STATEMENT OF THE FACTS A. The Crime and Initial Investigation This case is about a most notorious and gruesome crime. On the morning of August 9, 1982, Betty Jane Mottinger, the postmistress in the tiny town of Elgin, Ohio, was found missing from the Elgin post office. Six weeks later, Mrs. Mottinger's decomposed body, wrapped in a paint-splattered tarp and bound by a clothesline, was discovered in a field in Hancock County. The autopsy revealed that Mrs. Mottinger had died of multiple stab wounds. (TR 29 State Court Transcripts, 2792-2800, J.A. 703-11.) (hereinafter cited as "TR __ Trial Tr. ___, J.A. ___.") The U.S. Postal Inspection Service led an extensive investigation conducted in cooperation with the State of Ohio and the Van Wert County Sheriff's Office and involving dozens of law enforcement officials working in thirty-seven states. Nevertheless, in spite of a massive effort, by late October 1982, the investigation had not identified a perpetrator, had not led to any arrests, and had not produced any promising leads. In particular, nothing uncovered in the investigation had revealed or even suggested that John Spirko or Delaney Gibson was in any way involved with the crime or even knew anything about it. (TR 26 Trial Tr. 2089-90, 2095-97, 2099-2100, 2108, 2115-17, 2123, J.A. 561-72; R. 129 Supplemental by Petitioner to Traverse, 1084-95, 1112-16, 1136-41, 1188-90, J.A. 385-412.) (hereinafter cited as "R. ___ Supp. Rec. ____, J.A. ____.") Indeed, at that point, investigators had not even heard of Mr. Spirko or Mr. Gibson. All of that changed when Mr. Spirko contacted investigators at the very end of October 1982. B. John Spirko and His Many Stories John Spirko, born in Toledo, Ohio, on June 13, 1946, was no stranger to law enforcement. Raised by a violently abusive, drunken father who beat and abused him and by a mother who was unable to protect him, Mr. Spirko started committing crimes at an extremely early age. (TR 33 Trial Tr. 3472-73, J.A. 764-65, R. 48 Exhibit T, Ex. 21, J.A. 184-85.) In 1970, Mr. Spirko was convicted of murder and sentenced to serve life in prison in the Kentucky State Penitentiary. In 1980, Mr. Spirko was released on parole but was incarcerated one month later for violating the terms of his parole. Mr. Spirko was again released on parole on July 27, 1982. Once again, Mr. Spirko was unable to observe the terms of his parole. Around October 7, 1982, he was involved in a barroom brawl, during which he was badly beaten. He was then arrested and incarcerated at the Fulton County, Ohio, Jail. In order to try to find the men who beat him, Mr. Spirko attempted to escape. The attempt failed, and Mr. Spirko faced far more serious additional charges and the prospect of being returned to Kentucky to complete his life sentence. Even worse for Mr. Spirko, his girlfriend LuAnn Smith was now incarcerated, charged with aiding Mr. Spirko in the attempted escape. (TR 33 Trial Tr. 3502-03, J.A. 771-72.) Facing these charged, aware from press reports of some details concerning the Mottinger case, and well aware that the investigation had produced no suspect, Mr. Spirko decided that he could help his girlfriend - and himself - by claiming that he had information that would assist the authorities in solving the Mottinger crime. Mr. Spirko first met with investigators on October 31, 1982, in the Lucas County Jail. Over the next two and a half months, Mr. Spirko gave around a dozen separate interviews to investigators. Mr. Spirko made clear to the investigators that he was providing information in order to obtain lenient treatment for himself and his girlfriend. The stories Mr. Spirko told investigators were elaborate, rambling, inconsistent, contradictory, sprinkled with fictional characters, and, in parts, incredibly detailed. They had one thing in common, though: they were all false. The investigators quickly learned that Mr. Spirko's stories were false, for whenever they attempted to corroborate them, they discovered that they could not. On many occasions, Mr. Spirko himself would begin a new interview with investigators by telling them that he had not been telling the truth. (State's Trial Ex. 117, J.A. 553-55.) ("Look, Paul. I've thrown you a few curves and you've thrown me at a few curves. From now on it's going to be straight down the line.") (TR 27 Trial Tr. 2343-49, 2379-2468, J.A. 671-77, 582-670; TR 33 Trial Tr. 3404-06, J.A. 761-63.) That Mr. Spirko would lie should not have surprised investigators. Mr. Spirko had years earlier confessed to committing crimes with which he had no involvement. (R. 48 Exhibit T, Ex. 22, J.A. 186-96.) Investigators continued to interview Mr. Spirko, but they were no longer willing to listen to statements that they knew to be false. On January 11, 1983, investigators confronted Mr. Spirko with respect to his false statements, as reflected in the following notes taken by investigators: -Spirko started to relate his bullshit story about hearing about this crime at a party, which was not acceptable. When we refused to accept it, he stated story about party was bullshit. -Stated he was reluctant to tell the truth because he was protecting the only friend he