0001 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO 2 3 4 5 JOHN G. SPIRKO, JR., 6 Petitioner, CASE NO. 3:95-CV-7209 7 vs. JUDGE JAMES G. CARR DEATH PENALTY CASE 8 MARGARET BRADSHAW, WARDEN, 9 Respondent. 10 ____________________________/ 11 12 13 DEPOSITION OF: THOMAS STRAUSBAUGH 14 DATE: June 8, 2005 15 TIME: 9:04 a.m. - 6:35 p.m. 16 PLACE: Holiday Inn Express 10826 U.S. Highway 19 17 Port Richey, Florida 18 PURSUANT TO: Notice by counsel for Petitioner for purposes of 19 discovery, use at trial or such other purposes as are 20 permitted under the Rules of Court 21 REPORTED BY: Cheri L. Unice, RMR, CRR 22 Notary Public State of Florida at Large 23 VOLUME I 24 Pages 1 - 199 25 0002 1 APPEARANCES: 2 THOMAS C. HILL, ESQUIRE ALVIN DUNN, ESQUIRE 3 Pillsbury, Winthrop, Shaw, Pittman, L.L.P. 2300 N Street, NW 4 Washington, D.C. 20037 Attorneys for Petitioner 5 CHARLES L. WILLE, ESQUIRE 6 TIMOTHY D. PRICHARD, ESQUIRE 30 East Broad Street 7 23rd Floor Columbus, Ohio 43215 8 Attorneys for Ohio Attorney General's Office 9 10 11 12 I N D E X 13 DIRECT EXAMINATION BY MR. HILL Page 4 14 15 16 E X H I B I T S 17 Deposition Exhibit No. 45 Page 15 18 (Letter from Pillsbury Law Firm dated 4/7/05 - not attached) 19 Deposition Exhibit No. 46 Page 18 (Faxed Letter from Strausbaugh - not attached) 20 Deposition Exhibit No. 47 Page 19 (Strausbaugh Affidavit - not attached) 21 Previously Marked Exhibit No. 6 Page 52 (Artist Drawing - not attached) 22 Previously Marked Exhibit No. 12 Page 91 (Artist Drawing - not attached) 23 Previously Marked Exhibit No. 13 Page 92 (Artist Drawing - not attached) 24 Previously Marked Exhibit No. 14 Page 92 (Photograph of Delaney Gibson - not attached) 25 0003 1 E X H I B I T S (Continued) 2 Deposition Exhibit No. 48 Page 93 3 (Photograph of Delaney Gibson - not attached) Deposition Exhibit No. 49 Page 96 4 (Photograph of Delaney Gibson - not attached) Deposition Exhibit No. 50 Page 105 5 (Presentation Letter 9/12/83 - not attached) Previously Marked Exhibit No. 20 & 21 Page 110 6 (Grand Jury Indictment) Deposition Exhibit No. 51 Page 115 7 (Interview Form - not attached) Deposition Exhibit No. 52 Page 117 8 (Interview Form of Juan Flores - not attached) Deposition Exhibit No. 53 Page 119 9 (Interview Form of Pablo Cervantes - not attached) Deposition Exhibit No. 54 Page 120 10 (Interview Form of Miguel Cervantes - not attached) Deposition Exhibit No. 55 Page 134 11 (Interview Notes of Paul Hartman - not attached) Deposition Exhibit No. 56 Page 140 12 (Memo of Thomas Strausbaugh - not attached) Deposition Exhibit No. 57 Page 144 13 (Memo of T. Strausbaugh & G. Roberts - not attached) Deposition of Exhibit No. 58 Page 147 14 (Document dated 4/29 - not attached) Deposition Exhibit No. 59 Page 156 15 (Memo of Paul Hartman 1/11/84 - not attached) Previously Marked Exhibits 31 - 41 Page 157 16 (Photographs - not attached) Previously Marked Exhibit 28 Page 168 17 (Memo of Paul Hartman - not attached) Previously Marked Exhibit 26 Page 172 18 (Memo of Paul Hartman - not attached) Deposition Exhibit No. 60 Page 172 19 (Memo of Paul Hartman - not attached) Previously Marked Exhibit No. 25 Page 173 20 (Memo of Paul Hartman - not attached) Deposition Exhibit No. 61 Page 173 21 (Memo of Paul Hartman - not attached) Previously Marked Exhibit No. 27 Page 175 22 (Memo of Paul Hartman - not attached) 23 24 25 0004 1 THOMAS STRAUSBAUGH, 2 the witness herein, being first duly sworn on oath, was 3 examined and deposed as follows: 4 DIRECT EXAMINATION 5 BY MR. HILL: 6 Q. Good morning, Mr. Strausbaugh. 7 A. Good morning. 8 Q. We've introduced ourselves earlier, but just 9 for the record, I'm Tom Hill, my colleague Alvin Dunn, 10 and we represent Mr. Spirko. 11 A. Okay. 12 Q. And I think you've also met these gentlemen, 13 Mr. Prichard and Mr. Wille from the Ohio Attorney 14 General's Office. 15 A. I have. 16 Q. Try to make this as painless and as short as 17 we can do it. Okay? 18 A. Fine. 19 Q. Appreciate you coming down here. Have you 20 ever been deposed before? 21 A. Well, I've given sworn testimony. 22 Q. Right. In the courtroom, right? 23 A. Many times, right. 24 Q. Right. So my question was have you ever been 25 in this sort of setting, which this is called a 0005 1 deposition, where you're giving sworn testimony but not 2 in a courtroom? 3 A. No. 4 Q. Okay. Just let me just explain briefly. It's 5 obviously similar in its most essential form to 6 testifying in a courtroom in that you are under oath 7 and obliged, obviously, to tell the truth. It is 8 different than testifying in the courtroom in that, as 9 you can see, there's no judge here. As a result it's 10 somewhat more informal, but the informality should not 11 be confused with being anything less than precise and 12 truthful in your testimony. Do you understand that? 13 A. I understand that. 14 Q. I'll have an opportunity to ask you some 15 questions and then, as they've indicated, from all 16 likelihood Mr. Wille, and then I may have a few 17 follow-up questions thereafter. If at any time you 18 don't understand the question or it's not completely 19 clear, please let me know so that we can clarify and 20 make sure that you're answering the question, that you 21 understand the question that's being asked. You 22 understand that? 23 A. I understand. 24 Q. And just like in a courtroom, you're going to 25 have to give your answers audibly for the benefit of 0006 1 the court reporter because she can't record nods. 2 A. Well, I talk slow so that will be an 3 advantage. 4 Q. There will undoubtedly come a point during the 5 deposition as well where we will use some documents and 6 we will show you documents and, you know, you take as 7 much time as you need to review any particular document 8 that's being shown to you. Okay? 9 A. Okay. 10 Q. Let's begin by you giving me a little bit -- 11 or us a little bit of your professional background. If 12 you could just give us a synopsis of your professional 13 life. 14 A. Well, I was a United States postal inspector 15 for 20 years. Retired from there in 1990, July 1st, 16 1990. Moved to Nevada, where I ran the insurance fraud 17 unit for the Attorney General's Office in Nevada. I 18 retired from there in December 2003 and in March 2004 19 moved to Florida, where I assist my wife in selling 20 real estate. I got my realtor's license recently. 21 Q. Since you've moved to -- since you left Nevada 22 have you done any law enforcement work of any kind? 23 A. No. 24 Q. And prior to -- so if I understand correctly, 25 you would have become a postal inspector in around 0007 1 1970; is that right? 2 A. Right. 3 Q. Prior to then were you also employed by the 4 Postal Service? 5 A. I was employed by the Postal Service and by a 6 wholesale drug company while I was going to college. 7 Q. Were those concurrent or was the drug business 8 first and then -- 9 A. The drug business was first. The Post Office 10 I think started around '62. 11 Q. And were you -- 12 A. And I was there eight years before -- before I 13 became an inspector. 14 Q. And in those eight years you were not involved 15 in the law enforcement side of things? 16 A. No. 17 Q. Other than the 20 years with the Postal 18 Service and then the three years maybe with the 19 Nevada -- state of Nevada? 20 A. No. I was with Nevada from 1992 until 2003. 21 Q. Oh, I'm sorry. I misunderstood. So you were 22 there for 11 years? 23 A. Right. 24 Q. And in the two years between the time that you 25 retired from the Postal Service and the time you went 0008 1 to work there, were you employed or not? 2 A. Those two years, no. I was relocating, 3 building patios, putting in sprinkler systems in a new 4 home that we had built in Nevada. 5 Q. And you moved to Florida in 2003? 6 A. Right. December -- well, no. 2004, in March, 7 we moved to Florida. The three months between my 8 retirement date at the end of '93 and when I moved to 9 Florida we visited relatives around the country as we 10 were relocating here. 11 Q. And did you grow up in Ohio? 12 A. Yes. 13 Q. And essentially prior to the time that you 14 moved to Nevada had you spent your entire life living 15 in Ohio? 16 A. Oh, no. My first assignment with the postal 17 inspectors was in Minnesota. I was domiciled at Fergus 18 Falls, Minnesota for three years; Columbus, Ohio for -- 19 let's see, from '74 to '83 I was in Columbus; Cleveland 20 from '83 until '90 when I retired. 21 Q. So when the Mottinger disappearance occurred 22 you were in the Columbus office at that time? 23 A. Yes. 24 Q. And sometime during the investigation or 25 during the pendency of that case you were transferred 0009 1 to Cleveland? 2 A. Yes. 3 Q. Could you tell me what you have done, if 4 anything, to prepare for today's deposition? 5 A. Nothing. Absolutely nothing, except go 6 through an attic in our storage space trying to find 7 old videotapes. 8 Q. And were you successful in finding -- 9 A. I was. They're in the car. There's 26 10 videotapes. And I'm a little surprised that our system 11 now values them over court transcripts because these 12 were publicly available to anyone that had a cable TV 13 subscription in Van Wert, Ohio. And there's -- I'm 14 assuming there's nothing on there that wasn't in the 15 court transcript, although I didn't view the tapes 16 since I found them. 17 Q. And these videotapes, are these tapes that you 18 personally had recorded off of your VCR? 19 A. Not at all. They was done by the TV station 20 on my personal tapes that I purchased. The inspection 21 service, I asked them if they wanted a copy and they 22 said no because they had the court transcripts. So I 23 thought, well, it might help me in my report writing on 24 the case so I had them done, but I haven't viewed them 25 since 1983. 0010 1 Q. Did you use -- did you, in fact, use them for 2 your report writing back then? 3 A. I looked -- I looked at a couple of them and I 4 pulled a little bit off of one of Spirko's -- I think 5 some of his testimony during the mitigation phase of 6 the hearing to use as an aid in teaching a violent 7 crimes course in Los Angeles, California for a couple 8 years. It was kind of a visual thing. 9 Q. Let me come back to that in a minute. The 10 tapes themselves, the 26 tapes, do they represent the 11 entire trial proceedings? 12 A. I have no idea. I've not looked at all of 13 them. 14 Q. Trying to remember back as to what you -- 15 A. I never looked at all 26 tapes. 16 Q. Do you recall what you requested, what you 17 think you purchased? 18 A. What I thought was purchased was -- I was in 19 the courtroom, you know, when this was being done and 20 it was my understanding that the jury was not to be 21 photographed. This was one of the first cases I think 22 in Ohio that was ever televised. I remember them 23 hashing out a bunch of conditions that I was aware of. 24 The camera couldn't start until the judge hit the gavel 25 and then as soon as the proceedings was over it was 0011 1 supposed to stop and, you know -- I don't know if 2 that's what happened or not. You'll have to look at 3 them and see. 4 Q. But in terms of your recollection, not having 5 obviously looked at them, but what you think you have, 6 what you think you purchased was whatever was recorded 7 you think is what you have? 8 A. Exactly. And it's been 22 years they've been 9 in storage lockers. They've been in 110-degree 10 temperatures in my storage places in Nevada in the 11 desert and here in Florida. I make no -- and, in fact, 12 if you want to give me $2 a tape you can buy 'em from 13 me for whatever's on them. Seriously, I have no need 14 for them. I haven't looked at them. I thought for a 15 while -- I looked at them -- parts of them back in 16 the '80s, '83, '84 to get material for my thing, but 17 other than that I haven't looked at them. 18 I thought my wife had sold them at a garage 19 sale for a quarter a tape just for the used tape value. 20 I mean, it's -- you're making it a big deal, but it's 21 something that 15,000 people probably saw every day. 22 And if you've read the transcripts, I don't think 23 there's going to be anything different on the tapes, at 24 least in my opinion I don't think there would be. 25 There shouldn't be. 0012 1 Q. Obviously Mr. Dunn -- well, none of the four 2 of us were at the trial. 3 A. Right. 4 Q. You're the only one here who was. 5 A. Right. 6 Q. Is it your recollection that this was being 7 broadcast on the local cable stations or the 8 gavel-to-gavel, for lack of a better word, coverage? 9 A. That was my -- that was my impression. I 10 mean, why would a judge allow the cameras in there if 11 that wasn't -- 12 Q. In other words, as opposed to being excerpted 13 on the local news at night, you know, three minutes 14 of -- did they run it sort of continuously like Court 15 TV would today? 16 A. I think so. I was not permitted to watch it 17 during the trial, even after-hours. No witnesses, 18 nobody involved in the trial was permitted by the court 19 to look at them, so I didn't. 20 Q. You mentioned that you had used -- that you 21 looked at a few of them in connection with a course you 22 had taught in Los Angeles? 23 A. Right. 24 Q. Was that a Postal Service course? 25 A. It was sponsored by the United States 0013 1 government and it was a national violent crime seminar 2 that involved various law enforcement agencies. And I 3 had had several homicide cases, not just the Elgin 4 case, that I had been involved in and I was asked to 5 make a presentation on task force operations. 6 Q. And was this a solitary sort of course or did 7 you do this several times? 8 A. Several times. 9 Q. Okay. Over -- subsequent to the Spirko case? 10 A. Oh, yeah. Well, yeah. Yeah. 11 Q. And always in the context of U.S. government- 12 sponsored programs, you didn't do this commercially? 13 A. No. No. 14 Q. And the attendees at these things were other 15 government employees? 16 A. Other federal law enforcement personnel. 17 Q. Okay. In addition to locating the videotapes, 18 were you able to locate any documents, any hard copy 19 documents? 20 A. No. Outside of a copy of a letter that your 21 firm had sent. I think I got a copy from Charles 22 Kennedy, the Van Wert County prosecutor, asking for my 23 comments on a letter that you guys had sent to somebody 24 about Paul Hartman, and I gave them my comments in the 25 form of an affidavit. So I've got a copy of a letter, 0014 1 I think, that your firm had sent out. 2 Q. Do you have that with you here? 3 A. Yeah. Dated April 7th, 2005. Does that look 4 familiar? 5 Q. Well, let's have it marked I think probably. 6 A. Oh, one other question. I assume you're going 7 to take those tapes, right? Is there a legal precedent 8 for taking private property like that, just taking it 9 to use, without a search warrant? 10 Q. It's pursuant to subpoena. 11 A. But it's personal property and it's not 12 evidence of a crime. In fact, it was videotaped a year 13 and a half after the crime occurred. 14 Q. Right. Well, we can talk about it. I guess 15 we can be on the record, it doesn't matter. It is 16 relevant. 17 A. It is private property. I paid for the tapes. 18 Q. Right. And you would get them back. I mean, 19 they don't become -- they don't get -- they don't 20 become the property of the court forever. 21 A. Okay. Okay. 22 Q. You'll get them back. 23 A. Okay. 24 Q. So it's not a taking in that sense. It's a 25 borrowing, if you will, but it's pursuant to Judge 0015 1 Carr's subpoena authority, which he -- 2 A. Okay. Just for my own information. But we 3 can go get them whenever you want. They're in the car. 4 Q. I appreciate that. Mr. Strausbaugh, do you -- 5 MR. WILLE: Just briefly. 6 MR. HILL: You want to review it or do you 7 want me to talk over you? 8 MR. PRICHARD: You can keep going. 9 MR. WILLE: Go ahead. 10 BY MR. HILL: 11 Q. You have given me what we have now marked as 12 Deposition Exhibit 45, which is a letter that you 13 brought to this deposition. How did you come into 14 possession of this letter? 15 A. From Charles Kennedy, the Van Wert County 16 prosecutor. 17 Q. And how did Mr. Kennedy, did he -- 18 A. I have no idea. You'll have to ask him where 19 he got it. 20 Q. No, that was not going to be my question. 21 A. Okay. 22 Q. Did Mr. Kennedy just stick this in the mail 23 and send it to you or was there a conversation between 24 you and he that preceded that? 25 A. He called me and said he was going to fax me 0016 1 something, he wanted me to read it and give him my 2 comments, and that's all he said about it. 3 Q. Okay. Did he tell you at the time when he 4 called you, did he tell you anything about what it was 5 he was sending you? Give you any sense -- 6 A. Well, yes. Obviously if it was Van Wert 7 County I knew what it was about. 8 Q. What did he say, as best you recall? 9 A. I don't remember. It was a very brief 10 conversation. 11 Q. Did he mention in the conversation that it 12 concerned things that Mr. Hartman was alleged to have 13 said? 14 A. Paul Hartman's name may have been mentioned, 15 but not specifically what he said, as I recall. 16 Q. And do you recall when that -- when he called 17 you? 18 A. Well, since my reply to him went April 11th, 19 it had to be sometime between like the 9th or 10th of 20 April. 21 Q. Okay. And how did you receive it from him? 22 A. Fax, I believe. Yeah, that's a fax. He faxed 23 it to me. 24 Q. Well, no. I think if you look at the fax 25 banner on here -- 0017 1 A. Well, he faxed it to me. That's how I 2 received it. 3 Q. Do you have a fax at home? 4 A. I do. I sell real estate. 5 Q. Can you tell me -- the top -- I would 6 represent to you that the top fax banner is from our 7 law firm fax machine sent as we faxed it to 8 Mr. Wille -- I mean Mr. Kennedy. But can you look at 9 the bottom, there's a fax banner at the bottom as well. 10 A. Means nothing to me. 11 Q. And you did, in fact, make some comments? 12 A. Uh-huh, I did. 13 Q. And do you have those with you? 14 A. Uh-huh. (Indicating.) 15 Q. Thank you. You don't have another copy of 16 this, do you? 17 A. No, I don't. 18 Q. I wonder if we should -- 19 MR. HILL: Let's go off the record for a 20 moment. 21 (Off-the-record discussion.) 22 BY MR. HILL: 23 Q. When we were off the record Mr. Prichard 24 indicated that he had made a request of the Postal 25 Service if they could locate the tapes. Did someone 0018 1 from the Postal Service contact you in regard to that 2 or were you -- were you operating in response to the 3 subpoena? 4 A. No. I contacted someone from the Postal 5 Service to see if they were interested in having anyone 6 for representation. 7 Q. You mean to represent you? 8 A. Well, yeah, if they wanted to sit in, yeah, 9 and they weren't concerned about it. They said that 10 the Ohio Attorney General's Office was quite competent 11 to handle it. 12 Q. And who did you contact, if not by name, at 13 least -- 14 A. The inspector in charge in Cleveland, and 15 someone I didn't know. 16 Q. Okay. We'll come back to the letter that you 17 sent to Mr. Kennedy in a few minutes when we get it 18 back, but did you fax that back to him? 19 A. Yes. 20 Q. When I say -- 21 A. I believe I did. Or did I mail it to him? I 22 don't remember. I don't remember if I faxed it or 23 mailed it. 24 Q. Just so that the record is clear, what we're 25 talking about is what will become Exhibit 46. And did 0019 1 you -- did you subsequently have occasion to have any 2 conversation with Mr. Kennedy about the matters in 3 those letters? 4 A. Not that I recall. I remember calling talking 5 to a secretary and telling her I would send that, but I 6 don't believe I talked to Charlie. I think he was in 7 court or something. 8 Q. And have you subsequently had any 9 conversations with Mr. Kennedy? 10 A. Not at all. 11 Q. All right. We'll come back to that. Without 12 getting into the substance of it right now, there came 13 a point in time -- and I guess let's mark this as 14 Exhibit 47. Let me show you Exhibit 47. Just if you 15 could just briefly look at it for now. 16 A. Uh-huh. 17 Q. Do you -- 18 A. Right. 19 Q. Do you recognize that? 20 A. I do. Uh-huh. 21 Q. Okay. What is it? 22 A. Well, it's an affidavit that I completed at 23 the request of the Ohio -- telephonic request of the 24 Ohio Attorney General's Office. I don't remember what 25 day they called me to save some time. This would have 0020 1 probably been completed the day after they called me, 2 just guessing. I got a telephone call from the Ohio 3 Attorney General's Office asking if I could do an 4 affidavit. Obviously they had read Charlie 5 Kennedy's -- the one I had sent to Charlie. And I said 6 sure, I could. And I did it and faxed it back and 7 probably mailed it back because it was notarized. 8 Q. Again, without -- at this moment, without 9 going into the substance of it, we can do that later, 10 do you remember who contacted you from the Ohio 11 Attorney General's Office? 12 A. No, I don't. 13 Q. Do you remember if it was either one of these 14 gentlemen? 15 A. It may have been one of these two, but I'm not 16 sure. I don't really remember. 17 Q. And tell me what you do remember about the 18 conversation with the person from the Ohio Attorney 19 General's Office. 20 A. They asked if I had given an affidavit to 21 Charlie Kennedy and I said yeah, I had. And they asked 22 if I would do one for them and I said yes. 23 Q. Was there any discussion in that phone 24 conversation about sort of the substance of what it is 25 you would say in the affidavit? 0021 1 A. Just in a broad general sense. 2 Q. Okay. Tell me as best you remember. 3 A. I don't remember. 4 Q. You don't remember anything about what was 5 being said? 6 A. No. I just figured they wanted basically what 7 Charlie Kennedy had, you know. 8 Q. And what made you conclude that -- did they 9 indicate to you that they were -- that they had 10 received from Mr. Kennedy what you had sent 11 Mr. Kennedy? 12 A. No, but I assumed that they had, otherwise why 13 would they be calling me? I mean, that was my 14 assumption at the time. 15 Q. But you don't recall today, as we sit here 16 today, any discussion about having received -- about 17 them having received anything from Mr. Kennedy? 18 A. No. 19 Q. Did they offer -- you've said they. As best 20 you recall is it one or two persons on the telephone or 21 more, do you recall? 22 A. Well, there was me and another person. 23 Q. Right. But on the other end of the line. 24 A. Oh, I don't know if someone else was in the 25 office or not. I didn't hear anyone else speak. 0022 1 Q. You only heard one person speak? 2 A. Right. 3 Q. How long did that conversation last? 4 A. I don't remember. 5 Q. I mean, was it a lengthy conversation or short 6 conversation? 7 A. Well, it was short. 8 Q. A couple of minutes? 9 A. I don't know. 10 Q. Did they offer to draft an affidavit for you? 11 A. Yes, because I do remember -- I'm not a 12 typist, okay. And I did probably discuss what's in 13 here, which is very little, with whoever the person 14 was. I may have sent them a rough draft; I don't 15 remember, but obviously this was put on District Court 16 paper, I guess. I don't have that at home, so yeah, 17 whatever I sent them or told them was transcribed onto 18 this. 19 Q. Okay. Just try your best to remember. Do you 20 think -- do you recall, did you send them anything? 21 A. I don't know if I sent them a rough -- faxed 22 them a rough draft or whether it was just a telephonic 23 request and we went over, you know, what I could tell 24 them. I mean, it was obvious it was, you know, 25 something that Charlie Kennedy had sent up to them, 0023 1 otherwise they wouldn't be calling me, so . . . 2 Q. Well, is that an assumption on your part? 3 A. It's an assumption on my part. 4 Q. Well, I mean, you were the head of the task 5 force, correct? 6 A. Right. 7 Q. So you were intimately involved in the Spirko 8 case? 9 A. Right. No one's called me for 23 years. And 10 I think it's logical after 22 years or 23 years to 11 assume when you get a call from the Ohio Attorney 12 General's Office after you've given an affidavit to 13 Charlie Kennedy and no one's talked to you in 22 years 14 that a logical assumption is it arose from what I sent 15 Charlie Kennedy. 16 Q. Again, just for purposes of the record so that 17 we're as precise as possible, I think you just 18 mentioned having given an affidavit to Charlie Kennedy. 19 You didn't in fact give him an affidavit, right? 20 You're referring to this -- 21 A. Right. 22 Q. -- other document? 23 A. Right. No. No. There was nothing notarized 24 given to him. It was a statement. 25 Q. You just mentioned that -- we need to take a 0024 1 break at some point to go over the substance, but let's 2 get it marked at least. This is Exhibit 46. This is 3 Exhibit 46. Is this the document that you've given me 4 that you sent to Mr. Kennedy? 5 A. I believe so. I believe so. 6 Q. You mentioned that you, yourself, are not a 7 typist. Did someone type this for you? 8 A. No. I did it, but it took the better part of 9 two or three hours for me to do that. 10 Q. In preparing this letter to Mr. Kennedy, did 11 anybody -- did anybody review it, anybody look at it? 12 A. Me. 13 Q. Other than yourself? 14 A. No. How would I know who Charlie showed it 15 to? 16 Q. No. No. Obviously you don't know that. On 17 your end as you prepared it before you sent it to 18 Mr. Kennedy? 19 A. Me and three dogs looked at it. 20 Q. Since the time that you sent it to 21 Mr. Kennedy, Exhibit 46, has anybody -- obviously we 22 don't know what Mr. Kennedy did. Has anybody else, as 23 far as you know, seen it or been provided a copy of it 24 before today? 25 A. Anyone I know? No. 0025 1 Q. Are you aware of anybody that's received it? 2 A. No. No. 3 Q. You haven't given it to anybody other than 4 Mr. Kennedy? 5 A. I got a telephone call from Steve Keister who 6 was the prosecutor during the trial. And I sent a copy 7 I believe to Steve Keister too -- and that was by fax 8 -- of that. 9 Q. Of Exhibit 46? 10 A. Right. 11 Q. And when did you get a call from Mr. Keister, 12 as best you recall? Not necessarily a precise date -- 13 A. I don't remember. 14 Q. -- but when in the -- 15 A. I don't remember. It had to be about the same 16 time Charlie requested this. Maybe Charlie Kennedy 17 called Keister and asked if he knew where I was or vice 18 versa. I don't remember, but it was about the same 19 time. And I don't remember the exact dates. I do know 20 that I was finished with that on April 11th and I don't 21 recall discussing it with anybody after April 11th, 22 except the Ohio Attorney General's Office when they 23 called me. 24 Q. Well, let's take these one at a time. 25 Mr. Keister called you, correct, or did you call him? 0026 1 A. I don't remember. Honestly, I don't remember 2 whether I called him or he called me to find out where 3 I was and maybe -- I don't know if he called right 4 before Charlie. This all happened in one morning while 5 I was working and I don't recall the chronology of the 6 phone calls. I know they were close together as I 7 recall. 