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2 wrongly convicted men await their chance for payback

Two men wrongfully imprisoned 13 years for a murder they didn't commit are now poised to take on the state over payback for their time on the shelf. But delays in the prosecution of another man connected to the crime is holding up their hopes of a payout from the state.

In 1998, Tom Siller and Walter Zimmer were convicted for the slaying of Alice Zolkowski, an elderly woman savagely beaten in her Slavic Village home in 1997. The star witness for the prosecution was Jason Smith, a known drug dealer. Dubious forensics and Smith's word alone sent Siller and Zimmer away, but more recently unearthed DNA evidence pointed toward Smith as the culprit.

Siller and Zimmer were released in March 2011. Smith was arrested in Atlanta four months later and extradited to face charges of perjury and obstruction of justice ("Call It Even," July 2011).

Cuyahoga County Prosecutor Richard Bombik, who tried the original case, said in August that he wanted to bring Smith to justice once the Anthony Sowell serial murder trial was over. Though Sowell was sentenced later that month, little has happened with Smith since.

Therein lies the hang-up for Siller and Zimmer, who were advised to hold their suit until the Smith ordeal plays out.

After 10 months of delays requested by Smith's defense team, Siller and Zimmer aren't waiting any longer: Their suit against the state kicked off in earnest — or at least as earnestly as a complicated and unprecedented wrongful-imprisonment complaint can be — on May 15. Compensation varies by case, but Ohio generally provides just north of $40,000 per year of wrongful incarceration.

The state has until June 4 to file a motion against Siller's and Zimmer's complaint. Their attorney has until June 29 to answer. After that, a judge will decide whether the wrongful-imprisonment case will go forward. Either way, someone will appeal, and the process will drag out even longer.

Siller and Zimmer's case is unique in that the murder charges against them were dropped only after the two pleaded to felony counts of theft for allegedly stealing thousands of dollars from the victim — charges that were never brought in the first place and for which there is no suitable evidence. If the two hadn't accepted the deals, they would have sat in prison as the appeals process played out. By reluctantly signing on, they basically agreed to "time served" — no payback for their trouble, and no consequences for the prosecutors who got it wrong.

At the time of the deal, one of Siller's lawyers noted that prosecutors showed little interest in justice. "They seemed to be massaging their wounded egos and trying to stave off a civil suit for the wrongful convictions," said Ashlie Case.

That will be the crux of their argument going forward.

"The state will probably argue that because there was a guilty plea for time served for the aggravated thefts, that as a matter of law, that prohibits anything under wrongful imprisonment," says their attorney, Terry Gilbert. "The case is entirely unique, and it's an unusual twist on the wrongful-imprisonment law.

"The way I look at it, these were fictional charges that were conjured up in order to get them out," he says. "Even for what the prosecution says they allegedly did, the punishment would be a probational offense — maybe a year in prison at most. But there's no factual basis for any aggravated theft. They spent 13 years wrongfully imprisoned, and the theft charges are a sham."

When asked for comment, the prosecutor's office offered only confirmation that another pre-trial date in the Smith proceedings was set for May 22, noting that additional continuances could pile up. Gilbert doesn't expect Smith to see the inside of a courtroom until after summer.

The state isn't the only one in Siller and Zimmer's crosshairs: Gilbert says a federal lawsuit against the City of Cleveland and Joseph Serowick, the former Cleveland forensics expert who screwed up the original DNA tests and allegedly lied about it, could be next.

Since his release, Siller has bounced around a handful of masonry jobs and is now doing air-duct installation. Zimmer eventually landed a job driving a truck.

"The most important thing is for everybody to know the truth, and to have closure for Alice," says Siller. "True closure, instead of the make-believe closure the prosecutors created."

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