submitted 171 14:10:02 1 film for processing and your determination that 14:10:06 2 she had done so on August the 17th? 14:10:09 3 A. It does indeed. 14:10:10 4 Q. At the Revco Drugstore in Canton? 14:10:14 5 A. That is correct. 14:10:15 6 Q. So you essentially made efforts to confirm 14:10:18 7 that both sets of photographs that you had 14:10:21 8 received had been processed contemporaneous to 14:10:31 9 the weekend in question? 14:10:32 10 A. That's correct, yes. 14:10:36 11 Q. Let me show you Exhibit 26 and ask you if 14:10:45 12 that is also a memo of yours? 14:10:51 13 A. This is my memorandum, yes. 14:11:07 14 Q. And does this memorandum reflect your 14:11:10 15 corroboration of the August 7th receipt in the 14:11:14 16 name of Jimmy Gibson, authored by a 14:11:19 17 Mr. Weinhauer, the owner and operator of the 14:11:23 18 D and W Automotive Outlet? 14:11:24 19 A. It does, yes. 14:11:26 20 Q. On the 7th of August, correct? 14:11:28 21 A. For a purchase made on August 7, yes. 14:11:31 22 Q. And let me show you what has been marked as 14:11:43 23 Exhibit 25 and ask you whether this is also a 14:11:50 24 memo of yours? 14:11:55 25 A. Yes, it is. 172 14:11:56 1 Q. And is it fair to characterize this memo as 14:11:59 2 a memo that references your efforts, successful 14:12:03 3 efforts to corroborate that Mr. Michael Bentley 14:12:07 4 was registered at a Best Western Motel on August 14:12:11 5 the 8th of '82? 14:12:14 6 A. Yes, it does. 14:12:18 7 Q. Okay. Let me have 22, 23 and 24. And let 14:12:39 8 me just ask you -- let me show you what has been 14:12:41 9 marked as Exhibits 22, 3 and 4. And are all 14:12:48 10 three memos or notes, I would call them, are 14:12:51 11 they all in the same handwriting? 14:12:53 12 A. They are in the same handwriting. And this 14:12:56 13 is my handwriting. 14:12:57 14 Q. Okay. And these appear to be your notes 14:13:01 15 that ultimately resulted in some of the memos 14:13:04 16 that you have just been shown, correct? 14:13:05 17 A. These are the notes upon which the formal 14:13:09 18 memoranda were predicated. They form the basis. 14:13:13 19 Q. Okay. And all of these documents which I 14:13:16 20 have just shown you in the last few minutes, 14:13:21 21 Exhibits 22 through 31 -- 30, excuse me, through 14:13:28 22 30, should have been kept -- should have been 14:13:32 23 maintained in the investigative files? 14:13:35 24 A. I would have expected them to have been, 14:13:37 25 yes. 173 14:13:37 1 Q. That is your expectation? 14:13:38 2 A. Yes. 14:13:39 3 Q. Let me show you now, and I will give you my 14:13:41 4 book if you would like, because mine are in 14:13:44 5 color and the rest are black and white. I would 14:13:47 6 like you to look at Exhibits 31 through 41 and 14:13:51 7 ask you whether you recognize them, and I would 14:13:55 8 represent to you that these are enlarged from 14:13:58 9 the -- they are from the original photographs 14:14:01 10 which were, I think, 4 by 6 size. 14:14:04 11 A. All right. 14:14:07 12 Q. Three by 5, excuse me, I stand corrected. 14:14:53 13 A. Yes, sir, I have examined Exhibits 31 14:14:56 14 through 42. 14:14:57 15 Q. Thank you. Do you recognize these? 14:15:03 16 A. I recognize some of them as photos that 14:15:07 17 were turned over to me, I believe, by Margie 14:15:10 18 Gibson. 14:15:11 19 Q. Are there some that you don't recognize? 14:15:13 20 A. Some I don't remember, yes. 14:15:18 21 Q. Do you have any reason to believe that any 14:15:20 22 of these photographs were not turned over to 14:15:24 23 you? 14:15:24 24 A. No. 14:15:24 25 Q. Which ones -- actually, why don't you go 174 14:15:27 1 through and tell me which ones you actually have 14:15:29 2 a memory of. 14:15:30 3 A. I recollect independent Exhibit 31, Exhibit 14:15:40 4 33, Exhibit 34. And those would be the ones 14:15:59 5 that I remember. 14:16:00 6 Q. And you also remember, I think you 14:16:02 7 testified earlier, that a total of 58 14:16:06 8 photographs were given to you? 14:16:07 9 A. It seems to me there were a total of 58 14:16:09 10 photos. 14:16:10 11 Q. When you say you remember them, you 14:16:12 12 remember them as among the photographs that had 14:16:14 13 been turned over to you? 14:16:15 14 A. That's correct. 14:16:15 15 Q. Just for the record, by the way, in Exhibit 14:16:18 16 31, there is a woman depicted in that 14:16:21 17 photograph. 14:16:21 18 A. Yes. 14:16:22 19 Q. Have you seen her before? 14:16:23 20 A. That is Margie Gibson. 14:16:24 21 Q. You have met her? 14:16:26 22 A. Yes, the wife of Delaney Gibson. 14:16:29 23 Q. Now, in the ten photographs that you were 14:16:32 24 just shown, is Mr. Gibson bearded in all those 14:16:35 25 photographs? 175 14:16:35 1 A. He is. 14:16:36 2 Q. And these photographs, after you received 14:16:40 3 them, what would you have done with them, or 14:16:43 4 what did you do with them? 14:16:44 5 A. Well, what I would have done, and I have no 14:16:47 6 independent recollection of my actions after 14:16:50 7 receiving them, but what I would have done would 14:16:52 8 have been to mark them for evidence, I would 14:16:54 9 have prepared the memorandum of interview, and 14:16:57 10 ultimately I would have conveyed them back to 14:16:59 11 the case file. 14:17:01 12 Q. Do you recall whether you would have just 14:17:03 13 literally gone to the case file and put them in 14:17:05 14 the case file or in this particular instance 14:17:07 15 whether you shared them with anybody? 14:17:09 16 A. I don't remember. 14:17:10 17 Q. It could have been either/or? 14:17:12 18 A. Could be. I have no independent 14:17:15 19 recollection. The only thing I am confident is, 14:17:19 20 like all of these other documents, they would 14:17:20 21 have gone to the file. It was the central 14:17:23 22 repository for the documents. 14:17:26 23 Q. And where they would have remained and 14:17:35 24 where they should have been, as far as your 14:17:40 25 understanding goes, at the time that -- anytime 176 14:17:45 1 subsequent to -- let me withdraw that. 14:17:49 2 Your understanding is that they would have 14:17:56 3 been placed in the investigative file shortly 14:18:00 4 after the memos were created; is that fair to 14:18:03 5 say? 14:18:04 6 A. Well, they would likely have been placed in 14:18:07 7 the file whenever I returned to Van Wert from 14:18:10 8 North Carolina. 14:18:12 9 Q. Where they would have remained? 14:18:14 10 A. That's correct. Absenting someone's use of 14:18:18 11 them. 14:18:18 12 Q. And your expectation would have been that 14:18:22 13 they would have been there at the time that 14:18:27 14 anybody reviewed those files? 14:18:29 15 A. Yes. 14:18:29 16 Q. And your expectation also would have been 14:18:33 17 that they would have been there at the time that 14:18:37 18 you shipped them off to Washington as part of 14:18:41 19 the post-trial FOIA process? 14:18:56 20 A. That's correct. 14:19:20 21 Q. You have previously been shown, let me 14:19:26 22 represent to you that Exhibit 14, which you have 14:19:29 23 previously been shown and you identified as a 14:19:31 24 photograph of Delaney Gibson? 14:19:33 25 A. That's correct. 177 14:19:34 1 Q. Let me represent to you that that was the 14:19:36 2 photograph that was part of the photo spread, 14:19:38 3 that was the photo that was selected in the 14:19:43 4 photo spread by Opal Seibert. 14:19:48 5 A. All right. 14:19:49 6 Q. Do you recall whether, after all of your 14:19:53 7 thorough investigative efforts, whether there 14:19:59 8 was any consideration given to showing 14:20:04 9 Ms. Seibert any of the photographs you had 14:20:06 10 recovered to see if, in fact, this was the 14:20:10 11 person she had seen? 14:20:12 12 A. I don't know. I don't recollect it, and if 14:20:17 13 you are asking me whether they would have been 14:20:20 14 shown in the spread, they would not have been, 14:20:22 15 because they are not police photographs. 14:20:24 16 Q. I am not suggesting they were -- my 14:20:26 17 question simply is: Do you recall any 14:20:28 18 discussion or any consideration being given to 14:20:31 19 the question, "Now that we have recovered these 14:20:33 20 more contemporaneous photographs, should we show 14:20:36 21 them to the eyewitness?" 14:20:38 22 A. I recall no such conversation. But my best 14:20:41 23 judgment would be against it so as to 14:20:44 24 potentially not taint an in court 14:20:49 25 identification. 178 14:20:50 1 Q. Well, Ms. Seibert was never asked to make 14:21:00 2 an in court identification, right? 14:21:02 3 A. Ultimately, she was not, that's correct. 14:21:05 4 But when you conduct an investigation, you look 14:21:08 5 toward the trial proceeding. 14:21:10 6 Q. I am just asking the question. 14:21:11 7 A. You don't want to do anything intentionally 14:21:14 8 that -- 14:21:15 9 MR. PRICHARD: We will object 14:21:16 10 based on the pure impossibility of the question. 14:21:19 11 I don't believe Mr. Gibson was ever present at 14:21:22 12 the trial. Improper question. 14:21:27 13 BY MR. HILL: 14:21:27 14 Q. As long as we are talking about in court 14:21:30 15 identifications, are you aware of any 14:21:34 16 consideration or discussion as to whether or not 14:21:36 17 to ask Mr. Lewis to make an in court 14:21:41 18 identification of Mr. Spirko? 14:21:43 19 A. I was not present during the trial, and 14:21:46 20 therefore, I have no knowledge of that, no 14:21:49 21 awareness. 14:21:50 22 Q. Have you ever met Mr. Lewis? 14:21:52 23 A. I don't believe I have. 14:21:54 24 Q. Do you have any information or knowledge 14:21:56 25 whatsoever with respect to anything that 179 14:21:59 1 Mr. Lewis might have said to anyone with respect 14:22:02 2 to his ability to make an in court 14:22:04 3 identification? 14:22:05 4 A. No, I do not. 14:22:06 5 Q. Any consideration, by the way, that you are 14:22:25 6 aware of ever given to whether or not after his 14:22:29 7 arrest, any effort should be made to get 14:22:32 8 Mr. Gibson back to Ohio to stand in a lineup? 14:22:37 9 A. I am not aware of any. 14:22:39 10 Q. No discussions that you are aware of? 14:22:41 11 A. None that I am aware of. But that would 14:22:43 12 have been pretty difficult, given the 14:22:45 13 circumstances. 14:22:45 14 Q. And no discussions or consideration to 14:22:49 15 having Ms. Seibert travel to wherever it was 14:22:53 16 where Mr. Gibson was to view a lineup? 14:22:55 17 A. Nothing involving me, no. 14:22:57 18 Q. Let me take a second here. Do you know 14:23:38 19 whether or not the existence of the -- well, 14:23:43 20 let's strike that. 14:23:43 21 The keys that were recovered that you 14:23:47 22 testified about earlier, do you remember that? 14:23:49 23 A. Yes, I do. 14:23:51 24 Q. You actually made some efforts with respect 14:23:53 25 to one of those keys to see if it could be 180 14:23:56 1 linked at all to at least Mr. Gibson, didn't 14:23:59 2 you? 14:23:59 3 A. To anyone. 14:24:00 4 Q. But specifically let me direct your 14:24:04 5 attention to efforts you made with respect to 14:24:06 6 Mr. Gibson. Do you recall that? 14:24:07 7 A. I don't recollect -- my recollection is 14:24:10 8 that I was trying to put that key to a lockbox 14:24:17 9 and any person associated with it. 14:24:20 10 Q. Let me re-ask the question. There was more 14:24:24 11 than one key, right? 14:24:26 12 A. Yes, there were. 14:24:26 13 Q. There were, I think you said, four earlier? 14:24:29 14 A. Approximately four. 14:24:31 15 Q. One was an automobile key? 14:24:32 16 A. That's correct. 14:24:33 17 Q. With respect to the automobile key, do you 14:24:35 18 recall any efforts made to see if you could link 14:24:37 19 that with Mr. Gibson? 14:24:39 20 A. Yes, yes, I do. 14:24:40 21 Q. What was that? 14:24:40 22 A. I proceeded to London, Kentucky, and 14:24:43 23 obtained a Federal search warrant to search 14:24:45 24 Mr. Gibson's pickup truck, which was then parked 14:24:50 25 at Bear Branch, Kentucky, after his arrest and 181 14:24:54 1 at about the time I received these photographs 14:24:57 2 from, your Exhibits 31 through 42, from Margie 14:25:01 3 Gibson. 14:25:02 4 Having secured a Federal warrant from the 14:25:06 5 Magistrate at London, Kentucky, in the eastern 14:25:10 6 district of that state, I proceeded to the home 14:25:14 7 of the Gibsons located in Bear Branch, Kentucky, 14:25:17 8 and there executed the search warrant, simply by 14:25:20 9 attempting to insert the key into the lock 14:25:24 10 cylinders of the door and the ignition. 14:25:26 11 Q. And were you successful? 14:25:28 12 A. Well, I was successful in executing the 14:25:31 13 search warrant. However, the keys did not fit 14:25:34 14 the automobile. 14:25:34 15 Q. So the keys -- 14:25:35 16 A. They are not the keys that fit that 14:25:37 17 automobile. 14:25:38 18 Q. The key did not fit? 14:25:40 19 A. That's right. It wasn't the magic key, 14:25:48 20 despite my hopes. 14:25:49 21 Q. Now, the existence of the postal box key -- 14:25:56 22 A. The lockbox key. 14:25:58 23 Q. The lockbox key. Was that -- do you know 14:26:04 24 whether its existence was made known to the 14:26:07 25 defense ultimately, do you know? 182 14:26:09 1 A. I do not know. Again, I was not privy and 14:26:14 2 party to any of those proceedings. 14:26:17 3 Q. As an investigative matter, had you 14:26:19 4 concluded that the set of keys that were 14:26:21 5 recovered were connected to the perpetrators? 14:26:25 6 A. Yes. 14:26:25 7 Q. You satisfied yourself that they didn't 14:26:28 8 belong to anybody else? 14:26:29 9 A. Yes, I was confident they were dropped by 14:26:32 10 someone running from the scene of the robbery 14:26:36 11 and abduction. 14:26:37 12 Q. And did it -- this was back when you were 14:26:42 13 investigating back in the '82, '83 time frame? 14:26:46 14 A. Yes. 14:26:47 15 Q. And given that this was a robbery of a post 14:26:55 16 office, did you find it significant that one of 14:26:58 17 the keys that was left behind was also a postal 14:27:01 18 lockbox key? 14:27:03 19 A. It was significant because it 14:27:05 20 potentially -- held the potential, if you will, 14:27:09 21 to link it to a suspect. But that key that was 14:27:14 22 left, while it was a lockbox key, did not and 14:27:17 23 would not have operated any lockbox in the Elgin 14:27:22 24 Post Office. 14:27:22 25 Q. I understood that. But I guess I am just 183 14:27:25 1 asking from a slightly different perspective. 14:27:27 2 Would it have -- did it suggest to you as an 14:27:32 3 investigator that at least one of the 14:27:36 4 perpetrators may very well have had some prior 14:27:42 5 encounters with post offices? 14:27:44 6 A. No, it suggested to me that the person who 14:27:47 7 dropped them had a post office box somewhere. 14:27:50 8 Q. And not being familiar with the system, I 14:27:56 9 take it that it is not as easy as one would 14:28:00 10 think to match up a key to a particular post 14:28:04 11 office? 14:28:04 12 A. It is not. It is difficult, it is very 14:28:07 13 difficult. 14:28:08 14 Q. And ultimately, you were never able to do 14:28:14 15 that, correct? 14:28:15 16 A. That's correct. Well, I was able to 14:28:23 17 establish that there was a lock which bore the 14:28:27 18 serial number the same as the key at a total of 14:28:30 19 six post offices within the immediate vicinity. 14:28:33 20 Unfortunately, the sixth was the last one, and I 14:28:37 21 developed that on my own, without a response 14:28:39 22 from the postmaster and that was at Madison, 14:28:42 23 Indiana. 14:28:43 24 And just so the record is clear, when the 14:28:47 25 Postal Service manufactures these locks, there 184 14:28:53 1 are millions of them in circulation, and they 14:28:55 2 are serially numbered to correspond with the key 14:28:58 3 so that postal personnel can match the keys and 14:29:01 4 the locks, since they all look identical. 14:29:04 5 The serial number is not unique, and there 14:29:07 6 may be as many as a dozen locks in circulation 14:29:12 7 at any one time with the same serial number. So 14:29:16 8 it is a matter of convenience and expeditious 14:29:20 9 treatment of the materials by the postal 14:29:25 10 employees. 14:29:27 11 They throw the locks in one box and the 14:29:30 12 keys in another quite often. 14:29:32 13 Q. When in the investigative process were the 14:29:36 14 six locations identified to you? 14:29:38 15 A. During the course of the investigation, the 14:29:39 16 first five, and essentially we sent out letters 14:29:44 17 to all the post offices in the reasonably 14:29:47 18 contiguous area, and requested them to tell us 14:29:50 19 if they had a lockbox lock with that serial 14:29:57 20 number. 14:29:58 21 The offices, a total of five post offices 14:30:03 22 returned letters indicating that they had, and 14:30:06 23 then we investigated each and every one of the 14:30:11 24 box holders to determine whether there was a 14:30:13 25 potential that any one of them might have been 185 14:30:16 1 involved in this offense. 14:30:20 2 Q. And this occurred during the -- in the '82, 14:30:24 3 '83 time frame? 14:30:24 4 A. That's correct. 14:30:25 5 Q. When was the Madison, Indiana? 14:30:28 6 A. In the '90s. And that, unfortunately, at 14:30:31 7 the time the postmaster did not respond to our 14:30:34 8 inquiry, but I proceeded to the Madison post 14:30:41 9 office in 1995, for want of a better time, and 14:30:46 10 determined that there was such a lock on hand in 14:30:49 11 the facility. However, by that time the records 14:30:54 12 showing who may have held a box with that lock 14:30:59 13 had been purged and were long gone. 14:31:02 14 Q. And the significance of Madison, Indiana, 14:31:05 15 to you at that time is that James Clark Kelley 14:31:08 16 was from Madison, Indiana? 14:31:11 17 A. That's correct, that is his hometown. 14:31:13 18 Q. Just briefly, I am not clear, why did it 14:31:16 19 take so long for the Madison, Indiana, Post 14:31:22 20 Office location to be made aware to you, when 14:31:24 21 you sent out the original request? 14:31:27 22 A. We sent out -- we didn't target any 14:31:30 23 individual office. We sent them to every post 14:31:33 24 office in the vicinity, as I previously 14:31:36 25 testified. 186 14:31:37 1 Q. Okay. I think I understand now. 14:31:39 2 A. So I proceeded there not because of any 14:31:43 3 response by the postal -- 14:31:45 4 Q. That was not random, that was because of 14:31:47 5 Mr. Kelley? 14:31:48 6 A. That is because of Mr. Kelley, I went to 14:31:50 7 the post office and made my own independent 14:31:53 8 inquiry directly in person to the postmaster at 14:31:56 9 the time. 14:31:56 10 Q. The five that had responded during the '82, 14:31:59 11 '83 time frame, none of those could be linked 14:32:02 12 with either Mr. Spirko or Mr. Gibson; is that 14:32:04 13 correct? 14:32:04 14 A. That's correct. And all of the other 14:32:06 15 persons appeared to be reasonably upstanding 14:32:09 16 community members. 14:32:15 17 Q. Do you know where these keys are currently 14:32:17 18 located? 14:32:18 19 A. I would believe they are with the evidence 14:32:20 20 in the case. 14:32:21 21 Q. Which should be where, do you have any 14:32:24 22 understanding? 14:32:24 23 A. I have no idea. All those materials have 14:32:28 24 gone in all sorts of directions and beyond my 14:32:30 25 control for many years. 187 14:32:39 1 Q. All right. Let's -- 14:32:45 2 A. Take a break. 14:32:49 3 Q. Yes. 14:32:50 4 (Thereupon, a recess was taken.) 14:44:28 5 BY MR. HILL: 14:44:34 6 Q. Mr. Hartman, you met with Connie Mottinger 14:44:44 7 and Theo and Marlene Bennett in May of '94. 14:44:52 8 Does that comport with your memory? 14:44:54 9 A. I think it was earlier than May. 14:45:00 10 Q. I keep going off by ten years. 2004. A 14:45:03 11 little over a year ago. 14:45:04 12 A. A little over a year ago, yes. 14:45:08 13 Q. It was a meeting that you agreed to? 14:45:11 14 A. Um-hum, yes. 14:45:19 15 Q. As you understood it, the purpose of the 14:45:21 16 meeting was for them to interview you for a book 14:45:24 17 they were sort of collectively doing with 14:45:27 18 respect to the Mottinger crime? 14:45:28 19 A. That Mr. Bennett was writing, yes. 14:45:30 20 Q. The others were assisting? 14:45:32 21 A. That's correct, as I understood it. 14:45:34 22 Q. You understood Mrs. Mottinger, she at least 14:45:37 23 introduced herself to you as the second wife of 14:45:41 24 Clarence Mottinger? 14:45:42 25 A. Yes, I knew that to be the case, because I 188 14:45:44 1 had been in contact with Mr. Mottinger 14:45:46 2 throughout the years following the homicide and 14:45:49 3 prior to his death. 14:45:50 4 Q. And had you, when you were in contact with 14:45:57 5 him, had he made you aware while he was still 14:46:01 6 alive that he had an interest in doing a book? 14:46:05 7 A. I understood from him directly that 14:46:10 8 Mr. Bennett was going to do the book, and that 14:46:14 9 his current wife, Connie Mottinger, was going to 14:46:17 10 do some background material in connection with 14:46:21 11 Betty Jane. 14:46:23 12 Q. But certainly with Clarence Mottinger's 14:46:25 13 approval -- 14:46:26 14 A. Yes. 14:46:27 15 Q. -- this project was being done? 14:46:29 16 A. That's correct, yes. 14:46:31 17 Q. By the way, when you had been in touch with 14:46:33 18 him over the years, how frequent was the contact 14:46:37 19 you had been in touch? 14:46:38 20 A. Very infrequently. I might call him once 14:46:41 21 every six months or so, just talk with him to 14:46:44 22 see how he was getting along. Toward the end, 14:46:46 23 it was rather a surprise to me when he told me 14:46:51 24 he had cancer and it was creating problems for 14:46:53 25 him. I later learned from Connie that he had 189 14:46:56 1 passed away. 14:46:57 2 Q. In the conversations that you had with him 14:46:59 3 over the years prior to his death, did the 14:47:04 4 subject or the name of Delaney Gibson come up in 14:47:07 5 any of those conversations? 14:47:08 6 A. Not that I recollect. 14:47:09 7 Q. You don't recollect him asking you, "What 14:47:11 8 is going to happen to Delaney?" 14:47:12 9 A. I don't remember, no. I don't remember 14:47:14 10 that. They were really more social calls. 14:47:18 11 He was a nice man and he got a tough break 14:47:22 12 in life, and in part, I just wanted him to know 14:47:26 13 that we hadn't forgotten him. That is all. 14:47:29 14 Q. Now, when you went to this -- had this 14:47:33 15 meeting at the hotel in Mansfield, about how 14:47:37 16 long did the meeting last? 14:47:38 17 A. Oh, probably an hour would be my guess. 14:47:40 18 Q. And you were asked whether it would be okay 14:47:45 19 to tape record it, correct? 14:47:46 20 A. Yes. 14:47:47 21 Q. And you agreed? 14:47:48 22 A. I agreed. And the stated purpose, of 14:47:52 23 course, was to develop a background material for 14:47:55 24 his manuscript. So I had no objection to that. 14:47:58 25 Q. And obviously, the reason was to get as 190 14:48:02 1 complete and as accurate a record as possible of 14:48:05 2 what was said so that people could refer to it 14:48:08 3 later on? 14:48:08 4 A. For his purposes of research, yes. 14:48:10 5 Q. And in addition to the tape-recording, what 14:48:13 6 is your recollection as to whether people took 14:48:15 7 notes? 14:48:16 8 A. I don't remember anyone taking notes 14:48:18 9 throughout. 14:48:19 10 Q. Did you take any notes? 14:48:21 11 A. No. To me this was just a casual 14:48:24 12 conversation. I took no notes. This was not 14:48:29 13 anything particularly noteworthy at the time. 14:48:32 14 Q. Did you bring any materials with you? 14:48:34 15 A. Just myself. 14:48:36 16 Q. Did you tell anybody you were doing this? 14:48:39 17 A. My wife. 14:48:41 18 Q. Anybody else? 14:48:41 19 A. Not that I am aware. 14:48:43 20 Q. You didn't tell these guys, right? 14:48:46 21 A. Oh, no, no. It was just a spontaneous -- 14:48:49 22 and I really did it out of respect for Clarence, 14:48:53 23 and I had no objection. 14:48:56 24 Q. And it was in a hotel room, correct? 14:49:00 25 A. It was. 191 14:49:01 1 Q. And sort of sitting around a coffee table 14:49:07 2 or sitting around in a couple of desk chairs? 14:49:11 3 A. One of those tables they have in a hotel, 14:49:15 4 near the window, as I recollect. 14:49:17 5 Q. You testified earlier this morning that you 14:49:25 6 had occasion to review a transcription? 14:49:32 7 A. Yes, I did. 14:49:33 8 Q. And when did you first -- did you 14:49:41 9 understand that -- did you understand at the 14:49:44 10 time of the meeting that not only was it being 14:49:47 11 recorded, but that that recording would be 14:49:50 12 transcribed? 14:49:51 13 A. I didn't know, but I would expect. That is 14:49:56 14 the normal course with tape recordings. 14:49:58 15 Q. And you have no information as we sit here 14:50:01 16 today as to the process by which the 14:50:03 17 transcription occurred? 14:50:05 18 A. I have none, other than I understand that 14:50:09 19 that document was prepared by Connie Mottinger. 14:50:11 20 Q. And you understand that from whom? 14:50:13 21 A. From Theo Bennett. 14:50:15 22 Q. And what exactly did Mr. Bennett tell you 14:50:18 23 about the transcription process? 14:50:21 24 A. Well, he indicated to me that he had this, 14:50:24 25 quote-unquote, transcript, and in part, he asked 192 14:50:31 1 me what he should do with it. I suggested that 14:50:33 2 he bring it forward in these proceedings, 14:50:36 3 because they were, in his words, notes from 14:50:41 4 Connie Mottinger, and which I understood from 14:50:47 5 him, he completely disregarded, because he felt 14:50:50 6 them to be inaccurate and not credible. 14:50:53 7 Q. Well, the conversation you were just 14:50:56 8 relating, when did that conversation occur? 14:51:01 9 A. Sometime in May, I would guess. 14:51:04 10 Q. Did that conversation occur before or after 14:51:07 11 he told you that he had taken a sledgehammer to 14:51:10 12 the tapes? 14:51:13 13 A. I don't know. We spoke one evening and he 14:51:17 14 indicated that he had found these notes, and he 14:51:21 15 asked me, "What should I do with them?" I said, 14:51:25 16 "Bring them forward." And he characterized them 14:51:28 17 as, in his words, "This shit," unquote, from 14:51:34 18 Connie Mottinger. 14:51:35 19 Q. Let me ask you something: Had he mentioned 14:51:39 20 in that conversation that he had met with either 14:51:41 21 Mr. Prichard or Mr. Wille? 14:51:43 22 A. I don't recollect. 14:51:45 23 Q. So it is your recollection that he 14:51:55 24 indicated to you that he had a transcription? 14:51:58 25 A. That, in his words, they were notes. And I 193 14:52:02 1 didn't know what they were. 14:52:05 2 Q. And you urged him to bring them forward? 14:52:08 3 A. Yes. 14:52:09 4 Q. So in that case, the conversation must have 14:52:13 5 occurred sometime after you became aware that 14:52:15 6 there was something to bring them forward to? I 14:52:18 7 mean, that is a reasonable inference, correct? 14:52:20 8 A. I guess; I don't know. But the point was, 14:52:23 9 there is no value, in my view, of concealing or 14:52:28 10 hiding anything. There is no grand conspiracy 14:52:31 11 here, is the point. 14:52:32 12 Q. I am just asking you, if you suggested to 14:52:35 13 him to bring them forth, I mean, unless I am 14:52:39 14 missing something, and I am asking you this, 14:52:42 15 there must have been something -- 14:52:43 16 A. I suspect that it was offered in the sense, 14:52:49 17 rather than to destroy them, bring them forward. 14:52:52 18 Q. So did you suggest to him -- so you 14:52:55 19 suggested to him, in effect, not to destroy 14:52:57 20 them? 14:52:58 21 A. That's correct. 14:52:59 22 Q. But you are not sure if you gave that 14:53:03 23 advice before or after the tapes, the physical 14:53:06 24 tapes themselves had been destroyed? 14:53:08 25 A. I would think it would be likely after. 194 14:53:12 1 Q. Do you know when he made you aware of the 14:53:14 2 fact that the physical tapes were destroyed? 14:53:17 3 A. It had to be about the time that he had his 14:53:20 4 surgery on his shoulder. 14:53:23 5 Q. Why do you say that? 14:53:24 6 A. He had some rotator cuff surgery. 