A question of truth, life, death
01/26/03Karen R. Long
Plain Dealer Reporter
All along, Joe D'Ambrosio has said he is innocent.
But since he had no money, no visitors and scant education, insisting on his innocence seemed pointless, almost absurd.
Now, a Catholic priest who heard his story by accident and a veteran public defender who has heard every story in the book think D'Ambrosio is telling the truth. The pair have put thousands of hours into reconstructing a sordid murder centered in Little Italy 14 years ago.
They found out that the man hacked to death had been the only witness subpoenaed in a rape four months earlier. The accused rapist supplied police with D'Ambrosio's address and a suggestion that they investigate him.
Fourteen days after D'Ambrosio was charged in the murder, the rape indictment was dropped.
Carmen Marino was the prosecutor for both the rape and the murder. He retired a year ago. Marino now says he has no memory of the rape case, which he reassigned to another assistant county prosecutor.
That man, Lindsay Jerry, died in 1993.
Marino said his murder prosecution was both successful and ethical.
But the Ohio public defender's office has raised enough doubt about D'Ambrosio's conviction that a federal judge has ordered a review of all the evidence. In late November, U.S. District Judge Kate O'Malley ordered Cleveland police and the county coroner's and prosecutor's offices to turn over all records and original evidence from the murder and the rape to the state public defender's office.
Lawyer Joe Bodine is leading the investigation. He has worked on appeals for convicted killers for more than a decade. "Joe [D'Ambrosio] is the only client I've ever had who is utterly credible," Bodine said.
He called O'Malley's order "the single most expansive discovery order handed down" in a capital case from a judge in Ohio.
The Ohio attorney general's office must defend D'Ambrosio's conviction in federal court. "Obviously, we are very prepared," said spokeswoman Kim Norris. "The last time the victim was seen alive, D'Ambrosio was holding a knife to his throat."
On Feb. 5, a federal court officer will drive to Detroit with two hunting knives confiscated from D'Ambrosio's apartment. There, Wayne County Coroner Dr. Werner Spitz will compare them to descriptions and photos of the wounds on the victim's body. Spitz is a nationally recognized authority on such injuries. D'Ambrosio's legal team anticipates that the knives and the wounds will not match.
"A lot of guys on death row tell me they are innocent," said the Rev. Neil Kookoothe, an opponent of capital punishment who is also a lawyer. "I don't believe any of them except Joe D'Ambrosio."
Kookoothe said he remains astonished that D'Ambrosio was convicted of murder and sentenced to death without forensic evidence. D'Ambrosio waived his right to a jury. A three-judge panel found him guilty.
For the family of the murdered teenager, Tony Klann, it is unthinkable that a horror resolved in 1989 has come back to haunt them. They believe Cuyahoga County prosecutors held the right three men responsible.
"There's been rumblings about new evidence," said salesman Richard Klann, the victim's father. "I still think this jerk D'Ambrosio is guilty. I sat through every minute of the trials. Fourteen years later, the idea of more trials - it's just churning through my body all the time."
'That is what I live with'
Tony Klann had a choir-boy face and a bowl haircut that made him look younger than his 19 years. People around Little Italy and the Coventry neighborhoods knew him as "Little Tony." Klann had a sunny, social disposition. But he was frequently broke.
The week he was murdered, Tony and his girlfriend, a Cleveland State University student, met Richard Klann for dinner. Tony outlined his ideas for launching a small landscaping business. The older Klann was delighted.
His son had struggled with a learning disorder so severe he was unable to read a clock. Tony had quit Cleveland Heights High School after the 10th grade and abandoned an alternative school in Columbus the day he turned 18. When he returned to Cleveland, Tony drifted a bit and partied. Now, he seemed to have a direction. Richard Klann offered to buy a landscaping truck.
Four days later, a jogger found Tony's body floating in Doan Brook, next to Martin Luther King Jr. Drive, near Parkgate Avenue. On that Saturday afternoon in September 1988, the corpse looked so stiff and unworldly that the runner poked it with a tree branch. When divers pulled it out, they could see Tony's neck was slashed ear to ear, his windpipe punctured twice. Three large slashes opened up his chest. Defensive wounds marked his wrist and elbow.
"They hit him with a bat, breaking his forehead," Richard Klann said. "They took him down to Doan Creek and asked him to put his head back, and he did, and they slit his throat. I always taught him there was another way out besides a fight. I wish I could have said, 'Now is the time to kick them where it hurts.' Tony put his head back - that is what I live with."
Prosecutor Marino said there was no way the 5-foot-5 Tony could have fought off a trio of men. "Klann was truly an innocent person," he said. "His whole life, he didn't harm anybody."