8 Q. Tell me as best you recall about the 9 conversation. What was the conversation with 10 Mr. Keister? 11 A. I don't remember. I don't recall what it was. 12 Q. Well, was there -- 13 A. I mean, it generally concerned giving a 14 statement. 15 Q. Mr. Keister's conversation with you concerned 16 giving a statement? 17 A. I don't remember. I don't remember, period. 18 I don't remember. 19 Q. Did you discuss with Mr. Keister -- let me 20 finish the question. Did you discuss with Mr. Keister 21 the substance of the underlying issues that had been -- 22 that were being addressed with regard to Mr. Hartman's 23 alleged statements? 24 A. I probably did before I faxed it to him. I 25 probably told him what was going to be in my statement, 0027 1 which was in response to the letter you wrote that 2 you've already got that was faxed to me by the Van Wert 3 County prosecutor. A day or two later this was done 4 and I sent a copy, I believe -- now, I could be wrong, 5 but I thought I sent a copy to Steve Keister, as well 6 as Charlie Kennedy. 7 The only thing chronologically I know is that 8 was before the Ohio Attorney General's Office contacted 9 me. Now, whether Keister called me first or Charlie 10 Kennedy called me first or the exact things that were 11 discussed with them, because I had your letter, and 12 that's basically what I tried to answer in my response. 13 Q. When you say you had my letter, you're 14 referring to Exhibit 45? 15 A. Well, the Pillsbury law firm letter. Right. 16 Q. Exhibit 45, correct? 17 A. Right. 18 Q. And Exhibit 45 is addressed to whom? 19 A. Charlie Kennedy, Esquire. 20 Q. Anyone else? 21 A. Prosecuting attorney. Well, Charles Wille, 22 Esquire, Ohio Attorney General. 23 Q. Look at the end of it. Is anybody copied on 24 the letter on the last page? 25 A. Is anybody copied? 0028 1 Q. Do you know how sometimes on correspondence 2 there's a cc at the end of the letter that indicates 3 someone else other than the addressee got a copy? 4 A. I don't see a cc on here. 5 Q. Okay. So at least from the face of it, face 6 of the letter, Exhibit 45, Mr. Keister did not get a 7 copy of it from my law firm; is that right? 8 A. I can't answer that. 9 Q. From the face of it it doesn't appear that 10 way? 11 A. Well, I can't answer that. Maybe your 12 secretary doesn't put cc's on, I don't know. 13 Q. But the question -- I understand that. The 14 question -- 15 A. You'll have to ask Charlie Kennedy. 16 Q. The question was from the face of the letter, 17 as far as what's written on the letter, there's no 18 indication that Mr. Keister got a copy, correct? 19 A. Well, there's no indication, but that doesn't 20 say he couldn't. 21 Q. I understand. 22 A. Okay. 23 Q. Now, did Mr. Keister when you spoke with him 24 indicate that he, in fact, had gotten a copy of this 25 letter from Mr. Kennedy? 0029 1 A. No, I don't recall. 2 Q. So he might have or he might not have, you 3 just don't remember? 4 A. I don't remember. 5 Q. And -- well, other than that one conversation 6 that you had with Mr. Keister, since that conversation 7 from that day to the present, have you had any other 8 conversations with Mr. Keister? 9 A. Not -- no. 10 Q. Other than the conversation that you had with 11 Mr. Kennedy that you've testified about? 12 A. Right. 13 Q. From that time to the present have you had any 14 conversations with Mr. Kennedy? 15 A. No. 16 Q. So after you faxed your response, Exhibit 46, 17 to Mr. Kennedy, you had no further conversation with 18 him about it? 19 A. I don't recall any, no. 20 Q. Well, I'm -- 21 A. No. I mean, I don't remember. 22 Q. All right. Going back in time. You moved to 23 Florida I believe you said in 2003? 24 A. 2004. March 2004. I retired December 2003 in 25 Nevada. 0030 1 Q. Since you've been in Florida March 2004, other 2 than these two conversations that you've just 3 referenced, have you had conversations with either 4 Mr. Kennedy or Mr. Keister since you've been in 5 Florida? 6 A. I was trying to remember. Before Charlie 7 Kennedy was a prosecutor he handled a personal legal 8 matter for me and I don't think that that raised its 9 head any time earlier. This was back in '83 or '84. 10 Q. All right. So that's been almost 20 years? 11 A. Yeah. But I don't think -- no, I've not 12 talked to Charlie Kennedy in years until this phone 13 call. 14 Q. And would the same be true of Mr. Keister? 15 A. I have talked to Steve Keister. Maybe each 16 year around Christmastime I will give his office a 17 call. He's got a real nice secretary that's a real 18 friendly girl and while we were in Van Wert there was a 19 little practical joke I used to play on her where I 20 would call her office and order pizzas, and I 21 perpetuated that over the years around Christmastime, 22 like I had the wrong number. Maybe once or twice I 23 talked to Steve and asked how his son's law school was 24 coming and over the last 15 or 20 years, but certainly 25 not a close -- 0031 1 Q. Do you know whether Mr. Kennedy and 2 Mr. Keister -- had you made them aware of your 3 retirement in Nevada and your move to Florida? 4 A. Keister, no. Kennedy, no, but one of the 5 sheriff's deputies knew where I was. 6 Q. And who's that? 7 A. Ralph Eversoll. He knew I was retiring. He 8 didn't know exactly where. 9 Q. And he knew because you had maintained contact 10 with him? 11 A. I probably -- since 1983 I've probably seen 12 Ralph Eversoll four or five times when he'd come to Las 13 Vegas, the sheriff and him would come, which was a 14 different sheriff than when this was. 15 Q. Just social visits? 16 A. Yeah. Yeah. 17 Q. All right. Let's go back to the affidavit, 18 okay, Exhibit 47. Without again getting into the 19 substance of it, your recollection is -- well -- that 20 the text, Exhibit 47, is about two and a half pages 21 long, right? 22 A. Right. 23 Q. And the text in here, who drafted that? Whose 24 words are those originally? 25 A. Mine. Basically the text -- the substance of 0032 1 that was mine. I didn't type that, though. And it was 2 either taken from something I had faxed them or the 3 Charlie Kennedy thing or what we had discussed on the 4 phone, I don't recall. But did I type it? No. Is 5 that my statement? Yes. It's nobody else's 6 statements. There were no words put in there. It was 7 thoroughly reviewed before I signed it and was 8 notarized, so that's my statement. 9 Q. But the actual words themselves as best you 10 remember were -- 11 A. That's my statement. I signed it. It was 12 notarized. I didn't type it. I don't know if it was 13 taken from a phone conversation, Charlie Kennedy's 14 thing that I'm assuming was forwarded to them. That's 15 all I can tell you. 16 Q. Okay. But all I'm asking you is that right 17 now is that the words themselves that are on there are 18 words -- I understand you didn't physically type it, 19 okay. 20 A. Right. 21 Q. But they are words that you chose? 22 A. I can't answer that. I'm assuming. It's my 23 statement. I read it. I had it notarized. It's my 24 statement. 25 Q. Well, here's what I'm getting at, 0033 1 Mr. Strausbaugh, there are -- I mean, there are 2 probably an infinite number of ways that an affidavit 3 can get created. 4 A. Right. 5 Q. But two of them would be that someone else 6 working with you drafts something up, presents it to 7 you for your review, you review it and you make any 8 changes that you think are appropriate and then you 9 sign it. Another one is that you sort of start from 10 scratch yourself and you, in effect, provide the text 11 yourself. 12 A. You want me to go through and look at words 13 that I might not normally use and extract those for 14 you? 15 Q. I'm just asking you -- 16 A. Let me see it. 17 Q. -- from your memory today whether you think 18 these are your words or somebody else drafted them? 19 A. No. I think they're my words because I read 20 it, I had it notarized. I wouldn't have had it 21 notarized, you know -- 22 Q. Well, it would be perfectly legitimate, 23 wouldn't it, to have it notarized as long as it was 24 truthful? 25 A. Well, yes, it would be. That's why I fail to 0034 1 understand what you're trying to extract from me. It's 2 my statement. I signed it. 3 Q. I'm just asking you for your best memory as to 4 whether or not these are your -- these are your words 5 or whether they're someone else's words that you 6 adopted as your own by reviewing it? That's all. 7 A. They appear to be my words. 8 Q. Do you remember whether or not you showed it 9 to anybody prior to executing it, sort of in draft 10 form? 11 A. Not that I can recall. Who would I show it 12 to? I'm 1,000 miles away, you know. 13 Q. Well, show in -- so that we're being precise 14 here, I don't mean necessarily only show it as in hand 15 it to somebody. There are fax machines that you could 16 fax it to somebody, for example. 17 A. You know, I may have asked my wife to look at 18 it and see if I spelled the words right or something, 19 you know. 20 Q. Did you show it to a representative of the 21 Attorney General's Office in draft form before 22 executing it? 23 A. I don't recall whether I faxed them something 24 or I didn't. I really don't recall. It was no big 25 deal, you know. That's my statement, though. 0035 1 Q. Let me -- look at paragraph number one of 2 Exhibit 47. 3 A. Okay. Right. I filled in the 20 years. 4 Q. Now, would it be reasonable to assume that if 5 you were doing it from scratch you wouldn't have left 6 that blank? You knew that you had been there for 20 7 years, right? 8 A. Right. 9 Q. So isn't it a reasonable inference that 10 someone else wrote the sentence who didn't know exactly 11 how many years you had been there and then you filled 12 it in? 13 A. Either that or it was a bad fax or they didn't 14 write the note down during the discussion how long I 15 had been an inspector. There could be any number of 16 reasons why that would not -- they would have asked me 17 to complete that. 18 Q. Right. But certainly if -- if you had written 19 it from scratch there wouldn't be a blank there, would 20 there? If I asked you right now to write a sentence 21 about how many years you had been with the Postal 22 Service -- 23 A. No. I wouldn't leave it blank, no. It may 24 have came from the fax thing that I sent it or, you 25 know, maybe it wasn't legible, I don't know. But yeah, 0036 1 that 20 is mine, I filled the 20 in. 2 Q. Then is that -- well, let me show it to you 3 again. The -- can you recognize that? Does that look 4 like your handwriting, the 20? 5 A. Yeah, it does look like it. 6 Q. All right. And the county is handwritten in, 7 isn't it? 8 A. Yeah, this was -- this was done by the gal 9 that notarized it. 10 Q. So that's not your handwriting, that's her 11 handwriting? 12 A. Exactly. 13 Q. Same thing with the state? 14 A. Yeah. Yeah. Uh-huh. Yeah, she couldn't 15 notarize anything from Ohio. 16 Q. Right. Prior to today, have you ever met 17 either of these -- well, any of the four of us that are 18 in this room? 19 A. Although he looks familiar to me (indicating). 20 Q. You're pointing to Mr. Dunn? 21 A. Yeah. But -- he does look familiar to me, but 22 I don't -- no, I can't recall. 23 Q. To the best of your knowledge, before coming 24 here today have you had any conversations with either 25 Mr. Prichard or Mr. Wille? 0037 1 A. On the telephone. 2 Q. What do you recall about those conversations? 3 A. We've already covered it. 4 Q. Well, you're going to have to cover it again 5 because I'm not clear on what conversations -- 6 A. I don't recall. Someone called me, and I 7 can't tell you if it was one of these two gentlemen or 8 another person from the Ohio Attorney General's Office, 9 talked to me about a statement that was given by 10 Charlie Kennedy or -- I'm assuming they called me 11 because of a statement I had given to Charlie Kennedy. 12 Q. They may have mentioned that or they may not 13 have, you don't remember? 14 A. I don't remember, but I'm assuming that's what 15 it was about since I had not heard from them for years. 16 I never had heard from them before. So have I talked 17 to either of these two? I can't say. I did talk to 18 someone from the Ohio Attorney General's Office, 19 though. 20 Q. All right. And the conversation you're 21 relating is the one that you've already talked about 22 where someone called to ask you if you would give an 23 affidavit? 24 A. And I said yeah. 25 Q. And you do or do not recall whether you had 0038 1 subsequent conversations as that affidavit was being 2 created, do you recall? 3 A. No, I don't recall, but I don't believe I did, 4 but I don't recall. 5 Q. Since the time that I contacted -- you got a 6 letter from me telling you that you would be deposed, 7 correct? 8 A. Right. 9 Q. And then you and I have had two brief 10 telephone conversations to set up the logistics of the 11 thing; is that right? 12 A. We may have had one before when I was with the 13 Nevada Attorney General's Office. It may have been 14 you. Again, I don't remember. About a year and a half 15 ago someone wanted a free trip to Vegas to come out and 16 interview me on the Spirko case and I told him it had 17 been so long I don't remember. It may have been you. 18 Q. So you never had a meeting, that meeting? 19 A. No. Well, I just told them I remember very 20 little about it. It was 22 years ago. And evidently 21 they were discouraged or didn't want to take the time 22 off or had something more pressing, but no one ever 23 came. Was it you that called me? 24 Q. Apart from that -- I don't remember. 25 A. I don't remember either. 0039 1 Q. Apart from that -- putting that aside for the 2 moment, okay. You and I did have two very brief 3 conversations recently about the logistics of setting 4 this up, correct? 5 A. I don't know whether we had two or not. I 6 remember a conversation where I didn't want to go to 7 Ohio. 8 Q. Right. And you told me that you were going 9 out of the country on a particular date? 10 A. Exactly. From the 15th of June till the 15th 11 of July. 12 Q. Right. And then I subsequently called you 13 back in order to lock down a particular date after 14 that? 15 A. Right. Okay. I remember that second call 16 now. 17 Q. Other than those two conversations with me, 18 since the time that you knew that you were going to be 19 deposed and got the letter from me telling you that you 20 would be deposed, have you had any conversations with 21 anybody about the fact that you would be deposed in 22 this case? 23 A. No. 24 Q. Okay. I just want to sort of go back and talk 25 about your contacts with certain people. Mr. Eversoll, 0040 1 have you had any contact with him since you've moved to 2 Florida? 3 A. He had major surgery a few months back and I 4 called to see how he was doing, recovered, but no, 5 other than that, no. That was -- I don't remember how 6 far back it was. It wasn't within the last month. 7 Q. Would it be -- would it be fair to 8 characterize your relationship with -- your current 9 relationship with Mr. Eversoll since -- since the sort 10 of Spirko case, I use that -- or since the trial, since 11 the trial as an occasional social relationship; is that 12 a fair way of characterizing it? 13 A. Well, I wouldn't even say it was occasional. 14 Q. An infrequent social -- 15 A. Infrequent. 16 Q. -- relationship? 17 A. Right. 18 Q. When you would meet with him, when you would 19 see him, would you have a tendency to sort of -- or 20 would you sort of relive, you know, go back and sort of 21 reminisce over your experiences -- 22 A. No. 23 Q. -- in the Spirko case? 24 A. No. 25 Q. With respect to Mr. Kennedy, if I had 0041 1 understood correctly, you don't believe you had had any 2 contact with him for many years; is that right? 3 A. Right. Right. 4 Q. Until the time that he called you up? 5 A. Right. 6 Q. And with respect to Mr. Keister, if I 7 understood correctly, you had -- 8 A. Very infrequent social contact. In fact, I 9 haven't seen Keister in years. Probably since '8 -- 10 probably since '90, 1990 I've not seen him in person. 11 And I've talked to his secretary much more than I've 12 talked to him. 13 Q. Have you talked to him about the Spirko case? 14 A. Yeah, when he called. 15 Q. Recently? 16 A. Yeah. 17 Q. And that was a solitary conversation as best 18 you remember, one? 19 A. As best as I can recall. 20 Q. And with respect to Mr. Kennedy, is it also 21 true that you haven't physically seen him since 1990? 22 A. I'd say at least that long. 23 Q. Are you familiar with a gentleman named 24 Mr. Koch, K-O-C-H? 25 A. Yes and no. I know who he is. I knew his 0042 1 father better, who was an attorney in Van Wert. Chuck 2 Koch, is that who you're talking about? 3 Q. That's right. 4 A. That's Junior or Charlie, Jr. or whatever they 5 call him. Yeah, I know him. In fact, on the 6 videotapes you'll see he sat at the table with Keister. 7 He was an assistant to the county prosecutor at the 8 time, so yes, I know who he is. Have I ever visited 9 with him socially? No. Have I ever talked to him? 10 No. I haven't talked to him since 1983. 11 Q. You know who Mr. Hartman is, correct? 12 A. Yeah. 13 Q. Okay. 14 A. Paul worked for me. 15 Q. Just for the record, who is Mr. Hartman? 16 A. He's a postal inspector in Cleveland, Ohio. 17 Q. And when you say he worked for you -- 18 A. I was his supervisor from 19 -- probably 19 1984, '83 to 1990, when I retired. 20 Q. And during that period of time what was your 21 title? 22 A. I was team leader external crimes in 23 Cleveland. 24 Q. And what was Mr. Hartman's position? 25 A. Postal inspector. 0043 1 Q. Was he assigned to your team or unit or 2 whatever it's called? 3 A. Yes. Yes, he was. 4 Q. How many postal inspectors were you 5 supervising? 6 A. Well, that's a tricky question because I 7 served as acting inspector in charge for a year and a 8 half. 9 Q. In charge of the entire office? 10 A. In charge of maybe a total of 90 people, 11 postal police force, probably 40, 50 postal inspectors 12 and the secretarial staff during that period of time 13 from '83 -- yeah, from '83 to '90, approximately. But 14 when I wasn't serving as acting inspector in charge I 15 had anywhere from five to eight inspectors in the 16 external crimes unit. 17 Q. Mr. Hartman being one of them? 18 A. Yes. 19 Q. Now, was he already in Cleveland at the time 20 that you were relocated from Columbus to Cleveland? 21 A. Yes. But I supervised him in '82 because I 22 was put in charge of the Elgin task force and he was 23 assigned. 24 Q. Did you know him prior to that time? 25 A. Hardly. 0044 1 Q. Sort of running into each other occasionally 2 for professional reasons? 3 A. Well, he was in another office and 4 occasionally we would be called up to Cleveland from 5 Columbus, Ohio to assist on a case or something. And I 6 knew who he was, but, you know, I didn't supervise him 7 prior to that. 8 Q. Once you retired from 1990 and moved to 9 Nevada, did you maintain any sort of a relationship 10 with Mr. Hartman? 11 A. None whatsoever. I've talked to him probably 12 two times in 15 years and it's all been prior to 19 -- 13 let's see, I left Cleveland in '90, moved to Las Vegas. 14 I'm guessing somewhere in '90 -- I don't know, 15 '93, '94, '95 I may have talked to him about something 16 about an informant on another case entirely unrelated 17 to this. Once I talked to him about fishing too, so a 18 phone call. He fishes in some lake, one of the Great 19 Lakes, Lake Superior or one of them, and I had a friend 20 that was going fishing in Nevada, was traveling back to 21 the Great Lakes to go on a fishing trip, believe it or 22 not, and we discussed that, but twice in 15 years and 23 nothing since the late '90s. 24 Q. And in those two conversations, as best you 25 recall, any discussion about the Mottinger case best 0045 1 you remember? 2 A. I actually don't recall. 3 Q. Do you recall whether or not Mr. Spirko -- I 4 mean, Mr. Hartman in any way kept you apprised of his 5 continuing investigation? 6 A. No. It was hard -- Paul really never kept me 7 apprised when he worked for me as well as he should 8 have, but no. 9 Q. Were you aware that he was continuing to do 10 investigative work? 11 A. No. I retired in July 1990. I transferred 12 the case back to the inspector in charge. Who he 13 reassigned it to I have no idea. In fact, between 1984 14 and 1990 I didn't even know if he did continue it, I 15 was not even aware of that, because I had the case and 16 I was writing the reports and no one told me if he was. 17 Q. Okay. When you left the Postal Service in 18 1990 -- 19 A. Right. 20 Q. -- other than the videotapes, did you take 21 with you any documents or anything relating to the 22 Spirko case? 23 A. Nothing. Nothing. The judge sealed all the 24 records as I recall right after the trial and 25 everything was locked up in the Sheriff's Office. I 0046 1 didn't have a key. I never saw any of the files after 2 that trial was over, nothing. I took nothing. I have 3 nothing. I did buy a True Detective magazine once who 4 had this fictionalized story about the Elgin thing, but 5 that's long been destroyed I'm sure. 6 Q. Were you aware of whether or not in the 7 Cleveland office or anyplace else whether or not any 8 files were maintained concerning the Mottinger case? 9 A. Well, there was an official file that 10 contained reports, but nothing that contained evidence 11 or, you know -- I kept my reports, obviously, because 12 you've got to continue every six months because Delaney 13 Gibson was still a fugitive after the initial trial. 14 And it was always assumed that Gibson was going to be 15 prosecuted; therefore, yes, there was a file maintained 16 of my reports and there may have been a copy of the 17 presentation letter in there too, but other than that, 18 no. 19 Q. The file of your reports, as far as you know 20 would that still be in the Cleveland office? 21 A. I have no idea. It could have been 22 transferred to the Federal Records Retention Center. 23 If they're following instructions it should have been. 24 After seven years they're destroyed. I don't know what 25 the regulations are now. 0047 1 Q. But this file that you're just referencing is 2 this file of those reports, that's in addition to, 3 that's different than the files that you talked about a 4 minute ago that were ordered under seal by the judge? 5 A. Yes. Yes. Yes. 6 Q. So there was a file of some kind that was 7 physically maintained in Cleveland? 8 A. That contained copies of my reports, 9 administrative reports to the inspector in charge. 10 Q. Did Mr. Hartman maintain any files to your 11 knowledge? 12 A. I have no idea. You mean after I retired? 13 Q. Well, at any point in time as far as you know? 14 A. Well, I don't know if he continued -- I don't 15 know that he continued the investigation, but if you 16 say he did I suppose he may have kept notes. 17 Q. But to your personal knowledge? 18 A. No, I know nothing after I retired in July 19 1990 as far as the inspection service. I've been to 20 Cleveland twice to visit old people. Paul Hartman was 21 not one of them that I visited when I was there. I've 22 spent a half hour there and certainly Elgin wasn't 23 discussed or the Spirko murder. That was just a minor 24 part of my career. 25 Q. When you say to visit old people, what you 0048 1 mean is old colleagues; is that what you're talking 2 about? Sort of stop by the office to say hi to 3 everybody? 4 A. Exactly. Exactly. Twice in 22 years is all 5 I've been back there. And I never specifically sought 6 out Paul Hartman and I don't ever recall even speaking 7 to him during those two times. 8 Q. Well, we'll come back to that in a minute. I 9 mean, you mentioned this True Detective article. Over 10 the years there have been a number of articles written 11 about the Spirko case. Let's take it since your 12 retirement, okay. Have you read any newspaper 13 accounts? 14 A. I have. The last three accounts in the Plain 15 Dealer. And I didn't print them out. I read them 16 online in the Cleveland Today web site that somebody 17 had written from Cleveland. And I just chuckled when I 18 saw them because of the inaccuracies that appeared, 19 what I thought were inaccuracies in the article. 20 Q. Do you recall how you became aware of the 21 articles being there? 22 A. Well, I used to live in Cleveland and work 23 there and believe it or not, every two or three years 24 I'll type in Spirko, not only in the Cleveland paper, 25 but the archives of the Ft. Wayne newspaper and the Van 0049 1 Wert newspaper and if something pops up I'll look at 2 it. 3 Q. So that's how you happened to come upon these 4 three articles in the Cleveland Plain Dealer by -- 5 A. Yeah. 6 Q. Do you recall when you did that? 7 A. No. 8 Q. What's your best recollection as to what time 9 of the year it was that you -- when you read those 10 articles? 11 A. Well, it was this year, but I don't know what 12 month or when they popped up. 13 Q. So was it -- I mean, had your sort of, I don't 14 know, interest in or memory of the Spirko case been 15 jogged at all by -- 16 A. Not by those articles I read. 17 Q. No, I'm not asking you that. By the phone 18 calls from Mr. Kennedy and Keister which were prompting 19 you to sort of go and see if there were any new 20 articles out there? 21 A. No. I think -- no, it was probably before 22 that that I had read those articles. 23 Q. And why do you say that? 24 A. Because I don't remember discussing them with 25 Charlie Kennedy about any Plain Dealer articles, so I'm 0050 1 just -- again, I routinely check. 2 Q. About every couple years? 3 A. I read the Las Vegas Review Journal. No, 4 every couple months. I read the Las Vegas Review 5 Journal weekly, you know, so -- it's my thing. Some 6 people read Dean Koontz, I read newspapers. And online 7 papers are great, you know. Things that interest me 8 I'll type in names, look, you know. 9 Q. So over the years you've done this with 10 respect to Spirko every couple of months? 11 A. No. Sometimes I'll just type in postal 12 inspectors to see what's going on, if there are any 13 articles, doesn't have to be about Spirko. 