14:53:27 7 Q. Why do you -- 14:53:29 8 A. Only because I relate it to the fact that 14:53:32 9 he had been in pain and complaining of 14:53:34 10 difficulty moving, and at the same time he had 14:53:38 11 been complaining about Alvin calling him 14:53:40 12 repeatedly and inquiring about these tapes. 14:53:43 13 Q. Well, you are not suggesting that he hurt 14:53:45 14 his rotator cuff while destroying the tapes, 14:53:48 15 right? 14:53:48 16 A. I am not suggesting that at all, no. But 14:53:53 17 apparently he is doing much better now. 14:53:56 18 Q. Well, at the time that he advised you that 14:54:03 19 he had these, the notes, I think is the word you 14:54:08 20 used -- 14:54:09 21 A. That's correct. 14:54:10 22 Q. -- did he offer to give you a copy? 14:54:13 23 A. No. 14:54:13 24 Q. Did you ask for a copy? 14:54:15 25 A. No. 195 14:54:15 1 Q. Do you know if you were aware at that time, 14:54:19 2 when you had that conversation with him, that 14:54:21 3 there was an inquiry underway, or would be an 14:54:25 4 inquiry underway? 14:54:25 5 A. I would believe that I was aware of an 14:54:29 6 inquiry, which is likely what prompted me to 14:54:32 7 tell him to bring them forward. 14:54:36 8 Q. Did he indicate to you in any way the 14:54:47 9 process by which, in his words, notes were 14:54:51 10 created? 14:54:51 11 A. No. 14:54:53 12 Q. Did he indicate to you how he had 14:55:05 13 discovered the notes or where he had located 14:55:07 14 them or anything like that? 14:55:08 15 A. No, no. It was my understanding, if I 14:55:11 16 recollect correctly, that he came upon them. 14:55:14 17 Now, in the course of doing what, I do not know, 14:55:17 18 but my recollection is he stated he came upon 14:55:20 19 them. 14:55:21 20 And his question to me, as I recollect, is, 14:55:24 21 "What should I do with them?" My advice to him 14:55:28 22 was to bring them forward. 14:55:31 23 Q. Let me show you what has been marked as 14:55:34 24 Exhibit Number 1. Now, Exhibit Number 1, you 14:55:58 25 have seen that before? 196 14:55:59 1 A. Yes. This is your Exhibit Number 1, it is 14:56:02 2 a copy of the document that I produced here 14:56:06 3 today, which I believe is Exhibit 91. 14:56:11 4 Q. Right. 14:56:21 5 I am going to ask you certain things and 14:56:24 6 ask you whether or not, as best you recall, 14:56:35 7 whether these certain things are accurate 14:56:39 8 reflections of what you said. Okay? 14:56:42 9 MR. PRICHARD: Do we have a copy 14:56:43 10 of that yet? 14:56:46 11 MR. HILL: Of which? 14:56:50 12 MR. PRICHARD: Ninety-one. 14:56:52 13 MR. HILL: With the markings 14:56:53 14 on it? 14:56:55 15 MR. PRICHARD: Yes. 14:56:56 16 MR. HILL: Probably not. This 14:56:57 17 is the only one that exists. 14:57:00 18 MR. PRICHARD: Aren't those his 14:57:01 19 markings? 14:57:03 20 THE WITNESS: Yes. 14:57:05 21 MR. PRICHARD: I believe I was 14:57:06 22 there, if I follow correctly, when he made that, 14:57:10 23 but I don't have a copy of that. 14:57:11 24 MR. HILL: I am sure we can 14:57:13 25 get copies made. 197 14:57:16 1 (Thereupon, a discussion was held off 14:59:15 2 the record.) 14:59:15 3 BY MR. HILL: 14:59:19 4 Q. Mr. Hartman, I am going to ask you, with 14:59:26 5 respect to at least certain parts of this, 14:59:28 6 whether it comports with your recollection of 14:59:30 7 what it is that was said during that meeting. 14:59:33 8 Okay? 14:59:33 9 A. Surely. 14:59:34 10 Q. Let's start on page 1, oh, about a third of 14:59:45 11 the way down the page. You see where it says, 14:59:48 12 "Paul," then it says, "Kennedy, yes." Do you 14:59:52 13 see that? 14:59:53 14 A. Yes, I do. 14:59:55 15 Q. The line above it. "Connie," obviously, 14:59:59 16 can we agree that "Connie" refers to Connie 15:00:02 17 Mottinger and "Paul" refers to yourself? 15:00:04 18 A. That's correct. 15:00:04 19 Q. "Connie: So really, Kennedy is my biggest 15:00:10 20 stickler right now, right?" 15:00:11 21 "Paul: Kennedy, yes. Well, here's the 15:00:15 22 deal. You know, this thing has gone from coast 15:00:17 23 to coast. Now, I am not saying this is a done 15:00:20 24 deal. I am telling you this guy did it, but if 25 Kennedy was to prosecute it some one would have 198 15:00:22 1 to put this case together all over again. But 15:00:24 2 it is doable tho. And if the chief inspector 15:00:26 3 want to call me back to do it, I will do it. It 15:00:31 4 would take the time, but they could pretty much 15:00:33 5 do it if they wanted to." 15:00:34 6 "Connie: So you think it would be pretty 15:00:36 7 hard to do it now?" 15:00:37 8 "Paul: No, I am not saying that. I am 15:00:40 9 just an investigator and I can only do what I 15:00:42 10 can do. But if some one for example, would 15:00:45 11 write their congress man or your senator and 15:00:47 12 have them call Charlie (Kennedy) and say, 'We 13 have to get this done!' Then the same congress 15:00:51 14 man and senator calls the chief inspector in 15:00:51 15 Washington and said we have this retired guy who 15:00:54 16 is willing to come back and do this, they could 15:00:56 17 bring me back to do this." 15:01:02 18 Is that an accurate reflection of what was 15:01:04 19 said? 15:01:04 20 A. No, it is not accurate. But I think it 15:01:07 21 captures the sense of it. 15:01:09 22 Q. The person that is being spoken about there 15:01:14 23 is James Clark Kelley, "this guy," the reference 15:01:17 24 to, "I am telling you this guy," that is James 15:01:20 25 Clark Kelley, right? 199 15:01:26 1 A. Yes, that's correct. 15:01:29 2 Q. Now, toward the bottom of that page, it 15:01:33 3 says, "Paul: Alright. We stopped at the keys 15:01:36 4 at the crime scene." 15:01:37 5 "Connie: Yes, we stopped at the keys." 15:01:40 6 Am I correct what that is referring to is 15:01:44 7 that is prior discussion about the keys that you 15:01:47 8 have testified about this morning? 15:01:48 9 A. That's correct. 15:01:49 10 Q. You recall discussing the keys with them at 15:01:51 11 that meeting? 15:01:51 12 A. Yes, I do. 15:01:52 13 Q. And, "Paul: There was a Ford key, a house 15:01:56 14 key and a post office box key. And on all post 15:02:01 15 office box keys have a five digit serial number 15:02:03 16 inscribed on them. And the particular number on 15:02:05 17 this key were, 26193. 26193 were the numbers on 15:02:10 18 that key. Here's a post office key (pulling his 15:02:14 19 own out of his pocket) and this shows you the 15:02:16 20 digit *****. So when ever you go to the post 15:02:18 21 office, they give you a key and the number 15:02:21 22 matches the lock. It does not match the box, it 15:02:23 23 matches the lock. So there is a lock by that 15:02:25 24 number and that is how they check the keys, 15:02:27 25 because they all look alike. So I contacted the 200 15:02:30 1 postal services headquarters material supply and 15:02:32 2 found out that there was several of these lock 15:02:34 3 boxes with the same number. In other words, it 15:02:35 4 is not a unique number, they reproduced them and 15:02:38 5 there may have been a dozen of them in these 15:02:40 6 United States. A dozen or more. But one of the 15:02:42 7 things I did was to send a letter to post 15:02:44 8 offices in Ohio, Michigan, Indiana, Kentucky and 15:02:47 9 West Virginia circulating this key number and 15:02:49 10 asking if they had a lock with that number in 15:02:51 11 their post office. So in other words, I am 15:02:54 12 trying to put a specific --" well, it says, 15:02:58 13 "pacific key to a lock, to a suspect. The 15:03:04 14 responses I got lead to the identification of 15:03:05 15 five locks, in that multi-state area." 15:03:09 16 Again, is that an accurate reflection of 15:03:12 17 the conversation? 15:03:12 18 A. That reasonably reflects the nature of the 15:03:16 19 conversation, that's correct. 15:03:19 20 Q. What you are saying is you can't recall 15:03:22 21 sitting here today whether those were precisely 15:03:26 22 the specific words spoken, but it captures -- 15:03:28 23 A. It captures the essence. I can tell you 15:03:31 24 that, as you read this document, you will see 15:03:34 25 that I am oftentimes attributed with verbs in 201 15:03:39 1 the past tense, but using them in the present 15:03:42 2 tense. In other words, rather than saying, 15:03:46 3 something happened in the past, in this I am 15:03:48 4 attributed to using verbs in the present tense. 15:03:51 5 I don't do that, as you can see. 15:03:55 6 So she is putting her impressions down on 15:04:02 7 the paper, in my opinion, and in her impression, 15:04:06 8 in that regard it is accurate. 15:04:08 9 Q. And the next few lines down, "I determined 15:04:12 10 that there was such a lock at the Madison, 15:04:15 11 Indiana post office." Do you see that? 15:04:18 12 A. Yes, I do. 15:04:19 13 Q. And then a few lines further down from 15:04:22 14 that, "But the key will be to that lock, I 15:04:24 15 guarantee it because of that and other 15:04:26 16 circumstances." Do you see that? 15:04:28 17 A. Yes. 15:04:28 18 Q. And does that accurately reflect your 15:04:30 19 recollection of the conversation? 15:04:31 20 A. That is reasonably accurate, yes. 15:04:38 21 Q. And then later on, you discuss, "Okay, now 15:04:42 22 at the same time Delaney Gibson had an old Ford 15:04:46 23 pickup truck down at his home in Bearbranch, 15:04:48 24 Kentucky, which is just outside London. So I 15:04:51 25 did go down there after we caught him and 202 15:04:52 1 executed a search warrant on his truck just to 15:04:54 2 see if the key would fit. The key did not fit. 15:04:57 3 It was not his key." That is accurate? 15:04:59 4 A. That is accurate, yes. 15:05:03 5 Q. Now, toward the bottom of the page, the 15:05:06 6 last larger paragraph, or the middle of it, you 15:05:13 7 see it starts, "So with that fact," you see 15:05:16 8 where I am? 15:05:18 9 A. Yes, I do. 15:05:19 10 Q. "So with that fact, the long and short of 15:05:22 11 it is I had fifteen versions of what happened 15:05:25 12 with this postmaster. We had to run each one of 15:05:28 13 them down to tell if they were the truth or the 15:05:31 14 not truth. So we set about and did in fact 15:05:32 15 spent a tremendous amount of time running down 15:05:34 16 each of his stories. Identifying all these 15:05:36 17 people, which we did do, and interviewing these 15:05:38 18 people, which we did do, and showing each of 15:05:39 19 them lacked credibility. Each of the stories." 15:05:42 20 Is that, again, an accurate -- 15:05:46 21 A. It captures the essence. 15:05:49 22 Q. Why don't we flip to the next page. Toward 15:05:55 23 the bottom of the page, see where it says, 15:06:01 24 "Paul," a quarter of the way from the bottom? 15:06:04 25 A. Yes. 203 15:06:06 1 Q. Second line under that, "You have to 15:06:08 2 remember this guy isn't real truthful with us 15:06:11 3 about anything, so if you want to learn 15:06:13 4 anything, you have to learn it from some one 15:06:15 5 else. He doesn't know truth." Referring to 15:06:17 6 Mr. Spirko there? 15:06:19 7 A. That's correct. 15:06:19 8 Q. And that is, again, an accurate 15:06:23 9 representation of what you were saying? 15:06:25 10 A. Yes. And an accurate representation of the 15:06:28 11 Defendant, absolutely. 15:06:30 12 Q. And then a little further down, the line 15:06:36 13 that begins, "That kind of leads us now, we got 15:06:40 14 one guy in the bag." See that? See where I am? 15:06:43 15 A. I do not. 15:06:44 16 Q. Just a few lines further down from where we 15:06:47 17 just were. It says, "That kind of leads us 15:06:51 18 now --" 15:06:52 19 A. I have it, yes. 15:06:53 20 Q. "That kind of leads us now, we got one guy 15:06:55 21 in the bag and I am comfortable with the fact 15:06:58 22 that we can convict him. And he says in part, 15:07:00 23 his story is that Delaney Gibson, whom he also 15:07:03 24 calls 'Rooster,' which isn't really, it is just 15:07:06 25 convenient, he says when Delaney Gibson shows up 204 15:07:08 1 at Food Town, and I don't even know if it is 15:07:10 2 there is any more, a food store right up on 20 15:07:13 3 and showed him a gun as she described as a 15:07:15 4 nickle plated .357 revolver. And they were 15:07:19 5 going to go do something or that he went and did 15:07:20 6 something and Delaney told him all these things 15:07:23 7 that the victim did this and the victim did that 15:07:25 8 and he went and killed her and bla-bla-bla. So 15:07:28 9 he gives us this name of Delaney Gibson and I am 15:07:31 10 not sure of all this." Is that an accurate 15:07:34 11 reflection? 15:07:34 12 A. I think it reasonably captures the essence 15:07:37 13 of what was said, yes. 15:07:39 14 Q. "Blah, blah, blah," does that sound like 15:07:41 15 you? 15:07:42 16 A. Yes, it does. 15:07:47 17 Q. All right. The next page. For the record, 15:07:49 18 page 4, toward the bottom. Oh, about a -- there 15:07:59 19 is, about a quarter of the way up from the 15:08:01 20 bottom, there is a line that starts, "was 15:08:03 21 allegedly." See where I am? 15:08:05 22 A. Yes. 15:08:06 23 Q. All right. First sentence after that, "So 15:08:11 24 half the people went up to North Carolina and I 15:08:13 25 stayed in Florida with a couple of other people 205 15:08:15 1 to do some follow-up interviews and then we came 15:08:18 2 back. The bottom line is Delaney Gibson says, 15:08:20 3 'I didn't do it' and he didn't. So we came back 15:08:22 4 and he is in jail now and we are comfortable 15:08:24 5 with that and I started to put the pieces 15:08:26 6 together. In the mean while, he escapes again! 15:08:29 7 To parts unknown and also somebody gets him and 15:08:33 8 brings him back again. But while he was in 15:08:35 9 jail, before he escaped I went down to interview 15:08:38 10 his wife Marjorie Gibson, with a search warrant, 15:08:40 11 to see if the keys fit his truck." Is that 15:08:42 12 accurate? 15:08:43 13 A. Reasonably, except I am not quite sure 15:08:45 14 about this "he didn't" business. I don't know 15:08:49 15 if that is an incomplete sentence. That is 15:08:51 16 certainly not an assertion on my part that he 15:08:53 17 was not involved in the events. 15:08:55 18 Q. So you didn't say that? 15:08:56 19 A. Right, not to my recollection. 15:09:00 20 Q. "Seized the warrant on the truck and the 15:09:03 21 keys didn't fit. Not these keys at least, not 15:09:05 22 the keys to that truck. So I talked to his wife 15:09:09 23 Marjorie and said, 'Here's the deal.' I got 15:09:11 24 this case to work and this other goof, Spirko, 15:09:13 25 says Delaney was part of the persons with this 206 15:09:15 1 murder. She said, 'He didn't do it!' Well, I 15:09:18 2 said, 'Here's the deal, I am open to this and I 15:09:20 3 want the truth. You know, so if you can give me 15:09:22 4 something that can establish that he was some 15:09:25 5 where else, I will pursue that,' and she did." 15:09:27 6 Is that reasonably accurate? 15:09:28 7 A. That, again, captures the essence, yes. 15:09:31 8 Q. Well, is there any -- it sounds like you 15:09:35 9 speaking, doesn't it, it sounds like the way you 15:09:39 10 would speak? 15:09:41 11 A. Reasonably, yes. 15:09:42 12 Q. "She came up with a receipt from photos 15:09:45 13 taken to K-Mart in London, Kentucky. Where the 15:09:48 14 photos had been developed from a visit she and 15:09:51 15 her husband had, Delaney with his cousin. And I 15:09:54 16 had spoken with the cousin and I knew the guy 15:09:55 17 knew, but he just wouldn't tell me." Does that 15:09:57 18 sound reasonably accurate? 15:09:58 19 A. Oh, yes. 15:09:59 20 Q. And in fact, we looked through the 15:10:02 21 documents a little while ago, didn't we, 15:10:04 22 Mr. Hartman, and it wasn't K-Mart, right, you 15:10:06 23 thought it had been K-Mart, but it was Maloney's 15:10:11 24 Department Store? 15:10:12 25 A. Yes. 207 15:10:18 1 Q. "So I went and verified the dates on the 15:10:22 2 photos --" 15:10:22 3 MR. PRICHARD: Where are you at? 15:10:24 4 MR. HILL: The end of page 4. 15:10:26 5 Are you with me? 15:10:27 6 MR. PRICHARD: But the copy you 15:10:29 7 have given me is different from what you are 15:10:32 8 reading from. 15:10:34 9 MR. HILL: I am working from 15:10:35 10 Exhibit Number 1 and he is working from Exhibit 15:10:39 11 Number 1 and you are working from a different 15:10:41 12 exhibit number. I think the copy you printed 15:10:45 13 out and gave to him may be paginated slightly 15:10:49 14 different. 15:10:49 15 MR. PRICHARD: I see. But you 15:10:51 16 should have Exhibit Number 1 too. You will work 15:10:54 17 with Chuck. Can you hold on just one second? 15:11:48 18 MR. HILL: All right. 15:11:50 19 MR. PRICHARD: Almost there. 15:15:10 20 (Thereupon, a discussion was held off 15:15:13 21 the record.) 15:15:13 22 MR. HILL: Just for the 15:15:18 23 record, before we begin again, the exhibit 15:15:21 24 before the witness is Exhibit 1. And Exhibit 1 15:15:23 25 is the copy of this transcript that was filed by 208 15:15:30 1 the state with the court. 15:15:34 2 MR. PRICHARD: Understood. 15:15:37 3 MR. HILL: Exhibit 91, which 15:15:38 4 is a similar version of the same transcript, was 15:15:40 5 provided by Mr. Hartman today, who represented 15:15:43 6 that he received it from the state. But we are 15:15:48 7 going with the one that was filed with the 15:15:50 8 court. 15:15:50 9 MR. PRICHARD: Understood. 15:15:56 10 BY MR. HILL: 15:15:56 11 Q. We are at the bottom of page 4 of Exhibit 15:16:03 12 1. "So I went and verified the dates on the 15:16:05 13 photos, she gave me the photos and they showed 15:16:09 14 them at a McDonald's in Campton, Carolina. I 15:16:12 15 went to the McDonald's, I took pictures of the 15:16:14 16 same scene, which was the same place, and 15:16:17 17 interviewed a guy that had sold some parts the 15:16:19 18 day before the murder, August the 8th. So the 15:16:21 19 bottom line is I interviewed the cousin and he 15:16:23 20 finally admitted to me - the cousin says on the 15:16:25 21 night of August 7, no, August 8th, I was with 15:16:28 22 Delaney and we parted company at 6 pm. So I am 15:16:31 23 thinking and of course what we did, we supenoded 15:16:33 24 every public telephone record in Campton, North 15:16:37 25 Carolina just to show some contact between 209 15:16:40 1 Delaney and Spirko. Nothing! No telephone 15:16:42 2 contact that we can collaborate. You would 15:16:44 3 think we would find it if it were there." 15:16:50 4 Do you recall saying that? 15:16:52 5 A. I remember, again, the essence. The 15:16:54 6 location, again, is wrong, obviously. 15:16:57 7 Q. What do you mean, "the location is wrong"? 15:16:58 8 A. I am not aware of any location known as 15:17:02 9 Campton, C-a-m-p-t-o-n, North Carolina. 15:17:06 10 Q. Which location are you talking about? 15:17:08 11 A. I am talking about a community located at 15:17:09 12 Canton, C-a-n-t-o-n, North Carolina. I am not 15:17:18 13 quite sure what it means to say, "No telephone 15:17:21 14 contact that we can collaborate." 15:17:23 15 Q. Do you think that you used the word 15:17:29 16 "corroborate," instead of "collaborate"? 15:17:32 17 A. It is possible. 15:17:33 18 Q. Other than what you have just pointed out, 15:17:41 19 to the best of your recollection, is it 15:17:44 20 accurate? 15:17:44 21 A. The essence of this paragraph is that 15:17:46 22 ultimately Michael Bentley admitted to me he had 15:17:51 23 been with Delaney Gibson at Canton, North 15:17:57 24 Carolina, on the afternoon of August the 8th. 15:17:59 25 Q. But my question is, is the essence of that 210 15:18:04 1 paragraph accurate? 15:18:05 2 A. The essence is, yes. 15:18:09 3 Q. "So I am not comfortable with the fact that 15:18:11 4 I can put this guy at 6 o'clock in Camton, North 15:18:16 5 Carolina, which is a good 650 miles from Elgin." 15:18:20 6 With the exception of the name of the town, 15:18:22 7 is that accurate? 15:18:23 8 A. The miles are wrong. 15:18:25 9 Q. You didn't say 650? 15:18:27 10 A. No. 15:18:27 11 Q. What did you say? 15:18:28 12 A. My guess is I probably said 550. 15:18:34 13 Q. "At 6 o'clock the night of August 8th, and 15:18:38 14 these guys hit this place at 7 o'clock in the 15:18:40 15 morning. It just doesn't make any sense to me, 15:18:43 16 you know, not without prior contact or prior 15:18:46 17 agreement." Is that accurate? 15:18:47 18 A. Reasonably accurate, yes. 15:18:49 19 Q. "Connie: Yes, I know and where." 15:18:51 20 "Paul: Right! Otherwise, if you say, I am 15:18:53 21 going to do this place in Elgin and I will meet 15:18:55 22 you at this place at this time, but firstly, why 15:18:57 23 would you pick Elgin and secondly there is no 15:19:00 24 evidence of any communication. So basically it 15:19:02 25 establishes out." 211 15:19:07 1 A. I am not quite sure what, "So basically it 15:19:10 2 establishes out," means. That is certainly 15:19:11 3 nothing that I said. But the premise that the 15:19:21 4 location and the lack of communication troubled 15:19:24 5 me is essentially the essence of it. 15:19:27 6 Q. "Connie: Then why was he indicted? Then 15:19:31 7 why?" 15:19:31 8 "Paul: It was the prosecutors decision, 15:19:34 9 not mine, because I said, 'He didn't do it!' and 15:19:38 10 here is the proof." Is that accurate? 15:19:40 11 A. No. 15:19:42 12 Q. Well, what did you say? 15:19:43 13 A. More likely I said, "Where is the proof? 15:19:49 14 Where is the proof?" 15:19:50 15 Q. Instead of, "Here is the proof," you said, 15:19:52 16 "Where is the proof?" 15:19:53 17 A. That would be my belief, yes. 15:19:55 18 Q. Apart from the change of the word "here" to 15:19:58 19 "where," is it accurate? 15:20:00 20 A. Yes. 15:20:01 21 Q. "Connie: Kennedy did this!" 15:20:05 22 "Paul: No it was Keister who did that." 15:20:09 23 "Connie: Keister?" 15:20:10 24 "Paul: Yes." 15:20:11 25 "Connie: Keister, I know him, he is kind 212 15:20:15 1 of - you know." Is that accurate? 15:20:18 2 A. Yes, reasonably. 15:20:19 3 Q. "Paul: So anyway, I said 'Look, he didn't 15:20:23 4 do it, well we are going with it anyways, well 15:20:26 5 you do it as you want, but I am telling you the 15:20:28 6 guy didn't do it. But that was his decision, 15:20:30 7 not mine. I argued against it. So we pretty 15:20:34 8 much have a divided camp now. Strausbaugh and 15:20:38 9 others are saying they got the guy and I am 15:20:40 10 saying no you don't got the guy. He is not the 15:20:42 11 guy! So we go ahead and do the indictment, 15:20:45 12 prepare for trial, go to trial and convict the 15:20:48 13 son of a bitch in trial and in part - I don't 15:20:51 14 know - have you read the trial transcripts?" 15:20:54 15 Is that accurate? 15:20:55 16 A. Reasonably accurate, yes. 15:20:56 17 Q. The son of a bitch is Spirko, right? 15:20:59 18 A. That's correct, yes, a.k.a. 15:21:13 19 Q. Then without spending the time right now to 15:21:17 20 read through it, on page 7 there is discussion 15:21:25 21 by you of James Clark Kelley and Effie Rader and 15:21:29 22 you recall discussing those individuals with 15:21:34 23 Ms. Mottinger and the Bennetts? 15:21:39 24 A. Yes, I do. 15:21:45 25 Q. Okay. Let's leave this for the moment. 213 15:28:14 1 (Thereupon, a discussion was held off 15:28:22 2 the record.) 15:28:22 3 BY MR. HILL: 15:28:23 4 Q. Mr. Hartman, you remember an occasion also 15:28:26 5 when you and I spoke on the telephone, right? 15:28:29 6 A. I do. 15:28:31 7 Q. We spoke actually twice? 15:28:34 8 A. We did. 15:28:35 9 Q. And I called you out of the blue, right? 15:28:38 10 A. Yes, you did. Unsolicited. 15:28:42 11 Q. And I identified myself, told you who I 15:28:45 12 was? 15:28:45 13 A. Yes. 15:28:45 14 Q. And who I was representing, right? 15:28:47 15 A. That's right. 15:28:48 16 Q. I told you that I wanted to come and visit 15:28:52 17 with you, if that was okay with you? 15:28:53 18 A. I don't remember that. I think it was just 15:28:55 19 a matter of talking on the phone. I don't 15:28:57 20 remember that part of it. 15:28:58 21 Q. Okay. Well, in any event, we never did 15:29:03 22 meet in person, did we? 15:29:05 23 A. Not until this very day when I saw you in 15:29:08 24 the parking lot. 15:29:09 25 Q. So you declined my kind invitation to come 214 15:29:12 1 visit you? 15:29:12 2 A. I did indeed, yes. 15:29:14 3 Q. But we did speak on the telephone, right? 15:29:16 4 A. Yes, we did. 15:29:17 5 Q. And we spoke for, oh, maybe half an hour, 15:29:22 6 45 minutes the first day, is that consistent 15:29:25 7 with your recollection? 15:29:25 8 A. About that, yes. 15:29:26 9 Q. And then a couple of days later, I called 15:29:28 10 you back with Mr. Dunn, right? 15:29:30 11 A. Um-hum. 15:29:31 12 Q. Because Mr. Dunn, even though I tried to 15:29:33 13 find him when I finally reached you on the 15:29:36 14 telephone, he wasn't available, and I think I 15:29:38 15 told you that? 15:29:39 16 A. That is when you were hooking up the 15:29:41 17 recorder. 15:29:43 18 Q. But then I found Mr. Dunn and a couple of 15:29:47 19 days later we called you back and had another 15:29:49 20 conversation? 15:29:49 21 A. Yes, you did, that's correct. 15:29:50 22 Q. And is it your recollection that the two 15:29:52 23 conversations were pretty similar in substance? 15:29:56 24 A. Yes, yes. 15:29:57 25 Q. So the second conversation really, the 215 15:30:01 1 stated purpose for us was really to let Alvin 15:30:05 2 have an opportunity to hear what you had to say. 15:30:08 3 A. Well, I didn't understand that. But either 15:30:10 4 way. 15:30:10 5 Q. We didn't really cover any new ground the 15:30:13 6 second time that we hadn't covered the first 15:30:15 7 time? 15:30:15 8 A. Not really, no. 15:30:17 9 Q. And in both conversations, you recall 15:30:29 10 telling us that one of the few things that you 15:30:32 11 thought we probably could agree on was the fact 15:30:35 12 that Mr. Gibson had no involvement in this 15:30:39 13 crime? Do you remember those -- 15:30:41 14 A. I don't agree to that. No, no. I don't 15:30:44 15 recollect that as a point of agreement. 15:30:46 16 Q. You don't recall you using the words, "One 15:30:50 17 of the few things we probably can agree on is 15:30:52 18 that Mr. Gibson had no involvement in these 15:30:56 19 crimes"? 15:30:56 20 A. I don't remember that, no. 15:30:58 21 Q. Do you remember talking to me and 15:31:09 22 explaining to me that you thought that you had 15:31:12 23 gone to great investigative lengths to see if 15:31:15 24 you could establish any contact between 15:31:18 25 Mr. Spirko and Mr. Gibson? 216 15:31:19 1 A. Yes, I do, I remember telling you that. 15:31:21 2 Q. And you also remember telling me about the 15:31:25 3 investigative lengths that you had gone to to 15:31:30 4 confirm Mr. Gibson's whereabouts in North 15:31:38 5 Carolina? 15:31:38 6 A. That's correct. 15:31:39 7 Q. And a lot of this stuff that we talked 15:31:42 8 about this morning, we talked about -- and this 15:31:45 9 afternoon, we talked about in that conversation, 15:31:50 10 and you took, quite appropriately, a fair amount 15:31:53 11 of pride in the investigative efforts that you 15:31:57 12 had made? 15:31:57 13 A. I worked hard on the case, yes. 15:32:00 14 Q. And you explained to us, you know, that you 15:32:03 15 had confirmed, in fact, that Mr. Gibson was in 15:32:07 16 North Carolina on the 7th and 8th? 15:32:11 17 A. Reasonably, until the late afternoon hours, 15:32:15 18 6:00 by -- 15:32:16 19 Q. On the 8th? 15:32:17 20 A. -- on the 8th of August, as was stipulated 15:32:19 21 in trial, I believe. 15:32:21 22 Q. And you have a recollection that that was 15:32:25 23 stipulated to at trial? 15:32:26 24 A. No, I learned that in conversation, I 15:32:28 25 believe, with Mr. Wille, that there was a 217 15:32:30 1 stipulation in trial. Again, I wasn't in the 15:32:34 2 courtroom. 15:32:34 3 Q. But your understanding of what you learned 15:32:36 4 from Mr. Wille was that there was a trial 15:32:39 5 stipulation that Mr. Gibson was in North 15:32:42 6 Carolina as late as 6:00 on the 8th? 15:32:44 7 A. That is my understanding. 15:32:47 8 Q. And anyway, in the conversation that you 15:32:52 9 had with me and then two days later with me and 15:32:55 10 Mr. Dunn, you recall using the phrase, and I 15:33:04 11 quote you, that it would, quote, "defy common 15:33:07 12 sense," end quote, to believe that Mr. Gibson 15:33:10 13 had somehow made his way, without any evidence 15:33:14 14 of any prior contact with Mr. Spirko, made his 15:33:17 15 way to Elgin, Ohio, and committed this crime? 