The Removal of Erie County Prosecutor, Kevin Baxter

Hello,

Please help us support the removal of Erie County Prosecutor, Kevin  J. Baxter. Kevin Baxter is the Prosecutor of Erie County, in Sandusky, Ohio. 
In 1994 Kevin Baxter convicted our Dad of seven counts of murder. We were only 2 and 5 years old when this tragedy happened. When my Dad was accused of this murder, our Mother, in disbelief ,expressed to us ,that our Dad was framed by the Prosecutor. As our Dad was faced with a life sentence, she continued to stand behind him, never to give up seeking ways to expose Kevin Baxter. My Mom, explained to us as we got older that Kevin Baxter had intimidated my Dad's alibi and the prosecutor's key witness.  Kevin Baxter forced his key witness to perjure herself on the witness stand at my Dad's trial.  This is truly worth reading and most importantly it's worth believing.  Please read our Dad's story and stand behind our fight.  It's one thing to go to prison for something you've  done, it's another to go for something that you haven't done. This could happen to you or your loved ones.  I'm a junior in college, majoring in political science on the deans list, pursuing a career in law. My brother, is a Jr. in high school and stand out basketball player with colleges expressing interest. Our Dad is very proud that we have faired well in his absence and we are even just as proud that our Dad is standing strong and holding on. We have been deprived by not having our Dad see us grow into the fine young men that we have become so we long for that day when we are reunited and our Dad is Exonerated of all charges. We would like to add that our Dad is not the only victim of justice at the hands of  Kevin Baxter, just google his name and his accusers will appear. God Bless !!!! 

On Friday, November, 6th,  The federal Magistrate recommended the federal court order a writ of habeas corpus, which could pave the way for Dewitt McDonald to get a new trial. U.S. Magistrate Judge Vernelis Armstrong concluded that Erie County prosecutor Kevin Baxter had a prior relationship with Krista Harris, a key witness for the prosecution in the murder case. This was music to our ears, tears of joy filled our home and God had finally allowed for his will to be done and my mother's claim of what she has always believed had finally come true.  She always said the only thing Dad was ever guilty of, was marital indiscretion

Here are the factual allegations that were presented to and considered by the federal court in granting Dewitt McDonald's habeas petition. This is all public record with the federal district court clerk. The references in the parentheses are to the appendix to the traverse, and this is also a public record:

Dewitt McDonald's incarceration stems from charges that he aided and abetted two other men in the commission of a drive-by shooting. Despite the flexibility inherent in those charges, the State proceeded on the theory that Mr. McDonald was present at the place and at the time of the shooting. (A0222-A0228, A0375-A0376, A0381, A0388-A0389.)
When the State first brought its case to a grand jury, it was unable to secure an indictment. (A0103, A0300-A0301.) At those proceedings before the first grand jury, Krista Harris testified that she had made arrangements to meet Mr. McDonald at a motel room, that she had rented a room on the evening before the shooting the shooting, and that Mr. McDonald had arrived in the early morning hours (i.e., 2:00 a.m. to 2:30 a.m.) well before the shootings occurred. (A0122-A0124.)
Several months later, however, Ms. Harris suddenly reversed course. (A0125.) At a second grand jury proceeding, she testified, inter alia, that Mr. McDonald was not with her at the time of the shootings, that when he did arrive he appeared nervous and shaken, that he went to retrieve the gun used in the shooting later that morning, that he threatened to harm her if she cooperated with the police, and that he intended to use her as an alibi witness. (A00140-A0146, A0149-A0150, A0156, A0159.) The second grand jury returned an indictment. (See A0103, A0300- A0301.)
At trial, the State did not present any evidence that Mr. McDonald had assisted the other two (2) men in the commission of the shooting. There was no evidence, for example, that he provided the other men with the car or the weapon used during the shooting. Similarly, there was no evidence placing him at the scene of the shooting. Instead, the State relied on Ms. Harris's testimony to obtain Mr. McDonald's conviction. (A0389-A0390.)
Ms. Harris has since admitted that she provided false testimony against Mr. McDonald. (A0045.) She contends that the prosecuting attorney knowingly suborned her perjury through threats of prosecution (there is no question that Baxter did threaten Krista Harris with prosecution for perjury and as an accomplice. See A0111, A0112. Harris has indicated that there were additional threats outside the first grand jury proceedings, however) and a non-consensual sexual relationship. (Id.) She has confirmed these statements in an interview with Ohio BCI Agent Rhonda Dandinger in December of 2001. A.0399-A0417.
A. The Shooting
In the early morning hours of June 6, 1994, Shawn Caston, Daryl Turner, and Dewitt McDonald were seen drinking at Whitlee's Bar in Sandusky, Ohio. (A0078-A0081.) At some point during the night, Shawn Caston got into an argument with another man, Jerome Caffey. (Id.; A0280-A0282.) After the argument ended, Caston fumed about Caffey. (A0079-A0080.) He was overheard saying that Caffey did not know %u201Cwho he [was] messing with.%u201D (A0080.) Caston also said, %u201C[H]e better be glad I'm riding with someone else and they aren't ready to go.%u201D (Id.) %u201C[I]f I had my little Chevy,%u201D Caston apparently continued, %u201CJerome would see who he was f*****%u2019 [sic] with.%u201D (Id.) And Caston would later remark, %u201C[F]*** this, I am gonna to show that n*****.%u201D (Id.)
As Caston fumed, Daryl Turner said that %u201CCaston should just take care of business.%u201D (A0079.) Apparently, Caston was also told that he should %u201Cjust cap one of those little n*****s.%u201D (A0080.)
At around 2:15%u20132:30 am, the three men left the bar in Mr. McDonald's car, a white Mercury Sable. (A0079, A0081, A0094, A0249-A0251, A0257, A0282, A0307.) Shortly thereafter, they were seen at a Shell gas station. (A0079, A0249-A0251, A0257, A0282.) At the gas station, Shawn Caston was apparently asking other people for a ride so that he could go get a gun at Turner's house. (A0094, A0185-A0186.)
At around 3:00 a.m., a small, dark Chevrolet sat in the middle of East Parish Street, directly in front of Caffey's residence. (A0071, A0297, A0367.) As a woman stepped out from the house, someone from within the car began to open fire. (A0229, A0244, A0367.) The woman thought she saw two (2) men sitting in the car. (A0371, A0171.)
As one of the last shots echoed in the night, people from within the house heard what sounded like glass popping. (A0172-A0173, A0368.) The car sped away, heading west on East Parish Street. (A0261.) At almost the same time, Jerome Caffey exited the house, gun already in hand. (A0258, A0262.) He ran across the street to a neighbor's house, Russell Huff%u2019s residence. (A0258, A0263.)
A call was placed to the police at 3:00 a.m., moments after the shooting ended. (A0071, A0297.) Just five minutes after the police and paramedics arrived, however, a gun shot went off across the street at Russell Huff%u2019s house. (A0247, A0253.) The police ordered the house's occupants out onto the front lawn and arrested them. (A0072, A0264.) During a subsequent search of the house, the police found Jerome Caffey's gun hidden in a dryer. (A0265.) Apparently, Mr. Caffey had discharged the weapon while trying to remove a round from the chamber. (A0264.) He was eventually charged with unlawful possession of firearm by a felon under disability. (A0102, A0167-A0168.)
The paramedics treated Sharon McGill for a gunshot wound to the thigh. (A0071, A0253.) She had been in Caffey's house at the time of the shooting. The bullet remains lodged somewhere in her abdomen. (A0253-A0254.)
The paramedics also attended to Vivian Johnson, who was bleeding from both sides of her neck. (A0071-A0072, A0309, A0369, A0370.) Ms. Johnson had been sitting in a car that was parked in front of Caffey's house at the time of the shooting. (A0071-A0072, A0367-A0368.) The car's passenger and driver's side windows had been shot out. (A0190, A0242, A0368.)