14 Q. My question is about Spirko, how often would 15 you do that? 16 A. Oh, every month or two. 17 Q. Over the last, you know, 20 years? 18 A. Over the last -- yeah, 15, 20 years. Well, 19 ever since they've had online and I've had computers. 20 And don't ask me when I got my first computer. It was 21 an old Commodore 64 years ago, but the Internet -- but 22 over the years since they've had online newspapers. I 23 read the Montego Bay Gleaner. You know, that's my 24 thing, I read newspapers. 25 Q. Okay. And specifically, at least that would 0051 1 be relevant to the Spirko case, it would be the Plain 2 Dealer and the Ft. Wayne paper? 3 A. And the Van Wert newspaper. 4 Q. Other than the three -- these three articles 5 in the Plain Dealer, do you remember other articles 6 about Spirko? 7 A. No. Well, yeah, there have been other 8 articles over the years as I recall about an appeal. I 9 remember one time somebody accused Ralph Eversoll of 10 some wrongdoing; that was in the Van Wert paper. These 11 are -- but no, do I remember dates, even years? No. 12 Over the years I've seen other Spirko articles. He's 13 not new news. 14 Q. Again, since your retirement have you read any 15 of the court pleadings in the case? 16 A. Since my retirement from where? 17 Q. Well, let's say from the Postal Service. 18 A. I've actually not read any court pleadings, 19 period. 20 Q. Have you read any of the opinions by any 21 courts? 22 A. Only what's reported in the press. 23 Q. But you haven't actually physically -- 24 A. You know what, LexisNexis, I looked up a 25 Supreme Court case that involved Spirko or something 0052 1 when I was out there once. Something popped up. 2 Something popped up either in the Plain Dealer or the 3 Columbus Dispatch and I ran it in LexisNexis to see and 4 it was some type of an appeal that had been turned down 5 of his by the Ohio Supreme Court or something. Came up 6 and I read that. That was sometime between 1992 and 7 2000. 8 Q. In May of 2004 the Sixth Circuit issued an 9 opinion in this case. Have you read that opinion? 10 A. No. I don't even -- no. 11 Q. Do you know whether or not an execution date 12 has been set? 13 A. I have no idea. Has there? I don't know. 14 Q. Well, if you don't know you don't know. Do we 15 have another binder of exhibits or -- Mr. Strausbaugh, 16 I should have mentioned earlier, because I'll need one 17 at some point, but any time you need a break just say 18 the word. 19 A. Okay. No problem. 20 Q. Let me show you what's been previously marked 21 as Exhibit 6 and ask you whether you recall having seen 22 that before? Right now the only question is have you 23 seen it before? 24 A. I've never seen this. 25 Q. Then that -- 0053 1 A. I've never seen that. Where was it sent to? 2 Q. I don't know, but we'll talk about it. I'll 3 answer whatever questions you have when we're off the 4 record, if you have questions. 5 A. No. That's the first time in my life I've 6 seen that. I don't even know Connie Mottinger. 7 Q. Have you ever -- you've never had any contact 8 with a woman named Connie Mottinger? 9 A. Never. I've talked to Clarence Mottinger 10 before he died. 11 Q. Do you -- 12 A. I don't know when he died. But it was several 13 years ago I talked to him once on the phone when I was 14 in Las Vegas, he called me. 15 Q. Tell me what you remember about that. 16 A. He just called to see how I was, as I recall, 17 and wanted to know if I knew anything about, you know, 18 the situation in Ohio about Spirko, and I said no. 19 I've not talked to him since then. That's been 20 mid-'90s probably. 21 Q. Well, when he asked you about the situation in 22 Ohio about Spirko, what -- 23 A. I was assuming he meant the execution or the 24 imposition of sentence or appeals or something, you 25 know. And I told him I didn't know anything about it. 0054 1 Q. Do you recall whether he asked you anything 2 about the prosecution of Delaney Gibson? 3 A. No. 4 Q. You don't remember or he didn't? 5 A. I don't remember. 6 Q. Did he indicate to you anything about writing 7 a book? 8 A. No. Clarence? No, he never indicated that. 9 That's almost comical to think of Clarence as a book 10 writer. He was a deer hunter and outdoorsman, but 11 hardly an author I would think. 12 Q. Does the name Theo Bennett mean anything to 13 you? 14 A. Never heard of that name before. Theo. 15 Theodore or Theo? 16 Q. Theo, T-H-E-O, Bennett. 17 A. Is that a male or female? 18 Q. It's a male. 19 A. Never heard of him. 20 Q. All right. Let's sort of get into the more 21 substance of things. 22 A. This is getting bizarre. I mean, letters 23 addressed to me I've never seen in my life. What's 24 going on? 25 Q. As I said -- 0055 1 A. You're the one that's got the letter, not me. 2 Q. My question was simply whether you had ever 3 seen it before? 4 A. I've never seen it. 5 Q. You were the leader of the task force; is 6 that -- 7 A. Yes. 8 Q. -- an accurate description? 9 A. Yes. I was the team leader for the task 10 force. 11 Q. And what we're talking about, just for 12 shorthand purposes just accept -- the Mottinger crimes, 13 is that -- are you comfortable with that 14 characterization of the -- 15 A. Well, the Elgin Post Office robbery. 16 Q. All right. And so you were -- and you became 17 the leader of that task force very early on, correct? 18 A. The day I was sent over there. 19 Q. And that day was, do you remember the day? 20 A. Well, I think it was the day that she was 21 abducted, which would have been in 1982, and that's 22 kind of ingrained in me, August 8th or 9th. The exact 23 day, August 9th, I believe, '82. 24 Q. I'll posit to you that she was abducted on 25 August 9th, 1982. These gentlemen will not quarrel -- 0056 1 A. That's the date I got the call in Columbus to 2 go over there. And later that day when we did a 3 telephonic report to the inspector in charge that she 4 had not been located and, yes, there does appear to be 5 a robbery, that's when he verbally put me in charge of 6 the task force. 7 Q. And the inspector in charge, I don't need to 8 know his name, but that's -- 9 A. That's good because I don't remember back 10 then. 11 Q. But the inspector in charge, is that the 12 person who's in charge of the overall Columbus office, 13 is that what that refers to? 14 A. No. He was the inspector in charge in 15 Cincinnati. Columbus, Ohio was under the Cincinnati 16 office. 17 Q. So were there two offices in Ohio, Cincinnati 18 and Cleveland? 19 A. And Columbus. 20 Q. But Columbus worked under the Cincinnati -- 21 A. So did Cleveland back in '82. Cleveland 22 worked under Cincinnati too. 23 Q. So that the inspector in charge was the 24 inspector for the entire state of Ohio, basically? 25 A. Exactly. 0057 1 Q. He's the one who directed you to be in charge? 2 A. Exactly. 3 Q. And what was your -- at that time what was 4 your position in Columbus? 5 A. Domicile coordinator. And I ran -- you know, 6 supervised a secretarial staff and all that. And I had 7 an external crimes assignment, worked robberies, street 8 crimes against postal employees, things of that nature. 9 Q. And how big was the office in Columbus, 10 approximately? 11 A. Fifteen inspectors maybe total. 12 Q. Do you remember what day of the week August 13 9th was per chance? 14 A. No, I don't remember. I don't. 15 Q. Let me posit to you that it was a Monday. 16 Again, I don't think these gentlemen will have any 17 quarrel with that. 18 A. I have no idea what day it was. It's all a 19 big blur after all these years. 20 Q. Do you recall what time of the day you got 21 there, in general terms? 22 A. Only that it was during daylight hours. I 23 remember it was daylight still. 24 Q. And I take it Columbus -- you out of Columbus 25 were contacted because of the three cities Columbus was 0058 1 the closest to Elgin; is that the reason? 2 A. You know, I'm not sure. They probably 3 contacted Cincinnati first because that's, you know, 4 where the inspector in charge was located for the state 5 of Ohio. Actually, Van Wert County was -- worked out 6 of Cleveland's field office rather than Columbus's at 7 the time. Well, there was an inspector in Toledo that 8 actually worked Van Wert County. The organizational 9 structure at that time it would have been worked out of 10 Toledo. Whether they couldn't get ahold of that guy or 11 not I don't know, but the inspector in charge in 12 Cincinnati called me in Columbus and asked me to go 13 over. And there were other inspectors that went up too 14 that he had sent over. 15 Q. From different offices or from -- 16 A. Yeah. 17 Q. So tell me when you got on the scene, okay. 18 A. It was daylight. 19 Q. Yeah. In general terms what do you remember? 20 Were there other people already there? You weren't the 21 first one there? 22 A. Sheriff's Department was there already. 23 Q. Were other postal inspectors there? 24 A. I don't think so. I don't recall, you know, 25 whether someone from Toledo might have beat me there 0059 1 or -- I don't know. I don't remember. It's been 22, 2 23 years ago. You know, don't start chronological 3 stuff with me. What, an hour, did I beat someone there 4 by an hour, I don't know. 5 Q. I'm just trying to -- 6 A. It's 22 years ago. 7 Q. Look, we all understand. Everybody 8 understands that this has been a long time and that, 9 you know, your memory is whatever it is and that's all 10 we can ask you to do. 11 A. I don't remember if I was the first one on the 12 scene or not for postal inspectors. I do remember that 13 there was a sheriff's guy there because -- and I 14 think -- I don't know. It was somebody named Bruce 15 something, a lieutenant that I talked to. 16 Q. Well, do you remember generally -- we're not 17 going to go into this in excruciating detail so don't 18 worry, but do you remember generally were there a 19 number of law enforcement people there or were there 20 just like one or two people there? Do you remember 21 that? 22 A. I don't actually remember how many people were 23 there. I don't remember. I know we did utilize the 24 state patrol, the Ohio State Patrol after I got there. 25 Whether anyone was there when I got there or not ahead 0060 1 of me -- I do know there was someone there from the 2 Sheriff's Office because I remember asking this guy 3 what happened because, you know -- well, and as I 4 recall they didn't know. She was just missing. 5 Q. Do you recall whether Mr. Hartman was on the 6 scene that day? 7 A. I don't believe so, but he may have been. 8 They may have sent him down, but I can't recall. I 9 actually don't recall whether he was there that day or 10 added a week later, a month later, I don't remember. 11 Q. Okay. Anyway, that same day you do remember 12 that you got the direction to become the team leader? 13 A. Exactly. 14 Q. And tell me what the sort of responsibilities 15 of the team leader were. 16 A. Well, I coordinated the investigative 17 activities between the task force members, which would 18 have been -- consisted of postal inspectors, FBI 19 agents, two people from the Sheriff's Office were 20 assigned to the task force full time. And together it 21 varied, depending on leads that would come and go, 22 between five people and 15 people, 20 people. 23 Q. Okay. And these people would all report to 24 you? 25 A. Yeah. We had an office set up, a little bit 0061 1 smaller than this conference room, in a motel. Best 2 Western, I think, over there, and -- 3 Q. In Van Wert, correct? 4 A. Right. And don't ask me when did we set up 5 the office; it was subsequent to my arrival. And she 6 couldn't be found and it wasn't a case of a runaway 7 bride type thing. So, you know, when they set the task 8 force in operation then we got a room, we got some 9 communications in there, various law enforcement 10 agencies assigned people and we proceeded to 11 investigate. 12 Q. And this -- without asking you specifically 13 what date it was, this was pretty shortly after the 14 abduction, correct? 15 A. Yeah. 16 Q. And I take it you took -- you took a room at 17 that same hotel so you basically were living there for 18 a period of time? 19 A. Yeah. 20 Q. You weren't commuting on a daily basis back 21 home? 22 A. Not on a daily basis. I got home two weekends 23 a month. 24 Q. And the communications sort of devices that 25 you got in this -- 0062 1 A. Telephones. 2 Q. Telephones, right? 3 A. We had some walkie-talkies or hand-held radios 4 too. 5 Q. But this was essentially in the precomputer 6 age, right? 7 A. Yes. Yes, certainly. The communications 8 weren't quite as good then as they are now. 9 Q. Right. Some typewriters, that sort of thing, 10 probably also? 11 A. Yeah. File cabinets. 12 Q. Did you have secretarial support, by the way? 13 A. Occasionally they would send a secretary over, 14 but not too often. Most of the inspectors typed up 15 their own reports and turned them in, or they were 16 handwritten. 17 Q. Now, you were the guy in charge and so people 18 who were on the task force at any given time reported 19 to you, right? 20 A. Right. 21 Q. That was irrespective of what agency they 22 belonged to? 23 A. Right. 24 Q. So for purposes of this case you were their 25 boss basically; is that right? 0063 1 A. I guess you could say that. It was more of a 2 cooperative type thing, though, you know. 3 Q. How did you guys -- did you have regular 4 meetings? 5 A. Yeah, daily. 6 Q. Sort of a standing, you know, nine o'clock 7 meeting or something like that? I don't know what time 8 of day it was, but -- 9 A. It would depend on whether inspectors were out 10 of town, in town, when they came back in. You know, if 11 it's something that we were working on that involved 12 interviews in Swanton, if the guy was still in Swanton 13 at 7:00 we might have the meeting at 10:00 or 11:00 at 14 night or the next morning. 15 Q. But the goal was to have a meeting every day? 16 A. Right. And usually there was a meeting every 17 day. 18 Q. And was this a meeting where everybody sort of 19 reviewed what had been done over the previous day and 20 what needed to be done, basically? 21 A. Right. We would sit and discuss the results 22 of interviews, any new leads that came in on the phone, 23 assignments were distributed, people -- informally, but 24 they were told you go interview this guy and you go, 25 and then that's the way it worked. And then at the end 0064 1 of the day or the week, if they were out of state, they 2 would come back in, we'd have meetings and take it from 3 there. 4 Q. Okay. And the assigning, the sort of telling 5 people what to do, was that ultimately your 6 responsibility? 7 A. Yes. 8 Q. Say, you know, you do this and you do that 9 and, you know -- 10 A. Right. 11 Q. And did you have a deputy, by the way, sort of 12 a first lieutenant kind of thing, or was it just you? 13 A. Well, the two -- there were days I got home 14 like four days a month for a long time and I would 15 assign someone. You know, if anything comes up give me 16 a call, here's where I'll be. And I remember getting 17 phone calls even when I left there about a call that 18 would come in or -- and I'd tell them -- but yeah, 19 there was always someone put in charge. 20 Q. I mean, as you sit here today, do you remember 21 was there one person in particular that you relied upon 22 more than anyone else? 23 A. No. No. 24 Q. Was there an express expectation or protocol 25 or however one would characterize it that various 0065 1 members of the task force would report their findings 2 to you; is that the expectation? 3 A. Well, that was the expectation. 4 Q. As far as you knew, did that happen? 5 A. As far as I know, yeah. 6 Q. And would that be in oral form or in written 7 form or both? 8 A. Both. 9 Q. Okay. And was the expectation that ultimately 10 everything would get memorialized in writing or not? 11 A. Well, yes. Even though, you know, an all-day 12 assignment could be one sentence, you know, the 13 results. 14 Q. But there would be some written record or 15 there should be some written record of -- 16 A. Well, you know, we ended up with two file 17 cabinets full of material as I recall, or at least one 18 and another drawer at one time. And was every 19 interview memorialized in writing? I don't -- I can't 20 answer that, you know. There may have been interviews 21 made that I wasn't aware of and I didn't assign. I 22 mean, I didn't stifle creativity on the team. If 23 someone, you know, talked to someone and they said 24 something about, well, I think my neighbor saw it and 25 they went over and talked to the neighbor too and I 0066 1 didn't assign them that and the neighbor said I didn't 2 see a damn thing, was that memorialized? How would I 3 know. 4 Q. But in that example that you just gave, if the 5 neighbor saw something of any significance then 6 certainly the expectation would be that you would be 7 made aware of it, right? 8 A. Yeah. I would hope. 9 Q. And in terms of sort of what I would call 10 decisionmaking, sort of prioritizing, I mean, you 11 probably had a lot of different things that you could 12 have pursued and you had to give priority to various 13 things and decide what was more important than what 14 else, would that be your decision in terms of, you 15 know, well, we've got, you know -- you know, we've 16 got -- 17 A. Could you repeat that? 18 Q. Yeah, it's probably not a very well-worded 19 question. I'm assuming that on any given day you might 20 have had more things to do than you had manpower to do 21 it? 22 A. Right. 23 Q. And somebody had to make a decision as to what 24 was more -- what should be done, what was the most 25 important things; would that be your decision? 0067 1 A. Right, but everything was followed up on. 2 Q. No, but the priority or the sequence in which 3 they were followed up in, that was your ultimate 4 responsibility? 5 A. Yeah. It depended on the manpower that was 6 assigned, whether we had enough bodies. Even if 7 something was a low priority it was assigned right away 8 if we had the people to do it. I mean, obviously I 9 wouldn't assign someone to go out and interview, you 10 know, somebody if there was something that appeared 11 more pressing, you know. 12 Q. Was there a policy or was there an 13 understanding as to whether all paperwork and all 14 documents should be sort of collected in sort of this 15 one room? 16 A. During the meetings they were expected to give 17 me their notes or their reports or whatever and it was 18 filed in the file cabinets. 19 Q. As you sit here today, do you have a visual 20 image of these file cabinets? 21 A. No. 22 Q. Know how large they were, how many drawers 23 they had? 24 A. Well, I think they were like three-drawer 25 cabinets, metal. The typical government -- 0068 1 Q. Gray metal sort of thing? 2 A. Yeah. 3 Q. And your recollection today is that there was 4 at least one that ultimately was filled and part of a 5 second one? 6 A. Right. But I don't know how much was in each 7 drawer, you know, but yeah. 8 Q. Okay. During the -- let's break this down a 9 little bit. Let me posit some dates to you so that you 10 can try to put it -- we can break it down a little bit. 11 The abduction occurs on August 9th, 1982. 12 A. Uh-huh. 13 Q. Just doing this for ease of your memory here. 14 The initial contact with Mr. Spirko occurs in October 15 of 1982. Just giving you some -- 16 A. Okay. 17 Q. I understand you don't remember dates, so -- 18 we've all studied this recently in a way that you 19 haven't. 20 A. Right. 21 Q. I think there's not much -- there's not much 22 dispute about the dates I'm giving you. I want to 23 segment things. Mr. Spirko gave a series of statements 24 from October of '82 through January of '83, okay. The 25 indictments were ultimately returned in September 0069 1 of '83. 2 A. (Shrugs shoulders.) 3 Q. I'm really giving it to you. 4 A. Should I write these down? 5 Q. You can or you can ask me to repeat them. 6 A. Well, as long as you don't try to trip me up 7 on a date. 8 Q. Just so that we're clear, I am not trying to 9 trick you in the slightest about anything. I'm just 10 trying to get your best memory about things. I'm doing 11 this -- 12 A. It's 22 years ago. 13 Q. I know, which is why I'm trying to give you a 14 little bit of a time line. So indictments in September 15 of '83, trial in August of '84. 16 A. Okay. 17 Q. So that's a framework. 18 A. Okay. 19 Q. Now, during the -- well, here's my question 20 and you may want to break it down. What role -- the 21 prosecutor -- the county prosecutor was Mr. Keister, 22 correct? 23 A. Right. 24 Q. And do you remember if he had any assistance 25 in this matter from other prosecutors? Were there 0070 1 other prosecutors involved other than Mr. Keister? 2 A. I never met with any other ones, but he -- 3 you'll have to ask him because I don't know who 4 assisted him. 5 Q. Do you remember Mr. Koch who we discussed 6 before? 7 A. I only remember him at the trial. 8 Q. So you don't remember him prior to trial? 9 A. No. Well, I had seen him. 10 Q. But you don't remember him participating in 11 the substance of what -- 12 A. No. 13 Q. My question sort of more generally is and then 14 we can sort of hone in on it if you want, prior to 15 trial -- prior to indictment, let's even take it there, 16 indictment September '83, okay. 17 A. Okay. 18 Q. Prior to indictment what role, if any, as best 19 you recall sitting here today, did Mr. Keister play in 20 the sort of investigative effort? 21 A. Very little to none. 22 Q. Were you consulting with Mr. Keister as you 23 were developing -- 24 A. No, because we wasn't sure whether it would go 25 federally or state prosecution at that time. 0071 1 Mr. Keister did not get involved until after the U.S. 2 Attorney's Office declined prosecution in lieu of state 3 prosecution. And a presentation letter was given to 4 Keister and at that point in time he became very 5 involved when he got the presentation letter. Prior to 6 that he didn't direct our activities at all. 7 Q. Okay. So prior to the presentation letter 8 your memory is that Mr. Keister really had very little 9 involvement? 10 A. Very little. Or none might be my 11 recollection. 12 Q. Do you have any as we sit here -- 13 A. Well, let me paraphrase the none. We may have 14 asked for a search warrant or something like that, you 15 know, and talked to Steve about it, but other than 16 that -- was he at our daily meetings? No. Did we go 17 to him, should we interview this guy or that guy? No. 18 But if there was a legal question about a search 19 warrant or a probable cause or something like that, we 20 would call and ask him because he was the county 21 prosecutor. 22 Q. And why would you call him as opposed to the 23 U.S. Attorney, for example? 24 A. Well, because the U.S. Attorney's Office was 25 100 miles away. And I don't know if you remember the 0072 1 personnel in the U.S. Attorney's Office in Toledo, Ohio 2 at the time. 3 Q. I never knew the personnel to this day. 4 A. If you did know you would know why we talked 5 to the local prosecutor, I'll just leave it at that. 6 Q. No. Well, explain it to me. 7 A. Well, there's nothing to explain other than we 8 didn't know who was going to take the case. A state 9 search warrant's as good as a federal. 10 Q. But your comment suggests -- we don't have to 11 belabor this, but your comment suggests that you didn't 12 have a lot of confidence in the personnel of the U.S. 13 Attorney's Office. 14 A. I did not have a personal relationship with 15 the U.S. Attorney up there and -- well, an assistant 16 U.S. Attorney in the office. And once or twice I 17 remember calling up there and couldn't find anybody to 18 ask questions to, and it became a matter of contacting 19 the local county attorney who was handy and knew the 20 law, so . . . 21 Q. Do you recall when -- I'm not asking you for a 22 specific date. I mean, obviously if you know it I'd 23 like to know it, but I'm not asking you for a specific 24 date, but when in the process a decision was made that 25 this would be prosecuted locally as opposed to by the 0073 1 U.S. Attorney's Office? 2 A. I don't remember. 3 Q. Do you recall when it was made relative to the 4 presentation letter to Mr. Keister? 5 A. Well, I know it was pre-indictment. And there 6 was obviously a presentation letter given to the 7 attorney and the assistant U.S. Attorney in Toledo that 8 would have handled that area. Whether he called 9 Keister's office about it or whether Keister's office 10 called him about it, those are decisions we weren't 11 involved in. I do know there was a presentation letter 12 written. I don't know, is it the chicken or the egg. 13 It's not a decision we had to make. It was up to them 14 to make the decision on whether it was federal or 15 state, and they did. 16 Q. The presentation letter that was written to 17 the U.S. Attorney's Office, who wrote it? 18 A. Well, I did and Hartman may have written part 19 of it too. I don't know if there were joint signatures 20 on it or just mine. 21 Q. And how about the presentation letter that was 22 written to Mr. Keister, who wrote that? 23 A. Both. It would have been the same letter, 24 just the name changed and the statutes. 25 Q. So your recollection is that it essentially 0074 1 was the same letter with those changes made? 2 A. That's -- I don't recall, but I'm guessing 3 that I certainly did. 4 Q. You're making an assumption? 5 A. I'm making an assumption, but I don't believe 6 I would have redictated and retyped an entirely 7 different letter because I think it was kind of 8 lengthy. You probably got it. Do you have it and I 9 could look at it and then I'll answer the question? 10 Q. Again, we'll talk about the substance later. 11 I'm trying to get just procedure down now. 12 A. No. You're trying to trip me up. Who signed 13 it? If you got a copy let me read it. I've got a 14 right to look at it and then I'll answer the question. 15 Twenty-two years ago, how do I know who signed it? I 16 think I did, but Paul Hartman may have signed one of 17 them too. 18 Q. That's fine. I know you don't believe me, 19 Mr. Strausbaugh, but I'm really not trying to trick you 20 on these things. I'm just trying to get as much 21 information as possible. And I also understand that 22 it's been a long time and that you may not remember 23 certain things. 24 A. And you won't let me refresh my recollection 25 by looking at the letter? 0075 1 Q. No, I didn't say that. You know, there will 2 come a point when I will show it to you. Right now -- 3 I will represent to you that I have never seen a 4 presentation letter to the U.S. Attorney's Office. 