15:33:22 16 A. I don't recollect using that specific 15:33:25 17 phrase. I do remember suggesting to you that it 15:33:32 18 was a concern of mine that there was no contact 15:33:38 19 and it was certainly curious to me that we never 15:33:41 20 were able to establish that contact. 15:33:43 21 Q. And do you recall expressing to me that, in 15:33:50 22 fact, you had shared your concerns, you had a 15:33:54 23 specific recollection of having shared your 15:33:55 24 concerns with Mr. Keister? 15:33:58 25 A. No, I don't. In fact, as I remember, I 218 15:34:00 1 told you that I had no independent recollection 15:34:04 2 of ever discussing the guilt or innocence of 15:34:08 3 Mr. Gibson with Mr. Keister. That is my 15:34:11 4 recollection. 15:34:11 5 Q. And do you recall having discussed with me 15:34:14 6 and with Mr. Dunn and told us that you had 15:34:17 7 shared your concerns with Mr. Strausbaugh? 15:34:21 8 A. I don't remember that as a topic of 15:34:23 9 conversation. But it is likely that I did. 15:34:27 10 Q. It is likely that you said that? 15:34:29 11 A. It is likely that I shared my concerns with 15:34:31 12 Inspector Strausbaugh. 15:34:32 13 Q. And is it equally likely that you then 15:34:35 14 shared that fact with Mr. Dunn and myself in 15:34:38 15 that telephone conversation? 15:34:40 16 A. I don't remember it being discussed 15:34:43 17 specifically. 15:34:43 18 Q. I mean, it is fair to say that the topic of 15:34:46 19 conversation that we had, in both phone calls 15:34:50 20 that we had, as best you recall, was the issue 15:34:54 21 as to whether or not Delaney Gibson had bore any 15:35:00 22 responsibility for these crimes? 15:35:01 23 A. Clearly, yes. 15:35:02 24 Q. I mean, that was without a doubt -- 15:35:04 25 A. That was the theme, yes, no question. 219 15:35:06 1 Q. And you knew what we were trying to 15:35:12 2 establish, right? 15:35:12 3 A. Oh, yes, I did. Yes, I did, as I know now, 15:35:16 4 yes. 15:35:17 5 Q. And we didn't do anything to conceal or to 15:35:26 6 mislead you in any way with respect to what our 15:35:29 7 interests were? 15:35:30 8 A. Well, I knew you weren't representing my 15:35:33 9 interests, I will tell you that. 15:35:35 10 Q. So we were pretty upfront with you? 15:35:38 11 A. You were forthright, that you were 15:35:42 12 representing the interests of the Defendant. 15:35:47 13 And as I recollect, I think you said to me, "I 15:35:50 14 have this client and I am trying to keep him 15:35:52 15 alive." And I said to you, "I respect you for 15:35:57 16 that and I understand that." 15:35:57 17 Q. You were equally forthright with us in 15:36:00 18 expressing the view that you didn't want to do 15:36:01 19 anything to assist us? 15:36:02 20 A. That's right, or impede the state's case. 15:36:06 21 Q. In fact, we asked you if you would give an 15:36:08 22 affidavit. At the end of the conversation, we 15:36:10 23 asked you if you would give an affidavit 15:36:13 24 summarizing, in effect, what we had discussed. 15:36:15 25 Do you remember that? 220 15:36:16 1 A. I do. 15:36:16 2 Q. And you declined? 15:36:17 3 A. I declined, absolutely. 15:36:22 4 Q. And you recall that we had, during the 15:36:27 5 discussion, we also discussed your view of the 15:36:30 6 reliability of eyewitness identifications? 15:36:33 7 A. Yes, I do. 15:36:34 8 Q. And you recall that you expressed the view 15:36:36 9 to us that in your many years as an 15:36:39 10 investigator, having investigated a lot of 15:36:41 11 street crime -- 15:36:42 12 A. Yes. 15:36:46 13 Q. -- that eyewitness -- I think you used some 15:36:50 14 rather colorful language, but that eyewitness 15:36:53 15 identification was not very reliable, in your 15:36:57 16 opinion? 15:36:57 17 A. Well, it is likely, A, that I used colorful 15:37:01 18 language, which I have tried to refrain during 15:37:03 19 this testimony. But, yes, I have strong 15:37:08 20 reservations about resting a case solely on the 15:37:14 21 reliability of one eyewitness identification. 15:37:16 22 Q. And do you remember discussing with us the 15:37:19 23 fact that there really -- that you were really 15:37:23 24 unable to come up with any theory that made any 15:37:27 25 sense as to how, given what you had established 221 15:37:30 1 about Mr. Gibson's whereabouts and appearance in 15:37:35 2 North Carolina, how his involvement made any 15:37:39 3 sense? Do you recall expressing that opinion? 15:37:43 4 A. Yes, I do. I think you maybe 15:37:46 5 mischaracterized that a little bit, because the 15:37:48 6 issue of him being bearded before came up. And 15:37:51 7 I suggested to you that a razor blade and a 15:37:54 8 little shaving cream five minutes later would 15:37:56 9 remove the beard. I also remember telling you 15:37:58 10 that it was my belief that it was possible to 15:38:01 11 travel from Canton, North Carolina to Toledo and 15:38:04 12 to Elgin in the time frame in the intervening 15:38:08 13 hours. I remember telling you those things. 15:38:10 14 Q. And having told us that it was sort of 15:38:14 15 mathematically or scientifically possible to do 15:38:18 16 those things, you recall also expressing the 15:38:20 17 view that it defied common sense to believe that 15:38:24 18 that actually happened, even though it was 15:38:26 19 theoretically possible? 15:38:28 20 A. I don't remember expressing that concept in 15:38:32 21 those terms. And -- 15:38:36 22 Q. You take exception with the language to 15:38:38 23 "defy common sense"? 15:38:39 24 A. Yes, I do. And there is another factor and 15:38:45 25 variable in here that we did not discuss, which 222 15:38:48 1 really turns the whole argument. That is the 15:38:51 2 matter of James Kelley. In fact, you may 15:38:54 3 recollect that you asked me to identify this 15:38:56 4 person, and obviously you knew the name, but I 15:38:59 5 did not. 15:38:59 6 Q. Right, we had a discussion, in effect, 15:39:01 7 that -- we had a discussion about James Clark 15:39:04 8 Kelley without identifying him by name? 15:39:06 9 A. By name, that's correct. Another person. 15:39:08 10 Q. But do you recall telling us that you had 15:39:21 11 concluded that, in fact, Mr. Gibson was not 15:39:25 12 involved? 15:39:27 13 A. No, I don't remember saying that. Shall I 15:39:31 14 go on? I have no recollection of saying that. 15:39:40 15 I did make a comment to the effect that I didn't 15:39:43 16 believe that he did it right from the outset, 15:39:45 17 which was not particularly accurate. 15:39:55 18 What I have come to believe in later time, 15:39:57 19 after working this case for many years, is that 15:40:00 20 the one factor, the one variable that we could 15:40:03 21 not factor in was James Clark Kelley. 15:40:06 22 So while we were looking for communication 15:40:10 23 between Spirko and Kelley, or rather Spirko and 15:40:14 24 Gibson, it was likely the communications 15:40:19 25 occurred between Kelley and Gibson and Kelley 223 15:40:22 1 and Spirko. 15:40:25 2 Q. A couple of points. First of all, you 15:40:29 3 haven't developed any evidence to that end, 15:40:33 4 correct? 15:40:34 5 A. Physical evidence, I have not. I can tell 15:40:36 6 you that on one occasion, when I was at the home 15:40:38 7 of Cathy Carpenter and I was questioning her 15:40:42 8 about friends and associates of her brother 15:40:44 9 John, she did tell me that John had received a 15:40:48 10 telephone call from one of his friends by the 15:40:51 11 name of Jimmy, no last name. Kelley's first 15:40:58 12 name is James. 15:40:59 13 I don't know if that is the first person. 15:41:01 14 But it is certainly suggestive to me that there 15:41:03 15 was contact between Kelley and Spirko. 15:41:06 16 Q. But with respect to contact between Gibson 15:41:09 17 and Kelley, you have never established that? 15:41:11 18 A. No, because I don't have access to the 15:41:13 19 records. 15:41:13 20 Q. So anything you say -- 15:41:14 21 A. Is speculation. 15:41:16 22 Q. -- is completely and totally speculation? 15:41:18 23 A. Is speculation. As are my theories of the 15:41:22 24 case. It is all speculation. 15:41:24 25 Q. Your theories of the case are based upon 224 15:41:26 1 your work and your own review of the evidence 15:41:30 2 that you collected, I assume? 15:41:32 3 A. Well, it is based in part on the evidence 15:41:34 4 and on the work, but also on conjecture as to 15:41:37 5 what likely would have happened. 15:41:38 6 Q. Right, and what you would have concluded 15:41:40 7 and what you expressed to us as having concluded 15:41:43 8 did not happen if Delaney Gibson was not 15:41:47 9 involved, do you recall that? 15:41:48 10 A. I do not recall that. 15:41:49 11 Q. And do you recall having -- and again, we 15:41:52 12 are focusing now on what you believed in 1982 15:41:57 13 through '4 really, 1984. 15:41:59 14 A. All right. 15:42:00 15 Q. Do you recall expressing to me and to 15:42:05 16 Mr. Dunn the view that at that time prior to 15:42:07 17 trial, you had, you personally had concluded 15:42:12 18 that Mr. Gibson had no involvement? 15:42:16 19 A. I don't remember making that statement, and 15:42:18 20 I don't believe that to be the case. My 15:42:22 21 recollection is that I stated that I had always 15:42:25 22 had reservations about the weight of the 15:42:29 23 evidence. 15:42:29 24 Q. Your recollection as we sit here today is 15:42:31 25 that you talked to us about the weight of the 225 15:42:33 1 evidence? 15:42:33 2 A. As I recollect, yes. 15:42:35 3 Q. Do you recall meeting with Mr. Paynter? 15:42:57 4 A. Oh, yes, I do. 15:42:59 5 Q. Was that a face-to-face meeting? 15:43:01 6 A. Yes. He came to my home. 15:43:04 7 Q. So he was invited into your home? 15:43:09 8 A. Well, he wasn't invited. 15:43:11 9 Q. But you -- 15:43:11 10 A. Sure, I said, "If you want to come talk 15:43:13 11 with me, come talk with me." 15:43:15 12 Q. That was relatively recently, in the grand 15:43:18 13 scheme of things? 15:43:18 14 A. January, February, something like that. 15:43:24 15 Q. And he asked if he could record his meeting 15:43:28 16 with you? 15:43:28 17 A. No, he didn't. 15:43:29 18 Q. So did you know that it was being recorded? 15:43:32 19 A. He sat it down on the table. He said, 15:43:34 20 "This helps me do my article." He never asked. 15:43:37 21 Q. But you knew it was being recorded? 15:43:39 22 A. Oh, absolutely, yes. 15:43:41 23 Q. And you didn't object to it being recorded 15:43:43 24 or you didn't articulate it? 15:43:46 25 A. I saw it and I realized that tape was going 226 15:43:49 1 directly to you all, no doubt in my mind, as 15:43:52 2 soon as he laid it on the table. 15:43:54 3 Q. So anything you said to him, you said 15:43:57 4 understanding that it would make its way into 15:44:00 5 the public domain? 15:44:02 6 A. I knew that it was going to make its way to 15:44:06 7 you. No doubt about that. 15:44:08 8 Q. But he was a reporter too? 15:44:09 9 A. He was acting as your agent, I knew that. 15:44:12 10 I knew that before I talked to this guy. I know 15:44:15 11 that because he was making calls to people I 15:44:16 12 know in Cleveland, inquiring about my integrity. 15:44:19 13 So he was headhunting me. The only reason a guy 15:44:26 14 would do that is he was acting as your agent. 15:44:28 15 So I knew that right upfront. 15:44:34 16 Q. I will only ask one question about this. 15:44:40 17 A. He is a dickhead. You can put that on the 15:44:43 18 record. 15:44:45 19 Q. Do you want to repeat that for the record? 15:44:47 20 A. Yes, I said, "He is a dickhead." 15:44:51 21 Q. Why would you conclude, based upon any 15:44:55 22 inquiries he may or may not have made in 15:44:58 23 Cleveland, that that was done at our direction? 15:45:00 24 A. Well, here is the thing. I have been 15:45:02 25 retired for five years, and reporters just don't 227 15:45:05 1 come out of the woodwork after five years to 15:45:08 2 write some glowing piece about me or any other 15:45:11 3 officer. 15:45:13 4 And the nature of his questions to the 15:45:15 5 people whom he approached were clearly an 15:45:18 6 attempt to develop information that would 15:45:21 7 discredit me personally, my integrity. So he 15:45:25 8 was hunting, and I knew that straight up, and 15:45:26 9 that was the nature of the information and the 15:45:32 10 manner of his inquiries was related to me by a 15:45:35 11 number of people whom he thought to be not 15:45:40 12 friendly to me. 15:45:43 13 Q. And in your discussion with Mr. Paynter 15:45:47 14 that day, how long did that last? 15:45:48 15 A. Oh, I would say probably about an hour. 15:45:51 16 Q. And he asked you questions and you 15:45:55 17 answered, correct? 15:45:55 18 A. He did, yes. In fact, he attempted, after 15:45:59 19 reading a couple of prior issues of the Dick 15:46:02 20 Tracy comic strip in his newspaper, to refresh 15:46:07 21 and hone his interrogation skills. He tried to 15:46:12 22 make this an interrogation. 15:46:13 23 Q. So you felt like you were being 15:46:15 24 interrogated? 15:46:15 25 A. He tried. 228 15:46:16 1 Q. And you were truthful in responding to him? 15:46:20 2 A. Reasonably. 15:46:21 3 Q. Were you purposely untruthful? 15:46:23 4 A. There was a time when I misled him, yeah. 15:46:26 5 Q. Misled him in what regard? 15:46:30 6 A. When he brought up the essence or -- when 15:46:35 7 he brought up the matter of Gibson is -- my 15:46:37 8 recollection is I made a statement to him to the 15:46:39 9 effect that I didn't believe he did it right 15:46:42 10 from the outset, words to that effect. That is 15:46:46 11 after the time that I was getting hot under the 15:46:48 12 collar, and I was going to eject him from my 15:46:51 13 home, but I thought, "Here is a guy who thinks 15:46:55 14 of himself highly," and I was going to take him 15:47:00 15 to the cleaners, and I did. And I knew that he 15:47:05 16 would carry it to you and you would pick up the 15:47:07 17 ball, and you did. 15:47:09 18 Q. So your testimony today is that you 15:47:11 19 purposely misled him? 15:47:13 20 A. Absolutely. 15:47:13 21 Q. So that -- with respect to what you felt 15:47:16 22 about Delaney Gibson? 15:47:18 23 A. That's right. 15:47:18 24 Q. So that -- did you also purposely mislead 15:47:24 25 Mr. Dunn and myself? 229 15:47:25 1 A. Yes. I withheld facts that would lead you 15:47:30 2 to an opposite conclusion, perhaps. 15:47:32 3 Q. So you made an effort to convince 15:47:37 4 Mr. Paynter first, and then Mr. Dunn and myself 15:47:39 5 later on, that you actually had convinced 15:47:43 6 yourself that Mr. Gibson wasn't involved, when, 15:47:47 7 in fact, that wasn't the case, is that my 15:47:49 8 understanding? 15:47:50 9 A. I am not quite understanding what you are 15:47:52 10 asking. 15:47:52 11 Q. That was a long question. Let me rephrase 15:47:54 12 it. I mean, if I understood what you said 15:47:58 13 before, you made a conscious effort when you 15:48:01 14 were talking to Mr. Paynter to mislead him? 15:48:04 15 A. With regard to that issue, yes. 15:48:07 16 Q. Then you followed that on by trying to 15:48:08 17 mislead Mr. Dunn and myself as well? 15:48:10 18 A. That's correct, with regard to that issue. 15:48:12 19 Q. That issue being your state of mind with 15:48:14 20 respect to Mr. Gibson's involvement? 15:48:16 21 A. That's correct, that's right. 15:48:17 22 Q. All right. Now, when you were talking to 15:48:20 23 Ms. Mottinger and Mr. Bennett, were you trying 15:48:22 24 to mislead them as well? 15:48:24 25 A. No, no. 230 15:48:25 1 Q. And the reason, again, why you were trying 15:48:30 2 to mislead Mr. Paynter? 15:48:31 3 A. Because he was your agent and you two have 15:48:35 4 mounted your defense that has had this Defendant 15:48:37 5 on my back all these years, and have maligned my 15:48:41 6 character and my integrity. So this was a 15:48:45 7 little pay back, a little pay back. 15:48:46 8 Q. Well, you say -- I am sorry, did you say 15:48:52 9 "you two"? You two, referring to Mr. Dunn and 15:48:59 10 myself? 15:48:59 11 A. That's correct, yes. 15:49:04 12 Q. Now, Mr. Paynter didn't indicate to you in 15:49:07 13 any way that he had any affiliation with us, 15:49:09 14 right? This is a conclusion that you came to? 15:49:12 15 A. Oh, no, no, no, no, no. When I talked to 15:49:15 16 him on the phone early on, when I found out that 15:49:17 17 he had been making calls -- or inquiries about 15:49:20 18 me to other people, I called him on the phone 15:49:24 19 and I said, "Look, pal, you don't have to be 15:49:27 20 sneaking around. If you have questions to ask 15:49:30 21 about me, you can ask them to me directly." 15:49:33 22 And then he brought up the subject of this 15:49:36 23 particular case and that I said, "Well, how do 15:49:41 24 you get involved in this? This is not news." 15:49:45 25 And his statement to me was, "Somebody sent 231 15:49:48 1 me an e-mail," and it wasn't me, that he ought 15:49:52 2 to look into this. So you don't have to be a 15:49:54 3 rocket scientist to find out where that came 15:49:58 4 from. 15:49:58 5 Q. So you speculated that the e-mail that he 15:50:00 6 referenced to you came from us? 15:50:02 7 A. That's correct. 15:50:03 8 Q. But nobody has ever confirmed that to you? 15:50:13 9 A. No. And I have not seen the e-mail. 15:50:17 10 Q. Now, in your discussions with Mr. Paynter, 15:50:21 11 other than when you actively tried to mislead 15:50:24 12 him with respect to this issue, were you 15:50:27 13 truthful in other regards? 15:50:29 14 A. Yes. There was no attempt to deceive, 15:50:31 15 except as to that particular issue, because I 15:50:34 16 knew he would run with it, and he did. 15:50:36 17 Q. I am sorry, there was -- 15:50:37 18 A. There was no attempt, except with regard to 15:50:40 19 that one issue. 15:50:43 20 Q. So with regard to everything else you told 15:50:45 21 Mr. Paynter, that was true? 15:50:47 22 A. Reasonably accurate, as to my recollection. 15:50:50 23 Q. But with respect to the issue of your -- 15:51:00 24 with regard to your conclusions in the 1982 to 15:51:02 25 1984 time frame with respect to Delaney Gibson, 232 15:51:05 1 that was purposely misleading? 15:51:08 2 A. That's right. And part of that, of course, 15:51:12 3 involved my knowledge of the involvement, my 15:51:17 4 suspected involvement of James Clark Kelley, 15:51:20 5 which I refused to discuss with him. 15:51:26 6 Q. Let me read to you from a transcript that 15:51:32 7 was prepared by an independent court reporter of 15:51:35 8 the conversation. I am going to ask you whether 15:51:38 9 it is accurate. 15:51:39 10 A. Okay. 15:51:40 11 Q. Mr. Paynter, and the references -- 15:51:43 12 MR. PRICHARD: What page are you 15:51:44 13 on? 15:51:45 14 MR. HILL: I am sorry. 101. 15:51:47 15 Are you with me? 15:51:48 16 MR. PRICHARD: Yes. 15:51:49 17 BY MR. HILL: 15:51:50 18 Q. Line 10. Okay. I am reading from a 15:51:58 19 transcript produced by an independent court 15:52:05 20 reporter of a conversation between Mr. Paynter 15:52:07 21 and Mr. Hartman, which has been attached as 15:52:11 22 Exhibit A to a pleading previously filed in this 15:52:18 23 case on behalf of Mr. Spirko. All right. 15:52:24 24 "MR. PAYNTER: -- and the references to 15:52:27 25 photographs having been given to you." 233 15:52:28 1 "MR. HARTMAN: Now, that's right. I 15:52:31 2 obtained them." 15:52:32 3 "MR. PAYNTER: Fifty-eight of them." 15:52:34 4 "MR. HARTMAN: I obtained them. There's no 15:52:37 5 question about that." 15:52:38 6 "MR. PAYNTER: Right." 15:52:40 7 "MR. HARTMAN: Uh, however, uh, I am not at 15:52:43 8 any time talking with defense attorneys." 15:52:45 9 "MR. PAYNTER: Right." 15:52:46 10 "MR. HARTMAN: Not at all." 15:52:48 11 "MR. PAYNTER: Right." 15:52:49 12 Is that an accurate -- 15:52:52 13 A. I don't know who is talking with what. You 15:52:54 14 lost me in reading the transcript. If I can 15:52:57 15 view it or review it? 15:53:00 16 Q. Absolutely. If you would give me the page, 15:53:03 17 please. Let's mark it as an exhibit. 15:53:22 18 (Thereupon, Plaintiff's Exhibit 93 of 19 the P.M. Hartman deposition was 20 marked for purposes of 15:54:44 21 identification.) 15:54:44 22 BY MR. HILL: 15:54:44 23 Q. Mr. Hartman, let me direct your attention 15:54:46 24 to page -- well, you are referring to now what 15:54:49 25 has been marked as Exhibit 93. 234 15:54:52 1 A. Ninety-three, yes, sir. 15:54:55 2 Q. And let me refer you to page 101. 15:55:01 3 A. I have it. 15:55:02 4 Q. Okay. And beginning on line 10 or so. 15:55:07 5 A. All right, sir. 15:55:08 6 Q. And let me go back. This is where we 15:55:10 7 started, by Mr. Paynter, and the references to 15:55:13 8 photographs having been given to you. 15:55:15 9 "MR. HARTMAN: Now, that's right. I 15:55:17 10 obtained them." 15:55:18 11 "MR. PAYNTER: Fifty-eight of them." 15:55:20 12 "MR. HARTMAN: I obtained them. There's no 15:55:22 13 question about that." 15:55:23 14 "MR. PAYNTER: Right." 15:55:25 15 "MR. HARTMAN: Uh, however, uh, I am not at 15:55:27 16 any time talking with defense attorneys." 15:55:29 17 "MR. PAYNTER: Right." 15:55:30 18 "MR. HARTMAN: Not at all." 15:55:32 19 "MR. PAYNTER: Right." 15:55:33 20 Is that, best as you recall, accurate at 15:55:36 21 that point? 15:55:36 22 A. Assuming it was typed by a recorder, court 15:55:39 23 reporter, I believe that it is likely to be 15:55:41 24 accurate. 15:56:17 25 Q. Evidently, just for the record, I have a 235 15:56:20 1 version that may have slightly different 15:56:22 2 pagination than yours. If we miss each other -- 15:56:26 3 A. Understood. 15:56:27 4 Q. I tell you what, let's just switch for a 15:56:29 5 minute. 15:56:33 6 MR. DUNN: No, you are not 15:56:34 7 switching. 15:56:35 8 THE WITNESS: Let me look at the 15:56:37 9 notes in the margin. 15:56:42 10 BY MR. HILL: 15:56:42 11 Q. "MR. HARTMAN: All right." Are you with 15:56:44 12 me, Mr. Hartman? Are you with me? That is not 15:56:48 13 part of the text, that is me asking you right 15:56:50 14 now, are you with me? 15:56:52 15 A. Give me a line number, please. 15:56:58 16 MR. DUNN: You don't have the 15:57:01 17 same one. You have to wait. 15:57:03 18 THE WITNESS: I have 58. 15:57:13 19 (Thereupon, a discussion was held off 15:59:33 20 the record.) 15:59:33 21 BY MR. HILL: 15:59:36 22 Q. Mr. Hartman, now, I am on page 101, line 15:59:44 23 20. Okay? 15:59:45 24 A. Yes, sir. 15:59:46 25 Q. "MR. HARTMAN: All right. So any 236 15:59:49 1 conversations between defense attorneys and the 15:59:52 2 state or government are with the prosecutor. So 15:59:56 3 I have no, uh -- I am not privy to those 15:59:59 4 conversations." 15:59:59 5 "MR. PAYNTER: Okay." 16:00:01 6 "MR. HARTMAN: I have no input." 16:00:03 7 "MR. PAYNTER: That's fine. My question 16:00:05 8 for you -- and I wouldn't expect you to be -- my 16:00:08 9 question for you is: Did you make those 16:00:10 10 photographs available to Keister and show them 16:00:12 11 to Keister?" 16:00:13 12 Now, up until this point, is that accurate, 16:00:15 13 as best you recall? 16:00:17 14 A. I would believe it is, because it is 16:00:21 15 transcribed by a court reporter. 16:00:22 16 Q. "MR. HARTMAN: I know that I explained to 16:00:25 17 Steve Keister that I had developed an alibi for 16:00:29 18 Delaney Gibson, I know that. Now, I don't know 16:00:32 19 what I showed, uh -- I don't know what I 16:00:33 20 presented, but I have a recollection, that I 16:00:34 21 explained to him that I developed an alibi for 16:00:38 22 Gibson. And it was my belief that Gibson didn't 16:00:40 23 have anything to do with it." 16:00:43 24 Is that, as best you recall, an accurate 16:00:45 25 transcription of what you said? 237 16:00:47 1 A. I would believe so. 16:00:55 2 Q. "MR. PAYNTER: Because of his alibi? So if 3 Keister decided --" 16:01:01 4 "MR. HARTMAN: No, no for a whole host of 16:01:03 5 reasons, not just the alibi." 16:01:06 6 "MR. PAYNTER: Okay." 16:01:08 7 "MR. HARTMAN: The alibi is part of it but 16:01:10 8 not totally and completely." 16:01:12 9 "MR. PAYNTER: But Delaney Gibson was a 16:01:14 10 central part of the case. I mean he's indicted 16:01:17 11 along with Spirko, and, uh, it's the only, uh, 16:01:20 12 it's the only link you had even --" 16:01:22 13 "MR. HARTMAN: No." 16:01:24 14 "MR. PAYNTER: -- between Spirko and 16:01:26 15 Elgin." 16:01:26 16 "MR. HARTMAN: No. It's interesting to me 16:01:31 17 that, uh, that the defense argues and Judge Carr 16:01:35 18 mentions it in his decision in reference to 16:01:37 19 habeas, that, uh, Spirko's position is that had 16:01:39 20 he known that we had these photographs and, uh, 16:01:42 21 material at the time of the trial, that he would 16:01:43 22 have testified differently." 16:01:45 23 "MR. PAYNTER: Huh." 16:01:48 24 "MR. HARTMAN: Probably would have, right?" 16:01:50 25 "MR. PAYNTER: Yeah." 238 16:01:51 1 "MR. HARTMAN: There you go." 16:01:53 2 "MR. PAYNTER: Were you surprised by that? 16:01:55 3 Everything he told you was a lie." 16:01:56 4 "MR. HARTMAN: That's right. So, so he 16:01:59 5 says, 'Well, I would have lied differently at 16:02:02 6 trial.' So you know -- but the fact of the 16:02:04 7 matter is I personally, I did not display any 16:02:06 8 photo array to Opal Seibert. I had nothing to 16:02:10 9 do with that." Up to that point, is that 16:02:13 10 accurate? 16:02:13 11 A. Reasonably, I would assume. 16:02:14 12 Q. "MR. PAYNTER: Yeah." 16:02:15 13 "MR. HARTMAN: I wasn't there; I don't know 16:02:17 14 what happened, other than I understand that she 16:02:18 15 identified him." 16:02:19 16 "MR. PAYNTER: Yeah, she --" 16:02:21 17 "MR. HARTMAN: Now, she's deceased and 16:02:23 18 that's the end of that, unfortunately. But she 16:02:25 19 was elderly at the time. But, uh, I did not 16:02:27 20 believe that Gibson was involved in it." 16:02:29 21 Is that accurate? 16:02:30 22 A. Yes. 16:02:30 23 Q. "MR. PAYNTER: Did you tell John Spirko 16:02:33 24 that you had an eyewitness that put, uh, Delaney 16:02:35 25 Gibson in Elgin?" 239 16:02:36 1 "MR. HARTMAN: I don't remember that." 16:02:38 2 "MR. PAYNTER: Okay. So bottom line --" 16:02:40 3 "MR. HARTMAN: I can -- I can tell you, uh, 16:02:42 4 I never believed Gibson did it." 16:02:45 5 Accurate up to that point? 16:02:47 6 A. Yes. 16:02:48 7 Q. "MR. PAYNTER: Never, even from the 16:02:50 8 beginning?" 16:02:50 9 "MR. HARTMAN: No. I mean he was just one 16:02:54 10 of many names but, no, uh, and let me tell 16:02:56 11 you -- uh, while it is that your defense friends 16:02:59 12 here are --" 16:03:00 13 "MR. PAYNTER: My defense friends had 16:03:02 14 nothing to do with this." 16:03:04 15 "MR. HARTMAN: -- are making 16:03:06 16 representations that, uh, uh, that this, this 16:03:08 17 guy got railroaded. The fact of the matter is 16:03:12 18 that my concern was for the truth of this 16:03:14 19 matter." 16:03:14 20 "MR. PAYNTER: Right." 16:03:15 21 Accurate? 16:03:15 22 A. I assume so, yes. 16:03:17 23 Q. "MR. HARTMAN: And I did not believe, based 16:03:20 24 upon the facts, that Gibson did it. In fact, 16:03:22 25 there were a set of keys that were recovered at 240 16:03:24 1 the crime scene and one of them, and it was a 16:03:27 2 set of, uh, several keys, and it contained, the 16:03:29 3 key ring contained in part, an old style Ford, 16:03:32 4 uh, automobile key." 16:03:33 5 "MR. PAYNTER: Huh, huh." 16:03:35 6 "MR. HARTMAN: And, uh, I knew that Gibson 16:03:39 7 drove an old Ford pickup. So I took the key, 16:03:42 8 went to Kentucky, obtained a Search Warrant for 16:03:43 9 the vehicle, solely for the purpose of trying 16:03:45 10 the key in the ignition, in Kentucky. The key 16:03:49 11 didn't work. Not the key to the truck. (Clears 16:03:52 12 his throat) And it was at that time I talked 16:03:54 13 with Marge Gibson and she said Delaney didn't do 16:03:58 14 it, he didn't do it. I said, 'Okay, you give me 16:04:00 15 something that I can prove he didn't do it. She 16:04:02 16 then provided me with the photographs, the 16:04:04 17 receipts and the information from Bentley. And 16:04:06 18 it went from there." 