Ms. Johnson was rushed to a hospital and eventually airlifted to a medical center in Cleveland. (A0072, A0369.) She died on the following day. (A0069-A0070, A0370.) On her emergency room report, the attending physician indicated that a bullet had entered the right side of her neck, and exited out the left. (A0067.) The emergency room doctor's conclusion was consistent with the bullet having been fired from Caffey's residence, where Mr. Caffey had been seen exiting with a gun, not from the car that had fired upon the house from East Parish Street.
B. The Investigation
Almost immediately after the shooting, the police began to focus their attention on Caston, Turner, and Petitioner, DeWitt McDonald. (A0081, A0300-A0303.) The State quickly secured indictments against the former two. (A0088, A0095, A0294, A0296.) In addition to what is recounted above, the State had learned that Caston's girlfriend owned a small, dark Chevrolet Celebrity. (A0083-A0084.) Although an initial search of the vehicle produced nothing of interest, on a subsequent inspection the police discovered a shell casing cradled between the windshield and the front hood. (A0083-A0084, A0087, A0292-A0294.) This casing matched casings that had been found at the crime scene. (A0294, A0330- A0333.) The State also had learned that Daryl Turner owned a gun that was capable of firing the bullets that had been found at the crime scene, and that Turner had given this gun to Caston on the night of the shooting. (A0085, A0090, A0291.)
In contrast, the State's investigation of Mr. McDonald revealed exculpatory evidence. (A0103, A0300-A0301.) The police had learned that Mr. McDonald had been with Krista Harris in a motel room at the time of the shooting. (A0305-A0306.) They also learned that Ms. Harris had, in fact, rented a room at the Budget Inn in Sandusky. (A0306.)
C. Harris's Initial Grand Jury Testimony
At the first grand jury proceedings, Ms. Harris testified consistent with her prior statements to the police that Mr. McDonald had been with her at the time of the shootings. (A0122.) Specifically, she testified, under oath, that Mr. McDonald had arrived at the motel around 2:30 a.m.. (A0124.) During this line of questioning, Kevin Baxter showed signs of anger; he called her a liar and threatened to charge Ms. Harris with being an accessory to murder. (A0111-A0112, A0355.) At the conclusion of these proceedings, the State lacked probable cause to secure an indictment against Mr. McDonald. (A0103, A0300-A0301.)
D. Harris's Subsequent Grand Jury Testimony
Later that summer, however, Ms. Harris suddenly reversed course. At a subsequent grand jury proceeding, she testified that Mr. McDonald was not with her at the time of the shooting. (A0126, A0140.) She also testified that Mr. McDonald had called Daryl Turner on the morning of the shooting, that he had learned that the three (3) men were rumored to have been involved in the shooting, and that upon learning this he told Turner that "things were all f****d up" and they needed to get the gun. (A00140-A0142, A0183-A0184, A0356-A0360.) She then testified that Mr. McDonald left the motel to pick up Turner, and when the two men returned, Turner was carrying a duffle bag. (A0143-A0146, A0184, A0356-A0360.) Finally, she testified that Mr. McDonald told her that he intended to use her as an alibi witness, and that he had made veiled threats to keep her from cooperating with the police. (A0149-A0150, A0156, A0159.) Not surprisingly, the grand jury returned an indictment. (See A0103, A0300-A0301.)
E. McDonald's Trial
Mr. Baxter tried the three men in separate jury trials before the same judge. Dewitt McDonald was the last to be tried. During opening statements, Mr. Baxter stated that the evidence would show that Shawn Caston had gotten into a fight with Jerome Caffey at a bar; that the three men were seen later that morning in a car at a gas station; that a different car was used during the shooting; that a neighbor saw three (3) men sitting in the car; and that Mr. McDonald did not arrive at the motel until 3:15 a.m.. (A0222-A0226.) He also stated that the evidence would show, inter alia, that Mr. McDonald went with Daryl Turner to retrieve the firearm, that he planned to use Ms. Harris as an alibi witness, and that he had threatened her. (A0226-A0228.)
Aside from Krista Harris's testimony, the State only presented three pieces of evidence that suggested that Mr. McDonald was involved directly in the shootings.
First, Danielle Fenderson testified that, at Whitlee's Bar, she overheard Mr. McDonald tell Shawn Caston that "he wouldn't waste his time on one of them; [h]e would cap one of them." (A0282.) On cross-examination, Ms. Fenderson admitted that she did not initially tell the police that she had heard that statement, and she admitted that she had not previously attributed that statement to Mr. McDonald. (A0284-A0286.) She also admitted that, in the interim, the police had threatened her with charges of perjury. (A0287-A0288.) Sharon McGill contradicted Ms. Fenderson's testimony. McGill testified that Mr. McDonald "didn't say anything." (A0256.) She also testified that Mr. McDonald did not appear to be upset. (A0255.)
Second, the State presented evidence that Mr. McDonald was with the other men at a gas station at around 2:30 a.m.. (A0249-A0251, A0257, A0283.) The men were seen in Mr. McDonald's white Mercury Sable, but not the car that was used in the shooting. (Id.)
Finally, the State elicited testimony from Terry McDonald (a distant relative of Dewitt McDonald but a close friend of Shawn Caston) that he had observed Jerome Caffey get into an argument with Dewitt McDonald the day before the shooting. (A0313-A0315.) Even the State had reason to doubt the veracity of Terry McDonald%u2019s testimony. (A0201-A0202, A0203-A0208.)
At Shawn Caston's trial, the defense called Terry McDonald as its principal alibi witness. (A0192, A0216, A0318.) Terry testified that Mr. Caston was severely intoxicated on the night in question that he was too drunk to have carried out the shooting. (A0196- A 0200, A0171.) He also testified that he had observed Jerome Caffey and Dewitt McDonald get into an argument the day before the shooting. (A0193-A0195.)
Mr. Baxter responded with disbelief. (A0201-A0202.) When Terry McDonald appeared before the grand jury, he had testified that he did not have any information of relevance to the investigation of Dewitt McDonald. (Id.) During a vigorous cross-examination at Shawn Caston's trial, Mr. Baxter suggested that Terry McDonald was telling a different story to help his friend, Shawn Caston. (Id.; A0203-A0208.) And during his closing argument, Mr. Baxter stated that Terry McDonald had "lied." (A0216.)
None of that stopped Mr. Baxter from calling Terry McDonald as a witness at Mr. McDonald's trial. (A0311.) Even though Terry's prior testimony had been inconsistent with the State's case against Shawn Caston, Mr. Baxter proceeded to elicit the same testimony from him at Mr. McDonald's trial. (A0313-A0315, A0317, A0321-A0322, cf. A0203-A0208.) The witness who Baxter had accused of lying to protect his friend now testified that Mr. McDonald had been in an argument with Mr. Caffey the day before the shooting. (Compare A0203-A0208, with A0316, A0323-0324, A0377-A0378.)
In addition to the three pieces of evidence that suggested that Mr. McDonald had some direct involvement in the shooting, the State presented evidence that there had been three (3) men in the small car that had been used to carry out the shooting. (A0260.) Russell Huff testified that he had seen the shooting from his window across the street, and that there were three (3) men in the car. (Id.) Russell Huff's testimony, however, differed from his testimony before the grand jury, and it differed from the statement he had given to the police. (A0077-A0078, A0270.) At the grand jury, he testified consistent with his prior statement to the police that he did not see the shooting. (A0272.) He explained that he had been asleep in his living room at that time. (A0270; cf. A0078.) He awoke to the sound of gun fire but thought that the noise was coming from a television set that he had left on. (A0271.) It was only after he turned off the television set that he realized that actual shots were being fired. (Id.) Having grown up in a rough neighborhood in Cleveland, Mr. Huff said he knew what to do next: He fell to the ground and took cover. (A0272.)