5 It's not to say it doesn't exist, I just haven't seen 6 it. 7 A. Yeah. Well -- 8 Q. But you have a memory that one was presented 9 to them? 10 A. Well, it would had to have been. 11 Q. Right. But that's a little different than the 12 question of whether you remember whether it has been. 13 A. No, I don't remember, but procedure was that 14 it would have been. 15 Q. Do you recall anything about the decision, who 16 made the decision and why it was made to decline it as 17 a federal case and proceed locally? 18 A. No. I would imagine that the assistant in 19 Toledo deferred because of maybe the amount of work 20 involved, I don't know. Maybe you'd better find him 21 and ask him why. 22 Q. No. I'm just asking you what you remember. 23 A. No, I don't remember. It wasn't my decision 24 to make. You're asking me questions about an area 25 that's completely foreign. Prosecutive decisions is 0076 1 not -- was not in our area, you know. 2 Q. As best you remember today, over the period of 3 the investigation who else from the Postal Service 4 other than yourself was assigned? 5 A. Oh, gosh. I can remember some names. They 6 were in and out constantly from Cincinnati and I 7 don't -- it wasn't the same ones. There was an 8 inspector named Sally Brown -- no, Sally -- I don't 9 even remember Sally's last name. Stebbins, Sally 10 Stebbins maybe. There was an inspector named Gary 11 Brown. There was a Pete Sullivan, a Dan Bonda. A guy 12 from Toledo, last name of Cline. Hartman, Emerson, 13 Samuels, a Gary Dodson. I mean, people were there one 14 day, two days, maybe they were there a week, they'd 15 leave, come back two or three months later for another 16 week. 17 Q. Were any other postal inspectors assigned 18 pretty much on a full-time basis during the course 19 of -- during the pendency -- during the whole 20 investigation? 21 A. Well, Hartman was there a lot, but full time, 22 no. He had other stuff he had to do too. I mean, he 23 wasn't there all the time. He was there a lot. So 24 was -- oh, a guy named Ed Hardy was there a lot, Eddie 25 Hardy. Boy, that's -- you know, that question is just 0077 1 so -- it's like a shotgun, the pattern, you know, 2 without a choke. 3 There was so many people cycled in and out of 4 there from 1982 to whenever you said the indictment 5 was. I probably didn't remember half the names of the 6 people that went through there. I was probably the 7 most full time of any of them. Hartman would have been 8 maybe behind me on that. I think Hartman's prominence 9 in this case was the fact that after the initial 10 interview, as I'm trying to recall, of Spirko by Steve 11 Cline -- or no, I interviewed him I think the first 12 time in a jail up in Toledo. And then I assigned it to 13 Hartman to continue the interviews with him because it 14 appeared that he had information that needed to be 15 followed up on, so -- and then of course subsequently 16 over a period of many interviews, you know, he became a 17 more prominent person in the investigation, so -- 18 that's about all I can recall on that. 19 Q. Well, you just sort of talked about it again 20 just briefly. Your recollection is that you had the 21 initial interview with Spirko? 22 A. I remember an FBI agent calling from Toledo 23 stating that there was a guy in jail up there that 24 wanted to speak to someone about the robbery and 25 abduction and murder of the postmaster at Elgin. And I 0078 1 went up there, and there may have been another 2 inspector with me, maybe Steve Cline, or maybe I called 3 Steve Cline and had Steve interview John first, then 4 when he called me I went up and talked to him with 5 Cline present. And then we subsequently turned it over 6 to Hartman because there were many other things going 7 on at the time. There was a suspect named Baumgardner, 8 as I recall, from Texas who was very prominent and was 9 taking the priority at the time Spirko came forth as I 10 recall. It's all so vague. 11 Q. What do you remember about your meeting with 12 Mr. Spirko, if anything? 13 A. I remember -- one thing I remember, and I 14 don't know exactly what he said, but he had a pretty 15 accurate description of a purse that the postmaster 16 had, size, color of a purse, and was generally accurate 17 on clothes that she was wearing at the time, at least 18 what we were told she was wearing at the time she was 19 abducted. As I remember, that was enough to trigger me 20 assigning it for further follow-up with one of the 21 other guys, and I got back to the business at hand, 22 which was Baumgardner at the time. 23 Q. You also -- do you recall Spirko asking for 24 certain things in exchange for his cooperation and you 25 getting involved in facilitating those things? 0079 1 A. Yeah. The whole thing was he had something 2 about a girlfriend that had smuggled in a weapon or 3 some means to facilitate his escape from jail and he 4 did attempt an escape. And she got arrested and he 5 wanted to strike a deal for her, something like that. 6 Q. Do you recall anything about the federal 7 witness protection program? 8 A. No. 9 Q. Any particular reason why -- I'm sorry, were 10 you about to say something? 11 A. Well, I was trying to think. Did it ever come 12 up witness protection program? I don't know. You 13 know, I'm trying to think when did that ever kick in. 14 It's only if you are a witness and you feared for your 15 life if you came forward. I don't recall him ever 16 asking for that during my interview with him. 17 Q. Do you recall that ever coming up -- do you 18 recall that ever being brought to your attention, 19 period, either by him or by one of your other 20 investigators or anybody else? 21 A. No. 22 Q. You said you assigned ultimately Paul Hartman 23 to conduct follow-up? 24 A. There was a guy who testified at Spirko's 25 trial that was wanted in the -- 0080 1 Q. My question had to do with Spirko himself. 2 A. And Spirko had allegedly confessed the murder 3 to this guy and he was a cellmate and he was 4 transferred to another pen under witness protection. 5 Q. I understand. My question is do you have any 6 recollection today about, you know, any efforts to get 7 Mr. Spirko placed himself? 8 A. No. Man, that's a hard process and I would 9 have remembered that. The marshal's service used to 10 make that determination. It was very difficult. 11 Q. You do remember sort of assigning Mr. Hartman 12 the task of following up? 13 A. The interviews, yeah. 14 Q. Any particular reason why you assigned it to 15 Mr. Hartman as opposed to anyone else? 16 A. No, not at the time. 17 Q. Okay. Did Mr. Hartman -- do you have a memory 18 today as to how that proceeded? Did Mr. Hartman 19 interview him sort of -- or were there a series of 20 interviews, one interview? 21 A. Well, yeah, there were many interviews. I 22 don't remember how many. Somewhere between three or 23 four. I don't know what the upper level could be, 10, 24 12. And they occurred at different places, I know. I 25 even was present during a couple of them where, you 0081 1 know, I'd walk in and listen for a while. John was 2 very friendly and talkative, you know, with all of us. 3 Q. Now, none of the subsequent ones other than 4 the one that you had initial -- the one that you had 5 initially was in that immediate area, right? 6 A. It was in Toledo at the jail, yeah. 7 Q. The -- 8 A. Lucas County Jail, I believe, is where it was, 9 in one of their little rooms. You don't mind if we 10 take a break, do you? 11 MR. HILL: No. I think we could all use one. 12 Let's go off the record for five minutes or so. 13 (Brief recess.) 14 BY MR. HILL: 15 Q. Mr. Strausbaugh, do you recall the name 16 Delaney Gibson coming up in the course of this -- of 17 the investigation? 18 A. Uh-huh. I do. 19 Q. Do you recall how that -- you first became 20 aware of that name? 21 A. No. You mean the first time I heard his name 22 and the context? 23 Q. Again, I'm not asking you for dates so much. 24 I'm just asking you in what context you became aware of 25 the possibility that Delaney Gibson might be a suspect 0082 1 in the case? 2 A. This is going to sound weird, but there was a 3 psychic in Van Wert, Ohio that called in the task 4 force -- I remember this now -- and gave the name 5 Delaney as a suspect in the case, for whatever that's 6 worth. 7 Q. Now, presumably -- 8 A. That's the first time I heard either Delaney 9 or Gibson, first time I'd ever heard that name. But I 10 do remember this, Delaney Gibson's photo was picked out 11 of a photo spread by one of the two eyewitnesses to the 12 crime and I don't know which one it was. There was one 13 lady named Opal Siebert and another guy that was a 14 truck driver, that I understood both of them had passed 15 on. But anyway, one of the witnesses picked out Spirko 16 and one of the witnesses picked out Delaney Gibson. I 17 was present when the spreads were shown. It was a very 18 oversized spread as I recall. But that's the first 19 that I can recall hearing that name Delaney Gibson. 20 Q. All right. Now, presumably Delaney Gibson's 21 photo was not placed in that spread based on the fact 22 that a psychic had given you the name Delaney, right? 23 A. No. No, not at all. It was just a little 24 comic relief, if you watch the Medium. 25 Q. So do you have any -- do you have any 0083 1 recollection as we sit here today as to why Delaney 2 Gibson's photo was placed in the spread? 3 A. I think it might have been placed in the 4 spread because Gibson was an escapee from the Kentucky 5 state prison at the time. He had been convicted of 6 four or five murders at the time and he knew maybe 7 Spirko or something. I don't know exactly why, but, I 8 mean, those are all reasons that would have contributed 9 to it, to him being placed in a spread. 10 Q. Now, did you say you were present when the 11 spread was shown? 12 A. Right. 13 Q. Did you participate in creating the spread? 14 A. Yes. There were several of us that 15 participated in creating the spread. It was hard to 16 get that many people. There were -- I think we had at 17 least 20 photographs in that spread. 18 Q. And as best you remember, who along with 19 yourself participated in creating the spread? 20 A. I don't remember. Whoever was sitting with us 21 at the table at the time when we decided -- 22 Q. And would it be fair to say that since you 23 were the guy in charge that ultimately you were the one 24 that passed approval on the spread? You said good to 25 go? 0084 1 A. Only in the sense that we wanted a spread of, 2 you know, like similar type people. I mean, I don't 3 tell people exactly what photos to put in a spread, but 4 we certainly don't want a Chinese and an American 5 Indian in if we're looking for male Caucasians, you 6 know. So yeah, I would have had the final say on 7 whether it would pass muster or not, you know, yeah, 8 but not what photos were actually picked to go in it 9 necessarily. 10 Q. Opal Siebert, you remember her? 11 A. Yeah, I remember Opal. She lived right across 12 the street from the post office, had the best view of 13 anybody. 14 Q. Okay. Prior to showing the spread to Opal 15 Siebert, do you recall whether you had ever met her? 16 Let me help you a little bit here. 17 A. No, I don't. 18 Q. I'll posit to you that the spread was shown to 19 Opal Siebert in January of '83 -- 20 A. You know what -- 21 Q. -- toward the end of January. 22 A. Someone would have interviewed her because we 23 interviewed almost everyone in Elgin. There was only 24 about 1,000 people in that little community. And Opal 25 saw whom she thought was a person bringing Janie out of 0085 1 the post office, Janie Mottinger. Yeah, I mean, it 2 wasn't -- but we never showed her photographs right 3 away because, you know, we got a description from her. 4 I think that may have -- I think we used her for an 5 artist, maybe an artist thing at one point in the 6 investigation. And that went out on a circular. And 7 we got a lot of leads off that circular. This is 8 before Spirko -- in fact, that's how I think 9 Baumgardner initially became an early suspect in the 10 case was a resemblance to the artist drawing. 11 Q. Did you personally participate in the 12 interviews or sessions with her that led to the 13 creation of these artist sketches? 14 A. I don't remember. No, I -- I don't remember 15 being there when she talked to the artist. You know, 16 he would have interviewed her, not me, because I didn't 17 know what anybody looked like. I wasn't -- 18 Q. Do you recall whether she was put under 19 hypnosis? 20 A. No. 21 Q. You don't remember or -- 22 A. I don't recall. 23 Q. If she or any other witnesses had been put 24 under hypnosis, would that have been after you assumed 25 the position of team leader? Would that have been your 0086 1 decision to make? 2 A. Probably. I do remember someone was put under 3 hypnosis and it was some lady from Indiana that was 4 near the soybean field that the body was found. Things 5 that I recall are unusual things because there was a 6 lot of research done on hypnosis being admissible in 7 Ohio courts. And she was put under hypnosis in an 8 attempt to recall a license plate number or something. 9 And believe me, it works, because we got a license 10 plate number from that lady that subsequently was 11 traced to a guy in Indiana that was over harvesting pot 12 near the soybean field that the body was dumped in, so 13 there is some good uses for hypnosis. 14 Q. But you don't -- as we sit here today, you 15 don't recall hypnosis being used on the eyewitnesses in 16 Elgin? 17 A. No, I don't. I don't recall. 18 Q. Okay. Let me show you what's previously been 19 marked as Exhibit 15. Just take a look at that. Can 20 you happen to tell me looking at that whose notes they 21 are? Can you recognize the handwriting? 22 A. No. Where'd they come from? 23 Q. Well, they obviously don't have -- they don't 24 have a facial indication on the document as to whose 25 notes they are, but they came out -- I'll posit to you 0087 1 they came out of the investigative files. That's why 2 I'm just asking you because I certainly don't know 3 people's handwritings, you might. 4 A. Well, I wouldn't -- you know what, I wouldn't 5 remember anybody's handwriting but my own, especially 6 someone 22 years ago that I might have just looked at 7 once. 8 Q. But it's not your handwriting? 9 A. No, definitely not mine. I don't even know 10 what this is referring to. 11 Q. Let me posit to you again that the description 12 in the fourth paragraph down -- well, actually this 13 is -- 14 A. Right. I see the description. The long 15 sideburns thing? 16 Q. Yeah. This is actually from -- this document 17 -- I was mistaken. This document is actually from a 18 subsequent interview that occurs later on. 19 A. I don't even ever remember seeing this. I 20 don't know where it's from or anything. 21 Q. All right. Let me show you also -- do you 22 remember Opal Siebert's description? Do you happen to 23 remember Opal Siebert's description? 24 A. No. 25 Q. Do you remember how she testified at trial? 0088 1 A. No. 2 Q. Bear with me here, this will take a second. 3 Do you remember that she did testify at trial? 4 A. Actually, I'm assuming she did. I don't 5 remember. I'm assuming she did because she picked one 6 of the two guys out in the photo spread with a great 7 degree of accuracy, but, you know, I can't even tell 8 you who she picked out now, whether it was the truck 9 driver that picked out Spirko or Opal Siebert, although 10 I think it was Opal, but I'm not sure. Too many years 11 have passed. 12 Q. All right. 13 A. I do know she was one of the witnesses. 14 Q. Okay. 15 A. And the truck driver, I don't even remember 16 his name. 17 Q. Mark Lewis? 18 A. Okay. 19 Q. And I'll posit to you that Opal Siebert 20 identified Delaney Gibson's photo and Mark Lewis I'll 21 posit to you identified Spirko's photo, but Mark Lewis 22 said he was 70 percent certain and she said she was 23 completely certain. 24 A. Okay. See, you're more up on this than I am. 25 I've had a life besides this, guys, believe it or not. 0089 1 Q. Well, let's just talk generally for a minute 2 then. When you create -- I mean, you're trained in 3 creating photo -- among other things, in putting 4 together spreads, right? You were trained? 5 A. Yeah. 6 Q. And the object of putting together a spread is 7 to get like -- similarly -- 8 A. Fairly close, yeah. Or as close as you can, 9 you know. No one looks the same, but -- 10 Q. Okay. And in showing a spread, okay, what, if 11 anything, is your training with respect to showing a 12 witness a spread? 13 A. My philosophy and my rule of thumb was you 14 hand them the spread and say is the person you can 15 identify or you recall here. And I don't make any 16 comments, I let them go through them. 17 Q. Okay. And do you give the person anything 18 before you give them the spread? 19 A. No. Give them something? 20 Q. Well, do you give the person an opportunity to 21 review prior statements that the person may have made? 22 A. No. I mean, obviously we don't give them to 23 them if they have not seen anything, you know. But do 24 I give them a statement? Yeah. The guy's got a 25 crooked nose and fat lip and a mole on his -- no. 0090 1 Q. And the reason you don't do that is because? 2 A. I don't want to lead them. 3 Q. And if in the case of a witness who has -- who 4 has worked with a police artist, for example, okay, and 5 drawn -- and had a sketch drawn, okay, would you show 6 that witness the sketch before you showed the spread? 7 A. No. It has nothing to do with the photo 8 spread. 9 Q. And would you agree that if in fact you showed 10 that stuff beforehand it might -- the person may in 11 fact be picking out something that resembles the sketch 12 as opposed to what they remember? 13 A. Well, I don't buy that. I don't buy that. 14 You know, an artist drawing is just -- usually you're 15 not sitting for a portrait, you're trying to recall 16 just general characteristics. Like the old identi-kit, 17 fat eyebrows, skinny eyebrows, and then when you get it 18 together you've got a vague, at best, likeness of a 19 person, but I don't think anyone that uses an artist 20 drawing would be precluded from looking at a photo 21 spread because they're tainted, because an artist's 22 drawing never look like a photograph. 23 Q. Well, in your practice, okay, in your practice 24 would you or would you not if somebody had made a 25 drawing show the person the drawing beforehand? 0091 1 A. No. I would not show it to them, no. 2 Q. And the reason you wouldn't do that is why? 3 A. Don't want to lead them. 4 Q. Now, you don't recall anything about what Opal 5 Siebert -- what her original description was? 6 A. No, I don't. 7 Q. Let me -- 8 A. What's this got to do with Paul Hartman? 9 Q. Well, you know, that's -- 10 A. No, seriously, guys. 11 Q. That's not -- 12 A. Come on. Are we retrying a dead woman's 13 testimony here? 14 Q. Let me show you what's been marked as Exhibit 15 12. Do you remember that at all? 16 A. That looks like an artist drawing and it looks 17 like the person that we initially thought was Sonny 18 Baumgardner. 19 Q. But does it look like the artist drawing that 20 was made with the aid of Opal Siebert, do you know? 21 A. I don't know. I know the N was a guy named 22 Needles who was a police artist, that jogs my 23 recollection. 24 Q. Let's switch. I'm going to give you this. 25 But let's just switch. I gave you also what's been 0092 1 previously marked as Exhibit 13. Is that by the same 2 artist? 3 A. Yeah. 4 Q. And as you sit here today, does this jog your 5 memory as to whether or not these are in fact the 6 sketches that were created based upon Opal Siebert's -- 7 A. Well, they were sketches created, but I don't 8 know from whose recollection. I do know after looking 9 at them that the N stands for Needles. There was a guy 10 named Bill Needles who was a police artist from Ohio 11 BCI, if that's still in existence, but whether these 12 came from Siebert or the truck driver, I have no 13 idea -- 14 Q. Okay. 15 A. -- at this point in time. But do they look 16 familiar? Yeah, they look familiar. That's all I can 17 tell you. 18 Q. Okay. That's all I'm asking. And let me show 19 you Exhibit 14 and ask you whether you as we sit here 20 today if that -- 21 A. It looks like an old photograph of Delaney 22 Gibson. 23 Q. And why do you say that? 24 A. From the appearance of the picture. An old 25 police photograph of Delaney Gibson. That's why I said 0093 1 that. 2 Q. Because you recognize him to be Delaney 3 Gibson? 4 A. He looks like a young Delaney Gibson. 5 Q. You've met Delaney Gibson, correct? 6 A. Have I met him? Yes. 7 Q. So when you say it looks like Delaney Gibson, 8 it's from your memory of seeing Delaney Gibson? This 9 looks like that same person? 10 A. Right. 11 Q. I mean, I'm not trying to put words in your 12 mouth. I'm just trying to understand. 13 A. I saw him I think once when he was taken into 14 custody. 15 Q. Okay. 16 A. Yeah. And there were other photographs, 17 though, of Delaney Gibson than that one as I recall. 18 Q. All right. And let me have this marked in 19 fact as whatever the next exhibit number is. 20 THE REPORTER: Forty-eight. 21 MR. DUNN: Actually, let's go off the record a 22 second. 23 THE WITNESS: You know what, I don't even know 24 who that is. I don't ever recall seeing that picture. 25 MR. DUNN: I just want to get back to the 0094 1 court reporter's stack the originals. 2 BY MR. HILL: 3 Q. You don't recall seeing this? 4 A. No. 5 Q. All right. If I posit to you that this was -- 6 this was a trial exhibit at the trial and it was 7 identified by you at trial as a photograph of Delaney 8 Gibson -- 9 A. I don't recall. 10 Q. I'm positing that to you. 11 A. Did I identify that? 12 Q. Yeah. 13 A. I don't remember. It's not a very good copy 14 either, but I do -- 15 Q. It's the best we can do. 16 A. I do remember that one, but I don't really 17 remember that picture. 18 Q. I will posit to you that this Exhibit No. 14 19 was the photograph that was put in the spread that was 20 picked out by Opal Siebert. 21 A. Are you sure -- let me see where I identified 22 that. 23 Q. Sure. Hold on. 24 A. Because I don't even remember -- 25 Q. Well, it's going to take me a minute. 0095 1 A. You know what, forget about it. I don't 2 remember. 3 Q. That's fine. 4 A. I don't remember. 5 Q. This can get expedited if you just -- you 6 know, if you don't remember just say I don't remember. 7 I will posit to you that Exhibit 14, the one that 8 you've identified previously, was the photo that was 9 identified out of the spread by Opal Siebert. 10 A. See, I -- I would have remembered that one. 11 Q. Pardon? 12 A. I would have remembered that because of the 13 spread, but -- 14 Q. You do remember that this was in the spread? 15 A. Well, I knew it was Delaney Gibson. I don't 16 remember it was in the spread, no. 17 Q. Okay. 18 A. But that's probably why I remember it was 19 Delaney. 20 Q. All right. Now, my question was if you 21 remember. If you don't remember just say I don't 22 remember. As between Exhibit 14 and Exhibit 48, when 23 the spread was being put together, why was 14 chosen 24 instead of 48? 25 A. I have no idea. I don't remember that at all. 0096 1 Q. Okay. 2 A. Do you know when we got that photograph that 3 was identified at the trial, when it came into the 4 inspection services' possession? 5 Q. I'll show you the transcript later. No, I 6 mean, I don't know. 7 A. I don't either. I mean, one reason is maybe 8 we didn't have it at the time the photo spread was 9 shown. Maybe that was something that was gotten from 10 the prison later. Ohio sheriffs normally don't have 11 Kentucky state prison photos. 12 Q. Right. And I'm just asking a simple question. 13 You could only put -- 14 A. Well, you piqued my curiosity too. When did 15 we get it, you know? We would certainly have put the 16 newest, most accurate photograph in the spread if we 17 had it. 18 Q. All right. And why would that be? 19 A. Obviously a newer photograph of someone is 20 easier to remember than one that would be 10 or 15 21 years ago. It's easily recognizable. 22 Q. Okay. Let me show you -- let me show you -- 23 let me have this marked the next number. 24 MR. DUNN: Forty-nine? 25 THE REPORTER: Yes. 0097 1 BY MR. HILL: 2 Q. I've shown you what's Exhibit 49 and ask you 3 first of all, can you recognize that? 4 A. This one? 5 Q. Yes. 6 A. It seemed like when he was arrested in North 7 Carolina that was the photograph they took of him 8 incident to that arrest. 9 Q. And him, the him is who? 10 A. Delaney Gibson. 11 Q. Okay. And do you -- 12 A. Now, that wouldn't have been available I don't 13 think during the interview. 14 Q. Well, can you tell from that Exhibit 49 when 15 that photograph was taken? 16 A. Well, the date says 4/18/83. 17 Q. April the 18th of 1983? 18 A. Yeah. 19 Q. All right. And do you recall, is that the 20 time that he was arrested when you actually physically 21 saw him yourself? 22 A. I don't remember. 23 Q. And in -- let me show you 14 and 49, okay. 24 And if you can compare the two of them, in what regard 25 are they the same or different? 0098 1 A. I can't answer that. What kind of question's 2 that? 3 Q. Well, I'm asking you to look at the two and 4 tell me the physical appearance and which way is it 5 similar and which way is it different? 6 A. The nose, it's similar. The shape of the 7 mouth, lower lip, similar. Droopy eyelids at the top 8 are similar. That's what I look for and not for hair, 9 not for clothing, not for particularly baby fat, but 10 more pronounced things like nose, eyebrows, eye set, 11 things like that. 12 Q. All right. And in Exhibit No. 14, which is 13 the earlier photograph of Delaney Gibson, is he bearded 14 or not bearded? 15 A. Well, he's not bearded in that one. 16 Q. And in Exhibit 49, which is the photo taken on 17 April -- 18 A. In April of '83, he does have a beard. 19 Q. Okay. All right. After -- after Delaney 20 Gibson was identified by Opal -- after his photograph 21 was identified by Opal Siebert -- let me ask you a 22 question. Did Opal Siebert, to the best of your 23 knowledge, ever actually see Delaney Gibson in person? 24 A. I don't know. Did you tell me she identified 25 Gibson? 0099 1 Q. Yeah, I'm positing to you that -- 2 A. I'm assuming she did. She said she did. 3 Q. I'm telling you that she identified a 4 photograph of Delaney Gibson -- 5 A. Okay. 6 Q. -- out of the spread. 7 A. Do I believe that she saw what she identified? 8 Q. No, that's not the question. The question is 9 to the best of your knowledge did she ever see Delaney 10 Gibson in person, do you know? 11 A. She said she did on the morning of the crime. 