An order filed by U.S. Magistrate Judge Michael R. Merz granted the state’s request for a stay, pending an appeal, of his decision last week that Gillispie did not get a fair trial in 1991 when he was convicted of rape, kidnapping and aggravated robbery. Merz had ordered the state to either retry him by July 1 or free him from prison, but any retrial would happen after review by the 6th Circuit Court of Appeals.
But Merz did order that Gillispie be released on bond. Thursday’s decision states Gillispie will be delivered into the custody of a U.S. pretrial officer at the prison at 7:30 p.m., and will be under the supervision of the court’s pretrial office on the conditions set by a separate order. Those conditions will include remaining within the Southern District of Ohio — the state’s 44 southern counties — and staying on electronically monitored home detention, Merz wrote.
“Assuming he is innocent, as he has consistently claimed, staying the case without bond would cause him the irreparable injury of deprivation of his liberty for at least as long as the appellate review takes,” Merz wrote. “If he is guilty, as two juries have unanimously found, he has nonetheless been severely punished up to this point in time.”
Merz also wrote that a stay could actually hurt the state since the case against Gillispie “already over twenty years old, is likely to be several years older after appellate review.”
The Ohio Attorney General’s Office filed a notice of appeal on Dec. 16, one day after Merz issued his order.
“For him to be home at Christmas, this is kind of a dream come true,” said Mark Godsey, director of the Ohio Innocence Project. Godsey and former Ohio Attorney General Jim Petro have represented Gillispie for the past several years.
In a statement released Thursday afternoon, the Montgomery County Prosecutor’s Office said “We continue to support the three victims in this case who all positively identified Gillispie as the man who raped them.”
Merz’s decision last week said the prosecution improperly withheld from the defense, and the jury, the fact that the original investigating Miami Twp. police detectives eliminated Gillispie as a suspect. Quoting case law, Merz said that information “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Gillispie, now 46, has always proclaimed innocence.
The three victims in the case testified that Gillispie was the perpetrator, but there was “absolutely no physical evidence that connected Mr. Gillispie to the crimes,” Merz wrote. “
Gillispie’s attorneys claim Gillispie, who was about to be married, was “plucked out of normal life,” charged with crimes he didn’t commit and wrongly imprisoned. The defense has identified another man it contends was the likely perpetrator.
Gillispie was given sentences totaling 22 years to 56 years after a jury in February 1991 convicted him of nine counts of rape, three counts of kidnapping, three counts of gross sexual imposition and one count of aggravated robbery, some of which carried firearms specifications. The crimes occurred in August 1988 in Harrison Twp. and Miami Twp.
Merz’s ruling quoted an affidavit by Steven Fritz, then a Miami Twp. police sergeant who investigated the rapes. Fritz said Gillispie’s supervisor at General Motors’ Harrison Division, former Miami Twp. police officer Rick Wolfe, tipped police that Gillispie resembled a composite drawing of the rapist, based on victim descriptions, on a wanted poster.
Fritz said he and his partner, Gary Bailey, in April 1990 “eliminated Gillispie as a suspect because of the extreme differences in Gillispie’s physical appearance compared to that of the (witnesses’ description of) the rapist, and because Gillispie, with a solid job and clean record, did not fit the profile of the brazen rapist in this case. Also, Wolfe’s tip was suspicious. The wanted poster for the case had been posted for nearly two years at the GM plant, but Wolfe waited until he had a nasty fight with Gillispie, and fired him, before suddenly deciding that he should turn in Gillispie as a suspect. As tips go, the one from Wolfe regarding Roger Dean Gillispie was a particularly unreliable one.”
Gillispie was only identified as a suspect when rookie detective Scott Moore inherited the case in June 1990 and created a photo lineup from which the victims identified Gillispie as their attacker. Moore didn’t pursue any other suspects, court records show.
In its statement, the prosecutor’s office said the defense would have known about Fritz’s elimination of Gillispie as a suspect because Fritz was retained by the defense as a private investigator before the 1991 trial.
Gillispie has fought his conviction for two decades. Merz overruled a state appellate court, which had determined that the withheld evidence about Fritz and Bailey eliminating Gillispie as a suspect likely would not have changed the outcome of the trial.
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