State of Ohio v. Melvin Bonnell - Motion For Relief

Supreme Court of Ohio Clerk of Court - Filed March 30, 2020 - Case No.
2020-0210
In The Supreme Court Of Ohio
STATE OF OHIO, | Case No. 2020-0210

|
Plaintiff-Appellee, | Appeal taken from the Court of Appeals of
| Cuyahoga County, Eighth Appellate District,
v. | C.A. No. 108209
|
MELVIN BONNELL, |
|
Defendant-Appellant. | [Death Penalty Case]
______________________________________________________________________________
Appellant Melvin Bonnell’s Motion for Relief Pursuant to S.Ct.Prac.R. 4.01
Cuyahoga County Prosecutor’s Office Office of the Ohio Public Defender
Michael C. O’Malley [0059592] Kimberly S. Rigby [0078245]

Cuyahoga County Prosecutor Supervising Attorney, Death Penalty Dept.
kimberly.rigby@opd.ohio.gov
Frank Romeo Zeleznikar [0088986] Erika M. LaHote [0092256]

Assistant County Prosecutor Assistant State Public Defender
fzeleznikar@prosecutor.cuyahogacounty.us erika.lahote@opd.ohio.gov
Justice Center 250 East Broad St., Suite 1400

1200 Ontario St., 9th Floor Columbus, Ohio 43215
Cleveland, Ohio 44113 (614) 466-5394
(216) 443-7800 (614) 644-0708 – Fax
(216) 698-2270 – Fax
Counsel for Appellee State of Ohio Counsel for Appellant Melvin Bonnell
In The Supreme Court Of Ohio
STATE OF OHIO, | Case No. 2020-0210

|
Plaintiff-Appellee, | Appeal taken from the Court of Appeals of
| Cuyahoga County, Eighth Appellate District,
v. | C.A. No. 108209
|
MELVIN BONNELL, |
|
Defendant-Appellant. | [Death Penalty Case]
______________________________________________________________________________
Appellant Melvin Bonnell’s Motion for Relief Pursuant to S.Ct.Prac.R. 4.01
Currently pending before this Court is Melvin Bonnell’s Memorandum in Support of
Jurisdiction, the subject of which focuses on the State’s mishandling and purported loss/destruction
of every piece of evidence in Bonnell’s case, save one jacket. Undersigned counsel are filing this
Motion for Relief due to their obligation to inform this Court that the Cuyahoga County Prosecutor’s
Office has repeatedly deceived this Court and the lower courts throughout this litigation.
Since the time of the filing the Memorandum in Support of Jurisdiction, undersigned counsel
discovered that some of the “lost” evidence does, in fact, still exist. And it is not just any evidence,
but the actual ballistic evidence from the crime scene, including bullets removed from the victim
and shell casings. These items are currently located in the Prosecutor’s own file, within the second
of four boxes in the sole possession and control of the Prosecutor’s Office. See Exhibits 1, 3-11.
These are the same four boxes that former Assistant Prosecuting Attorney Christopher Schroeder
repeatedly told the courts he had personally reviewed (see Exhibit 12) and then swore that all of the
physical evidence in this capital case was either lost or destroyed, save one jacket. See e.g., Exhibits
12, 18, 19, 21-23. Most disturbingly, after seeing the evidence for himself, Prosecutor Zeleznikar
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then reiterated these same falsehoods in the March 4, 2020 Memorandum in Response to Jurisdiction
[hereinafter MOJ] filed in this Court.
Accordingly, pursuant to S.Ct.Prac.R. 4.01, Appellant Melvin Bonnell requests relief from
this Court. The Cuyahoga County Prosecutor’s Office deceived this Court and the lower courts when
they intentionally misrepresented the state of the physical evidence in this capital case. Due to this
prosecutorial misconduct, Bonnell is filing two motions with this Court: (1) this Motion for Relief
Pursuant to S.Ct.Prac.R. 4.01 and (2) Motion to Strike the Appellee’s March 4, 2020 Memorandum
in Response to Jurisdiction, Motion to Disqualify the Cuyahoga County Prosecutor’s Office, and
Motion to Appoint the Office of the Ohio Attorney General as Special Prosecutor. A memorandum
in support is attached.