Marino said the three men jailed for Klann's murder were not subtle. He said D'Ambrosio, Michael Keenan and Eddie Espinoza were the only ones witnesses saw drunk, carousing, swearing, shouting and later driving around with the victim.
All four knew each other through Sunshine Landscaping. Keenan, 39, owned the business and Espinoza was his foreman. D'Ambrosio met Espinoza in The Saloon, a now-defunct Coventry bar, where Espinoza offered him a landscaping job. It was three weeks before Klann was murdered.
"Keenan was a real low-life, that guy, and a convicted rapist," Marino said. "For some reason, Keenan thought Tony Klann had taken his drugs or knew who had taken his drugs. They decided to grab up this kid and force him to tell them." Marino paused. "I guess things got out of hand. Keenan got frustrated and took the kid down to Doan Creek."
Espinoza, 26, became the prosecution's star witness. Based on his testimony, D'Ambrosio and Keenan were sentenced to die. Espinoza took a plea of voluntary manslaughter and served 12 years of a 15- to 75-year sentence. He was freed, with no parole obligations, in 2001.
On the witness stand, Espinoza described a party scene marinated in alcohol and cocaine. He testified the crime started with a night of drinking in Coventry bars that escalated when Keenan discovered drugs missing from his work truck. He suspected a man named Paul Lewis, known as "Stoney" because of his affinity for being high.
Espinoza testified that "Little Tony" was plucked off Mayfield Road and enlisted in pursuit of Lewis, who lived in Klann's apartment building. But Lewis was not home that night. Espinoza said that sometime before daybreak, the chase ended in a surreal butchery. He said Klann cried out for mercy while D'Ambrosio pursued him with a curved hunting knife, splashing after the bleeding boy in Doan Brook.
That sounded wrong to Kookoothe, an associate pastor at St. Clarence Catholic Church in North Olmsted. The priest was visiting another death-row inmate when he stopped at the cell next door and heard D'Ambrosio's story. "There was something about Joe that just doesn't click with the crime," he said. "He was personable, straightforward. My curiosity started to grow."
Kookoothe, with degrees in nursing and law earned before his ordination, followed that curiosity to the coroner's office. He asked to see the photographs of Klann's injuries. He stopped when he got to the close-up shots of the two holes in the trachea. With such an injury, no victim - physiologically - could have begged for mercy. Yet Espinoza testified that D'Ambrosio had jumped into the creek to "finish the job" after Keenan had nearly severed the teenager's head.
"Just from the nursing perspective, I saw those punctures in the trachea and I thought, 'Oh my. Something is not right,' " Kookoothe said. The punctures insinuated to him that somebody wanted Klann to shut up.
An accidental tip
A dozen years after Tony Klann's body was cremated, Richard Klann unintentionally tipped D'Ambrosio's lawyers to a new lead. He remembered that his son told him about seeing a man raped in his apartment building. Richard Klann didn't sense that his son feared for his life, but Tony wanted out of the neighborhood.
Kookoothe decided to check police records of sex crimes around the time of Klann's death.
"I took the names of people involved in the [murder] case - Mike Keenan, Eddie Espinoza, Paul Lewis -and pulled up the criminal records," the priest said. "When I pulled up Paul Lewis, there was a rape case, so I asked for the microfiche. I see the one witness subpoenaed on the rape is Anthony Klann. My heart went into my stomach. Here was this guy testifying against Joe and he is indicted for rape."
The rape victim was a legally blind man living in Klann and Lewis' apartment building on East 120th Street, in the shadow of Holy Rosary Church. On Oct. 20, 1988, 14 days after the indictments for Klann's murder, the rape charge against Lewis was dropped.
"Counsel realizes that even suggesting that the prosecutor might have concealed a critical deal struck with a key witness implies serious transgression," D'Ambrosio's lawyers wrote in an appeals brief. "But it would not be uncharacteristic for Prosecutor Marino to have engaged in such a deceptive act. Carmen Marino has a long history of prosecutorial misconduct."
Marino dismissed the accusation as "lying and disingenuous." He said he did not remember a Paul Lewis rape prosecution. Marino keeps his old case logs, with a record of their outcomes. He brought out his log for 1988. It showed that he had three murder prosecutions that summer. A notation indicated that at crunch time with those trials, Marino gave the Lewis prosecution to Lindsay Jerry, a colleague who later died of cancer.
Marino said he had no idea why the rape case was dismissed.
The rape victim thinks his justice was traded off for Lewis' testimony. In an interview, the victim said the moment he heard that Klann was murdered, he called Cleveland police to suggest that crime was connected to the sexual assault on him. The victim said no one followed up until last fall, when D'Ambrosio's lawyers found him.