16:04:07 19 Accurate? 16:04:08 20 A. Reasonably. 16:04:12 21 Q. Is there any specific way in which -- 16:04:14 22 A. Again, I don't recollect -- 16:04:16 23 Q. Your exact words? 16:04:17 24 A. Right. And I am just assuming a court 16:04:20 25 reporter is significantly more accurate than, 241 16:04:22 1 say, Connie Mottinger in the preparation of a 16:04:24 2 transcript. 16:04:25 3 Q. "MR. PAYNTER: Did you know --" 16:04:27 4 "MR. HARTMAN: I went --" 16:04:29 5 "MR. PAYNTER: Did you know, huh, you 16:04:31 6 obviously knew that, that Gibson had been 16:04:33 7 indicted; did you know that they were going to 16:04:36 8 present this evidence that Gibson - Gibson and 16:04:38 9 Spirko are buddies? Gibson was in Elgin?" 16:04:41 10 "MR. HARTMAN: Did I know who was going to 16:04:42 11 present what --" 16:04:43 12 "MR. PAYNTER: The prosecution." 16:04:45 13 "MR. HARTMAN: What evidence?" 16:04:46 14 "MR. PAYNTER: The eyewitness that put 16:04:48 15 Gibson in Elgin on the morning of the crime. 16:04:50 16 The only, uh, uh independently collaborated 16:04:52 17 evidence that put either one of them there." 16:04:55 18 "MR. HARTMAN: Well, he was never tried was 16:04:58 19 he? Gibson?" 16:04:59 20 "MR. PAYNTER: No." 16:04:59 21 "MR. HARTMAN: Okay. So, uh, I'm just, and 16:05:02 22 again I'm not the prosecutor, I'm just telling 16:05:04 23 you what happened. All right?" 16:05:07 24 Reasonably accurate up to now, as far as 16:05:09 25 you know? 242 16:05:10 1 A. I assume so. 16:05:11 2 Q. "MR. PAYNTER: In 1996, when you were 16:05:13 3 defending, uh, your desk files --" 16:05:15 4 "MR. HARTMAN: '96. All right." 16:05:17 5 "MR. PAYNTER: -- against, against, uh, 16:05:20 6 enclosure, or against disclosure, you argued 16:05:23 7 that --" 16:05:23 8 "MR. HARTMAN: I argued?" 16:05:26 9 "MR. PAYNTER: You argued in an 16:05:28 10 affidavit --" 16:05:28 11 "MR. HARTMAN: Okay." 16:05:29 12 "MR. PAYNTER: That uh, one of the reasons 16:05:31 13 that you couldn't do it was because it would, 16:05:34 14 uh, uh, possibly jeopardize the prosecution of 16:05:36 15 Delaney Gibson, who has yet to be tried in this 16:05:39 16 matter." 16:05:40 17 "MR. HARTMAN: Okay. Did it say Delaney 16:05:43 18 Gibson or another person in there?" 16:05:44 19 "MR. PAYNTER: It said Delaney Gibson." 16:05:47 20 "MR. HARTMAN: Okay. Uh, well, that may 16:05:49 21 be. I don't remember the affidavit." 16:05:50 22 "MR. PAYNTER: What ever happened to those 16:05:53 23 photographs? I mean you were -- you also 16:05:54 24 mention, Paul, that you were the custodian of 16:05:56 25 those records as the case agent. What happened 243 16:05:58 1 to the photographs?" 16:05:58 2 "MR. HARTMAN: They were all over at, in 16:06:02 3 Van Wert, Ohio. Everything, everything was in 16:06:04 4 Van Wert." 16:06:05 5 Reasonably accurate, as far as you know? 16:06:07 6 A. As far as I know, yes. 16:06:08 7 Q. "MR. PAYNTER: Some how they disappeared, 16:06:11 8 Paul, between the time that you got them and the 16:06:13 9 time that the defense finally got access to 16:06:16 10 those files in 1996." 16:06:17 11 "MR. HARTMAN: You say that, but I don't, 12 uh --" 16:06:19 13 "MR. PAYNTER: They weren't there and they 16:06:21 14 had to be sued and the Postal Inspection Service 16:06:24 15 said, 'We're looking for them and we're going to 16:06:26 16 look in Paul Hartman's file' and a month 16:06:29 17 later -- voila!" 16:06:30 18 "MR. HARTMAN: The only thing that I 16:06:32 19 remember is that, uh, there was a time when I 16:06:33 20 went to Van Wert to inventory the records in 16:06:36 21 their totality with a person from uh, 16:06:37 22 Headquarters. And, uh, when we did so, I 16:06:40 23 believe that we turned - the defense people were 16:06:42 24 there for the inventory - it's been a while, 16:06:44 25 people from the capital section, uh excuse me 244 16:06:46 1 I...got it." 16:06:47 2 "MR. PAYNTER: Public Defender's, yeah." 16:06:49 3 "MR. HARTMAN: The Public Defenders were 16:06:52 4 there, they were present as I recollect, when we 16:06:56 5 inventoried all of the folders and all of the 16:06:58 6 records. Those files were then sent to 16:07:02 7 Washington D.C. And, I believe that the defense 16:07:03 8 people got them from copies from Headquarters." 16:07:09 9 Is that all reasonably accurate, as far as 16:07:12 10 you recall? 16:07:12 11 A. I assume so, yes. 16:07:15 12 Q. Bear with me here for one second. 16:07:52 13 Mr. Hartman, if you could go to page 114, 16:07:55 14 line 21. 16:08:05 15 A. I have it. 16:08:05 16 Q. Are you with me? 16:08:07 17 A. Yes. 16:08:07 18 Q. "MR. PAYNTER: But the key elements are 16:08:10 19 Spirko and Gibson and that's Paul Hartman. 16:08:12 20 Right? Right!" 16:08:14 21 "MR. HARTMAN: Well again, my belief is 16:08:18 22 that, was and is, that Gibson didn't have 16:08:21 23 anything to do with it..." 16:08:22 24 "MR. PAYNTER: That's interesting, given 16:08:24 25 the way it all unfolded." 245 16:08:28 1 "MR. HARTMAN: That's my personal opinion. 16:08:31 2 Again, I am not the prosecutor I don't make, I 16:08:34 3 didn't make prosecutor decisions." 16:08:37 4 Is that reasonably accurate, as far as you 16:08:39 5 know? 16:08:39 6 A. I assume so, yes. 16:08:40 7 Q. And then on page 118, line 7, are you with 16:09:09 8 me? 16:09:10 9 A. I am now, yes. 16:09:11 10 Q. "MR. PAYNTER: Like who? We have no known 16:09:14 11 associates in the Swanton area. No No other 16:09:17 12 suspects, who could it have been? It's not 16:09:19 13 Delaney Gibson." 16:09:20 14 "MR. HARTMAN: No, it's not Delaney." 16:09:24 15 Is that accurate, as far as you know? 16:09:25 16 A. As far as I know. 16:09:31 17 Q. All right. Just for the record, I want you 16:09:47 18 just to identify something. Can we have that 16:09:57 19 marked? 16:09:57 20 (Thereupon, Plaintiff's Exhibit 94 of 21 the P.M. Hartman deposition was 22 marked for purposes of 16:10:39 23 identification.) 16:10:39 24 BY MR. HILL: 16:10:39 25 Q. Mr. Hartman, let me play for you just a 246 16:10:44 1 brief excerpt from Plaintiff's Exhibit 94, and I 16:10:48 2 want you to tell me whether it is your voice on 16:10:51 3 this and Mr. Paynter's voice, as far as you 16:10:56 4 know. 16:10:58 5 A. Yes, sir. 16:11:08 6 (Pause.) 7 (Thereupon, the audiotape was 8 played.) 16:11:47 9 BY MR. HILL: 16:11:47 10 Q. Is that your voice? 16:11:48 11 A. That was my voice, yes. 16:11:49 12 Q. Was that Mr. Painter's voice, as best you 16:11:53 13 recall? 16:11:53 14 A. As best I recall, yes. 16:11:55 15 Q. The only time you have been with 16:11:57 16 Mr. Paynter is on that one occasion? 16:11:59 17 A. Oh, yes. And it is likely to have been the 16:12:01 18 last time. 16:12:15 19 Q. We are getting there, I mean -- 16:12:17 20 A. I understand. 16:12:18 21 Q. I mean towards the end. 16:12:19 22 A. If Alvin hadn't been late, we would be 16:12:23 23 okay. 16:12:29 24 Q. I am sorry, is Mr. Hartman's affidavit, was 16:12:33 25 that an exhibit we did earlier today? 247 16:12:35 1 MR. DUNN: Yes, it is an 16:12:37 2 earlier one. Number 3. 16:12:44 3 MR. HILL: Is that a copy for 16:12:45 4 Mr. Hartman? 16:12:48 5 MR. DUNN: That is his copy. 16:12:49 6 You should have your copy. 16:12:54 7 BY MR. HILL: 16:12:55 8 Q. Okay. All right, Mr. Hartman, your 16:12:58 9 affidavit. 16:12:59 10 A. Yes, sir. 16:13:00 11 Q. You testified earlier, and I don't want to 16:13:03 12 belabor it, as to how this was prepared, but 16:13:07 13 just to make sure I understand it, that 16:13:10 14 originally someone from the Ohio Attorney 16:13:14 15 General's Office sent you what I would 16:13:16 16 characterize as -- well, sent you a version of 16:13:19 17 an affidavit? 16:13:20 18 A. That is correct. 16:13:21 19 Q. And sent it to you by e-mail? 16:13:24 20 A. Yes. 16:13:24 21 Q. And you no longer have that copy? 16:13:27 22 A. That's correct. I modified that original 16:13:30 23 document to its present form. 16:13:32 24 Q. And if we go through this, will you be able 16:13:36 25 to identify for me to the best of your 248 16:13:38 1 recollection the ways in which you -- I think we 16:13:41 2 did that already this morning? 16:13:42 3 A. We did, yes. 16:13:44 4 Q. And there were no discussions between you 16:13:49 5 and the Attorney General's -- let's go off the 16:14:13 6 record and let him deal with his call. 16:14:18 7 (Thereupon, a discussion was held off 16:14:19 8 the record.) 16:14:19 9 BY MR. HILL: 16:14:20 10 Q. Any discussions that you can recall between 16:14:21 11 yourself and anybody else for that matter, 16:14:24 12 between the time that you received the affidavit 16:14:27 13 and the time that you revised it? 16:14:29 14 A. None that I recollect. 16:14:30 15 Q. Let's draw your attention to paragraph 4. 16:15:00 16 A. Yes, sir. 16:15:01 17 Q. The next to last sentence that says, "That 16:15:35 18 evidence consisted primarily of statements by 16:15:38 19 Mr. Michael Bentley, to the effect that Gibson 16:15:42 20 was with him and his wife in North Carolina on 16:15:43 21 that weekend, and that pictures of Gibson were 16:15:45 22 taken." Do you see that? 16:15:49 23 A. Yes, sir. 16:15:49 24 Q. Having sat here today and reviewed 16:15:52 25 documents which you hadn't seen previously, that 249 16:15:55 1 sentence refers to your investigation that 16:15:58 2 disclosed that Gibson had been in North Carolina 16:16:01 3 on the weekend of August 7 and 8, correct? 16:16:04 4 A. That is correct. 16:16:05 5 Q. In point of fact, you had developed through 16:16:08 6 your good efforts significant other evidence, 16:16:12 7 correct, to the effect that Gibson was with him 16:16:17 8 and his wife in North Carolina on that weekend, 16:16:20 9 you had done -- 16:16:22 10 A. I did everything I could to establish that 16:16:26 11 the representations to me were truthful and 16:16:28 12 accurate, yes. 16:16:29 13 Q. Right. And so the evidence that you 16:16:33 14 developed consisted of much more than just 16:16:37 15 statements by Mr. Bentley, right? I mean, you 16:16:39 16 did more than that? 16:16:40 17 A. Yes, I did. 16:16:42 18 Q. And did you have that in mind at the time 16:16:44 19 that you executed this affidavit? 16:16:48 20 A. Well, you know, to be honest with you, I 16:16:50 21 had forgotten about many of these things that I 16:16:53 22 had done until I saw these documents today. 16:16:55 23 Q. So if you had the benefit of doing this 16:16:58 24 affidavit, having seen these documents, you 16:17:01 25 might have worded that sentence a little 250 16:17:03 1 differently? 16:17:03 2 A. I certainly might add in the reference to 16:17:06 3 the receipt for the auto parts purchased on 16:17:08 4 August the 7th of 1982. 16:17:11 5 Q. And you might -- 16:17:12 6 A. And the verification of the motel records, 16:17:19 7 and likely the follow-up with regard to the film 16:17:24 8 processing at the Maloney's and Revco drugstore. 16:17:32 9 Q. All right. Let's go to paragraph -- well, 16:17:35 10 the last sentence of paragraph 4, as best you 16:17:38 11 know, that is true, to the best of your 16:17:40 12 understanding? 16:17:41 13 A. I am sorry, I don't -- 16:17:43 14 Q. The last sentence of paragraph 4, "All of 16:17:46 15 the evidence I developed was included in the 16:17:48 16 task force's investigative files"? 16:17:50 17 A. Yes. 16:17:51 18 Q. And as we have talked about before, if that 16:17:54 19 evidence was not in those files, you have no 16:17:56 20 explanation for why that is? 16:17:57 21 A. That is correct. 16:18:01 22 Q. Paragraph 5, let's look at the first 16:18:05 23 clause. "At no time prior to Spirko's trial did 16:18:09 24 I state to anyone an opinion that Gibson 'had 16:18:14 25 absolutely nothing to do with Ms. Mottinger's 251 16:18:18 1 murder.'" Let's stop there for the moment, in 16:18:25 2 that clause. 16:18:27 3 Would you agree that you told -- that you 16:18:35 4 made that statement to Mr. Paynter? 16:18:37 5 A. That Gibson, quote, "had absolutely nothing 16:18:40 6 to do with Mrs. Mottinger's murder"? 16:18:45 7 Q. Yes. 16:18:45 8 A. I don't believe so. 16:18:46 9 Q. What is your understanding, what is your 16:18:47 10 recollection or understanding of what is related 16:18:50 11 to that that you did say to Mr. Paynter? 16:18:53 12 A. Well, as contained in the transcript, I 16:18:57 13 indicated essentially that I didn't believe he 16:18:59 14 did it, with regard to my opinion. 16:19:03 15 Q. Well, paragraph 5 references the fact that 16:19:07 16 in the first line that it is an opinion that we 16:19:09 17 are discussing, right? 16:19:11 18 A. It is clearly opinion, that's right. 16:19:16 19 Q. And is it your testimony that you did not 16:19:23 20 say that you didn't tell myself or Mr. Dunn that 16:19:29 21 you had come to the opinion that, quote, "Gibson 16:19:31 22 had absolutely nothing to do with 16:19:34 23 Mrs. Mottinger's murder"? 16:19:35 24 A. I believe I have -- I believe I did not 16:19:38 25 make that bold assertion to you or to Mr. Dunn. 252 16:19:41 1 Q. What is your recollection of what it is 16:19:43 2 that you said to Mr. Dunn and myself in that 16:19:45 3 regard? 16:19:46 4 A. I believe that I told you that I didn't 16:19:51 5 think that he did it from the start. I then 16:19:53 6 went on to explain to you that I had reasonably 16:20:00 7 established an alibi for Mr. Gibson up to the 16:20:05 8 time of 6 p.m., then adding the fact that he 16:20:09 9 could have easily driven the distance from 16:20:11 10 Canton to Elgin. 16:20:14 11 I further added that, notwithstanding the 16:20:16 12 photographs of the beard, he could have easily 16:20:19 13 shaved that beard. So on the one hand, I 16:20:23 14 espoused that opinion, yet on the other, I 16:20:27 15 countered with the facts, and the facts are 16:20:28 16 those that I have just articulated. 16:20:31 17 Q. All right. Was that part -- was that part 16:20:34 18 and parcel of your efforts to mislead myself and 16:20:37 19 Mr. Dunn? 16:20:38 20 A. With regard to my opinion, yes. I will 16:20:41 21 state that I was faithful to the facts, to the 16:20:45 22 best of my recollection. It was only my 16:20:48 23 opinions that I shaded to a degree. 16:20:52 24 Q. So in paragraph 5 in that first clause, is 16:20:57 25 it the quotation marks that you take exception 253 16:20:59 1 with, the fact that those were not your precise 16:21:04 2 words? 16:21:08 3 A. Well, my recollection is that I did not 16:21:11 4 state to anyone prior to the trial that Gibson, 16:21:15 5 quote, "had absolutely nothing to do with 16:21:19 6 Mrs. Mottinger's murder." 16:21:23 7 Q. Do you agree that you stated to Mr. Paynter 16:21:25 8 that prior to Spirko's trial, you stated that 16:21:30 9 opinion to Mr. Keister and to -- 16:21:34 10 A. That is what appears in the transcript, and 16:21:37 11 apparently I stated that to Mr. Paynter. 16:21:39 12 Q. So at the time you stated that to 16:21:41 13 Mr. Paynter, you were not being truthful with 16:21:43 14 Mr. Paynter? 16:21:43 15 A. I clearly misspoke. 16:21:46 16 Q. Well, was that part of your effort to 16:21:48 17 mislead Mr. Paynter? 16:21:50 18 A. No, I just misspoke. 16:21:51 19 Q. Well, what part -- earlier you talked about 16:21:54 20 actively trying to mislead Mr. Paynter. In 16:21:57 21 which regard were you trying to mislead him? 16:21:59 22 A. I wanted him to understand that or to 16:22:01 23 believe that I had doubt about Delaney Gibson. 16:22:06 24 And there is doubt. But I also anticipated that 16:22:11 25 he would do precisely what he did, and that is 254 16:22:16 1 bring it to you. 16:22:19 2 And I also anticipated that you would 16:22:20 3 follow through with it, as you did, when you 16:22:22 4 wrote that letter to the state and to Charlie 16:22:26 5 Kennedy, as I understand it, that said you had 16:22:29 6 irrefutable evidence that Delaney Gibson was in 16:22:34 7 Canton, North Carolina, on August the 9th of 16:22:38 8 1982. And if there is such proof, I would like 16:22:41 9 to see it. 16:22:42 10 Q. You have referenced a letter that you claim 16:22:46 11 that we sent to Mr. Kennedy and to Mr. Wille. 16:22:53 12 Do you have that letter? 16:22:54 13 A. I do not. I have not seen it, the content 16:22:57 14 of which was read to me, I believe, by 16:23:00 15 Mr. Wille. And curiously enough, as soon as I 16:23:03 16 hung up the phone, Bob Paynter called my house 16:23:06 17 wanting to know if I had seen the letter from 16:23:09 18 Tom Hill. How curiously coincidental was that? 16:23:15 19 Q. Did you tell Mrs. Mottinger, Theo Bennett 16:23:35 20 and Marlene Bennett that, in fact, you had told 16:23:40 21 Mr. Keister that you had concluded that Gibson 16:23:43 22 had nothing to do with it? 16:23:44 23 A. I don't believe so. 16:23:48 24 Q. Prior to trial, I would add. The sentence 16:24:28 25 that begins, "I believed prior to Spirko's 255 16:24:33 1 trial, and continue to believe today, that 16:24:35 2 notwithstanding the evidence that Gibson was 16:24:38 3 with the Bentleys in North Carolina until the 16:24:41 4 late afternoon hours on August 8th, 1982, Gibson 16:24:45 5 could have been in Elgin, Ohio on the morning of 16:24:48 6 August 9th, 1982." 16:24:50 7 In that sentence, are you expressing the 16:24:53 8 view that it wasn't physically impossible for 16:24:56 9 him to be there? 16:24:57 10 A. I believe here and now, as I state here on 16:25:00 11 the record, it is possible for him to have been 16:25:02 12 there. 16:25:03 13 Q. Back in 1984, did you have the opinion, did 16:25:11 14 you have the view, that although possible, you 16:25:14 15 had concluded that it hadn't occurred? 16:25:18 16 A. No, it was possible, but not proven to the 16:25:24 17 extent that it would overcome the presumption of 16:25:26 18 innocence. 16:25:38 19 Q. All right. Let's talk about paragraph 6 16:25:40 20 for a moment. The second sentence, "However, I 16:25:50 21 never stated such an opinion to the prosecutor, 16:25:52 22 before, during, or after Spirko's trial." 16:25:55 23 A. That is true. 16:25:57 24 Q. You never expressed the view to 16:26:00 25 Mr. Kennedy? 256 16:26:01 1 A. No, no. The only conversation -- and I 16:26:06 2 believe there is only one conversation with 16:26:08 3 Charlie Kennedy, and that was about the matter 16:26:11 4 of James Clark Kelley. 16:26:12 5 Q. And you never expressed the view to 16:26:16 6 Mr. Kennedy that, in fact, in your opinion, he 16:26:19 7 could not sustain a conviction against 16:26:21 8 Mr. Gibson? 16:26:22 9 A. No. 16:26:23 10 Q. Earlier -- 16:26:25 11 A. Intrinsically I knew that, at least I 16:26:28 12 assumed that, based on the strength of the 16:26:30 13 evidence. 16:26:31 14 Q. All right. Now, that sentence is worded to 16:26:34 15 the prosecutor. But as you have testified to 16:26:36 16 earlier, you did state that opinion to your 16:26:38 17 colleagues, correct? 16:26:42 18 A. Yes, I did, repeatedly and often. It was 16:26:47 19 likely the subject of daily discussion. 16:26:49 20 Q. And you had an expectation, because of 16:26:53 21 Mr. Strausbaugh's responsibilities and position, 16:26:56 22 that he would forward that view to the 16:26:58 23 prosecutor? 16:26:58 24 A. I believed he would, yes. 16:27:02 25 Q. So your statement is although you 257 16:27:05 1 personally never stated the opinion, you 16:27:06 2 certainly had an expectation that that opinion 16:27:08 3 was communicated? 16:27:09 4 A. I believe he would have communicated it, 16:27:11 5 yes. So it is my belief that he was made aware 16:27:14 6 of my opinions. 16:27:17 7 Q. Although you never articulated it yourself? 16:27:19 8 A. That's right. 16:27:20 9 Q. And Mr. Keister never, your testimony is, 16:27:23 10 never came to you and said, "I understand you 16:27:26 11 have some concerns or reservations or doubts or 16:27:31 12 whatever the word is, let's talk about it"? 16:27:35 13 A. No, he did not. 16:27:36 14 Q. What was your relationship like with 16:27:38 15 Mr. Keister? 16:27:38 16 A. He was a nice fellow and a hard worker. As 16:27:44 17 I say, I went to his house once for a barbecue 16:27:48 18 and went once with him -- we traveled as a group 16:27:51 19 to Milwaukee and Geneva, Wisconsin, to do some 16:27:56 20 preparation for the trial. Aside from that, I 16:27:58 21 had very, very little contact with him. He 16:28:01 22 didn't come to me, because I wasn't the case 16:28:04 23 agent. And I didn't go to him seeking 16:28:10 24 direction, because I know how to direct my 16:28:12 25 activities. 258 16:28:13 1 Q. You never had any reservations about 16:28:15 2 talking to him, though, or expressing your 16:28:18 3 opinions to him? 16:28:19 4 A. I never had any reservations. On the other 16:28:23 5 hand, I saw no need to. Again, it was the 16:28:26 6 function of the case agent to do those matters, 16:28:29 7 that liaison. 16:28:31 8 Q. There was nothing about your relationship 16:28:32 9 with him that made it awkward? 16:28:33 10 A. That was strained? No. He was an amiable 16:28:42 11 fellow. 16:28:54 12 Q. The next sentence, "It is my present 16:28:57 13 understanding prior to trial, the prosecutor 14 informed Spirko's attorneys of the Bentleys' 16:29:02 15 statements to the effect that Gibson was with 16:29:03 16 them in North Carolina on the weekend of August 16:29:05 17 7 and 8, 1982, and that pictures of Gibson were 16:29:08 18 taken." 16:29:11 19 That is worded that it was your present 16:29:13 20 understanding, as you wrote it today? 16:29:15 21 A. That's right, here and now. 16:29:17 22 Q. The day you wrote or executed this? 16:29:19 23 A. That's right. 16:29:20 24 Q. That is based completely on what Mr. Wille 16:29:22 25 and Mr. Prichard told you? 259 16:29:24 1 A. That is correct, sir. 16:29:26 2 Q. That is the basis of your understanding? 16:29:27 3 A. That is correct. 16:29:28 4 Q. You have no independent -- 16:29:29 5 A. I have no independent knowledge. 16:29:31 6 Q. And, in fact, you say that in the second 16:29:36 7 sentence, I believe. "However, I did not know 16:29:38 8 prior to trial that Spirko's attorneys had been 16:29:40 9 provided this information." 16:29:42 10 A. That is also correct, because I was not 16:29:44 11 part of the trial process. 16:29:46 12 Q. Paragraph 8, the end of paragraph 8, "Nor 16:30:20 13 did I state to Connie Mottinger that I had made 16:30:22 14 such a statement to Stephen Keister." So is it 16:30:28 15 your testimony today that in that meeting, you 16:30:34 16 never said that to Ms. Mottinger? 16:30:36 17 A. That is my recollection, that's correct. 16:30:38 18 Q. Okay. And so if the transcript of that 16:30:42 19 meeting reflects differently, is it your 16:30:48 20 testimony today that the transcript is in error? 16:30:51 21 A. Well, it is either in error or I misspoke. 16:30:55 22 Q. So you might have said it, but if you 16:30:57 23 did -- 16:30:57 24 A. I may have. But again, many times when I 16:31:01 25 attribute knowledge to the prosecutor, it is 260 16:31:03 1 through the process, meaning that I expect that 16:31:08 2 he will know such things, because I would expect 16:31:11 3 the case agent to make him aware of them. 16:31:16 4 Q. So it is conceivable that you might have 16:31:20 5 said that Mr. Keister was made aware of it, and 16:31:23 6 in saying that, you might have based that upon 16:31:26 7 your understanding that you expected that he 16:31:30 8 would have become aware of it? 16:31:32 9 A. Yes, a presumption that another person 16:31:33 10 would have done his job. 16:31:36 11 Q. Okay. Because there is -- 16:31:37 12 A. I will tell you that, obviously, I have 16:31:40 13 inartfully stated some of these things, 16:31:44 14 expecting, improperly, people to understand the 16:31:48 15 flow, the organizational flow of information in 16:31:51 16 that investigation, or in any investigation. 16:31:53 17 Q. Right. And you view all of you working 16:31:56 18 together as, in effect, a team? 16:31:59 19 A. A unit, that's right, a team. 16:32:00 20 Q. And in certain respects, information, 16:32:05 21 knowledge that one has, in effect, is 16:32:08 22 attributable to others? 16:32:09 23 A. Shared by all, known by all. 16:32:12 24 Q. And paragraph 10, the last sentence, "I 16:32:29 25 also recall that notes of my interviews, along 261 16:32:32 1 with my formal Memoranda bearing on the same 16:32:35 2 series of interviews --" I guess this has to do 16:32:38 3 with the interviews with Mr. Spirko? 16:32:40 4 A. Correct. 16:32:41 5 Q. "-- were presented to the defense in 16:32:42 6 discovery and discussed during my testimony." 16:32:48 7 Let me ask you, do you have any present 16:32:51 8 recollection as to what was shared with the 16:32:53 9 defense with respect to the evidence you had 16:32:57 10 developed about Delaney Gibson? Do you have any 16:32:59 11 present recollection? 16:33:00 12 A. I do not know. I do know that as this case 16:33:03 13 involving Mr. Spirko was prepared for trial, I 16:33:08 14 was mandated by Mr. Keister, the prosecutor, 16:33:12 15 through Inspector Strausbaugh, to sit down, 16:33:15 16 because my handwriting is not particularly 16:33:18 17 legible, and I was required to prepare 16:33:21 18 typewritten copies of my notes. 16:33:25 19 Q. These are your notes -- 16:33:27 20 A. So I am painfully aware through that 16:33:29 21 process that these materials were prepared and 16:33:32 22 turned over to the defense. 16:33:34 23 Q. Materials relating to your interviews? 16:33:36 24 A. To my interviews with Mr. Spirko, yes. For 16:33:39 25 the most part, all of the other interviews, as 262 16:33:41 1 were interviews with Spirko, were memorialized 16:33:45 2 in the form of memoranda of interview. 16:33:47 3 However, the defense requested and received 16:33:50 4 copies of my notes, but because they were not 16:33:53 5 highly legible, as I will certainly attest, I 16:33:57 6 had to go back and dictate the contents so they 16:34:01 7 could be typed by the secretary so they were 16:34:03 8 legible to the defense attorneys. 16:34:07 9 Q. Now, in your -- in the affidavit we have 16:34:10 10 just reviewed, the Exhibit 3, there is -- well, 16:34:17 11 let me ask you this: At the time that you 16:34:19 12 prepared that, did you have -- what was your 16:34:23 13 understanding with respect to the existence or 16:34:27 14 nonexistence of the tape made in the Mottinger 16:34:31 15 meeting? 16:34:33 16 A. I am sorry, I don't understand. 16:34:40 17 Q. Okay. I will try it again. Not very 16:34:43 18 artfully done. 16:34:44 19 What was your understanding at the time you 16:34:46 20 executed the affidavit as to whether or not the 16:34:48 21 tape, the tapes of the meeting that you had with 16:34:50 22 the Bennetts and Ms. Mottinger, existed or did 16:34:53 23 not exist? 16:34:54 24 A. Well, by virtue of the fact that this was 16:34:59 25 executed on May 1 and believing that 263 16:35:06 1 Mr. Bennett's surgery had occurred well prior to 16:35:10 2 that time, I would believe that I would have 16:35:12 3 known that he had destroyed those tapes. 16:35:15 4 Q. And what was your understanding at the time 16:35:18 5 that you executed the affidavit with respect to 16:35:21 6 whether or not there was a, quote-unquote, 16:35:25 7 "transcript" or, quote-unquote, "notes" that had 16:35:28 8 been prepared from those tapes? 16:35:31 9 A. I had no knowledge of them or of any notes 16:35:34 10 or purported transcript. 16:35:35 11 Q. So at the time that you executed this, you 16:35:37 12 didn't know that that existed? 16:35:39 13 A. That's correct. 16:35:40 14 Q. And now, the affidavit is -- well, at the 16:35:50 15 time that you executed the affidavit, were you 16:35:52 16 aware -- you were certainly aware of the fact 16:35:55 17 that there had been -- there had been claims 16:36:01 18 made that you had made certain statements to 16:36:03 19 Mr. Paynter, right? 16:36:07 20 A. I don't know whether I was aware of 16:36:11 21 statements or claims by or to or from Paynter. 16:36:15 22 Q. Well, I would certainly represent to you 16:36:17 23 that the Attorney General's Office certainly was 16:36:19 24 aware of the fact that there were claims being 16:36:22 25 made that you had said certain things to 264 16:36:23 1 Mr. Paynter. 