LUCAS COUNTY, OHIO
State of Ohio Plaintiff
VS.
Eric Babos Defendant
CASE NO. CR-04-3699
JUDGE GARY COOK
MOTION FOR LEAVE TO FILE NEW TRIAL MOTION
(Hearing Requested)
Now comes the defendant, Eric Babos, and respectfully requests, pursuant to Ohio Rule
of Criminal Procedure 33(B), this Honorable Court grant him leave to file a Motion for a New
Trial. The basis for the request is three-fold. First, a witness interviewed by the police, John
Mark Klawitter, provided law enforcement with favorable evidence to the defense. The
statements provided by Mr. Klawitter were not disclosed to the defense. Second, the jury heard
faulty scientific testimony in regards to the existence of gunshot residue (GSR) being found on
Babos’s clothing. The jury was led to conclude and believe the findings for GSR were positive,
when in fact, the tests were negative. The state failed to disclose this during their expert’s
testimony or in a report prepared by that expert. The failure of the prosecutor to divulge
favorable evidence to the defense prior to, during or after Mr. Babos’ trial for Murder, was a
violation of the Ohio Rules of Discovery and Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct.
1194.
In addition, Babos has discovered new evidence in the form of expert opinions regarding
the identity of a primary or background voice on the phone recordings of the decedent John
Riebe on the day of the homicide which was purportedly that of the defendant Eric Babos. The
affidavits of experts presented here establish that the background voice in question was that of an
African-American male, and not a Caucasian. Defendant Babos is Caucasian. Finally, there is
reason to believe that key witnesses in the case, both employed at A-1 Heating, corroborate this
important new development.
The reasons in support of this motion are further explained in the attached brief. Copies
of supporting documentation are attached. The claim is based upon the actual innocence of
defendant Eric Babos. The failure to provide exculpatory evidence including but not limited to
the above deprived Mr. Babos his fundamental right to due process under both the state and
federal constitutions.
Respectfully Submitted,
Jeffrey J. Helmick #0040197
1119 Adams Street, 2nd Floor
Toledo, OH 43604
(419) 243-3800
Fax: (419) 243-4046
David L. Doughten #0002847
4403 St. Clair Avenue
Cleveland, OH 44103
216.361.1112
ddoughten@yahoo.com
Counsel for Defendant Eric Babos
CERTIFICATE OF SERVICE
A copy of the foregoing was hand delivered upon the Lucas County Prosecutor’s Office,
Lucas County Courthouse, 800 Adams Street, Suite 250, Toledo, Ohio 43624 this day of
February, 2010.
JEFFREY J. HELMICK
Counsel For Defendant
BRIEF IN SUPPORT
Procedural Background
On December 29, 2004, a Lucas County grand jury indicted Eric Babos for the murder of
John Riebe pursuant to R.C. §2903.02. The charge included a three-year firearm specification
pursuant to R.C. §2929.141. A jury found Babos guilty of the charged offense and the
specification on August 5, 2005.
On November 18, 2005, Babos filed a motion for a new trial. This Court held a hearing
on October 17, 2005. This Court denied the motion and subsequently sentenced Babos to serve a
life sentence with parole eligibility after 18 years.
On March 21, 2006, Babos filed a second motion for new trial based on newly discovered
evidence that had been withheld by the prosecution. On May 12, 2006, this Court conducted a
second new trial hearing. This Court also denied Babos’ second motion.
Babos filed a timely appeal on both new trial denials to the Sixth District Court of
Appeals. On September 1, 2006, the Sixth District consolidated the appeals into one case. On
May 18, 2007, the court of appeals affirmed the conviction. State v. Babos, 2007 Ohio 2393.
The Ohio Supreme Court refused to accept jurisdiction of any issues raised in State v. Babos, 115
Ohio St.3d 1441, 2007 Ohio 5567. The United States Supreme Court denied his writ of certiorari
on April 21, 2008. Babos v. Ohio, 2008 U.S. Lexis 3491 (U.S. April 21, 2008).
Babos filed a pro se application to re-open his direct appeal pursuant to Ohio App. R.
26(B). The Sixth District denied the application on February 15, 2008 in State v. Babos, 2008
Ohio 599. Babos did not file a timely appeal the denial to the Ohio Supreme Court. His attempt
to file a delayed jurisdictional appeal was rejected on March 24, 2009.
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Babos also filed a pro se motion to vacate pursuant to R.C. §2953.21 in the Lucas County
Common Pleas Court on February 20, 2007. This Court denied the petition on June 1, 2007.
Babos timely appealed the denial. The Sixth District Court of Appeals affirmed the dismissal of
the postconviction on February 15, 2008. State v. Babos, 2008 Ohio 599. Babos timely filed a
jurisdictional appeal to the Ohio Supreme Court. The Ohio Supreme Court refused to accept
jurisdiction on June 18, 2008. State v. Babos, 118 Ohio St.3d 1464, 2008 Ohio 2823.
Babos filed a petition seeking the issuance of a writ of habeas corpus in the United States
District Court for the Northern District of Ohio on April 20, 2009. His petition is pending at the
time of the filing of this motion.
Factual Overview
The prosecution argued at trial that Defendant Babos killed his longtime friend John
Riebe because Riebe owed him a relatively small amount of money, $150.00. Babos, whom
Riebe had hired to assist on some of his jobs (Tr., II, at 241-42), purportedly made a series of
telephone calls to the owner and employees of A-1 Heating on the day of the homicide. A-1
Heating provided work to Riebe, who worked as an independent contractor. It was argued that
Babos was attempting to obtain Riebe’s check to satisfy the debt. At some point, before anyone
attempted to actually obtain the check, someone killed Riebe. The prosecution argued it was
Babos.