Respectfully submitted,
Office of the Ohio Public Defender
/s/ Kimberly S. Rigby

Kimberly S. Rigby [0078245]
Supervising Attorney, Death Penalty Department
Counsel of Record
/s/ Erika M. LaHote

Erika M. LaHote [0092256]
Assistant State Public Defender
250 East Broad St., Suite 1400

Columbus, Ohio 43215
(614) 466-5394
(614) 644-0708 - Fax
Counsel for Appellant Melvin Bonnell
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Memorandum in Support
I. Introduction.
The Cuyahoga County Prosecutor’s Office deceived this Court and the lower courts. See
Exhibit 1. The Cuyahoga County Prosecutor’s Office claimed repeatedly in briefs filed at all levels
of the Ohio state courts that no evidence, save one jacket, still exists in this capital case. However,
this is now demonstrably false. Physical evidence exists: the three shell casings found at the crime
scene and the two projectiles (i.e. the morgue pellets or bullets) removed from the victim’s body by
the Coroner during the autopsy. While discovering physical evidence that the prosecutor attested no
longer existed and consequently revealing the materially false statements made by the Prosecutor is
by itself serious misconduct and stands alone, it is where the evidence was located which intensifies
the magnitude of demonstrable bad faith. Damningly, undersigned counsel discovered the physical
evidence in the Prosecutor’s own file, in the presence of the Prosecutor, within the second of four
boxes in the sole possession and control of the Prosecutor’s Office. Exhibit 1.
The Cuyahoga County Prosecutor’s Office kept this evidence hidden away through outright
deception and/or reckless disregard for the truth. See Prosecuting Attorney’s Report Pursuant to R.C.
2953.75(B) and attached sworn affidavit of Assistant Prosecuting Attorney Christopher D.
Schroeder, attached as Exhibit 12. And, one week after seeing the evidence for himself, Assistant
Prosecuting Attorney Frank Zeleznikar perpetuated that deception in his MOJ filed in this Court on
March 4, 2020. MOJ, pp. 1, 9-10, 19, 21, 22, 23, 33, and 34.
Melvin Bonnell was weeks from execution in February 2020 while the Prosecutor’s Office
was knowingly defrauding undersigned counsel, this Court, and the lower courts. The Prosecutors
committed one of the most sinful things that can be done—they lied and deceived to kill and cloaked
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themselves in the unjustified righteousness of protecting the public. Due to this egregious
prosecutorial misconduct, this Court must now intervene.
Bonnell requests this Court accept jurisdiction and grant Bonnell relief in the form of a new
trial based upon violations of Arizona v. Youngblood, 488 U.S. 51 (1988). If Bonnell had not
previously met the standard for bad faith, he does now. In the alternative, Bonnell requests this Court
accept jurisdiction and order the appointment of a Special Master to oversee this case. And, again,
in the alternative, Bonnell requests this Court accept jurisdiction and remand to the trial court with
instructions to appoint a Special Prosecutor (see Motion to Strike the Appellee’s March 4, 2020
Memorandum in Response to Jurisdiction, Motion to Disqualify the Cuyahoga County Prosecutor’s
Office, and Motion to Appoint the Office of the Ohio Attorney General as Special Prosecutor, filed
contemporaneously with this instant Motion) and hold a hearing on Bonnell’s Motion for New Trial.
II. Relevant Facts.
In 1988, Melvin Bonnell was convicted of one count of aggravated burglary with a firearm
specification; one count of felony murder with a firearm and aggravated burglary specification; and
one count of aggravated murder with a firearm and aggravated burglary specification. Before,
during, and since that capital trial, Bonnell has maintained his innocence of this murder. Bonnell
currently has an execution date scheduled for March 18, 2021, less than one year away.
