A Cleveland man convicted of a 1989 murder produced newly discovered crime-scene photos at a series of 2017 hearings seeking a new trial. The trial court ultimately denied his request, but when he appealed, all the evidence from those proceedings disappeared. An appeals court ruled that disappearance of the evidence could mean the original conviction could be tossed out.

In a recent 2-1 decision, the Eighth District Court of Appeal ordered the Cuyahoga County Common Pleas Court to conduct a new hearing to determine if John R. Tiedjen is entitled to a new trial for the 1989 murder of his roommate and half brother Brian McGary at a home on East 57th Street in Cleveland.

Tiedjen’s request for a new trial was denied in 2017 after a judge determined that the 76 additional crime-scene photos that weren’t made available to his attorneys at his original trial didn’t provide sufficient justification to warrant a new trial.

The Eighth District noted that when Tiedjen appealed, “all of the exhibits from the 2017 hearings,” including the newly discovered photos as well as the evidence from the original 1989 trial were missing. Writing for the Eighth District majority, Judge Patricia Ann Blackmon stated that both parties were given time to locate the evidence or recreate it, which they weren’t able to do. Instead the appeals court relied mostly on a trial court hearing transcript, in which witnesses described the contents of the photographs, and the appellate court determined the trial court made errors when denying Tiedjen’s request to for a new trial.

Judge Blackmon, joined by Judge Mary Eileen Kilbane, ordered the trial court to conduct a hearing to determine if Tiedjen is substantially responsible for the evidence going missing. If Tiedjen isn’t to blame, then the trial court is to consider his request absent the missing evidence. The decision stated in cases where the defendant isn’t at fault for missing evidence, the “absence of the record may require reversal of the underlying conviction and the grant of a new trial.”

Convict Claims Photos Prove Suicide
In April 1989, police found McGary’s body in the bedroom of the apartment he shared with Tiedjen. McGary, who was 18 years old, had been stabbed in the left chest and shot in the forehead with a rifle. Initially Tiedjen told family and friends that he didn’t know how McGary died, but believed it was suicide. After the three days of police interrogation, Tiedjen stated he shot McGary in self-defense after they both had been drinking and got into a fight.

Tiedjen was charged and convicted of murder in June 1989 and sentenced to 15 years to life in prison, with an additional three-year firearm specification. The Eighth District affirmed his conviction in 1991.

Through a 2014 public records request to the Cleveland police department, Tiedjen received 76 crime-scene photos that weren’t introduced as evidence in his 1989 trial. At his trial, prosecutors introduced 10 photographs. In October 2016, Tiedjen sought a new trial based on the newly revealed photographs, arguing that items depicted in the photos contradict the prosecution’s theory of how the shooting occurred. He also maintained that through “modern crime-scene reconstruction technology” it’s possible to demonstrate that McGary committed suicide.

Evidence Rejected, Then Lost
The trial court considered the new photographs as well as all 14 items of evidence produced at the original trial. Daniel Chaplin, one of Tiedjen’s 1989 trial attorneys, testified that he never saw the newly discovered photographs or knew of their existence. He told the court he didn’t see police photographs that included McGary’s ex-girlfriend’s purse and jacket in the bedroom, so he never followed up with anyone to determine if there could’ve been others who were involved in or witnessed the murder.

The original prosecutor in the case testified that his trial file was missing and that he couldn’t remember the specifics of Tiedjen’s case. He explained, in general, that at the time, only a limited number of photographs would be printed by the police department and that the prosecutors and defense attorneys would look at the state’s prosecution folder, including the photos, together. The original police detective investigating the case provided the trial court with an affidavit stating the photos were not “staged, manipulated, or withheld” by the police. Bedridden at the time of the hearings, the officer agreed to a deposition with Tiedjen’s attorney, and the officer stated he could not recall the case.

Tiedjen then attempted to have an expert crime-scene reconstructionist testify to show how the newly discovered photographs were beneficial to his case and could justify a new trial. The prosecutors objected, arguing it was premature to consider the expert’s opinion, and that the trial judge, based on the arguments of both parties, should determine if the found photos warranted a new trial. The trial judge ruled the photos did not conclusively reveal information warranting a new trial. Tiedjen appealed the decision to the Eighth District.

State Lost Evidence
Judge Blackmon wrote that when Tiedjen filed his notice of appeal, he properly instructed the clerk’s office to assemble all the original papers and exhibits to transfer to the appeals court. It noted it is the duty of the court reporter to correctly prepare the transcript, which includes producing an index of all exhibits and attaching those exhibits to the transcript that is sent to the appeals court.

Without seeing the photos, the Eighth District ruled that based on the testimony at the hearings, there might be reason to believe the pictures could be used to exonerate Tiedjen. The appellate court faulted the trial judge for not considering the testimony of the crime-scene reconstructionist because the testimony could assist the trial court in determining whether the photos help Tiedjen’s case. The Eighth District noted that the trial court does not have to rely on the expert’s opinion, but should consider it at a hearing to determine the value of the newly discovered photos.

Dissent Faults Delay in Appeal
In his dissenting opinion, Judge Sean C. Gallagher wrote that the trial court, which reviewed the actual 76 photos, did not abuse its discretion when denying Tiedjen a new trial. Judge Gallagher noted that Tiedjen received the photos in 2014 and hired an investigator to speak with McGary’s ex-girlfriend about the purse and coat in 2015. The girlfriend told the investigator she had not been to the apartment for a couple of days.

A trial court has discretion when determining whether to grant a motion for a new trial based on newly discovered evidence located long after the original trial. Judge Gallagher noted the Eighth District has ruled a year is a reasonable amount of time to file an appeal after receiving the new evidence and Tiedjen waited nearly two years. He maintained that based on the information presented at the original trial, and the lack of any compelling evidence in the new photographs, the trial judge could reasonably rule a new trial is not warranted.

State v. Tiedjen, 2019-Ohio-2430.

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