"I was 22 years old. What did I know about the law?" asked the victim, who now lives in Lakewood. "I'm surprised no one contacted me. I thought that was pretty cold. Tony got murdered and Paul Lewis is the squeal guy on that whole case."
Facts don't add up
For D'Ambrosio's advocates, his story has an "Of Mice and Men" quality. The John Steinbeck novel features a big, slow-witted, but honest man caught in a tragic murder.
At 6 feet 2 and 200 pounds, D'Ambrosio keeps his shoulders back and his gaze direct. He is proud of his four years as an Army mechanic. Book learning was not his strength, but D'Ambrosio was good with his hands. He eked out a 1.9 GPA at North Royalton High School and enlisted. D'Ambrosio loved the service, even basic training. He made sergeant in three years.
When he returned to civilian life, and Cleveland, D'Ambrosio expected to make better than a soldier's wages. Two years of odd jobs had left him without a checking account, without a driver's license and on the verge of eviction from his apartment. At age 26, he was ready to re-enlist.
Instead, Cleveland police appeared at his door. His last day of freedom was Sept. 26, 1988.
"I had no idea what was going on," said D'Ambrosio during an interview at the Mansfield Correctional Institution last month. "None of my family had ever been in trouble. None of my friends. You just don't break the law. That's what it's there for. I grew up believing in Perry Mason: Sit back and let the lawyer do his job." D'Ambrosio paused. "That's what got me here."
D'Ambrosio's three-day trial was the shortest capital trial in modern Ohio history. "You don't have to be a lawyer, let alone a rocket scientist, to realize some of this doesn't make any sense," Kookoothe said. "His legal representation was awful."
The priest started a list of facts that didn't add up:
The first homicide detectives on the scene, Mel Goldstein and Ernest Hayes, concluded Klann had been killed elsewhere and dumped in Doan Brook.
Despite the bloody nature of the murder, there was no blood found anywhere around the creek. The bank was undisturbed. No bent or broken underbrush showed signs of a struggle.
Klann's body had scrape marks along the shoulder blades, consistent with being dragged.
The time element didn't track. D'Ambrosio admits to being out with Klann, Keenan and Espinoza on Thursday night, Sept. 22, when Coconut Joe's served 25-cent shots. But D'Ambrosio says he was dropped off unevent- fully at his apartment after the search for Lewis had proved futile.
In court, Espinoza repeatedly switched his testimony about the murder date. Marino argued that the hunt for Lewis began Friday night and Klann was murdered early Saturday.
Prosecutors found a man who corroborated Espinoza. The witness testified he looked out his Little Italy window and saw D'Ambrosio sitting in a truck and holding a knife to Klann as the smaller man wept. D'Ambrosio's team counters now that the sight angles and darkness would preclude seeing any such scene.
D'Ambrosio claims he and Klann were sitting quietly in the truck, listening to the radio, while Espinoza and Keenan barged around looking for Lewis.
D'Ambrosio had no criminal history. His only legal trouble was two DUI convictions.
Marino's recollection was similar. "Mike Keenan was a sociopath," Marino said. "Joe D'Ambrosio was a kid who had everything going for him. He had the bad luck to hook up with Keenan, who was really dangerous."
Asked about the discrepancies at the crime scene, Marino shrugged. "Things are really strange," he said. "What you expect at the scene is what you get 75 percent of the time. Look at the [Sam] Sheppard case."
'We're on God's time'
D'Ambrosio may be the one man on Ohio's death row to say his childhood was happy. He was the longed-for boy born to Italian-Americans Joe and Dorothy D'Ambrosio. His father died when he was 17, his mother in 1998. Their son said two things help him endure his years of shackles and cinderblock.
"My dad brought me up right," said D'Ambrosio, who shaves his head and wears multiple tattoos. "I had my military training. Between those two things, I know I can't let this get to me. Once this nightmare is over, I got to go back to the world."
D'Ambrosio wants that world to see him as a man in the wrong place at the right time, the day before Klann's murder. Asked if alcohol contributed to Klann's death, he shot back, "I have no idea. I wasn't there. The bar stuff and all that happened 24 hours before Anthony Klann died. All Espinoza did was put the two days together."
In 1994, D'Ambrosio passed up an offer to move off death row in exchange for testifying in Keenan's retrial. "I won't lie for them, " D'Ambrosio said. "Lying on the witness stand is what got me here in the first place. My immortal soul is worth much more than that."
D'Ambrosio said he does not blame God for his predicament. "I blame the people who corrupted the system. That's man's work.
"We're on God's time," he said. "Now he allows me a good attorney and new evidence and people coming forward. I'll be on God's schedule when I'm freed. I don't let myself get happy, though, because I can't see the next thing coming."
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