CLEVELAND — Alfred Cleveland’s attorney told a federal judge Monday that his client’s murder conviction in the 1991 slaying of Marsha Blakely in Lorain should not stand.
“The conviction of petitioner Alfred Cleveland stands on weak legs,” defense attorney J. Philip Calabrese said during closing arguments of proceedings that could lead to Cleveland’s case being overturned.
But Assistant Ohio Attorney General Jerri Fosnaught argued that a jury rightfully found Cleveland guilty and that his conviction was upheld during earlier reviews in state court. She also said the time for Cleveland to argue in federal court that he is innocent has long passed.
U.S. District Judge Jack Zouhary already has thrown out Cleveland’s efforts to reopen his case once, but the U.S. 6th Circuit Court of Appeals ruled in 2012 that Cleveland and his lawyers had accumulated enough evidence that if his case went before a jury today, he would likely be cleared.
The appeals court ordered Zouhary to review the evidence in the case and make a new finding.
Cleveland, 44, has long denied involvement in the killing of Blakely, a crack addict whose battered body was found behind Westgate Shopping Center in Lorain about 9:15 a.m. Aug. 8, 1991. She had been stabbed, run over by a car and her throat had been cut.
Lorain police believe Blakely’s death is connected to the killing of Floyd Epps, whose body was discovered a few hours before Blakely was found, although no one has ever been charged in the Epps slaying.
In addition to Cleveland, Lenworth Edwards, John Edwards and Benson Davis, also known as Ian Davis, all were convicted of killing Blakely. Cleveland is eligible for parole next year.
Cleveland has maintained that he was in New York at the time of the killing, but prosecutors, police and the jury that convicted him all rejected that claim.
His lawyers argue that the recollection of a friend who remembers running into Cleveland in St. Albans, N.Y., just hours before Blakely was killed helps prove he wasn’t in Ohio at the time. Cleveland also has pointed to a phone bill his attorneys insist show he had called Lorain in the same time period also make it impossible for him to have driven to Ohio to kill Blakely and return to New York.
Fosnaught said Monday that evidence isn’t enough to justify overturning Cleveland’s conviction. For instance, she said the friend, David Donaphin, is a childhood friend of Cleveland’s and has an incentive to help him.
Fosnaught questioned what the phone bill of another friend of Cleveland’s proves since it doesn’t establish who made the phone calls.
Cleveland’s attorneys have argued that their most important piece of evidence showing their client is innocent comes in the form of William Avery Jr., a man with a lengthy criminal history who served as a key witness tying Cleveland and the others to the Blakely’s death.
Avery has since recanted his trial testimony, saying that he made up the story of Cleveland’s involvement at the behest of his father and to get reward money. His story has changed multiple times over the years, even before he went to the FBI in 2004 and claimed to have lied on the witness stand.
“Avery lied from the beginning,” Calabrese said.
He also said that a 2008 effort in state court to exonerate Cleveland fell apart after prosecutors threatened to charge Avery with perjury and send him to prison for 30 years. During that hearing, Avery’s request for immunity in exchange for his testimony was rejected and Lorain County Common Pleas Judge Christopher Rothgery read Avery his rights when he took the stand.
Avery ultimately refused to testify.
Fosnaught said it was appropriate for Avery to be warned about the consequences of changing his testimony. “He should go to jail if he perjured himself during four trials,” she said.
Outside of the courtroom, Cleveland has picked up one high-profile supporter. Former Ohio Attorney General Jim Petro filed a “friend of the court” brief in the case on Friday, arguing that Avery’s testimony should be discounted.
“Simply put, Mr. Cleveland’s conviction hangs solely upon the recanted testimony of someone who was paid to give that testimony and who angled to extort more for it,” Petro wrote. “And that is true regardless of whether or not there is any new evidence to support Mr. Cleveland’s innocence, which in this case there is.”
Zouhary did not give a time frame in which he would issue a decision in the case.