16:36:24 2 A. That may be. But I don't believe that I 16:36:26 3 was made aware of that. 16:36:27 4 Q. Well, was there any discussion between you 16:36:32 5 and the Attorney General's Office leading up to 16:36:36 6 the preparation of the affidavit as to whether 16:36:38 7 or not to address what you had said to 16:36:42 8 Mr. Paynter? 16:36:42 9 A. None that I am aware. 16:36:44 10 Q. And, similarly, let me ask you the same 16:36:48 11 question with respect to conversations that you 16:36:50 12 had had with myself and Mr. Dunn. 16:36:53 13 A. Yes. 16:36:53 14 Q. Were there any discussions with the 16:36:56 15 Attorney General's Office that led to the 16:36:59 16 preparation of the affidavit about whether or 16:37:03 17 not you would challenge or take exception with 16:37:09 18 representations that we had made about what you 16:37:11 19 had said to us? 16:37:14 20 A. None that I recollect. 16:37:16 21 Q. Okay. So as far as you know, the draft 16:37:19 22 that you got from the Attorney General's Office 16:37:31 23 only contained -- it only contained a paragraph 16:37:36 24 that dealt with you -- paragraph 8, I am 16:37:41 25 referring to now -- you denied in paragraph 8 265 16:37:48 1 making a particular statement to Ms. Mottinger, 16:37:52 2 but you avoid one way or the other making any 16:37:59 3 representation with regard to statements you 16:38:00 4 made to Mr. Paynter or myself or Mr. Dunn. 16:38:05 5 Is there any -- do you have any -- is there 16:38:08 6 any explanation to offer why you didn't take 16:38:13 7 exception to anything you said to me or 16:38:17 8 Mr. Dunn, what we claimed you said to us, or 16:38:19 9 what Mr. Paynter claims you said to him? 16:38:22 10 A. You lost me about ten minutes ago. And I 16:38:25 11 am sorry, but I am not -- 16:38:26 12 Q. No, that is my fault. That is fair enough. 16:38:29 13 In paragraph 8, you take exception under oath 16:38:32 14 with what you said to Ms. Mottinger, correct? 16:38:36 15 A. That is correct, I do. 16:38:38 16 Q. Nowhere in here do you take exception under 16:38:41 17 oath to what you said to myself or Mr. Dunn, nor 16:38:45 18 is there anyplace in here where you take 16:38:48 19 exception with what you said to Mr. Paynter. 16:38:51 20 And my question is -- 16:38:52 21 A. Yes, it is not in the affidavit, if that is 16:38:55 22 the question. 16:38:55 23 Q. My question is, I guess my question is, why 16:39:00 24 is that? Was that a purposeful omission? 16:39:04 25 A. No, not that I am aware. I don't know that 266 16:39:07 1 it was the subject of the matter at hand. 16:39:11 2 Q. Was there discussion with these gentlemen 16:39:14 3 or anyone else at the Attorney General's Office 16:39:16 4 as to whether or not you would be in a position 16:39:20 5 to deny statements made to us? 16:39:22 6 A. I have no recollection of any such things. 16:39:27 7 Although I do recollect that there was a time 16:39:30 8 when we discussed at the Bob Evans this series 16:39:37 9 of notes from Ms. Mottinger, and at that time I 16:39:42 10 confided to these gentlemen that I had misled 16:39:46 11 both the reporter and you. 16:39:47 12 Q. But you -- at the time that you met with 16:39:50 13 them at the Bob Evans, you had already executed 16:39:54 14 the affidavit, correct? 16:39:57 15 A. I am not sure. I don't remember the 16:40:00 16 sequence of events. 16:40:02 17 Q. Well, when you did execute the affidavit, 16:40:07 18 your understanding, your belief was that the 16:40:09 19 tapes of the meeting with the Mottingers and the 16:40:14 20 Bennetts no longer existed, correct? 16:40:16 21 A. It is likely. It is likely. 16:40:18 22 Q. That is what you just testified to a few 16:40:20 23 minutes ago? 16:40:20 24 A. It is likely. I am just trying to 16:40:24 25 reconstruct dates. 267 16:40:25 1 Q. At the time that you executed this 16:40:26 2 affidavit, your understanding, your belief and 16:40:28 3 understanding was that the tape of your meeting 16:40:31 4 with Mr. Paynter did exist, correct? 16:40:35 5 A. Oh, yes. In fact, I was confident that you 16:40:38 6 already had it; and you may recollect that in 16:40:41 7 our conversation, I asked you if you had already 16:40:45 8 listened to the tape, if you recollect. 16:40:47 9 Q. And your testimony earlier today was that 16:40:50 10 in your conversations with us, you believed that 16:40:52 11 we had recorded your conversation? 16:40:55 12 A. I do, yes. 16:40:56 13 Q. So that you believed at the time that you 16:40:58 14 executed this affidavit that a tape existed of 16:41:03 15 the conversation that we had? 16:41:04 16 A. Yes. And I still believe that. 16:41:18 17 Q. You just testified a moment ago that you 16:41:20 18 had confided to these gentlemen here that you 16:41:23 19 had misled -- that you had attempted to mislead 16:41:29 20 Mr. Paynter and Mr. Dunn and myself. 16:41:31 21 A. Yes. 16:41:31 22 Q. And that occurred at that meeting at the 16:41:33 23 Bob Evans? 16:41:34 24 A. Yes. 16:41:35 25 Q. And you explained to them that that was 268 16:41:40 1 your sort of -- was that your explanation to 16:41:43 2 them for why you had made certain assertions to 16:41:46 3 us, which, in fact, were not true? 16:41:50 4 A. I explained to them, as I testified here, 16:41:55 5 that you two have maligned my integrity and my 16:41:59 6 character for years and that those assaults had 16:42:03 7 gone unanswered, until now. 16:42:07 8 But when you sent the reporter, 16:42:10 9 Mr. Paynter, knocking at my door and when he 16:42:12 10 then acted like a jerk, he presented an 16:42:21 11 opportunity, which I took. 16:42:25 12 Q. And when you say an opportunity which you 16:42:27 13 took, that was an opportunity to misrepresent 16:42:30 14 things to him and then to us as well? 16:42:31 15 A. That's right. Because it was clear that 16:42:37 16 those things would find their way to you 16:42:40 17 immediately, just as your letter to the 16:42:42 18 prosecutor found its way to Paynter -- 16:42:47 19 Q. So in talking -- 16:42:48 20 A. -- contemporaneously. 16:42:50 21 Q. In talking to these gentlemen, you 16:42:51 22 acknowledged that you, in fact, said the things 16:42:55 23 that we claimed you said, but even though you 16:42:58 24 said them, they were not correct and true? 16:43:01 25 A. What I said to these gentlemen was that I 269 16:43:03 1 misled Paynter and that I misled you, simply 16:43:07 2 that, nothing more. 16:43:08 3 Q. They didn't want to know in what regard? 16:43:12 4 A. No. Mr. Prichard said, "We are all human 16:43:17 5 and it is what it is." 16:43:18 6 Q. Do you recall any other response from 16:43:21 7 either one of them? 16:43:22 8 A. No, no, no, because the bottom line is, I 16:43:26 9 am here testifying here, now, and I had no 16:43:31 10 legal, moral or ethical responsibility under 16:43:34 11 those circumstances to be forthright with 16:43:38 12 Paynter or with you. 16:43:39 13 Now I am under oath, a different story. 16:43:44 14 Q. When you were meeting with Ms. Mottinger 16:43:46 15 and the Bennetts, did you feel an ethical or 16:43:50 16 moral obligation to be truthful to them? 16:43:53 17 A. I was honest with them. But I felt no 16:43:57 18 duty. 16:43:58 19 Q. You felt no duty to meet with them. But 16:44:01 20 having decided to meet with them, I take it -- 16:44:03 21 A. I was forthright, but I felt no obligation. 16:44:06 22 Q. You felt no obligation to what? 16:44:08 23 A. To be forthright, but I was. 16:44:12 24 Q. So as it happens, you were forthright? 16:44:15 25 A. I was. But lacking an obligation to do so. 270 16:44:23 1 However, under oath, it is a whole 16:44:25 2 different story, and I have an obligation to be 16:44:28 3 honest and forthright. 16:44:30 4 MR. HILL: Let's take about a 16:44:32 5 three- or four-minute break. Okay? 16:44:35 6 (Thereupon, a recess was taken.) 16:59:07 7 BY MR. HILL: 16:59:16 8 Q. Mr. Hartman, just following up real 16:59:20 9 briefly, you had mentioned right before we broke 16:59:24 10 that you had discussed -- you had told these 16:59:27 11 gentlemen here that you had -- I think your 16:59:32 12 words were that you had tried to mislead 16:59:38 13 Mr. Paynter and Mr. Dunn and myself? 16:59:40 14 A. That's correct. 16:59:41 15 Q. I guess, first of all, did you tell anyone 16:59:44 16 else that? 16:59:48 17 A. I don't recollect. 16:59:50 18 Q. And tell me again, as best you recall, what 17:00:00 19 the response you got from either or both of 17:00:04 20 these gentlemen was. 17:00:05 21 A. I believe Mr. Prichard says, "We are all 17:00:08 22 human and it is what it is." So in other words, 17:00:11 23 it appeared to me he was accepting the situation 17:00:13 24 for what it is. 17:00:15 25 Q. Did Mr. Wille have any comments? 271 17:00:17 1 A. Not to my recollection. 17:00:20 2 Q. Did they inquire of you in which regards 17:00:23 3 you tried to mislead us? 17:00:26 4 A. No. 17:00:26 5 Q. So it was sort of left without any 17:00:28 6 definition to it? 17:00:29 7 A. I think the primary thrust was that I was 17:00:34 8 venting as to the manner in which my character 17:00:44 9 and integrity had been assailed all these years 17:00:47 10 by you defense attorneys. 17:00:51 11 Q. Is "you defense attorneys" all defense 17:00:54 12 attorneys or just Mr. Dunn and myself? 17:00:55 13 A. Between you two, then it goes back to the 17:00:59 14 Public Defenders as well. And it all goes down 17:01:04 15 to the issue, Law School 101, if you can't try 17:01:12 16 the facts, try the police. 17:01:15 17 Q. If you could again, just briefly, explain 17:01:19 18 to me, to us, as to how it was that this effort 17:01:26 19 on your part to mislead or deceive was going to 17:01:29 20 accomplish whatever end it was that you were 17:01:31 21 seeking to accomplish. 17:01:32 22 A. It is real simple. It was clear to me, 17:01:37 23 based on past performance, that ultimately you 17:01:41 24 would get the information from Paynter, who was 17:01:46 25 acting as your agent, and that given that little 272 17:01:49 1 bit of ray of sunshine, you would puff it and 17:01:52 2 spin it and bring it to where it is today. 17:01:55 3 And the ultimate objective on my part was 17:01:58 4 to be able to set the record straight with 17:02:00 5 regard to many of these issues that have been 17:02:03 6 fired by you over the years but have never been 17:02:07 7 the subject of any testimony. 17:02:09 8 Q. So you -- 17:02:10 9 A. I wanted to set the record straight. And 17:02:12 10 by golly, here I am. 17:02:14 11 Q. So you wanted these issues to be aired? 17:02:18 12 A. Yes, yes, I did. 17:02:19 13 Q. And you want them to be aired in a public 17:02:23 14 forum? 17:02:24 15 A. I wanted to set the record straight, the 17:02:28 16 record for this case. 17:02:31 17 Q. And you felt that if you sort of deceived 17:02:36 18 or misled us, it would cause us to do certain 17:02:39 19 things which would lead to where we are today? 17:02:41 20 A. I anticipated that you would head down the 17:02:45 21 garden path into this flight of fancy, and it 17:02:49 22 would lead us ultimately to where we are today, 17:02:51 23 yes. 17:02:52 24 Q. So you are presumably pleased with the 17:02:59 25 outcome today? 273 17:03:00 1 A. I am pleased that I have the opportunity to 17:03:02 2 testify. Now, I am sure that Mr. Paynter will 17:03:05 3 have a copy of the transcript before the ink is 17:03:10 4 dry, and that will be another series of 17:03:14 5 articles. But the realities are, yes, I have 17:03:16 6 the opportunity to set the record straight with 17:03:19 7 regard to this entire case, and the aftermath, 17:03:22 8 actually. 17:03:26 9 Q. The presentation letter that we spoke about 17:03:28 10 earlier -- 17:03:30 11 A. Yes, sir. 17:03:30 12 Q. -- that is Exhibit Number 50, if you want 17:03:33 13 to look at it. You remember testifying about 17:03:52 14 that earlier? 17:03:53 15 A. Yes, I do. 17:03:54 16 Q. And I think your testimony was that the 17:04:01 17 purpose of the presentation report is really to 17:04:03 18 give the prosecutor as much information as 17:04:07 19 possible about the case to prepare him or her as 17:04:13 20 well as you can for trial, is that -- 17:04:15 21 A. Yes, that is the intended purpose. And it 17:04:19 22 is an agency policy to prepare these. 17:04:23 23 And it is my understanding that you have 17:04:26 24 prior experiences as Assistant United States 17:04:29 25 Attorney and, therefore, are likely to have seen 274 17:04:32 1 similar documents from Postal Inspectors in the 17:04:39 2 past. 17:04:40 3 Q. Obviously feel free to look through it. 17:04:42 4 But I would represent to you that there is no 17:04:45 5 information in there with respect to the 17:04:49 6 evidence that you had developed in North 17:04:54 7 Carolina or in Florida, for that matter, 17:04:57 8 regarding the whereabouts of Mr. Gibson. And -- 17:05:03 9 A. That may be. I don't recollect. I 17:05:05 10 certainly can read the 57 pages, if you would 17:05:08 11 like. 17:05:10 12 Q. You are free to do that. But let me ask 17:05:13 13 you, if you accept my representation that it is 17:05:16 14 not there, can you offer some explanation as to 17:05:18 15 why you didn't include any information on that? 17:05:22 16 A. I have no idea. But I will tell you that 17:05:24 17 it was certainly not a willful omission. It 17:05:36 18 seems to me that the primary purpose of 17:05:40 19 preparing this document was to prepare the case 17:05:46 20 against, for trial, John George Spirko, since it 17:06:01 21 was clear that he would be tried reasonably 17:06:04 22 soon. At least that is what I anticipated. 17:06:07 23 Q. Well, the presentation report, first of 17:06:09 24 all, itself is with respect to the prosecutor 17:06:14 25 seeking indictments against both individuals, 275 17:06:18 1 correct? 17:06:18 2 A. That's correct. 17:06:18 3 Q. It is against both? 17:06:19 4 A. That is correct. 17:06:20 5 Q. That is the information that the prosecutor 17:06:22 6 at least principally relied upon in making his 17:06:25 7 determination? 17:06:25 8 A. Right. Upon which the information for the 17:06:31 9 indictment is largely predicated. It should 17:06:36 10 have been complete. And if it is not, then that 17:06:37 11 was an omission on my part, because I prepared 17:06:39 12 the document. 17:06:40 13 Q. And if, in fact, you had the -- you were of 17:06:43 14 the opinion that this was not a prosecutable 17:06:47 15 case against Mr. Gibson, or could not be 17:06:50 16 successfully prosecuted against Mr. Gibson, I 17:06:53 17 think is what you -- 17:06:55 18 A. Yes, I agree. 17:06:56 19 Q. -- you concluded? 17:06:57 20 A. Yes, that was my opinion then. 17:07:01 21 Q. Would it not have behooved you to inform in 17:07:10 22 that document the prosecutor of the pitfalls he 17:07:13 23 would face if he indicted -- 17:07:15 24 A. Absolutely, yes. 17:07:16 25 Q. So that was simply an oversight? 276 17:07:18 1 A. Yes, absolutely. So if I failed to mention 17:07:22 2 that in this 57-page document, it was an 17:07:25 3 omission, and honestly done. 17:07:29 4 Q. And with respect to the case against 17:07:31 5 Mr. Spirko, part of the case against Mr. Spirko 17:07:33 6 was, in fact, the identification by Ms. Seibert 17:07:40 7 coupled with the evidence of the relationship 17:07:42 8 between Seibert and Gibson, correct -- Spirko 17:07:47 9 and Gibson? 17:07:48 10 A. I am sorry, the evidence against -- 17:07:50 11 Q. Part of the evidence against Mr. Spirko was 17:07:52 12 the positive identification by Opal Seibert, 17:07:56 13 coupled with evidence about the Gibson/Spirko 17:08:00 14 friendship? 17:08:00 15 A. I don't know that. I don't know that. 17:08:01 16 Q. As you prepared that, I mean, there is 17:08:06 17 reference in there to Opal Seibert? 17:08:08 18 A. Yes, that they made an identification of 17:08:11 19 Mr. Gibson at the scene. It is just a fact. It 17:08:16 20 is a fact among many facts and information as 17:08:20 21 herein set forth. 17:08:22 22 Q. And the evidence, again, that you had 17:08:25 23 developed, at least, would tend to potentially, 17:08:30 24 at least, call into question the accuracy of 17:08:34 25 that identification? 277 17:08:40 1 A. I am sorry, I -- 17:08:42 2 Q. The evidence -- if, in fact, Mr. Gibson had 17:08:45 3 been in North Carolina, then the person that 17:08:48 4 Ms. Seibert identified could not have been 17:08:51 5 Mr. Gibson; is that correct? 17:08:52 6 A. That is true. No one can be in two places 17:08:56 7 at one time. 17:08:56 8 Q. So, again, that is not evidence -- for 17:08:58 9 whatever reason, it is not evidence that you 17:09:00 10 chose to include in the presentation letter? 17:09:03 11 A. That's right, for whatever reason. And as 17:09:06 12 I say, it was likely an omission, and you would 17:09:10 13 probably find, if you compared the case files 17:09:13 14 with this document, there is much more that was 17:09:15 15 not included, because it was such -- there was 17:09:20 16 such a large volume of documents. 17:09:22 17 Q. Did you ask Margie Gibson, when you 17:09:25 18 interviewed her, whether or not -- where Delaney 17:09:30 19 Gibson was actually on the morning of August the 17:09:32 20 9th? 17:09:37 21 A. I don't remember that. 17:09:40 22 Q. Wouldn't it be almost inconceivable not to 17:09:43 23 ask that question? 17:09:43 24 A. I would think I did, yes. But I don't 17:09:46 25 remember, and I don't remember the response. 278 17:09:47 1 But it would seem that any exchanges might be in 17:09:52 2 the memorandum of interview. 17:09:53 3 Q. If you asked her the question, you believe 17:09:55 4 it would be in the interview? 17:09:56 5 A. I would think. I tried to be pretty 17:09:58 6 faithful when preparing these documents. 17:10:01 7 Q. And when -- you did interview people 17:10:05 8 collaboratively with other investigators? 9 A. Yes. 17:10:08 10 Q. And you took notes and the other 17:10:11 11 investigator took notes. Would it be the normal 17:10:14 12 practice to share the notes with one another 17:10:17 13 before producing a memorandum, an interview 17:10:22 14 memorandum? 17:10:23 15 A. Yes. But when you say "share the notes," 17:10:27 16 normally my custom is to prepare the memorandum 17:10:32 17 from my notes and to include other people's 17:10:35 18 notes with that file, not necessarily review 17:10:37 19 them, just include them. 17:10:39 20 Q. Just attach them? 17:10:40 21 A. That's right. 17:10:40 22 Q. So if they had something in their notes 17:10:43 23 which was either conflicting or in addition to 17:10:45 24 what you had in your notes, it might not make 17:10:48 25 its way into the memorandum itself? 279 17:10:50 1 A. That's correct. And, again, I speak for 17:10:56 2 myself and not other inspectors. 17:11:01 3 MR. HILL: Mr. Hartman, at 17:11:02 4 this time, I don't think I have any further 17:11:04 5 questions. 17:11:06 6 THE WITNESS: Thank you. 17:11:07 7 MR. HILL: Let's go off the 17:11:09 8 record. 17:11:09 9 (Thereupon, a recess was taken.) 17:35:00 10 EXAMINATION 17:35:00 11 BY MR. PRICHARD: 17:35:17 12 Q. Okay. Mr. Hartman, I am going to have some 17:35:19 13 questions for you. The first thing I would like 17:35:24 14 to do is have you look at a copy of Exhibit 91. 17:35:28 15 Do you have a copy of that there? 17:35:29 16 A. Yes, I do. 17:35:30 17 Q. And tell us, again, what is that? 17:35:33 18 A. This is a ten-page document which purports 17:35:40 19 to be a transcript of a conversation to which I 17:35:46 20 was a party in likely April of 2004. 17:35:54 21 Q. Okay. Anyway, Exhibit 91, tell us again 17:36:52 22 how you received Exhibit 91. 17:36:55 23 A. It was given to me by you and Mr. Wille at 17:37:00 24 the Bob Evans Restaurant on a date uncertain to 17:37:03 25 me near Mansfield, Ohio. 280 17:37:06 1 Q. We handed that to you, correct? 17:37:08 2 A. Yes, you did. 17:37:10 3 Q. We had contacted you and asked you to meet 17:37:12 4 with us; is that right? 17:37:14 5 A. That is correct. 17:37:15 6 Q. Do you recall that it was on the same day 17:37:18 7 that we met that we contacted you and asked you 17:37:20 8 to meet? 17:37:21 9 A. Yes. There was a call that I received from 17:37:24 10 Mr. Wille, I believe, requesting a return call, 17:37:28 11 and I did that. And we made arrangements to 17:37:32 12 meet at that location in Mansfield, Ohio, at, I 17:37:35 13 believe, 1:30 p.m. 17:37:37 14 Q. Sounds right to me. And we provided you 17:37:41 15 with this document, correct? 17:37:43 16 A. Yes, you did. 17:37:43 17 Q. Do you recall us telling you when we 17:37:45 18 received this document? 17:37:46 19 A. It is my belief that you had received it 17:37:51 20 that day or the day before. 17:37:54 21 Q. Okay. Did we tell you where we received 17:37:59 22 it, what our source was for receiving this 17:38:01 23 document? 17:38:01 24 A. Yes, you received it, as I know it, from 17:38:04 25 Mr. Theo Bennett. 281 17:38:07 1 Q. Did we tell you if either of us had 17:38:10 2 personally met with Mr. Bennett? 17:38:12 3 A. Yes. 17:38:13 4 Q. Did we tell you when we had met with 17:38:16 5 Mr. Bennett in relationship to when we provided 17:38:18 6 this document? 17:38:18 7 A. I believe you met with him either a day or 17:38:21 8 two days prior. 17:38:24 9 Q. Okay. So it wouldn't surprise you if I 17:38:28 10 told you that at our meeting, we told you that I 17:38:33 11 had met with Mr. Bennett the day previous to our 17:38:36 12 meeting? 17:38:36 13 A. No, that seems to reasonably fit the time 17:38:39 14 frame. 17:38:40 15 Q. Backing up for just one moment, the first 17:38:47 16 contact you had with our office, was that 17:38:50 17 through a contact from Mr. Charles Wille and a 17:38:54 18 George Shaffer from my office, do you recall? 17:38:55 19 A. I believe that is the case, yes. 17:39:05 20 Q. Did Mr. Shaffer tell you his position with 17:39:07 21 my office? 17:39:08 22 A. Yes, he is an investigator with your 17:39:10 23 office. 17:39:11 24 Q. Would that contact have been in early 2005? 17:39:16 25 A. It likely would have. But I don't remember 282 17:39:19 1 the specific date. 17:39:21 2 Q. Do you remember what the subject of that 17:39:23 3 conversation was with you? 17:39:26 4 A. My recollection is that there was 17:39:30 5 discussion about James Kelley and Effie Rader. 17:39:35 6 Q. Were they asking you about James Kelley and 17:39:38 7 Effie Rader? 17:39:42 8 A. Yes. 17:39:42 9 Q. Were they asking you what evidence, if any, 17:39:46 10 supported their involvement in what we referred 17:39:48 11 to today as the Connie Mottinger crime? I am 17:39:51 12 sorry, the Betty Jane Mottinger crime? 17:39:54 13 A. That's correct, yes. 17:40:00 14 Q. Okay. That contact was in early 2005? 17:40:03 15 A. To the best of my recollection. 17:40:09 16 Q. Did you have additional contacts with 17:40:13 17 Mr. Wille or Mr. Shaffer after that telephone 17:40:16 18 conversation? 17:40:16 19 A. I did. 17:40:17 20 Q. When were those, if you recall? 17:40:19 21 A. I don't recall. On one occasion I got a 17:40:23 22 call from Mr. Shaffer referencing what appeared 17:40:33 23 to be lab exhibit numbers. I believe they were 17:40:36 24 audiotapes that had laboratory exhibit numbers 17:40:39 25 on them, and I helped to direct him to a source 283 17:40:43 1 of information in the files, or that I expected 17:40:49 2 to be in the files, which would help him to 17:40:51 3 identify these items. 17:40:52 4 Q. He was looking at some audiotapes and 17:40:54 5 seeking guidance from you as to what they were? 17:40:57 6 A. Yes. He was looking for some manner to 17:41:00 7 identify them. And we were able to ascertain by 17:41:05 8 a discussion of the numbers affixed that they 17:41:09 9 were probably materials that had been sent to 17:41:12 10 the crime lab, and I then suggested that he look 17:41:15 11 for lab reports, which would then identify these 17:41:20 12 objects. Now, the success of this endeavor is 17:41:24 13 unknown to me. 17:41:25 14 Q. Any other conversations after that, before 17:41:29 15 we contacted you on the morning that we met with 17:41:31 16 you? 17:41:34 17 A. Oh, yes. Yes. I had had some 17:41:37 18 conversations with Mr. Wille and also with 17:41:40 19 Mr. Shaffer. 17:41:41 20 Q. And what was the subject of those 17:41:42 21 conversations? 17:41:43 22 A. Well, I remember on one occasion that 17:41:46 23 Mr. Shaffer indicated that he was intending to 17:41:49 24 go to Louisville, Kentucky -- I am sorry, 17:41:56 25 Lexington, Kentucky, and interview Effie Rader. 284 17:42:04 1 Q. Any other conversations after that? 17:42:07 2 A. There were, but I don't remember the 17:42:08 3 content of them. 17:42:09 4 Q. Okay. You indicated to Mr. Hill, I 17:42:18 5 believe, that your best guess as to when we met 17:42:20 6 with you would be late April, as I recall your 17:42:23 7 testimony? 17:42:23 8 A. Likely. 17:42:23 9 Q. Would it be different from your 17:42:25 10 recollection if I were to tell you that it was 17:42:27 11 Tuesday, May 3rd, 2005? 17:42:32 12 A. Looking at this Exhibit 91, I would say it 17:42:38 13 would likely be Tuesday, May 3 or Wednesday, 17:42:41 14 May 4. 17:42:42 15 Q. You are basing that on -- 17:42:44 16 A. I am basing that on the document, on the 17:42:46 17 date on the document. 17:42:47 18 Q. Now, when we handed you this letter, this 17:42:53 19 purported transcript, what did we ask you to do? 17:42:56 20 A. You asked me to read it and review it, 17:43:00 21 which I did. 17:43:01 22 Q. And there are markings on Exhibit 91, 17:43:04 23 correct? 17:43:04 24 A. Yes, there are. 17:43:05 25 Q. You brought that copy with you, correct? 285 17:43:07 1 A. Yes. And that is what is now marked, my 17:43:10 2 copy is now marked as Plaintiff's Exhibit 91. 17:43:14 3 It is my original document containing my 17:43:16 4 original markings. 17:43:18 5 Q. Some of these notes, did you make them in 17:43:22 6 my presence and Mr. Wille's presence at that Bob 17:43:26 7 Evans, on or about May 3rd? 17:43:28 8 A. Yes, I did. 17:43:29 9 Q. Why did you make these notes? Why did you 17:43:31 10 make these circles? 17:43:32 11 A. I was requested to review this document, 17:43:35 12 which I did as quickly as I could, and just 17:43:38 13 circle the areas with which I took exception, 17:43:43 14 and I did that. 17:43:43 15 Q. Many of these -- and correct me if I am 17:43:46 16 wrong -- many of these are areas you were 17:43:49 17 circling to indicate that you were denying the 17:43:53 18 credibility of this purported transcript? 17:43:58 19 A. Yes. I was questioning the accuracy of a 17:44:02 20 document that purported to be a transcript. And 17:44:05 21 it is not that. I am convinced of that. 17:44:09 22 Q. Because you feel there are inaccuracies in 17:44:11 23 this; is that correct? 17:44:12 24 A. Yes. Significant inaccuracies. 17:44:14 25 Q. And so when we met with you, you did tell 286 17:44:17 1 us that there were significant inaccuracies in 17:44:20 2 this purported transcript, correct? 17:44:22 3 A. Yes, I did; yes, I did. 17:44:24 4 Q. And in fact, let me just pull an example 17:44:29 5 from here. I will find one, hold on. 17:44:41 6 A. Okay. 17:44:57 7 Q. Page 5 of 10 on Exhibit 91, the second 17:45:02 8 circled paragraph, if you will, that starts, 17:45:04 9 "Paul: So anyway," that entire paragraph has a 17:45:09 10 square or a circle around it, does it not? 17:45:11 11 A. Yes, it does. 17:45:12 12 Q. Did you indicate to us that you did not, in 17:45:15 13 fact, make those statements in the manner in 17:45:17 14 which they are represented in this purported 17:45:19 15 transcript? 17:45:19 16 A. Yes, I did. 17:45:20 17 Q. All of the other markings on this page 17:45:40 18 where words are circled, did you indicate to us 17:45:42 19 that you disputed in some regard the accuracy of 17:45:45 20 those statements? 17:45:46 21 A. I did, yes. 17:45:47 22 Q. In fact, still on page 5 of 10, the first 17:45:53 23 line that begins with "Paul" that is circled, 17:45:57 24 "It was the prosecutors decision, not mine, 17:45:59 25 because I said 'He didn't do it!' and here is 287 17:46:02 1 the proof." 17:46:04 2 When you originally circled that, did you 17:46:06 3 indicate to us that you disputed the accuracy of 17:46:08 4 that transcription of your words? 17:46:10 5 A. Yes, I did. 17:46:11 6 Q. Okay. And did we talk for some time about 17:46:19 7 the accuracy of your words in this purported 17:46:21 8 transcript? 