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It's a conspiracy

About two years ago, police from a Lake County township were called by neighbors concerned about the absence of 77-year-old Eleanor Robertson.  The cops found her body stuffed beneath a mattress.  She'd been stabbed ninety-four times with a screwdriver.

Two hours later, Euclid police found Danna Weimer and her son Zachary in a car stuffed with items taken from Eleanor's home.  They linked Zach's footprint to the mattress on top of the body.  The killing had actually taken place the evening before.  Beginning about 4:40 the following morning, video surveillance at Danna's place shows the two getting rid of Eleanor's van, burning a bunch of the stuff that was taken from the house, and loading cleaning supplies and then leaving.  They were arrested trying to pawn some the loot.

No murder case is complete without a jailhouse snitch, and that arrived in the form of Raymond Gould.  He told who told the jury in both trials that Zach had admitted the crime to him, telling him that "he and a buddy broke into the woman's home."  The "buddy" was never specified, but that link was filled in by the prison letters sent by Danna to Zach referring to him by that term.  And, of course, the general seediness of the two -- despite a thirty-year age difference, they often did drugs together with Zach's friends -- provided a motive:  they needed money to buy drugs.

They were both convicted.  The judge gave Zach life without parole, and gave Danna 44 to life.

Aaron Baker, the lawyer who tried the case, got me assigned to the appeal for Danna.  Both cases were argued last December.  Zach's conviction got affirmed within a month.  On Monday, the 11th District reversed Danna's.

I probably read more Ohio cases than anyone who isn't paid to read Ohio cases, and I'd make an educated guess that two-thirds of trial reversals come because of evidentiary errors.  And so it was here.  Remember Gould, the jailhouse snitch?  He's testifying about what Zach told him.  That's hearsay.  Not in Zach's trial, because any statements made by a party-opponent aren't hearsay.

So how does it get in in Danna's trial?  Baker objects to it, the prosecutor replies, "co-conspirator exception," and the judge lets it in.

As Casey Stengel said, you can look it up.  It's the very last paragraph in EvidR 801, and it says that statements by a coconspirator made in the course of and in furtherance of the conspiracy.  There are plenty of cases which say that a conspiracy continues even after the suspects are arrested, because they can still work together to conceal the crime.

But there are also plenty of cases which say admissions to third parties are not made in furtherance of the conspiracy, because they don't further the conspiracy.  To put it simply:  if the object is to lessen the chances you'll be caught for a crime, you don't do that by telling other people that you committed it.

So what?  Take Gould's statement out, and you've still got overwhelming evidence -- as we say in the appellate biz -- of her complicity, even without Gould's testimony.  You've got her with all kinds of stuff in her car, there's the surveillance video...

But here's what you also have:  Ohio doesn't have a crime of being an accessory after the fact.  There are some very good decisions out there saying that a person can't be convicted just on the basis of what he did after the crime was completed.  So things like helping get rid of the van is tampering with evidence, but it doesn't make her guilty of an aggravated burglary and murder that were completed prior to that.  You don't become a murderer by cleaning up after one.

And beyond that, the evidence dropped off a cliff.  She had an air-tight alibi:  three of Zach's friends testified as State's witnesses, and all of them had Danna smoking dope with them, and eventually doing a drug deal, during the time frame for the murder.  There was evidence that Danna had been there earlier that day, but her other son lived across the street from Eleanor, and Zach was staying there at the time, so that didn't mean anything. 

Gould's testimony, though, altered the axis of the case.  There was a legitimate defense argument that Zach didn't even have an accomplice, but just called his mother to help him out afterwards.  Gould's testimony changed that:  it provided ironclad proof that Zach had an accomplice -- "me and a buddy."  That shifted the entire case to resolving who the accomplice was, rather than whether Zach had one, and Danna fitted that role completely.  It's impossible to argue that's harmless.

Still, as evidenced by the vote, it was a close call.  Reversing a murder conviction, especially one that achieved the level of publicity in Lake County that this one did, is tough, and the panel gets some points for that.

*   *   *   *   *

A lot of credit goes to Baker for this, too.  The State presented 37 witnesses and over 300 exhibits in a trial that lasted over two weeks.  He did that by himself on an appointed basis just seventy days after Weimer was arraigned.  And best of all from my vantage point?  He preserved the record perfectly.  If he hadn't known the evidence rules enough to object to Gould's testimony, it's reviewed only for plain error, and then Danna's only hope of ever getting out of prison is sweet-talking the parole board when she has her first hearing at age 96.

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