In the second new trial motion, for which this Court held a hearing on May 12, 2006, the
defense argued that another man, Valynn Rodgers, was the more likely suspect. The defense
argued this before the jury at trial, but did not have the additional incriminating information later
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obtained and presented here to place before the jury or use to impeach the state’s case.
The facts set forth here are a summary of the trial evidence. The evidence withheld and
the newly discovered evidence which form the basis for Babos’ of this motion were not available
for jury consideration.
Phone Calls
The prosecution presented evidence of a series of telephone calls made from John Riebe’s
home phone to A-1 Heating near the time of the murder on December 15, 2004. As stated above,
Riebe had been doing subcontracting work for A-1. (Tr. II, at 241-42) He had hired Babos to
help him on some of those jobs. At 3:03 p.m. on the day of the murder, Riebe called A-1 on an
unpublished number used by A-1 service technicians and subcontractors. (Id. at 244, 293) Riebe
asked A-1 manager Dan Boyle if his check was ready. Boyle replied affirmatively. (Id. at 24647.)
At 3:06 p.m., a second call was placed from the Riebe home to A-1, again answered by
Boyle. (Id. at 247, 294.) The caller said, “I want my fucking money.” Boyle asked who was on
the line. The caller identified himself as “Eric, John’s helper.” (Id. at 247-48.) The caller
placed Riebe on the phone, and Boyle told him that the check was waiting. (Id. at 249.) During
his short conversation with Boyle, Riebe made no reference to the identity of the person who had
made the call. (Id. at 254.) Boyle had briefly met Babos a couple days previously, but he
testified that he would not recognize Babos from that meeting. (Id. at 248, 253.)
At 3:08 p.m., a third call was placed from Riebe’s home to A-1. (Id. at 294, 270.) A-1
owner Bob Pfeifer placed the call on hold before talking to anyone. (Id. at 269.) At 3:12 p.m., a
fourth call was placed from Riebe’s home to A-1, answered again by Pfeifer. (Id. at 294.) The
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caller identified himself as “Eric” and said, “I want the money that you owe me.” Pfeifer
responded, “I don’t owe you any money. Mr. Riebe owes you money. Have John call me.” (Id.
at 270.)
John Riebe’s daughters got home from school on the day of the murder at approximately
3:16 p.m. to 3:20 p.m. (Id. at 340, 418.) When they entered the house, they found their father
dead on the floor. (Id. at 440.) Because Riebe was alive at 3:06 p.m., when he talked to Boyle at
A-1 Heating and dead by 3:20 p.m. when his daughters arrived home from school, it appeared
that he was killed by the person who was involved in the series of phone calls from Riebe’s home
to A-1 between 3:03 p.m. and 3:12 p.m. Therefore, much of the prosecution’s case rested upon
proving the identity of the caller who identified himself as “Eric.”
At 4:06 p.m. on December 15, 2004, Eric Babos called the Riebe home, and Riebe’s
teenage daughter Jamie answered. (Id. at 294, 465.) Babos said that he needed to talk to Riebe
and that he wanted his money. Jamie responded that there was something wrong with her dad
and that he could not come to the phone. (Id. at 467-68.) She testified that she was upset during
the conversation. (Id. at 486.) Within a minute or so of the call to Jamie Riebe, Babos used his
cell phone to call the published number at A-1 Heating. (Id. at 294-95.) When Bob Pfeifer
answered, Babos identified himself as “Eric,” stated that Riebe was in the hospital, and said that
he wanted the $150 that was owed to him. (Id. at 272-73.)
Pfeifer naturally assumed that he was speaking to the same person who had called an hour
earlier and identified himself as “Eric,” and testified that he recognized the voice on this last call
as being the same as the voice on the 3:12 p.m. call. (Id. at 280.) Pfeifer had never spoken to
Babos, either on the phone or in person, prior to 3:12 p.m. on the day of the murder. (Id. at 262
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63.) A-1 Heating received no further calls from Babos or anyone purporting to be him, and
Babos never went to A-1 to try to collect the money. (Id. at 255.)
Shortly before making the first call to A-1 Heating at 3:03 p.m., Riebe placed a call to the
cell phone of his estranged wife, Lisa Richman. Although Riebe and Richman had been
separated for eleven years, they talked daily. (Id. at 303-04.) At 2:58 p.m., Riebe left a message
on Richman’s voicemail asking her to pick up his check. (Id. at 317.) A minute later, Riebe
left a second message, his voice now panicky, asking Richman to hurry and call him back
because “someone” was there waiting for his money. (Id.) Riebe did not indicate who that
“someone” was, even though Richman and Babos had known each other for many years. (Id. at
313, 318.)
Lack of Corroborating Evidence
Two weeks after the murder, gunshot residue was found on the left sleeve of a shirt that
Babos allegedly wore on the day of the murder. (Tr., III at 577.) However, no gunshot residue
was found on the right sleeve, despite the fact that Babos is right-handed. (Id.) State witness
Dan Davison, a trace evidence expert employed by Ohio’s Bureau of Criminal Investigation &
Identification (“BCI”), testified that the timing between the incident and the sampling “can be
important” and that particles of gunshot residue can be transferred easily from one person to
another. (Id. at 584.) Therefore, his lab prefers to get items within two hours of an incident. (Id.
at 585.) A positive test indicates one of three possibilities, according to Davison: (1) the person
fired a gun, (2) the person was present when a gun was fired, or (3) the person had gunshot
residue transferred to him from another person or object. (Id. at 594.) Forensic chemist Elana
Foster testified that she did a hand sample on Babos to look for gunpowder. (Tr. IV, at 754.)
