Zimbeck murder case dismissed

WAUSEON, Ohio - In a rare move, Fulton County Common Pleas Court Judge James Barber dismissed an indictment against a Tennessee man accused of a 1985 murder of a Swanton teen .

Walter E. Zimbeck will be released from the Corrections Center of Northwest Ohio on Jan. 15 unless the prosecution chooses to appeal Barber's decision which was filed Friday, Jan. 8.

In his decision, Barber cited the length of time from the murder to the trial with many key witnesses having died and a lack of physical evidence in the case.

Prosecutors' in the case petitioned Barber to reopen the hearing after receiving testimony from a woman claiming to have been raped twice by Zimbeck while she was in a relationship with him. The woman also claimed Zimbeck intimidated her saying "she should be careful or the same thing that happened to Lori Hill would happen to her."

Barber cited a case tried in his court that was thrown out on appeal in which prosecutors used a similar argument.

"Here Mr. Zimbeck is alleged to have committed some very 'bad acts' in 1986 and 1987. They are clearly prejudicial," Barber said in his decision. "The fact that this information has only come to light after some 24 years of investigation, after the indictment was returned in July, after some four days of testimony in November and December, after the State had 'rested' its case, and after the hearing was 'closed'... is only icing on the cake. State's motion to reopen is found not to be timely, nor in the interest of justice, and it must be denied."

Prosecutors had argued that testimony showed "similar acts and
circumstances" to the Hill case and they must be considered "in the interest of justice."

Barber then considered the defense motion to dismiss the case.

He cited the joint investigation between Lucas and Fulton counties and the poor cooperation and coordination between those agencies.

Defense attorneys Amber and Gregory VanGunten argued for delayed prosecution in their motion asking the judge to consider the deaths of witnesses, faded or lost memories, lost physical and testimonial evidence, stale or deteriorated evidence and whether the prosecution acted in bad faith hoping the passage of time would turn up more evidence.

In his decision, Barber said all factors, except bad faith on part of the prosecution applied in this case.

Zimbeck passed a polygraph test administered by a Lt. Phillips, cited in the decision, who is now deceased. Retired Fulton County Deputy and Chief Investigator at the time Bob Albright was present but had told Zimbeck after the polygraph he was no longer a suspect.

There is "no physical evidence in the case linking Mr. Zimbeck to the crime," Barber said in the decision. "What little evidence has been able to survive the lapse of time in this case... (a pubic hair) tends to 'exonerate' Mr. Zimbeck rather than inculpate him."

Witnesses to Zimbeck's alibi have died or cannot be located and DNA analysis is not available in the case as blood samples and a rape kit materials were considered lost.

However, they were "miraculously found several months ago" according to Barber's statement, but were destroyed during a blood typing process in the 80s. DNA testing done on a pubic hair found on Hill's body was not a match to Zimbeck.

In addition several witnesses and other past suspects in the case are deceased. One past suspect is unlocated and another is "on the lam. All of these witnesses would or could have had some potential to provide exculpatory evidence, now forever lost... Clearly the 23 years' delay in this case did cause 'actual and substantial prejudice' to the defendant," the decision stated.

Barber used two prosecution witnesses to sum up his analysis.

Toledo Police Det. Forrester called the "mountain of records, notes, documents, and statements..."this is the worst investigation I have ever seen.'"

He later recanted this statement as one made in frustration, records show.

"However the Court is convinced, after reviewing much of that evidence itself, that the statement was not far off the mark, and it was probably justified," Barber's statement said.

Sheriff Darrell Merillat, who was in office at the time of the murder, was questioned about evidence protocols and items in his department.

"When asked to explain why the whereabouts of the pubic hair that had been recovered from the autopsy could not be determined by reference to the log book, Sheriff Merillat testified, 'I can't say. Some of these cards are so deteriorated I can't read them.' That statement was extremely prescient, and the 'deterioration' he identified is symptomatic, and a perfect metaphor, for the posture of this entire case.

