The 9th District Court of Appeals ruled this week that Lorain County Common Pleas Judge James Miraldi erred when he rejected Covender’s request that he be allowed to argue for a new trial.
Miraldi was ordered to hold the hearing on whether the evidence Covender has gathered since his 2007 release from prison is enough to justify a new trial.
Covender has long maintained that he didn’t molest the girl or his then-stepson and that relatives coached the young children into leveling the allegations against him.
Prosecutors dropped the charges centering on the former stepson after he recanted his testimony, saying he had lied to win attention from the adults in his life. The former stepdaughter has also pushed to have the charges against Covender relating to her dropped because she has said she has no recollection of being molested.
They both urged the Ohio Parole Board to release Covender after he had spent 11 years behind bars.
Covender contends that counseling records from sessions his former stepdaughter attended in 1994 indicate that she had a problem with telling the truth and needed to work on the issue.
Former Lorain County Common Pleas Judge Lynett McGough refused to allow Covender’s attorneys to see those records before the case went to trial after she determined that there was nothing in the records that would help Covender’s case, according to the appeals court decision.
Miraldi ruled that Covender hadn’t shown any proof that he had been “unavoidably prevented” from learning about the evidence before 2011, when he finally obtained the records with the help of his former stepdaughter.
The appeals court disagreed.
“This court reverses the decision of the trial court because, under the circumstances, it is unreasonable to conclude that reasonable diligence required Mr. Covender to revisit the therapy records in the absence of any information that would have led him to believe the records might be helpful,” the appeals court wrote in its decision.
County Prosecutor Dennis Will, whose office has opposed granting Covender a new trial, said Thursday he doesn’t believe that the records would have made a difference during Covender’s original trial or would have any impact now.
He said witnesses during Covender’s trial brought up the issue of the girl’s honesty and a jury still found Covender guilty.
The records would simply be cumulative and aren’t enough to warrant a new trial, Will said.
This isn’t the first time Covender has sought a new trial since his release from prison. Miraldi granted his first request in 2007, but the appeals court overturned that decision. The judge has turned down Covender’s two subsequent requests.
W. Scott Ramsey, Covender’s attorney, did not return a call seeking comment Thursday.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.