12 Q. Okay. Subsequent to that time did she ever 13 see him in person? 14 A. Not that I'm ever aware of. 15 Q. Never -- 16 A. I mean, I can't answer for a deceased person 17 if she ever saw him. 18 Q. As far as you know. Never observed a lineup? 19 A. In person, not as far as I know. 20 Q. Never saw him in a courtroom? 21 A. I don't know. Not in the Spirko trial she 22 didn't. 23 Q. Okay. After she identified Delaney Gibson in 24 January -- I'll posit to you that it occurred in 25 January of '83, okay. After she identified the 0100 1 photograph in the spread where you were present, what 2 was -- as team leader what was Delaney Gibson's status 3 at that point as part of your investigation? 4 A. Prior to her identification, none. 5 Q. No. Immediately subsequent to her 6 identification. 7 A. Well, he became a suspect then. Because 8 here's what was amazing. We had a photo spread of 20 9 or 25, it was a lot. Normally we only put five or six 10 in. We got the only two alleged eyewitnesses. One 11 pulls out Gibson, one pulls out Spirko. You're telling 12 me -- and I don't remember -- that one was 100 percent 13 certain or she thought, the other was 70 percent 14 certain. Out of 24 photographs it's more than just 15 coincidence that probably the only two people in that 16 spread that had any relationship or knowledge of each 17 other were picked out; that's why he became a suspect. 18 He had been -- we subsequently then learned, 19 you know, that he was an escapee. He was out of prison 20 at the time. I don't think we really knew that at the 21 time he was put in the spread. In fact, I don't think 22 Spirko was even placed in the spread so much that he 23 was a suspect at that time as, you know, as it was we 24 were more interested in trying to clear John because he 25 did come forward like he had seen stuff initially and 0101 1 wasn't involved, but as he kept giving us more and more 2 stuff that had not been released in the paper then we 3 put John in there. And there were a lot of people. We 4 might have had this Baumgardner. It was a real fishing 5 expedition, and they hooked the only two people that 6 knew each other. 7 Q. Okay. Let me ask you, at the time this was 8 done, all right, the spreads were shown -- 9 A. Right. 10 Q. -- Spirko had completed his series of, you 11 know, interviews with Mr. Hartman. I'm positing that 12 to you. I'm trying to give you some help in putting 13 together a sequence, okay. 14 A. Okay. 15 Q. So all of the interviews had been completed, 16 okay. Now, from the best of your memory, at that point 17 what was Spirko's status as part of the investigation? 18 A. An informer in my mind. 19 Q. So again, I don't want to put words in your 20 mouth, he became a sus -- he became a suspect as 21 opposed to an informer at the point where the 70 22 percent identification occurred; is that what you're 23 saying? 24 A. I can't remember the time lines. 25 Q. That's why I'm trying to help you. 0102 1 A. Well, that doesn't help me because I remember 2 there was some talk that Spirko -- there was some tacit 3 admission of guilt during one of the interviews with 4 Hartman, and I don't remember whether that's before the 5 interview, after the interview, before the spread, 6 before Hartman. 7 Q. I'm telling you the one thing I can tell you 8 and posit to you is that all the interviews happened 9 before the spread. 10 A. Right. But whether I had all the reports of 11 the interviews and everything and had digested them, I 12 don't know what the time element is there. In my mind 13 Spirko was a suspect after he was identified. 14 Q. Let's switch gears for a moment and talk about 15 the decision to indict in this case. And again, I will 16 posit for you that the indictment -- I will posit for 17 you that the indictment occurred in September of '83. 18 A. Well, will you also admit that that's the 19 prosecutor's decision to indict and not mine? 20 Q. I'm just asking you what you recall about the 21 decisionmaking that went into -- 22 A. Nothing. Presentation letters were given. 23 Stuff was discussed with the assistant U.S. Attorney in 24 Cleveland, as well as the one in Van Wert when, as I 25 recall, he suggested that we present it to them too. 0103 1 They may have gotten together and talked. I was not a 2 part of that process other than the presentation of the 3 case for prosecution. No one sat down and said what's 4 your opinion, should we prosecute it federally, state, 5 should we do this, that, I don't recall any of that. 6 That's a prosecutorial decision that was -- we 7 presented many cases where we'd get a declination, no 8 one called up. Sometimes there would just be a letter 9 come from the U.S. Attorney's Office, we decline, you 10 know. I mean, so no, I don't remember anything about 11 that decision to prosecute. I think you should best 12 ask that to the prosecutors -- 13 Q. Okay. 14 A. -- what went into that. 15 Q. Do you recall anything about what happened 16 between the time that the photo spread identifications 17 were made in January and the time the indictments were 18 returned in September from an investigative nature? Do 19 you remember what was going on? 20 A. Well, I know that the investigation continued. 21 I know that we tried to locate Delaney Gibson in 22 Florida because we went to Florida. He was a migrant 23 farm worker while he was an escapee. I know they 24 finally did locate him in, whatever, April of '83 or 25 something, that photo you showed. I remember there 0104 1 were search warrants done on homes that John Spirko had 2 picked out where he said they had taken the postmaster, 3 that's where I saw her bound, this is where she was 4 raped, she was killed in the field right next door to 5 this house. Some house in Cygnet, Ohio Spirko told us 6 about. Search warrants were done there. 7 Stuff was pursued with the Willier (phonetic) 8 crew, there was some painting crew. Some trailer park 9 in Findlay, we did, you know, some lab work there 10 trying to find dried blood and stuff and it turned out 11 to be rust stains from an old hot water heater. I 12 mean, there was a lot of stuff that went on during that 13 period, not knowing chronologically which of those came 14 first or whether they even overlapped some, but it 15 continued right up until the time -- and I don't know 16 what time the prosecution -- where they said okay, 17 let's go get -- you've got enough, let's go get an 18 indictment, you know, or you don't have enough, I don't 19 remember any of that. That was their decision. And we 20 kept them advised of, you know, what has gone on. And 21 naturally you always try and strengthen your case. But 22 I don't remember dates, guys, come on. 23 Q. I'm not asking you for dates. 24 A. '82, chronologically. 25 MR. HILL: Do you guys have the presentation 0105 1 letter with you or not? I got to find my copies of it. 2 MR. PRICHARD: Is that what that summary is, 3 Chuck, that I just handed you? 4 MR. WILLE: This is it. 5 THE WITNESS: I have to take another break. 6 MR. HILL: Okay. 7 (Brief recess.) 8 BY MR. HILL: 9 Q. Mr. Strausbaugh, you have before you what's 10 been marked as Exhibit No. 50. Do you recognize that? 11 A. It appears to be a copy of a presentation 12 letter, September 12th, '83. 13 Q. Okay. And it's a presentation letter to whom? 14 A. Steve Keister, Van Wert, Ohio prosecuting 15 attorney. 16 Q. All right. And -- 17 A. It's the first time I've seen this since '83. 18 Q. And who is it authored by? 19 A. Myself and Paul Hartman. 20 Q. Okay. Now, do you remember as we sit here 21 today how you and Mr. Hartman divided up the 22 responsibility for writing it? 23 A. No, I don't remember. 24 Q. It's fairly -- 25 A. Probably because there were a lot of 0106 1 interviews with Spirko in here. You know, I would 2 imagine he handled most of that and I handled a lot of 3 the other, but how each paragraph was divided up, no. 4 Q. And it's fairly lengthy, right? It's 57 pages 5 long? 6 A. Yeah. 7 Q. And this is the presentation letter that 8 you've been testifying about this morning. You've 9 mentioned presentation letter a number of times. This 10 is what you're referring to? 11 A. Right. 12 Q. Now, I guess tell me first specifically if you 13 remember, and if you don't remember tell me more 14 generally from your experience, what is it that causes 15 you to conclude at a particular point in time, in this 16 case September of 1983, that it is time to write -- to 17 present it to the prosecutor? 18 A. When we think that we have enough to sustain a 19 successful prosecution through evidence. 20 Q. Okay. 21 A. And if the prosecutors that we're talking to 22 at the time say, well, I think you got enough, you 23 know, why don't you present the case, then we do a 24 presentation letter. 25 Q. Okay. And that's a standard -- I mean, 0107 1 presentation letter is sort of a term of art. I mean, 2 it's a standard descriptive term for this kind of 3 document, right? 4 A. Right. 5 Q. And this presentation letter that's before 6 you, Exhibit 50, relates to how many offenders? 7 A. Two. 8 Q. And they are? 9 A. John George Spirko and Delaney Gibson Jr. 10 Q. Okay. So based upon what you just testified 11 to it would be -- would it be a fair conclusion that by 12 the time -- by the date of this letter, September of 13 1983, you as the task force leader had concluded that 14 there was sufficient evidence to sustain a prosecution 15 against these two individuals? 16 A. I would have thought so, but it would have 17 been in concert with a discussion with the prosecutor. 18 Q. Right. But you personally would have come to 19 that conclusion? 20 A. After a discussion with the prosecutor. 21 Q. Okay. 22 A. Yeah. 23 Q. Now, what, if anything, do you remember about 24 the discussions that you had with the prosecutor that 25 preceded this? 0108 1 A. None. I don't even remember it, but I would 2 have had a discussion with them. 3 Q. So it's not like all of a sudden this memo 4 shows up on his desk without some prior discussions? 5 A. There would have been phone calls or a meeting 6 to go in and tell them here's what we have, are you 7 interested. 8 Q. That's how it works? 9 A. Yeah, generally. 10 Q. I mean, you don't just sort of write it up and 11 plop it on his desk? 12 A. Well, we have, but usually those aren't very 13 successful. So I've always learned it's best to 14 involve the prosecution, you know, in the 15 decisionmaking process. 16 Q. Okay. And in this particular case would that 17 have been Mr. Keister? 18 A. Yes, and whoever the assistant would have been 19 at Toledo, the assistant U.S. Attorney. Now, it may 20 have been -- I don't remember. May have been an oral 21 presentation to him, just like we would have done to 22 Keister, or -- and if the guy in Toledo said sorry, 23 guys, you know, there's just one of me and there's not 24 enough people, you know, why don't you see if the state 25 will take it or let me call the state and talk to them, 0109 1 I have no idea, you know, but it would have been 2 presented. There's no way we would have not presented 3 it to the assistant U.S. Attorney first being a federal 4 agency and a federal post office, no way. Now, 5 whatever decision they based it on it would have at 6 least orally been presented to them. 7 Q. But as we sit here today, you don't recall 8 when that would have occurred relative to this? 9 A. No. I would assume it would have been 10 either -- could have been a phone call the same day -- 11 well, not the same day this was typed, but whenever 12 this was drafted, it could have been a phone call the 13 same day to them saying, you know, hey, here's what we 14 got. And if he says he's not interested we're not 15 going to type up 57 pages to go in file 13, you know. 16 Q. All right. So you -- as we sit here today, 17 again, you don't recall whether the equivalent of this 18 written document was presented to the U.S. Attorney's 19 Office or not? 20 A. The equivalent may have been presented orally, 21 but no, I can't really say -- if you don't have it and 22 it's not in the file then it was probably an oral 23 presentation. 24 Q. Okay. 25 A. Because I'm telling you, nothing left that 0110 1 file. It was sealed and locked in a room in Van Wert 2 County. 3 Q. So if something was not in that file then it 4 was never -- it either never existed or it never got 5 put into the file; is that fair? It didn't walk out of 6 the file. 7 A. I know of no one that would have removed 8 anything. It would have literally required a jailbreak 9 to get to it because it was locked up in a cell as I 10 recall. 11 Q. Now, do you recall whether any meetings you 12 might have had with Mr. Keister also included Mr. Koch 13 or other people, do you recall that? 14 A. I don't recall. You know, you keep mentioning 15 Mr. Koch. He was such a nonplayer in this as I recall. 16 I mean, he -- it seems like I recall after the trial -- 17 during the trial he may be given one or two people, you 18 know, to talk to, but after the trial he handled all 19 the appeals, I think. But no, he wasn't -- he was 20 certainly not the lead prosecutor prior to the trial. 21 Q. Let me show you what's been previously marked 22 as Exhibits 20 and 21 and ask you if you can look at 23 those and tell me if you know what they are. 24 A. Well, I can -- I've not seen them before that 25 I can recall, but -- or maybe I have, but I can tell 0111 1 you what they are by reading it. 2 Q. Okay. 3 A. It's a memorialization of the grand jury 4 indictments against Spirko and Gibson. 5 Q. Right. In fact, they are the indictments, 6 right? 7 A. Are they? I don't know. I don't see a seal 8 here, so -- 9 Q. Well, okay. They are copies of a document 10 that -- each document is headed -- how's it headed, 11 each document? What's the heading? 12 A. Indictment. 13 Q. And they bear Mr. Keister's signature, 14 correct? 15 A. Exactly. They do. 16 Q. And the date of -- 17 A. I'm assuming that's his signature, yeah. 18 Q. And the date of the indictment? I think you 19 will find it on the second page. 20 A. Third term 1983. See if there is a CR number. 21 13th day of September, 1983. 22 Q. Okay. 23 A. That's funny, this one doesn't appear to be 24 filed against Spirko. (Indicating.) 25 Q. Does that one bear a date? 0112 1 A. No. It does up here. I guess neither one of 2 them have that filled in at the bottom. 3 Q. Right. But they both bear the same date on 4 it? 5 A. Yeah, neither one does. 6 Q. But they also both bear the September 13th 7 date, right? 8 A. Yeah, they do. 9 Q. Again, I'm trying to refresh your memory. If 10 the presentation letter is dated the 12th, Exhibit 50, 11 and the indictments are returned on the 13th, is it at 12 least a fair inference that there must have been some 13 real discussions with Mr. Keister before the 14 indictments were returned? 15 A. I would assume so. 16 Q. And would it be a fair -- would it be fair to 17 say that the presentation letter probably memorializes 18 sort of the substance of what was discussed previously? 19 A. Right. 20 Q. Bear with me here. Mr. Strausbaugh, I think 21 you testified a few minutes ago at least that you 22 remember that there came a point at which there was 23 some investigation that occurred down in Florida? 24 A. Uh-huh. 25 Q. Just generally tell me what you remember about 0113 1 that. 2 A. I don't even remember when it was, other than 3 Delaney Gibson was suspected of working for a 4 migrant -- information from North Carolina indicated 5 that he was traveling with a migrant tomato-picking 6 crew and was in Florida at the time, and that must have 7 been after the indictment. And we sought to arrest 8 him, but he wasn't found then. 9 Q. Well, let me back up and tell you that again 10 just to put it into -- chronologically. I'll show you 11 some documents in a second, but the photograph that you 12 identified, Exhibit -- Exhibit 49, that's an arrest 13 photograph of Mr. Gibson in North Carolina, correct? 14 A. Okay. 15 Q. And that is dated in April of '83, correct? 16 A. Right. 17 Q. And the indictment was returned in September 18 of '83, correct? 19 A. Yeah. 20 Q. So -- 21 A. I guess. 22 Q. Just, again, I'm sort of trying to help your 23 memory a little bit here. So that there was a point in 24 time where Mr. Gibson was in custody prior to the 25 indictment? 0114 1 A. Well, he was an escapee and so there were 2 outstanding arrest warrants for him from Kentucky state 3 prison. 4 Q. Right. I'm not trying to suggest that he was 5 arrested in your case, but he was -- 6 A. Right. I suppose if he would have been 7 located in Florida at the time he would have been 8 arrested based on his status as an escapee. 9 Q. Do you recall with respect to the Florida part 10 of the investigation, what I call that, do you 11 recall -- did you go to Florida? 12 A. I was there, but I left a day or two early 13 when he wasn't there. There were one or two guys that 14 stayed down there and continued to interview some 15 farmers, I think, maybe, and -- but the crew was no 16 longer there. They traveled in a bus or something and 17 they had allegedly went to North Carolina again or 18 Georgia or someplace, I don't remember. 19 Q. And do you recall what other investigators 20 were with you in Florida? 21 A. No. I know Paul Hartman was there and Sally 22 Wolfe was there. I don't know. There were like five 23 of us, four of us. 24 Q. Okay. 25 A. And I don't even know what month or date we 0115 1 went there. 2 Q. Let me try to help you in that regard. Let me 3 show you -- let me show you what's been marked as 4 Exhibit 51 and ask you first of all whether -- do you 5 recognize the form, not this particular document, but 6 it appears to be a form, doesn't it? 7 A. Yeah. It's not an official government form. 8 It may have been a form that we -- that we adopted for 9 the task force. 10 Q. Okay. And this particular -- the document No. 11 51 reflects that the interview was conducted by whom? 12 A. Jerry Richardson, postal inspector, and Sally 13 Wolfe, postal inspector. 14 Q. And do those names -- I mean, you've already 15 mentioned Ms. Wolfe, I think, but Mr. Richardson, does 16 that jog your memory about him? 17 A. Yeah, I remember him now. 18 Q. And this reflects an interview of a woman 19 named Isabel Cervantes; is that right? 20 A. Allegedly, yeah. 21 Q. Well, you would have no reason to believe that 22 Ms. Wolfe and Mr. Richardson would -- I mean, they 23 certainly believed they were interviewing 24 Ms. Cervantes, didn't they? 25 A. Well, they may have believed it, but whether 0116 1 Isabel Cervantes is really Isabel Cervantes or not, I 2 don't know. 3 Q. And it reflects that the interview was done 4 when? When and where? 5 A. Well, in a tomato field outside of Naples, 6 Florida on April 25th, 1983. 7 Q. Okay. And does that help you at all -- and 8 I'll give you some other documents too, but does that 9 help you at all in terms of remembering when -- 10 A. No. 11 Q. -- you went to Florida? 12 A. It does absolutely nothing as far as when I 13 went to Florida. 14 Q. Well, when you went to Florida -- 15 A. Because my name's not on here and I don't know 16 that this was done when I was there or after I left, or 17 whether we sent somebody back down later. 18 Q. Okay. When you went, where in Florida did you 19 go? 20 A. The Naples area, but that's where the alleged 21 migrant workers were picking tomatoes. Someone could 22 have went back there several months later, I don't 23 know. 24 Q. All right. And focusing your attention on the 25 last paragraph of this particular memo, does it -- I'm 0117 1 sorry, the last paragraph of the first page of the 2 memo. 3 A. Isabel advised that Jimmy wore a baseball cap. 4 Q. Do you know who Jimmy is? 5 A. (Witness shakes head.) 6 Q. Look at the first sentence of the memo. 7 A. Jimmy Lanna (phonetic). See, he probably was 8 using an alias since he was an escapee from prison. 9 Q. And that last paragraph on that page reflects 10 that, what, that he -- in terms of his appearance? 11 A. That he wore a baseball cap and never saw him 12 wear a cowboy hat. His beard was always the same. 13 Also wore glasses while working in the fields. 14 Q. I actually think that word that you read is -- 15 well, you read that as glasses. 16 A. Yeah. Oh, gloves. Gloves. Yeah, that jogs 17 something about the gloves because he was allergic to 18 insecticide. So think about that, guys, when you peel 19 a tomato for your cheeseburger, but the migrant workers 20 wear gloves. 21 Q. Let me have this marked, please. What number 22 is this? 23 A. Fifty-two. 24 Q. Do you recognize the handwriting? 25 A. No. 0118 1 Q. Does the document 52 on its face purport to be 2 a document by postal inspectors? 3 A. Well, I guess. It's got three inspectors' 4 signatures at the bottom. 5 Q. Wolfe, Hartman and Richardson? 6 A. Yeah, I'm guessing it's theirs. 7 Q. And -- 8 A. It's funny, it's not on the same type form 9 though. 10 Q. And it was done when? 11 A. 2/25/83. Or 4, 4 I guess. 12 Q. And there are some initials over that, 13 correct? 14 A. Sally J. Wolfe. 15 Q. SJW, right? 16 A. Uh-huh. 17 Q. And this is an interview again in Naples, 18 Florida; is that right? 19 A. Right. 20 Q. Of Juan Flores? 21 A. Uh-huh. 22 Q. Do you remember Juan Flores? 23 A. No. I never interviewed Juan Flores, nor was 24 I present. 25 Q. All right. And there's one larger paragraph 0119 1 on this document, right? 2 A. Yeah. 3 Q. Could you read that? 4 A. "Juan Flores and Johnny Valdez both stated 5 that Gibson's beard always looked the same, no longer 6 or no shorter. They both agreed that Gibson's beard 7 looked exactly like postal inspector Paul Hartman's 8 beard as of this date; same in length and same in 9 color, light and reddish brown." Okay. 10 Q. Did Mr. Hart -- Mr. Hartman had a beard as far 11 as you remember? 12 A. Paul Hartman, as I recall, has had a beard off 13 and on during the eight years I supervised him or six 14 or whatever it was. Seemed like come fall or winter in 15 Cleveland he would grow a beard. 16 Q. All right. Let me show you what's been marked 17 as 53, Exhibit 53, and ask you again does this -- does 18 this bear anyone's initials on it? 19 A. SJW. Which paragraph do you want me to read? 20 Q. Well, just -- it's an interview of somebody 21 named Pablo Cervantes; is that right? 22 A. Yeah, and I wasn't present. 23 Q. In Naples, right? 24 A. Right. 25 Q. And the fourth paragraph down? 0120 1 A. First page? 2 Q. Yeah. 3 A. "Does not remember him not having a beard." 4 Okay. You know, these people would have only known him 5 a couple of months. He was in prison and escaped, 6 so -- you know what, I've not known you since you've 7 had a mustache, you've always had a mustache, but that 8 doesn't mean tomorrow you'll have it. 9 Q. That's true. Let me show you No. 54. Again, 10 we can -- 11 A. SJW, 4/25/83, Miguel Cervantes, migrant farm 12 worker, and let me pick out the paragraph. The third 13 paragraph, "Miguel said Gibson looked like a reasonable 14 person. He had about a two-month beard growth." Is 15 there another one? 16 Q. No, that will do it. Thank you. 17 A. Okay. 18 Q. Bear with me here. Let me ask you, having 19 read these things first of all, and just answer the 20 question and then we'll come back to something later, 21 do you recall at any point -- well, do you recall the 22 fact of whether or not Gibson had a beard as being an 23 issue? 24 A. No. 25 Q. So you don't recall as we sit here today that 0121 1 that was -- that ever was an issue that was discussed 2 among any investigators -- 3 A. No. 4 Q. -- or between you and the prosecutor? You 5 simply just don't recall it? 6 A. I don't recall. 7 Q. Okay. Bear with me here for a minute. 8 A. Well, I just had a question. It's not proper 9 for me to ask questions? 10 Q. When we go off the record, that's fine. Okay. 11 When you were in Florida in April of '83, do 12 you recall learning that Delaney Gibson had been in 13 North Carolina working as a migrant worker in August 14 of '82? 15 A. No, I don't recall that. 16 Q. Do you recall at any point in time being made 17 aware of the fact that Gibson had been in North 18 Carolina in August of '82? 19 A. No. 20 Q. So as we sit here today you have no memory 21 that your investigation determined that he had been in 22 North Carolina in August of '82? 23 A. Okay, now you've jogged my recollection 24 somewhat. 25 Q. Tell me what you remember. 0122 1 A. I remember Paul -- was it Hartman -- stating 2 something about Gibson had been in North Carolina near 3 the time of the crime, but the dates he could 4 substantiate him being there did not preclude him from 5 driving up to Ohio. It was like the day before. And 6 you're only talking 300 miles, an eight-hour drive. So 7 with that in mind it certainly didn't eliminate him, 8 but I do recall something. 9 And then it was a very self-serving -- as I 10 remember, it was a family member or his wife or 11 something that was his alibi. And they may have even 12 given Hartman a photograph of him with a beard, but 13 there was no dates on the photograph and there was no 14 way that the date could be corroborated that the 15 photograph was taken, so it basically didn't negate the 16 eyewitness and everything. So, you know, yeah, we 17 looked into that, certainly in an attempt to eliminate 18 him if it was an error, but it just -- you know, he 19 could not be eliminated as I recall because he was seen 20 the day before 300 miles away, didn't preclude him. 21 Now, conversely, Sonny Baumgardner was an 22 early suspect. Sonny Baumgardner, we eliminated him 23 because he was at a doctor's appointment. Someone 24 actually saw him. And that precluded airline 25 schedules, driving from Texas, everything, he couldn't 0123 1 have been there. And he was suspected early on as 2 being one of the persons, so he was eliminated. But I 3 do remember, you know, we don't -- we try and look at 4 the big picture and if there's a weakness in a case we 5 try to -- you know, rather than have the prosecutor 6 blindsided, we check it out. And there was nothing 7 that would have precluded him from being there. 8 Q. Well, we'll come back to this in a minute. Do 9 you remember evidence being -- well, your recollection 10 as you sit here today is that there was evidence that 11 was developed that placed him in North Carolina the day 12 before; is that right? 13 A. Well, I won't say there was evidence 14 developed. There was an uncorroborated statement of a 15 wife. 16 Q. That's your memory as you sit here today? 17 A. Right. 