Unluckiest Man on Death Row

Joe D'Ambrosio's story offers reasonable doubt about Ohio justice.

Infernofest, with the Ohio Express, the Music Explosion, and others other Mansfield Commerce Center, 246 East Fourth Street Saturday, November 17


Joe D'Ambrosio's father believed in the virtue of work. For decades, he punched the clock at General Electric, installing liners in train engines. He taught his only son that a job provides two rewards: a paycheck and self-respect.

Dad always told me, You work. I don't care if it's flipping burgers, you work,' D'Ambrosio recalls.

He intended to abide by his late father's credo, following an honorable discharge from the Army in 1985. The North Royalton native returned home after a four-year hitch that saw him awarded the Good Conduct and Army Achievement medals for his skill as a mechanic. He figured finding work in an auto shop would be easy. He found misfortune instead.

D'Ambrosio learned that his Army mechanic's certification carried no value in the private world -- he would need two years of training to become recertified. The $27,000 tuition may as well have been $27 million.

For the next three years, he pumped gas, installed car alarms, mowed lawns. He earned a paycheck, but pride proved more elusive. So he drowned his frustration at the Saloon, a Coventry Road bar that offered cheap drinks and the comfort of regulars.

D'Ambrosio had little else on his mind on August 31, 1988. At some point that Wednesday night, a voice pierced the pub's din. A gaunt man with a mustache said he was a foreman of a landscaping crew and asked if anyone needed work.

Landscaping sounded as good as anything else to D'Ambrosio. He introduced himself to Ed Espinoza, and the next day he met with Espinoza and Michael Keenan, owner of Sunshine Landscaping. Keenan hired him on the spot.

Less than a month later, he, Espinoza, and Keenan were in jail. The following February, D'Ambrosio was sentenced to death after a three-day trial -- likely the shortest capital case in state history.

Like almost every one of Ohio's 201 death-row inmates, D'Ambrosio claims innocence. But unlike the others, there are people who actually believe him. Inside the state Public Defender's Office, he is known as "the unluckiest man in the world." Two Ohio Supreme Court justices have argued his life should be spared. Death-penalty critics contend his case pulses with reasonable doubt.

D'Ambrosio appreciates the support. Still, he wishes he didn't need it.

"If I hadn't been in that bar that night and met Espinoza, I wouldn't be here now."

In September 1988, Tony Klann was 19. He looked younger. A flop-cut topped a boyish face; a rattail hinted at a free spirit. He scraped by as a deli stockboy and mowing lawns for Sunshine Landscaping. He used the money to party on life's fringes.

A haphazard student who struggled to finish high school, Klann had good attendance at the bars in Coventry and Little Italy. His friends were anyone with extra beer or pot and a couch to crash on. His girlfriend danced at a strip club. To Klann, midnight felt like noon.

"He liked people who were kind of living on the edge," says Richard Klann, Tony's father.

Richard and his then-wife, Diane, adopted Tony and his sister when they were toddlers. The Klanns represented the fifth and last set of parents for the siblings, a warm ending to their bleak foster-care odyssey.

Tony grew up "happy-go-lucky" despite a learning disability that his classmates teased him about, Richard recalls. As he grew older, he itched for freedom, leaving home at 18 with few plans and less money. "I emancipate myself," he wrote in a note to his father.

But it was a more practical Tony who met Richard for dinner at a Mayfield restaurant on Tuesday, September 20, 1988. He said he wanted to escape the drug-and-booze scene and start fresh. He talked about setting up his own landscaping business, an idea his father heartily endorsed.

"He was doing his own thing, finding his way," Richard says.

Cleveland homicide detectives Ernie Hayes and Mel Goldstein received word of a body floating in Doan Creek on Saturday afternoon, September 24. They found the victim's neck sliced from ear to ear; two puncture wounds exposed his trachea. His face, chest, back, right forearm, and left wrist were slashed. Half his forehead was bashed in. Most of his blood had drained away, turning his skin bone white.