Since testifying at the grand jury, however, Mr. Huff had pled guilty to passing bad checks and-was serving the first of two 30-day sentences. (A0174, A0267, A0275.) He also had an unrelated felony charge looming over his head. (A0274, A0279.) He told the police that he had lied to the grand jury. (A0267.) He was now willing to testify that he saw a small, four-door car fire upon Jerome Caffey's house. (A0191, A0259.) More importantly, he claimed to have seen three (3) men sitting in the car. (A0260.) Based on these statements, Mr. Baxter was able to assist Mr. Huff in obtaining an early release from his second 30-day sentence. (A0269, A0276, A0278.) At the time of Mr. McDonald's trial, Mr. Huff still had not gone to trial on his own felony charge. (A0175, A0274.)
In any event, Mr. Huff s new account contradicted another witness's testimony. (A0171, A0371.) The victim's own sister, Tammy Johnson, testified that she had seen only two (2) men in the car at the time of the shooting. (Id.)
Mr. Baxter called Krista Harris as his second-to-last witness. (A0221.) She testified that Mr. McDonald did not arrive at the motel room until 3:15 am, and that when he did arrive he appeared shaken and nervous. (A0335-A0336.) She also testified that, later that morning, upon hearing of their rumored involvement, Mr. McDonald told Mr. Turner that "things were all f****d up and . . . that they had to get the gun." (A0337.) According to Ms. Harris, Mr. McDonald then went to pick up Turner, and when the two men returned, Turner was carrying a duffle bag. (A0337-A0338.) Ms. Harris then testified that, on another occasion, Mr. Turner admitted to her that he had given Shawn Caston his gun to take out Jerome Caffey, and that he (Turner) had been in the car at the time of the shooting. (A0340-A0341.) Finally, Ms. Harris testified that Mr. McDonald intended to use her as an alibi witness, and that he had made repeated and specific threats to her throughout the summer. (A0339, A0341-A0345, A0364.)
The defense did not call any witnesses, and Mr. McDonald elected not to testify in his own defense. (A0372-A0373.)
During closing statements, Mr. Baxter argued that all of the evidence established that Mr. McDonald was %u201Cinvolved in the murder,%u201D but he neglected to explain how Mr. McDonald was involved. (A0374.) Instead, he emphasized that Mr. McDonald was present at the time of the shooting, and that he had helped Mr. Turner hide the weapon afterwards. (A0390.) He would go so far as to suggest that Mr. McDonald could be convicted solely on this basis: %u201CAll these things are so very evident of guilt, so very clear. The gun missing. Where's it at? They had to get the gun. Complicity.%u201D (Id.)
Mr. Baxter also argued that Ms. Harris had %u201Cstripped%u201D Mr. McDonald of %u201Cany defense in this case.%u201D (A0389.) He continued, %u201CKrista Harris is a hero in this case.%u201D (Id.) She %u201Cburie[d]%u201D the defense. (A0390.) The jury deliberated for sixteen (16) hours before convicting Mr. McDonald on all counts. (A0392.) The trial judge sentenced him principally to a term of life in prison with no eligibility for parole for twenty (20) years. (A0063-A0066.) At his sentencing hearing, Mr. McDonald stated:
There [were] two tragedies done this past year, the first one being Miss Vivian Johnson's death, and the second one is me going to jail. I was innocent. I didn't have anything to do with it, and I think that's very tragic for a person to be a citizen of the United States and go to jail for something he did not do.(A0391.)
F. Harris's Recantation
Almost two years after Mr. McDonald's first petition had been denied, Ms. Harris filed an affidavit in State court, in which she asserted that Erie County Prosecutor Kevin Baxter coerced her into providing false testimony at Mr. McDonald's trial. (A0045.) Specifically, she stated that she had provided %u201Cfalse testimony in the trials of State v. Daryl Turner and State v. Dewitt McDonald.%u201D (Id.) She also stated that Erie County Prosecutor Kevin Baxter knowingly procured her perjured testimony through %u201Cthreat of false criminal charges%u201D and a %u201Cnon-consensual sexual relationship.%u201D (Id.)
These accusations have been corroborated by Mr. Baxter's brother, Edward Baxter, who has likewise signed a sworn affidavit. (A0048.) In that affidavit, Edward Baxter states that he %u201Chas first-hand knowledge that Erie County Prosecutor, Kevin Baxter, coerced Krista Harris to lie in a drive-by shooting [case] then forced her into a non[-]consensual sexual relationship.%u201D (A0051.)
G. Caston's %uFFFD 2254 Petition
In the mean time, Shawn Caston had challenged his conviction in the United States District Court for the Northern District of Ohio. See Petition of Caston, Caston v. Mitchell, No. 3:98-cv-7099 (N.D. Ohio). He alleged that he had received the ineffective assistance of trial and appellate counsel in failing to object and raise on appeal the introduction of statements that the police had obtained from Caston in violation of his constitutional rights. Id. Judge John Potter concluded that the police had violated Mr. Caston's constitutional rights, that the statements that the police had obtained were highly prejudicial, and that counsel's failure to move to suppress the statements at trial and to raise this argument on appeal were objectively unreasonable. Caston v. Mitchell, No. 3:98-cv-7099 (N.D. Ohio Oct. 13, 1999) (unpublished). He granted conditionally Caston's petition for a writ of habeas corpus and ordered that the writ would issue if the State failed to grant Caston a new trial within 90 days from date on which the order became final. Id. The Sixth Circuit affirmed in an unpublished opinion. Caston v. Mitchell, 12 Fed. Appx. 208 (6th Cir. 2001) (per curiam).
After the Sixth Circuit issued its decision, Shawn Caston negotiated a plea deal with Mr. Baxter. According to the terms of the deal, Mr. Caston agreed to plead guilty to a reduced charge of voluntary manslaughter and received credit for time served. (A0394.)
Before accepting his plea, however, the Erie County Court of Common Pleas ordered Shawn Caston to submit to a polygraph examination. During that examination, Mr. Caston stated that %u201Che (Caston) drove by%u201D Jerome Caffey's house, pointed %u201Ca Tech 9 handgun" out the driver's side window, %u201Cand fired several times at the house.%u201D (A0058.) He also stated that %u201C[a]fter driving by he turned off and while leaving the area threw the Tech 9 into the bushes on McKinley Street.%u201D (Id.) Mr. Caston did not state that Mr. McDonald was with him at the time of the shooting. (Id.) The examiner concluded that Caston had %u201Ctold the substantial truth during the examination.%u201D (Id.)
H. McDonald's First Petition for State Post-Conviction Relief
Shortly after Ms. Harris filed her affidavit and Mr. Caston had taken his polygraph examination, Mr. McDonald filed in the Erie County Court of Common Pleas a petition for state post-conviction relief. The court denied the petition; the Ohio Court of Appeals affirmed; and on July 13, 2005, the Supreme Court of Ohio denied leave to appeal.
I. Caffey's Confession
On September 19, 2005, Vivian Johnson's son, Jermaine Johnson, signed a sworn affidavit, in which he stated that Jerome Caffey had confessed to him, "I killed [your] momma." (A0061.) Mr. Johnson's wife, Jihan Johnson, signed a similar affidavit. (A0062.) These statements corroborated the emergency room doctor's conclusion that the bullet that killed Ms. Johnson had entered from the right side of her neck. (A0067.)
J. McDonald's Second Petition for State Post-Conviction Relief
On October 29, 2005, Mr. McDonald filed a second petition for state post-conviction relief based on the Johnson affidavits. Once again, the Erie County Court of Common Pleas denied the petition, and the Ohio Court of Appeals affirmed. See Addendum B.
K. McDonald's Second %uFFFD 2254 Petition
On June 30, 2006, Mr. McDonald sent the Sixth Circuit a pro se motion for an order authorizing the United States District Court to consider a second or successive petition for a writ of habeas corpus. The Southern Christian Leadership Conference subsequently filed an amicus curiae brief in support of Mr. McDonald's motion and his claim of actual innocence.