Beginning in 1995 with Appellant Bonnell’s original post-conviction proceedings, defense
counsel demanded that the Prosecutor’s Office account for the physical evidence, and any
exculpatory evidence, in this capital case. Years passed with no accounting. Any statement that the
Cuyahoga County Prosecutor’s Office made assumed the destruction, or lack of collection, of any
requested evidence. See e.g., MOJ, pp. 20-21; see also State’s Motion to Dismiss and for Summary
Judgment, filed May 2, 1995, p. 21 (“Applying Ohio law to the case at hand, it is clear that
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Defendant’s rights were not violated if blood samples, vomit, fingerprints, and other miscellaneous
materials were not preserved.”); see also Findings of Fact and Conclusions of Law, filed Oct. 17,
1995, ¶ 8; Brief of Appellee, CA-69835 and 73177, filed Feb. 10, 1998, p. 8 (“The State of Ohio is
under no duty to indefinitely preserve specimens and/or samples. Furthermore, it is not a due process
violation if the specimens/samples were destroyed in the normal course of business and in good
faith…Appellant’s rights were not violated if blood samples, vomit, fingerprints, and other
miscellaneous materials were not preserved.”).
In an attempt to prove his innocence, on October 29, 2004, Bonnell applied for DNA testing
under Senate Bill 11, Ohio’s original post-conviction DNA testing bill. He asserted that DNA testing
would exclude him as the source of crime scene biological material and thus establish his actual
innocence of the crimes for which he is convicted and sentenced to death. The Cuyahoga County
Prosecutor’s Office opposed Bonnell’s Application for DNA testing and alleged that all testable
evidence was either never collected or no longer existed. The Prosecutor filed his Response on
August 30, 2005. Exhibit 14. In that Response, the Prosecutor argued that the requested “evidence
does not exist.” Id. The Prosecutor then filed proposed Findings of Fact and Conclusions of Law on
October 17, 2005. The trial court adopted these Findings of Fact and Conclusions of Law verbatim
the following day.
Senate Bill 262, codified in statute at R.C. 2953.71, et seq., replaced the outdated and flawed
SB 11. Like many other offenders, Bonnell sought an opportunity for DNA testing he was not
granted under the flawed SB 11. Bonnell filed a new application for DNA testing on February 6,
2008. In his initial Response, the then Assistant Prosecuting Attorney, Jon Oebker, explained that
he had found Bonnell’s jacket. In that same Response, he then wrote, “The state is also continuing
with its ongoing obligation to establish the existence of any and all evidence in this trial.” See Initial
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Response to Second DNA Application filed 4/23/08, attached Exhibit 15 (emphasis added).
Meanwhile, the physical evidence remained tucked away from view in the Prosecutor’s own file,
and the Prosecutor took no corrective measure to correct this material misstatement.
The trial court accepted Bonnell’s application and granted post-conviction DNA testing on
the sole item the Prosecutor asserted was available for testing—Bonnell’s jacket. That order, which
was signed by the trial court as well as undersigned counsel and Assistant Prosecuting Attorney
Matthew Meyer, acknowledged the Cuyahoga County Prosecutor’s Office’s ongoing duty to account
for all of the physical evidence. The Court further stated, “Materials found, if any, are subject to
further order of this court.” See Order for DNA Testing filed 08/04/08, attached as Exhibit 16.
Meanwhile, physical evidence remained hidden away from Bonnell in the Prosecutor’s own file.
The Prosecutor took no corrective measure to address his material misstatement that the jacket was
the only remaining physical evidence available for testing, nor did the Prosecutor comply with the
trial court’s order to locate any additional evidence and report back to the court.
After DNA testing was conducted on Bonnell’s jacket, the still pending DNA application sat
for nine years until Bonnell asked again for an accounting of the evidence in this case. In that motion,
Bonnell specifically reminded the Prosecutor’s Office of its “ongoing obligation to establish the
existence of any and all evidence.” See Motion for Accounting, filed 4/26/17, attached as Exhibit
17. On June 15, 2017, the Prosecutor’s Office finally filed its accounting of the evidence, i.e. the
Prosecuting Attorney’s Report Pursuant to R.C. 2953.75(B), and attached the sworn affidavit of
Assistant Prosecuting Attorney Christopher D. Schroeder. See Exhibit 12. The Prosecutor’s Report
states in relevant part:
Mr. Frey stated that he did not recall ever seeing any physical evidence in Bonnell’s
case, and that he did not know what evidence might exist.
