High Court Hears Case of Convicts

Article published in the Akron Beacon Journal.

LAWYERS SAY UNUSED EVIDENCE POINTS TO INNOCENCE IN KILLING

When it was his turn to speak Wednesday morning, Columbus lawyer James D. Owen told the seven men and women of the Ohio Supreme Court that “justice was robbed,” in the murder trials of Randy Resh and Bob Gondor because the jury “was never armed with the truth.” In his 10-minute presentation, Owen said the original Portage County juries in the 1990 rape and murder trials of Resh and Gondor never heard four key pieces of evidence that could have discredited the state’s case.

The justices listened to the four-pronged argument, never interrupting Owen with questions. Afterward in the ornate courtroom lobby, a throng of Resh and Gondor supporters appeared to be overjoyed at the presentation. After waiting more than three years for new trials in the 1988 rape and murder of 38-year-old Connie Nardi of Randolph Township, the men got the chance to present their case to the state’s highest court Wednesday.

The court agreed to hear the case in a 4-3 vote last May, after the 11th District Court of Appeals in Warren blocked an order for new trials in a split decision that was years in the making.

The original convictions of Resh and Gondor, lifelong friends, were overturned in June 2002 by visiting Judge Charles J. Bannon. After hearing eight days of testimony, Bannon ruled the men were denied their constitutional right to effective counsel because their original lawyers never used many pieces of potentially exonerating evidence.

A few weeks later, however, Bannon’s decision was put on hold when Portage County Prosecutor Victor V. Vigluicci filed an appeal in the 11th District. But Wednesday there was renewed hope that new trials will take place.

Resh’s brother, Mike Resh, was in court with about 25 family members and friends. “I don’t want to be overconfident,” he said, “but I think it went well.” He said he didn’t know how many people usually attend Supreme Court arguments, “but there weren’t any left inside there after we came out.”

Gondor’s 69-year-old mother Julia Farago of Barberton said everything that has happened in the bizarre case was like “a broken record.” “It just keeps going and going and going,” she said. “Like in 2002, after the 7 1/2-day hearing, it’s the same things now from the prosecutor — the same old things.” The way I see it, they have to give them a chance and look through all the evidence that wasn’t available before. They just have to, because these two boys, who are young men now, have lost almost 16 years (of their lives).”

Resh, 42, and Gondor, 41, have been behind bars in various state prisons since their convictions, but now share the same pod at Grafton Correctional Institution in Lorain County.

Before Owen spoke on Resh’s behalf, Cleveland lawyer Steven L. Bradley spoke for Gondor, arguing the legal implications of the 11th District’s reversal and saying “it’s been a long road.” The Warren court simply was wrong to block the new trials, he said, because it substituted its own judgment for Bannon’s. “The 11th District didn’t have the benefit of sitting through eight days of hearings,” Bradley told the justices.

INDEPENDENT REVIEW

There were hours of testimony and more than 100 exhibits were shown to Bannon before he issued his 11-page order, which overturned the convictions. Vigluicci, who was not involved in the original trials, has repeatedly declined to say whether he would retry the cases.

Arguing Portage County’s case before the high court was Assistant Prosecutor Pamela J. Holder, who said the 11th District was correct to use an independent review in its reversal. An independent view was exactly what was needed, Holder said, because the case was so complex and drawn out. Holder, however, was repeatedly interrupted with questions by the justices, one of whom told her that her argument on a key piece of blood evidence from Bannon’s decision was not only inconsistent, but also illogical.

One by one, defense counsel Owen went through the four pieces of evidence not heard by the juries. The first was their alibi, which the state said was concocted. Resh and Gondor, according to the state’s original case, went to a pizza shop on the Tuesday after the 1988 murder — before they had been singled out by police as suspects –to ask whether workers remembered they had ordered a pizza on Sunday night, only hours after the murder.

But Owen said the work records of the two pizza shop workers who talked to Resh and Gondor showed the only day they worked together was the next Friday, after the two men knew they were suspects. “It’s what any reasonable person would have done,” Owen told the court.

His second point was a 50-page tape-recorded interview of the first man convicted in the murder, Troy Busta, by his two defense lawyers and their private investigator. Owen called it a “stirring piece of evidence” because it showed Busta was willing to say anything to avoid the death penalty.

DEAL FOR TESTIMONY

Records show Busta avoided death row by pleading to the lesser charge of murder, then providing the eyewitness testimony that eventually convicted Resh and Gondor. Owen called it “a deal with the devil.”

His third point was the alleged blood stain found by a state investigator in the bed liner of Gondor’s truck, which the state said was used to dispose of the victim’s body. In the evidence presented before Bannon, Owen said, the stain proved to be nothing more than a drop of perspiration. Yet, Owen told the justices, it was the only piece of scientific evidence the state had to corroborate Busta’s testimony that the truck was used.

His final point was the testimony of a woman who lived near where the body was found. She testified that she saw other people who were there with Busta on two occasions only hours apart — but they were not Resh and Gondor. “How can you look at all of this evidence and have confidence in the outcome (of the original trials)?” Owen asked, then answered: “You can’t.”

The victim, Connie Nardi, was a divorced mother of two who was last seen at a Portage County bar, dancing with Busta on top of the bar. Resh and Gondor were present that night after attending a Cleveland Indians game.