The detectives scoured the creek bank near Martin Luther King Jr. Drive and East Boulevard for clues. "There was nothing there," Goldstein says.

In the late 1980s, the Cleveland homicide unit shone like few others, boasting an 80 percent "solve rate" on murder cases that ranked among the best for metro police forces nationwide. Success came as veteran detectives ran hard on the long leash let out by their superiors.

"You were free to do whatever you needed to do, so long as you got results," Hayes says.

Detective Leo Allen took over the case on Monday, September 26. His legwork bore results in a scant three hours.

Allen visited the Cuyahoga County morgue that morning on another case and wound up talking with three men -- Paul Lewis, James Russell, and Adam Flanik -- who were there to identify the body of a friend pulled from Doan Creek. None of them could be located for this story.

Lewis sometimes let Tony Klann stay at his Little Italy flat. Like Flanik and Russell, he knew Ed Espinoza and Michael Keenan from the neighborhood bars. He also had spoken to D'Ambrosio on occasion.

Lewis, nicknamed "Stoney" for his love of weed, said he last saw Klann alive on Friday night, September 23. He and Keenan bumped into each other around 8 p.m. that evening at the Saloon, where they had a drink before driving down Coventry Road to Coconut Joe's. Both bars have since closed.

Lewis said Keenan gave him small amounts of cocaine and pot that night. Keenan, then 39, had run afoul of the law at an early age. A troubled loner as a boy, he was a juvenile offender who didn't shed his bad habits with age. He owned a crowded rap sheet, including convictions for rape and selling drugs. Lewis, 36 at the time, had convictions in at least two states for drug possession, grand theft, and aggravated burglary, among other offenses.

Soon after entering Coconut Joe's, Lewis saw Klann walk in, followed by D'Ambrosio and Espinoza a short time later. Within minutes, Espinoza pulled Klann into the men's room and screamed at him, Lewis recalled.

The scene repeated two or three times during the evening, Lewis later testified. He left the bar around midnight without knowing what had riled Espinoza.

James Russell, known to friends as "Lightfoot," rented an apartment a few blocks from Lewis on East 120th Street. He lived with his girlfriend and a baby she claimed was his. The unemployed couple survived on public assistance.

Around 3 a.m., Russell heard a pounding at his door. He dressed before letting Espinoza, Keenan, and D'Ambrosio -- all three of them drunk -- into the apartment.

Keenan and Espinoza said "they wanted [Lewis's] butt" for stealing drugs from them, Russell recalled in court. Espinoza wielded a baseball bat. D'Ambrosio carried a hunting knife, he said.

The three left after Russell told them he had no idea of Lewis's whereabouts. Twenty minutes later, Espinoza returned alone, bat in hand. He said to "tell Stoney we got a contract out on him," Russell testified.

Espinoza added that he, Keenan, and D'Ambrosio had Tony Klann in Keenan's pickup truck outside. Klann was "dead meat," Espinoza told Russell, who denied seeing the truck or Klann that morning.

Adam Flanik, who lived with his girlfriend near Lewis in an apartment on Fairview Court, recalled a similar incident at his place the same morning. Flanik, walking outside after hearing a loud noise, said he saw Keenan banging on a tenant's door and yelling that "he was going to kill Stoney."

Standing 10 feet from Keenan's pickup in a dimly lit alley, Flanik said he could see Espinoza, D'Ambrosio, and Klann sitting in the truck. Klann occupied a rear seat, while D'Ambrosio, sitting in front, held a knife close to his face, Flanik testified. "[Klann] was sitting there, and he didn't look too happy."

Flanik told Keenan he had the wrong apartment and pointed him toward Lewis's unit. Espinoza followed. When they reached the door, Espinoza kicked it in.

"[Espinoza] said, 'I want him. I'm going to kill him,'" Flanik testified. "And he kept rambling on about it the whole time he was there."

Finding Lewis's place empty, the four men drove off.

