Jurors following the law and with newly discovered evidence available to them wouldn’t convict Alfred Cleveland if he were tried again for the 1991 murder of Marsha Blakely, a federal appeals court has determined.
In a decision handed down Monday, Cleveland’s 43rd birthday, the 6th U.S. Circuit Court of Appeals ruled that “Cleveland has presented a credible claim of actual innocence” that is enough to overcome the time limits that a U.S. District judge previously determined prevented him from receiving a new trial.
Last year, U.S. District Judge Jack Zouhary rejected Cleveland’s request to consider new evidence gathered by his family and the Ohio Innocence Project because it was beyond the statute of limitations that a prisoner can file a writ of habeas corpus challenging the legality of his incarceration.
But the appeals court wrote in its decision that there is an exception to the time limit when it comes to convicts who claim they are innocent. Cleveland’s new evidence meets that burden of proof, the appeals court concluded.
Cleveland has long maintained that he didn’t kill Blakely, a crack addict and prostitute whose battered body was found behind Westgate Shopping Center in Lorain around 9:15 a.m. on Aug. 8, 1991. Her throat had been slit, and she had been stabbed 20 times and run over by a car.
Jennifer Bergeron, Cleveland’s attorney, said her client has never wavered in his story.
“He’s always maintained that he had nothing to do with it and that he was in New York,” she said.
Although Monday’s decision doesn’t guarantee a new trial, it will require Zouhary to review the new evidence and issue a new ruling.
Roberta Cleveland, Alfred Cleveland’s wife, said she was overcome with happiness by the decision and believes her husband will be freed soon. Alfred Cleveland is serving a prison term of 20 years to life.
“When it’s something you didn’t do and you’re innocent, you don’t give up,” Roberta Cleveland said.
The appeals court wrote that there was no physical evidence linking Cleveland to the scene of the crime and the only witness who placed him there was William Avery Jr., an admitted drug user who has told shifting versions of the events over the years that led up to Blakely’s slaying.
Roberta Cleveland said that if her husband gets a new trial, she has faith he’ll be cleared.
“We’re not worried if they try him again,” she said. “All they had is a guy who recanted his testimony.”
Avery’s testimony was key in convicting Cleveland and three other men, Lenworth Edwards, Benson Davis and John Edwards, of murder charges for Blakely’s death. Her death was believed by authorities to be connected to the killing of Floyd Epps, who knew both Avery and Blakely.
No one has ever been charged with killing Epps, whose body was found at 1:25 a.m. Aug. 8, 1991, about eight hours before Blakely’s body was discovered.
Avery, whose story changed several times before and during the trials of the men and who was incarcerated for perjury, contacted an FBI agent in 2004 and recanted his testimony. In 2006, he swore in an affidavit that he lied about Cleveland being in Lorain because he wanted to claim reward money for information about Blakely’s death.
At the time, Avery wrote, he owed Cleveland $5,000. He also wrote that his father, who he contends threatened to kill him and his family if he didn’t frame Cleveland, was the one who pushed him to lie about what he knew about the murder.
In 2008, Avery appeared in a hearing before Lorain County Common Pleas Judge Christopher Rothgery to testify that he had lied during Cleveland’s initial trial, but prosecutors threatened to charge him with perjury. Avery exercised his right against self-incrimination and refused to testify.
Prosecutors have long maintained that Avery’s constantly changing story doesn’t do much to bolster his credibility, but the appeals court wrote that unlike his previous efforts to alter his testimony — he once demanded more money from prosecutors to testify — his latest recantation has been done without reward.
Additionally, the appeals court wrote, forensic tests determined that a piece of rubber collected from where Epps’ body was found had Blakely’s blood on it. That, the appeals court wrote, leads to the conclusion that Blakely was killed before Epps, shortening the timeframe in which she could have been killed from between midnight and 3 a.m. as originally believed to between midnight and 1:25 a.m.
Cleveland insisted before, during and after his trial that he was in New York City the week that Blakely was killed. During the trial, he presented evidence he was in New York around 10 a.m. Aug. 8, 1991, the day the bodies were found.
Cleveland’s legal team also has provided an affidavit from a childhood friend, David Donaphin, who wrote that he ran into Cleveland in St. Albans, N.Y., sometime between 10 p.m. and midnight on Aug. 7, 1991.
The last flight from New York City to Cleveland on that day departed at 10:40 p.m., according to flight records gathered by Cleveland’s attorneys, making it impossible for him to have flown to Ohio in time to kill Blakely based on the new time frame of her death.
The new evidence “provides strong support for Cleveland’s claim that he was in New York at the time of Blakely’s murder and undercuts the state’s contention that Cleveland would have been able to travel from New York to Ohio in time to commit the murder,” the appeals court wrote.
County Prosecutor Dennis Will said he has not read the appeals court decision and couldn’t comment until he does so.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.