J.D. Tomlinson, attorneys for Alfred Cleveland ask judge to reconsider ruling denying permission for new trial

Attorneys for convicted killer Alfred Cleveland and Lorain County Prosecutor J.D. Tomlinson are asking Common Pleas Judge Christopher Rothgery to reconsider his denial this week of their request for his permission to seek a new trial in a 1991 Lorain murder. In a "joint motion for reconsideration" filed Tuesday, Ohio Innocence Project attorneys Lauren Staley and Shantya Goddard and Tomlinson asked Rothgery to reconsider his decision on Monday denying Cleveland's request for permission to seek a new trial. Cleveland and three other men — Benson Davis, John Edwards and Lenworth Edwards — were convicted of the 1991 murder of Marsha Blakely and sentenced to prison. Cleveland and Lenworth Edwards have since been paroled, while Davis and John Edwards remain in prison. Four juries convicted the men supporters call "The Ohio 4" at trial. Every state and federal court that has heard the case has upheld the original jury verdicts and subsequent rulings against the four convicted killers. Rothgery ruled Monday that "no new facts or evidence ... have been discovered" that would lead him to granting Cleveland permission to file a motion for a new trial. In Tuesday's motion, Cleveland's attorneys and Tomlinson wrote that Rothgery "improperly preempted" a motion to consolidate all four trials to be heard by a single Common Pleas judge when he issued his ruling. The motion to consolidate was pending before Judge Raymond Ewers when Rothgery ruled against Cleveland, and it should have been heard before Rothgery ruled, the attorneys argued. Attorneys for and supporters of The Ohio 4 have said the four men were convicted based almost solely on the testimony of admitted liar William Avery Jr., who later recanted his statements on two occasions. Having testified at trial that the four men killed Blakely, Avery recanted that to the FBI in 2004 and in a sworn affidavit in 2006. Cleveland's attorneys and Tomlinson argued Rothgery misapplied the law "while simultaneously relying on an unreasonable interpretation of fact." He allegedly ignored that the Prosecutor's Office and defense attorneys independently investigated Cleveland's case and the truth of Avery's affidavit, resulting in the parties stipulating to its truth and reliability. A federal appeals court also found Avery's affidavit credible, the attorneys and Tomlinson argued, after Rothgery decided in 2008 to deny Cleveland a new trial. Avery's affidavit, though 18 years old, is "newly-discovered" for the purposes of supporting a request for a new trial because Cleveland didn't have it and couldn't have produced it at his earlier trial, his attorneys and Tomlinson argued. Avery's affidavit "which recants all material evidence against the four men convicted of this crime, could not have been discovered and produced at trial or within the 120-day period following the verdict" which satisfies a legal requirement that Cleveland was "unavoidably prevented" from using it, they argued. Rothgery ruled exactly that in 2008, Tomlinson and Cleveland's attorneys argued, and granted him permission to file a request for a new trial on that basis. "That fact has not changed," they wrote. The state also has the burden to establish that Cleveland has no claim under the legal principle of "res judicata," which means the same issue can't be litigated after it has already been decided. But Tomlinson hasn't raised that issue on behalf of the state, so he and Cleveland's attorneys argued it can't be used to overrule the arguments made in the motion for permission to seek a new trial. In related matters, attorney Latina Bailey of the Ohio Crime Victim Justice Center in Powell filed notice Friday in Common Pleas Court that she is representing two members of the Blakely family in order to see that their victim's rights are protected. Representing victims identified only by the initials D.C. and T.B. who were described as siblings of Blakely, Bailey wrote that she was requesting the court "uphold and enforce their rights to be present and heard during all hearings and court dates." The two Blakely family members oppose the attempt by The Ohio 4 to get new trials and to have their charges dismissed, Bailey wrote. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.