5
Unlike the test of the shirt, the hand sample was collected within hours of the murder. The
results were “inconclusive,” meaning that no evidence was found that Babos had fired a gun. (Id.
at 755.) Foster’s lab never describes any results as “negative.” Results are either “positive” or
“inconclusive.” (Id. at 758.)
Other evidence that could have exonerated Babos inexplicably was never gathered. Riebe’s
telephone was bagged at the scene for fingerprinting, but the fingerprinting was never performed
since Sergeant Colwell of the Sylvania Township Police Department already knew that Babos spent
a lot of time at the Riebe home. (Tr. IV, at 718.) Nonetheless, if the phone had shown no prints for
Babos and had shown prints for another suspect, such as Valynn Rodgers, that evidence would have
been extremely powerful in exonerating Babos, as the the killer almost certainly used Riebe’s phone
on the day of the murder. In addition, DNA testing was not performed on the cigarette butts in
Riebe’s ash tray, (Tr. III, at 616.) the crack pipe found in Riebe’s hand was not dusted for
fingerprints, (Tr. IV, at 724) and neither Valynn Rodgers’ DNA nor his fingerprints were ever tested
against anything found in the Riebe home. (Id. at 834.)
Alibi
On December 16, 2004, several hours after Riebe’s death, Eric Babos initiated an interview
with detectives. Babos informed them about the phone calls that he actually made shortly after 4:00
p.m. to Riebe’s daughter and to A-1 Heating. He informed the detectives that he working at his
brother’s home at the time of the murder, that he was picked up by his brother later in the afternoon,
and that he and his brother went to Lowe’s to buy a Christmas tree. (Id. at 826-27.) Defendant
Babos’ brother, Greg Babos, and father, Steve Babos, corroborated these events with their trial
testimony.
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I. Overview of Issues
The convictions of defendant Eric Babos were based upon the jury hearing (1) the testimony
of witnesses who testified that Babos had been attempting to collect money from the decedent John
Riebe; (2) that Babos had gunshot residue on his clothing; (3) that Babos had lied in his statement
to police that the alleged residue may have resulted from the handling of his brother’s handgun, a
handgun unrelated to the offense; and (4) that he was with Riebe shortly before the homicide,
threatening Riebe if he did not pay the debt.
New evidence addressed here establishes that another suspect was more apt to be the
perpetrator, that the state’s ballistics expert incorrectly testified that the gunshot residue tests were
inconclusive when in fact the tests were negative, and that the person apparently with Riebe as Riebe
made desperate phone calls shortly before his death was a person of African-American heritage, and
therefore could not have been Babos.
This Court should grant leave and allow a subsequent full hearing to explore the issues.
II. Leave Requirement - Procedural History
Ohio Rule of Criminal Procedure 33(B) holds in relevant part:
Application for a new trial shall be made by motion which, except for the cause of
newly discovered evidence, shall be filed within fourteen days after the verdict was
rendered, or the decision of the court where a trial by jury has been waived, unless
it is made to appear by clear and convincing proof that the defendant was
unavoidably prevented from filing his motion for a new trial, in which case the
motion shall be filed within seven days from the order of the court finding that the
defendant was avoidably prevented from filing such motion within the time provided
7
herein.
Motions for new trial on account of newly discovered evidence shall be filed within
one hundred twenty days after the day upon which the verdict was rendered, of the
decision of the court where trial by jury has been waived. If it is made to appear by
clear and convincing proof that the defendant was unavoidably prevented from the
discovery of the evidence upon which he must rely, such motion shall be filed within
seven days from an order of the court finding that he was unavoidably prevented
from discovering the evidence within the one hundred twenty day period.
Ohio Rule of Criminal Procedure 33(A) states in relevant part:
A new trial may be granted on motion of the defendant for any of the following
causes affecting materially his substantial rights:
(2)
Misconduct of the jury, prosecuting attorney or witnesses for the state;
* * *
(6)
When new evidence material to the defense is discovered which the defendant could
not with reasonable diligence have discovered and produced at trial.
Present Case - Factual and Procedural Background
As noted above, this motion is based in part upon four exhibits: the affidavits of John Mark
Klawitter, Stephen J. Scharren, Robert Leonard and John R. Nixon. Each of the affidavits alone
may justify the granting of a new trial. Buttressing this evidence is the affidavit of Milisa Sharon
Babos. Cumulatively, the exhibits clearly establish the inaccuracy of the Babos verdict.
A.
John Mark Klawitter
Mr. Klawitter did not testified at trial. In his affidavit, Klawitter avers that he met with police
and provided them the information discussed below. Despite the favorable nature of his statement,
the defense was not provided Klawitter’s statement at the time of trial. See Affidavit of John Mark
Klawitter, attached hereto and incorporated herein as Exhibit A.
8
Klawitter met Eric Babos in 1993. Babos began working for him shortly after their meeting
as a painter on various jobs. The two men worked together on and off over the years, until his arrest
in 2004 for the murder of John Riebe. Klawitter met John Riebe through Babos and saw Riebe
approximately ten times over the period of years he knew him. His relationship with Riebe was
social.
On Friday, December 10, 2004, five days before John Riebe’s death, Klawitter drove Babos
to Riebe’s home on Talmadge Road in Lucas County, Ohio. Accompanying the two men to John’s
home was Ed Stohler, a mutual friend. The three men arrived at Riebe’s home in the early evening,
shortly after dark. Riebe, who was alone, welcomed them into his home.