17:46:22 9 A. We did. 17:46:25 10 Q. After you had made all these indications, 17:46:27 11 did I then ask you what words you would have 17:46:31 12 said that would have caused a person listening 17:46:35 13 to a tape of the conversation to transcribe, if 17:46:40 14 you will, the words that are on this page? Did 17:46:43 15 I ask you to offer that to me? 17:46:45 16 A. Yes, yes. 17:46:46 17 Q. And did we go over the document again? 17:46:49 18 A. We did. 17:46:51 19 Q. And did you offer at that point in time 17:46:59 20 some words that you may have said that could 17:47:01 21 have caused these words to appear in the 17:47:04 22 purported transcript? 17:47:05 23 A. Yes. 17:47:08 24 Q. For some of these large sentences and 17:47:12 25 paragraphs that are circled, were you not able 288 17:47:16 1 to offer words that you may have said that could 17:47:19 2 have caused this? 17:47:20 3 A. Yes. I wasn't able to explain how those 17:47:24 4 words got on the page. 17:47:26 5 Q. Do you recall at that point in time that I 17:47:31 6 said to you a number of times, "Is it possible 17:47:34 7 you could have said these things?" 17:47:36 8 A. Yes, I do remember that. 17:47:37 9 Q. And, in fact, didn't I say that to you 17:47:40 10 numerous times during our conversation? 17:47:42 11 A. Yes, you did. 17:47:43 12 Q. And isn't it true that I asked you numerous 17:47:49 13 times because initially you continued to simply 17:47:53 14 dispute the accuracy, rather than offer words 17:47:56 15 that you could have said? 17:47:57 16 A. Yes, correct. 17:47:58 17 Q. And that went on for some time, correct? 17:48:01 18 A. Yes, it did. 17:48:02 19 Q. And was it at that point in time that I 17:48:05 20 said to you words to the effect of, "We are all 17:48:09 21 human. Is it possible that you could have been 17:48:12 22 speaking inartfully or exaggerating or possibly 17:48:17 23 speaking inaccurately because you were 17:48:19 24 attempting to summarize an event that occurred 17:48:23 25 23 years ago and some subsequent investigation?" 289 17:48:26 1 A. Yes. In fact, I remember specifically 17:48:28 2 making a statement to the effect that certain of 17:48:32 3 these statements were made inartfully. But that 17:48:36 4 was the sum and substance of the exchange, yes. 17:48:39 5 Q. So initially, you did, in fact, deny making 17:48:43 6 all of these statements, correct? 17:48:44 7 A. That's correct. 17:48:45 8 Q. For some of these statements, you attempted 17:48:49 9 to offer different words that you could have 17:48:51 10 said that could have resulted in this so-called 17:48:54 11 inaccurate transcript? 17:48:55 12 A. That's correct. 17:48:55 13 Q. And did we ask you about your conversations 17:49:06 14 with reporter Bob Paynter? 17:49:10 15 A. You did. 17:49:11 16 Q. And some of the representations that he 17:49:14 17 made in the press and that he attributed to you? 17:49:19 18 A. Yes. 17:49:20 19 Q. And isn't it true that you never said the 17:49:26 20 words to us that you misled Bob Paynter, when we 17:49:32 21 met with you at Bob Evans? You never said the 17:49:34 22 words that "I misled Bob Paynter"? 17:49:39 23 A. No, that is not true. I remember stating 17:49:41 24 specifically that I did mislead the reporter and 17:49:44 25 the defense attorneys. You may not have heard 290 17:49:47 1 it, but I said it. 17:49:48 2 Q. Isn't it true that you said to us that you 17:49:54 3 may have told them that Gibson may have been 17:49:58 4 there or he may not have been there, but that 17:50:00 5 you kept coming back to the evidence, and that 17:50:02 6 the evidence supported the conclusion that he 17:50:04 7 may have been there? 17:50:05 8 A. I did say that, yes. 17:50:08 9 Q. And you said that to us repeatedly, did you 17:50:11 10 not? 17:50:11 11 A. Yes. That notwithstanding my opinion, the 17:50:19 12 facts were undisputed, and the fact is that 17:50:22 13 Mr. Gibson had been identified by a witness at 17:50:26 14 the scene, and notwithstanding any alibi for 17:50:33 15 prior time, there was no evidence to dispute the 17:50:37 16 eyewitness identification by Ms. Seibert. 17:50:42 17 Q. Well, as you sit here today, do you have 17:50:47 18 any different knowledge than you did at the time 17:50:50 19 of the trial that Gibson was or was not at that 17:50:55 20 Elgin Post Office the morning of August the 9th, 17:50:58 21 1982? 17:50:59 22 A. I have no different knowledge than I had at 17:51:03 23 the time, with regard to Mr. Gibson. 17:51:05 24 Q. And isn't it true that at our meeting, you 17:51:08 25 said that you kept coming back to the evidence 291 17:51:11 1 in reference to the conversations with 17:51:13 2 Mr. Paynter and with Mr. Hill, that you kept 17:51:16 3 coming back to the evidence? 17:51:17 4 A. That's right, and the facts. 17:51:19 5 Q. And that you may have shared with them your 17:51:22 6 opinion as to whether or not Gibson was involved 17:51:25 7 or not? 17:51:26 8 A. That's correct. 17:51:28 9 Q. But that you kept coming back to the 17:51:30 10 evidence? 17:51:30 11 A. That's right. I kept -- in those 17:51:33 12 conversations, I kept going back to the 17:51:34 13 evidence, and the evidence was the evidence. It 17:51:37 14 remains unchanged, and history cannot be 17:51:41 15 rewritten with regard to the facts and the 17:51:44 16 evidence. 17:51:45 17 Q. And is it your testimony today that you 17:51:47 18 never misled either Mr. Paynter, Mr. Hill or 17:51:50 19 Mr. Dunn as to the evidence in this case? 17:51:54 20 A. That's correct, I never misled either the 17:51:56 21 attorneys, nor Mr. Paynter with regard to the 17:51:59 22 evidence, solely with regard to my own personal 17:52:02 23 opinion and opinions like, "The weather can 17:52:05 24 change at a moment's notice." 17:52:09 25 Q. With your word that you are using today as 292 17:52:11 1 "misleading," and correct me if I am wrong, but 17:52:13 2 does that mean that you, in some way, 17:52:16 3 highlighted your opinion that Mr. Gibson was not 17:52:21 4 involved? 17:52:22 5 A. Yes, I did. That is exactly what it means. 17:52:24 6 Q. You highlighted your opinion? 17:52:26 7 A. Yes, my opinion. And knowing full well -- 17:52:33 8 anticipating that in subsequent legal action, my 17:52:40 9 opinion would be asserted as if facts. 17:52:45 10 Q. Now, you are losing me, because I am not 17:52:48 11 understanding. You just said you didn't 17:52:52 12 misrepresent any of the facts, correct? 17:52:54 13 A. Correct. 17:52:54 14 Q. And when we met, you told us that you kept 17:52:57 15 coming back to the facts of the case, correct? 17:52:59 16 A. That's correct. 17:53:00 17 Q. Where, in your use of the word "misleading" 17:53:10 18 does misleading on the facts come into play? 17:53:13 19 A. There is no misleading on the facts; it is 17:53:15 20 misleading with regard to my opinion. 17:53:18 21 Q. How is it misleading with regard to your 17:53:21 22 opinion? 17:53:21 23 A. Largely because I articulated an opinion to 17:53:27 24 Mr. Paynter that I wasn't sure from the outset, 17:53:34 25 or I doubted from the outset that Mr. Gibson was 293 17:53:37 1 involved. That varies from the facts, and the 17:53:41 2 fact is that Mr. Gibson was identified by a 17:53:46 3 witness. That evidence was never refuted by any 17:53:49 4 other evidence. 17:53:50 5 There was a positive -- I am sorry, there 17:53:56 6 was an alibi established by me for a time prior 17:54:02 7 to the homicide. But at the same time, 17:54:07 8 notwithstanding all those facts, there was 17:54:12 9 nothing of which I was aware at any time during 17:54:15 10 the 20-some years that this is going on which 17:54:21 11 would suggest that Delaney Gibson was positively 17:54:24 12 anywhere but the Elgin, Ohio Post Office. 17:54:28 13 Q. So, in fact, when you used the word 17:54:32 14 "misleading," you were speaking of highlighting 17:54:34 15 your opinion or emphasizing your opinion to 17:54:36 16 these gentlemen? 17:54:37 17 A. That's correct. 17:54:38 18 Q. Meaning Mr. Paynter, Mr. Hill and Mr. Dunn? 17:54:41 19 A. That's correct. 17:54:41 20 Q. So your testimony is today that you never 17:54:44 21 lied to them? 17:54:45 22 A. That's right, I did not misstate the facts. 17:54:47 23 Q. And you never told me or Mr. Wille that you 17:54:50 24 lied to them; is that correct? 17:54:51 25 A. That's correct. 294 17:54:52 1 Q. In fact, you specifically continuously 17:55:04 2 indicated to Mr. Wille and myself when we met 17:55:07 3 May 3rd at Bob Evans in Mansfield that you were 17:55:11 4 truthful to them and you kept coming back to the 17:55:14 5 facts of the case? 17:55:15 6 A. That's correct. 17:55:20 7 Q. And is your testimony here as to the facts 17:55:22 8 of the case truthful today? 17:55:24 9 A. Yes. 17:55:26 10 Q. So when I say to you that you never told us 17:55:30 11 that you misled Mr. Paynter, Mr. Hill or 17:55:34 12 Mr. Dunn as to the facts of the case, you never 17:55:37 13 told us that you misled them on any fact of the 17:55:40 14 case when we met, that is true? 17:55:41 15 A. That is correct, absolutely correct. 17:55:52 16 Q. Tell me exactly how the use or emphasis of 17:55:59 17 your opinion is misleading. I am not following 17:56:02 18 your use of that word. 17:56:06 19 A. When I stated that I thought that Gibson 17:56:12 20 had nothing to do with this from the outset, 17:56:16 21 that was not an accurate statement of my 17:56:21 22 opinion. 17:56:21 23 Q. And what is an accurate statement of your 17:56:23 24 opinion? 17:56:24 25 A. An accurate statement of my opinion is that 295 17:56:28 1 Mr. Gibson, Mr. Spirko, Mr. Kelley and Ms. Rader 17:56:33 2 committed this offense. That is my opinion. 17:56:36 3 Q. When did you develop that opinion? 17:56:38 4 A. That opinion has been developed over the 17:56:41 5 course of time and through the past -- the prior 17:56:46 6 18 years from 1984 to the year 2000. 17:56:51 7 Q. When did you arrive at the name of 17:56:53 8 Mr. Kelley or Ms. Rader, if you recall? 17:56:57 9 A. That name came to me, I believe, in about 17:57:01 10 1992. 17:57:03 11 Q. It was not available at the time of trial? 17:57:05 12 A. No, it was not known to me then. 17:57:07 13 Q. Okay. We will come back to that. And your 17:57:17 14 goal, if I understand you correctly, as to 17:57:19 15 highlighting this opinion, or postdating it, if 17:57:24 16 you will, back to the time of the original trial 17:57:27 17 for Mr. Spirko, your goal was that you wanted 17:57:30 18 your chance to speak publicly? 17:57:32 19 A. I wanted to speak on the record. I wanted 17:57:35 20 to testify as to what I knew with regard to the 17:57:40 21 issues involving Delaney Gibson, Junior, because 17:57:44 22 over the years there have been many, many 17:57:46 23 assertions made by the Defendant through his 17:57:51 24 counsel, none of which were matters of testimony 17:57:57 25 and not on the record. 296 17:57:58 1 Q. And I believe you stated earlier you felt 17:58:00 2 that some of those statements impugned your 17:58:05 3 professional integrity? 17:58:07 4 A. Absolutely. 17:58:08 5 Q. They made you angry? 17:58:09 6 A. Oh, yes, they did. And more importantly, 17:58:13 7 particularly when they were printed in these 17:58:15 8 various publications, compliments of the 17:58:18 9 Defendant's attorneys, it distressed my family, 17:58:20 10 and that made me angry. 17:58:22 11 Q. And it still makes you angry today? 17:58:25 12 A. Yes, it does. 17:58:29 13 Q. Were you also angry because Mr. Paynter 17:58:34 14 visited your home without being invited? 17:58:39 15 A. I was angry to the extent that he attempted 17:58:46 16 in his own simple way to interrogate me with 17:58:53 17 regard to the facts, and it was clear that he 17:58:57 18 had not been -- this was not an impartial review 17:59:01 19 of the facts, and it was clear that he had an 17:59:04 20 agenda; and when there came a time that he 17:59:09 21 started this line of accusatory questions, I 17:59:14 22 decided spontaneously, it was time to take him 17:59:18 23 to the cleaners, and I did so. 17:59:20 24 And if you listen to the tape, as I did 17:59:23 25 there, it certainly seems that I was composed 297 17:59:25 1 throughout. So I didn't show anger, but I took 17:59:30 2 advantage of an opportunity given to me. 17:59:32 3 Q. Did Mr. Paynter also bring up the subject 17:59:39 4 of your notes and the manner in which they were 17:59:41 5 written? 17:59:41 6 A. Yes, he did. 17:59:42 7 Q. And he had a copy of your notes? 17:59:44 8 A. Oh, yes, he had copies of my field notes, 17:59:50 9 which were part of the case record, yes. 17:59:52 10 Q. Are you aware how he got those? 17:59:57 11 A. Well, I am not aware, but he didn't get 18:00:00 12 them from me. And he didn't get them from the 18:00:04 13 Government. 18:00:04 14 Q. What comments as to your notes did 18:00:06 15 Mr. Paynter make? 18:00:07 16 A. Well, Mr. Paynter, assuming the role of 18:00:12 17 Sherlock Holmes, looked at my notes and insisted 18:00:16 18 that about three or four pages of these notes 18:00:19 19 were altered, and insisted that because they 18:00:25 20 were written in both cursive and block printing 18:00:29 21 style, that they were clearly altered, which was 18:00:32 22 an absurd representation. 18:00:37 23 So finally, after about the third or fourth 18:00:39 24 of these notes -- and I asked him specifically, 18:00:44 25 "What is your basis for making this assertion?" 298 18:00:46 1 His response was, "Well, I talked to handwriting 18:00:52 2 examiners, and they assured me that this is 18:00:55 3 written in a different style and in a different 18:00:59 4 fashion and there is no doubt that these were 18:01:02 5 altered," as I recollect. 18:01:04 6 So I suggested to Mr. Paynter that if he 18:01:06 7 had a handwriting expert who was prepared to 18:01:10 8 testify that these notes were altered, then he 18:01:12 9 should so bring that person forward. 18:01:15 10 Q. And he accused you personally of forging 18:01:19 11 portions of these notes? 18:01:20 12 A. Of altering the notes, yes. 18:01:23 13 Q. And he also accused you of hiding the 18:01:26 14 photographs of Mr. Gibson? 18:01:28 15 A. Yes, yes, yes, yes. 18:01:29 16 Q. And did all that make you angry? 18:01:31 17 A. Oh, yes. 18:01:32 18 Q. Now, when Mr. Wille and I met with you, 18:01:35 19 coming back to that, did you, in fact, tell us 18:01:38 20 that you never made statements to Mr. Paynter, 18:01:41 21 Mr. Hill or Mr. Dunn that Gibson was not 18:01:46 22 involved, was factually not involved? 18:01:49 23 A. That is correct. 18:01:50 24 Q. And you also told us that you did not tell 18:01:54 25 him that Gibson could not have been involved? 299 18:01:56 1 A. That's correct. 18:01:57 2 Q. And you also told us, you denied to us that 18:02:03 3 you made the statement to them that it defied 18:02:06 4 common sense that Gibson would have been 18:02:08 5 involved? 18:02:08 6 A. That's correct. 18:02:09 7 Q. Okay. And did you also tell us that you 18:02:21 8 inferred in conversations with Mr. Hill, 18:02:25 9 Mr. Dunn and Mr. Paynter that there could have 18:02:27 10 been other persons involved in the crime? 18:02:29 11 A. Yes. 18:02:31 12 Q. And you sort of inferred that repeatedly to 18:02:34 13 them? 18:02:35 14 A. Yes. But I refused to name any such 18:02:39 15 persons. 18:02:40 16 Q. And you, in fact, told us that when you met 18:02:43 17 with us on May 3rd, correct? 18:02:46 18 A. That is correct. 18:03:00 19 Q. And you told us that one of the persons you 18:03:03 20 were referring to that you believe now could 18:03:05 21 have possibly been involved was James Clark 18:03:07 22 Kelley? 18:03:08 23 A. That's correct. 18:03:09 24 Q. Did either Mr. Hill or Mr. Dunn mention the 18:03:14 25 name James Clark Kelley to you? 300 18:03:17 1 A. No. 18:03:18 2 Q. Did Mr. Paynter mention that name to you? 18:03:20 3 A. He did not. 18:03:21 4 Q. Okay. I am going to refer you to your 18:03:47 5 affidavit, I believe it is Exhibit 3. 18:03:55 6 MR. DUNN: I will put it in 18:03:56 7 front of him. 18:03:57 8 THE WITNESS: Thank you. 18:03:58 9 BY MR. PRICHARD: 18:03:59 10 Q. Okay. Mr. Hill went over with you in great 18:04:05 11 detail portions of your affidavit? 18:04:08 12 A. Yes, sir. 18:04:09 13 Q. I want to hit on just a couple of them. 18:04:13 14 Paragraph 5, it is on page 2, that first 18:04:26 15 sentence of paragraph 5, is that true and 18:04:31 16 accurate? As you sit here today, is that what 18:04:34 17 you would testify to? 18:04:35 18 A. Yes, sir, it is true and accurate. 18:04:37 19 Q. The next morning -- or, I am sorry, the 18:04:45 20 second sentence that begins, "I believed prior 18:04:49 21 to Spirko's trial," and ends with the phrase "on 18:04:51 22 the morning of August 9th, 1982," is that an 18:04:55 23 accurate statement? 18:04:58 24 A. It is an accurate statement, yes, in my 18:05:01 25 opinion. 301 18:05:02 1 Q. And the last sentence that you have not 18:05:05 2 developed any information or evidence during 18:05:07 3 your years of investigation that would 18:05:10 4 contradict the eyewitness testimony? 18:05:13 5 A. That is absolutely true. 18:05:14 6 Q. So you would confirm that as you sit here 18:05:20 7 today? 18:05:20 8 A. I would. 18:05:21 9 Q. You executed this affidavit, did you not, 18:05:23 10 on May the 1st, 2005? 18:05:26 11 A. Yes, I did. 18:05:27 12 Q. Do you recall what day of the week that 18:05:29 13 was? 18:05:31 14 A. I think it was a Sunday. 18:05:35 15 Q. You are correct. At the time you executed 18:05:39 16 this affidavit, you had not seen a copy of the 18:05:42 17 purported transcript of Connie Mottinger, 18:05:44 18 correct? 18:05:44 19 A. I had not. 18:05:46 20 Q. One second, please. I want to refer you 18:06:13 21 now to paragraph 4 on that same page, the 18:06:16 22 next-to-the-last sentence. It states, "That 18:06:21 23 evidence consisted primarily of statements by 18:06:24 24 Mr. Michael Bentley, to the effect that Gibson 18:06:27 25 was with him and his wife in North Carolina on 302 18:06:29 1 that weekend, and that pictures of Gibson were 18:06:33 2 taken." 18:06:34 3 Now, correct me if I am wrong, but does 18:06:36 4 your use of the word "primarily" indicate, 18:06:39 5 without the testimony of Mr. Bentley, the 18:06:44 6 so-called alibi for the day before would not 18:06:47 7 exist? 18:06:48 8 A. Yes, it falls apart without his testimony. 18:06:51 9 Q. So there was other information that you 18:06:54 10 gathered as to that weekend, but that it all 18:06:57 11 centered around the testimony of either Michael 18:07:00 12 Bentley or Margie Gibson; is that correct? 18:07:02 13 A. That's correct. 18:07:03 14 Q. I want to come back to, logically it 18:07:13 15 follows next for me to ask you about the 18:07:15 16 eyewitness identification that Opal Seibert 18:07:20 17 made. I believe you testified that you never 18:07:22 18 spoke to Opal Seibert; is that correct? 18:07:25 19 A. That's correct. 18:07:25 20 Q. You never met the woman? 18:07:28 21 A. I never met her. 18:07:29 22 Q. You testified you were not present when the 18:07:31 23 photo array was shown; is that correct? 18:07:35 24 A. That's correct. 18:07:35 25 Q. I am going to hand you state's exhibits 303 18:07:38 1 previously marked A, B, C and D. Take a look at 18:07:49 2 all those, if you will. 18:07:51 3 (Handing.) 18:08:17 4 A. (Witness complies with the request.) 18:08:17 5 Q. Okay. You have now looked at all of them? 18:08:19 6 A. I have looked at these, yes. 18:08:20 7 Q. When have you looked at those? 18:08:22 8 A. Right now. This is the first time, to my 18:08:25 9 recollection, I have ever seen these. 18:08:26 10 Q. All right. Exhibit A is two pages, 18:08:30 11 correct? 18:08:33 12 A. It is, yes. 18:08:35 13 Q. And do you recognize anyone on those two 18:08:38 14 pages? For the record, there are four 18:08:42 15 photographs of individuals, of men, on the first 18:08:44 16 page, and four photographs on the second page; 18:08:46 17 is that right? 18:08:46 18 A. Yes, for a total of eight photographs, and 18:08:49 19 I recognize an individual in the photograph 18:08:52 20 numbered 3 as Delaney Gibson, Junior. 18:08:55 21 Q. And the same with Exhibit B, could you look 18:08:58 22 at that? And that is front and side photos of 18:09:02 23 four individuals on the first page and the same 18:09:06 24 with four likewise male individuals on the 18:09:10 25 second page? 304 18:09:11 1 A. Yes, I have examined these. 18:09:15 2 Q. Do you recognize anybody on either of those 18:09:17 3 two pages? 18:09:17 4 A. The only person whom I recognize from this 18:09:21 5 sterling cast of characters is John Spirko 18:09:24 6 depicted in what appears to be a photograph -- 18:09:30 7 it should be number 7, I believe. But his 18:09:35 8 photograph appears on the lower left of page 2. 18:09:40 9 Q. Page -- 18:09:41 10 A. Page 2 of this exhibit. 18:09:43 11 Q. Yes, sir. Item C is a single page, four 18:09:49 12 different individuals pictured. I don't know if 18:09:54 13 you recognize anyone on that page? 18:09:56 14 A. I don't recognize any of these people. 18:09:57 15 Q. Item D, same thing? 18:10:04 16 A. I recognize one person here. 18:10:07 17 Q. Who is that? 18:10:08 18 A. This individual on the photo marked 4 I 18:10:14 19 believe is an individual named Gilley Woods. 18:10:18 20 Q. Okay. Were you aware that Opal Seibert was 18:10:24 21 shown all 24 of those photographs at the time 18:10:27 22 that they selected Delaney Gibson from that 18:10:30 23 exhibit? 18:10:30 24 A. I was not, I was not. 18:10:32 25 Q. And again, you were not present when she 305 18:10:34 1 did select him, were you? 18:10:35 2 A. That's correct, I was not. And no one ever 18:10:38 3 explained to me what had occurred when the photo 18:10:40 4 array or arrays were shown to her. 18:10:44 5 Q. Were you aware whether or not Mark Lewis 18:10:48 6 was shown all 24 of those photographs when he 18:10:52 7 picked out John Spirko from Exhibit B? 18:10:55 8 A. I was not aware of that. I did not 18:10:57 9 participate in any of those activities. 18:11:01 10 Q. Were you aware of any other particulars as 18:11:03 11 to Ms. Seibert's identification of Mr. Gibson? 18:11:09 12 A. No, none. The only information that I 18:11:12 13 received from my peers was that Ms. Seibert had 18:11:19 14 made a positive identification. That is all I 18:11:22 15 knew. I don't recollect specifically who even 18:11:25 16 displayed the photos. 18:11:26 17 Q. And were you aware how long Ms. Seibert was 18:11:32 18 able to view the person that she observed on 18:11:35 19 August 9th, 1982? 18:11:43 20 A. I am not certain, but I believe it was for 18:11:45 21 a reasonably prolonged period of time. And I 18:11:49 22 say that because, as I recollect, she had been 18:11:53 23 seated on her front porch drinking coffee, and 18:11:57 24 her home was located cater-corner, across the 18:12:00 25 street from the post office. And she and her 306 18:12:03 1 husband, as I recollect, were seated on the 18:12:05 2 front porch and they watched a person standing 18:12:08 3 by this automobile parked in front of the post 18:12:11 4 office. 18:12:13 5 Q. Did you observe her testimony at trial? 18:12:15 6 A. I did not. I was subject to the separation 18:12:20 7 of witnesses and, therefore, I was outside the 18:12:24 8 courtroom. I did not observe the testimony. 18:12:27 9 I don't know, in fact, I am not even sure 18:12:29 10 if she testified, to be perfectly honest. 18:12:32 11 Q. As you sit here today, do you recall 18:12:34 12 whether or not you wrote any of the particulars 18:12:36 13 of her identification in the presentation 18:12:38 14 letter? 18:12:40 15 A. I might likely have included that 18:12:43 16 information, which would have been obtained from 18:12:45 17 a file. 18:12:46 18 Q. Before today, when was the last time you 18:12:49 19 reviewed that presentation letter? 18:12:50 20 A. Oh, back in 1984. 18:12:54 21 Q. In '84? 18:12:56 22 A. Yes. 18:12:56 23 Q. Yet you testified you developed the name 18:12:59 24 James Clark Kelley in the '90s, correct? 18:13:02 25 A. That's correct. 307 18:13:03 1 Q. Were you aware of other particulars 18:13:07 2 Ms. Seibert made, offered as to the identity of 18:13:10 3 the individual or the appearance of the 18:13:12 4 individual that she saw? 18:13:13 5 A. No. 18:13:14 6 Q. You were aware, however, of the status of 18:13:19 7 Mr. Gibson as a migrant worker, correct? 18:13:24 8 A. I eventually came to learn that, yes. 18:13:27 9 Q. And were you aware whether or not he wore 18:13:31 10 gloves when he worked picking whatever he picked 18:13:35 11 as a migrant worker? 18:13:37 12 A. It is my recollection that he did wear 18:13:39 13 gloves and he was picking tomatoes largely in 18:13:43 14 the Carolinas. 18:13:45 15 Q. And do you recall if his wearing gloves 18:13:49 16 when he was picking tomatoes affected his 18:13:52 17 appearance at the time of his arrest, so that 18:13:54 18 his arms were tanned but his hands were white? 18:13:59 19 A. That's correct. That is my recollection of 18:14:01 20 the description in part. 18:14:02 21 Q. And do you recall that Ms. Seibert stated 18:14:07 22 this to investigators when she gave them the 18:14:12 23 description of the individual that she saw? 18:14:14 24 A. I believe that she did, yes. 18:14:15 25 Q. And why do you say that? 308 18:14:17 1 A. Because it seems to me, as we speak now, 18:14:20 2 there was an issue about tanned arms and white 18:14:23 3 hands. In other words, my recollection has just 18:14:29 4 been refreshed by your question. 18:14:31 5 MR. PRICHARD: Okay. Off the 18:14:32 6 record for one second. 18:14:33 7 (Thereupon, a discussion was held off 18:14:53 8 the record.) 18:14:53 9 BY MR. PRICHARD: 18:14:54 10 Q. I am going to refer you to Exhibit 50, and 18:14:56 11 if you would, look at pages 47 and 48. There is 18:14:59 12 a summary of the purported interviews or words 18:15:04 13 of Opal Seibert. 18:15:07 14 A. All right. Just to correct this record, 18:15:10 15 that section of the presentation letter 18:15:12 16 addresses what Ms. Seibert would likely testify, 18:15:17 17 if called as a witness. 18:15:19 18 Q. Okay. 18:15:20 19 A. So this is her anticipated testimony. 18:15:22 20 Q. Who would have prepared this portion as to 18:15:24 21 Opal Seibert? 18:15:25 22 A. I did. 18:15:26 23 Q. Mr. Strausbaugh's name on the back of this 18:15:29 24 document, is that simply for his approval as 18:15:32 25 your supervisor? 309 18:15:33 1 A. It is a courtesy, because he was the case 18:15:35 2 agent. 18:15:36 3 Q. Okay. Does that refresh your recollection? 18:17:02 4 A. Yes, I have reviewed this. I have read 18:17:04 5 this anticipated testimony of Opal Seibert. 18:17:10 6 Q. And the last time you reviewed this was in 18:17:15 7 1984? 18:17:16 8 A. 1984. 18:17:17 9 Q. And do you see the portion here where she 18:17:24 10 described the man as a white male, approximately 18:17:27 11 six foot one, approximately 45 years old with a 18:17:30 12 muscular build, wearing wire rimmed glasses, 18:17:34 13 possibly sunglasses? 18:17:35 14 A. I do. 18:17:38 15 Q. She indicates that this man appeared 18:17:40 16 nervous in the next sentence? 18:17:42 17 A. Correct. 18:17:43 18 Q. Do you see at the bottom where it is 18:17:45 19 indicated that she was shown three photo spreads 18:17:48 20 of eight photos each and selected the photo of 18:17:52 21 Delaney Gibson, Junior? 18:17:54 22 A. Yes. 18:17:58 23 Q. Let me refer you back up, if you will, as 18:18:00 24 to the time that she indicates that she observed 18:18:03 25 Ms. Mottinger arriving at work. 310 18:18:05 1 A. Yes. 18:18:05 2 Q. What time is that? 18:18:07 3 A. At approximately 8:20 in the morning. 18:18:09 4 Q. So it was not at 7 a.m.? 18:18:13 5 A. No. 18:18:14 6 Q. And if you indicated in any documents that 18:18:18 7 you have seen today that it was 7 a.m., that 18:18:21 8 would be incorrect? 18:18:22 9 A. Yes, I would have misspoke. 18:18:24 10 Q. Over the passage of time, you forgot some 18:18:27 11 of these details? 18:18:28 12 A. Yes, it has been 20-some years and it is 18:18:33 13 difficult to retain some of this information. I 18:18:35 14 have forgotten much, yes. 18:18:38 15 Q. At the time of trial, you had no reason to 18:18:39 16 doubt what other investigators had indicated to 18:18:42 17 you Ms. Seibert had said to them? 18:18:44 18 A. None whatsoever. In fact, I trusted them 18:18:46 19 completely. 