Red tape keeping men in prison

Randy Resh and Bob Gondor were 26 when the prison doors slid shut behind them for a Portage County murder they have always insisted they didn't commit.

Indeed, the case that put them there has long since begun to fall apart.

Time and again judges who reviewed the matter have questioned the validity of the evidence the state used -- and one even overturned their convictions, ordering new trials for both men two years ago.

Yet the 11th District Court of Appeals -- that for years has looked askance at the verdicts -- also has delayed rulings in the matter, causing one visiting judge to step down in frustration and, in the latest round of arguments, still has not issued an opinion after more than seven months to think about it.

Meanwhile, Randy Resh and Bob Gondor, friends since the first grade at Mantua Center Elementary School, sit and wait.

They are 40 now.

They see each other every day in the same pod at Grafton Correctional Institution -- free to chat, free to roam the yard after meals and headcounts, free to reflect on the passing of what many would call their prime of life.

The last time they were truly free, during the summer drought of 1988, Gondor worked as a carpenter, Resh as a roofer. Neither had ever been involved in a violent crime.

It was on Aug. 15 that year when the partially clad body of 31-year-old Connie Nardi, a divorced mother of two from Randolph Township, was found in a pond off Rapids Road in Geauga County's Troy Township.

The coroner said she had been strangled.

It took Geauga County authorities only 10 days to single out a 21-year-old Hiram man -- Troy Busta -- as the culprit and indict him on nine felony counts with a death penalty specification for aggravated murder.

Faced with the possibility of execution, Busta told his lawyers and their investigator -- in a 50-page recorded interview-- he was willing to do ``any-thing I have to do to get myself out of this.''

Months later, Busta managed to strike a deal to avoid death row.

If he would confess, Geauga County would allow him to plead guilty to a lesser charge.

So Busta confessed, and in the story he told, he said co-conspirators were involved: Resh and Gondor.

But Geauga County displayed no interest in prosecuting the two men and shipped what was left of the case to then Portage County Prosecutor David Norris, who handed it off to James Aylward, then the chief prosecutor of his criminal division.

But Aylward didn't bite -- refusing to take the case.

In a recent interview, Aylward, now the chief magistrate of Portage County Juvenile Court, explained that ``if there were co-conspirators'' it was a matter for Geauga County, not Portage County.

``It was their case and their obligation to prosecute it,'' Aylward said.

Nonetheless, Norris -- the prosecutor who four years later resigned from office in a drug scandal -- pressed the case and won guilty verdicts in jury trials against Resh and Gondor in 1990.

And he won on two significant points:

One was Busta's eyewitness account for both juries. He said Resh and Gondor were co-conspirators in an escapade in which the victim was slainwhile resisting sexual advances and that Gondor's leased 1988 Ford pickup was used to dispose of the body.

The second point was testimony by Dale Laux, a forensic scientist from the Ohio Bureau = [100.0]of Criminal Identification and Investigation. He said he found two dime-sized stains in the bedliner of Gondor's truck by using the chemical agent Luminol. The stains, he testified, were human blood.

But 12 years later, when Resh and Gondor won new trials in June 2002 after eight days of testimony in front of visiting judge Charles J. Bannon, both points were so thoroughly discredited that Bannon ruled the original guilty verdicts were ``not worthy of confidence.''

Busta's 50-page 1988 recorded interview, the judge said, was a blatant example of ``pressure being exerted on Busta to decide on what he was going to say to the police'' and, ultimately, to the juries that convicted Resh and Gondor.

Bannon said it also showed Busta's ``uncertainty as to the facts of the murder'' -- uncertainty that occurred only a month after the murder.

In fact, Busta's account was so difficult to follow that the private investigator his lawyers hired to help in his defense told Busta near the end of the interview that his story was ``starting to fall apart.''

Then appearing even more bewildered, Busta asked if anything was being done to investigate whether the victim's ex-husband or boyfriend might be involved in the murder.

In a 1999 review of the case, Richard J. Ofshe -- one of the nation's leading experts on criminal interrogation -- testified that the 1988 interview clearly showed Busta was going to be coached every step of the way as police and prosecutors tried to build a case against Resh and Gondor.

``That's the only deal that's on the table,'' Ofshe pointed out. ``This is a stunning example of attorneys working with someone to try to satisfy the demands of a police officer for testimony. . .even when they are told by their own client that he is willing to testify about anything, about anyone.''

As for the second point, the so-called bloodstains -- evidence that Judge Bannon found to be ``very important'' if Busta's story was credible -- turned out to be marks that were not bloodstains at all.