Klawitter and Babos left shortly thereafter for a trip to buy beer, then returned to Riebe’s
home and drank beer and smoked some crack cocaine. Riebe supplied the beer and drugs. After all
of the cocaine was used, John called someone named “Carter” to arrange for delivery of more
cocaine. Klawitter had met Carter on prior occasions while partying.
Sometime after Riebe’s call, a man Klawitter recognized as Carter appeared at John’s door.
Klawitter watched Riebe buy more cocaine from Carter. Riebe paid Carter, stating that was the last
of his money. Carter left shortly thereafter.
Later, Riebe made a call. Afterward, a young woman named “Michelle” arrived and first
partied with Reibe and then with the remaining three.
After all the cocaine was used, Riebe made another telephone call to obtain more cocaine that
evening. Approximately thirty minutes later, Klawitter heard a knock at the front door. Riebe
answered the door. A man whom Klawitter had not seen before entered the residence. The man who
entered was introduced by Riebe to the rest of us as “J.R.” J.R. was an African-American male, at
9
least six feet tall, in his early thirties. He had short, dark hair and was wearing a long, black coat.
After this brief introduction, Riebe returned to the kitchen where Michelle was waiting. J.R.
remained in the living room area and looked at the three men, Eric Babos, Ed Stohler and Klawitter.
J.R. then said to them, “Are you guys cops? You look like cops.” Babos responded to him,
saying “Do we look like cops?”, gesturing to the clothing worn by Babos and Klawitter. Babos and
Klawitter were wearing painter’s pants and Sherwin-Williams t-shirts, which were splattered with
paint. J.R. then reached into his pocket with his right hand and pulling out a handgun, which he then
used to sweep across the room, covering the room, including the area where we were sitting.
While doing so, J.R. said, “I’ve been to prison and I don’t give a fuck.”
This frightened Klawitter. He told Eric to shut his mouth. J.R. then put the gun away and
walked into the kitchen. J.R. left shortly thereafter without saying anything.
After he left, John Riebe came out of the kitchen and had more crack cocaine.
Klawitter did not see Riebe give J.R. any money. The people who remained continued to party.
Michelle left shortly thereafter. Babos, Stohler and Klawitter left Riebe’s house in the early morning
hours of Saturday, December 11, 2004, before sunrise.
The following week, on Wednesday, December 15, 2004, Klawitter was visiting with Eric
Babos’s cousin, Polly, at her home on Saturn Drive in Toledo. In the middle of the evening, Babos
appeared at Polly’s home, upset. He told Polly and Klawitter that he had just learned that John
Riebe had been shot and killed.
Babos and Klawitter discussed the events of the previous Friday at John’s house, and in
particular the arrival and threatening behavior of J.R. Babos and Klawitter decided the police
should know about J.R., his connection to Riebe and his behavior that night. So they drove to the
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Sylvania Township Police Department, where they asked to speak with officers because they had
information that they thought was important to the investigation of Riebe’s death.
At the police department, Babos and Klawitter were separated. Klawitter was questioned by
two detectives who were investigating the case. Klawitter told them about J.R. and the events of the
preceding Friday. The detectives thanked him and excused him. They then questioned Babos
outside of Klawitter’s presence, while Klawitter waited.
Ed Stohler, who accompanied Babos and Klawitter to Riebe’s the previous Friday, then also
arrived to talk to detectives. After the detectives had spoken with Babos, they then met with Stohler.
Klawitter was again interviewed that night by the detectives, after they had spoken with
Stohler. They asked him whether Babos or any family members owned any handguns.
Klawitter told the detectives that, Babos’s brother Greg Babos may have had one. Greg had
previously shown him his handgun while Klawitter was at his home. Greg’s handgun was a
revolver, not an automatic.
As a result, the detectives asked Klawitter to ride with them to Greg’s home. He agreed and
drove with the detectives to Greg’s home in a newer housing development in Sylvania or Sylvania
Township, Ohio. Klawitter waited in the car while the detectives spoke with Greg and entered his
home. When the detectives returned, he did not see Greg’s handgun with them.
B. Gunshot Residue- Affidavit of John Nixon
Probably the most prejudicial evidence introduced by the prosecution against defendant
Babos was the testimony which purportedly established that law enforcement has discovered gunshot
residue on his shirtsleeves. The jury obviously believed that this scientific evidence established that
Babos had fired a gun in the relatively recent past, or consistent in time to have been the assailant
11
here. The problem is the finding was not accurate and was based upon faulty science. Properly
evaluated, the testing reveals that there was no gunshot residue on Babo’s sleeve.
John R. Nixon, a ballistics expert, is an independent consultant with Athena Research &
Consulting, specializing in technical and forensic consulting in the areas of firearms, ballistics,
munitions, explosives, and shooting incident reconstruction. He is originally from the United
Kingdom, where he worked as a scientist/engineer for the UK government, conducting weapons
systems research, design, development, performance testing, mid-life improvement, reverse
engineering, and forensics. He is a professional engineer with a first class honors degree in
mechanical engineering (recognized in the US under the terms of the Washington Accord) and a
masters degree in business administration. He is also a Fellow of the Institution of Mechanical
Engineers, a member of the American Academy of Forensic Sciences, a member of the International
Society of Explosives Engineers, and a member of several other technical / professional societies.
His qualifications are included in his affidavit. See Defense Exhibit B, attached hereto and
incorporated herein, which includes Mr. Nixon’s Curriculum Vitae.
