Wednesday, November 4, 2009

Simmons off death row; Cambria prosecutor tests DNA evidence for upcoming trial

By Brooke Keane
Innocence Institute of Point Park University
See the Innocence Institute's initial Simmons investigation here.

Just over a month after a federal appeals court upheld a ruling for a new trial in the grisly murder of an 80-year-old Johnstown woman in 1992, prosecutors obtained a court order to see if hair and other evidence found at the scene matches Ernest Simmons.

Johnstown Police detectives persuaded a judge to force Simmons to provide DNA samples at a status hearing in which Simmons had no legal counsel/ The detectives claimed scientific advancements since 1992 will enable them to conduct new tests on old evidence.

But Thomas Dickey of Altoona, Simmons’ recently appointed attorney, said that while he had not received a copy of the search warrant for a DNA test or any other documents in the matter until recently, he plans on scrutinizing the chain of custody of all evidence as well as the procedures and information used to obtain the search warrant in obtaining Simmons’ DNA.

These new tests add yet another twist to the longstanding controversies in the case stemming from allegations of misconduct, evidence suppression by prosecutors, and other issues that caused a judge to set aside Simmons’ death sentence -- which was then affirmed by the 3rd U.S. Circuit Court of Appeals in mid-September.

Simmons has steadfastly maintained his innocence since the time of his arrest, throughout his trial, and all the way to the death sentence he received for the slaying of Anna Knaze. He sat on Pennsylvania’s death row -- twice being scheduled for execution -- until February 2005 when U.S. District Judge Sean McLaughlin of the Western District of Pennsylvania ruled that Simmons deserved a new trial.

In his opinion, Judge McLaughlin said:

*A jury never heard that a prime witness who identified Simmons near the scene minutes after the murder was actually an ex convict facing gun charges who could not identify Simmons for months until she copped a deal for freedom and told police it was Simmons she saw near the murder scene;

*The same witness told two Innocence Institute reporters long after the first trial that she could not say if the person she saw in the murder’s aftermath was Simmons or not;

* Police not only improperly threatened Simmons’ girlfriend into covertly recording telephone conversations from jail with Simmons, but after Simmons proclaimed his innocence 19 times during the taped phone calls, they were secreted from him at trial, keeping the jury from hearing his claims of innocence, and

* While prosecutors presented two other eyewitnesses against Simmons during his first trial, he chastised them for failing to reveal to his jury that they did not come forward until police cut a deal with one of them for an early release from jail.

Then after Cambria prosecutors appealed McLaughlin’s order, on Sept. 11, 2009, the 3rd U.S. Circuit Court of Appeals denied the appeal setting the stage for another trial for Simmons -- who some see as a cold-blooded killer, and others see as a victim of circumstance.

“Had Simmons had access to the information suppressed by the prosecution, there is a reasonable probability that his trial would have had a different outcome,” read the Circuit Court’s opinion, as adopted from the ruling of McLaughlin.

Then, during an Oct. 21 hearing to set a new trial date and appoint an attorney for the destitute Simmons, prosecutors made it clear they are not backing off when police, brandishing a court order, collected DNA from Simmons while he was still in the courtroom.

The affidavit accompanying the court order said DNA testing on evidence collected from Knaze’s home in 1992, which included fingernail clippings, the victim’s clothing and sweepings from the living room, dining room and kitchen floors, was not done. In 1992, fingerprints found on the scene did not match Simmons, while blood and fingernail clippings were not fit for testing. This time around however, more advanced DNA testing will be done.

The conviction

On May 6, 1992, Anna Knaze was found dead in her home with almost every bone in her body broken. Though none of the originally tested physical evidence tied Simmons to the killing, police targeted him because he had a prior record of violence against the elderly.

By 1984, when he was sent away to prison for almost a decade, Simmons had already pled guilty to more than 20 crimes, including the robbery and brutal beating of two elderly men in Harrisburg. He served seven years in prison and then moved to Johnstown in 1991, looking to use his skills as a barber to begin a new career and life there.

Nine days after the murder, he was jailed on a minor parole violation as the investigation intensified. In reality, Simmons became the target suspect just two days into the murder investigation and was the only suspect police considered. As he sat in jail on the parole violation, the prosecution built their case against him and he was officially charged with Knaze’s murder in August of 1992, while still imprisoned.

The key to Cambria County's case against Simmons was Margaret Cobaugh.

A 61-year-old ex-convict who lived a few blocks from Knaze, Cobaugh reported to Johnstown Police the day following Knaze’s murder that her wallet had been stolen around the time of the murder, and that she had been raped by a black man during the same period. The next day, Cobaugh tried to withdraw her claims, and before police arrived to question her, she had destroyed all physical evidence by trying to flush her undergarments down the toilet. She also could not initially identify her attacker in a lineup.