Exhibit 12, p. 4.
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[Jon Oebker] did not recall seeing any other exhibits. He did not recall the
Prosecutor’s Office ever being in possession of any exhibits in Bonnell’s case.
Id. at 4-5 (internal citations omitted).
APA Meyer did not recall ever seeing any physical evidence in Bonnell’s case
except for that jacket.
Id. at 5.
At the undersigned prosecutor’s direction, employees of the Prosecutor’s Office

conducted several checks of the inventory of the property room located on the
eighth floor of the Prosecutor’s Office. One of those searches also included a
physical inspection of the contents of the property room itself for evidence. Each
of these searches revealed no evidence related to Bonnell’s case.
Id. at 5 (internal citations omitted).
The prosecutor also personally conducted a search of the storage areas in both the
basement and on the 25th floor of the Cuyahoga County Justice Center. The only
items found to be in the possession of the Prosecutor’s Office were four boxes of
paper documents, about which the prosecutor promptly informed the defense
investigator.
Id. at 5-6 (internal citations omitted).
That file [the four boxes of paper documents in possession of the Prosecutor’s
Office] does not contain any inventory, chain of custody, or any other documents
indicating where any evidence from Bonnell’s case may be currently located, apart
from the sources discussed in this report. There are no other items in the
possession of the Prosecutor’s Office from or related to Bonnell’s case.
Id. at 6 (internal citations omitted) (emphasis added).
Based on all of the foregoing, the Prosecuting Attorney reports and certifies to this
Court, to the defendant, and to the Ohio Attorney General, that the only items of
biological material still in existence for DNA testing are as follows:
• seven autopsy microslides from the victim, Robert Bunner,
• four swabs from Bonnell’s maroon and tan jacket,
• one swab from an autopsy microslide, and
• Bonnell’s maroon and tan jacket, introduced at trial as State’s Exhibit 22.
Id. at 24.
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In addition, the attached sworn Affidavit of Assistant Prosecuting Attorney Christopher D.
Schroeder recounts:
I informed [the defense investigator] that my office had four boxes of material
related to the Melvin Bonnell case in our possession, but that those four boxes
contained only paper documents.
Id. at Exhibit 1 to Prosecutor’s Report, p. 1, ¶ 5 (emphasis added).
[The defense investigator] indicated that she was looking for physical exhibits. . . I
stated that my office had no physical exhibits in our possession.
Id. at 1-2, ¶ 5 (emphasis added).
On December 6, 2016, I asked two employees of my office’s Case Management

Unit if our office had any additional items in storage from Bonnell's case. I specified
that I was looking “for physical exhibits - a handgun, two jackets, and a pillow.”
They later informed me that they had checked our office’s file storage areas and
that the only items we had related to Bonnell’s case were the four boxes of paper
documents I had already both reviewed and informed [the defense investigator]
about.
Id. at 2, ¶ 10.
APA Meyer did not recall ever seeing any physical evidence in Bonnell’s case
except for th[e red and tan jacket] jacket.
Id. at 3, ¶ 14.
I then emailed [the defense investigator] stating that I had confirmed there were no
physical exhibits related to Bonnell’s case in my office’s possession.
Id. at 3, ¶ 16 (emphasis added).
I reiterated that my office had no evidence in its possession from Bonnell’s case.
During this conversation, [the defense investigator] asked if I knew where any
“projectiles” from the case might be located. I stated that Det. Sandoval had not
mentioned any projectiles being in the Cleveland Police property room, but that I
did not know for sure.
Id. at 8, ¶ 44.
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On April 26, 2017, I received a copy of the Motion for an Accounting by the
Prosecution that Bonnell’s attorneys had filed before Judge McCormick. After
reviewing that filing, I began the process of cataloging my efforts to locate any
physical exhibits from Bonnell’s case.
Id. at 9, ¶ 47.