The prosecution had expert testimony at trial from two PGSR experts, one an Ohio State
Government Employee, Dan Davison of BCI, and the other, Ms. Elena Foster, from a private
laboratory in Pennsylvania, the RJ Lee Group. The laboratory reports were somewhat vague, so Mr
Babos’ trial counsel, Jerome Phillips, obtained more detailed analytical results from RJ Lee Group.
He did not acquire any from BCI.
Mr. Nixon noted that PGSR (“primer Gun Shot Residue”) has been a controversial subject
for some years, and many jurisdictions and agencies, including the FBI, have abandoned its use due
to a perceived lack of probative value. The lack of probative value stems largely from the fact that
12
PGSR is very easily transferable from one object to another. The bottom line is that while the
analytical equipment used to analyze the samples is sophisticated, accurate, and reliable, it is the
source of the sample being evaluated and the subsequent human interpretation of the test results that
can lead to problems.
In his opening statement, the prosecutor said that Babos was wearing a shirt at this police
interview that subsequently proved to have gunshot reside on the left cuff. Second, he stated that
the gunshot residue consisted of lead, barium and antimony, and that barium and antimony were not
found in everyday products. Third, the prosecutor stated that testing over 30 years had developed
practically bulletproof ways to detect and document GSR. All three of these statements are
inaccurate.
PGSR is very mobile, and easily transferred from one surface to another. Numerous studies
around the world have revealed that PGSR is routinely found in everyday places, and particularly
in police interview rooms. An article published by New Scientist Magazine, Issue 2527, Nov., 23,
2005, revealed that:
A.
Someone who has never fired a gun could be contaminated by someone who has,
and that different criminal investigators use contradictory standards. What's more,
particles that are supposedly unique to GSR can be produced in other ways.
B.
Peter De Forest of John Jay College of Criminal Justice in New York goes further.
"I don't think it's a very valuable technique to begin with. It's great chemistry. It's
great microscopy. The question is, how did [the particle] get there?"
C.
Recent studies have shown that a non-shooter can become contaminated without
going near a firearm. Lubor Fojtásek and Tomás Kmjec at the Institute of
Criminalistics in Prague, Czech Republic, fired test shots in a closed room and
attempted to recover particles 2 metres away from the shooter. They detected
"unique" particles up to 8 minutes after a shot was fired, suggesting that someone
entering the scene after a shooting could have more particles on them than a shooter
who runs away immediately (Forensic Science International, vol 153, p 132).
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D.
It is possible to pick up a so-called "unique" particle from an entirely different source.
Industrial tools and fireworks are both capable of producing particles with a similar
composition to GSR. And several studies have suggested that car mechanics are
particularly at risk of being falsely accused, because some brake linings contain
heavy metals and can form GSR-like particles at the temperatures reached during
braking.
The prosecutor in the Babos case stated that two of the three components of PGSR, barium
and antimony, were not found in everyday products, yet his own witness, Mr. Davison, testified that
they were. Automobile brakes and other components are often cited as products that contain barium
and antimony.
The test equipment used to analyze the samples is the scanning electron microscope (SEM)
and it generates very accurate results, but the interpretation of the data and/or how the elements came
to be in the test samples is what often leads to misleading or erroneous conclusions. In this case, the
laboratory protocol stipulated that results were to be classified as either “positive” or “inconclusive.”
When a laboratory protocol has a prescribed menu of conclusions, and those conclusions are limited
to positive and inconclusive, with no negative, then it is evident that the people doing the analysis
are not free to think as independent scientists, and that the procedure is skewed towards reporting
positive test results, or reporting results that infer “probably positive” to the layperson. This is not
unlike the jury hearing that a polygraph was “inconclusive”.
Expert testimony at trial
Mr. Nixon read the testimony of Dan Davison of BCI.
Mr. Davison testified that he had been doing PGSR analysis work for 3-1/2 years, including
his training period. Mr. Davison further testified (Tr. 572) that barium was found in cosmetics, and
antimony was found in other (unspecified) products. He also testified that lead, barium and
14
antimony combined in one spherical particle would be “highly indicative” of PGSR. Mr. Davison
testified (Tr. 577) that the SEM analysis is qualitative, not quantitative, and that the test is either
positive or negative.
No test data were provided to supplement Mr. Davison’s testimony with facts. Mr. Davison’s
testimony that the SEM analysis is qualitative rather than quantitative is clearly not correct. A
review of the SEM output from RJ Lee Group reveals that the results are expressed in terms of the
number of particles of each element, or group of elements, and clearly, this is a quantitative result.
Mr. Nixon also reviewed the testimony of Elena Foster, from the RJ Lee Group. During her
testimony, Ms. Foster appeared to be confused between gunpowder and PGSR. Ms. Foster testified
that RJ Lee Group used only two conclusions - “positive” or “inconclusive”, and explained that there
is no “negative” conclusion because PGSR is so easy to remove. (Tr. 758) Ms. Foster further
explains that if no PGSR particles are found, the test is categorized as “inconclusive.” (Tr. 761).
It is clear from Ms Foster’s testimony that RJ Lee Group SEM PGSR analyses are not
objective, in that the reporting procedures are biased toward positive outcomes. In fact, rather than
concentrating on the science and reporting the pure unadulterated results thereof, RJ Lee Group
reports and witness testimony indicate that they consider situational factors, such as that the test
subject may have washed his hands after firing a gun. This is very unscientific, and Mr. Nixon
contends that the various speculative hypothetical situational analyses should be left for investigators
and attorneys to ponder.
The RJ Lee Group test protocol should be written in such a way as to report the test results
without situational bias. This current situation works to the benefit to RJ Lee Group clients - the
prosecution - and to the detriment of defendants.
