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9th Dist. allows convicted sex offender long-awaited new trial
BENJAMIN WHITE
Associate Editor
Published: January 18, 2013
The day after Christmas, the 9th District Court of Appeals ruled on Joel Covender’s case for the fourth time, clearing the way for a new trial based on newly discovered evidence after he spent over a decade in prison for the alleged sexual abuse of his stepchildren.
Following his release to parole in 2007, Covender learned that both of his stepchildren had come forward to deny the alleged abuse. Several appeals later, the 9th District overturned the trial court’s decision that Covender’s third motion for leave to move for a new trial did not meet the 120-day deadline for the submission of newly discovered evidence.
In one of his last opinions on the appellate bench, Judge Clair Dickenson wrote that Covender experienced “unavoidable delay” in his research due to a judge’s ruling that the evidence in question contained nothing exculpatory after an in camera inspection in 1995. Presiding Judge Carla Moore joined Judge Dickenson, and Judge Eve Belfance concurred.
The saga began in 1994, when Covender was indicted for gross sexual imposition and felonious sexual penetration based on testimony from his 6 year-old stepdaughter, A.S., and her younger brother, J.S. At trial, Covender presented evidence to show that the children’s paternal grandparents had concocted the story in a scheme to win custody of the children from their mother and that A.S. had told her mother that the allegations were false. The Lorain County Court of Common Please convicted Covender on all charges, and the 9th District affirmed; Covender served more than 10 years in prison before his release on parole in 2007.
At his first parole hearing, Covender learned that both of his stepchildren had petitioned the parole board for his release, denying their earlier accusations. Shortly thereafter, Covender, represented by W. Scott Ramsey, moved for a new trial. The trial court granted the motion, but the state appealed, sending the case back to the 9th District in 2008.
The prosecutor’s office argued that the trial court erred when it granted the new trial based on the affidavits of the alleged victims’ recanted testimony. Specifically, the state held that A.S.’s statements did not legally recant her earlier testimony because she said she did not remember her childhood (“For certain, no, I honestly cannot, you know, recall anything, but I know that this didn’t happen.”).
Because the statements were based on “feelings and beliefs” instead of personal knowledge, as required by law, the 9th District found they did not recant her earlier testimony and deemed them inadmissible. The appellate court reversed the decision allowing a new trial, if only in the case of A.S., and Covender remained on parole.
Judge Dickenson offered a dissent attacking the majority’s interpretation of “personal knowledge.” He wrote that he could clearly remember breaking his arm as a child, though he could not remember anything for a year before or after the incident.
“If I were asked whether I ever broke my leg while I was a child, I could definitely answer that I did not, even though I have no distinct recollection of much of my childhood,” he wrote.
Just three months later, in July 2008, Covender again motioned for a new trial, spurred by a new affidavit provided by David Slone, A.S.’s biological father. Slone averred that he had seen his mother (A.S.’s grandmother) coerce A.S. to testify and give false statements against Covender, including how to answer authorities’ questions. Slone’s affidavit indicated that he decided to come forward only when the appellate court overturned Covender’s first appeal for a new trial.
The trial court ruled that the new testimony would not have materially affected the outcome of the trial. Because the 9th District had previously held that A.S.’s affidavit did not constitute a legal recantation, her statements were not considered. Covender was again denied a new trial and appealed for the third time.
In 2010, the 9th District again split in denying Covender a retrial. Judges Donna Carr and Moore formed an affirming majority that claimed the courts’ hands were tied by a technicality. Since Covender had failed to include the transcript of the 1996 trial, the court could not review the lower court’s decision that Slone’s testimony would not have materially affected the case.
In her dissent, Judge Belfance agreed with that point but held that the court should have allowed A.S.’s affidavit to be used in that instance and in the previous appeal. The 9th District’s prior decision to deny A.S.’s testimony as evidence formed the “law of the case,” following a doctrine which provides that the answers to all legal questions in a case remain relevant throughout all subsequent proceedings.
The trial court respected the case law doctrine but stated that if it were permitted to consider A.S.’s affidavit along with Slone’s, it would have ordered a new trial. Both pieces of evidence together, it held, would hold the potential to materially affect Covender’s case.
Judge Belfance concluded that since the Ohio Supreme Court described the case law doctrine as “a rule of practice rather than a binding rule of substantive law … not [to] be applied so as to achieve unjust results” (Nolan v. Nolan, 1984), she would have allowed the evidence to be used.
Again, though, Covender found his request for a new trial denied.
In July 2011, Covender filed his current (and third) motion for leave to move for a new trial, motivated by newly discovered evidence in his stepdaughter’s childhood therapy records.
In 1995, Covender requested an in camera inspection of A.S.’s therapy records, but the trial judge ruled that they contained nothing exculpatory and refused to disclose them. After two denied retrials and with no other options, Covender attempted to retrieve the records, which proved to present a tough undertaking, because the agency that had treated her no longer existed.
After his stepdaughter helped him find the records for himself, Covender discovered that A.S.’s therapist believed she had “a problem telling the truth,” according to the newest appellate opinion.
In the subsequent discovery hearing, the trial court denied his motion for a new trial because it found that Covender had failed to prove he was “unavoidably prevented” from the discovery of the evidence as required by Rule 33(B) of the Ohio Rules of Criminal Procedure. The rule stipulates that reasonable diligence requires a defendant to discover new evidence within 120 days of his or her conviction.
Covender appealed again, claiming that he indeed was unavoidably prevented from discovering the evidence, and the 9th District revisited the case for a fourth time.
In his brief, Covender argued that, even though he knew the records existed before the trial, he was prevented from reviewing them until 15 years after his conviction.
Judge Dickenson, who had supported the idea of a new trial for Covender in his first appeal, agreed in the 9th District’s opinion. He wrote that, because the trial judge had ruled that the records contained nothing exculpatory, Covender had no obligation to further investigate them.
“The reason the [trial court’s] ruling is unreasonable is because Mr. Covender did everything that could reasonably be expected of him to investigate the contents of the records before his trial began,” Judge Dickenson wrote. “Further, in the exercise of due diligence, he did not need to re-investigate those records.
“The fact that he did work so hard to re-investigate a former dead-end appears to be evidence of his desperation.”
Judges Belfance (who concurred) and Moore joined Judge Dickenson in reversing the trial court’s denial of Covender’s motion for a retrial, and the case was remanded to the Lorain Court of Common Pleas. The case is cited as Ohio v. Covender, 2012-Ohio-6105.