Mr. Frey stated that he did not recall ever seeing any physical evidence in Bonnell’s
case, and that he did not know what evidence might exist.
Id. at11, ¶ 62.
I also spoke to Det. Todd Marazzi, who also worked in the Forensic Lab. Det.
Marazzi stated that the actual pellets themselves would normally be in a file cabinet
in the Forensic Lab. He stated that if someone had pulled the Forensic Lab Report
card, however, this suggested that this person had removed the evidence (the two
morgue pellets) as well. Det. Marazzi showed me pages 286-287 from the Forensic
Lab run book, which indicated that morgue pellets A and 8 had been received by
SIU on December 8, 1987, associated with the “dead body of Robert Bunner.”
There was no further indication as to where the pellets were currently located.
Id. at 14, ¶ 74.
Ms. Stewart provided me with copies of the Forensic Laboratory Report cards for
the .25 Tanfoglio pistol (Lab #244381), the morgue pellets (Lab #244492), the .25
cartridge case (Lab #244815), and two .25 caliber shell casings (Lab #245065). . .
The card for the two .25 caliber shell casings showed that it was signed out to
another individual, whose name was illegible to me, on February 23, 1988. There
was not further indication of what happened to any of these items.
Id. at 14, ¶ 76.
Along with the Prosecutor’s Report and Affidavit, the Prosecutor also filed its Brief in
Opposition to Bonnell’s Application for DNA Testing and the State’s Proposed Findings of Fact and
Conclusions of Law. In the Brief in Opposition as well as the Proposed Findings of Fact and
Conclusions of Law, the Prosecutor stated “As detailed in the Prosecuting Attorney’s Report
Pursuant to R.C. 2953.75(B), filed contemporaneously with this brief, the only evidence collected
from the crime scene or from Bonnell in this case was his jacket, the murder weapon, his clothing,
two .25 caliber shell casings, his car, and a green pillow/cushion from the victim’s apartment. With
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the exception of the jacket, however, that evidence cannot be located.” Exhibit 18, p. 16; Exhibit 19,
p. 10, ¶ 23. The Prosecutor also added in the Proposed Findings of Fact and Conclusion of Law that
the “prosecuting attorney has used reasonable diligence, but there is no evidence to suggest that any
biological material in this case still exists at that [sic] point in time for testing under 2953.74(C)(1)
apart from the gray and maroon jacket.” Exhibit 19, pp. 14-15, ¶ 33.
The trial court filed its Journal Entry, which denied Bonnell’s Application for DNA Testing
on August 14, 2017. See Trial Court Journal Entry, attached at Exhibit 20. The trial court relied upon
Prosecutor’s Schroeder’s Report and Affidavit in denying Bonnell relief. The court specifically
found that the Prosecuting Attorney had satisfied his obligations under R.C. 2953.75(A). Id. at ¶¶
16-18. The trial court then repeated this statement from the Prosecutor’s pleadings:
As detailed in the Prosecuting Attorney’s Report Pursuant to R.C. 2953.75(B), filed

contemporaneously with this brief, the only evidence collected from the crime
scene or from Bonnell in this case was his jacket, the murder weapon, his clothing,
two .25 caliber shell casings, his car, and a green pillow/cushion from the victim’s
apartment. With the exception of the jacket, however, that evidence cannot be
located.
Id. at ¶ 23. (emphasis added). Then, the court concluded: “Bonnell therefore cannot show that a
parent sample of any biological material exists at this point in time. There is thus nothing for
Bonnell to test. . . .” Id. (emphasis added). Meanwhile, the physical evidence remained concealed in
the Prosecutor’s own file.
Bonnell appealed the denial of his Application for DNA Testing directly to this Court. The
Appellee’s Merit Brief states the following:
On June 15, 2017, the State filed a 24-page report pursuant to R.C. 2953.75(B)
documenting its efforts to search for biological material for any possible DNA testing
in Bonnell’s case. See docket entry, 6/15/2017.The State attached to that report a 15-
page, 80-paragraph affidavit prepared and executed by the undersigned prosecutor
attesting under oath to his extensive efforts to search for evidence in this case. Id. As
detailed in the Prosecuting Attorney’s Report, the only evidence collected from the
crime scene or from Bonnell in this case was his jacket, the murder weapon, his
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clothing, two .25 caliber shell casings, his car, and a green pillow/cushion from the
victim’s apartment. With the exception of the jacket – which DNA Diagnostics tested
in 2009 – the remainder of that evidence could not be located and did not appear to
have been preserved.
