Tomlinson seeking new trial, dismissal of charges against 'The Ohio 4' in 1991 Lorain murder

ELYRIA — With a month left in office, Lorain County Prosecutor J.D. Tomlinson is seeking a new trial for four men who were convicted in the 1990s of murdering Marsha Blakely in August 1991 in Lorain. Tomlinson joined defense counsel for Alfred Cleveland; Benson Davis, also known as Ian Davis; John Edwards; and Lenworth Edwards in filing motions Monday in Lorain County Common Pleas Court to overturn their murder convictions and release two of the men still held in prison. "If the court grants this motion, I will move to dismiss all charges against these four men," Tomlinson wrote in a news release announcing his decision. Alfred Cleveland and Lenworth Edwards are free on parole, and on Nov. 25 joined their attorneys, supporters and multiple exonerees in calling for Tomlinson to help them overturn their convictions and exonerate them during a rally in downtown Elyria. Davis and John Edwards remain in prison. Supporters have dubbed the men "The Ohio 4." "As Lorain County prosecutor, I hold as sacred my duty to seek justice — not merely to secure convictions," Tomlinson wrote. "Justice demands fairness, integrity and an unwavering commitment to truth, even when it challenges past decisions." Cleveland's case is assigned to Judge Christopher Rothgery's court. John Edwards' case is in Judge John Miraldi's court. Lenworth Edwards and Davis' cases are assigned to Judge Raymond Ewers' court. Tomlinson, a one-term Democratic prosecutor, was defeated for reelection by Republican Tony Cillo on Nov. 5. He wrote that the decision "was not made lightly" but came "after a painstaking review of the evidence, testimony and circumstances surrounding these convictions." Blakely's murder was "devastating" and "sent shockwaves throughout our community," Tomlinson wrote, adding that he is "comitted to honoring her memory and ensuring that justice prevails." "The original investigators in this case worked with dedication and professionalism under difficult circumstances, pursuing answers in the face of a horrific tragedy," he wrote. "This is not an effort to cast blame, but rather an acknowledgement that new evidence and deeper scrutiny demand action." Josh Dubin, executive director of the Perlmutter Center for Legal Justice at Yeshiva University's Benjamin N. Cardozo School of Law in New York City and an attorney for Cleveland and John Edwards, said Monday that Tomlinson's decision is "a long time coming." "These men have suffered for far too long in a case where they are quite obviously innocent, and at a very minimum where these convictions should have been overturned many years ago," he said. The convictions of the four men "have no integrity at this point," Dubin said. "We're relieved, and very confident, and have every reason to believe the judge will sign the order and have their names cleared once and for all," he said. Witness recants Tomlinson wrote that the testimony of William Avery Jr., which tied all four men to the murder, "has since unraveled entirely." Avery's statements changed "several times" and he only made them after learning of a $2,000 reward for information in the case. Avery has since stated publicly that he only testified against the four men for the money. Avery later demanded $10,000 to testify, and when that was rejected he refused to take the stand and later admitted lying so he could claim the reward, according to Tomlinson. Further, Avery allegedly claimed that he had been threatened into recanting after an "unsubstantiated threat" from Lenworth Edwards and a Lorain County Jail guard, the prosecutor wrote. "Despite these dubious claims, the State of Ohio continued to utilize Avery's tainted testimony in four subsequent trials," Tomlinson wrote. Avery further recanted his testimony in a statement to the FBI in 2004 and implicated his father, William Avery Sr., as the killer, Tomlinson wrote. Avery Jr. did so again in 2006, saying his original statement was "a story my father told me to tell." The defendants didn't have the chance to present Avery Jr.'s recantations in court or argue that Avery Jr. had implicated his father as a suspect, Tomlinson wrote. "These recantations, combined with the complete lack of physical evidence linking the defendants to the crime, undermine the very foundation of these convictions," he wrote. Blakely was allegedly beaten for 20 minutes by the four men inside a small apartment. Photos of the alleged crime scene don't support that, Tomlinson wrote, and witnesses including Blakely's boyfriend who visited the apartment during the alleged time frame of the killing saw no evidence of an assault. Avery also contradicted his own statements at trial, according to Tomlinson. A car allegedly used to transport Blakley's "bloody and beaten body" to where it was found following her murder contained no evidence she had ever been in the car, nor did her body show any traces of fibers from the car, Tomlinson wrote. Avery also couldn't identify the suspect vehicle at trial "further eroding the reliability of his account," Tomlinson wrote. Blood found on Lenworth Edwards' jean jacket belonged to him, not Blakely, and