On January 10, 2008, the Sixth Circuit issued an opinion and order directing the district court to allow McDonald to proceed with his successor habeas petition. Recognizing that Mr. McDonald's claims warrant further factual development, the Sixth circuit held as follows:
Thus while this standard does require that we evaluate McDonald's new evidence in light of the evidence as a whole," a court of appeals need only find that McDonald has satisfied the prima facie standard advanced under 28 U.S.C. %uFFFD 2244(b)(3)((). And, as we have previously explained, %u201C%u2018Prima facie%u2019 in this context means simply sufficient allegations of fact together with some documentation that would %u2018warrant a fuller exploration in the district court.%u2019%u201D In re Lott, 366 F.3d at 433 (quoting Bennett v. Untied States, 119 F.3d 468, 469 (7th Cir. 1997)).
***
McDonald satisfies this standard. At McDonald's trial, the state did not present any eyewitnesses who saw McDonald at the scene of the crime - only a witness who saw three individuals in a car from where shots were tired. The state also presented testimony regarding McDonald's role in the underlying altercation that allegedly served as the impetus for the shooting. However, given the lack of direct evidence linking McDonald to the underlying crimes, Harris's recanting of her trial testimony looms large. The existence of an alleged relationship between Harris and the prosecutor combined with the possibility that Harris could have provided McDonald with an alibi at trial clearly should %u201Cundermine our confidence in the verdict," Kyles, 514 U.S. at 435, and therefore "'warrant[s] a fuller exploration in the distract court."' In re Lott, 366 F.3d at 433 (quoting Bennett, 119 F.3d at 469)). Thus McDonald has made the requisite prima facie case necessary for this court to grant him permission to file a second habeas corpus petition.
In re: Dewitt McDonald, Jr., 514 F.3d 539, 546-47 (6th Cir. 2008).
L. INVESTIGATION CONDUCTED FOR THE HABEAS PETITION
Counsel for Petitioner was able to depose Krista Harris on Friday, July 3, 2009, after three (3) prior attempts failed. Ms. Harris actively avoided personal service of the subpoena, refused to pick up certified mail and did not respond to residential service, ordinary mail service or a letter and subpoena sent via Federal Express. Service was finally achieved when the undersigned attorney contacted her parole officer, Robert Moffett, and prevailed upon him to ask her to cooperate Harris begrudgingly agreed to appear at a deposition which was rescheduled to a Friday for her convenience. However, at this deposition she claimed she could not recall anything due to Post Traumatic Stress Disorder, diagnosed by a prison psychologist who told her she should repress all her traumatic memories. See Deposition Transcript of Krista Harris.
Two facts can be inferred with confidence from her testimony. First, Ms. Harris was given the opportunity to confirm or deny the statements in her affidavit and she did neither. Second, she stated that she feared retaliation from Kevin Baxter, among others.
Fear of retaliation by Kevin Baxter is a recurring theme in this case. Baxter%u2019s brother, E.J. Baxter explained his fear in some detail. See, e.g., A0396-A0396 (he spoke with an investigator about the McDonald case in January, 2008 and his house was burned down by an arsonist in February, 2008. Debra Pribanic testified at a deposition held on June 12, 2009 that she observed Kevin Baxter ingest cocaine in Key West, Florida in the fall of either 1993 or 1994. See Pribanic Deposition at Tr. 10. She is concerned that Kevin Baxter will retaliate against her for giving this testimony. Tr. 16-22.
Although her deposition testimony was less than enlightening, due in part-perhaps-to a fear of retaliation, Krista Harris has provided additional exposition of the statements in her affidavit. This occurred in 2001 as a result of a BCI investigation initiated at the request of then Chief of Police Robert Runner. BCI Agent Dendinger interviewed Ms. Harris on multiple occasions. I these interviews Krista Harris made the following specific comments about her trail testimony:
%u2022 She could not be certain about the times she saw McDonald the night of the shootings (A0405);
%u2022 Baxter coerced her into testifying the way she testified at McDonald%u2019s trial (Id.);
%u2022 Baxter told her to lie at both Daryl Turner and McDonald%u2019s trial (A0413);
%u2022 Harris stated she lied when asked if she testified truthfully (Id.);
%u2022 Harris stated she lied when she testified that she came forward voluntarily after her first grand jury testimony (Id.);
%u2022 She lied when she testified at the McDonald trial that she overheard McDonald tell Turner the morning after the shooting that they had to get rid of the gun (Id.);
%u2022 She lied when she testified at the McDonald trial that she saw Turner with a bag at the hotel the morning after the shootings (Id.);
During the BCI interviews, Harris made the following specific comments about other matters raised in her affidavit or otherwise relevant to the issues herein:
%u2022 She first reviewed her testimony prior to McDonald%u2019s trial in Baxter%u2019s office (A0410);
%u2022 Then, closer to trial, Baxter called her at her home and asked that she come to his house and review her testimony (Id.);
%u2022 When Harris arrived at Baxter%u2019s house %u201Cwine was already poured%u201D (Id.);
%u2022 Harris drank two (2) glasses of wine during this occasion (Id.);
%u2022 Baxter fondled Harris during this occasion (Id.);
%u2022 Baxter had sex with her during this occasion (Id.);
%u2022 Harris saw Baxter frequently during this period of time (Id.);
%u2022 Harris saw Baxter use cocaine during this period of time (Id.);
%u2022 Baxter wanted to move Harris out of the area because he was afraid someone would find out or she would tell someone (Id.);
%u2022 Baxter wrote a check for $800.00 to Janet Torres and paid for the u-haul to move Harris out of Sandusky (Id.);
%u2022 Harris did not want to go to the Police Dept. or be interviewed in downtown Sandusky by the BCI agent (A0411);
%u2022 Harris stated her testimony at the Turner and McDonald trials %u201Cwas completely scripted%u201D (A0413);
%u2022 Harris stated she lied about coming forward voluntarily (Id.);
%u2022 When she drank two glasses of wine at Baxter%u2019s personal residence she %u201Cfelt out of it%u201D and that she really did not want to have sex with Baxter (A0414);
%u2022 Harris described Baxter%u2019s personal residence as having a private drive and:
-there is a closet by the entrance;
-turn right to the living room;
l -living room as white sofa and glass coffee table;
-Baxter did cocaine off the glass coffee table on later visits;
-entertainment center with a tv;
-bedroom walls painted a cream color with an oak dresser;
-large bathroom with sink on right as you enter and toilet and bathtub on the
left;
-[she drew a diagram off the house on BCI Agent Russell%u2019s notepad] (Id.);
%u2022 Baxter called after the first sexual encounter and told her %u201Cknowone [sic] could find out or she would be charged%u201D (Id.);
%u2022 After the trial Baxter called her and told her she could not tell anyone %u201Cor their lives would be over: and he gave her a transcript of the trial so she could keep the story straight (Id.);
%u2022 After the trial she had sex with Baxter at her home on Pierce Street between 10 and 20 times (Id.);
%u2022 She had sex with Baxter hat his residence 3 times after the first time at his personal residence (Id.);
%u2022 She also had sex with Baxter on Pear Street in Cleveland, the sex took place from 1994 through 1999 (Id.);
%u2022 She saw Baxter use cocaine at his personal residence the second time she was and then one other time (Id.);

%u2022 Harris%u2019 boyfriend in Cleveland, Orland Santaella, became suspicious that shew as having sex with Baxter (A0415);
%u2022 Baxter drove several different cars when he came to see her including a dark blue car, a 3 door red car, a gold car that looked like a Lexus, and a teal green pick-up truck (Id.);
%u2022 Det. Voltz of the Sandusky Police Dept. asked Spec. Pros. Dean Hollman why he had been assigned to prosecute Krista Harris. Hollman said that %u201Cit was private and personal%u201D. Id.
During the course of this investigation counsel has determined that there are additional items of evidentiary value in the possession of Ohio B.C.I. &I., including a videotape of the second Krista Harris interview. "
Please sign our petition to have Erie County, Kevin Baxter removed from office.  He should not be practicing law.......attaching his interview on November 9th, 2009      

http://www.erie-county-ohio.net/prosecutor/video_wlec.shtml

Hello,

Please help us support the removal of Erie County Prosecutor, Kevin  J. Baxter. Kevin Baxter is the Prosecutor of Erie County, in Sandusky, Ohio. 