Appellee’s Merit Brief at p. 14, filed 1/22/2018 in Ohio Supreme Court Case No. 2017-1360. The
Prosecutor dedicated almost five pages to the diligence spent searching for the evidence. The
Prosecutor specifically pointed out his efforts to search the “prosecuting authorities involved in the
case.” Id. at 23-24. The Prosecution then argued, “The trial court was justified in taking the State at
its word, particularly in light of the extremely detailed search that the State conducted in good faith
in this case.” Id. at 26-27. Meanwhile, the physical evidence sat in the Prosecutor’s file, undermining
the entirety of the argument to this Court.
This Court held oral argument on August 1, 2018. During that argument, Assistant Prosecutor
Schroeder represented to this Court that “all parties in this case have known since at least 1995 that
none of this evidence was preserved.” See Ohio Supreme Court Case No. 2017-1360, August 1, 2018
Oral Argument at minute 17:47. Yet, at the same time, physical evidence remained in the
Prosecutor’s own file. In response to a question asked by Chief Justice O’Connor, Mr. Schroeder
affirmed that “I believe I have absolutely used due diligence, Your Honor.” Id. at minute 18:49.
Later, Mr. Schroeder declared, “My belief is that they [the evidentiary items] were destroyed.” Id.
at minute 20:41. Justice O’Donnell then asked Prosecutor Schroeder whether he searched the
“secured evidence locker at the coroner’s office and in your office at the prosecutors,” to which Mr.
Schroeder responded, “Absolutely, Your Honor. We conducted several checks both of the inventory
and physical checks of the property room in the Prosecutor’s Office.” Id. at minute 20:56. Justice
O’Donnell then further explored the issue and asked Mr. Schroeder the following question: “So to
the best of your knowledge these items are not in the property room and you are unaware after due
diligence of where they are?” Prosecutor Schroeder responded “Absolutely, Your Honor.” Id. at
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minute 21:11. Prosecutor Schroeder then listed off a litany of places that he checked for the evidence
and concluded by reiterating that “I’ve shown reasonable diligence in this case.” Id. at minute 21:42.
Later, in response to a question by Justice O’Donnell, Prosecutor Schroeder stated, “Judge
McCormick [the trial judge] relied on the report that we prepared as required under the statute. He
relied upon the affidavit that accompanied that report as evidence, you can rely on documentary
evidence, and he relied on the voluminous exhibits in this case.” Id. at minute 22:13. Right before
concluding his argument, Prosecutor Schroeder declared that “the purpose of Ohio’s DNA testing
statute is to further the search for the truth.” Id. at minute 26:54. In rebuttal, Ms. Roberts, for
Appellant Bonnell, closed by reminding this Court and Prosecutor Schroeder that Bonnell “has
always asked for any testing on anything that could demonstrate his innocence.” Id. at minute 30:00.
While Prosecutor Schroeder lauded the thoroughness of his search before this Court, physical
evidence remained concealed from Bonnell and from this Court in the Cuyahoga County
Prosecutor’s Office.
On October 10, 2018, this Court affirmed the decision of the trial court. State v. Bonnell, Slip
Opinion No. 2018-Ohio-4069. In its decision, this Court limited its review solely to whether Bonnell
demonstrated that DNA testing would prove outcome determinative. Bonnell timely filed a motion
for reconsideration, which this Court denied on December 12, 2018.