18:18:46 20 Q. You had no reason to believe that her 18:18:48 21 testimony would in any way be false? 18:18:50 22 A. That's correct. 18:18:51 23 Q. Or that her identification of Delaney 18:18:53 24 Gibson was in any way false? 18:18:55 25 A. No, no. 311 18:18:55 1 Q. And as we sit here today, 23 years later, 18:19:00 2 and you having done additional investigation on 18:19:03 3 the case, is there anything that you can offer 18:19:05 4 to us or to Judge Carr that indicates that Opal 18:19:09 5 Seibert's testimony was not true at this trial? 18:19:12 6 A. In all of the intervening years, until the 18:19:14 7 year 2000, when I retired, I never developed any 18:19:18 8 evidence which would contradict that 18:19:21 9 identification, despite the fact that I spent 18:19:27 10 many, many hours and many months and many years 18:19:29 11 working on this case. 18:19:30 12 Q. And if likewise that same evidence was 18:19:35 13 admitted in Federal Court before Judge Carr, is 18:19:40 14 anything as to that evidence or any other 18:19:42 15 evidence that you are aware of, is any of that 18:19:47 16 false? 18:19:47 17 A. None, none. 18:19:53 18 Q. As to Mr. Gibson, did you ever speak to 18:19:57 19 Mr. Gibson? 18:19:58 20 A. No, I have never spoken directly with 18:20:01 21 Mr. Gibson. I have never seen the man. 18:20:03 22 Q. Are you aware that investigators on the 18:20:09 23 task force interviewed Mr. Gibson? 18:20:11 24 A. I am aware of that, yes. 18:20:13 25 Q. Do you know how many times they interviewed 312 18:20:15 1 Mr. Gibson? 18:20:15 2 A. I do not. 18:20:17 3 Q. Before the trial and before your testimony 18:20:19 4 at trial, would you have reviewed summaries of 18:20:24 5 their investigative efforts in regard to 18:20:26 6 Mr. Gibson? 18:20:27 7 A. I would have reviewed those documents in 18:20:30 8 preparation of this presentation letter. 18:20:40 9 Q. I believe you have indicated, both today 18:20:42 10 and in conversations with Mr. Paynter, Mr. Hill 18:20:45 11 and Mr. Dunn, that there are portions of, let's 18:20:52 12 call it, Mr. Gibson's representation of August 18:20:56 13 7th and 8th that you believe? 18:21:00 14 A. Yes, I do. And portions that are not 18:21:05 15 necessarily credible. 18:21:07 16 Q. Were you aware that Mr. Gibson was 18:21:13 17 interviewed on April 22nd, 1983? 18:21:17 18 A. I have no independent recollection of that. 18:21:20 19 Q. And are you aware that he was interviewed 18:21:23 20 one time previous to April 22nd, 1983, by 18:21:30 21 investigators of the task force? 18:21:32 22 A. I have no independent recollection of that. 18:21:34 23 I knew that he had been interviewed. 18:21:37 24 Specifically when, I don't recollect. Nor do I 18:21:39 25 know who conducted the interviews. 313 18:21:41 1 My recollection is that he was interviewed 18:21:44 2 at the sheriff's office in Asheville, North 18:21:48 3 Carolina. That is all I recollect. 18:21:51 4 Q. And you would have reviewed a summary of 18:21:53 5 that interview? 18:21:54 6 A. I would have, in preparation of this 18:21:57 7 document. 18:21:58 8 Q. This document, meaning Exhibit 50? 18:22:01 9 A. Exhibit 50, yes. 18:22:03 10 Q. The presentation letter? 18:22:04 11 A. That's correct. 18:22:05 12 Q. When would have been the last time that you 18:22:07 13 reviewed a summary of that interview with 18:22:10 14 Mr. Gibson? 18:22:11 15 A. Prior to September 12 of 1983. 18:22:13 16 Q. So since 1983, you wouldn't have looked at 18:22:15 17 a summary of the interviews with Mr. Gibson? 18:22:18 18 A. That is correct. 18:22:19 19 Q. And you never talked to him yourself? 18:22:20 20 A. That's correct. 18:22:21 21 Q. Okay. I don't know if you have it in front 18:22:26 22 of you, but I want you to look at Exhibit 57. 18:22:32 23 MR. DUNN: I can put it in 18:22:34 24 front of him. 18:22:42 25 MR. PRICHARD: Thank you, 314 18:22:43 1 Mr. Dunn. 18:22:45 2 BY MR. PRICHARD: 18:22:45 3 Q. Okay. Were you shown this document earlier 18:22:47 4 today? 18:22:49 5 A. I don't believe so. 18:22:50 6 Q. Okay. What is this document? 18:22:53 7 A. This document is a memorandum of interview, 18:23:00 8 of the interview of Delaney Gibson, which 18:23:03 9 occurred on April 22, 1983, at the Buncombe 18:23:09 10 County Jail in Asheville, North Carolina. 18:23:12 11 Q. Does this document indicate who may have 18:23:15 12 interviewed Mr. Gibson? 18:23:16 13 A. Yes, he was interviewed by Postal 18:23:20 14 Inspectors Gary Roberts and Thomas Strausbaugh. 18:23:32 15 Q. And also whom? 18:23:33 16 A. And also Lieutenant Bruce Showwater, from 18:23:40 17 the Van Wert County Sheriff's Office. 18:23:48 18 Q. This interview took place when? 18:23:50 19 A. This interview occurred on April 22 of 18:23:55 20 1983. 18:23:56 21 Q. I would like to refer you to the first 18:23:58 22 sentence. Does it indicate whether or not 18:24:00 23 Mr. Gibson was interviewed a time before April 18:24:02 24 22nd, 1982? 18:24:05 25 A. Yes. And the first sentence in this 315 18:24:08 1 particular document, Exhibit 57, states that 18:24:11 2 Mr. Gibson was interviewed a second time on 18:24:13 3 April 22 of 1983. 18:24:15 4 Q. Okay. I want you to turn now to page 3. 18:24:21 5 The stamp on the top should read 8871. 18:24:24 6 A. Yes, sir, I have it. 18:24:25 7 Q. I want you to read to yourself paragraph 3 18:24:28 8 on that page that begins, "Mr. Gibson stated." 18:24:31 9 A. All right. I have completed reading it, 18:25:07 10 yes. 18:25:07 11 Q. Now, in that paragraph that I asked you to 18:25:10 12 read, do you read anywhere there that Mr. Gibson 18:25:12 13 indicates his whereabouts on August 7th, 8th or 18:25:16 14 9th of 1982? 18:25:18 15 A. He does not. He states his whereabouts on 18:25:20 16 or about July the 4th and shortly thereafter of 18:25:24 17 1982. 18:25:26 18 Q. And do you read anywhere in there that 18:25:28 19 Mr. Gibson states anything about a visit from 18:25:30 20 the Bentleys? 18:25:31 21 A. He does not. He references a visit from 18:25:35 22 Bobbie, B-o-b-b-i-e, Eversole, E-v-e-r-s-o-l-e. 18:25:44 23 Q. And you have investigated quite a few 18:25:48 24 criminal cases in your career, correct? 18:25:49 25 A. I have investigated many criminal cases in 316 18:25:52 1 my career, yes. 18:25:54 2 Q. I imagine you have been presented with 18:25:56 3 alibis in the past; is that correct? 18:25:58 4 A. I have been, yes. 18:26:00 5 Q. And is it your experience in interviewing 18:26:02 6 criminal Defendants that when they offer an 18:26:05 7 alibi that they can't even recall the alibi when 18:26:08 8 they are interviewed on two separate occasions 18:26:10 9 by investigators? 18:26:12 10 A. Yes. 18:26:12 11 Q. That they can't recall their own alibi? 18:26:15 12 A. They can't remember the specifics of the 18:26:17 13 alibi, yes. 18:26:18 14 Q. And do you recall any vague references to 18:26:21 15 an alibi in paragraph 3 there? 18:26:30 16 A. It is clear that he puts himself in the 18:26:33 17 presence of Bobbie and Dennis Eversole in July 18:26:41 18 and then he claims that his employer threatened 18:26:45 19 to run him off if he did not return to work. 18:26:48 20 And he claims that someone in the Burress family 18:26:52 21 would remember this particular incident in July. 18:26:55 22 So he accounts for his whereabouts or 18:26:57 23 attempts to account for his whereabouts in July 18:27:00 24 of 1982, prior to the date of the homicide. 18:27:03 25 Q. And in fact, he even mentions a specific 317 18:27:06 1 date, July 4th, 1982, does he not? 18:27:08 2 A. That's correct, yes. 18:27:09 3 Q. Does he mention any other specific dates? 18:27:11 4 A. No. 18:27:12 5 Q. You can turn to page 2, if you will, and 18:27:15 6 see if Mr. Gibson indicates any other specific 18:27:17 7 dates on page 2. 18:27:36 8 (Witness complies with the request.) 18:27:50 9 A. I see no references to any specific dates. 18:27:53 10 Q. And same with page 1? 18:28:00 11 A. The same with page 1, yes. 18:28:03 12 Q. Were you aware that the first time a visit 18:28:09 13 from the Bentleys was raised was when Margie 18:28:15 14 Gibson represented that to you? 18:28:17 15 A. That's correct. 18:28:17 16 Q. Were you aware that Mr. Gibson never 18:28:20 17 provided this alibi for himself? 18:28:22 18 A. I am not aware that he ever produced that 18:28:25 19 information to anyone else. 18:28:26 20 Q. Nevertheless, he was interviewed twice by 18:28:28 21 investigators on the task force; is that 18:28:30 22 correct? 18:28:30 23 A. That's correct. Can I run up to the rest 18:28:37 24 room here briefly? 18:28:38 25 Q. Yes, at any time. 318 18:28:40 1 A. Thank you. 18:28:46 2 (Thereupon, a recess was taken.) 18:35:25 3 BY MR. PRICHARD: 18:35:33 4 Q. Is your recollection now refreshed that 18:35:35 5 Delaney Gibson never offered this so-called 18:35:38 6 alibi to any investigator on the task force? 18:35:41 7 A. That's correct. A review of those 18:35:42 8 documents discloses that he did not offer an 18:35:45 9 alibi to the officers with regard to the date of 18:35:47 10 August the 9th, 1982. 18:35:50 11 Q. And he was -- well, he didn't offer any 18:35:53 12 statements as to his whereabouts on August the 18:35:55 13 7th or the 8th of 1982 either, did he? 18:35:58 14 A. That's correct, he did not. 18:36:00 15 Q. No photographs? 18:36:01 16 A. He offered nothing. 18:36:03 17 Q. No visit from family members? 18:36:05 18 A. Correct. 18:36:06 19 Q. The only visits he mentions is a July visit 18:36:09 20 from the Eversoles; is that correct? 18:36:11 21 A. That's correct. 18:36:11 22 Q. That was a July 4th visit? 18:36:14 23 A. That's right, the month prior to the date 18:36:16 24 of the homicide. 18:36:19 25 Q. And this document indicates that he was 319 18:36:21 1 interviewed on April 22nd, 1983; is that 18:36:25 2 correct? 18:36:25 3 A. That's correct. 18:36:25 4 Q. That was the second time he was 18:36:27 5 interviewed? 18:36:27 6 A. That's correct. 18:36:28 7 Q. I am going to now hand you what has been 18:36:32 8 marked as Exhibit 59. Do you recognize that? 18:36:37 9 A. Yes, sir. This is a memorandum of 18:36:39 10 interview which I prepared with regard to the 18:36:44 11 interview of Margie Gibson on January the 11th, 18:36:52 12 1984. 18:36:54 13 Q. January the 11th, 1984? 18:36:58 14 A. Yes. 18:36:59 15 Q. And was that interview in regard to her 18:37:03 16 telling you her husband Delaney's whereabouts in 18:37:08 17 August of 1982? 18:37:09 18 A. That's correct. 18:37:15 19 Q. Was that your first interview with her on 18:37:18 20 that subject? 18:37:19 21 A. Yes, as I recollect, it was. 18:37:21 22 Q. In January of what year? 18:37:23 23 A. 1984 -- it may not have been, because I do 18:37:43 24 not see any reference here to the execution of 18:37:46 25 the Federal search warrant at home in Bear 320 18:37:50 1 Branch, Kentucky, and that date was the date of 18:37:54 2 my first contact with her. 18:37:56 3 Q. Do you recall about when that would have 18:37:58 4 been? 18:37:58 5 A. I do not remember. If I had a copy of the 18:38:07 6 warrant, I could tell you. 18:38:08 7 Q. Did you interview her at that time? 18:38:10 8 A. I interviewed her briefly, yes. 18:38:12 9 Q. Do you recall when the first time was that 18:38:14 10 you learned that she was making a statement as 18:38:16 11 to Delaney Gibson's whereabouts on August 7th 18:38:19 12 and 8th of 1982? 18:38:22 13 A. It was on this date. 18:38:25 14 Q. It was in January 1984? 18:38:28 15 A. Yes, January 11th of 1984. 18:38:32 16 Q. So just to be clear, when Mr. Gibson 18:38:35 17 himself was interviewed on April 22nd, 1983, he 18:38:39 18 still can't recall his whereabouts on August 7, 18:38:42 19 8 or 9 of 1982? 18:38:53 20 A. That's correct. 18:38:54 21 Q. My next question, so in January of 1984, 18:39:27 22 Mrs. Gibson, Delaney's wife, tells you she has 18:39:32 23 got an explanation for his whereabouts on 18:39:34 24 August 7th and 8th of 1982? 18:39:37 25 A. That's correct. 321 18:39:38 1 Q. And that is the first time you hear that? 18:39:40 2 A. That is the first time. 18:39:40 3 Q. You never hear that from Delaney Gibson? 18:39:42 4 A. That's correct. 18:39:43 5 Q. To your knowledge, no other investigator on 18:39:45 6 the task force heard that from Delaney Gibson? 18:39:47 7 A. That's correct, to my knowledge. 18:39:48 8 Q. What was her explanation, if you recall, of 18:39:52 9 his whereabouts on August the 9th, 1982? 18:39:56 10 A. She had none. 18:40:00 11 Q. I am going to hand you the photographs that 18:40:03 12 are marked Exhibits 31 through 41. Did you view 18:40:10 13 those previously today? 18:40:11 14 A. Yes, I did. 18:40:13 15 Q. What are those? 18:40:13 16 A. These are photographs depicting Delaney 18:40:18 17 Gibson, Margie Gibson and their son, Delaney, 18:40:25 18 Junior. 18:40:31 19 Q. Can you identify who the Bentleys are in 18:40:33 20 those photographs? 18:40:36 21 A. I cannot, because I don't think there are 18:40:38 22 any Bentleys in these photographs. 18:40:40 23 Q. There are no Bentleys in the photographs? 18:40:42 24 A. No. Delaney Gibson, Delaney Gibson, 18:40:45 25 Delaney Gibson, Delaney Gibson, Delaney Gibson, 322 18:40:51 1 Delaney Gibson and his son, Delaney Gibson, 18:40:58 2 Delaney Gibson drinking a beer. Delaney Gibson 18:41:02 3 and his boy and another child. 18:41:04 4 Q. Do you know who that other child is? 18:41:06 5 A. I do not. 18:41:07 6 Q. Do you know if that child is a Bentley? 18:41:08 7 A. I do not. The child gives the appearance 18:41:11 8 as being Hispanic, but I do not know who the 18:41:15 9 child is. But there are no Bentleys depicted in 18:41:18 10 these photographs. 18:41:20 11 Q. Where did you receive those photographs? 18:41:22 12 A. These photographs were received from Margie 18:41:27 13 Gibson at Bear Branch, Kentucky. 18:41:30 14 Q. And, again, to the best of your knowledge, 18:41:34 15 Mr. Gibson himself didn't provide investigators 18:41:37 16 those pictures when he was interviewed in 1983, 18:41:42 17 did he? 18:41:43 18 A. No, he did not. Nor did he reference them, 18:41:46 19 insofar as I am aware. 18:41:48 20 Q. Okay. By the way, do you see any Eversoles 18:41:56 21 or any other individuals in these photographs? 18:41:58 22 A. No, the only photos are of Delaney and 18:42:01 23 Margie and their son. 18:42:05 24 Q. However, you did receive some photographs 18:42:08 25 from the Bentleys themselves? 323 18:42:09 1 A. Yes, I did. 18:42:10 2 Q. Are those included in this batch, do you 18:42:12 3 know? 18:42:13 4 A. They are not. 18:42:14 5 Q. Are you aware whether or not some of the 18:42:30 6 items of information you have reviewed today 18:42:32 7 were previously considered by the Federal Court 18:42:35 8 in its review? 18:42:39 9 A. In the habeas review? 18:42:43 10 Q. Yes, sir. 18:42:44 11 A. Yes, I am. 18:42:45 12 Q. And how are you aware of that? 18:42:47 13 A. I am aware of that in part because I tried 18:42:53 14 to stay abreast of this case up until the time 18:42:57 15 of my retirement, and I know there came a time 18:43:01 16 prior to my retirement in 1999 that the court 18:43:07 17 requested what was referred to as my desk file, 18:43:12 18 and that file was turned over to the court for 18:43:16 19 in camera inspection by our legal people at 18:43:23 20 headquarters, as I understand it. 18:43:25 21 Q. Who referred to it as your desk file? 18:43:27 22 A. That was a reference made by defense 18:43:31 23 attorneys. 18:43:33 24 Q. What was that file? 18:43:35 25 A. That file consisted of the presentation 324 18:43:41 1 letter and the memorandums of interview of John 18:43:45 2 Spirko; and the balance of the file consisted of 18:43:54 3 investigation that I conducted postconviction, 18:43:58 4 investigation of other suspects, including James 18:44:02 5 Clark Kelley. 18:44:04 6 Q. At what time, remind me, did you become -- 18:44:13 7 did you receive this case from Mr. Strausbaugh? 18:44:15 8 A. The case was transferred to me when he 18:44:19 9 retired, which I believe was in 1989, the summer 18:44:24 10 of 1989, I believe. 18:44:25 11 Q. And at that time, Mr. Spirko had been 18:44:28 12 convicted, correct? 18:44:28 13 A. He had been. 18:44:30 14 Q. And there was an outstanding warrant as to 18:44:32 15 Mr. Gibson, correct? 18:44:33 16 A. There was an outstanding indictment. 18:44:35 17 Q. I am sorry, indictment. 18:44:37 18 A. He was incarcerated at the Federal 18:44:40 19 Penitentiary, I think at Lewisburg, 18:44:43 20 Pennsylvania. 18:44:44 21 Q. And you were attempting to uncover as to 18:44:48 22 whether or not it could be proven if there were 18:44:50 23 other suspects involved in this crime? 18:44:52 24 A. I was trying to develop sufficient evidence 18:44:55 25 to convict all of the other -- all of the other 325 18:44:59 1 persons involved in this crime, in addition to 18:45:02 2 Mr. Spirko. 18:45:09 3 Q. The file that you had, was that in 18:45:13 4 relationship to that investigation? 18:45:14 5 A. Yes, it was. 18:45:15 6 Q. And you did not have this file for the 18:45:19 7 purpose of hiding any evidence from Mr. Spirko's 18:45:23 8 attorneys, did you? 18:45:24 9 A. No. There was no evidence hidden from any 18:45:28 10 defense attorneys, period. 18:45:31 11 Q. Are you aware, however, that when there is 18:45:34 12 an ongoing -- 18:45:37 13 A. Excuse me, just trying to clear my nasal 18:45:41 14 passages. 18:45:41 15 Q. -- when there is an ongoing criminal 18:45:44 16 investigation, that investigative material is 18:45:56 17 not subject to a Freedom of Information Act 18:45:59 18 request? 18:45:59 19 A. That's correct, it is not. 18:46:01 20 Q. I believe I heard that at one time there 18:46:03 21 was an opposition to turning over portions of 18:46:06 22 your file? 18:46:07 23 A. My desk file, yes, there was. 18:46:10 24 Q. Okay. When you were ordered to, in fact, 18:46:17 25 turn over that file, did you remove any 326 18:46:19 1 information from that file? 18:46:21 2 A. No. In fact, I added information to it, 18:46:25 3 specifically a memorandum of transmittal to the 18:46:28 4 legal liaison in Washington. I didn't take 18:46:31 5 anything out of that file. I bundled it up and 18:46:34 6 sent it on as instructed. 18:46:36 7 So when that file was sent off, I had 18:46:42 8 absolutely nothing, no documents in connection 18:46:46 9 with this case, nothing at all. 18:46:50 10 Q. When the documents or boxes or files were 18:46:56 11 transferred from the Van Wert County 18:46:59 12 prosecutor's -- I am sorry, the Van Wert County 18:47:03 13 Sheriff's Office to go to Washington, as I 18:47:05 14 understand it, for the Freedom of Information 18:47:08 15 Act review, were you a part of boxing up those 18:47:11 16 files? 18:47:12 17 A. Yes. 18:47:12 18 Q. Did you review those files at that time for 18:47:16 19 completeness? 18:47:17 20 A. No. I can tell you that in the intervening 18:47:21 21 years, from the date of Mr. Spirko's conviction, 18:47:25 22 I accessed those files on two separate 18:47:30 23 occasions, because they were in Van Wert and I 18:47:32 24 was in Cleveland. 18:47:33 25 On one occasion, I was directed to assist 327 18:47:36 1 one of the staff people from our legal 18:47:38 2 headquarters to go over and to inventory each of 18:47:46 3 the file folders, so we went over and listed 18:47:49 4 every file folder in the record systems. 18:47:52 5 We didn't look at the documents, we just 18:47:55 6 listed the file folders. We closed the records 18:47:58 7 up. That took about two days. 18:48:00 8 Sometime thereafter, probably a year after, 18:48:04 9 I went back by myself and, in the presence of 18:48:09 10 these defense attorneys, inserted the key in the 18:48:13 11 lock, pulled the -- opened the drawers and put 18:48:17 12 the contents into the CON-CON containers. 18:48:21 13 For the laymen, those are basically the 18:48:24 14 equivalent of a storage trunk that is probably 18:48:28 15 three-quarters of the size of this table and 18:48:30 16 stand about 28 inches deep. They are plastic in 18:48:36 17 construction and they permit the use of a rotary 18:48:39 18 lock, which is a numbered lock so that 18:48:41 19 accountability can be maintained. 18:48:44 20 I put these records into two of these 18:48:47 21 containers, as I recollect, affixed the rotary 18:48:50 22 lock and turned the lock, and the number 18:48:53 23 advances and that accompanying paperwork through 18:48:58 24 the postal chain always reflects that lock 18:49:01 25 number, so that when the records are received at 328 18:49:03 1 the receiving end, in this case, Washington, 18:49:06 2 D.C., the receiver has the ability to look at 18:49:08 3 the lock and determine that the lock has not 18:49:11 4 been opened. 18:49:13 5 So they were secured in that fashion. At 18:49:15 6 no time on either of those occasions did I look 18:49:18 7 at the documents, did I examine the documents, 18:49:22 8 did I add documents or remove documents. It was 18:49:25 9 simply a matter of transferring them and sending 18:49:28 10 them off. 18:49:36 11 Q. As to the information of the purported 18:49:38 12 alibi that Margie Gibson maintains to you, you 18:49:43 13 developed that information, correct? 18:49:45 14 A. I developed it, yes. 18:49:46 15 Q. You received the photographs; is that 18:49:48 16 correct? 18:49:48 17 A. I did. 18:49:49 18 Q. And you summarized your information as to 18:49:53 19 that purported alibi in a document that you 18:49:56 20 forwarded to your supervisor, Mr. Strausbaugh? 18:49:58 21 A. That's correct. 18:49:59 22 Q. This is all of your creation or 18:50:02 23 development, if you will? 18:50:03 24 A. All on my initiative, yes, just following 18:50:06 25 normal, standard procedure. 329 18:50:08 1 Q. Did you make any effort to hide or preclude 18:50:12 2 that information from the file, as it existed 18:50:15 3 before the Spirko trial? 18:50:17 4 A. No, no. The evidence and the information 18:50:22 5 developed in the investigation went to the file, 18:50:24 6 no matter what it was. Good, bad or 18:50:28 7 indifferent, it is just a part of the record of 18:50:30 8 the case. 18:50:33 9 Q. And that record of the case, did you review 18:50:37 10 for completeness the record of the case at the 18:50:41 11 time that this ombudsman you referred to, 18:50:44 12 Mr. Sabol, would have come in and done his 18:50:46 13 review? Did you review that record for 18:50:49 14 completeness? 18:50:50 15 A. I did not. I had no part to play in that 18:50:52 16 whatsoever. 18:50:54 17 Q. As you understand it, that at the time, for 18:50:58 18 the Spirko trial, was the complete record, the 18:51:01 19 complete file of the case? 18:51:02 20 A. Correct. Insofar as I am aware, every 18:51:04 21 single document that was generated during that 18:51:08 22 case was on station there in those file 18:51:13 23 cabinets. 18:51:13 24 Q. Likewise, did you make any corresponding 18:51:16 25 comparison to the information that was in that 330 18:51:18 1 case file before the Spirko trial that was 18:51:21 2 reviewed by the ombudsman and see how that 18:51:24 3 corresponds or relates in completeness to the 18:51:27 4 information that was boxed up and sent to 18:51:30 5 Washington? 18:51:30 6 A. I did not. The only thing I did, again, at 18:51:36 7 the direction of our legal liaison office in 18:51:40 8 Washington, D.C., is I accompanied one of their 18:51:44 9 staff people and made a record of all of the 18:51:46 10 captioned file folders. 18:51:50 11 Q. I am going to hand you what has been marked 18:51:51 12 as Plaintiff's Exhibit 89. That is a two-page 18:51:56 13 stipulation. I refer you to the bottom 18:51:58 14 paragraph, 12. Could you read that? 18:52:01 15 A. Paragraph 12, "Information concerning 18:52:04 16 Delaney Gibson: Mr. Michael Bentley, Box 425, 18:52:10 17 Ary, A-r-y, Kentucky, 41712, has stated that 18:52:15 18 Delaney Gibson was with him and his wife in 18:52:18 19 North Carolina on 8/7/82 and 8/8/82, and that 18:52:27 20 pictures are purported to have been taken on the 18:52:30 21 weekend in question." 18:52:34 22 Q. Again, is that the information you 18:52:35 23 developed as to your interviews with Margie 18:52:38 24 Gibson in January of 1984? 18:52:43 25 A. Yes. 331 18:52:45 1 Q. Are you aware that Mr. Spirko testified in 18:52:49 2 his trial? 18:52:49 3 A. I am aware. 18:52:50 4 Q. And you interviewed Mr. Spirko, did you 18:52:54 5 not? 18:52:54 6 A. I interviewed him many times, yes. 18:52:57 7 Q. And on one of the occasions or a couple of 18:53:00 8 the occasions that you interviewed him, did he 18:53:03 9 indicate that, in fact, Delaney Gibson committed 18:53:06 10 this crime? 18:53:07 11 A. He did. 18:53:08 12 Q. Did he ever revert and deny that Delaney 18:53:10 13 Gibson committed this crime to you? 18:53:12 14 A. Not to my recollection. 18:53:14 15 Q. Are you aware whether or not he testified 18:53:16 16 at the trial that, in fact, Delaney Gibson 18:53:19 17 committed this crime? 18:53:20 18 A. It is my understanding that he did testify. 18:53:21 19 Q. And are you aware that Mr. Spirko, in fact, 18:53:27 20 testified in the sentencing phase of his trial 18:53:29 21 as well? 18:53:29 22 A. I am aware of that, yes. 18:53:31 23 Q. And that during his testimony in the 18:53:33 24 sentencing phase, he indicated that his 18:53:36 25 testimony in the guilt phase was true and 332 18:53:40 1 accurate, were you aware of that? 18:53:42 2 A. Yes. 18:53:43 3 Q. And that at no time -- 18:53:45 4 A. Testified under oath, I might add. 18:53:47 5 Q. And that at no time did he indicate that, 18:53:50 6 in fact, it was all a big lie, that he said 18:53:53 7 Delaney Gibson committed this crime? 18:53:56 8 A. No, he did not. 18:54:21 9 Q. I believe you testified at one time that 18:54:24 10 Mr. Spirko made a confession to you? 18:54:29 11 A. He did. 18:54:30 12 Q. And what were his words when he made that 18:54:32 13 confession? 18:54:32 14 A. What he stated to me precisely was, "Lay it 18:54:37 15 all on me, I killed her," per his words, 18:54:41 16 quote-unquote, precisely. 18:54:44 17 Q. Is that reflected in your presentation 18:54:46 18 letter? 18:54:48 19 A. I believe it is. 18:54:49 20 Q. Okay. Was anyone else present when he made 18:54:53 21 that statement? 18:54:54 22 A. Yes, Inspector Pfeiffer was present. 18:54:58 23 Q. Are you aware of whether or not Inspector 18:55:02 24 Pfeiffer, is it -- how do you spell that? 18:55:04 25 A. P-f-e-i-f-f-e-r. 333 18:55:08 1 Q. Are you aware of whether or not Inspector 18:55:10 2 Pfeiffer is still alive? 18:55:12 3 A. I am not. He is retired, and I haven't 18:55:14 4 spoke to him since his retirement. 18:55:17 5 Q. Did Mr. Hill or Mr. Dunn ever ask you if 18:55:21 6 Inspector Pfeiffer was still alive? 18:55:23 7 A. No. 18:55:23 8 Q. Did Mr. Paynter ever ask you if Inspector 18:55:27 9 Pfeiffer was still alive? 18:55:29 10 A. No. 18:55:29 11 Q. He was present when Mr. Spirko confessed to 18:55:32 12 you, was he not? 18:55:32 13 A. He was, yes. 18:55:34 14 Q. Do you recall the date of that interview? 18:55:36 15 A. January 12, 1983. 18:55:39 16 Q. Was that, in fact, the day after he 18:55:41 17 indicated to you on the very next day, he was 18:55:43 18 going to reveal to you who was the real killer? 18:55:47 19 A. That was -- yes, he stated that "I will 18:55:52 20 tell you the whole truth. But I am too tired to 18:55:55 21 do it now." So he wouldn't be pressed into 18:56:01 22 talking at that point. 18:56:02 23 So he said, "I will tell you tomorrow." We 18:56:06 24 went back tomorrow, the following day, which I 18:56:08 25 believe was January the 12th or the 13th, and 334 18:56:13 1 suddenly he forgot. 18:56:17 2 Q. And instead, what did he relate to you? 18:56:20 3 A. More of the same, but it was not responsive 18:56:27 4 to his prior offer to tell the truth. 18:56:37 5 Q. And Inspector Pfeiffer was present? 18:56:39 6 A. He was present, yes. 18:56:41 7 Q. And no one from the defense has ever asked 18:56:43 8 you as to Inspector Pfeiffer's whereabouts? 18:56:46 9 A. That's correct. 18:56:49 10 Q. Does the name Sonny Baumgardner mean 18:57:08 11 anything to you? 18:57:09 12 A. Yes, it does. 18:57:09 13 Q. Who is Mr. Baumgardner? 