Detective Allen relayed the details to his partner downtown. Around noon, officers from Cleveland and Cleveland Heights moved in on D'Ambrosio's redbrick apartment building on Coventry Road.

They knew that Espinoza, recently tossed out by his wife, also lived in the small basement unit. Police arrested the men and confiscated three hunting knives and a black aluminum baseball bat. They later seized Keenan's truck, which was parked near the complex, and nabbed him early the next morning at a Strongsville motel.

Each man was charged with aggravated murder, kidnapping, and aggravated burglary. But while the items recovered and the accounts from Lewis, Russell, and Flanik were suggestive, investigators lacked an eyewitness. They needed someone who could clinch the case.

With authorities offering to reduce the murder charge to voluntary manslaughter, Espinoza filled in the blanks.

On the day he berated Klann at Coconut Joe's, Espinoza said he drank a case of beer and snorted cocaine, then topped that off with five tequila shots at the bar. After leaving Coconut Joe's around 2 a.m., he walked with D'Ambrosio to his apartment.

Keenan arrived sometime later, saying Lewis had stolen drugs from him. Espinoza said he and D'Ambrosio decided to help Keenan hunt for Lewis. Espinoza said he brought along a baseball bat; D'Ambrosio grabbed two hunting knives.

After leaving Russell's apartment, they spotted Klann walking up Murray Hill. Keenan pulled over, corralled the teenager, and "pushed him in the truck," Espinoza recalled. Klann, forced to sit in back next to D'Ambrosio, said he knew nothing of Lewis's whereabouts.

The four men dropped by Flanik's complex and left soon after. As they drove, Espinoza banged Klann in the head with the bat. They returned to Russell's place before driving to Doan Creek.

Espinoza said Keenan parked on the creek bank along Martin Luther King Jr. Drive. Keenan yanked Klann out of the truck. The two stood at creek's edge as Keenan held a knife to the younger man's neck. Klann again said he had no idea where Lewis was. Keenan jerked the blade across Klann's throat, staggering him, then pushed him into the creek. He ordered D'Ambrosio to "finish him off."

According to Espinoza, D'Ambrosio took the knife, leaped in the water, and chased Klann. "Please don't kill me!" Klann screamed. A minute or two later, D'Ambrosio climbed out of the creek alone.

The three men got back in the truck and drove away.

D'Ambrosio and Keenan's story offers the sharpest of contrasts. Both deny that D'Ambrosio carried a knife when they left his apartment. They say they offered Klann a ride that night, and he hopped in on his own. They insist they didn't kill him.

In their version, Keenan turned over the truck to Espinoza after the four men left Russell's apartment the second time. Keenan often lent his pickup to D'Ambrosio and Espinoza, if the crew had jobs scheduled for the following day. He jumped into the car of his girlfriend, who trailed them, and Espinoza drove D'Ambrosio home so he could go to sleep. Espinoza and Klann then left in the truck.

Keenan stopped back at D'Ambrosio's apartment around noon to roust his two employees. "Eddie came up to me and he's like 'Don't tell anybody I was out with Anthony last night,'" D'Ambrosio said at his trial.

He and Keenan say the next time they heard Klann's name, police were hauling them to jail.

D'Ambrosio admits he's no angel, that back then he drank too much and partied too hard. He had the requisite tough-guy buzz cut and tattooed forearms on his 6-foot-2, 200-pound frame. But family and friends described him as someone more apt to play peacemaker than instigator. Before his arrest at age 27, the only blotches on his record were two DWIs.

Espinoza, by contrast, had a dishonorable discharge from the Army. He conceded in court that he was a welfare cheat, a drug abuser, and an alcoholic, and admitted to roughing up Klann once before.

But it was Espinoza the legal system embraced. Then 26, he copped a plea and received a reduced sentence of 15 to 75 years. In exchange, he became the prosecution's linchpin witness in the trials of Keenan and D'Ambrosio. A jury sentenced Keenan to death in February 1989. The same month, a three-judge panel would decide D'Ambrosio's fate.

