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By Joel Moroney
News Journal
Tuesday, June 29, 2004
MANSFIELD OHIO-- A Kentucky man paroled for murder in 2001 will not face the death penalty in Ohio for the 1982 kidnapping and murder of a village postmistress for which his alleged accomplice sits on death row.
Van Wert County Prosecutor Charles Kennedy's has dismissed the case against Delaney Gibson for the murder of Elgin postmistress Betty Jane Mottinger.
It is the latest in a long stream of legal maneuvers that have frustrated Mottinger's daughter and son-in-law, Kay and Tom Varley of Bellville.
"We're pretty tough people," Tom told the News Journal in September 2002. "Kay doesn't cry often. But when we think about what's been going on for the past 20 years, it makes us angry."
They could not be reached for comment Monday.
John G. Spirko Jr., 58, was convicted in 1984 and sits on death row as an accomplice to the crime based on statements he made to investigators and eyewitness accounts that placed both men at the crime scene.
But dismissing the case against Gibson calls into question the primary eyewitness account and dismissing a capital murder charge is almost unheard of, according to Spirko's attorney, Thomas Hill, of Washington, D.C., and Ohio Public Defender David Bodiker.
"I've never come across a capital case that was nulled," Bodiker said. "Not where one of the guys went to trial and was convicted. They couldn't make the case and that poses a real interesting situation for Spirko because they identified Gibson as the accomplice."
On Aug. 9, 1982, Mottinger was kidnapped from her post office in the farming village of Elgin just miles from the Indiana boarder. Her body was found in September 1982, in a field near Findlay.
Gibson's dismissal comes after Spirko's 10-year legal battle to obtain the investigative record from federal postal authorities, which contained photos of a bearded Gibson in North Carolina 12 hours before the crime in Elgin, 550 miles away.
The information calls into question an elderly woman's testimony that she was "100 percent" sure she saw Gibson at the scene because she was shown an old mugshot of Gibson without a beard and never met him at trial.
A hypnotized truck driver said he was "70 percent sure" Spirko was there, but the only remaining evidence against Spirko are the stories, mostly false, that he told investigators while trying to work a deal.
"While he was on parole, he got into a barroom brawl and was arrested, along with his girlfriend," said Spirko's pastor, David VanDyke, 44, of Columbus. "John was going to try to cut a deal and be a hero and get his girlfriend out of prison. He read the stories in the newspaper and said he had knowledge to trade. No one is claiming that John is a bright guy."
While the photos do not conclusively prove Gibson did not shave his beard and drive 550 miles through the night to the scene of the crime, the eyewitness has since died and prosecutor Kennedy said trying Gibson would be problematic.
"After 20 years it would be extremely difficult to prosecute," Kennedy told the News Journal on June 2. He said he could not recall when he had nulled the case; court records indicate it was May 17, the day one of Spirko's last available federal appeals was denied in a 2-1 decision by the 6th U.S. Circuit Court of Appeals.
The case docket indicates the murder warrant was recalled the day Kennedy was contacted. Both Kennedy and former prosecutor Steve Keister said there was no reason to try Gibson at the time Spirko was tried, because Gibson was serving a 20 to life sentence in Kentucky.
Kentucky Department of Corrections spokeswoman Lisa Lamb said Gibson served about 15 years on a 20 to life sentence for murder before being paroled in 1998. He returned a year later as a parole violator and was released again June 28, 2001, where he remains on parole.
Spirko's attorneys have requested a full hearing before the 6th Circuit court, but are running out of options before a final appeal to the U.S. Supreme Court.
"John Spirko lied. But lying is not a capital offense," Judge Ronald Lee Gilman wrote in a dissenting opinion that left the door open for Spirko to petition the full court for a hearing. "And while the record leaves no doubt about Spirko's falsifications, it leaves me with considerable doubt as to whether he has been lawfully subjected to the death penalty."
Spirko claimed at trial he made up the story based on information from Gibson and others. The Ohio Attorney General's office contends evidence of Gibson being in North Carolina negates Spirko's defense about how he learned undisclosed details about the crime.
Hill contends Spirko was convicted based on false information as investigators became desperate to solve the high-profile crime.
"It's just not right," Hill said. "You take your best shot, but you don't make things up."
Kennedy said Spirko should serve the sentence imposed by a jury.
"If he was found guilty and sentenced to death, he deserves to die," Kennedy said. "It's that simple."
jmoroney@nncogannett.com
419.521.7219
An undated photo of Delaney Gibson from the Kentucky Department of Corrections. The same day last month that a federal appeals court upheld the murder conviction of John Spirko, the prosecutor in Van Wert County in northwest Ohio dismissed the charge against Gibson. That seriously weakened the case against Spirko, said his attorney, who plans to use the dismissal as part of an appeal.
John Spirko
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