Former Ohio Attorney General Jim Petro said the growing use of DNA and other evidence is challenging the reliability of witness identifications. Nationwide, Innocence Project chapters have won 284 exonerations based predominately on DNA evidence. Seventy-five percent of those cases were based solely on eyewitness identification, and 30 percent of those involved more than one eyewitness.
“The justice system and prosecutors need to be aware of serious risk of injustice if their case is based solely on eyewitnesses,” Petro warned.
Gillispie is not totally in the clear. The 46-year-old Fairborn man faces months, if not years, of more legal proceedings following U.S. District Court Magistrate Michael Merz’s ruling that Gillispie’s second trial was unfair. Ohio Attorney General Mike DeWine is appealing Merz’s decision to the U.S. 6th Circuit Court of Appeals.
At this point, though, Gillispie’s case illustrates how an imperfect criminal justice system can put lives on hold for decades, devastating families and friends.
Gillispie served 20 years in prison, all the time insisting he was innocent of raping three women.
Gillispie’s advocates maintain the case was flawed from the beginning: Evidence was lost, destroyed or returned to the victims. An early report clearing Gillispie as a suspect got buried. There was no physical evidence tying him to the crimes. The photo lineup was biased and mishandled.
Problems with the case were so obvious and egregious to Petro, a tough-on-crime Republican, that he joined Gillispie’s defense team as a pro bono attorney and later co-wrote a book with his wife, Nancy, about Gillispie and wrongful convictions.
But there are those who still believe Gillispie is the man who forced a woman to perform oral sex on him at gunpoint in a parking lot in Harrison Twp. and then, a few weeks later, kidnapped twin sisters at gunpoint from a Miami Twp. strip mall parking lot and forced them to perform oral sex on him in a wooded area in August 1988. DNA evidence examined in the case was inconclusive.
“Three victims in this case identified Gillispie as the man who kidnapped and raped them at gunpoint. Two juries heard the evidence and found him guilty. The state court of appeals upheld that conviction. The Supreme Court of Ohio refused to overturn his conviction,” said Greg Flannagan, spokesman for Montgomery County Prosecutor Mat Heck. “We stand behind that conviction.”
System reforms
Petro and Ohio Innocence Project Director Mark Godsey used Gillispie’s case to illustrate grave problems in the system and lobby for reforms that lawmakers adopted with Senate Bill 77, which took effect July 6, 2010. While those reforms — including requirements for the retention of biological evidence and changes in how lineups are done — might have helped Gillispie, some experts believe further change is needed. Petro noted that in an FBI analysis of 19,000 cases solved by DNA, 25 percent of the eyewitness identifications proved inaccurate.
No one can give an accurate estimate of how many innocent men and women languish in America’s prisons. “Only God knows,” Petro said. “But there are 2.3 million people in American prisons. If you use a conservative estimate of 2 percent, there are more than 100,000 innocent people in our nation’s prisons.”
Multiple eyewitness accounts don’t necessarily lead to more accuracy, Petro said: “They can reinforce one another. That’s compounded if there’s a taint in a photo lineup, as there was in this case.”
In the photo lineup used to implicate Gillispie, his face was much larger than the others, the photo was on a yellow background and printed on matte paper. The other photos were on a blue background and printed on glossy paper.
It was eyewitness testimony that convicted Gillispie in court 21 years ago.
“If someone rapes you, you’re going to remember their face,” said Joe Laforsch, who served on the jury in 1991. “The jury was very influenced by the eyewitness testimony. Each one of these women was certain, totally certain.”
Yet Petro noted that Gillispie was indicted in October 1990, more than two years after the August 1988 attacks. The initial physical description of the suspect deviated significantly from Gillispie’s appearance at the time.
“Contrary to what people have always said and thought, a stressful situation doesn’t burn a memory into the mind of the victim,” Petro said. “That is flat wrong. It makes it more shaky. After a year, it’s a matter of chance whether you pick the right person or not.”
Miami Twp. Police Chief John “Chris” Krug said the latest turn of events shows “the criminal justice system works for both sides. At this point in time, it has allowed him to be released. We’ll just follow the process from here...My feeling is that every person, no matter what kind of crime they commit, has their constitutional rights.”