Trying to buttress his case as the trial grew near, Johnstown Police Detective Richard Rok, who was later fired from his job and imprisoned for kicking a handcuffed suspect in an unrelated matter, questioned Cobaugh ten times. By the time police were done with her, 13 material changes from her initial report arose, taking her from possible assault victim at the hands of a nameless, unidentified black man to the victim of a heinous rape committed, she was certain, by Simmons.

As the state’s star witness several months later, Cobaugh testified that Simmons was her attacker. She also claimed that her attacker threatened her, telling her not to “open your mother f—king mouth or you’ll get the same thing that Anna Knaze got,” despite the fact that this incident would have taken place several hours before the discovery of Knaze’s body.

Rok also threatened Simmon’s girlfriend until she agreed to tape telephone conversations from the Cambria County Jail, believing she could cajole a confession out of him.

Instead of obtaining a confession, Simmons claimed innocence 19 times during these conversations. Since Simmons did not implicate himself, the detective did not disclose the tapes to defense lawyers -- who could have used it in Simmons' defense.

In addition, two witnesses who corroborated Cobaugh’s testimony also emerged. While the two female neighbors of Knaze’s claimed months after the killing they saw a black man talking to Knaze outside her home, neither woman could pick Simmons out of a six-man photo lineup.

That changed by trial time when the women, armed with a deal for freedom for one of their relatives that was not presented to Simmon’s jury either, identified him at the murder scene.

On June 1, 1993, Simmons was convicted of murder and robbery and in a short sentencing phase, a judge ordered that he be put to death by lethal injection.

Questioning testimony

After the trial, much of the information that had been withheld from the jury slowly began to emerge.

First, defense lawyers learned Cobaugh had served an 11-year jail sentence for burglary and larceny. She did not disclose this information after purchasing a firearm in 1992, so Cobaugh was charged with violating gun laws. But when Cobaugh agreed to testify against Simmons, detective Rok convinced Cambria County District Attorney Patrick Kiniry to drop these charges.

In 1993, a former Philadelphia police officer – who became a central Pa-based private detective working for Simmons defense team -- -visited Cobaugh’s home and was greeted by her double-amputee husband who began shouting at Cobaugh to “tell [the detective] the truth.” She promptly wheeled him away without a word to explain what her husband meant.

Then in 2004, during the Innocence Institute of Point Park University’s investigation, Cobaugh, who passed away in October, 2007, told reporters that she “could not positively identify anyone. It could have been [Simmons], it could have not.”

In Judge McLaughlin’s opinion, in which he quoted the Innocence Institute story, he said a recantation by Cobaugh could have been pivotal in the case.

“The prosecution appears to have recognized Cobaugh’s central role, the Commonwealth itself¼in its case called Cobaugh a ‘critical’ witness.”

Along with the Cobaugh controversy, Simmon’s lawyers at the time discovered the secret tapes made by Simmons’ girlfriend. In his opinion, the federal judge castigated the prosecution for hiding that evidence from the defense.

“Had the defense in this case had access to the information about Rok’s efforts to pressure [Simmons' girlfriend] into cooperating with the prosecution, it would have been much better positioned to cast doubt on her credibility,” the court opinion stated.

Other eyewitness testimony in the original trial was also attacked by the federal judge.

“Although [I] cannot say with certainty that the jury would have reached a different conclusion on its verdict, Simmons has demonstrated a ‘reasonable probability’ that it would have done so.”

The retrial

Cambria County District Attorney Patrick Kiniry, whose office would not respond to interview requests, told the Johnstown Tribune-Democrat he will continue to fight the court’s ruling, although an appeal has yet to be filed with the U.S. Supreme Court.

“My office will be prepared to try the case again,” he said. “Ernie Simmons is a cold-blooded killer, and a jury from Erie County found he had killed Anna Knaze, and they sentenced him to death.”

The first move towards that end was when they served Simmons with a search warrant for DNA testing on materials found in and around Knaze’s home after the murder.

Dickey, who was not appointed to the case until after the DNA evidence was secured, said he will challenge every element of the collection process because no forensic evidence was connected to his client in the past.

“We’ve got big troughs, but they’re all empty,” he said.

Simmons’ original trial lawyer Kenneth Sottile will be assisting Dickey on the retrial. Sottile told the Johnstown Tribune-Democrat that not only would a conviction be more difficult this time around, but that there is a chance that the charges against Simmons will be thrown out altogether. He could not be reached for comment.

“There is some case law that would bar a retrial when prosecutorial misconduct is so serious,” he said.

Brooke Keane is a student reporter with the Innocence Institute of Point Park University. She can be reached at bakeane@pointpark.edu.

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