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Toledo Blade
U.S. Court Says No To Spirko's New Appeal Saturday, December 24, 2005
By JIM PROVANCE COLUMBUS - A federal appeals court has dealt another blow to John Spirko's attempts to avoid execution next month for the 1982 kidnapping and brutal stabbing of a Van Wert County postmaster. The Cincinnati-based 6th U.S. Circuit Court of Appeals refused to open a new path of appeals, putting the Toledo native's fate in the hands of state laboratory technicians conducting new DNA testing on 23-year-old evidence. This time around, Spirko, 59, lost the vote of the judge who dissented when the 6th Circuit upheld his conviction and death sentence in 2004. At that time, Judge Ronald Lee Gilman characterized the state's case as being built upon a "foundation of sand." But he agreed in the decision issued Thursday that Spirko failed to meet the burden of proving the prosecution had perpetrated a fraud upon U.S. District Judge James Carr in Toledo by failing to tell the court a key investigator had expressed doubt about its theory of the crime. The prosecution went on to present its theory to the jury anyway. That theory had Spirko acting with friend and former Kentucky cellmate Delaney Gibson in robbing the tiny Elgin post office on Sept. 24, 1984, kidnapping Postmaster Betty Jane Mottinger, stabbing her repeatedly, and dumping her body in a soybean field near Findlay. Gibson was never tried. Mr. Hartman's own investigation suggested Gibson may have been in North Carolina picking tomatoes on the day of the murder. He has since been paroled in an unrelated Kentucky murder. The 6th Circuit panel, by a vote of 3-0, agreed with Judge Carr that the county prosecutor is not an official of the court, a finding necessary to support the fraud claim. Gov. Bob Taft last month delayed Spirko's execution a second time to allow time for DNA testing on evidence from the crime scene, including the paint-spattered curtain that shrouded Mrs. Mottinger's body. The execution is now set for Jan. 19. "If we do get DNA information that points to another suspect, I have to believe the governor would not allow an execution to go forward before that information is followed to its natural conclusion," said Spirko attorney Alvin Dunn. He said preliminary information from the attorney general's office indicated biological material has been found on the evidence, but there has been no indication of whether it has matched anyone in the national DNA database. Attorney General Jim Petro, who agreed to the new round of testing, has maintained that finding someone else's DNA would not clear Spirko since the prosecution has always maintained he did not act alone. He said the court's ruling reinforces the message that "Mr. Spirko's case has undergone several thorough and even-handed reviews by respected legal authorities who have come to the same conclusion."
Contact Jim Provance at:
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