Rip Van Winkle
Gillispie has never wavered in claiming his innocence. “Why would you admit to doing something you didn’t do, especially something this heinous?” he asked.
After his release, his friends rented a 30-seat bus limousine to bring him back to Fairborn. The Rip Van Winkle nature of his existence was accentuated when a cell phone rang and friends screamed, “Answer it! Answer it!”
“I don’t know how,” he said, amusing his friends as he held the phone up to his mouth and ear. His 16-year-old niece has been tutoring him on text messaging, but he has yet to go on Facebook or Google. Not a high-tech guy to begin with, he said, “I don’t need that, when I have my friends and family right here.”
Since Gillispie’s release, some 600 friends, family members and supporters have streamed into his parents’ neat brick ranch on Glendale Drive in Fairborn. “It has been like a morgue here for 20 years,” said Juana Gillispie, his mother. “We are ready for a party. I’m just having an open house.”
His prison artwork is propped up on the mantel in the living room. The dining room table is piled high with snacks and goodies dropped off by well-wishers.
His prison blues with inmate number A246292 inked across the breast pocket have been traded for his old cowboy boots, new blue jeans, drugstore reading glasses and an electronic monitoring device wrapped around his ankle, which he refers to as his “Lindsey Lohan bracelet.”
“I’m not going to say nothing bad about nobody,” he said. “I’m not going to let them beat me down the rest of my life with what they done to me, me thinking about it everyday when I get up because that’s not going to be good. I’m not going to get into it. I can’t. I’d like to, but I can’t,” he said. “I feel great. It’s a beautiful day...When they (the criminal justice system) kidnapped me, I was angry. Now I’m home and I’m happy.”
Richard Winters II, who has been friends with Gillispie since seventh grade, said, “It’s both puzzling and inspiring. We can’t get over how well-adjusted, grounded and humble he has been and continues to be throughout this whole thing...How can he not be bitter and filled with rage and hate?”
Gillispie hasn’t always been so upbeat. A self-portrait painted in prison reveals the depth of his anger and despair just a few years ago. He painted his face twice — as a young inmate in 1991 and a middle-aged prisoner in 2010 — with a gag over his mouth that says “no one is listening.” In the center of the painting is a toilet with words swirling: freedom, home business, hunting, fishing, camping, graduations, weddings, anniversaries and “things I’ve missed in my life because of being in prison for something I didn’t do.” Littering the floor around the toilet are words about legal setbacks and defeats.
The portrait is titled “A Stolen Life.”
Gillispie said he had a girlfriend when he was sent to prison, “but it wouldn’t be fair to keep her waiting for a freedom that might never come. I don’t think I’ll ever have kids,” he said. “I’m too old.”
His sister Jody, visiting from Omaha, gave her brother a watch for Christmas. “You’re on new time now,” she announced. “The red ring around the watch is the love that surrounded you in prison.”
While Gillispie marked the years behind bars, his friends marched on with life: buying houses, getting married, raising children, taking vacations, building careers and socking away nest eggs. His tight group of buddies, though, never forgot him, faithfully visiting him in prison once and sometimes twice a month. They sent cards, letters and photos. They took his collect calls. They stayed in contact with his parents. And they took time off work to pack a courtroom to show support.
“I’m lucky,” Gillispie said. “The friends I had, as I come to realize, were real, real friends because they have all been here. One thing about it, until something like this happens, you don’t know who your friends are. But when something like this happens, and they’re still there at the end, you know you got some good ones.”
Godsey said even inmates cleared by DNA evidence don’t have the number of believers behind them as Gillispie.
“I’ve never seen anything like it,” he said.
The future
Gillispie’s legal outcome will determine his next steps, but he wants eventually to return to buying foreclosed houses, renovating them and either selling or renting them — a venture he was just starting as a young man.
“Once it’s over with, my buddy has work for me, construction-type work,” he said. “I got two guys who are begging for me to come right now but both of them are all over the state.”
Gillispie must remain in the 44-county area that makes up the U.S. Southern District Court jurisdiction. He may not leave the house — even to shovel the driveway or take the trash to the curb — unless it’s for work, church, legal or medical appointments or emergencies. Every trip outside of the house must be reported and pre-approved by the court.