Avery testified the defendants were wearing black — a description that doesn't match Lenworth Edwards' alleged wardrobe. Cleveland, for his part, provided multiple alibi witnesses who said he was in Queens, New York, at the time of the murder, according to affidavits reviewed by The Chronicle as well as Tomlinson's news release. Other witnesses placed John Edwards in a local bar at the time Avery said the crime happened, Tomlinson wrote. Tomlinson wrote that he visited crime scenes, reviewed reports, trial transcripts and testimony and met with parties on both sides of the case while investigating it, more than 30 years later. "I searched for evidence to corroborate the convictions, but instead, I found serious flaws in the case that cast overhwelming doubt — doubt in the physical evidence, doubt in Avery (Jr.'s) testimony, and doubt in the state's ability to meet its burdens of proof," he wrote. Former Chief Assistant Lorain County Prosecutor Jonathan Rosenbaum, according to Tomlinson "acknowledged to the Chronicle-Telegram that the physical evidence was 'lacking'" and described William Avery Jr.'s testimony as "the missing piece of the puzzle,'" when — according to Tomlinson — it was not the missing piece, "it was the fatal flaw." "Without it there is no credible evidence linking these four men to the crime," Tomlinson wrote. Prosecutors are responsible for ensuring their cases are built on "solid, reliable evidence, not speculation or conjecture," Tomlinson wrote. "In this case, the reliance on William Avery Jr.'s testimony, despite its numerous inconsistencies and inherent flaws, reflects a failure to uphold that responsibility," he wrote. Tomlinson expressed "deepest condolences" to Blakely's family and friends, calling her 1991 murder "a senseless tragedy." "This decision does not diminish the gravity of her loss, or the pain suffered by those who loved her. This decision, as well, is made to ensure that the pursuit of justice remains rooted in truth and fairness," he wrote. Former prosecutor weighs in In an email to The Chronicle, Rosenbaum wrote that Tomlinson and his chief of staff, former Common Pleas Judge James Burge, "have chosen to disregard the verdicts of juries, the evidence contained in the trial (transcripts), and the decisions of multiple courts upholding convictions in an effort to falsely portray themselves as seeking justice." "The same witnesses and evidence supported four verdicts by four separate juries and before four different judges regarding the (conspiracy) to distribute drugs and butally torture and murder Marsha Blakely," he wrote. "It is more than likely that these four also killed Floyd Epps because his body was found very near Marsha's and within hours of (finding) Marsha's body. The events that lead up to Marsha's murder began in Floyd's apartment." Though Lorain police suspected that the same people who killed Epps also killed Blakely, no one has ever been charged with Epps' murder. Neither Tomlinson nor Burge "have ever tried a crimnal case as a prosecutor and (unfortunately) chose to continue their (careers) as criminal defense attorneys even though they are duty-bound to represent the State of Ohio and its victims through the Prosecutor's Office," Rosenbaum wrote. "Despite their lack of (experience) as (career) prosecutors, Tomlinson and Burge have placed themselves above the law in total disregard of jury verdicts, the lawful decisions of four trial courts, and decisions of appellate and reviewing courts affirming these convictions," he wrote. "It appears Tomlinson and Burge will wrongfully sacrifice convictions to gain political advantage while falsely claiming they are seeking justice for the wrongfully accused." To his statement, Rosenbaum attached a copy of a 31-page 2014 U.S. District Court decision upholding Cleveland's 1996 conviction. Rosenbaum said Judge Jack Zouhary "rejected all the reasons and arguments advanced by Cleveland's defense lawyers." In his Dec. 12, 2014, opinion, Zouhary wrote that it was "undisputed" the four men were trafficking drugs from New York City to Lorain and that Blakely was a crack cocaine addict. Only whether the four men murdered Blakely was in dispute, he wrote. William Avery Jr. demanded payment for testimony, recanted his testimony when he wasn't paid and caused a mistrial, was jailed for perjury when he testified that he lied under oath, and also changed his story, according to Zouhary's reading of the case. The Lorain County Prosecutor's Office conceded that Cleveland was in New York both the day of and morning after Blakely's murder, but he was convicted at trial in January 1996, Zouhary wrote. Multiple appeals failed. Zouhary's findings supported Rosenbaum's prosecution, while also noting that the federal appeals court had concerns about it. The U.S. 6th Circuit Court of Appeals in 2012 sent Cleveland's case back to Zouhary after it ruled that Cleveland presented a "credible claim of actual innocence." Cleveland's petition had been based on the allegation that his conviction was the result "of testimony the state knew or should have known was perjured, the deliberate suppression of exculpatory evidence, flagrant prosecutorial misconduct