18 Q. Would it have made a difference to you if that 19 had been -- if that information had been corroborated 20 by either documents or third parties? 21 A. If someone could have said yes, he was with me 22 or I saw him and it was an unbiased person who saw him 23 during the period of time it would have taken him to 24 get there to the scene of the crime where it would have 25 been physically impossible, certainly. 0124 1 Q. How about if -- my question was a little 2 different and that is if it had been corroborated, 3 okay, but it was -- 4 A. It depends on who the other person was. 5 Q. Okay. Let's talk in hypothetical terms, okay. 6 A. All right. 7 Q. Let's assume you had corroborated evidence 8 independently, third party corroborated evidence -- 9 A. Right. 10 Q. -- that placed someone 500 miles away, okay, 11 eight hours prior to a particular crime, okay. Would 12 that be relevant information as far as you're 13 concerned? Where it's not physically impossible to get 14 from point A to point B, but -- 15 A. No. 16 Q. Wouldn't be relevant? 17 A. Well, it would be relevant, but it wouldn't 18 preclude them from being there. 19 Q. And is there -- so relevance doesn't equate to 20 precluding, right? It would still be relevant, it just 21 wouldn't preclude? 22 A. Well, now you're playing semantics. 23 Q. No. I'm asking you to describe -- 24 A. Your definition of relevant is probably more 25 of a legal definition than mine would be. 0125 1 Q. Well, what would your definition of relevant 2 be? I'm asking you. 3 A. Having something to do with, okay. So yeah, 4 if the information had something to do with removing 5 him from the scene of the crime or him not being 6 physically able to be there, that would be very 7 relevant to me. If it's eight hours before, 12 hours 8 before, you can easily make the drive. No one can 9 vouch for your whereabouts up to that point in time, 10 then it's not relevant to me. 11 Q. Okay. And if it's not -- if you described 12 that it's not relevant, okay -- 13 A. It's discussed with the prosecutor. 14 Q. And then ultimately -- and the reason it's 15 discussed with the prosecutor is why? 16 A. Well, you don't want him to be blindsided. 17 Q. So if -- 18 A. You know, with someone that says, well, he was 19 with me at the same time this happened drinking a beer 20 in Duffy's Tavern, well, obviously he couldn't have 21 been there, you know. But when a wife says, yeah, he 22 was here the day before and I don't know where he was 23 that night, you know -- 24 Q. Well, how about if -- 25 A. -- but a couple days later we went, you 0126 1 know -- he came back home and we did this or that. The 2 prosecutor may have been made aware of it, but I don't 3 think that that would preclude him from being there. 4 Q. Okay. In a situation where the evidence is 5 not just the wife, but it's corroborated, again not 6 preclusive, okay, that would be discussed with the 7 prosecutor? 8 A. Well, it depends on -- it should be, but I 9 don't know what you're talking about. I don't know 10 what point you're trying to make. 11 Q. Well, I'm just asking you -- you shouldn't 12 worry about what point I'm trying to make. 13 A. Yeah, you're trying to make a point. This is 14 not just a hypothetical thing that you discuss every 15 suspect's alibi a day before, two days before, a week 16 before a crime's committed. All that's not discussed 17 with the prosecutor, you know, who he went out with, 18 whether they drank what kind of beer three or four days 19 before a crime was committed. 20 Q. Well, I'm asking you a very specific question. 21 Let me posit -- 22 A. It depends on specifics -- 23 Q. Let me posit -- 24 A. -- that's what I'm trying to say. 25 Q. Let me posit to you, if you had developed 0127 1 evidence that placed Delaney Gibson 500 miles away at 2 6:00 p.m. on August the 8th and if that evidence had 3 been corroborated, was not simply a wife, okay? 4 A. Right. 5 Q. And if the abduction had occurred eight hours 6 later -- no, excuse me, 14 hours later. 7 A. Fourteen hours later. 8 Q. Okay. And I understand -- 9 A. I would have mentioned it to the prosecutor. 10 Q. Okay. And in this particular instance would 11 that have also -- would that kind of information have 12 made its way into your -- what's the thing called, the 13 presentation report? 14 A. No. 15 Q. No. 16 A. Probably not. 17 Q. It would probably be an oral discussion with 18 the prosecutor? 19 A. Probably. 20 Q. And you would discuss it with the prosecutor 21 and decide whether or not what effect that evidence 22 might have? 23 A. Right. 24 Q. Okay. And would -- you would also discuss it 25 with your colleagues, your other investigators? 0128 1 A. It would be discussed in a meeting and then we 2 would say, hey, the prosecutor should know about it, 3 you know, and see what his opinion is. 4 Q. Okay. 5 A. Because he's the one that's putting the case 6 on. 7 Q. Now, we're going to go through documents, but 8 as you sit here today, and I know it's been 20 years, 9 okay. 10 A. Twenty-two years. 11 Q. Twenty-two years. As you sit here today do 12 you remember that happening? 13 A. I remember -- no, I don't remember it 14 happening. It should have happened, but I don't 15 remember whether it happened or not. If Paul Hartman 16 had the opinion Gibson didn't do it he certainly wasn't 17 forceful in sharing that information with me or the 18 prosecutor. He probably brought up the fact, you know, 19 that, hey, I interviewed a relative and they said, but 20 if it didn't preclude it and it was discussed with the 21 prosecutor it certainly wouldn't have changed anything, 22 the mere fact that Gibson was seen 500 miles away or 23 300 miles away 14 hours earlier. 24 Q. Do you -- 25 A. I don't recall Hartman being forceful about 0129 1 that opinion. I'm sure he may have shared it. 2 Q. Well, when you say he may have, I'm just 3 trying to be clear, are you sort of being speculative 4 now or do you actually remember it? 5 A. Well, somebody shared it because I wouldn't 6 have remembered about him being with a relative or -- 7 the day before. Somebody -- you know what, it's all so 8 vague, I don't remember. This is like trying to 9 identify Ivan the Terrible. 10 Q. But as we sit here today, again, I'm just 11 trying to -- all we can ask you to do is remember -- 12 A. I vaguely remember what you're talking about, 13 but I don't specifically remember if it was discussed 14 with Keister, but it probably would have been. And I 15 don't specifically remember Hartman forcefully saying 16 it can't be Gibson because he wasn't able to be here 17 because he could have been. And my thought, the theory 18 of the case was that Gibson and Spirko had met part way 19 between the two towns. Information -- 20 Q. When you say the two towns, which two towns 21 are you talking about? 22 A. Between wherever he was and Swanton. And they 23 were on their way to Indiana to kill a witness in one 24 of Gibson's five murder trials. That was -- 25 Q. That's your -- that was your working theory? 0130 1 A. At the time that's what we thought. And 2 Hartman thought that too because there was a lot of 3 time spent in Indiana pursuing witnesses on Gibson's 4 murder cases, you know. I mean, Spirko's a twice- 5 convicted murderer, Gibson five times. And it's my 6 understanding that Gibson would have been prosecuted on 7 this had not the witness that identified him died. 8 That's the best I can remember. 9 Q. We'll come back to that. 10 A. But again, that wasn't my decision. 11 Q. Right. We'll come back to that. Since you 12 raised it, your working theory was that they met 13 someplace between Swanton and where Gibson had been? 14 A. Right. We thought around Lima, Ohio. And I 15 don't know why right now without going through all 16 those files. 17 Q. Well, Lima, Ohio is further away from Canton, 18 North Carolina than even Elgin is, right? So -- 19 A. Well, it may not be. It's exactly -- no, it's 20 not. 21 Q. It's pretty close? 22 A. It's east about 30 miles right on the 23 interstate. 24 Q. It's pretty close, but whatever. I mean, 25 it's -- it's technically, I suppose, in between, but 0131 1 it's a whole lot closer to Swanton than it is to 2 Canton, North Carolina; we can agree on that, right? 3 A. Yeah. Well, at one time that was a theory 4 that Hartman espoused and we didn't rule that out. 5 Q. But when you say that's your theory, though, 6 is that -- 7 A. Well, it wasn't my theory. It was a theory 8 that was shared at one time. I didn't come up with the 9 theory, Paul Hartman did. 10 Q. Again, I want you to be clear so that the 11 record is clear. From what your testimony is you said, 12 I thought a few minutes ago, my working theory 13 was . . . 14 A. Well, yes, because I adopted Hartman's theory 15 at the time. 16 Q. Okay. 17 A. But it may have been negated through some 18 interviews over in Indiana, you know. I just don't 19 remember. 20 Q. Do you as we sit here today, do you recall 21 what efforts, if any, were made in order to try to 22 establish some contact between Spirko and Gibson prior 23 to August the 9th of '82? 24 A. Oh, I know there was some telephone records 25 looked at, subpoenas of phone records. 0132 1 Q. And do you know if those phone records -- 2 A. I don't remember. 3 Q. Do you know whether they established any 4 contact between them? 5 A. I don't remember. I mean -- 6 Q. Do you recall any evidence at trial being 7 presented that established that there was any 8 communication between the two of them prior to August 9 9th? 10 A. I don't remember. 11 Q. Will you agree as we sit here today that if 12 the two of them met up prior to August the 9th there 13 must have been some communication between them, they 14 didn't just randomly meet up? 15 A. Yeah. I mean, it -- 16 Q. Just logically? 17 A. Yeah. It could have been a phone call an hour 18 and a half before they met. 19 Q. Well, it couldn't have been an hour and a half 20 before if one of them was 500 miles away. 21 A. Sure. He could be at a rest stop in Lima and 22 call John and say come on down. 23 Q. I understand that. But I say if it was 500 24 miles it wouldn't have been an hour and a half, right, 25 we can agree? 0133 1 A. Well, no, but if he called John from a pay 2 phone at a truck stop in Lima, John could have been 3 there within an hour -- 4 Q. Right. 5 A. -- to meet up with his friend. 6 Q. But as far as you know sitting here today, was 7 there ever any evidence developed that established any 8 sort of contact like that? 9 A. I don't remember. You know what, it seemed 10 like there was a general store pay phone that -- nah, 11 nah, nothing -- there was a pay phone, it went to a pay 12 phone. It was so vague. No, there was no evidence 13 that I can remember. 14 Q. And you do remember some telephone records 15 being subpoenaed? 16 A. Yeah, I remember the phone records being 17 subpoenaed. 18 Q. All right. Do you recall anything about 19 witnesses being interviewed and records being reviewed 20 relative to the tomato-picking operation in North 21 Carolina? 22 A. I don't remember. 23 Q. Do you recall anything about -- do you recall 24 that Gibson's wife also was a migrant tomato picker? 25 A. I don't remember. I've never met Gibson's 0134 1 wife. 2 Q. Do you recall any evidence being developed 3 that reflected that Gibson had requested that all of 4 the -- that the pay and the time records be in his 5 wife's name in North Carolina -- 6 A. No. 7 Q. -- presumably to avoid detection? 8 A. I don't remember. 9 Q. Okay. Let me have this marked. Let me show 10 you 55. 11 A. Juan Flores and Juan Valdez, sounds like the 12 Columbian coffee. 13 Q. It does, doesn't it? This is actually 14 probably some -- but if you flip back to what's 15 previously been Bate stamped as 4646, it's about ten 16 pages back or so. I'm sorry. It's actually -- this is 17 actually a collection of memos. Just look at 4614. 18 The third page back. This probably could have been 19 broken up. 20 A. 4614. Got it. 21 Q. Look at those first three pages. 22 A. Okay. Bear in mind, I wasn't present during 23 this and this is not my notes or reports, so you're 24 asking me about something that -- 25 Q. Right. 0135 1 A. -- I may have read once. 2 Q. I understand. But I'm just asking you right 3 now to identify -- does it appear to be the document of 4 Paul Hartman? 5 A. I have no idea. It appears to be. It's got 6 Paul Hartman's name on it. 7 Q. It's been a while, I realize that, but looking 8 at this, do you remember, have you seen enough of Paul 9 Hartman's handwriting to know whether this looks like 10 it? 11 A. No. 12 Q. This sort of memo, okay, or interview notes or 13 however you want to characterize it, would this sort of 14 thing -- and obviously you don't know specifically 15 about this document, but would this sort of thing be 16 the kind of thing that should be maintained in the 17 records that would ultimately find its way into those 18 file cabinets? 19 A. Well, if they were turned over, yeah. 20 Q. And was the protocol or the direction that 21 they should be turned over? I mean, you can't control 22 whether they are, I realize that, but was that the 23 understanding of what people were supposed to do? 24 A. Yeah. 25 Q. Drawing your attention to the third page, the 0136 1 paragraph beginning when, second -- really the first 2 full paragraph there. You see what I'm talking about? 3 A. Yeah. I can hardly read this handwriting. 4 What's it say? 5 Q. Well, you want to make an effort at it -- or 6 I'll read it. 7 A. Well, it's not very -- 8 Q. "When reviewing his time slash count records 9 for 8/10/82." 10 A. Right. 11 Q. Some person's name, "Flores indicated the 12 volume reflected would seem to indicate that two 13 persons were picking on that date." 14 A. Okay. 15 Q. "When Gibson worked for Flores at Canton, 16 North Carolina Delaney requested that all daily time 17 recordings be made in Margie's name; a request with 18 which Flores complied, although he" -- 19 A. I can't read it. 20 Q. Something a bit unusual. All right. Does 21 that seem like an accurate reading? 22 A. No, but it's as good as I could do. 23 Q. In which regard would you say it's not 24 accurate what I just read? 25 A. Well, one word you couldn't even read and so, 0137 1 you know, and since -- 2 Q. Well, the words I did read, do you -- 3 A. Well, it appears okay, I guess. Flores, 4 gloves. It would probably be Flores indicates the 5 return reflected would seem to indicate that the -- oh, 6 the volume. See, to me that looks like it says return. 7 Yeah, hey, I'll buy it. 8 Q. And, in fact, this is an interview of Juan 9 Flores and Juan Valdez as you indicated, right? 10 A. Yeah. That was printed up here and not 11 written at the top. So yeah, no, that's not very 12 legible to me. 13 Q. Now, do you recall as we sit here today an 14 issue being raised that the records from the 10th of 15 August reflected that Delaney Gibson was picking 16 tomatoes with his wife in North Carolina, do you 17 remember that being an issue that was discussed? 18 A. You know what, it seems I just vaguely 19 remember something about that, just vaguely, but again, 20 it was on the 10th and there were no records on the 21 9th -- 22 Q. Well, do you also recall -- 23 A. -- so . . . 24 Q. Do you recall that evidence was developed that 25 reflected that the migrant workers would keep their 0138 1 tokens until they were -- sort of until the crew leader 2 ran out of tokens and then he would collect them 3 because he needed new tokens so that -- 4 A. Well, that doesn't mean anything because the 5 tokens -- 6 Q. I'm just -- 7 A. -- aren't individualized. They can be handed 8 to the next guy who can turn them in for you. Yeah, I 9 remember all migrant workers work that way. 10 Q. But you remember that there was at least a 11 suggestion or there was evidence that was developed 12 that on -- that as of the 10th it appeared that -- that 13 Delaney -- that the records at least reflected that 14 Delaney Gibson was picking tomatoes back in North 15 Carolina? 16 A. No. 17 Q. You don't remember that being developed? 18 A. No. I mean, what you read to me indicates 19 that his wife probably was taking credit for picking 20 the tomatoes, not Gibson. 21 Q. Well, doesn't the first part of Mr. Hartman's 22 memo indicate that two persons were picking on that 23 date? 24 A. No. 25 Q. It doesn't say that? 0139 1 A. To me that was just a general thing that he 2 did pick tomatoes and that, you know, the tokens, that 3 two persons -- but it doesn't say who those two persons 4 were. 5 Q. But it suggests, does it not, that the volume 6 reflected that two persons were picking on that date? 7 That's what it says, right? 8 A. Right, but who could that have been? Anybody. 9 Q. But you don't -- 10 A. No one put Delaney Gibson there on the 10th. 11 Q. Do you recall this -- do you recall this being 12 an issue? 13 A. I vaguely in the most vaguest sense remember 14 discussing it either at a team meeting or with the 15 prosecutor, I don't remember who. And this does 16 refresh my recollection that it was discussed. Prior 17 to that I wouldn't have even remembered it. But again, 18 you're talking about the 10th. 19 MR. PRICHARD: I don't know about you guys, 20 but we have about 15 minutes before we're supposed to 21 check out of this place. 22 MR. HILL: I was just about to go off the 23 record and talk about the plans. All right. Let's go 24 off the record. 25 (Off-the-record discussion.) 0140 1 (Luncheon recess.) 2 BY MR. HILL: 3 Q. Mr. Strausbaugh -- 4 A. Strausbaugh. 5 Q. I'm sorry, Straus -- 6 A. Baugh. 7 Q. I've probably been mispronouncing it all day. 8 A. You have, but that's okay; a lot of people do. 9 Q. Well, my apologies. 10 A. That's okay. 11 Q. You this morning testified, I think, that you 12 in April of '83 when Mr. Gibson was arrested in North 13 Carolina you went down there; is that right? 14 A. No. I have never been -- we stopped at North 15 Carolina on the way back from Florida. I didn't go 16 down there then. 17 Q. Okay. 18 A. But I remember seeing him someplace, and I 19 can't recall where, in person. I don't know -- 20 Q. Well, let me give you something that may 21 refresh your memory. Let me have this marked, please. 22 Show you what's been marked as 56, just sort of take a 23 look at it. 24 A. Yeah, that's where I saw him. Okay. It was 25 in Asheville. I remember the trip now. 0141 1 Q. All right. This is a memo of yours; is that 2 right or not? 3 A. Let me see. Yeah. Yeah. 4 Q. It's actually -- it's actually -- 5 A. Gary Roberts and mine. 6 Q. You and Gary Roberts together? 7 A. Right. 8 Q. And if you look behind it there's looks like a 9 draft of it, the original, the first draft or 10 something. You see what I'm talking about? The pages 11 behind it. 12 A. Yeah, but I don't know who it is unless it's 13 Gary Roberts' notes. 14 Q. Look at the second page. Is it your 15 handwriting or not? 16 A. No. 17 Q. All right. 18 A. It must be Gary Roberts then. 19 Q. But does this refresh your memory about having 20 seen Delaney Gibson? 21 A. Now that I see this I remember the trip now 22 with Showwater down there. We drove down there. 23 Q. And -- 24 A. That's where I saw him. Before this I 25 couldn't remember. I knew I'd seen him, but I couldn't 0142 1 remember where. 2 Q. So the mug shot that you were shown earlier, I 3 can't remember the exhibit number, it's the one taken 4 in North Carolina, what exhibit number is that? 5 A. Forty-nine. 6 Q. So would that essentially be a photograph of 7 Delaney Gibson as he appeared when you met with him? 8 A. I don't remember if he had his beard or not, 9 you know, when we -- 10 Q. Well, the date -- 11 A. 4/18 and 4/26, there are eight days 12 difference. I don't know if he was shaved and had his 13 hair cut or not when we saw him, but I'm assuming that 14 was his arrest photo down there based upon what it says 15 on the photo. 16 Q. Okay. 17 A. But I don't recall whether he had his beard or 18 not. So to answer, I don't know if that accurately 19 portrayed him, the way he looked when I saw him, I 20 don't remember. 21 Q. All right. And do you remember in this 22 interview that you had with Mr. Gibson at the time, do 23 you remember Mr. Gibson at least telling you that he 24 had had no contact with Mr. Spirko? 25 A. I don't remember that, but if you want to give 0143 1 me time to read this I can see what I said, but I don't 2 remember. 3 Q. You don't have an independent memory of this? 4 A. No, not at all. 5 Q. Let's just for purposes -- I mean, you're more 6 than welcome to do it, but for purposes of sort of 7 shortcutting this a little bit, anything that would be 8 in your memo, you wouldn't have put anything in your 9 memo that wasn't accurate at the time that you put it 10 in, right? 11 A. No. 12 Q. You only put accurate information in your 13 memo? 14 A. Well, I tried to. 15 Q. And as we sit here today, you don't remember 16 him talking to you about not having had prior contact 17 with Mr. Spirko? 18 A. No. 19 Q. All right. Do you recall as we sit here today 20 about him talking about whether he had been in Ohio on 21 August of '82? 22 A. You know what, there were a bunch of Gibsons 23 in Ohio around Lima and I think he was related to some 24 of them, but I don't remember specifically him talking 25 about actually being there or when he was there. But 0144 1 again, whatever it says in here would be, you know -- 2 we're talking 22 years ago. 3 Q. Let me have this memo marked. I've shown you 4 Exhibit No. 57. Does that appear to be a memorandum 5 again authored by you or at least co-authored by you? 6 A. I don't remember if I wrote this or Gary 7 Roberts did. 8 Q. But the memo's under both your names; is that 9 right? 10 A. Right. But I don't see my signature on there. 11 Q. And what would be the normal procedure if the 12 memo had, you know -- 13 A. Well, normally when my name's on a memo I sign 14 it. 15 Q. So -- well, if the memo reflects that the 16 interview was conducted by you and Mr. Roberts that 17 would presumably be accurate, right? 18 A. I would say so. 19 Q. So the fact that your signature doesn't appear 20 on the memo -- 21 A. No, but the question was did I author it, and 22 I don't recall whether I did or whether Gary did. 23 Q. All right. Do you recall again being -- the 24 memo reflects a second interview of Delaney Gibson on 25 April the 22nd of '83. Do you recall interviewing him 0145 1 two times? 2 A. No, except that obviously I did, but I don't 3 recall it. 4 Q. As we sit here today, you don't remember 5 whether it was once or twice or three times? 6 A. No. 7 Q. Okay. 8 A. If you threw four of these in front of me I'd 9 say it looks like I was there four times. I mean, I 10 don't remember. 11 Q. Okay. Do you remember -- do you remember -- 12 does this help you -- do you remember discussing with 13 Mr. Gibson the process of getting paid while he was a 14 migrant worker as we discussed before lunch? Do you 15 remember having those discussions? 16 A. No. 17 Q. No. But again, the memos presumably would 18 reflect as accurately as possible what was being said 19 during the interview, right? 20 A. Well, somebody told me about the token system 21 and how it worked, but I don't know who it was, whether 22 it was someone in Florida, whether it was Gibson, 23 whether it was Hartman, whether it was Roberts, whether 24 it was Sally Wolfe, but someone explained to me about 25 the token testimony. 0146 1 Q. You remember that actually? 2 A. I remember the token system, yeah, but I don't 3 know who told me. 4 Q. Okay. Let me ask you, do you use 5 polygraphs -- did you when you were there as an 6 investigative tool? 7 A. Sure. 8 Q. What was your basic attitude about 9 polygraphing? 10 A. What was my attitude? 11 Q. Did you find them reliable for your own 12 purposes? 13 A. Are we talking about this particular case or 14 all cases, polygraphs in general? 15 Q. Well, let's start with generally polygraphs. 16 A. Generally I find them reliable, yeah. I mean, 17 I found them reliable. I know of at least eight 18 instances in cases I've had during my career where the 19 polygraph examiner has elicited confessions during the 20 polygraph. 21 Q. Well, that's -- so that would be one reason to 22 use them, right, because you've had experience where 23 they -- 24 A. Well, it's just an investigative tool. 25 There's a lot of reasons you might use it along -- I 0147 1 mean, you use everything. 2 Q. Did you -- as an investigative method did you 3 consider back when you were, you know, an investigator 4 if someone volunteered to take a polygraph, would you 5 consider that to be, you know, relevant information for 6 you as part of your investigation? 7 A. No, I wouldn't consider it one way or the 8 other. It would depend on whether they flunked it or 9 passed it or just someone saying, hey, I'll be glad to 10 take one; doesn't negate any guilt or prove any 11 innocence. 12 Q. Let me have this marked, please. 13 A. Although I think when you flunk two of them in 14 a row that raises a red flag. 15 Q. Let me show you what's been marked as 58. 16 First of all, are you able to identify whose notes 17 these were? 18 A. No. 19 Q. There's a date on this document, right? 20 A. Yeah, April 29th. 21 Q. And then there's somebody's initials under 22 that? 23 A. Yeah, and I don't even know what it is. 24 Q. Okay. I mean, from your memory back -- and I 25 realize we're going back a long time, you don't recall 0148 1 which of your investigators -- 2 A. No. 3 Q. -- that would be? It's not you, right? 4 A. No, it's not me. 5 Q. Okay. 6 A. I don't know who it is. 7 Q. All right. The first part of that, could you 8 read that? 9 A. "Laney or Larry Gibson still willing to take 10 polygraph, sooner the better." I don't know. Now 11 telled -- never telled to PS of telescope. I don't 12 know what -- 13 Q. Well -- 14 A. I can't read that. 15 Q. Well, I would posit to you it says sooner the 16 better, never talked to PS after escape, but you don't 17 have to accept that. 18 A. Who's PS? 19 Q. Or JS rather. 20 A. I have no idea what this is. I don't know who 21 wrote it. I don't even know where you got it. I don't 22 ever remember seeing it before. 23 Q. Okay. Well, let me ask you -- let me ask you, 24 does this refresh your memory? Do you remember any 25 discussion or any -- any information whatsoever about 0149 1 Delaney Gibson's willingness to take a polygraph exam? 2 A. No. 3 Q. Do you recall ever discussing with anybody -- 4 A. No. 5 Q. -- whether he should be polygraphed? 6 A. No, I don't recall. 7 Q. Do you recall -- 8 A. It's been too long ago. 9 Q. Do you recall proposing to him that he be 10 polygraphed? 