Bill Mason and Carmen Marino prosecuted D'Ambrosio. Marino says one rule trumps all others in capital cases: "If you ask for the death penalty," he says, "you need someone who was at the scene to testify."

The state appointed Paul Cassidy and Ralph DeFranco to defend D'Ambrosio. Both attorneys say their client's story about going home to sleep complicated their task.

"He never established that he wasn't there" at Doan Creek, DeFranco says. "There were people -- most especially Espinoza -- who said he was there."

That assumes Espinoza told the truth, D'Ambrosio says. "I went to bed. They say, 'Prove it.' How can you prove it when you're by yourself?"

Thirteen years after Klann's death, questions persist about Espinoza's account.

Klann's autopsy showed only two pints of blood left in his body. The human body holds 8 to 10 pints. Despite the bloody nature of Klann's death, authorities found no forensic evidence -- hair, bits of flesh -- along the creek bank to support Espinoza's story.

Detectives Hayes and Goldstein, now retired, surmised after combing the bank that Klann was slain at another location and thrown in the water. Both men, though certain that police nailed the right suspects, still trust in their theory.

"There was absolutely no blood on the bank," Hayes says. "I always thought he was killed somewhere else and dumped in."

The discrepancy would seem crucial. Yet Cassidy and DeFranco never put the two detectives on the stand. Instead, the defense called Detective Allen, who testified that he didn't visit the creek until "four to five days" after Klann's body was found.

Allen admitted his own search of Keenan's truck revealed no weapons or "trace evidence" of blood or hair. But the defense neglected to ask if forensic experts tested the truck for blood or creek water. The attorneys likewise failed to prod Allen on why none of D'Ambrosio's or Keenan's clothes contained traces of blood.

Allen, now retired and living in Florida, did not respond to interview requests. Cassidy and DeFranco say time has dimmed their recollection of specifics.

Father Neil Kookoothe knows D'Ambrosio's case front to back. The Catholic priest, attorney, and registered nurse regularly visits death-row inmates and counts D'Ambrosio as "one of the few I really and truly believe is innocent." He's skeptical of Espinoza's account, doubting that three drunken men could erase the trail of evidence to such a gory crime.

"When you look at how Espinoza said Klann was killed and all of the blood loss," he says, "how can you not find a single spot of blood or a torn piece of clothing or anything by the creek or in the truck?"

Steven Gaines was the manager of Coconut Joe's in 1988. He testified at D'Ambrosio's trial that, on the night Paul Lewis saw Espinoza yelling at Klann, Espinoza also threatened other customers.

He told two couples sitting at another table, "If you don't stop staring at me . . . I'm going to kick your fucking ass," Gaines recounted.

D'Ambrosio and Keenan were unable to cool Espinoza, so Gaines kicked them out. Espinoza continued to fume in the parking lot, brandishing a beer mug and cursing at passersby. Gaines finally called police, prompting D'Ambrosio and Keenan to shepherd Espinoza away.

Gaines now works as a deputy clerk of courts for the City of Cleveland. He attended Cleveland Heights High School with Klann, and he remembers him as a good-natured "follower." Espinoza's behavior that night worried Gaines.

"He kept putting his arm around Tony, and Tony didn't look comfortable," Gaines says. "[Espinoza] was drinking heavily -- shots of tequila. I had a bad feeling that night."

In court, Gaines contradicted Lewis's and Espinoza's testimony on a major point. He said that Espinoza's eruption occurred on Thursday night, September 22, not Friday. The bar held a 25-cent tequila shot special every Thursday night, and Espinoza, Keenan, and D'Ambrosio ordered several shots that evening.

It's a critical distinction. Investigators and the county coroner pegged Klann's time of death as late Friday or early Saturday. D'Ambrosio and Keenan admit to being with Klann for part of Thursday night and giving him a lift early Friday morning. Both men deny they were with him Friday evening.