In 1994 Kevin Baxter convicted our Dad of seven counts of murder. We were only 2 and 5 years old when this tragedy happened. When my Dad was accused of this murder, our Mother, in disbelief ,expressed to us ,that our Dad was framed by the Prosecutor. As our Dad was faced with a life sentence, she continued to stand behind him, never to give up seeking ways to expose Kevin Baxter. My Mom, explained to us as we got older that Kevin Baxter had intimidated my Dad's alibi and the prosecutor's key witness.  Kevin Baxter forced his key witness to perjure herself on the witness stand at my Dad's trial.  This is truly worth reading and most importantly it's worth believing.  Please read our Dad's story and stand behind our fight.  It's one thing to go to prison for something you've  done, it's another to go for something that you haven't done. This could happen to you or your loved ones.  I'm a junior in college, majoring in political science on the deans list, pursuing a career in law. My brother, is a Jr. in high school and stand out basketball player with colleges expressing interest. Our Dad is very proud that we have faired well in his absence and we are even just as proud that our Dad is standing strong and holding on. We have been deprived by not having our Dad see us grow into the fine young men that we have become so we long for that day when we are reunited and our Dad is Exonerated of all charges. We would like to add that our Dad is not the only victim of justice at the hands of  Kevin Baxter, just google his name and his accusers will appear. God Bless !!!! 

On Friday, November, 6th,  The federal Magistrate recommended the federal court order a writ of habeas corpus, which could pave the way for Dewitt McDonald to get a new trial. U.S. Magistrate Judge Vernelis Armstrong concluded that Erie County prosecutor Kevin Baxter had a prior relationship with Krista Harris, a key witness for the prosecution in the murder case. This was music to our ears, tears of joy filled our home and God had finally allowed for his will to be done and my mother's claim of what she has always believed had finally come true.  She always said the only thing Dad was ever guilty of, was marital indiscretion

Here are the factual allegations that were presented to and considered by the federal court in granting Dewitt McDonald's habeas petition. This is all public record with the federal district court clerk. The references in the parentheses are to the appendix to the traverse, and this is also a public record:

Dewitt McDonald's incarceration stems from charges that he aided and abetted two other men in the commission of a drive-by shooting. Despite the flexibility inherent in those charges, the State proceeded on the theory that Mr. McDonald was present at the place and at the time of the shooting. (A0222-A0228, A0375-A0376, A0381, A0388-A0389.)
When the State first brought its case to a grand jury, it was unable to secure an indictment. (A0103, A0300-A0301.) At those proceedings before the first grand jury, Krista Harris testified that she had made arrangements to meet Mr. McDonald at a motel room, that she had rented a room on the evening before the shooting the shooting, and that Mr. McDonald had arrived in the early morning hours (i.e., 2:00 a.m. to 2:30 a.m.) well before the shootings occurred. (A0122-A0124.)
Several months later, however, Ms. Harris suddenly reversed course. (A0125.) At a second grand jury proceeding, she testified, inter alia, that Mr. McDonald was not with her at the time of the shootings, that when he did arrive he appeared nervous and shaken, that he went to retrieve the gun used in the shooting later that morning, that he threatened to harm her if she cooperated with the police, and that he intended to use her as an alibi witness. (A00140-A0146, A0149-A0150, A0156, A0159.) The second grand jury returned an indictment. (See A0103, A0300- A0301.)
At trial, the State did not present any evidence that Mr. McDonald had assisted the other two (2) men in the commission of the shooting. There was no evidence, for example, that he provided the other men with the car or the weapon used during the shooting. Similarly, there was no evidence placing him at the scene of the shooting. Instead, the State relied on Ms. Harris's testimony to obtain Mr. McDonald's conviction. (A0389-A0390.)
Ms. Harris has since admitted that she provided false testimony against Mr. McDonald. (A0045.) She contends that the prosecuting attorney knowingly suborned her perjury through threats of prosecution (there is no question that Baxter did threaten Krista Harris with prosecution for perjury and as an accomplice. See A0111, A0112. Harris has indicated that there were additional threats outside the first grand jury proceedings, however) and a non-consensual sexual relationship. (Id.) She has confirmed these statements in an interview with Ohio BCI Agent Rhonda Dandinger in December of 2001. A.0399-A0417.
A. The Shooting
In the early morning hours of June 6, 1994, Shawn Caston, Daryl Turner, and Dewitt McDonald were seen drinking at Whitlee's Bar in Sandusky, Ohio. (A0078-A0081.) At some point during the night, Shawn Caston got into an argument with another man, Jerome Caffey. (Id.; A0280-A0282.) After the argument ended, Caston fumed about Caffey. (A0079-A0080.) He was overheard saying that Caffey did not know %u201Cwho he [was] messing with.%u201D (A0080.) Caston also said, %u201C[H]e better be glad I'm riding with someone else and they aren't ready to go.%u201D (Id.) %u201C[I]f I had my little Chevy,%u201D Caston apparently continued, %u201CJerome would see who he was f*****%u2019 [sic] with.%u201D (Id.) And Caston would later remark, %u201C[F]*** this, I am gonna to show that n*****.%u201D (Id.)
As Caston fumed, Daryl Turner said that %u201CCaston should just take care of business.%u201D (A0079.) Apparently, Caston was also told that he should %u201Cjust cap one of those little n*****s.%u201D (A0080.)
At around 2:15%u20132:30 am, the three men left the bar in Mr. McDonald's car, a white Mercury Sable. (A0079, A0081, A0094, A0249-A0251, A0257, A0282, A0307.) Shortly thereafter, they were seen at a Shell gas station. (A0079, A0249-A0251, A0257, A0282.) At the gas station, Shawn Caston was apparently asking other people for a ride so that he could go get a gun at Turner's house. (A0094, A0185-A0186.)
At around 3:00 a.m., a small, dark Chevrolet sat in the middle of East Parish Street, directly in front of Caffey's residence. (A0071, A0297, A0367.) As a woman stepped out from the house, someone from within the car began to open fire. (A0229, A0244, A0367.) The woman thought she saw two (2) men sitting in the car. (A0371, A0171.)
As one of the last shots echoed in the night, people from within the house heard what sounded like glass popping. (A0172-A0173, A0368.) The car sped away, heading west on East Parish Street. (A0261.) At almost the same time, Jerome Caffey exited the house, gun already in hand. (A0258, A0262.) He ran across the street to a neighbor's house, Russell Huff%u2019s residence. (A0258, A0263.)
A call was placed to the police at 3:00 a.m., moments after the shooting ended. (A0071, A0297.) Just five minutes after the police and paramedics arrived, however, a gun shot went off across the street at Russell Huff%u2019s house. (A0247, A0253.) The police ordered the house's occupants out onto the front lawn and arrested them. (A0072, A0264.) During a subsequent search of the house, the police found Jerome Caffey's gun hidden in a dryer. (A0265.) Apparently, Mr. Caffey had discharged the weapon while trying to remove a round from the chamber. (A0264.) He was eventually charged with unlawful possession of firearm by a felon under disability. (A0102, A0167-A0168.)
The paramedics treated Sharon McGill for a gunshot wound to the thigh. (A0071, A0253.) She had been in Caffey's house at the time of the shooting. The bullet remains lodged somewhere in her abdomen. (A0253-A0254.)
The paramedics also attended to Vivian Johnson, who was bleeding from both sides of her neck. (A0071-A0072, A0309, A0369, A0370.) Ms. Johnson had been sitting in a car that was parked in front of Caffey's house at the time of the shooting. (A0071-A0072, A0367-A0368.) The car's passenger and driver's side windows had been shot out. (A0190, A0242, A0368.)