11 A. No. 12 Q. Do you know where he was ever polygraphed? 13 A. I don't recall. I don't know. 14 Q. If he were to have been polygraphed, would the 15 results of that have -- should the results of that have 16 made its way into the investigative files? 17 A. I don't know. They should have, you know. 18 Q. That was my question, should they? 19 A. He wasn't tried so I had no extensive file on 20 him. We had to turn him back over to Kentucky, as I 21 recall, after he was arrested to finish serving his 22 five murder convictions down there and the way they 23 talked we'd never get him. So should it have gotten in 24 a file, maybe, eventually. I don't even know if this 25 is -- if there's any truth to this. I don't know who 0150 1 authored it. I don't know the initials. I can never 2 recall seeing it before. And is he talking about his 3 escape from Eddyville prison? Is this something from a 4 Kentucky state trooper? I don't even know that this is 5 relevant to John Spirko. I don't know what its origin 6 is. North Carolina, I think, turned him directly over 7 to Kentucky, and it could have been something that 8 ended up in the file that was forwarded up from 9 Kentucky that we looked at and just threw in the pile 10 to be filed away. I don't know. 11 Q. Okay. Well, that's -- my question is do you 12 remember anything about polygraphs with Delaney Gibson? 13 A. Not with Delaney Gibson. I do about John 14 Spirko however. 15 Q. But with respect to the questions with respect 16 to Delaney Gibson, do you remember anything about 17 polygraphs? 18 A. No. No. 19 Q. Just that I'm clear on something, the 20 investigative files that you were accumulating in those 21 file cabinets in Van Wert, those were about sort of the 22 Mottinger crimes, right? 23 A. Right. 24 Q. I mean, they were not -- if you developed a 25 piece of evidence or a piece -- or not evidence, 0151 1 information that had to do with Delaney Gibson as 2 opposed to John Spirko, for example, it still all went 3 in the same place, right? 4 A. It should have in the file, yeah. 5 Q. I just wanted to be clear. It's not like 6 there was one file that was a Delaney Gibson file and 7 another that was a John Spirko file and -- 8 A. No, but eventually they would have had to have 9 been broken out when the presentation letter was done 10 against -- for Gibson. But, you know, it was done, I 11 guess, you know. 12 Q. Well, the presentation letter was a joint 13 letter, wasn't it? 14 A. Right. Right. 15 Q. It was one document? 16 A. It probably would have ended up in the file. 17 Since he wasn't in our custody and there was no chance 18 that he was going to be for a long time, if ever, stuff 19 could have came in to us that just went -- I don't even 20 know the relevancy of this to the Spirko -- 21 Q. Well, when you say that he was or wasn't going 22 to be ultimately in your custody, at the time in April, 23 right? 24 A. Right. 25 Q. In April of '83 -- 0152 1 A. Right. 2 Q. -- he wasn't charged with anything at that 3 point involving Ms. Mottinger; is that right? 4 A. Well, not prior to the indictment. 5 Q. Right. So in April of '83 he wasn't charged 6 in the Mottinger case? 7 A. I guess not. I don't remember the date of the 8 indictment. 9 Q. September of '83. 10 A. Okay. That would have been when he was 11 officially charged? 12 Q. Right. 13 A. Our interest in him was he was a person of 14 interest at the time and even though he hadn't been 15 indicted he was a fugitive, so -- 16 Q. Not a fugitive from Ohio, but a fugitive from 17 Kentucky? 18 A. Right. But I was a federal officer, don't 19 forget, and we could arrest people in other states 20 where there are fugitive warrants. 21 Q. I understand that. 22 A. Right. 23 Q. But once a determination in April of '83 had 24 to be made as to what to do with Mr. Gibson, all 25 right -- 0153 1 A. Right. 2 Q. -- there was no basis at that point in time 3 for Ohio to exert any jurisdiction over him, right? I 4 mean, there wasn't anything pending in Ohio? 5 A. Well, no, we couldn't. North Carolina 6 arrested him on warrants out of Kentucky. 7 Q. Right. 8 A. He had to go back there. 9 Q. And there were no competing warrants from Ohio 10 at that time? 11 A. Not at that time. Not till the indictment. 12 Q. Right. So the only place he could go was to 13 Kentucky? 14 A. Well, I could have filed a bill of information 15 and gotten a local warrant in Ohio and probably taken 16 custody, but we weren't in line for him at that time 17 and he would have probably been returned by the judge 18 to Kentucky. 19 Q. Do you remember -- do you remember a time when 20 Mr. Hartman went back to North Carolina to investigate 21 the case, to investigate Mr. Gibson and his 22 whereabouts? Do you remember that happening? 23 A. No. Do you know what date that trip was? 24 Q. Let me posit to you -- I'm going to show you 25 documents, but let me posit to you right now that it 0154 1 was December '83 through January '84 -- I'm sorry. 2 Yeah. No, that's right, that's exactly right. 3 December '83 through January '84. 4 A. Okay. 5 Q. Okay. 6 A. I don't remember. 7 Q. Do you remember that at all? 8 A. No. 9 Q. Well, assume for the sake of this question 10 that that in fact occurred. 11 A. Okay. 12 Q. Would Mr. Hartman have gone at your direction? 13 A. I can't say. He may have asked the inspector 14 in charge if he could go. Was this after the trial or 15 before it? 16 Q. After the indictment, before the trial. 17 Indictment September '83. 18 A. Well, I should have known about it before the 19 trial, yeah. 20 Q. Trial August '84, just -- 21 A. But I don't recall whether -- 22 Q. As we sit here today do you recall? 23 A. No. 24 Q. Okay. 25 A. I should have known about it, but I don't 0155 1 recall it. 2 Q. Bear with me for a few minutes here -- or a 3 minute. 4 A. And you know what, then again, I could have 5 been on vacation. I mean, I don't -- how long was he 6 down there, do you remember? 7 Q. Let me show you some documents which may help 8 in this regard. 9 A. I'm really trying to remember and I don't. I 10 don't remember it at all him going back down. I do -- 11 no, I don't remember it at all. 12 We had inspectors traveling to 22 states. And 13 one thing you've got to remember, Paul Hartman was just 14 a postal inspector and he didn't run the show, you 15 know. And Paul usually accepted assignments and 16 carried them out reliably, but -- 17 Q. Who did run the show? 18 A. Well, I was supposed to be running it, you 19 know, although Paul may have thought he ran it. But he 20 may have went down there and then again he may have 21 gotten permission from the inspector in charge to go, 22 you know. For some reason -- 23 Q. I'm asking you as you sit here today -- 24 A. I don't remember. 25 Q. -- do you remember him going back to the North 0156 1 Carolina area? 2 A. No. No, I don't remember that at all. 3 Q. I've shown you Exhibit 59. If you could just 4 take a look at it. 5 A. So it's something about a receipt from a Jimmy 6 Gibson on August 7th, '82. 7 Q. Wait. I think we've marked the wrong -- well, 8 first of all, it's a memo of an interview by 9 Mr. Hartman, correct? 10 A. Appears to be. 11 Q. Okay. And it appears that the interview was 12 in January 11th of '84; is that right? 13 A. Yeah. 14 Q. And it appears that it was an interview of 15 Margie Gibson; is that right? 16 A. Uh-huh. Margie Gibson. 17 Q. And have you had a chance to read it to 18 yourself? 19 A. Well, I just glanced over it. 20 Q. All right. Does it ring any bells to you? 21 A. I'm just trying to look for something. August 22 8th, that -- nothing precludes him from being there. 23 If I would have read it -- 24 Q. I'm asking if you remember -- 25 A. No, I don't. I'm sure I would at the time, 0157 1 but I don't remember it now. Although some of the 2 stuff I recall because I mentioned to you earlier about 3 being with a relative at a park or something, I don't 4 know. That kind of jogs my memory now. I don't 5 remember. 6 Q. Let me show you what has previously been 7 marked as Exhibits 31 through 41. 8 A. Right. 9 Q. All right. If you could just look at these 10 photographs. These are -- 11 A. And I guess there's a correlation between that 12 and what's in here? 13 Q. I'm just asking you to look at the 14 photographs. 15 A. Is this Ghost Town at Maggie Valley? 16 Q. As I said, I'm just -- 17 A. I don't -- 18 Q. I'm just asking you to look at the 19 photographs. 20 A. Well, you're asking me to look at stuff I 21 don't remember. 22 Q. I haven't asked you that question yet. I'm 23 asking you to look at the photographs and then we'll 24 ask you whether you remember them. 25 A. I looked at it. 0158 1 Q. No. There are ten of them. Why don't you 2 look through them. 3 A. Oh, there is -- never saw that one. Saw the 4 motorboat one or whatever it is. 5 Q. I'm sorry, you did see that one? 6 A. I saw -- 7 Q. Identify them by number. 8 A. You know what, now they're all starting to 9 look the same. I saw one photograph of him in an 10 amusement ride with a little kid, and I'm thinking that 11 might have been this one, but -- 12 Q. When you said this one, which number are you 13 referring to? 14 A. Thirty-one. I don't remember none of the 15 other ones. You know what, I don't remember any of 16 them really. I saw him at a state fair or something on 17 an amusement ride, I can vaguely remember that. But 18 nah, these are -- they mean nothing to me. 19 Q. When you say you saw a state fair or something 20 like that -- 21 A. I saw a picture of him that Hartman showed me 22 where he was on an amusement ride or something with a 23 child, but it wasn't on August the 8th or 9th, you 24 know, or the 8th. 25 Q. But your memory is that when Mr. Hartman 0159 1 showed it to you Mr. Hartman didn't represent it to you 2 to be on the -- 3 A. On the date of the crime, no. 4 Q. Well, did he represent it to be -- 5 A. In the general time frame of a crime. 6 Q. Within a day or two of the crime? 7 A. Could have been several days before or after. 8 Q. Well, I'm asking you what you remember. 9 A. I don't remember. But I did see a picture of 10 him at a fair with a little kid, and I'm assuming it 11 must have came out of this since you showed me that. 12 Q. Tell me as best you remember today exactly 13 what it was that Mr. Hartman told you about the 14 photograph he was showing you. 15 A. I don't remember. 16 Q. Do you recall as we sit here today whether or 17 not there was any discussion with anyone else with 18 respect to the photograph? 19 A. I don't remember. 20 Q. Do you recall whether you shared the 21 photograph with anybody else or had discussion about 22 the photograph with anybody else? 23 A. If it had been near the day of the crime I'm 24 sure it would have been discussed with the prosecutor 25 if indeed this was even before the trial or the 0160 1 indictment. I don't know. 2 Q. All right. So you don't remember whether you 3 discussed it? 4 A. I don't remember. 5 Q. But your testimony is that had it been -- had 6 the photograph been near the date of the crime and had 7 it occurred prior to trial you're confident you would 8 have shared it with the prosecutor? 9 A. I'm confident I would have been, yeah. 10 Q. The memo that -- do you still have it there? 11 I think it's there. By the way, I will represent to 12 you that what you just looked at, these, I'll represent 13 to you that these are actually enlargements. I mean, 14 that the photographs in question were normal sort of 15 3 x 5 size, not enlarged. I'm just representing that 16 to you. 17 A. Okay. 18 Q. As you can tell Mr. Hartman -- from 19 Mr. Hartman's memo -- it would appear from the memo 20 that Ms. Gibson delivered to Mr. Hartman 18 21 photographs, at least that's what the memo says, 22 correct? 23 A. Uh-huh. 24 Q. What would have become of those photographs -- 25 what should have become of those photographs? 0161 1 A. I have no idea. 2 Q. Not what did become of them, I know you don't 3 know. What should have become of them? 4 A. Hartman should have probably turned them over 5 with this and they should have been filed away. 6 Q. Okay. 7 A. But let me preface that by saying, he could 8 have brought in every photo family album Delaney Gibson 9 had and unless it overlapped with the date of the crime 10 I wouldn't have cared. 11 Q. Well -- so if it didn't overlap exactly with 12 the day of the crime -- 13 A. If it couldn't have precluded his travel to 14 Elgin, Ohio I wouldn't have cared. 15 Q. So it would have been perfectly okay to just 16 sort of put it in the trash can? 17 A. Yeah. He could have brought his high school 18 yearbook in, what would that do? I wouldn't have put 19 it in the trash can either. I heard you slip that one 20 in. No, I wouldn't have thrown them away. They would 21 have went in the file. 22 Q. Well, that was my question. 23 A. Yeah, not in the trash can. No, nothing went 24 in the trash can. 25 Q. So they should have gone into the file? 0162 1 A. They should have been if they were turned in 2 with this. 3 Q. All right. But certainly Mr. Hartman's 4 directions, instructions, as everyone who was working 5 on the team, was that anything that was recovered 6 should have been turned in, right? 7 A. Well, he should have known that. 8 Q. I mean, that was -- 9 A. And recovered, that might be a strong word. I 10 don't know that he recovered those pictures. They were 11 given to him, weren't they? 12 Q. Yeah. I didn't -- yes, they were. They 13 appeared to have been given to him. You'll see in the 14 memo -- do you have the memo still there? 15 A. Uh-huh. 16 Q. That there apparently were some receipts that 17 were also provided to Mr. Hartman in the third 18 paragraph. 19 A. See, I don't know. I don't recall this memo. 20 I don't recall this particular trip to Kentucky. 21 Q. I understand that. I understand that you're 22 saying you don't recall. My question is the memo 23 itself reflects that some receipts were given to 24 Mr. Hartman, correct? That's what the memo says? 25 A. Well, that's what it says. 0163 1 Q. Okay. Now, my same question, would the 2 correct procedure have been that those receipts would 3 have been retained in the files of the case? Would 4 that have been -- 5 A. Or given back to Mrs. Gibson as being not 6 relevant. 7 Q. Okay. One or the other? 8 A. I wouldn't have taken them from her. July 9 21st, '82 doesn't prove anything, neither does August 10 4th, neither does August 7th. But yeah, had he kept 11 them they should have been turned in. 12 Q. Let me show you what's previously been marked 13 as 29. And again, if you could look at it. 14 MR. PRICHARD: What's that one? 15 MR. HILL: Twenty-nine. 16 MR. PRICHARD: Is 30 also 59? 17 MR. DUNN: Yeah, I think. 18 MR. HILL: Sorry about that, guys. 19 MR. PRICHARD: I just want to -- 30 is also 20 59. 21 THE WITNESS: Well, I've read it. 22 BY MR. HILL: 23 Q. Okay. Now, first of all let's identify what 24 it appears to be. It appears to be a memo written by 25 Mr. Hartman; is that right? 0164 1 A. Right. 2 Q. Okay. With respect to an interview on January 3 11th of '84, correct? 4 A. Uh-huh. 5 Q. And an interview of Michael and Linda Bentley, 6 right? 7 A. Uh-huh. 8 Q. Having read it -- first of all, do you have 9 any recollection of having seen it previously? 10 A. No, but it probably was discussed, you know, 11 at one of the meetings. I don't recall reading this 12 memo. 13 Q. Now, let me just -- 14 A. It was discussed. 15 Q. It was discussed or it was probably discussed? 16 A. It was probably discussed if he turned it in, 17 yeah. And I'm sure he probably did or you wouldn't 18 have it. 19 Q. But as you sit here today you don't remember 20 -- I'm just trying to get your memory. 21 A. No, I don't remember this. But again, if I 22 would have looked at it, no one saw him past 6:00 p.m. 23 on August 8th. 24 Q. Okay. I understand. 25 A. Again -- 0165 1 Q. I understand your position. I'm just asking 2 the questions, okay. 3 A. Yeah. Yeah, I read it and obviously it was 4 turned in. 5 Q. No big -- 6 A. Well, no, it's no big deal. Somebody -- 7 everybody's got to be someplace the day before and the 8 day after a crime. 9 Q. The memo reflects that 40 photographs were 10 given by the Bentleys to Mr. Hartman; is that right? 11 A. I don't know. 12 Q. Well, on the second page, the fourth paragraph 13 from the bottom. 14 A. That's what it says. 15 Q. All right. And those photographs, should they 16 have been maintained in the files? 17 A. If they were turned in they should have been. 18 Q. Well, should they have been turned in? 19 A. Not if he gave them back to him as being not 20 relevant. They could have given them to him and he 21 could have said, well -- 22 Q. Assuming that he determined that they were 23 relevant? 24 A. If he kept them they should have been turned 25 in. 0166 1 Q. Okay. Thank you. Let me show you -- and, you 2 know, after having been turned in they should have made 3 their way into those file cabinets? 4 A. I would assume that's where they should go. I 5 don't know where else. Or maybe in the prosecution's 6 file; who knows where the stuff ends up. 7 Q. Let me show -- that actually raises a 8 question. I take it that the prosecution had access to 9 those files as well, right -- 10 A. No. Only if they asked for something. 11 Q. -- as you were? 12 A. We had a custodian of the files. 13 Q. As you were preparing for trial, if the 14 prosecutor asked to have access to the files would he 15 be given access to the files? 16 A. Well, that's kind of a trick -- I can't answer 17 that. That's a tricky question. With us present, 18 yeah. To give him a key and say here, unlock the file 19 cabinets while we're not here and rummage through them, 20 no. So unless you can narrow that down -- would he be 21 allowed -- you know, a lot of people had access to the 22 files. Do you realize that an attorney was appointed 23 by the court in Van Wert County to go through every 24 scrap of paper in those files to determine what was 25 discoverable and what wasn't? An independent criminal 0167 1 attorney. He went through with me and another 2 inspector sitting there and looked at everything, took 3 a day or two. And so would the prosecutor have access 4 to the files, yes, supervised access with the custodian 5 of the records. 6 Q. And were you the custodian? 7 A. No. 8 Q. Who was? 9 A. I don't remember. 10 Q. But there was somebody designated? 11 A. Right. So, see, you're trying to trick me 12 again. Can we have a break? I got to go to the rest 13 room. 14 Q. Sure. But I'm not trying to trick you, I'm 15 just asking you the questions. 16 A. You know, I mean, you can interpret that 17 question as well you just give someone blank access, 18 here's the keys. 19 Q. I don't know how you guys operated. I'm just 20 trying to ask how it was operated. 21 A. The question's got to be a little restrictive, 22 you know. Someone if they were there, we were there, 23 sure, they could look at whatever we had. 24 (Brief recess.) 25 0168 1 BY MR. HILL: 2 Q. Let me show you what's been previously marked 3 as Exhibit 28 and ask you again as with the others 4 whether you -- 5 A. I don't remember this. I wasn't there. 6 Q. Right. Again, this is a memo by Mr. Hartman, 7 correct? Am I correct? 8 A. Uh-huh. Yes. 9 Q. And the memo reflects Mr. Hartman's 10 corroboration, if you will, or efforts to corroborate 11 the fact that the pictures that had been turned over to 12 him by the Bentleys were processed in August '82; is 13 that a fair -- 14 A. Well, some photographs had been. I don't know 15 that they were the same pictures given to Hartman. 16 Q. Okay. Do you remember this coming up in 17 discussion with Hartman? 18 A. No. 19 Q. Do you remember -- do you have any 20 recollection when Hartman presented you the 21 photograph -- again, you seem to recall one photograph? 22 A. That's the one. I only recall one. 23 Q. Okay. Do you have any recollection of any 24 conversation between you and Mr. Hartman about whether 25 or not there had been any efforts to verify, you know, 0169 1 the time frame or the date of the photograph? 2 A. No, because had I been active reading this at 3 the time I would have asked them when did the Bentleys 4 take the photographs, and if the Bentleys didn't see 5 him after six o'clock on the day before they obviously 6 couldn't have been taken on Monday, August the 9th, 7 '82, so I would have left it at that. 8 Q. Okay. 9 A. So they dropped photographs off. When were 10 they taken? 11 Q. Again, I don't want to -- I don't want to put 12 words in your mouth, but do I understand your testimony 13 generally to be that unless the evidence dealt 14 specifically with 8:00 a.m. on August the 9th -- 15 A. No, I didn't say that. 16 Q. Then tell me -- 17 A. If it's exculpatory evidence that would tend 18 to show that he could not have been there and committed 19 the crime at that time, that would have been very 20 important and certainly been discoverable and given to 21 the prosecutor. If it's nonexculpatory, that he went 22 to Burger King on August the 7th and then on August the 23 11th he went to the barber shop and had a haircut and 24 there was a picture taken at a birthday party on August 25 10th, that's all well and good, but would you -- no, 0170 1 it's not exculpatory. 2 Q. All right. You introduced the word, so would 3 you define for us exculpatory as you mean it? 4 A. As I mean it, and I'm not an attorney so you 5 don't need to smile to your colleague. I saw you look 6 over and kind of smile at him. My term of exculpatory 7 is, okay, something that would tend to go towards the 8 proof of innocence of a person. That's my definition. 9 It's certainly not Black's legal definition. 10 Q. And what do you mean by tend to go toward his 11 innocence? 12 A. Well, if it precluded him from being at the 13 scene of the crime, that's exculpatory. The mere fact 14 that something happened two days before or two days 15 afterwards is not exculpatory to me. 16 Q. I'm trying to get you to be able to explain 17 this in your own words. I don't want to try to put 18 words in your mouth, but as I sit here and listen to 19 what you say your definition is it seems to be if it 20 precludes something from occurring as opposed to 21 whether it makes it perhaps less likely that it 22 occurred; am I correct or am I not correct as I sit 23 here listening to you? 24 A. Repeat that again. 25 Q. Okay. There are certain kinds of evidence 0171 1 that absolutely preclude something from happening. It 2 simply could not have happened, right? 3 A. Right. 4 Q. There are other kinds of evidence that may not 5 preclude something, but make it somewhat or maybe even 6 significantly less likely that it happened, but you 7 can't say it absolutely couldn't happen, you can just 8 say it makes it less likely that it happened. 9 A. Less likely. 10 Q. Do you view those both as exculpatory or just 11 the preclusion? 12 A. I believe that both should be given to the 13 prosecutor for his consideration. 14 Q. Did you consider the fact that a bearded -- 15 let me finish the question, okay. Did you consider the 16 fact that a bearded Delaney Gibson was 500 miles away 17 at 6:00 p.m. on August the 8th to be the kind of 18 evidence that should have been discussed with the 19 prosecutor? 20 A. And it probably was. 21 Q. So the answer is yes? 22 A. I don't remember exactly, but yes, it probably 23 was brought to his attention. 24 Q. All right. And do you consider that or do you 25 have an opinion as to whether that's the sort of 0172 1 evidence that should be also disclosed to the defense? 2 A. Well, I'm not so sure it wasn't. 3 Q. I'm not asking whether it was or wasn't 4 because we haven't gotten there yet, but I'm asking you 5 whether you have an opinion as to whether it should be? 6 A. It should be. 7 Q. Okay. We don't have too much more of these, 8 but let me -- and again, I'm just trying to see if any 9 of this jogs your memory. Previous 26, have this one 10 marked. If you could look at those two in tandem, and 11 I think it's 26 and -- 60 and 26; is that what you have 12 in front of you, sir? 13 A. Yes. 14 MR. DUNN: Just -- 60 is the one with the 15 Bates 05573. 16 THE WITNESS: Twenty-six is 05573. Sixty is 17 05571. Okay. Somebody got their car repaired. 18 BY MR. HILL: 19 Q. Do these both appear to be memos of again 20 Mr. Hartman, correct? 21 A. Correct. 22 Q. With respect to interviews done in North 23 Carolina in January of '84? 24 A. Correct. 25 Q. Having read them now, do they refresh your 0173 1 memory at all? 2 A. Not at all. 3 Q. Okay. Is it a fair characterization that 4 those memos reflect efforts by Mr. Hartman to 5 corroborate receipts that had been provided to him by 6 the Gibsons? 7 A. No. I expected Hartman, being a good 8 investigator, to pursue any alibis to determine if they 9 were valid or not. 10 Q. Do you remember Mr. Hartman -- and that 11 appears to be what he had done, correct? 12 A. I guess. 13 Q. And do you remember Mr. Hartman ever 14 discussing with you or anyone else the fact that he had 15 been able to confirm that receipts that had been given 16 to him were -- 17 A. No. 18 Q. -- legitimate receipts for activities that 19 occurred on August the 7th? No? 20 A. I don't recall him ever discussing that. 21 Q. And then -- let me show you what is Exhibit 25 22 and what will be marked as 61. 23 MR. DUNN: Just want to confirm that Exhibit 24 61 has the Bates 05555. 25 A. Okay. 0174 1 Q. All right. You've had a chance to review 2 Exhibit 61 and Exhibit 25, is it? 3 A. Uh-huh. Looks like the Bentleys paid for 4 their motel room. 5 Q. And it looks like Mr. Hartman wrote memos 6 concerning this, correct? 7 A. Yeah. 8 Q. And these memos were done based upon 9 interviews of Mr. Hartman that were conducted in 10 January of '84, correct? 11 A. Correct. 12 Q. And as you said, they reflect the 13 corroboration of the fact that the Bentleys stayed in 14 the motel room on the night of August the 8th, correct? 15 A. Uh-huh. 16 Q. Now, as we sit here today do you remember 17 discussing with Mr. Hartman or anyone else for that 18 matter the fact that Mr. Hartman's efforts to 19 corroborate what had been told to him by the Bentleys 20 was true and correct? Do you recall that at all as we 21 sit here today? 22 A. No. 23 Q. And you don't recall -- similarly, you don't 24 recall discussing that with anyone else? 25 A. I don't remember. 0175 1 Q. Okay. And finally let me show you what's 2 previously been marked as Exhibit 27. 3 A. Yeah, I've already looked at this one. 4 Q. If you have you did it other than today. 5 A. Really? This 27's not one you gave me 6 previously out of this pile? 7 Q. No. 8 A. Well, I saw something about film processing. 