Keenan said in court he spent Friday night with family and friends. D'Ambrosio testified that he tagged along with Keenan for part of that evening, then headed home and met a group of friends.

Defense attorneys Cassidy and DeFranco mounted mild resistance to the prosecution's Friday-Saturday timeline by putting Gaines on the stand. They also quizzed Lewis and Espinoza about whether they had visited Coconut Joe's on Thursday or Friday.

But D'Ambrosio's counsel made no effort to press Allen on the disparity. Later, in closing arguments, Cassidy and DeFranco skipped any mention of the confusion over days, instead sticking to the police chronology. The two lawyers remain unconvinced that they blundered in forgoing the timeline fight.

"It's on or about -- it doesn't have to be right to the minute," DeFranco says. "It could be Thursday night or Friday night."

Cleveland attorney Paul Mancino, who represented D'Ambrosio in one of his first appeals, disagrees. "In a lot of cases, the time doesn't matter. In this case, it meant a lot. People were fixing what they saw based on a day of the week. And if you move it to Friday instead of Thursday, it helps [the prosecution's] case."

Espinoza, now out of prison, did not respond to interview requests. But the shakiness of his memory emerges in the two statements he gave police after his arrest on Monday, September 26.

In the first statement, he said the events in question occurred on Friday night and Saturday morning. In the second, dated September 28, he shifted the timeline to Thursday and Friday.

National Weather Service reports from that Friday show Cleveland received rain in the predawn hours. A truck driving along the banks of Doan Creek, as Espinoza alleged, likely would have created grooves in the soft ground, detectives say.

Hayes and Goldstein saw no truck tracks or footprints by the creek.

Adam Flanik testified that he first met D'Ambrosio two weeks prior to Klann's murder. D'Ambrosio's recollection differs. He insists he met Flanik months before at a party, where he angered Flanik by flirting with a woman D'Ambrosio later learned was his girlfriend. The two men argued -- an exchange verified in a witness statement obtained by D'Ambrosio after his trial ended.

Flanik testified that he saw D'Ambrosio in the front seat of Keenan's pickup, holding a knife on Klann. Espinoza had said that D'Ambrosio sat in the back with Klann. But D'Ambrosio claims his lawyers left it to him to challenge Flanik's credibility.

"They didn't investigate this case at all," he says. "The court went and gave me some joke-clowns who didn't do their job."

Besides D'Ambrosio, defense attorneys put just three witnesses on the stand: Gaines, another Coconut Joe's employee, and a childhood friend of D'Ambrosio's. The rest of their case consisted of cross-examining the state's nine witnesses.

To a degree, D'Ambrosio hurt his own cause. He admitted in court that he didn't see Keenan's girlfriend following the truck that night, only the car that Keenan claimed she was driving. The defense decided against calling her as a witness.

Cassidy and DeFranco say a court-appointed investigator checked out other leads. The search yielded little. No one could corroborate D'Ambrosio's claim that he was not with Klann on Friday night.

"We didn't have a positive defense -- that's what hobbled us something awful," Cassidy says. "All we had were denials."

But while working on D'Ambrosio's appeal, Paul Mancino says he tracked down a Little Italy barmaid who said she saw Klann on Friday night -- alone and alive at a time when, according to Espinoza's account, he should have been on his way to die.

The prosecution introduced two of the three knives recovered from D'Ambrosio's apartment at his trial. Forensic tests were inconclusive about whether either was used to kill Klann.

Prosecutors Marino and Mason were undeterred. Marino told the three-judge panel that investigators found no blood on the larger of the two knives -- a bowie knife that Espinoza identified as the murder weapon. The defense nonetheless agreed to allow it into evidence. The deal would trip D'Ambrosio on appeal.

Klann suffered stab wounds of varying size, including three to his chest. Two were about 2 inches long; the other, 1-1/2 inches long.