"Case law does recognize that there are some situations, rare indeed, where justice demands that a Court step in and terminate a prosecution, where it is clear that a defendant cannot get a fair trial, and the prospects of an unfair verdict, are viable. This is the situation here, and the Court hereby so finds and rules," the statement concluded.

Zimbeck was indicted last summer for Hill's murder after an eight-month reopening of the case. A joint investigation by the FCSO and the TPD cold Case Division led to a grand jury indictment.

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Below is a statement from Zimbeck's counsel regarding the decision in the case:

This dismissal was fully warranted under long-standing principles of Constitutional law. Some people might interpret that to mean that Mr. Zimbeck "got off" on some "legal technicality."

But, in truth, the charges against Mr. Zimbeck should never have been filed in the first place. Mr. Zimbeck voluntarily underwent a polygraph test by the State in 1985. He passed it. Evidence known to the authorities in 1985 revealed that he lacked a motive for this homicide, and further that he had no operating automobile at the time. He told the authorities in 1985 that he was at his mother's apartment in Holland at the relevant time of Lori's murder, and that he was with a girl named Sandy. He further detailed his alibi witnesses to authorities by name.

In 1985, investigators never checked out these named alibi witnesses because Mr. Zimbeck passed the polygraph, had no motive, and had no car with which to commit this offense. Several witnesses, 24 years later, are now dead, others cannot remember exactly what they were doing in the evening of October 25, 1985, and Mr. Zimbeck has lost the ability to
establish his alibi because of their 24-year dimmed memories.

Within two months after Mr. Zimbeck was arrested last summer, the State got around to testing critical forensic DNA evidence recovered from Lori's body at autopsy. This demonstrated that male DNA recovered from Miss Hill's pubic area did not match Mr. Zimbeck. It pointed to another unidentified male as the killer. The Defense went to great lengths to attempt to identify who the real killer was; there were more than a dozen "other suspects" identified by the authorities back in the 1980's, some of those are now dead. The Defense requested various court orders to attempt to collect DNA samples from the other suspects. These efforts were blocked by the State.

Given the Court's dismissal, the Defense hopes that the State will now focus on what the Defense attempted; to gather the appropriate DNA samples and compare the DNA to the male DNA recovered from autopsy. That investigation, while it comes over 20 years late, may finally and conclusively identify the killer and bring some closure to the Hill family.

The other hope is that the Fulton County Prosecutor will hereafter resist the temptation for the unfettered use of jailhouse snitch testimony in criminal cases. Here, certain deals were made with a jailhouse snitch. While the jailhouse informant was a career criminal, who stole from, and lied to, members of his own family, when afforded the motive to lie; the snitch made up a story that Zimbeck confessed to him at CCNO.

The Defense, believing that the informer was lying about this, asked the Prosecutor to polygraph him, but the Prosecutor refused. The Prosecutor objected to the Defense request for a "reliability" hearing regarding this informer, and even chose not to call him as a live witness at hearing. But when subpoenaed by the Defense before the Court, the informer was demonstrated to be a liar.

If the Prosecutor, in the future, wants to use this sort of tactic to salvage a collapsing case, he may wish to avoid procedures implicitly providing a motive to lie; and undertake a neutral and thorough examination of such informant credibility by the use of "informer" protocols now adopted in other jurisdictions.

Justice is not served by using criminal informants to gain a conviction based upon perjury. Especially where, as here, the Defendant passed a polygraph, and the DNA didn't match, the Prosecutor should have never stooped to that. The use of jailhouse informant testimony to attempt to salvage an unsubstantiated charge was essentially a "Hail Mary" pass,
and in court, as in football, it rarely succeeds.

Amber L. VanGunten
Gregory L. VanGunten
Counsel for Walter Zimbeck

(This information is from the Fulton County Expositor , a media partner of FOX Toledo News.)