throughout the trial, and ineffective assistance of counsel," according to federal court records. Despite that finding, Zouhary disagreed and rejected Cleveland's petition for a certificate of appealability, finding he had "not made a substantial showing of the denial of a constitutional right," according to federal court records. The federal appeals court had ruled that William Avery Jr.'s recantation was "more credible than his trial testimony or pretrial statments," Zouhary wrote, because he did so of his own free will and stuck to his new story. Flight records showed Cleveland couldn't have made it onto a fight from New York to Cleveland in time to kill Blakely, the 6th Cicuit ruled. Zouhary did not find that Rosenbaum committed prosecutorial misconduct, as Cleveland had alleged. Cleveland had to establish that Rosenbaum's conduct and remarks were improper, that the impropriety was "flagrant" and resulted in a violation of his due process, but Zouhary found none of that to be the case. "A review of the prosecutor's arguments and questioning in the aggregate in no way supports the conclusion that Cleveland was denied due process," the judge wrote. Rosenbaum sarcastically wrote that Tomlinson and Burge apparently "know more than all of the career police officers, judges and prosecutors combined, as well as the honest citizens who serve on juries." "They all do so in an effort to protect this community, which includes the victims of crimes and those accused of commiting crimes," he wrote. In May, Tomlinson released a lengthy public statement in which he said Rosenbaum wanted "revenge" on him for dismissing charges against Nancy Smith and Joseph Allen in the 1990s Head Start child sexual abuse case. Rosenbaum prosecuted that case and got Smith and Allen convicted. Tomlinson's office asked, and Lorain County Common Pleas Judge Chris Cook agreed, to drop the charges against Smith and Allen in 2022. Allen was freed from prison. Smith sued Rosenbaum, Lorain County, the city of Lorain, multiple former Lorain police officers and Margie Grondin, the mother of one of the alleged child victims, in U.S. District Court in Cleveland earlier this year, in a case still pending before Judge David Ruiz. "I have provided good government, including the exoneration of two innocent people that Rosenbaum wrongfully convicted by withholding evidence of their innocence," Tomlinson wrote in his statement in May. Dubin said it was "unfortunate" that investigators and prosecutors can sometimes fail to see evidence or even the question of innocence. "Unfortunately we have an epidemic of tunnel vision sometimes, where you believe one thing when you're investigating a case and you don't have the open mindedness and you're not malleable, and the law says you have to be open to each and every outcome and they just weren't here," he said of the investigators and prosecutors in The Ohio 4 murder convictions. "Everything was leading them to the direct opposite of what William Avery Jr. told them and they just weren't willing to look at that," Dubin said. "It's a horrific tragedy. A woman was murdered, and four men were held responsible for something they didn't do." The Battistelli affair Rosenbaum also used his statement to hit out at Tomlinson and Burge, who earlier this year fought Avon Lake resident James Barilla's attempt to get public records from the Prosecutor's Office related to an employment settlement Tomlinson made with a former employee whom he had dated. Rosenbaum is representing Barilla, also an attorney, in the ongoing public records lawsuit against Tomlinson and the Prosecutor's Office in front of Visiting Judge Thomas Teodosio. "It seems that Tomlinson and Burge know as much about the criminal justice system as they do about public records laws that are designed to prevent them from concealing a $100,00 payment of taxpaye'rs money to old paramours," Rosenbaum wrote. That last sentence was a reference to Tomlinson's October 2023 payment of a $100,000 settlement to Jennifer Battistelli, his former employee, girlfriend and also a former client. When he took office in January 2021, Tomlinson hired Battistelli as his director of public relations/community outreach coordinator. They began dating several months later, in a relationship Battistelli later said was abusive. She took videos of arguments she had in which Tomlinson swore at and belittled her. In one, he allegedly smacked her in the head, though that couldn't be seen on the video. Tomlinson denied any physical abuse and said he has never hit a woman. He and Burge were charged with felonies in Elyria Municipal Court for allegedly trying to intimidate Battistelli into recanting her accusations, but a visiting judge dismissed those charges on Nov. 15 when Battistelli failed to show up in court for a preliminary hearing. Despite being the one who paid his former employee/girlfirend a $100,000 taxpayer-funded settlement then tried to keep it out of the public eye, Tomlinson blamed the controversy and resulting criminal charges on political opponents including Barilla, Cillo, Rosenbaum, Sheriff Phil Stammitti and former prosecutor Dennis Will. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.