The bowie knife had a blade 2-1/16 inches wide -- seemingly too wide to cause the smaller wound. Yet Coroner Elizabeth Balraj testified that all of Klann's injuries could have been caused by the knife and asserted that the blade could create a wound that small because bodies "expand and contract during exhaling and inhaling."

Ken Murray, an attorney familiar with D'Ambrosio's case, dubiously refers to Balraj's analysis as "The Expandable Body Theory."

"It's just another questionable part of the entire case," he says.

When attorneys John Norton and John Higgins appealed D'Ambrosio's conviction to the Ohio Supreme Court, they challenged Balraj's testimony as "speculative." The court has ruled in several cases that speculative medical opinions are inadmissible.

But Justice A. William Sweeney, author of the court's unanimous opinion affirming D'Ambrosio's conviction, wrote that the "defendant waived this issue by not objecting to it at trial."

Cassidy and DeFranco saw no need to object. Nor did they bring in a medical expert to contest Balraj's testimony that Klann could have screamed, as Espinoza claimed, with two large holes in his trachea.

"Balraj is an expert," DeFranco says. "There's not a whole lot of people who are more capable than her. She's one of the best in the country."

The rationale baffles Father Kookoothe. "How can you not at least try to challenge the coroner? It defies common sense."

"That little boy was a brother to me," Espinoza said of Tony Klann after his arrest.

Cassidy and DeFranco pointed out in court that Espinoza threatened his "little brother" throughout the last night of his life. They stressed that it was Espinoza who hit Klann with a bat. They revealed his previous physical altercation with Klann.

The defense asked Espinoza to explain why he never tried to stop the killing of his "little brother," why he spent much of the weekend after Klann's death with D'Ambrosio and Keenan though he felt his "life was in danger," why he waited until his arrest to tell police about Klann's murder.

"I didn't know how to go about getting help," Espinoza testified.

The prosecution's key witness denied killing Klann when Cassidy and DeFranco grilled him. Their attempts to discredit Espinoza were adequate, legal experts say. The problem, they argue, is that the cross-examination meant next to nothing. The reason comes down to a tangled bit of legal minutiae.

Judge Michael Corrigan presided over Keenan's jury trial a week prior to D'Ambrosio's case. As a prelude to that trial, Corrigan oversaw Espinoza's plea bargain -- a deal that would allow him to avoid a death sentence if he delivered on the stand. Corrigan reminded him that his sentencing would occur after both trials ended.

Meanwhile, Cassidy and DeFranco persuaded D'Ambrosio to waive his right to a jury trial. His case went before a panel of three judges: Paul Matia, Leo Spellacy -- and Corrigan.

In bench trials, judges serve as jury. Paul Mancino maintains that Corrigan's presence in D'Ambrosio's trial smacked of bias, because he had already presided over the trial of Keenan, who was convicted on all counts. As a result, Mancino says, the judge may have sized up Espinoza's credibility well before the opening gavel fell in D'Ambrosio's trial. "They should have never waived the jury. Why would you want the same judge who had the Keenan trial?"

Corrigan dismisses the bias charge. "There's no conflict of interest. It's not unusual for a judge to be trying co-defendants."

Like Mancino, attorneys Norton and Higgins raised the matter on appeal. The state Supreme Court swatted away the argument, in part because "the defendant never objected to Judge Corrigan's presence on the three-judge panel."

David Doughten, one of the state's foremost death-penalty attorneys, doubts the wisdom of waiving a jury trial in any capital case. A jury provides better odds of staying off death row, he says. Only one of 12 jurors must oppose a death sentence to quash it, compared to one of three judges in a bench trial.

"Waiving a jury trial and trying a case to a three-judge panel is essentially tantamount to suicide in most death-penalty cases," Doughten says.

Adds Mancino: "I don't think any jury would have given [D'Ambrosio] a death sentence."

Even prosecutor Marino makes an argument for jury trials when he says, "I don't think I've ever had a [capital] case with a three-judge panel that came back with anything less than a death penalty."