9 Q. Right. It was the previous one which is 10 Exhibit -- we can find the exhibit number, but it has 11 to do with the film processing of the Bentleys' film. 12 This has to do with film processing of whose film? 13 A. Margie Gibson. 14 Q. Now -- 15 A. On August 17th. 16 Q. Now, looking at that today, do you have any 17 memory of this? 18 A. No. 19 Q. Okay. Do you have any memory of Mr. Hartman 20 telling you that he had corroborated the fact that the 21 photographs that were turned over to him by Margie 22 Gibson had been processed in August? Do you recall him 23 having that discussion with you? 24 A. No, but that's a big leap of faith for you to 25 make a statement like that. 0176 1 Q. I'm not making a statement, I'm asking a 2 question. 3 A. That's not what that said. And I don't 4 remember him telling me that photographs she had taken 5 on any certain date were in this batch of photos. 6 Q. So you don't recall any discussion? 7 A. I don't recall any of it. 8 Q. Do you recall Mr. Hartman talking to you at 9 any point or discussing with you or reading any memos 10 of his that reflected his efforts to go to various 11 locations in North Carolina to try to confirm whether 12 or not they were the same locations that were depicted 13 in photographs that had been provided to him? 14 A. I don't remember. 15 Q. You don't remember Mr. Hartman doing that? 16 A. Well, I wasn't with him. And -- 17 Q. Right. You don't recall him telling you about 18 that? 19 A. No. Obviously I read most of the stuff he 20 turned in, the case files, but to go into great depth 21 about rolls of film on August 17th, no. 22 Q. And tell me again what you remember, if 23 anything, about efforts to subpoena telephone records 24 from various telephone calls -- telephones to -- 25 A. All I remember is there were telephone records 0177 1 subpoenaed. I don't know from what phones, what phone 2 companies. It's 22 years ago and I don't remember. 3 There were records subpoenaed though, I remember. 4 Q. And do you recall whether or not there was any 5 success in establishing any communication prior to 6 August the 9th between Gibson and Spirko? 7 A. Not that I can remember. Something just came 8 back to me. There were some phone records from a pay 9 phone at a bus station subpoenaed, but nah, that had to 10 do with Spirko, not Gibson. Yeah. No. 11 Q. From the exhibits that you've just looked at, 12 would you be -- would you be satisfied that in fact 13 Mr. Hartman did go to North Carolina to examine 14 Mr. Gibson's alibi? 15 A. It appears he did. 16 Q. As we sit here today, do you recall how that 17 came about? 18 A. No. 19 Q. Do you recall whether or not you suggested to 20 him that he do that? 21 A. No, I don't recall. 22 Q. Or whether you directed him to do that? 23 A. I don't recall. 24 Q. As the team leader, would it be fair to say 25 that you would have at least been aware of it at the 0178 1 time that it happened? 2 A. Not necessarily. Depending on what I was 3 doing that day or that week, whether he went to the 4 inspector in charge and said, look, I need to go to 5 North Carolina. Someone approved it if he went. I 6 don't remember doing it, but it could have been done by 7 other people, regional chief inspector, inspector in 8 charge. 9 Q. Well, did those people -- again, did those 10 people have familiarity with the investigation? 11 A. No. But if someone said I've got a lead I 12 have to pursue, they would give him permission to 13 pursue it. 14 Q. Now, we're talking about a point in time 15 January of '84 where the indictments have already come 16 down -- timeout. 17 A. Timeout. 18 (Brief interruption.) 19 Q. The timing here, okay, we're talking about 20 activities, investigative activities that occurred in 21 January of '84. The indictments were returned in 22 September of '83? 23 A. Right. 24 Q. Once the indictments were returned what role, 25 if any, did Mr. Keister play in directing continuing 0179 1 sort of investigative slash trial preparation efforts? 2 Or maybe those are separate things. 3 A. You're talking postindictment? 4 Q. Right. What we've just looked at and examined 5 here. 6 A. Right. 7 Q. That all occurred postindictments. 8 A. Okay. 9 Q. So my question is -- 10 A. And prior to the trial? 11 Q. Prior to the trial, after the indictments. 12 A. Okay. 13 Q. So my question is what -- 14 A. He would have been made aware of Hartman's 15 activities, okay. He would have been made aware of it. 16 He would not have directed Hartman to travel here, 17 there or anyplace, but he would have been aware of what 18 Hartman was doing and what the results of these were if 19 they were turned in, and I'm assuming they were. I 20 don't remember them specifically. I mean, we had -- 21 Q. I understand. 22 A. -- a mountain of paperwork, but he would have 23 been made aware of it. 24 Q. Okay. Again, I'm just trying to gather 25 information about this. When I was a prosecutor, it's 0180 1 fair to say that in almost every case that I was a 2 prosecutor most of the decisions, the investigative 3 decisions pre-indictment were made by the 4 investigators, but once the indictment came down I 5 wound up certainly being involved in, if not sort of 6 making the decisions on what further investigative work 7 occurred. Is that how it worked here? 8 A. No. When you were a prosecutor were you 9 federal or state? 10 Q. Federal. 11 A. Okay. I don't know how it worked in the 12 district you were at, but we couldn't even arrest 13 anybody without a federal prosecutor's okay. Even 14 though we had arrest powers we had to have permission 15 from the U.S. Attorney to get the arrest warrant. 16 Things were presented to him, the complaint, the bill 17 of information, things of that nature. It's not that 18 way in state court, however, where you can arrest 19 somebody, log them into the jail and then the 20 prosecutor, you know, comes rushing in the courtroom 21 with 30 folders under his arms trying to resolve half 22 of them; you know, it wasn't that way. So, you know, 23 your question about Keister, he didn't direct our 24 activities, no. 25 Q. Even after indictment? 0181 1 A. Even after indictment. He would ask us if he 2 needed something done, but he never said Paul Hartman, 3 forget Delaney Gibson, we're not going to have him for 4 six months or six years, you know, let's concentrate on 5 this. That never came up, but everything that did come 6 up was discussed with him. Of course 22 years later 7 it's hard to put importance on things that weren't or 8 didn't seem as important at the time. 9 Q. Okay. I'm just trying to get a feel for 10 activity that occurred, you know, four months after 11 indictment, January of '84. 12 A. Would he have been telling us to go here or 13 there? 14 Q. Or if I hear you correctly, he certainly would 15 have been in some way involved. 16 A. I remember he went with us on one trip to 17 interview somebody. 18 Q. No, I'm not suggesting that he physically 19 went. I'm just trying to get a sense of whether or not 20 Mr. Keister had greater day-to-day sort of involvement 21 after the indictment than he did before the indictment? 22 A. Well, I'm sure he had a little bit more after 23 the indictment than before, but I wouldn't say it was a 24 day-to-day. We had meetings with him. 25 Q. Did you have regular meetings with him after 0182 1 the indictment came down? 2 A. Well, I can't say that. I don't remember 3 whether they were every Friday at two o'clock or 4 whether it's just, you know, whenever we had stuff to 5 share with him. 6 Q. So as we sit here today you don't know what 7 caused Mr. Hartman to go to North Carolina to do the 8 investigative work? 9 A. He obviously thought Delaney Gibson had an 10 alibi. 11 Q. All right. 12 A. Otherwise it was pretty futile, wasn't it? 13 Q. But you don't know who he consulted with 14 before -- 15 A. No, I don't. 16 Q. And is it fair to say -- I don't know exactly 17 how your things operated, but even from an expense 18 point of view that you would have to get somebody to 19 approve it to go? 20 A. Yeah, probably, but it wouldn't necessarily 21 have had to have been me. 22 Q. Right. 23 A. And don't forget, I didn't work seven days a 24 week from August of '82 until January of '84. I took 25 vacation time, you know. I mean -- 0183 1 Q. I understand. My question simply was somebody 2 would have had to have given the approval? 3 A. Somebody would have had to, you know, say okay 4 and sign off on his expense account. You know, I'm 5 just trying to be as helpful as I can and let you know 6 how the administrative part of it worked. 7 Q. I understand. 8 A. I don't recall him going there, but anyone 9 could have approved it. And I certainly would have 10 looked at this stuff that went into the file. 11 Q. You mentioned the review by Mr. Sable? 12 A. Was that his name? I forgot his last name. 13 He was from Lima, Ohio I know. 14 Q. And is it your recollection that whatever 15 review was made, done by him, was done physically in 16 your presence? 17 A. Oh, it was. I sat there through the whole 18 thing. It was almost like this, and he went through 19 everything in the file cabinet. 20 Q. And was there ongoing discussion between the 21 two of you or were you -- 22 A. Well, he would ask us what's this and, you 23 know -- and we would tell him. 24 Q. And do you know sitting here today whether or 25 not the documents that I showed you were reviewed by 0184 1 him? 2 A. I don't remember because he took the list to 3 the Court and the Court ordered those things discovered 4 that Sable said should be turned over in discovery. 5 And I don't remember the exact documents 22 years 6 later. 7 Q. Right. 8 A. Pretty unique concept, though, isn't it, an 9 independent counsel review? 10 Q. Do you recall whether or not the photographs 11 that you looked at were part of the materials that he 12 reviewed? 13 A. I don't remember. If they were in the file he 14 saw 'em. 15 Q. You talked -- you brought up again a few 16 minutes ago, I don't know if you used the word Brady, 17 but you talked about the concept of providing 18 information to the defense. When I say Brady, is that 19 a term that means something? 20 A. Brady material, yeah. No, I don't know well 21 enough to start giving you legal definitions of Brady 22 material. 23 Q. Who made the decision in this case what should 24 be disclosed and what shouldn't be disclosed to the 25 defense? 0185 1 A. The prosecutor. 2 Q. Did he consult with you about that? 3 A. He did. And I don't think he consulted with 4 John Sable, but Sable looked at everything too, and at 5 the judge's request. 6 Q. What do you remember about Mr. Keister's 7 discussions with you about what should be disclosed? 8 A. I don't remember any of it. 9 Q. Do you recall whether or not you and 10 Mr. Keister discussed the question as to whether or not 11 the materials with respect to Delaney Gibson's presence 12 in North Carolina and his physical appearance should be 13 shared? 14 A. I don't recall. I don't remember. 15 Q. Opal Siebert, the woman who was shown the 16 photo spread, that was -- again, to put a time frame on 17 it, that was in January of '83. 18 A. I don't remember. 19 Q. I will -- accept that. Believe me, if I posit 20 a date that is wrong these guys will be all over me, 21 okay. 22 Subsequent to that time in April of '83, I 23 can't remember the exhibit number, but Mr. Gibson was 24 arrested in North Carolina and a photograph was taken 25 of him in North Carolina that you've looked at? 0186 1 A. The one with the beard, yeah. 2 Q. The one with the beard, right. And, you 3 know -- well, let's talk about that one for the moment. 4 Do you recall whether there was any consideration given 5 or discussion as to whether or not that photograph 6 should be shown to Ms. Siebert? 7 A. I don't even remember that photograph. When I 8 received it I don't know whether the Sheriff's Office 9 brought it back. I know when he was arrested we went 10 down to interview him; obviously someone picked up the 11 photograph then. 12 Q. Right. But my question is do you remember, 13 again 22 years after the fact, whether there was ever 14 any discussion or consideration given to whether or not 15 Opal Siebert should be shown that, the more sort of 16 recent photograph? 17 A. Well, if she was shown the photo in January 18 and he was arrested in April, she couldn't have been 19 shown that photo, could she? 20 Q. Well, not in January, obviously. She could -- 21 A. Oh, no, there was no consideration. 22 Q. There was no consideration to going back to 23 her and showing her photographs? 24 A. (Witness shakes head.) 25 Q. Let me ask similarly, the photographs that 0187 1 you've just looked at, the ten photographs or so that 2 were taken that were recovered by Mr. Hartman -- 3 A. I don't remember those. 4 Q. Okay. I understand you don't remember them. 5 I'm asking a slightly different question. Do you 6 remember whether or not there was any discussion with 7 Mr. Keister, Mr. Hartman or anyone else whether or not 8 now having recovered photographs that were taken, you 9 know, very, very shortly before August 9th, whether 10 those photographs should be shown to Ms. Siebert? Any 11 discussion that you remember about that subject? 12 A. No, I don't remember. 13 Q. There's been -- in this case there's been some 14 discussion or some use of the term desk file from time 15 to time. 16 A. I've never heard that term. 17 Q. Is that a term that means anything to you? 18 A. Not to me. 19 Q. Did you, yourself, at the time maintain some 20 personal file of sort of, you know, key documents or 21 whatever that you wanted to refresh yourself with? 22 A. No personal, no. The only file I had in the 23 office -- again, I'll repeat it for the third time 24 today -- was a copy of the presentation letter, a copy 25 of the status reports on the investigation. And those 0188 1 were made regularly until I retired in July 1990. Then 2 what happened to them I don't know. 3 Q. Okay. Do you recall whether or not -- and I 4 think I have the terminology right, but a barrel key, a 5 key that would fit a post office -- postal box was 6 recovered from the floor of the scene of the Elgin post 7 office? 8 A. I don't remember anything like that. 9 Q. Do you remember any keys, Ford keys, 10 specifically Ford automobile keys being recovered from 11 the -- from the scene? 12 A. I think there was a key out in the gutter or 13 street or something that was laying in the parking lot 14 or the gutter near the grain elevator that was found, 15 but that went in the case file and I don't know, you 16 know, whatever happened to it. 17 Q. Do you recall Mr. Hartman getting a search 18 warrant for Delaney Gibson's automobile in an effort to 19 determine whether or not a key that had been left 20 behind at the scene fit his car? 21 A. I don't remember that specifically. I 22 remember he tried it in one of Gibson's vehicles, but I 23 don't remember that he got a search warrant to do it. 24 Q. Do you recall what the result was when he 25 tried it in the vehicle? 0189 1 A. I don't think it worked. 2 Q. So it wasn't the key to that -- 3 A. No, but it wasn't supposed to be. It's the 4 proverbial needle in the haystack. I remember that 5 key, it was laying in gravel and rusted and, you know, 6 it was in a grain elevator right near the parking lot 7 there. Could have been dropped there months earlier. 8 Q. If -- well, the term barrel key, does that 9 mean anything to you? 10 A. I never heard that. I don't know what you 11 mean, barrel key. What is it? Tell me and I'll -- can 12 we take a break again? 13 Q. Sure. 14 A. If you tell me what you mean by barrel key. I 15 don't know what you mean. I've never heard that. 16 (Brief recess.) 17 BY MR. HILL: 18 Q. Let's go back on the record. In an effort to 19 try to get you out of here, forget my characterization 20 as a barrel key. Do you have any memory of a post 21 office box key being recovered from the scene? 22 A. No. 23 Q. Would it be fair to say that if such a thing 24 happened and it was recovered from the scene it should 25 have been logged in as, you know, as evidence recovered 0190 1 from the scene? 2 A. Well, unless it was assigned to the post 3 office there, then it wouldn't be logged in as 4 evidence. 5 Q. But assuming it was not, assuming that it was 6 from -- 7 A. A lost lock box key or something for a box? 8 Q. Yeah. 9 A. Not necessarily would that have been evidence. 10 What if a customer at post office box five went out the 11 day before and left the key in the box? 12 Q. No. If it were a post office box key from 13 another post office, sort of left randomly behind. 14 A. Well, I would think that would be important 15 then. 16 Q. So if, in fact, that was recovered by somebody 17 who didn't log it as evidence, by a law enforcement 18 officer who didn't log it as evidence, that would not 19 be proper, right? 20 A. Well, I wouldn't think so. I would think it 21 should be turned in. But, you know, not knowing all 22 the details, I don't know whether it's proper or not. 23 Q. But it would surprise you if you found out, 24 for example, that Mr. Hartman said that he gained 25 possession of something that was left behind and sort 0191 1 of put it in his pocket and used it for his own 2 investigative purposes, that would surprise you? 3 A. Well, are you really talking about a post 4 office key or this car key found out in the street? 5 Q. No, a post office box key. 6 A. I would be surprised, yeah. 7 Q. And that would not be -- that would be 8 improper as the lead -- not to make you aware of it as 9 the lead investigator? 10 A. Well, I would think so. 11 Q. When Mr. Sable did his review with you 12 present, what he reviewed was in these two file 13 cabinets? 14 A. Yes, everything that was in those file 15 cabinets. 16 Q. As far as you know -- 17 A. As far as I know. 18 Q. No, that was the beginning of my question. As 19 far as you know, was there anything -- were there any 20 investigative materials of any kind that were not given 21 to him to review? 22 A. No. No. It was total. Everything that was 23 there he went over. It was a lengthy process. 24 Q. You sat through the entire trial; is that 25 right? 0192 1 A. Uh-huh. Yeah. You'll see on the tapes. 2 Q. You had permission -- 3 A. At least I think you will. 4 Q. As the lead investigator you had permission 5 from the Court, you didn't have to abide by the rule on 6 witnesses basically, right? You had permission to sit 7 in the courtroom? 8 A. Yeah, I did. I think they asked for 9 permission or something. 10 Q. But you were the only one to whom that 11 applied, correct? 12 A. Yeah. 13 Q. You sat with -- at counsel table? 14 A. Right. 15 Q. I haven't seen the tapes, obviously. 16 A. With Ralph Eversoll from the Sheriff's Office, 17 and I think Chuck Koch or Kock or Coach or something 18 was there, and Keister of course. 19 Q. Okay. 20 A. We were the four at the table. 21 Q. Did you participate at all in -- well, would 22 it be fair to say that as in most trials that witnesses 23 were prepared for their testimony prior to testifying? 24 A. Well, prepared? They were interviewed by the 25 prosecutor to determine could they testify to what we 0193 1 told him they could, not as to what they should testify 2 to. 3 Q. No, I'm not trying to suggest that there 4 was -- 5 A. Yeah. 6 Q. But, you know, the normal type of prep session 7 that most lawyers certainly would undergo which says 8 these are the kind of questions I'm going to ask you 9 and you probably can expect on cross-examination to get 10 these kinds of questions, I mean, did that kind of prep 11 occur? 12 A. I wasn't present during all those witnesses, 13 but yeah, I'm sure that the prosecutor talked to them 14 beforehand. 15 Q. Were you present at many of these sessions? 16 A. Some of them, but I don't know which ones. 17 Q. Do you happen to recall whether you were 18 present when Mr. Hartman was prepared for his 19 testimony? 20 A. No, I don't recall. I don't recall. 21 Q. Do you recall that -- well, do you recall that 22 Mr. -- well, let me back up for a moment. Mr. Hartman 23 had a series of interviews with Mr. Spirko in 24 late '83 -- I mean, late '82 and early '83, correct? 25 A. (Witness nods head.) 0194 1 Q. You've talked about it before? 2 A. Right. Right. 3 Q. And -- 4 A. I don't remember how many, but there were 5 numerous interviews. 6 Q. And did Mr. Hartman sort of report to you 7 after each of these interviews how it had gone and sort 8 of summarized them for you? 9 A. Uh-huh. We talked either on the phone if the 10 interviews were in Toledo or someplace else, or he -- 11 you know, he would come down for at least once a week 12 and we'd talk, yeah. 13 Q. Okay. And do you have a memory today that 14 throughout these interviews Mr. Spirko told Mr. Hartman 15 many things that turned out not to be true? Does 16 that -- does that comport with your memory? 17 A. Well, there were some things that weren't 18 true, yeah. 19 Q. I mean, it was -- 20 A. I guess they weren't true. 21 Q. I mean, do you remember? 22 A. Not really. I mean, I know that for someone 23 to talk all that length of time -- I know he referred 24 to a lot of people by nicknames that turned out to be 25 people in prison that he had become acquainted with. 0195 1 You know, yeah, there were a lot of things said. I 2 don't know everything that was true and everything that 3 wasn't. I know there was a lot he said was true that 4 hadn't been released to the newspapers and that 5 resulted in his conviction. But how many lies did he 6 tell under oath? I can't tell you that. 7 Q. Well, I'm not talking about what happened at 8 the trial right now. I'm talking about what happened 9 in his interview sessions with Mr. Hartman. 10 A. Yeah. 11 Q. Do you recall Mr. Hartman sort of, you know, 12 that it was just in effect a series of -- he would give 13 one story and Mr. Hartman would go back and investigate 14 and conclude that it wasn't true, come back for another 15 interview, and there was a series that occurred like 16 that? 17 A. Yeah. And then I guess what couldn't be 18 discounted is what -- and what corroborated that was 19 presented too, you know. 20 Q. You, obviously, were an experienced 21 investigator. I think you -- very early on you 22 testified that you'd handled some other homicides as 23 well? 24 A. Uh-huh. 25 Q. Is that before or after the Spirko case? 0196 1 A. You know, I actually don't remember. There 2 was a case in Columbus, Ohio -- in Gahanna where a 3 letter carrier got murdered, her truck got hijacked by 4 a guy, I worked that case. I don't recall whether that 5 was before or after, I really -- you know what, it had 6 to be before because I got transferred to Cleveland 7 during this investigation, so it was before this. 8 Q. And you've lectured on investigations? 9 A. Task force operations in rural areas at a 10 training seminar. 11 Q. Okay. You know, over the years had you, 12 yourself, come to any conclusion with respect 13 generally, I'm talking about a general investigative 14 question now, the reliability of eyewitness 15 identifications? 16 A. Have I came to any conclusions? 17 Q. Right. 18 A. No. I've had some that have been accurate and 19 some that haven't been, so my conclusion is on a 20 case-by-case basis. 21 Q. Okay. Let me represent something to you and 22 have you react to it. And let me just represent to you 23 that Mr. Hartman has said to me, okay, that he believes 24 that eyewitness identifications to be among the least 25 reliable, as a general matter, kinds of evidence. And 0197 1 I was wondering what your reaction to that statement 2 would be? 3 A. I don't share that as being the least 4 reliable. 5 Q. Among the least. I'm not saying he said the 6 least, among the least. 7 A. Certainly could if you can corroborate with 8 other things and buttress the eyewitness 9 identification. I think it would be extremely hard to 10 convict someone on the basis of an eyewitness 11 identification and no other evidence or admissions or 12 whatever, but yeah, I suppose some are very unreliable, 13 and there are some that are very accurate too. It's a 14 case-by-case basis. 15 Q. Do you recall that after -- after Mr. Gibson's 16 North Carolina arrest where you went down to North 17 Carolina and saw him in April, again, April '83, do you 18 recall that he subsequently escaped again? 19 A. I'm not aware of that. You mean after he was 20 turned over to Eddyville, Kentucky he escaped again? 21 Q. After he was arrested in North Carolina. 22 A. I don't know what you're talking about. 23 Q. Well, do you remember him being re-arrested in 24 Alabama? 25 A. No. 0198 1 Q. No memory of that? 2 A. No. And I probably wouldn't have if he 3 escaped from Kentucky's custody. He was not in our 4 custody, so they wouldn't -- they didn't call and give 5 me weekly or monthly updates on his status in prison 6 and whether he was out or not out or, you know -- 7 Q. When he was -- back in April of '83 when -- 8 before there was a pending case, okay, in Ohio, no 9 pending case in Ohio at that point? 10 A. Right. 11 Q. Sent back to Kentucky? 12 A. Right. 13 Q. That was your understanding, correct? 14 A. Well, that's what I was told. 15 Q. When -- the charges in Kentucky, do you know 16 whether they were capital charges? 17 A. I don't know. 18 Q. Let me posit to you that there have never been 19 any capital charges in Kentucky. 20 A. Well, there has been because didn't John get 21 convicted of a capital offense? 22 Q. No, not with respect to Mr. Gibson. I'm not 23 saying that Kentucky doesn't have capital charges. I'm 24 saying -- 25 A. Well, Gibson got convicted of murder; is that 0199 1 not a capital offense? Or are you just referring to 2 execution penalty cases? 3 Q. Mr. Gibson, let me just posit to you, has 4 never been subjected, has never faced the possibility 5 in Kentucky of the death penalty, nobody's ever sought 6 it. 7 A. Was it during that period of the Supreme Court 8 striking them down or something? I don't know 9 Kentucky's law. 10 Q. I understand. I'm just giving you some -- 11 because it's the basis of my next question. 12 A. I mean, it wasn't a misdemeanor he was in 13 there for, obviously. 14 Q. No. In September of '83 when your indictment 15 came down, that was an indictment for a capital crime, 16 right? 17 A. Yeah. 18 Q. And it was with specifications, and the state 19 was seeking the death penalty with respect to 20 Mr. Gibson; is that right? 21 A. Uh-huh. I guess. I don't have the indictment 22 here, but -- 23 CONTINUED IN VOLUME II 24 25