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Prosecutor’s file response in Widmer case

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By Denise G. Callahan, Staff Writer 6:22 PM Friday, February 10, 2012

MIDDLETOWN — Prosecutors in the Ryan Widmer bathtub murder case say police legitimately seized the tub from the Warren County home and testimony about lead detective Jeff Braley’s embellished employment records was properly banned.

Warren County Prosecutor David Fornshell filed his reply with the 12th District Court of Appeals Thursday, asking the court not to disturb Widmer’s murder conviction.

Widmer is serving 15 years to life for drowning his wife, Edgewood High School graduate Sarah Widmer, in the bathtub of their Hamilton Twp. home in August 2008. Judge Neal Bronson declared a mistrial after the first guilty verdict in 2009 due to juror misconduct. The second jury was hung in 2010. After 12 hours of deliberations a year ago next week, a jury returned a guilty verdict.

Widmer’s appellate attorney Michele Berry-Godsey filed his appeal in December. She cited ineffective assistance of counsel, improper expert testimony regarding fingerprints on the tub and banned Braley evidence as some of the problems with his third trial. She also wrote that because police did not specifically include the bathtub in their search warrants, they should never have seized it as evidence.

Fornshell addressed the tub issue first, citing case law that supports the position the tub was effectively included in the search warrant.

“The Ohio Supreme Court held that, in search and seizure cases involving a warrant, the required specificity will vary with the nature of the items to be seized,” he wrote. “If the seized items are evidence or instrumentalities of a crime, then the key question is whether the warrant could have reasonably described the items more precisely than it did.”

While Hamilton Twp. police were searching the Widmer home they dusted the tub for prints. They found two small handprints streaking down the backside of the tub and concluded Sarah Widmer may have tried to grab the tub to stop her husband from dunking her head in the water.

Berry-Godsey also argued that the fingerprint expert - who testified about the handprints and the presumably male forearm that was found overlaid on rings left by bottles that were on the tub - shouldn’t have testified. She wrote that William Hillard testified that methodologies for identifying body parts like the forearm are sketchy.

“He never admitted that the methodology he used was unreliable,” Fornshell wrote. “By claiming he did, the appellant materially misrepresented the record in a vain attempt to avoid punishment for murdering his wife.”

Berry-Godsey throughout her appeal gave instances in which Widmer’s former attorneys were ineffective. One of her examples was the fact prior attorneys didn’t timely file a motion to exclude the bathtub as evidence. Fornshell told the court it is an ironic argument since she is one of the attorneys of record.

“If they were all truly ineffective, then Ms. Berry, as counsel of record, would have surely advised one of the eight lawyers prior to both the second and third trials of the importance of filing a timely suppression motion,” Fornshell wrote. “Failing to do so would have been a violation of her ethical duty to zealously advocate for her client.”

A “red herring” is what Berry-Godsey called this argument.

“I was part of the appellate team that got Ryan’s conviction overturned after the first trial. Then I stepped back and had nothing to do with the second or third trials,” she said. “I was not involved in discussions with trial counsel nor was I part of the trial team whatsoever. It’s for this very reason that I had to enter a new notice of appearance prior to this appeal.”

Fornshell dispatched the defendant’s claims about Braley by basically echoing what Bronson has written in rulings already several times. Bronson ruled Braley’s falsified employment records are from 14 years ago and are irrelevant to this case. Moreover, at the time the defense wanted to question the detective about them, no one had proven Braley doctored his files. He always denied doing it. He resigned after a report identifying his background as bogus was issued.

Berry-Godsey recently filed a second appeal in this case after Bronson denied her motion for a fourth trial, partially because of the Braley issues.

Fornshell concluded his missive to the court by telling the judges there that the evidence in the case, both direct and circumstantial, all backed a conviction.

“The jury did not lose its way and did not create a manifest miscarriage of justice when it resolved the conflicts in the evidence in favor of the state and convicted the appellant of murder,” Fornshell wrote.

Contact this reporter at (513) 696-4525 or dcallahan@coxohio.com.

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