15
During closing arguments, the prosecutor stated that Mr. Babos had gunpowder residue on
his shirt, and that his explanation that he had handled his brother’s weapon was not credible because
his brother had no ammunition for the gun. In reality it does not matter whether a person fires a gun
or not, because a significant amount of PGSR will be present on, and in, the gun from the last time
it was fired. Just handling a gun without firing it will leave PGSR on the person handling the gun,
or on any clothing that brushes against the gun.
We know now that Greg Babos’ gun had been fired previously, even if Eric Babos and Greg
Babos had not filed it recently. As detailed by the testimony of Milisa Sharon Babos, the handgun
was at one time her ex-husband’s, Rick Butler. Mr. Butler fired the gun, as did Milisa Babos. To
her knowledge, the gun was never cleaned. Accordingly, it was likely covered in PGSR. Who fired
that weapon and when was irrelevant. Anyone handling the weapon would likely come in contact
with PGSR. See the attached affidavit of Milisa Sharon Babos, attached hereto and
incorporated herein as Exhibit F.
Mr. Nixon also reviewed the RJ Lee Group SEM Test Results. The SEM output from RJ Lee
Group revealed the following key particle counts:
Particle Number Present
Antimony 0
Barium + antimony 0
Barium 0
Lead rich 11
Lead + antimony 0
Lead + barium 2
Unique lead + barium + antimony 0
Barium sulphate 23
Gold 1
Silver 4
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The vast majority of labs who have developed protocols for PGSR have threshold levels for the
unique GSR particles (those containing all 3 elements, lead, barium and antimony). It is typical to
find that such protocols require at least three unique PGSR particles, that is, 3 or more particles that
each contain lead AND barium AND antimony, before a positive result is declared.
In this instance, the subject had 5 particles of gold and silver, yet there are zero unique
particles containing all three PGSR elements, and in fact there are zero antimony particles, and
zero barium particles. There are 11 particles described as lead rich. Lead is a common contaminant
in everyday life and is found in all manner of everyday items such as old paint, car brake linings, car
batteries, fishing weights, solder and many others. There was testimony that the Defendant, Eric
Babos, had been working in an old house and this would be a good source of lead in plumbing, paint,
etc. This test data in this case indicates that no PGSR is present in the sample, yet RJ Lee Group
protocol categorizes this as “inconclusive”. This is clearly a negative test result for PGSR.
C. Voice Analysis
At trial, the prosecutor introduce evidence that Babos was present with Riebe on the day of
the homicide. Specifically, the prosecution introduced a recording of an unidentified voice which
was captured in the background on the victim’s estranged wife’s voicemail, while the victim was
leaving her a message. Shortly before the time frame in which the homicide occurred, Riebe placed
a call to the cell phone of his wife, Lisa Richman. At 2:58 p.m., Riebe left a message on Richman’s
voicemail asking her to pick up his check. A minute later, Riebe left a second message, his voice
17
now panicky, asking Richman to hurry and call him back because “someone” was there waiting for
his money. Riebe did not indicate who that “someone” was, even though Richman and Babos had
known each other for many years.
The inference was made that the “someone’s” voice belonged to Babos. This conclusion
was incorrect. Upon reviewing the tape scientifically, two experts came to the same conclusion.
The voice in the background was not Babos, but rather that of an African-American male.
1. Stephen J. Scharren
Stephen J. Scharren is currently the owner of a multi-media business in Perrysburg, Ohio,
which has been in business for thirty years. Mr. Scharren has focused a good portion of his
business on helping the legal community by clearing up audio and video recordings for further
analysis and eventual use in the court system. He has been qualified as an expert in audio and
video clarification by several court systems, including courts in Lucas County, Ohio, the federal
courts, and has done work for the FBI. One of his more recent projects was to clean up and
clarify 300 hours of audio obtained by the FBI for the government’s prosecution of three
suspected terrorists in United States v. Amawi, et al., in the United States District Court for the
Northern District of Ohio. He has consulted for both the prosecution and the defense in criminal
cases and civil cases. See Defense Exhibit C, Affidavit of Stephen Scharren, attached hereto
and incorporated herein.
In his affidavit, Mr. Scharren explains that Audio Clarification has long been a viable and
important element in the successful analysis of evidence for use in the court system. Audio
analysis applies the science of audio investigation to issues of law. Audio analysis and
clarification augment legal analysis by applying rigorous, scientifically accepted principles of
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analysis to recordings.
Mr. Scharren was able to clarify the unidentified voice which was captured in the
background on the victim’s estranged wife’s voicemail, noted above. The recording contained
the words “if he don’t come do that” from the unidentified background voice. He concluded that,
“it is obvious in my expert opinion that a comparison based upon analysis of the frequency and
character between the background voice and the voice of Eric Babos, that the voices are not the
same.” A copy of this audio excerpt analyzed by the experts in this case is contained on a
CD that is attached hereto and incorporated herein as Exhibit G.
Mr. Scharren reached that conclusion by reviewing an audio recording of Eric Babos
being interviewed by the Sylvania Township Police Department, and comparing that recording to
the recording of the clarified background speaker referred to above. This is based upon an
objective analysis during his clarification process which uses professional computer software to
aid in the analysis. Accordingly, he concluded to a reasonable degree of scientific certainty that
Eric Babos was not the man speaking in the background of the telephone message.
2. Robert A. Leonard- Linguist
Robert A. Leonard is currently a Professor of Linguistics, Department Chair, and Director
of the Forensic Linguistics Project at Hofstra University in Hempstead, New York.