While Gillispie is unwilling to publicly criticize the criminal justice system that put him in prison, he said prosecutors should start by remembering their mission. “Seek the truth. Look for the truth. Don’t twist it just so you can get a victory,” he said.
It’s a message that Petro frequently reinforces in his lectures to law students. “If you’re a prosecutor, your job is not to win the contest,” he said, “it’s a quest for justice.”
Petro doesn’t fault the victims: “They were truly victims, and we can’t make light of the trauma they suffered,” he said. “A suggestive photo array can cement the identity of the suspect in the minds of the victim. Once they have pointed to the suspect in court, the victims rarely change their minds. How much do you want to go through life knowing that you sent a person to prison for life for a crime he didn’t commit?”
The Ohio Innocence Project is a legal clinic within the University of Cincinnati law school. It is part of a national network of clinics that use DNA analysis to free inmates who are wrongfully convicted.
Juana Gillispie, who was a driving force behind the effort to free Gillispie, tracked down Godsey in late 2002 when she heard UC would be starting an innocence project. She implored him to look at her son’s case, which became decidedly more difficult when DNA tests failed to identify the attacker.
Once DNA options are exhausted, innocence projects typically drop the cases. But Godsey stuck with Gillispie, believing a wrong had been committed.
“It’s the only case in Ohio that I’ve come across where I was seeing very strong and repeating signs of misconduct,” Godsey said. “It looked like he was innocent and it looked like every corner had been sort of bent to get his conviction.”
Merz touched on some of that conduct in the ruling that resulted in Gillispie’s release.
Gillispie’s second trial was unfair, he ruled, because the jury never heard testimony about the original investigating officers eliminating Gillispie as a suspect based on extreme differences in Gillispie’s appearance compared to what was described about the rapist.
In an affidavit referenced by Merz, Sgt. Steven Fritz stated he and fellow detective Gary Bailey of the Miami Twp. Police Department concluded that “Gillispie, with a solid job and clean record, did not fit the profile of the brazen rapist in this case.”
Fritz also questioned the original tip from Gillispie’s supervisor that resulted in him becoming a suspect. The tip stemmed from Gillispie’s resemblance to a composite in a wanted poster at the GM plant where he worked. But the poster had been on display for two years, and the supervisor “waited until he had a nasty fight with Gillispie, and fired him, before suddenly deciding he should turn in Gillispie as a suspect,” the affidavit states.
The detectives concluded the supervisor “had no credible explanation for why Gillispie should be a suspect, other than that he simply hated Gillispie for work-related reasons.”
Merz also referred to the photo lineup in his ruling, noting the differences in how Gillispie’s photo was presented. Among the changes adopted in the 2010 law are that photos must be uniformly presented and the person administering the test can’t know the identity of the suspect.
Robert McClendon, 55, of Columbus, is one of the 13 former Ohio inmates who got their freedom through the Innocence Project. McClendon was released in August 2008 after he was cleared by DNA testing, and the state of Ohio awarded him $1.1 million in compensation for spending nearly 18 years in prison for a rape he didn’t commit.
Gillispie’s situation is different, since he hasn’t been exonerated, but McClendon knows how disorienting his new life could be: “When I first came out and went to a restroom in Walmart, I went to the sink and there were no knobs. I looked around the sink and under the sink. I couldn’t figure it out until I saw some guy put his hands under the faucet.”
Other changes have been more lasting. “I have trouble with commitment issues and trust issues,” admitted McClendon. “I was robbed and cheated of 18 years of my life.” Before his settlement, McClendon relied on family members for financial support. Now he has a house and a car that are paid off, and he’s trying to make up for lost time with his four children and six grandchildren.
“If Dean has a strong family,” McClendon predicted, “he will be all right.”
Gillispie said he plans to push for more reforms, including abolishing the Ohio Parole Board, which turned him down twice since 2007. Prisoners sentenced after 1996 are given definitive prison terms while those who went in before 1996 are given a range of years behind bars. The parole board decides whether “old law” inmates should be released on the early side of their terms or be kept in longer. Gillispie said the parole board members, who are paid state salaries and benefits, have a financial incentive to keep old law prisoners locked up.
Gillispie is optimistic about his future.
“It can only go up from here,” he said. “I come from the bowels of society. It can only go up.”
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