Furthermore, that piece of information was not discovered by the defense after the trials were over, but by the prosecution before either trial took place.

Yet neither jury was ever told.

Norris obtained the independent test of the alleged stains from the well-known Seriological Research Institute in Richmond, Cal.

Brian Wraxall, the institute's chief forensic blood expert, told Norris in a letter that ``no DNA material was found.''

In fact, Wraxall reported that two genetic markers -- Gm for Gamma and Km for Kappa -- also were not present, despite the fact that both markers are ``very stable in dried bloodstains.''

Yet Wraxall's analysis was never entered into evidence by the prosecution or the defense.

Instead, jurors heard from Laux, the BCI scientist, who assured the court that he found human blood in Gondor's truck by the use of the Luminol test.

The Wraxall letter was dated July 6, 1990 -- 13 days before Resh went to trial as the first of the alleged co-conspirators.

Defense attorneys said the Wraxall report was not in the prosecution's files; the prosecution said it was and both attorneys missed it.

Six years later, as Columbus lawyer James D. Owen began work on the post-conviction phase of the case, he followed up on that report and obtained a sworn statement from Wraxall saying the alleged blood stains were ``false positives.''

The bodily fluid best describing the stains, Wraxall concluded, was ``perspiration.'' Although that finding came long after the original trials, Bannon had it entered into evidence in his court and used it to support his decision.

In the end, basing his decision on the simple fact that none of this potentially exonerating evidence ever reached the Resh and Gondor juries, Bannon ruled that they had been denied their right to effective counsel.

If the juries would have had those facts, Bannon wrote, ``there is a reasonable probability that the result of the trials would have been different.''

Retired Cuyahoga County Judge William F. Chinnock, who preceded Bannon as the first visiting judge in the case in the late 1990s, said last month he was ``happy'' that new trials were ordered.

He called Bannon's handling of the case ``a very thorough analysis.''

Chinnock said he could not express an opinion on the guilt or innocence of Resh and Gondor, but he granted blanket discovery to their lawyers -- even permitting access to legally sacrosanct grand jury testimony.

Three months before the trials, court records show, the lead detective in the case, former Geauga County Sheriff's Lt. David Easthon, testified to the Portage County grand gury about the reasons he targeted Resh and Gondor.

As it turned out, Easthon was caught telling two different stories -- stories that contradicted each other -- by his own records.

While explaining how he began to develop suspects, he told the grand jury that Gondor tried to cover up his whereabouts on the Labor Day weekend after the murder. He said Gondor told him he was with his brother in Put-In-Bay, where they had met two women.

``Well, I did check that and he wasn't in Put-In-Bay,'' Easthon told the grand jury.

But Gondor actually was there with his brother Jim and the women. In Easthon's typewritten investigative records, dated Oct. 28, 1988, he wrote that he had interviewed the women and that both told him they were with the Gondors in Put-In-Bay on Labor Day weekend.

One of the women, in fact, told Easthon the Gondors ``walked them back to the ferry'' as she and her girlfriend were about to leave.

Concerns such as that, Chinnock said, created ``some pretty substantial concern that there was prosecutorial misconduct and/or possibly ineffective counsel'' during the months before the trials.

The 11th District Court of Appeals had expressed that concern, Chinnock said, when the case was sent to his court. He said he felt the appellate court had given him a ``road map'' to use for the complicated hearings.

Just four days into those hearings, however, Troy Busta's lawyers filed motions to stop the testimony that was beginning to show how Resh and Gondor might have been railroaded.

``While the Court of Appeals had expressed its concern about these men being in prison -- perhaps unjustifiably -- the court then took over two years to make a decision on this one issue of whether or not to let this other defendant in,'' Chinnock said.

Frustrated by the long delay, he stepped down from the case.

``I just thought: `This is really too extensive. Make a decision one way or another,' '' Chinnock said.

Busta eventually withdrew his motion to intervene, thus paving the way for the hearings before Bannon.

The last time the case was heard in open court, on Oct. 7, appellate judges William M. O'Neill, Cynthia Westcott Rice and Diane V. Grendell heard much of the same evidence that Bannon and Chinnock heard.

O'Neill, the presiding judge, was outspoken, calling the discredited blood evidence ``troubling'' and ``awfully, awfully persuasive'' for a decision upholding the new-trial orders.

As of June 14, Judge Bannon's decision to grant the men new trials will be 2 years old.

Meanwhile, Randy Resh and Bob Gondor, friends since the first grade at Mantua Center Elementary School, sit and wait.