He received his Ph.D. from Columbia University with research specialties in Semantic Theory, or
theory of meaning, and Sociolinguistics. He received his B.A. from Columbia College, where he
was elected to Phi Beta Kappa and graduated with honors, and his M.A., M. Phil., and Ph.D.
from Columbia Graduate School, where he was a Faculty Fellow. He was awarded a Fulbright
Fellowship to conduct the research for his dissertation.
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He has been qualified as an expert in Linguistics in the New York Supreme Court, in the
Pennsylvania State Court, and as an expert in Linguistics and Sociolinguistics in the Federal
District Court in Newark. He has been admitted as a Forensic Linguist to the Expert Panel of the
18B Assigned Counsel Plan of the city of New York, which is an organization that provides free
legal representation to indigent criminal defendants in New York Supreme Court Criminal
Division, and to both juvenile and adult respondents in the New York Family Courts.
As stated above, Mr. Leonard is currently employed by Hofstra University, where he also
teaches a special graduate section of Linguistics for FBI Supervisory Special Agents. He is a
member of the International Association of Forensic Linguists. He has testified and consulted for
both prosecution and defense in criminal cases of murder, espionage, and other felonies, and in
civil cases of plagiarism, libel, malpractice, and the meaning of contracts. A copy of his
Curriculum Vitae is attached hereto and incorporated herein as Exhibit D.
Mr. Leonard avers that linguistics is the scientific study of language, and is recognized as
a science by the American Academy of Sciences. Linguists regularly apply for and are granted
research funds by the National Science Foundation. In virtually any major university or college a
student can major in linguistics and many major universities grant a Ph.D. degree in linguistics.
There are academic associations and peer-reviewed professional journals within the field of
linguistics. Similarly, sociolinguistics is an established branch of linguistics with peer-reviewed
professional journals.
Forensic Linguistics applies the science of linguistic investigation to issues of law.
Forensic Linguistics augments legal analysis by applying rigorous, scientifically accepted
principles of analysis to legal evidence like contracts, letters, confessions, and recorded speech.
20
Dr. Leonard also reviewed the enhanced copy of the recording of an unidentified voice
which was captured in the background of Linda Richman’s voicemail, Riebe’s estranged wife,
while Riebe was leaving her a message. This is the same recording reviewed by Stephen
Scharren and attached as Exhibit G. The recording contains the words “if he don’t come do that”
from the unidentified voice.
Dr. L has listened critically to this recording numerous times and has also consulted with
two other experts in the field. The first is Prof. Roger Shuy, Distinguished Research Professor of
Linguistics, Emeritus, of Georgetown University in Washington, D.C. Prof. Shuy is one of the
premier experts in the field of forensic linguistics. He has authored thirty-five books on
linguistics, including eight on forensic linguistics. Prof. Shuy has also authored hundreds of
articles on linguistics, and has testified numerous times as an expert witness in state and federal
courts, as well as before Congress.
The other expert is Dr. B. Wald, formerly linguistics professor at UCLA, who is an expert
in English dialectology, discourse analysis and tape-recorded speech.
Based upon his education, experience, training and background, Dr. Leonard believes, to
a reasonable degree of scientific certainty, that the voice contained on that recording is a male
speaker of African-American English. Dr. Wald and Dr. Shuy concur in his assessment.
Dr. Leonard also reviewed an audio recording of Eric Babos being interviewed by the
Sylvania Township Police Department, and compared that recording to the recording of the
background speaker referred to above. Certain sounds in the speech of the background speaker
are, according to well-accepted standards of dialectology, not consistent with the dialect of
English spoken by Babos, but are consistent with a different dialect of American English not
21
spoken by Babos.
This is not an impressionistic opinion (this is, for example, that someone “sounds
Black”), but is based on an objective analysis of certain speechsounds by Dr. Leonard, as well as
Drs. Shuy and Wald, both not only experts in American dialects but also in the difference
between white and Black speakers in the Midwest. Accordingly, he concluded to a reasonable
degree of scientific certainty that Eric Babos was not the man speaking in the background of the
telephone message.
3. Corroboration
In addition, it appears that two state’s witnesses who did testify at trial also support the
above conclusions. As the Court will recall, the Babos family hired a private investigator, Jeff
Strzesynski, to conduct investigation in this case. As part of Mr. Strzesynski’s continued
involvement in the case, he visited state witnesses Robert Pfeifer and Daniel Boyle, the
aforementioned employees of A-1 Heating, on April 15, 2009. Mr. Strzesynski’s affidavit
attesting to his visit and conversation with both men is attached hereto and incorporated
herein as Exhibit E.
In discussing the continuing investigation of the case, Mr. Strzesynski informed Messrs.
Pfeifer and Boyle about preliminary findings regarding the enhanced audio recording reviewed
by Mr. Scharren and Dr. Leonard, and specifically about their belief that the speaker was of
African-American decent and speech patterns.
In response to this new information and the description of this voice, Mr. Boyle
commented that he believed he had stated before his belief that the man who identified himself as
“Eric” had an African-American dialect: “Didn’t I say in my testimony that, you know, I said he
22
identified himself as ‘Eric’, but it was a very jivey voice saying ‘I want my fucking money’?”
Relatedly, Mr. Pfeifer then commented, “I think we both ... we heard a Black in the
background. Okay? Right?” Mr. Boyle then expressed some doubt or disagreement with Mr.
Pfeifer about whether the distinctive voice was a background voice on the call or the speaker
directly speaking to him on the telephone.