Before Bonnell received a decision from this Court in the above case, on January 11, 2018,
Bonnell filed a motion for leave to file a motion for a new trial under Crim.R. 33(B). In his motion,
Bonnell relied on the newly discovered Prosecutor’s Report and Affidavit, and new statements made
by Shirley Hatch, which materially differed from her trial testimony and supported an alternate
theory of the case. On July 19, 2018, the Prosecutor filed his Brief in Opposition. Exhibit 21. The
Prosecutor’s Brief in Opposition states in relevant part:
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Nevertheless, in 2017, Bonnell filed a motion requesting an accounting by the State
of its efforts to locate any additional items of evidence (other than Bonnell’s jacket)
in this case for additional DNA testing. See docket entry, 4/26/2017. The State, in
a good faith effort to build as complete a record as possible of its efforts to locate
any additional items, complied with Bonnell’s request.
Id. at 19.
Given that Bonnell was clearly aware since at least 1995 that the physical items of
evidence in his case (apart from his jacket and a few other items at the Coroner’s
Office) were not preserved, and that he has previously raised Youngblood claims
both here and in federal court, res judicata now bars his attempt to do so again.
Id. at 23-24.
It is not surprising that in a 30-year-old case that predated DNA testing, items of
minimal value from the crime scene would not have been preserved.
Id. at 37.
The only thing that has changed between [1995] and now is that the State conducted
an exhaustive search for any and all evidence in this case in 2017, and submitted a
comprehensive report and affidavit documenting those efforts. If anything, the
extreme efforts that the State undertook to locate any additional items for testing
shows significant good faith on the part of the State, inconsistent with Bonnell’s
conspiracy theories.
Id.
The trial court stayed any ruling on Bonnell’s motion while the case was pending before this
Court. On January 3, 2019, the State filed Proposed Findings of Fact and Conclusions of Law in the
trial court. See Exhibit 22. The Prosecutor wrote in those Proposed Finding and Conclusions of Law:
With respect to the evidence that Bonnell seeks for DNA testing, the record is clear
that Bonnell has been aware since at least 1995 that the evidence in question was
not preserved.
Id. at 4, ¶ 13.
All of this makes clear that Bonnell has been aware since at least 1995 that the
physical evidence in his case was not preserved. The status quo has not changed.
Bonnell has thus failed to demonstrate that he was unavoidably prevented from the
discovery of the basis for this claim.
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Id. at 7, ¶ 24.
On January 25, 2019, without affording Bonnell discovery or a hearing, the trial court
adopted, verbatim, the State’s Proposed Findings of Fact and Conclusions of Law and filed its
Journal Entry, denying Bonnell’s motion for leave to file a motion for a new trial. See Journal Entry
and attached Findings of Facts and Conclusions of Law, Filed January 25, 2019, attached to
Bonnell’s February 10, 2020 Memorandum in Support of Jurisdiction at appendix A-1. Meanwhile,
the physical evidence remained concealed in the Prosecutor’s own file, and the prosecution took no
corrective measure to rectify the material misstatements relied upon by the trial court.
Following the trial court’s denial, Bonnell appealed to the Eighth District Court of Appeals.
The Appellee’s Merit Brief states:
Bonnell did not just claim the evidence was destroyed – he knew that the evidence
was not preserved for testing. He knew this because the State continuously, at every
point in the last 24 years, has acknowledged that the evidence was not preserved.
This has never been a secret. The State never hid it from Bonnell.
Exhibit 23, p. 17.
Here, the State’s 2017 report, although thorough, did not change the status quo of
what the parties already knew: the evidence was not preserved and was not
available for testing. Bonnell did not need to “rely” on the State’s 2017 report to
establish that fact. He had been arguing it since 1995 and the State essentially
stipulated to it throughout that entire time.
Id. at 18.
Bad faith does not exist merely because evidence in a 32-year-old case cannot be
located.
Id.
Bonnell offers no evidence of bad faith. His analysis here consists of rehashing the
various items that he has known since at least 1995 were not preserved. He then
asks this Court to infer from nothing that those items cannot be located because the
State must have systematically destroyed them in deliberate bad faith attempt to
prevent Bonnell from proving his alleged innocence. Other than the fact that the
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items cannot be located, however, there is no evidence of bad faith anywhere in
Bonnell’s motion.
Id. at 28.