Ms. Johnson was rushed to a hospital and eventually airlifted to a medical center in Cleveland. (A0072, A0369.) She died on the following day. (A0069-A0070, A0370.) On her emergency room report, the attending physician indicated that a bullet had entered the right side of her neck, and exited out the left. (A0067.) The emergency room doctor's conclusion was consistent with the bullet having been fired from Caffey's residence, where Mr. Caffey had been seen exiting with a gun, not from the car that had fired upon the house from East Parish Street.
B. The Investigation
Almost immediately after the shooting, the police began to focus their attention on Caston, Turner, and Petitioner, DeWitt McDonald. (A0081, A0300-A0303.) The State quickly secured indictments against the former two. (A0088, A0095, A0294, A0296.) In addition to what is recounted above, the State had learned that Caston's girlfriend owned a small, dark Chevrolet Celebrity. (A0083-A0084.) Although an initial search of the vehicle produced nothing of interest, on a subsequent inspection the police discovered a shell casing cradled between the windshield and the front hood. (A0083-A0084, A0087, A0292-A0294.) This casing matched casings that had been found at the crime scene. (A0294, A0330- A0333.) The State also had learned that Daryl Turner owned a gun that was capable of firing the bullets that had been found at the crime scene, and that Turner had given this gun to Caston on the night of the shooting. (A0085, A0090, A0291.)
In contrast, the State's investigation of Mr. McDonald revealed exculpatory evidence. (A0103, A0300-A0301.) The police had learned that Mr. McDonald had been with Krista Harris in a motel room at the time of the shooting. (A0305-A0306.) They also learned that Ms. Harris had, in fact, rented a room at the Budget Inn in Sandusky. (A0306.)
C. Harris's Initial Grand Jury Testimony
At the first grand jury proceedings, Ms. Harris testified consistent with her prior statements to the police that Mr. McDonald had been with her at the time of the shootings. (A0122.) Specifically, she testified, under oath, that Mr. McDonald had arrived at the motel around 2:30 a.m.. (A0124.) During this line of questioning, Kevin Baxter showed signs of anger; he called her a liar and threatened to charge Ms. Harris with being an accessory to murder. (A0111-A0112, A0355.) At the conclusion of these proceedings, the State lacked probable cause to secure an indictment against Mr. McDonald. (A0103, A0300-A0301.)
D. Harris's Subsequent Grand Jury Testimony
Later that summer, however, Ms. Harris suddenly reversed course. At a subsequent grand jury proceeding, she testified that Mr. McDonald was not with her at the time of the shooting. (A0126, A0140.) She also testified that Mr. McDonald had called Daryl Turner on the morning of the shooting, that he had learned that the three (3) men were rumored to have been involved in the shooting, and that upon learning this he told Turner that "things were all f****d up" and they needed to get the gun. (A00140-A0142, A0183-A0184, A0356-A0360.) She then testified that Mr. McDonald left the motel to pick up Turner, and when the two men returned, Turner was carrying a duffle bag. (A0143-A0146, A0184, A0356-A0360.) Finally, she testified that Mr. McDonald told her that he intended to use her as an alibi witness, and that he had made veiled threats to keep her from cooperating with the police. (A0149-A0150, A0156, A0159.) Not surprisingly, the grand jury returned an indictment. (See A0103, A0300-A0301.)
E. McDonald's Trial
Mr. Baxter tried the three men in separate jury trials before the same judge. Dewitt McDonald was the last to be tried. During opening statements, Mr. Baxter stated that the evidence would show that Shawn Caston had gotten into a fight with Jerome Caffey at a bar; that the three men were seen later that morning in a car at a gas station; that a different car was used during the shooting; that a neighbor saw three (3) men sitting in the car; and that Mr. McDonald did not arrive at the motel until 3:15 a.m.. (A0222-A0226.) He also stated that the evidence would show, inter alia, that Mr. McDonald went with Daryl Turner to retrieve the firearm, that he planned to use Ms. Harris as an alibi witness, and that he had threatened her. (A0226-A0228.)
Aside from Krista Harris's testimony, the State only presented three pieces of evidence that suggested that Mr. McDonald was involved directly in the shootings.
First, Danielle Fenderson testified that, at Whitlee's Bar, she overheard Mr. McDonald tell Shawn Caston that "he wouldn't waste his time on one of them; [h]e would cap one of them." (A0282.) On cross-examination, Ms. Fenderson admitted that she did not initially tell the police that she had heard that statement, and she admitted that she had not previously attributed that statement to Mr. McDonald. (A0284-A0286.) She also admitted that, in the interim, the police had threatened her with charges of perjury. (A0287-A0288.) Sharon McGill contradicted Ms. Fenderson's testimony. McGill testified that Mr. McDonald "didn't say anything." (A0256.) She also testified that Mr. McDonald did not appear to be upset. (A0255.)
Second, the State presented evidence that Mr. McDonald was with the other men at a gas station at around 2:30 a.m.. (A0249-A0251, A0257, A0283.) The men were seen in Mr. McDonald's white Mercury Sable, but not the car that was used in the shooting. (Id.)
Finally, the State elicited testimony from Terry McDonald (a distant relative of Dewitt McDonald but a close friend of Shawn Caston) that he had observed Jerome Caffey get into an argument with Dewitt McDonald the day before the shooting. (A0313-A0315.) Even the State had reason to doubt the veracity of Terry McDonald%u2019s testimony. (A0201-A0202, A0203-A0208.)
At Shawn Caston's trial, the defense called Terry McDonald as its principal alibi witness. (A0192, A0216, A0318.) Terry testified that Mr. Caston was severely intoxicated on the night in question that he was too drunk to have carried out the shooting. (A0196- A 0200, A0171.) He also testified that he had observed Jerome Caffey and Dewitt McDonald get into an argument the day before the shooting. (A0193-A0195.)
Mr. Baxter responded with disbelief. (A0201-A0202.) When Terry McDonald appeared before the grand jury, he had testified that he did not have any information of relevance to the investigation of Dewitt McDonald. (Id.) During a vigorous cross-examination at Shawn Caston's trial, Mr. Baxter suggested that Terry McDonald was telling a different story to help his friend, Shawn Caston. (Id.; A0203-A0208.) And during his closing argument, Mr. Baxter stated that Terry McDonald had "lied." (A0216.)
None of that stopped Mr. Baxter from calling Terry McDonald as a witness at Mr. McDonald's trial. (A0311.) Even though Terry's prior testimony had been inconsistent with the State's case against Shawn Caston, Mr. Baxter proceeded to elicit the same testimony from him at Mr. McDonald's trial. (A0313-A0315, A0317, A0321-A0322, cf. A0203-A0208.) The witness who Baxter had accused of lying to protect his friend now testified that Mr. McDonald had been in an argument with Mr. Caffey the day before the shooting. (Compare A0203-A0208, with A0316, A0323-0324, A0377-A0378.)
In addition to the three pieces of evidence that suggested that Mr. McDonald had some direct involvement in the shooting, the State presented evidence that there had been three (3) men in the small car that had been used to carry out the shooting. (A0260.) Russell Huff testified that he had seen the shooting from his window across the street, and that there were three (3) men in the car. (Id.) Russell Huff's testimony, however, differed from his testimony before the grand jury, and it differed from the statement he had given to the police. (A0077-A0078, A0270.) At the grand jury, he testified consistent with his prior statement to the police that he did not see the shooting. (A0272.) He explained that he had been asleep in his living room at that time. (A0270; cf. A0078.) He awoke to the sound of gun fire but thought that the noise was coming from a television set that he had left on. (A0271.) It was only after he turned off the television set that he realized that actual shots were being fired. (Id.) Having grown up in a rough neighborhood in Cleveland, Mr. Huff said he knew what to do next: He fell to the ground and took cover. (A0272.)