Thus, the evidence is compelling that the suspect with Riebe at the time he phoned his
wife just before his death was a person of African American descent, and not Eric Babos. This is
completely consistent with Riebe not identifying the person with him when calling his ex-wife.
It is also consistent with Babos continuing to attempt to collect his money after the death of
Riebe. Clearly, Babos was unaware that Riebe had been murdered.
Brady Violations
As noted above, it is unclear why the state gunshot residue expert failed to explain to the
jury that the test was not just inconclusive, but the results were negative under the proper
scientific standard.
The failure to reveal impeachment information for a key state witness is a violation of
Brady v. Maryland (1963), 373 U.S. 83. In Strickler v. Greene (1999), 119 S.Ct. 1936, the
Supreme Court affirmed the Fourth Circuit’s denial of habeas relief in a capital case involving a
defaulted Brady claim. In its initial discussion, the Supreme Court considered the broad
spectrum of government misconduct issues that have come to be considered under the generic
rubric of a ‘Brady’ claim:
. . . In Brady this Court held "that the suppression by the prosecution of evidence
23
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution." Brady v. Maryland, 373 U.S., at 87, 83 S.Ct. 1194. We have
since held that the duty to disclose such evidence is applicable even though there
has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96
S.Ct. 2392, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment
evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667,
676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Such evidence is material "if there
is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different." Id., at 682, 105 S.Ct.
3375; see also Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995). Moreover, the rule encompasses evidence "known only to
police investigators and not to the prosecutor." Id., at 438, 115 S.Ct. 1555. In
order to comply with Brady, therefore, "the individual prosecutor has a duty to
learn of any favorable evidence known to the others acting on the government's
behalf in this case, including the police." Kyles, 514 U.S., at 437, 115 S.Ct. 1555.
(Emphasis Added)
In other words, what the police know, the prosecutor knows. Knowledge is imputed to
the prosecutor so that police agencies can avoid providing exculpatory evidence by simply failing
to inform the prosecutor of the existence of that evidence. This appears to be the case here. The
state was under an obligation to reveal this strong impeachment evidence and failed to do so.
In Kyles v. Whitley (1995),115 S.Ct. 1555, 1567, the Supreme Court held that it is the
cumulative effect of exculpatory evidence withheld by the prosecution, and not the significance
of any one piece of it, which is determinative of the evidences’ materiality when assessing a
claim under Brady and United States v. Bagley (1985), 473 U.S. 667, 682. See, Donnelly v.
DeChristoforo (1974), 416 U.S. 637, 643, 94 S.Ct. 1868, 1871.
Thus, while even if the detectives failed to inform the prosecutor who actually tried the
case, which seems very unlikely, it matters not for purposes of Brady.
Materiality of Testimony 24
The defendant is asserting a claim of actual innocence. Normally, the decision whether to
grant a new trial on grounds of newly discovered evidence falls within the sound discretion of the
trial court. State v. Hawkins (1993), 66 Ohio St.3d 339, 350, 612 N.E.2d 1227. To warrant the
granting of a new trial, the new evidence must, at the very least, disclose " 'a strong probability
that it will change the result if a new trial is granted,' " and must not be " 'merely cumulative to
former evidence.' " Id., quoting State v. Petro (1947), 148 Ohio St. 505, syllabus.
Babos meets the above standard. Abuse of discretion, however, is not the standard in a
Brady violation situation. Because the due process right to a fair trial is at play, the normal
standards for a new trial are not applicable. In such as case, “the usual standards for new trial are
not controlling because the fact that such evidence was available to the prosecution and not
submitted to the defense places it in a different category than if it had simply been from a neutral
source after the trial.” Johnston, supra, citing United States v. Kelly, (C.A.D.C. 1986), 790 F.2d
130, 135; United State v. Agurs (1976) 427 U.S. 97.
The above evidence is not merely cumulative of the evidence that was presented at trial.
The jury necessarily decided this case based upon its assessment of the credibility of the
witnesses. The jury did not hear any of the evidence included in the attached exhibits.
Consideration of this evidence renders the jury verdict unreliable.
Newly Discovered Evidence
It would have been impossible for the defendant to have been produced this evidence
within the time frame allowed by the rule. By its very nature, issues involving scientific
experimentation require time to gather evidence and conduct the testing. Mr. Scharren notes in
his affidavit that he had completed his analysis and review only relatively recently because of
25
significant delays in obtaining the better-quality recordings he had requested.
Mr. Babos’ trial counsel, Jerry Phillips, worked long and hard to acquire better quality
recordings for analysis, and was not able to obtain those recordings until 2009. In addition, Mr.
Nixon, the firearms expert, required review of transcripts and detailed data before he could
render the assessment he has provided this Court.
Mr. Babos is indigent. He represented himself on many appellate stages. It was only
relatively recently that his family was able to further assist him in this litigation. Dr. Leonard has
agreed to assist Mr. Babos, free of charge, for now.
The attached affidavit of Attorney Jeffrey J. Helmick, (attached hereto and incorporated
herein as Exhibit H), current counsel for Mr. Babos along with Attorney David L. Doughten,
documents the reasons for these delays.
Finally, the prosecution failed to turn over the sum and substance of Klawitter’s
statements.
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Conclusion
Base on the newly discovered evidence, it is respectfully requests that this Honorable
Court grant the Defendant leave to file a Motion for a New Trial.
As the defendant is actually innocent of the charged offenses in the above captioned case,
the failure to grant a new trial is a violation of his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
Respectfully submitted,
By
JEFFREY J. HELMICK
DAVID L. DOUGHTEN
Counsel for Defendant Babos
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