18:57:12 14 A. Mr. Baumgardner was initially the primary 18:57:16 15 suspect in this matter. He had, in about 1976, 18:57:23 16 I believe, held up the Dupont, Ohio, Post Office 18:57:29 17 at gunpoint. During that offense, he bound the 18:57:32 18 postmaster with duct tape and absconded with the 18:57:37 19 money orders and the money order machine from 18:57:39 20 the post office. He was apprehended by a 18:57:41 21 sheriff's deputy, approximately 20 minutes 18:57:46 22 later. 18:57:46 23 Q. Was he ever a suspect in this case? 18:57:48 24 A. Yes, he was. He was the primary suspect 18:57:50 25 right from the outset, because he had done this 335 18:57:52 1 act at Dupont, Ohio, earlier, and Dupont, Ohio, 18:57:56 2 was generally in the vicinity of the Elgin, 18:57:58 3 Ohio, Post Office. 18:57:59 4 Q. Was Mr. Baumgardner ever ruled out as a 18:58:02 5 suspect in this case? 18:58:02 6 A. He was. 18:58:03 7 Q. How was that done? 18:58:04 8 A. Well, we learned that he had -- 18:58:09 9 Mr. Baumgardner had been on payroll at the time, 18:58:12 10 Federal payroll in Louisville, Kentucky, from 18:58:15 11 the armed robbery of the offense of the Dupont 18:58:18 12 Post Office. 18:58:19 13 When we attempted to locate him, we found 18:58:22 14 that he had absconded from parole and his 18:58:28 15 whereabouts were unknown, there now being a 18:58:31 16 warrant issued for his arrest for absconding. 18:58:43 17 In the six weeks or so after the initial 18:58:47 18 date of the offense, other inspectors had 18:58:50 19 unsuccessfully attempted to locate him. I felt 18:58:57 20 that I could locate him rather promptly and did 18:58:59 21 so. 18:59:00 22 And specifically what I did toward that end 18:59:03 23 is I contacted a retired inspector who was then 18:59:06 24 working as an agent for the Insurance Crime 18:59:12 25 Prevention Institute. I asked him to run the 336 18:59:13 1 name of Mr. Baumgardner through their index 18:59:24 2 system, and that system is simply a record, a 18:59:37 3 trade industry record, system of records, which 18:59:40 4 is maintained to document prior insurance claims 18:59:43 5 by individuals across this great land. 18:59:47 6 The retired inspector, whose name is Fred 18:59:52 7 Maki, ran the name and within four or five days 18:59:57 8 called me at the command post and told me that 18:59:59 9 he had a record of an insurance claim in, I 19:00:06 10 believe it was Arlington, Texas. 19:00:10 11 So we contacted the insurance company 19:00:14 12 directly. I do not remember the name of the 19:00:15 13 company. We got the particulars of the claim 19:00:20 14 and found that Mr. Baumgardner had a stated 19:00:28 15 residential address in Pasadena, Texas, which is 19:00:33 16 a suburb to Dallas, as I recollect. 19:00:38 17 Once we acquired that information, we 19:00:40 18 requested inspectors in Dallas and the United 19:00:43 19 States Marshal Service to go out and execute his 19:00:45 20 arrest, which they did promptly. 19:00:47 21 He was arrested, taken into custody and in 19:00:51 22 the course of sorting out the insurance claim 19:00:53 23 and interviewing him and following up the leads 19:00:58 24 that were there, we determined that 19:01:00 25 Mr. Baumgardner had sustained an industrial 337 19:01:05 1 injury, which I believe was a burn, on August 19:01:07 2 the 9th of 1982 and that he received treatment 19:01:10 3 at a clinic in Arlington, Texas, on that date. 19:01:14 4 Therefore, again, the premise being you 19:01:17 5 can't be in two places at one time, he was in 19:01:19 6 Arlington, Texas, no question. So he was then 19:01:23 7 eliminated on the basis of that investigative 19:01:26 8 activity. 19:01:26 9 Q. And you uncovered that information? 19:01:28 10 A. I did. 19:01:28 11 Q. Did you ever share that information at any 19:01:31 12 time with Connie Mottinger? 19:01:32 13 A. I did. 19:01:33 14 Q. I am going to hand you Exhibit 2. Could 19:01:40 15 you take a look at that? 19:01:42 16 A. Yes, sir. 19:01:43 17 Q. Have you seen that before? 19:01:44 18 A. Oh, yes, I have seen this before. 19:01:45 19 Q. Okay. Did you see that today? 19:01:48 20 A. Yes, I have seen it today. In fact, I 19:01:51 21 produced a copy of this document, minus the 19:01:58 22 Exhibit A attachment, in response to the 19:02:01 23 subpoena. I have never seen the attachment. 19:02:03 24 Q. I want to refer you to the last numbered 19:02:05 25 paragraph on page 1. Just review it. You don't 338 19:02:08 1 have to read it. 19:02:14 2 (Witness complies with the request.) 19:02:16 3 A. I have read it. 19:02:17 4 Q. Is that information accurate? 19:02:18 5 A. No, it is not accurate. 19:02:19 6 Q. Why is it not accurate? 19:02:21 7 A. Well, on several accounts. I did not state 19:02:28 8 to Ms. Mottinger that Mr. Gibson had nothing to 19:02:31 9 do with the crime because I had discovered that 19:02:38 10 through the Arlington, Texas, insurance company 19:02:41 11 that Mr. Gibson made a claim for treatment. I 19:02:47 12 further made absolutely no reference to an 19:02:51 13 x-ray, because there are no x-rays, insofar as I 19:02:54 14 am aware. 19:02:55 15 Q. The medical information pertains to Sonny 19:02:58 16 Baumgardner? 19:02:59 17 A. It does, yes. Any discussion I had with 19:03:02 18 her dealt with Mr. Baumgardner with regard to 19:03:06 19 his treatment at this clinic, and it was, as I 19:03:08 20 say, I believe for a burn. 19:03:10 21 Q. Did she get that wrong? 19:03:11 22 A. Oh, yes, she got that wrong. 19:03:14 23 Q. And this is her -- is that a signed 19:03:17 24 affidavit? 19:03:17 25 A. This is a sworn affidavit. 339 19:03:21 1 Q. And that is dated when? 19:03:22 2 A. Dated February 25 of 2005. 19:03:26 3 Q. And is it notarized? 19:03:28 4 A. It is notarized by a lady in Washington, 19:03:35 5 D.C. 19:03:35 6 Q. Okay. I think I can take that one back and 19:04:02 7 move on to something else. 19:04:11 8 As to your meeting in Mansfield, Ohio, that 19:04:16 9 you have testified to with Ms. Mottinger and 19:04:19 10 Mr. Bennett and Mrs. Bennett, do you recall 19:04:21 11 that? 19:04:21 12 A. I do, yes. 19:04:24 13 Q. Do you recall whether or not Mrs. Marlene 19:04:31 14 Bennett was taking notes as to that interview? 19:04:34 15 A. I do not recall. 19:04:36 16 Q. Could she have been taking notes? 19:04:38 17 A. It is possible. But I don't remember. 19:04:42 18 Q. If she would have indicated in her notes 19:04:45 19 words to the effect, Marion Bromgarden, 19:04:54 20 suspect -- it appears as though it is 19:04:59 21 B-r-o-m-g-a-r-d-e-n -- suspect. Do you want me 19:05:13 22 to put a sticker on this just for reference 19:05:16 23 purposes or do you have a preference? 19:05:18 24 MR. HILL: Do you have an 19:05:19 25 extra copy or is that the only one you have got? 340 19:05:23 1 MR. PRICHARD: It is the only one 19:05:24 2 I have got. 19:05:30 3 MR. HILL: Can I just look at 19:05:32 4 the original while you are doing this and we can 19:05:33 5 make a copy later? 19:05:37 6 MR. PRICHARD: Yes. 19:05:40 7 BY MR. PRICHARD: 19:05:41 8 Q. Okay. "Marion Bromgarden," is the 19:05:44 9 spelling, "suspect through insurance claim filed 19:05:47 10 August 13th, '82, Arlington, Texas." If she 19:05:56 11 would have taken a note to that effect, is that 19:05:58 12 what you have just testified to in relation 19:06:00 13 to -- 19:06:01 14 A. Yes, that would be consistent with my 19:06:03 15 discussions with Mr. Baumgardner, yes. 19:06:09 16 Q. And when you talked to Mrs. Bennett, 19:06:12 17 Mrs. Mottinger was also present; is that 19:06:15 18 correct? 19:06:15 19 A. Yes, she was in the room also. 19:06:32 20 Q. During that meeting you had when 19:06:35 21 Mrs. Bennett was present, if she would have 19:06:38 22 indicated that when you spoke to them that you 19:06:46 23 told them that -- and I am referring to page 2 19:06:49 24 of 4, three-fourths of the way down, it starts 19:06:56 25 with "Story," if her notes would have indicated 341 19:07:01 1 that you told them that "The story changed and 19:07:06 2 changed with each session, he came closer to 19:07:08 3 being the one, although he said Delaney did it," 19:07:12 4 would you have said those words at that meeting 19:07:15 5 in Mansfield? 19:07:16 6 A. Yes, that is accurate, reasonably. And it 19:07:19 7 was really an interesting phenomenon to watch. 19:07:24 8 Every time I interviewed the Defendant Spirko, 19:07:27 9 he brought himself closer and closer and closer 19:07:30 10 to the victim. It was uncanny. And I have 19:07:35 11 since shared that experience with other homicide 19:07:39 12 detectives who have also noted similar reactions 19:07:45 13 with Defendants who are sociopaths and they have 19:07:50 14 used it to their advantage. So, yes. It was 19:07:52 15 really an uncanny observation that I made. 19:07:55 16 Q. If her notes also indicate to them that you 19:07:58 17 represented to her and to Ms. Mottinger that you 19:08:01 18 had looked into a suspect by the name of James 19:08:05 19 Clark Kelley, would that be correct? 19:08:06 20 A. Yes, absolutely correct. 19:08:08 21 Q. You stated that at that meeting? 19:08:09 22 A. Yes, I did. 19:08:13 23 Q. Now, I want to ask you about Mr. Kelley. 19:08:16 24 You testified to quite a bit of innuendo, if you 19:08:21 25 will, as to Mr. Kelley. 342 19:08:23 1 A. Yes. 19:08:23 2 Q. As I understand your testimony, you 19:08:27 3 suspected Mr. Kelley for the reason that he had 19:08:33 4 a post office box in Madison, Indiana, with a 19:08:37 5 similar number to a key that was found near the 19:08:43 6 scene of the post office crime? 19:08:44 7 A. That was a factor. But that is not what 19:08:48 8 brought me to him. 19:08:49 9 Q. Okay. And a factor was that he had 19:08:52 10 victimized other post offices and had raised 19:08:58 11 postal money orders in the past? 19:09:01 12 A. And burglarized post offices in the past, 19:09:04 13 yes, a factor to be considered. 19:09:11 14 Q. What evidence do you have, what solid 19:09:13 15 evidence do you have that Mr. James Clark Kelley 19:09:16 16 was involved in the abduction and murder of 19:09:19 17 Betty Jane Mottinger on August 9th, 1982? 19:09:22 18 A. The only solid evidence I have is an 19:09:27 19 admission that he made to an inmate in jail at 19:09:33 20 Mandan, North Dakota. And he told that inmate, 19:09:43 21 to the best of my recollection, "Me and Jack 19:09:45 22 Spirko killed a postmaster in Ohio." 19:09:50 23 Q. And how did you come about this 19:09:52 24 information? 19:09:52 25 A. The person to whom the statement was made 343 19:09:58 1 ultimately worked through the system to the 19:10:04 2 United States Penitentiary at Marion, Illinois, 19:10:08 3 and that person disclosed the statement to an 19:10:12 4 FBI agent, who contacted me. 19:10:15 5 Q. Who was that FBI agent? 19:10:20 6 A. I don't remember. And, in fact, when the 19:10:24 7 agent called me, because he had to track me down 19:10:27 8 through headquarters, when he began to tell me 19:10:29 9 the story, I said, "Before you tell me the name, 19:10:32 10 let me give you the name. James Clark Kelley." 19:10:35 11 He said, "Absolutely right. How did you know 19:10:37 12 that?" 19:10:38 13 Q. What year did you have that conversation? 19:10:42 14 A. I would think probably about 1995, '96. 19:10:49 15 Q. You testified that you took portions of 19:10:53 16 this information, I believe, to Van Wert County 19:10:57 17 Prosecutor Charles Kennedy? 19:11:00 18 A. That's correct. I called him on the 19:11:02 19 telephone. 19:11:02 20 Q. And do you recall when that would have 19:11:03 21 been? 19:11:03 22 A. I do not. It would certainly, I would 19:11:07 23 think, be after this time, because at the time 19:11:10 24 that I called Mr. Kennedy, the case looked 19:11:13 25 pretty good to me, it looked like it might go 344 19:11:17 1 somewhere. 19:11:17 2 So I called him and said, "What do you 19:11:21 3 think?" And at that time he declined to 19:11:23 4 prosecute. 19:11:25 5 So we just plodded along methodically and 19:11:34 6 developed whatever information we could with 19:11:38 7 regard to Mr. Kelley and others. 19:11:39 8 Q. And any of this information that you 19:11:42 9 developed, did it preclude Mr. Gibson's 19:11:45 10 involvement? 19:11:45 11 A. Oh, no. In fact, there is evidence to the 19:11:48 12 effect that at about what I believe to be the 19:11:53 13 night before -- but sometime in 1982, since he 19:11:58 14 was only out briefly from the penitentiary, 19:12:06 15 Mr. Kelley came through Madison, Indiana, with 19:12:11 16 another unidentified male, whom I suspect was 19:12:16 17 Delaney Gibson, and during that time he did two 19:12:21 18 things. 19:12:21 19 He paid a visit to an acquaintance, who I 19:12:26 20 interviewed, who told me there were two people 19:12:28 21 there, and during that meeting, Mr. Kelley 19:12:31 22 stated to this person, "I am going to Fort 19:12:35 23 Wayne, Indiana, to make some money." 19:12:37 24 Now, since this man was not regularly 19:12:41 25 employed, that means to me he was going there to 345 19:12:45 1 rob. So two people came through. 19:12:49 2 Then on the night of August the 8th, 19:12:52 3 Mr. Kelley burglarized his mother's home and 19:12:56 4 stole several guns and then presumably went to 19:13:00 5 Fort Wayne, Indiana, to make some money and then 19:13:03 6 ended up at the post office at Elgin, Ohio, is 19:13:05 7 my speculation. 19:13:07 8 But there are these little facts and pieces 19:13:11 9 that seem to come together. Also, I determined 19:13:14 10 that when he was out in 1982, he had this sort 19:13:18 11 of casual employment as a house painter, and he 19:13:24 12 is, therefore, likely the source of the theatre 19:13:28 13 curtain that was used to wrap the victim's body. 19:13:31 14 Q. Did you ever establish that? 19:13:33 15 A. No, no. Try as I might, no, I was not able 19:13:36 16 to establish that. 19:13:37 17 Q. There is no evidence of that? 19:13:39 18 A. No, nothing definitive. 19:13:53 19 Q. You stated that you didn't have the belief 19:14:02 20 that Delaney Gibson could be -- that the 19:14:07 21 evidence against Delaney Gibson could not 19:14:09 22 overcome the presumption of innocence at trial? 19:14:12 23 A. That is my belief, yes. 19:14:14 24 Q. That he could not be proven beyond a 19:14:17 25 reasonable doubt to have committed this murder? 346 19:14:20 1 A. That's right, that's right. Because the 19:14:22 2 only evidence would be the eyewitness 19:14:24 3 identification of Opal Seibert. You could not 19:14:29 4 call -- the state could not call John Spirko in 19:14:32 5 conscience and expect him to testify truthfully. 19:14:40 6 He was out of the picture. 19:14:41 7 So, basically, we were left with this 19:14:43 8 identification. And in my experience, one 19:14:46 9 eyewitness identification is not sufficient to 19:14:50 10 overcome the presumption of innocence. 19:14:53 11 Q. If the question posed to a finder of fact 19:14:59 12 was, "Was Delaney Gibson present in front of the 19:15:04 13 post office in Elgin, Ohio, at about 8:20 a.m. 19:15:09 14 on August the 9th, 1982," do you have a feeling 19:15:12 15 as to whether or not that could be proven? 19:15:17 16 A. I think the evidence is still the same, and 19:15:21 17 today that could not be proven, because the only 19:15:25 18 witness to that event is deceased. 19:15:28 19 Q. In 1984, could that specific thing, that he 19:15:31 20 was in front of the post office on that morning, 19:15:34 21 be proven? 19:15:35 22 A. Yes. 19:15:36 23 Q. And to your knowledge, up until the death 19:15:41 24 of Opal Seibert, if I represent that to you, in 19:15:44 25 1991, do you have any reason to think otherwise? 347 19:15:47 1 A. No. 19:15:49 2 Q. Presumably, up until 1991, that specific 19:15:51 3 fact that he was there in front of the post 19:15:54 4 office the morning of August the 9th, 1982, 19:15:57 5 could be proven, if she were able to testify? 19:15:59 6 A. That's correct, yes. 19:16:00 7 Q. And that was the information that was 19:16:03 8 presented at Spirko's trial, was it not? 19:16:05 9 A. As I know it, yes. 19:16:09 10 Q. Placing him present at the scene of an 19:16:13 11 abduction that later leads to a murder does not 19:16:16 12 prove the elements of a crime, does it? 19:16:19 13 A. No. 19:16:19 14 Q. Spirko had a history of escape from 19:16:35 15 detention, did he not? 19:16:38 16 A. Spirko and Gibson both did, yes. 19:16:41 17 Q. And, in fact, Spirko testified at his 19:16:44 18 trial, if he is convicted, sent to prison, all 19:16:48 19 he will try to do is spend the rest of his life 19:16:51 20 trying to get out? 19:16:51 21 A. Trying to escape and doing this again, as I 19:16:54 22 recollect. 19:17:01 23 Q. I want to mention to you Exhibit 42, 19:17:32 24 briefly. You have been shown this earlier 19:17:36 25 today. I want to refer you to the last page. I 348 19:17:39 1 will take my sticky note off. Can you look at 19:17:42 2 that last paragraph? 19:17:43 3 (Witness complies with the request.) 19:17:49 4 Q. Can you read that handwriting? 19:17:51 5 A. Yes, I can. 19:17:52 6 Q. What is Exhibit 42? 19:17:54 7 A. Exhibit 42 are the notes of interview 19:17:58 8 prepared by Inspector Sally Wolfe, and these 19:18:01 9 would be the notes of interview of Juan Flores, 19:18:05 10 F-l-o-r-e-s. 19:18:08 11 Q. In that last paragraph of Exhibit 42, does 19:18:11 12 Mr. Flores indicate that, in fact, Mr. Gibson 19:18:15 13 had shaved his beard off at one time, he 19:18:18 14 thought? 19:18:18 15 A. He thought he had shaved his beard off at 19:18:21 16 one time. 19:18:27 17 Q. And that he didn't know when that was? 19:18:29 18 A. That's right. He wasn't sure when this 19:18:31 19 occurred. 19:18:33 20 Q. Okay. We have mentioned actually on the 19:18:36 21 record here today a couple of times, that you, 19:18:38 22 in fact, wear a beard, do you not? 19:18:40 23 A. I do, yes. 19:18:41 24 Q. How long have you had that beard? 19:18:42 25 A. On and off for 25 years. 349 19:18:47 1 Q. There were videotapes made of this trial, 19:18:50 2 correct? 19:18:50 3 A. Yes, there were. 19:18:51 4 Q. In viewing those videotapes, I notice that 19:18:55 5 when Mr. Spirko was tried and you testified, you 19:18:58 6 did not have that beard, did you? 19:18:59 7 A. That is correct, I did not. 19:19:01 8 Q. How long does it take you to shave off that 19:19:04 9 beard? 19:19:04 10 A. Oh, about five minutes. 19:19:05 11 Q. Remove your glasses. 19:19:06 12 A. Remove my glasses. At the length it is 19:19:09 13 now, I would have to trim it with a trimmer 19:19:12 14 first and then I would shave. But it would take 19:19:15 15 five minutes. And it has taken five minutes in 19:19:19 16 the past, actually. 19:19:20 17 Q. I want to refer you to the same Exhibit 42. 19:19:34 18 It is page 7, I believe, the stamp is 3614, last 19:19:40 19 paragraph there. Could you try to read that 19:19:43 20 handwriting? 19:19:44 21 A. Yes. 19:19:45 22 Q. Does Mr. Flores indicate where he believes 19:19:49 23 Mr. Gibson is from? 19:19:51 24 A. Mr. Flores said he thought Gibson was from 19:19:57 25 Cincinnati, Ohio, and I know that to be the 350 19:19:59 1 case, independently. 19:20:01 2 He said Gibson would once in a while go to 19:20:07 3 visit his family in Cincinnati, he would work 19:20:10 4 Friday afternoon and would be back on Sunday. 19:20:16 5 And I have personally interviewed members of 19:20:18 6 Mr. Gibson's family in Cincinnati, Ohio, 19:20:22 7 specifically Jimmy Ray Gibson. 19:20:24 8 Q. That reminds me. You had mentioned a phone 19:20:28 9 message left, I believe, at a residence where 19:20:31 10 Spirko was staying -- 19:20:32 11 A. Yes. 19:20:33 12 Q. -- that apparently Jimmy had called? 19:20:35 13 A. Yes. 19:20:36 14 Q. Who took that phone message? 19:20:38 15 A. That was related to me by Cathy Carpenter. 19:20:43 16 Q. Spirko's sister? 19:20:45 17 A. That's correct. 19:20:45 18 Q. And you indicated that Mr. Gibson has a 19:20:48 19 brother named Jimmy? 19:20:49 20 A. That's correct. 19:20:50 21 Q. Did you testify earlier that sometimes 19:20:52 22 Mr. Gibson would go by the identity Jimmy 19:20:56 23 Gibson? 19:20:56 24 A. Jimmy Ray Gibson, yes. 19:21:10 25 Q. Could you find 91 for me. I will tell you 351 19:21:34 1 what, I will just look at yours for a second. 19:22:07 2 Can you look at page 2, second paragraph, the 19:22:14 3 final sentence where it begins with, "So that 19:22:18 4 was the significance of the key." See where I 19:22:22 5 am at? It appears to be the second paragraph by 19:22:25 6 the pagination. Over on the right-hand side, 19:22:32 7 the sentence begins, "So that was the 19:22:34 8 significance of the key." 19:22:36 9 A. Yes, I see that. 19:22:37 10 Q. Could you read that for me? 19:22:39 11 A. Yes. And I am quoting this document, "So 19:22:45 12 that was the significant of the key and the 19:22:52 13 interesting thing was that when I was 19:22:55 14 interviewing - I know that I am bobbing and 19:23:01 15 weaving, but I am telling you this as it comes 19:23:04 16 to me - when I was interviewing Spirko he kept 19:23:09 17 talking about wrapping and unwrapping the body 19:23:12 18 because they lost something. Referring to it 19:23:17 19 being a cigarette lighter. What he was trying 19:23:20 20 to see is if we had the keys." End of quote, 19:23:24 21 end of paragraph. 19:23:25 22 Q. Did you say words to that effect in your 19:23:28 23 meeting with Connie Mottinger? 19:23:29 24 A. I did, yes. 19:23:35 25 Q. Does that information tend to exculpate or 352 19:23:39 1 inculpate Mr. Spirko? 19:23:41 2 A. It inculpates him. 19:23:47 3 Q. By the way, Mr. Kelley that we have 19:23:50 4 mentioned, was that information related to 19:23:52 5 Mr. Kelley in the file that you had in your 19:23:55 6 office that was later turned over to the Federal 19:24:03 7 District Court? 19:24:03 8 A. Yes. 19:24:03 9 Q. That is in what has been referred to as 19:24:05 10 your desk file? 19:24:08 11 A. Yes, that file contained all of the 19:24:11 12 documents bearing on Mr. Kelley, to include 19:24:13 13 memoranda, the interviews with various persons, 19:24:16 14 criminal histories, such as that. 19:24:23 15 Q. This has been gone over, and this has been 19:24:27 16 asked and asked, but I just want to be clear. 19:24:30 17 Did you ever express to Prosecutor Keister 19:24:34 18 before the trial that you thought any of the 19:24:35 19 evidence that he was going to present against 19:24:37 20 Mr. Spirko was false? 19:24:40 21 A. No, absolutely not, because if I thought 19:24:42 22 evidence was false, it wouldn't be used at all. 19:24:52 23 Q. Did you ever state to the task force 19:24:55 24 leader, Tom Strausbaugh, that you thought some 19:24:58 25 of the evidence that had been gathered and was 353 19:25:00 1 going to be presented at trial was false? 19:25:02 2 A. No. There was no false evidence admitted 19:25:06 3 at trial. 19:25:10 4 Q. How many times did you interview 19:25:19 5 Mr. Spirko? 19:25:20 6 A. I believe it was approximately 16 separate 19:25:25 7 occasions. 19:25:26 8 Q. I am not going to go over them. Are they 19:25:28 9 related in your desk file, Exhibit 50? 19:25:33 10 A. Yes, copies of those memos of interview are 19:25:35 11 in my desk file. 19:25:37 12 Q. And that mentions investigators who may 19:25:42 13 have been with you when you interviewed 19:25:44 14 Mr. Spirko? 19:25:45 15 A. Yes, that's correct. 19:25:46 16 Q. And does that also indicate interviews that 19:25:52 17 Mr. Spirko had before you ever met Mr. Spirko? 19:25:58 18 A. No. 19:25:59 19 Q. Weren't there two interviews before you 19:26:04 20 even came to meet Mr. Spirko? 19:26:05 21 A. There were. But they were not conducted by 19:26:09 22 me and I would not have kept them. In part, 19:26:12 23 when we left Van Wert, Ohio, and returned to our 19:26:16 24 other, normal lives, after two years in 19:26:18 25 Cleveland, in part, I brought that file because 354 19:26:21 1 it had been my personal file as a memento of all 19:26:25 2 the work I did on this case. 19:26:27 3 I put it in the file, and ultimately I was 19:26:30 4 left without a memento when it was sent in my 19:26:34 5 desk file to the court, because the court wanted 19:26:40 6 my desk file and that was part of then, in the 19:26:43 7 folder, that was my desk file. So I did not 19:26:45 8 withdraw it and save the memento. I simply 19:26:48 9 complied with the order and sent everything in 19:26:53 10 that folder to the court, including my memento. 19:26:59 11 Q. Now, it has been brought up today that 19:27:02 12 Mr. Spirko told you a lot of lies during these 19:27:05 13 interviews; is that correct? 19:27:06 14 A. He did, yes. 19:27:07 15 Q. And isn't it true that the lies he told you 19:27:11 16 were different versions of either how the crime 19:27:14 17 occurred or who related to him information about 19:27:18 18 the crime? 19:27:19 19 A. Yes. And the various alleged participants. 19:27:23 20 Q. And is it also true that he revealed to you 19:27:28 21 details that were only known to law enforcement 19:27:31 22 as to the nature of the crime? 19:27:32 23 A. Yes. 19:27:32 24 Q. And as to the items that were stolen? 19:27:35 25 A. That's right. 355 19:27:35 1 Q. And as to the clothing of the victim? 19:27:38 2 A. Correct. 19:27:38 3 Q. Did he waver on those confidential details 19:27:44 4 that he revealed to you? 19:27:45 5 A. No, he did not. He was also aware that the 19:27:49 6 body of the victim was wrapped in the shroud in 19:27:52 7 the manner that the shroud -- she was laid in 19:27:54 8 the shroud at pretty much the center and the 19:27:57 9 shroud was brought over the top of her head and 19:27:59 10 she was bound. And I found that to be 19:28:02 11 particularly significant. 19:28:05 12 Q. Did you tell him that? 19:28:07 13 A. Oh, no, no, no, no. 19:28:09 14 Q. Did any other investigator tell him that? 19:28:11 15 A. No. These were all details that he parsed 19:28:16 16 out over time in an ongoing course of 19:28:19 17 interviews. 19:28:28 18 Q. Did he relate stories until he stumbled 19:28:32 19 upon these details? 19:28:34 20 A. Yes. Inadvertently, they would slip out. 19:28:37 21 And part of this phenomena of interviewing him, 19:28:43 22 he would, as I said earlier, he would bring 19:28:46 23 himself closer and closer and closer to the 19:28:49 24 victim. And it was in the process of bringing 19:28:51 25 himself closer to the victim that he would 356 19:28:54 1 relate certain of these intimate details, a 19:28:57 2 little bit here, a little bit there. 19:28:59 3 That is why, in the course of interviewing 19:29:01 4 him, he was not responsive to questions. I just 19:29:06 5 got him talking and wrote, anticipating that 19:29:10 6 sooner or later there would be something of 19:29:13 7 value in his dialogue. 19:29:17 8 He was not the kind of person where you 19:29:19 9 could sit, as most people are, if we conduct an 19:29:23 10 interview, and I were to catch him lying at 19:29:26 11 something, most people would, that being drawn 19:29:30 12 to their attention would recoil and recant and 19:29:33 13 perhaps take some adjustment or correction. He 19:29:35 14 wouldn't do that. He would just shrug off the 19:29:38 15 fact that you caught him in a lie and just keep 19:29:40 16 on going. 19:29:43 17 MR. PRICHARD: Mr. Dunn, can I 19:29:45 18 borrow your copy again to give to the witness? 19:29:51 19 MR. DUNN: Which one? 19:29:53 20 MR. PRICHARD: Fifty. 19:29:55 21 THE WITNESS: Thank you. 19:29:57 22 BY MR. PRICHARD: 19:29:57 23 Q. I want to refer you again to Exhibit 50, 19:30:01 24 page 10. If you guys need a break, I am sorry, 19:30:12 25 I am trying to wrap this up, just let me know if 357 19:30:15 1 we need a break. 19:30:17 2 Do you see page 10? 19:30:19 3 A. I do. 19:30:20 4 Q. I refer you to the last two paragraphs on 19:30:23 5 that page. 19:30:26 6 A. Beginning -- 19:30:28 7 Q. On October 31st, 1982? 19:30:30 8 A. I have it. 19:30:32 9 Q. Is that the date of the first interview 19:30:34 10 that you are aware of, that Mr. Spirko was 19:30:37 11 given? 19:30:38 12 A. Yes, interviewed by Inspector Steven Cline 19:30:41 13 and subsequently by Inspectors Cline and 19:30:46 14 Strausbaugh. 19:30:59 15 Q. You were not present at this interview, 19:31:03 16 correct?