Since testifying at the grand jury, however, Mr. Huff had pled guilty to passing bad checks and-was serving the first of two 30-day sentences. (A0174, A0267, A0275.) He also had an unrelated felony charge looming over his head. (A0274, A0279.) He told the police that he had lied to the grand jury. (A0267.) He was now willing to testify that he saw a small, four-door car fire upon Jerome Caffey's house. (A0191, A0259.) More importantly, he claimed to have seen three (3) men sitting in the car. (A0260.) Based on these statements, Mr. Baxter was able to assist Mr. Huff in obtaining an early release from his second 30-day sentence. (A0269, A0276, A0278.) At the time of Mr. McDonald's trial, Mr. Huff still had not gone to trial on his own felony charge. (A0175, A0274.)
In any event, Mr. Huff s new account contradicted another witness's testimony. (A0171, A0371.) The victim's own sister, Tammy Johnson, testified that she had seen only two (2) men in the car at the time of the shooting. (Id.)
Mr. Baxter called Krista Harris as his second-to-last witness. (A0221.) She testified that Mr. McDonald did not arrive at the motel room until 3:15 am, and that when he did arrive he appeared shaken and nervous. (A0335-A0336.) She also testified that, later that morning, upon hearing of their rumored involvement, Mr. McDonald told Mr. Turner that "things were all f****d up and . . . that they had to get the gun." (A0337.) According to Ms. Harris, Mr. McDonald then went to pick up Turner, and when the two men returned, Turner was carrying a duffle bag. (A0337-A0338.) Ms. Harris then testified that, on another occasion, Mr. Turner admitted to her that he had given Shawn Caston his gun to take out Jerome Caffey, and that he (Turner) had been in the car at the time of the shooting. (A0340-A0341.) Finally, Ms. Harris testified that Mr. McDonald intended to use her as an alibi witness, and that he had made repeated and specific threats to her throughout the summer. (A0339, A0341-A0345, A0364.)
The defense did not call any witnesses, and Mr. McDonald elected not to testify in his own defense. (A0372-A0373.)
During closing statements, Mr. Baxter argued that all of the evidence established that Mr. McDonald was %u201Cinvolved in the murder,%u201D but he neglected to explain how Mr. McDonald was involved. (A0374.) Instead, he emphasized that Mr. McDonald was present at the time of the shooting, and that he had helped Mr. Turner hide the weapon afterwards. (A0390.) He would go so far as to suggest that Mr. McDonald could be convicted solely on this basis: %u201CAll these things are so very evident of guilt, so very clear. The gun missing. Where's it at? They had to get the gun. Complicity.%u201D (Id.)
Mr. Baxter also argued that Ms. Harris had %u201Cstripped%u201D Mr. McDonald of %u201Cany defense in this case.%u201D (A0389.) He continued, %u201CKrista Harris is a hero in this case.%u201D (Id.) She %u201Cburie[d]%u201D the defense. (A0390.) The jury deliberated for sixteen (16) hours before convicting Mr. McDonald on all counts. (A0392.) The trial judge sentenced him principally to a term of life in prison with no eligibility for parole for twenty (20) years. (A0063-A0066.) At his sentencing hearing, Mr. McDonald stated:
There [were] two tragedies done this past year, the first one being Miss Vivian Johnson's death, and the second one is me going to jail. I was innocent. I didn't have anything to do with it, and I think that's very tragic for a person to be a citizen of the United States and go to jail for something he did not do.(A0391.)
F. Harris's Recantation
Almost two years after Mr. McDonald's first petition had been denied, Ms. Harris filed an affidavit in State court, in which she asserted that Erie County Prosecutor Kevin Baxter coerced her into providing false testimony at Mr. McDonald's trial. (A0045.) Specifically, she stated that she had provided %u201Cfalse testimony in the trials of State v. Daryl Turner and State v. Dewitt McDonald.%u201D (Id.) She also stated that Erie County Prosecutor Kevin Baxter knowingly procured her perjured testimony through %u201Cthreat of false criminal charges%u201D and a %u201Cnon-consensual sexual relationship.%u201D (Id.)
These accusations have been corroborated by Mr. Baxter's brother, Edward Baxter, who has likewise signed a sworn affidavit. (A0048.) In that affidavit, Edward Baxter states that he %u201Chas first-hand knowledge that Erie County Prosecutor, Kevin Baxter, coerced Krista Harris to lie in a drive-by shooting [case] then forced her into a non[-]consensual sexual relationship.%u201D (A0051.)
G. Caston's %uFFFD 2254 Petition
In the mean time, Shawn Caston had challenged his conviction in the United States District Court for the Northern District of Ohio. See Petition of Caston, Caston v. Mitchell, No. 3:98-cv-7099 (N.D. Ohio). He alleged that he had received the ineffective assistance of trial and appellate counsel in failing to object and raise on appeal the introduction of statements that the police had obtained from Caston in violation of his constitutional rights. Id. Judge John Potter concluded that the police had violated Mr. Caston's constitutional rights, that the statements that the police had obtained were highly prejudicial, and that counsel's failure to move to suppress the statements at trial and to raise this argument on appeal were objectively unreasonable. Caston v. Mitchell, No. 3:98-cv-7099 (N.D. Ohio Oct. 13, 1999) (unpublished). He granted conditionally Caston's petition for a writ of habeas corpus and ordered that the writ would issue if the State failed to grant Caston a new trial within 90 days from date on which the order became final. Id. The Sixth Circuit affirmed in an unpublished opinion. Caston v. Mitchell, 12 Fed. Appx. 208 (6th Cir. 2001) (per curiam).
After the Sixth Circuit issued its decision, Shawn Caston negotiated a plea deal with Mr. Baxter. According to the terms of the deal, Mr. Caston agreed to plead guilty to a reduced charge of voluntary manslaughter and received credit for time served. (A0394.)
Before accepting his plea, however, the Erie County Court of Common Pleas ordered Shawn Caston to submit to a polygraph examination. During that examination, Mr. Caston stated that %u201Che (Caston) drove by%u201D Jerome Caffey's house, pointed %u201Ca Tech 9 handgun" out the driver's side window, %u201Cand fired several times at the house.%u201D (A0058.) He also stated that %u201C[a]fter driving by he turned off and while leaving the area threw the Tech 9 into the bushes on McKinley Street.%u201D (Id.) Mr. Caston did not state that Mr. McDonald was with him at the time of the shooting. (Id.) The examiner concluded that Caston had %u201Ctold the substantial truth during the examination.%u201D (Id.)
H. McDonald's First Petition for State Post-Conviction Relief
Shortly after Ms. Harris filed her affidavit and Mr. Caston had taken his polygraph examination, Mr. McDonald filed in the Erie County Court of Common Pleas a petition for state post-conviction relief. The court denied the petition; the Ohio Court of Appeals affirmed; and on July 13, 2005, the Supreme Court of Ohio denied leave to appeal.
I. Caffey's Confession
On September 19, 2005, Vivian Johnson's son, Jermaine Johnson, signed a sworn affidavit, in which he stated that Jerome Caffey had confessed to him, "I killed [your] momma." (A0061.) Mr. Johnson's wife, Jihan Johnson, signed a similar affidavit. (A0062.) These statements corroborated the emergency room doctor's conclusion that the bullet that killed Ms. Johnson had entered from the right side of her neck. (A0067.)
J. McDonald's Second Petition for State Post-Conviction Relief
On October 29, 2005, Mr. McDonald filed a second petition for state post-conviction relief based on the Johnson affidavits. Once again, the Erie County Court of Common Pleas denied the petition, and the Ohio Court of Appeals affirmed. See Addendum B.
K. McDonald's Second %uFFFD 2254 Petition
On June 30, 2006, Mr. McDonald sent the Sixth Circuit a pro se motion for an order authorizing the United States District Court to consider a second or successive petition for a writ of habeas corpus. The Southern Christian Leadership Conference subsequently filed an amicus curiae brief in support of Mr. McDonald's motion and his claim of actual innocence.
