Judge denies Alfred Cleveland's request for permission to seek new trial in 1991 Lorain murder

Lorain County Common Pleas Judge Christopher Rothgery denied a request by Alfred Cleveland for permission to seek a new trial in the 1991 murder of Marsha Blakely in Lorain. In a three-page ruling Monday, Rothgery wrote that "no new facts or evidence ... have been discovered" that would lead to him granting Cleveland permission to file a motion seeking a new trial, and he denied a joint motion to that effect co-signed by the Lorain County Prosecutor's Office and Cleveland's attorneys. The Prosecutor's Office and attorneys for Cleveland and three other men convicted of Blakely's murder sought permission earlier this month to file motions seeking new trials, followed by new trials and the dismissal of all the charges against Cleveland, Benson Davis, John Edwards and Lenworth Edwards, the men who have come to be known by their supporters as The Ohio 4. Lauren Staley, who represents Cleveland along with fellow Ohio Innocence Project attorney Shantya Goddard, said Monday that they were preparing a response to Rothgery's ruling. Staley said they will ask Rothgery to reconsider "based on the law and the facts presented." "We think he has misapplied the law and we're going to file something that explains our position," she said, but couldn't say when that would be. Prosecutor J.D. Tomlinson said Monday he was reviewing Rothgery's ruling. "The parties will respond tomorrow," he said. Davis and Lenworth Edwards' cases are assigned to Judge Raymond Ewers and Judge John Miraldi, who leaves office at the end of the year, has John Edwards' case. Convicted of Blakely's murder in four separate trials in the 1990s, The Ohio 4 say they are innocent but were convicted based on William Avery Jr.'s perjured testimony. All their appeals were denied. After Cleveland filed what is called a habeas petition challenging his continued imprisonment, the U.S. 6th Circuit Court of Appeals wrote in 2012 that he had presented it a "credible claim of actual innocence." That court sent the case to U.S. District Judge Jack Zouhary in 2014, but he ruled Cleveland's constitutional rights hadn't been denied. Tomlinson previously said that he first read up on the case in 2022, and joined with the defense attorneys earlier this year to seek the release of the Ohio 4. Cleveland and Lenworth Edwards were released on parole in 2020. Benson Davis and John Edwards remain in prison. There is no DNA nor physical evidence linking the four men to Blakely's August 1991 torture and murder, their supporters say. In 2004, Avery told the FBI he had lied about the men being Blakely's killers. He wrote a sworn affidavit saying so in 2006. Rothgery ruled that despite the argument Avery's affidavit is "newly" discovered, that it is "unquestionably false." "To proceed as if these statements, though jointly made by the parties, were true, when they are inalterably untrue would not and could not serve the interest of justice," he wrote. "If the parties were to agree and stipulate that the sun rose each morning in the west or that each week contained eight days, this court could not, in good faith, proceed to any decision based upon those agreements to inarguable falsehoods." "To label a February 9, 2006, affidavit as 'newly' discovered evidence would be contrary to any common understanding of the word 'newly,'" Rothgery wrote. The parties to the motions for a new trial argued the defendants "could not have obtained the evidence forming the basis of their motions within 120 days of their convictions," satisfying the standard needed for permission to request a new trial, Rothgery wrote. "There is no evidence cited or affidavit attached" to the motion, Rothgery wrote. They also argued that Avery "engaged in misconduct," providing his Feb. 9, 2006, affidavit as evidence, the judge wrote. "... and therein lies the problem," Rothgery wrote, as the rules require motions for a new trial to be filed within 14 days after a verdict or within 120 days on the account of newly-discovered evidence. A motion also can be filed within seven days of a judge finding that a defendant was "unavoidably prevented from the discovery of the evidence upon which he must rely, by clear and convincing proof." None of those conditions exist in Cleveland's case, Rothgery wrote. Cleveland and his attorneys have had Avery's affidavit since February 2006 and "it is difficult to conceive any possible way that this can be described as newly discovered in 2024." Nor was Cleveland "unavoidably prevented" from discovering it, as Rothgery had held a hearing in January 2008 based on Avery's affidavit. Despite his affidavit recanting his testimony, Avery refused to testify on Cleveland's behalf at a Jan. 31, 2008, hearing in Rothgery's court because of the chance he could be charged with perjury. Avery told The Chronicle-Telegram after that hearing that Cleveland was innocent, "but I don't feel I have to go to jail for 30 years" for perjury. Avery's refusal to testify, after consulting with an attorney and after the Prosecutor's Office wouldn't grant him immunity, led to Rothgery ruling on April 25, 2008, that Cleveland had failed to produce "competent, credible evidence" of a wrongful conviction. Tomlinson, a Democrat, will soon leave office after losing the Nov. 5 election to Tony Cillo, a Republican who has promised to review the case files of The Ohio 4 when he takes office. The Ohio Attorney General's Office has sought to delay any hearings until January in order to allow Blakely's family to have its say under state victim rights law. Along with the Ohio Innocence Project, Ohio Public Defender's Office Wrongful Conviction Project, the Perlmutter Center for Legal Justice at Yeshiva University's Cardozo School of Law in New York City, and local attorney Kimberly Kendall Corral are representing members of The Ohio 4. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.