has ever had in his life. States that this friend was in the area immediately after the crime, at which time he saw the proceeds from the robbery. (State's Trial Ex. 124, J.A. 556.) The very next day, Mr. Spirko for the first time told investigators about Delaney Gibson, "the only friend he has ever had in his life." (TR 27 Trial Tr. 2448, J.A. 651.) Mr. Spirko met Mr. Gibson while both were incarcerated in Kentucky, and he now told investigators in great detail about how Mr. Gibson contacted Mr. Spirko soon after the Mottinger crime and how Mr. Gibson - along with persons identified as Clyde Cravens (aka "Rooster") and Eugene Sizemore - had kidnapped and murdered Mrs. Mottinger. C. The Investigation of Delaney Gibson and John Spirko As with Mr. Spirko's other stories, investigators looked into whether there was any truth to Mr. Spirko's latest story. They investigated Clyde Cravens and Eugene Sizemore and determined that these two men had nothing to do with the Mottinger crime. (TR 27 Trial Tr. 2379-2468, J.A. 582-670.) Undeterred, they investigated Delaney Gibson and determined that he indeed was a close friend of Mr. Spirko. At the time, however, investigators were unable to interview Mr. Gibson, because he was a fugitive, having escaped from the Hyden County, Kentucky Jail around March 26, 1981; investigators knew nothing of his whereabouts in August 1982. Mr. Spirko knew that Mr. Gibson was at large. (TR 27 Trial Tr. 2450-56, J.A. 653-59.) Mr. Gibson would not be captured until April 18, 1983. On the other hand, at least seven witnesses who were around the Elgin post office the morning of August 9, 1982, all of whom had been interviewed at length soon after Mrs. Mottinger was found missing, were still available. Investigators re-interviewed these witnesses, this time showing them photographs of John Spirko and Delaney Gibson. These photographs elicited a response from two of the seven witnesses: Opal Siebert with respect to Delaney Gibson's photo and Mark Lewis with respect to John Spirko's photo. Opal Siebert, at the time a sixty-three-year-old woman, now deceased, lived across the street from the Elgin post office and was sitting on her porch drinking coffee the morning of August 9, 1982. In a number of interviews conducted immediately after August 9, 1982, Mrs. Siebert told investigators that around 8:30 a.m. she observed a large two-door light brown car come from the north and park in front of the post office. Mrs. Siebert saw the driver exit the car, saw the driver standing next to the car, and, after her view was blocked by a passing truck, saw the car driving away southbound at a high rate of speed. Mrs. Siebert felt she had a good look at the driver, whom she described as a white male, 6'1", forty-five years old, muscular, dark hair, clean shaven, with glasses. (TR 30 Trial Tr. 2836-47, J.A. 712-23.) Police artists worked closely with Mrs. Siebert and drew a sketch of the driver based on her descriptions. (R. 132 Supp. Rec. 1617-18, J.A. 447-48.) When investigators interviewed Mrs. Siebert once again five and a half months later on January 25, 1983, after Mr. Spirko told them that Delaney Gibson had committed the crime with others, and showed her an array of photographs that included photographs of John Spirko and Delaney Gibson, Mrs. Siebert selected the photograph of Delaney Gibson as depicted the man she saw in front of the post office the morning of August 9, 1982. (TR 30 Trial Tr. 2836-47, J.A. 712-23.) Mrs. Siebert was certain of her identification of Mr. Gibson. She did not identify Mr. Spirko. Another eyewitness, Mark Lewis, worked as a truck driver for the Elgin Grain Company, located just south of the post office. He told investigators during interviews conducted on and soon after August 9, 1982, that when he drove in front of the post office around 8:30 a.m. on August 9, 1982, he saw a man in front of the post office who was around forty years old, approximately 5'10" or 5'11" and 230 to 240 pounds with wire rim gold glasses, reddish brown hair, and a mustache. (R. 127 Supp. Rec. 793-95, J.A. 345-47; TR 26 Trial Tr. 2162-98, J.A. 573-81.) At that early interview, Mr. Lewis viewed a photo array and selected the photograph of Sonny Baumgardner as most closely resembling the man he saw but stated that the photo likely did not depict the person he saw. When investigators interviewed Mr. Lewis once again five and a half months later on January 27, 1983, after Mr. Spirko told them that Delaney Gibson committed the crime with others, and showed him the same photo array that Mr. Siebert had viewed, Mr. Lewis selected the photograph of John Spirko as most closely resembling the man he saw. Unlike Mrs. Siebert, Mr. Lewis was not at all certain the photograph depicted the man he saw; he said that he was seventy percent sure. He did not identify Mr. Gibson's photo. (R. 127 Supp. Rec. 793-95, J.A. 345-47; TR 26 Trial Tr. 2162-98, J.A. 573-81.) We now know (although not disclosed until long after trial) that five other eyewitnesses failed to identify photos of either Mr. Spirko or Mr. Gibson. (R. 48 Exhibit T, Ex. 12-17, J.A. 150-83.) CONTINUED PAGE 2 Email: Tracy, John Spirko's Representative