On January 10, 2008, the Sixth Circuit issued an opinion and order directing the district court to allow McDonald to proceed with his successor habeas petition. Recognizing that Mr. McDonald's claims warrant further factual development, the Sixth circuit held as follows:
Thus while this standard does require that we evaluate McDonald's new evidence in light of the evidence as a whole," a court of appeals need only find that McDonald has satisfied the prima facie standard advanced under 28 U.S.C. %uFFFD 2244(b)(3)((). And, as we have previously explained, %u201C%u2018Prima facie%u2019 in this context means simply sufficient allegations of fact together with some documentation that would %u2018warrant a fuller exploration in the district court.%u2019%u201D In re Lott, 366 F.3d at 433 (quoting Bennett v. Untied States, 119 F.3d 468, 469 (7th Cir. 1997)).
***
McDonald satisfies this standard. At McDonald's trial, the state did not present any eyewitnesses who saw McDonald at the scene of the crime - only a witness who saw three individuals in a car from where shots were tired. The state also presented testimony regarding McDonald's role in the underlying altercation that allegedly served as the impetus for the shooting. However, given the lack of direct evidence linking McDonald to the underlying crimes, Harris's recanting of her trial testimony looms large. The existence of an alleged relationship between Harris and the prosecutor combined with the possibility that Harris could have provided McDonald with an alibi at trial clearly should %u201Cundermine our confidence in the verdict," Kyles, 514 U.S. at 435, and therefore "'warrant[s] a fuller exploration in the distract court."' In re Lott, 366 F.3d at 433 (quoting Bennett, 119 F.3d at 469)). Thus McDonald has made the requisite prima facie case necessary for this court to grant him permission to file a second habeas corpus petition.
In re: Dewitt McDonald, Jr., 514 F.3d 539, 546-47 (6th Cir. 2008).
L. INVESTIGATION CONDUCTED FOR THE HABEAS PETITION
Counsel for Petitioner was able to depose Krista Harris on Friday, July 3, 2009, after three (3) prior attempts failed. Ms. Harris actively avoided personal service of the subpoena, refused to pick up certified mail and did not respond to residential service, ordinary mail service or a letter and subpoena sent via Federal Express. Service was finally achieved when the undersigned attorney contacted her parole officer, Robert Moffett, and prevailed upon him to ask her to cooperate Harris begrudgingly agreed to appear at a deposition which was rescheduled to a Friday for her convenience. However, at this deposition she claimed she could not recall anything due to Post Traumatic Stress Disorder, diagnosed by a prison psychologist who told her she should repress all her traumatic memories. See Deposition Transcript of Krista Harris.
Two facts can be inferred with confidence from her testimony. First, Ms. Harris was given the opportunity to confirm or deny the statements in her affidavit and she did neither. Second, she stated that she feared retaliation from Kevin Baxter, among others.
Fear of retaliation by Kevin Baxter is a recurring theme in this case. Baxter%u2019s brother, E.J. Baxter explained his fear in some detail. See, e.g., A0396-A0396 (he spoke with an investigator about the McDonald case in January, 2008 and his house was burned down by an arsonist in February, 2008. Debra Pribanic testified at a deposition held on June 12, 2009 that she observed Kevin Baxter ingest cocaine in Key West, Florida in the fall of either 1993 or 1994. See Pribanic Deposition at Tr. 10. She is concerned that Kevin Baxter will retaliate against her for giving this testimony. Tr. 16-22.
Although her deposition testimony was less than enlightening, due in part-perhaps-to a fear of retaliation, Krista Harris has provided additional exposition of the statements in her affidavit. This occurred in 2001 as a result of a BCI investigation initiated at the request of then Chief of Police Robert Runner. BCI Agent Dendinger interviewed Ms. Harris on multiple occasions. I these interviews Krista Harris made the following specific comments about her trail testimony:
%u2022 She could not be certain about the times she saw McDonald the night of the shootings (A0405);
%u2022 Baxter coerced her into testifying the way she testified at McDonald%u2019s trial (Id.);
%u2022 Baxter told her to lie at both Daryl Turner and McDonald%u2019s trial (A0413);
%u2022 Harris stated she lied when asked if she testified truthfully (Id.);
%u2022 Harris stated she lied when she testified that she came forward voluntarily after her first grand jury testimony (Id.);
%u2022 She lied when she testified at the McDonald trial that she overheard McDonald tell Turner the morning after the shooting that they had to get rid of the gun (Id.);
%u2022 She lied when she testified at the McDonald trial that she saw Turner with a bag at the hotel the morning after the shootings (Id.);
During the BCI interviews, Harris made the following specific comments about other matters raised in her affidavit or otherwise relevant to the issues herein:
%u2022 She first reviewed her testimony prior to McDonald%u2019s trial in Baxter%u2019s office (A0410);
%u2022 Then, closer to trial, Baxter called her at her home and asked that she come to his house and review her testimony (Id.);
%u2022 When Harris arrived at Baxter%u2019s house %u201Cwine was already poured%u201D (Id.);
%u2022 Harris drank two (2) glasses of wine during this occasion (Id.);
%u2022 Baxter fondled Harris during this occasion (Id.);
%u2022 Baxter had sex with her during this occasion (Id.);
%u2022 Harris saw Baxter frequently during this period of time (Id.);
%u2022 Harris saw Baxter use cocaine during this period of time (Id.);
%u2022 Baxter wanted to move Harris out of the area because he was afraid someone would find out or she would tell someone (Id.);
%u2022 Baxter wrote a check for $800.00 to Janet Torres and paid for the u-haul to move Harris out of Sandusky (Id.);
%u2022 Harris did not want to go to the Police Dept. or be interviewed in downtown Sandusky by the BCI agent (A0411);
%u2022 Harris stated her testimony at the Turner and McDonald trials %u201Cwas completely scripted%u201D (A0413);
%u2022 Harris stated she lied about coming forward voluntarily (Id.);
%u2022 When she drank two glasses of wine at Baxter%u2019s personal residence she %u201Cfelt out of it%u201D and that she really did not want to have sex with Baxter (A0414);
%u2022 Harris described Baxter%u2019s personal residence as having a private drive and:
-there is a closet by the entrance;
-turn right to the living room;
l -living room as white sofa and glass coffee table;
-Baxter did cocaine off the glass coffee table on later visits;
-entertainment center with a tv;
-bedroom walls painted a cream color with an oak dresser;
-large bathroom with sink on right as you enter and toilet and bathtub on the
left;
-[she drew a diagram off the house on BCI Agent Russell%u2019s notepad] (Id.);
%u2022 Baxter called after the first sexual encounter and told her %u201Cknowone [sic] could find out or she would be charged%u201D (Id.);
%u2022 After the trial Baxter called her and told her she could not tell anyone %u201Cor their lives would be over: and he gave her a transcript of the trial so she could keep the story straight (Id.);
%u2022 After the trial she had sex with Baxter at her home on Pierce Street between 10 and 20 times (Id.);
%u2022 She had sex with Baxter hat his residence 3 times after the first time at his personal residence (Id.);
%u2022 She also had sex with Baxter on Pear Street in Cleveland, the sex took place from 1994 through 1999 (Id.);
%u2022 She saw Baxter use cocaine at his personal residence the second time she was and then one other time (Id.);

%u2022 Harris%u2019 boyfriend in Cleveland, Orland Santaella, became suspicious that shew as having sex with Baxter (A0415);
%u2022 Baxter drove several different cars when he came to see her including a dark blue car, a 3 door red car, a gold car that looked like a Lexus, and a teal green pick-up truck (Id.);
%u2022 Det. Voltz of the Sandusky Police Dept. asked Spec. Pros. Dean Hollman why he had been assigned to prosecute Krista Harris. Hollman said that %u201Cit was private and personal%u201D. Id.
During the course of this investigation counsel has determined that there are additional items of evidentiary value in the possession of Ohio B.C.I. &I., including a videotape of the second Krista Harris interview. "
Please sign our petition to have Erie County, Kevin Baxter removed from office.  He should not be practicing law.......attaching his interview on November 9th, 2009      

http://www.erie-county-ohio.net/prosecutor/video_wlec.shtml