Lawyers say privately that choosing a bench trial benefits attorneys more than defendants, since jury trials are generally considered harder work. Cassidy and DeFranco counter that Klann's grisly autopsy photos would have shocked a jury into voting for the death penalty. "The jury can be influenced and horrified," DeFranco says.

But on February 23, 1989, the three-judge panel sentenced D'Ambrosio to die.

The judges' announcement followed a mitigation hearing February 21-22, at which D'Ambrosio made his bid for leniency. His ailing mother and three older sisters sat in the courtroom. It was among the last times he would see his family together. Dorothy D'Ambrosio died in 1998, and his sisters no longer visit him. They declined comment for this story.

He told the judges about his childhood, his father passing away when he was 17, his military career. "It was going very well," DeFranco recalls. "But the last thing he said was 'But I had absolutely nothing to do with this.' I think that might have made a difference between a life sentence and the death penalty."

DeFranco says even a tacit admission of guilt may have convinced the judges to show mercy. Yet D'Ambrosio has no regrets about claiming innocence or for spurning deals to testify against Keenan -- even after he sat on death row and Keenan had won a new trial. Keenan rejected similar offers.

"To do so," D'Ambrosio says, "I would have to swear to tell the truth and then tell a bald-faced lie. To me, my eternal soul is much more important than my life. I would be doing what Espinoza did."

D'Ambrosio does regret allowing his attorneys to waive a jury trial. He says he didn't know better then, but now feels his clean past would have persuaded at least one juror to vote against the death penalty.

DeFranco makes the point that, despite Keenan's gaining a new trial in 1993, his second jury also sentenced him to death. But D'Ambrosio walked into court without a Keenan-like criminal history. That alone might have swayed a jury, as it apparently did former Ohio Supreme Court Justice Craig Wright.

When the court upheld D'Ambrosio's death sentence in 1995, Wright wrote a dissenting opinion with which Justice Paul Pfeifer concurred. Both men still feel the same today about D'Ambrosio.

"During the past ten and one-half years, I have had the ofttimes trying duty of reviewing more than six-score capital cases," Wright wrote. "I must say that only two or three of these cases involved persons whom society would have any interest in rehabilitating. Joseph D'Ambrosio . . . is an exception to the general rule just stated."

Espinoza served 12 years at the Marion Correctional Institution before the state paroled him in August. "How can they let that murderer out and fight with all they got to keep me here?" D'Ambrosio says by phone from the Mansfield Correctional Institution. "It makes no sense to me at all."

Attorneys and others familiar with D'Ambrosio's case echo the disbelief. Their sentiments are inspired by his inept legal defense as much as by faith in his innocence.

"Is his case a miscarriage of justice? I think that it absolutely is," Ken Murray says. He provided informal counsel to D'Ambrosio when he lived in Ohio. Now Murray stays in touch despite being an assistant federal public defender in Phoenix. He's too appalled to lose interest.

"When you look at everything in the case and you ask, 'Is this how we represent someone whose life is at stake?' The answer should be 'No.'"

The failure of Cassidy and DeFranco to object to numerous statements made by prosecutors hampered D'Ambrosio's appeals. In particular, the defense neglected to contest what appellate attorneys alleged was prosecutorial misconduct.

One crucial point concerned "improper statements" made by Marino. Appellate attorneys said that he embellished several points, including "misleading" assertions about Espinoza's credibility.

Both the Eighth District Court of Appeals and the state Supreme Court torpedoed the misconduct charges. Justice Sweeney offered a typical admonition when he wrote that, while some claims lacked merit, "those with merit were waived" because the defense did not object at trial.

The non-objections grow in consequence, considering that Keenan's attorneys won him a second trial on the grounds that Marino engaged in prosecutorial misconduct. Yet D'Ambrosio's legal woes didn't end at trial. His appellate attorneys fumbled as well.

