Chapter 11

APPEAL

Under  Ohio’s  death  penalty  law,  an  appeal is automatic.  Defense  Attorney  Tyack  indicated he would ask for a new trial.

On July 5, 1984, associate defense attorney Robert Suhr  filed an  affidavit with  the Hocking County Common Pleas Court which  stated that a “Jane Doe” said she saw an unidentified  man follow a boy and girl  into the  cornfield on  the day  Annette and Todd disappeared.

In  his  motion  for  a  new  trial Suhr indicated someone  other than  Dale Johnston  had killed the teen-agers. “Jane Doe’s” identity was not revealed because  he thought  her life  potentially was  in danger, however prosecutor  Veidt later identified her as Shirley Frazier.

His affidavits included  one from Frazier’s sister who  said Frazier  never mentioned  seeing the two teenagers with the man.

“Doe”  said  she  had  heard  shots  and  a girl’s screams coming  from the cornfield.  “Doe” did not make  any  connection  until  searchers  found the torsos, heads, legs and  arms. She then identified the girl as having blond, shoulder-length hair and the boy as lanky with dark brown hair.

The “taller”  man that followed  them was “perhaps in  his  forties,”  with  “dark  hair, heavy [eye] brows, a prominent chin  and large ears.” She said he  was  wearing   dark-colored  overalls  and  no eyeglasses.  Johnston, in  his late  forties, when the murders  took place, has white  hair and wears glasses.

Watching the scene from a West Logan house 50 feet away,   “Doe”  said   the  man   appeared  to   be “smirking,” and  “the girl seemed to  be angry and stomped her foot.

“After  I  heard  what  sounded  like  three rapid gunshots,  I heard  a girl’s  voice screaming  ‘My God, you’ve  killed him’ or  ‘My God, you’ve  shot him.’”  After several  more shots,  everything was quiet, the affidavit stated.

“I  started to  get into  my car,”  she continued, “and the same adult man  was again standing on the [railroad] tracks, first looking up and down...and then he stared directly at me.” “Doe” said she had reported   the  incident   to  the   Logan  police department in late October or early November 1982. She later reported it to Sheriff Jim Jones.

Other   affidavits   filed   with   Suhr’s  motion indicated that at 2.a.m. on Oct. 5, Clarence Mason heard  “high-pitched,  frenzied  conversation  and noises”  coming from  the cornfield  area. He  was walking along  the tracks—a habitual  shortcut to work.  That night,  he  said,  he turned  back and drove to  work because he  feared he was  “walking into a dope party or a wild activity.”

Special  investigator Harry  Walker, hired  by the defense team,  said he was told  by Captain Mowery that  [Annette]  “Cooper  was  promiscuous  with a number  of men  [and] that  these activities  were common knowledge in the community.”

Two weeks later, Suhr filed additional affidavits. John  Bartow  said  he  heard  “a  series of three shots. There  was a short pause,  then a volley of four  or five,”  At 5:45  p.m. on  Oct. 4. Charles Blosser, then  17, said he  saw a nude  couple, “a brownish,  black-haired  guy  and  a  blond-haired girl” in the cornfield.

Both men  provided statements to  the Logan police two weeks  after the body parts  had been found by the search party.

The motion  for a new  trial was rejected  by the original  three-judge  panel.  Rationale  for the conviction   had  been   promised  to  Johnston’s attorneys,  but,  according  to  Robert Suhr, “We have never received that.”

The three judges rejected the defense’s contention that new evidence warranted  a new trial. In their opinion, they  said, “Most of the  matters set out in the affidavits filed on behalf of the defendant were  or  could  have  been  presented  during the trial...and    [are    not]    therefore,    newly discovered.”

The judges also  dismissed defense’s argument that Hocking County Prosecutor  Veidt withheld evidence from the defense attorneys.

“Those  three judges  aren’t going  to admit  they made a  mistake,” Sarah Johnston  said. “I really didn’t expect them to change their minds.”