The attorney who appealed his death sentence to the Supreme Court in 1995 never met with him. John Ghazoul also made the bizarre decision to waive his right to verbally argue the case. Two years ago, the state disbarred Ghazoul after a conviction on felony fraud charges.

In addition, when Mancino found the barmaid who said she saw Klann alive on Friday night, state law prevented him from raising her statement on appeal.

Ohio splits capital case appeals in two. Direct appeals address testimony, evidence, and other matters already raised at trial. Post-conviction appeals explore new evidence and testimony.

Mancino handled D'Ambrosio's direct appeal, which meant he could not bring up the barmaid's statement. Cleveland lawyer Daniel Shields took on his post-conviction appeal. Inexplicably, Shields waited until the day before a state-imposed deadline to file one. At the last minute, he begged David Doughten for help.

Doughten did what he could, slapping together a boilerplate petition that referenced no new evidence or testimony. The holes showed. The court of appeals denied the petition without a hearing in 1996.

The ruling was devastating. It barred D'Ambrosio from presenting new evidence on appeal until his case moved to the federal level -- which didn't happen until last summer.

"Joe was just screwed," Doughten says.

Shields admits he bungled the appeal, but blames the snafu on D'Ambrosio's "real difficult" disposition. D'Ambrosio faults Shields for meeting with him on only a few occasions -- an accusation Shields disputes. Murray, who says he tried several times to reach Shields regarding D'Ambrosio's appeal, claims he received one or two return calls before Shields "dropped off the face of the earth."

The post-conviction debacle caught the attention of Ohio Public Defender David Bodiker, who appealed the court's decision last year. The original petition gave him little to build on, and the appellate court again spiked the case.

Joe Bodine, an assistant state public defender, says his office knows well D'Ambrosio's hard-luck reputation. "The post-conviction appeal is vital. There's no question his should have been handled better."

D'Ambrosio has struggled to undo the damage wrought by his attorneys. He pores over court transcripts and types notes in his cell, pulling apart testimony and police statements with a mechanic's zeal. He has pinpointed what he believes are at least 125 inconsistencies in Espinoza's accounts -- among his two police statements and testimony at three trials -- of what happened the night of Klann's death. He has filed petitions and briefs on his own behalf, only to see the courts throw them out without explanation.

"He has yet to get a fair shot during this whole thing," Murray says.

His fortune may be changing. D'Ambrosio says he now has statements from people who can vouch for his whereabouts on Friday evening and from witnesses who saw Klann alive that night -- statements that could prove his innocence. He has given the details to Henry DeBaggis, the Cleveland attorney in charge of his federal appeals.

DeBaggis declined comment at length -- a justifiably cautious approach to a case littered with legal gaffes. But he confirms he has filed motions seeking to introduce new evidence and testimony into court.

"I try not to think about what's happened or what could happen," says D'Ambrosio, who at 39 has spent one-third of his life on death row. "I just work on my case."

Richard Klann attended Keenan's and D'Ambrosio's trials. The pain of losing his son burned at full flame -- he wanted the death penalty for both men -- but his bitterness has subsided.

Klann, a sales rep for a Cleveland sports graphics company, still believes Espinoza, Keenan, and D'Ambrosio all played a part in his son's death. Yet he sometimes wonders about Espinoza's honesty. "Eddie's testimony obviously helped convict the other two. It's gone through my mind more than once -- maybe Eddie did it and implicated Joe to get off himself. I'll never know."

From where they sit on death row, D'Ambrosio and Keenan share no such doubts about Espinoza's guilt or why he testified against them. "I think [the police] scared the hell out of him," Keenan says. "I think they said they were going to fry him."

Marino denies authorities coerced Espinoza to turn state's evidence. "It doesn't work like that," he says.

Whatever the truth, Espinoza is awaiting transfer back to his native Chicago to begin vocational parole. He has spent the past several weeks at the Salvation Army's Harbor Light facility downtown. He did not respond to messages left for him there.

"He's too afraid to talk to anyone," a Harbor Light worker said. "He's afraid for his life."

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