It is not surprising that in a 30-year-old case that predated DNA testing, items
collected from the crime scene would not still be available.
Id.
an exhaustive search for any evidence in this case in 2017, and submitted a
comprehensive report and affidavit documenting those efforts. The State’s diligent
and thorough efforts in that regard shows significant good faith on the part of the
State, not bad faith.
Id. at 29.
The Court of Appeals affirmed the trial court’s denial of Bonnell’s Motion for Leave to File
a Motion for New Trial. 1 See State v. Bonnell, No. 108209, 2019-Ohio-5342 (Cuyahoga Ct. App.
December 26, 2019), attached in appendix at A-18. The Court of Appeals stated:
Pursuant to his request, the state filed another report under R.C. 2953.74(B),
documenting its efforts to find biological material that could possibly be DNA
tested. The assistant prosecuting attorney handling the matter submitted an affidavit
averring to his efforts searching for evidence. In short, except for Bonnell’s jacket,
which as mentioned had been DNA tested pursuant to Bonnell’s 2008 application,
the other evidence either could not be located and/or it appeared to have not been
preserved.
Id. at A-27.
The extensive record in this case is replete with evidence that Bonnell had been
aware well before the state’s 2017 R.C. 2953.75(B) report of the state of the
evidence. That is, that the items he sought testing on did not exist. The record
demonstrates that this was evident since at least 1995.
Id. at A-31.
1
The Court of Appeals held oral argument on Tuesday, November 12, 2020. During this oral argument, Prosecutor
Schroeder made similar arguments to those made previously before this Court, however there is no publicly available
record of that argument.
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[Bonnell] was made aware that the evidence he sought did not exist. The state’s
2017 R.C. 2953.75(B) report did not disclose anything “new”; rather, it reiterated
what had been a centerpiece of much of the litigation in this case dating back to
1995 evidence Bonnell sought did not exist.
Id. at A-32. Of course, none of that is true, and the Prosecutor never took the appropriate and
corrective remedial action.
On February 10, 2020, Bonnell filed a timely Notice of Appeal and Memorandum in Support
of Jurisdiction in the instant case.
On Wednesday February 26, 2020, exactly one week prior to the State’s filing of the
Memorandum Opposing Jurisdiction, undersigned counsel reviewed the file maintained by the
Cuyahoga County Prosecutor’s Office. Because Assistant Prosecuting Attorney Christopher
Schroeder had ended his employment to move to Anchorage, Alaska, Assistant Prosecuting Attorney
Zeleznikar assumed responsibility of this case for the Cuyahoga County Prosecutor’s Office.
Prosecutor Zeleznikar supervised undersigned counsel’s review of the file, which consisted of four
boxes, labeled 614-617. Within Box 615, in a binder marked “Trial Exhibits” are three envelopes
containing the following:
(1) the morgue pellets, i.e. bullets retrieved from the victim’s body:
Exhibit 3.
17
Inside that envelope was a smaller envelope, which explains further that the pellets are contained
within:
Exhibits 6, 7. Prosecutor Zeleznikar confirmed that the pellets were inside. See Exhibit 1, ¶ 20.
18
(2) two shell casings retrieved from the crime scene by investigators:
Exhibit 4. Inside that envelope was an unmarked envelope containing what felt to be the shell
casings. Undersigned counsel confirmed that these shell casings were indeed contained within this
unmarked envelope. See Exhibit 1, ¶ 19. Prosecutor Zeleznikar was present for this. Id.
Exhibits 8, 9.
19
(3) a third shell casing retrieved later and turned over by Edward Birmingham:
Exhibit 5. Inside that envelope was a baggie with attached card. A smaller envelope still was inside
the baggie, as seen below:
Undersigned counsel felt this baggie and confirmed it held a small, hard object, which felt like a
shell casing. See Exhibit 1, ¶ 21. Prosecutor Zeleznikar was again present for this. Id.
20
Also in the prosecutor’s file was a handwritten document that appeared to record a
conference with Rick Bombik, the trial prosecutor. Exhibit 1 at ¶ 23. Prosecutor Zeleznikar would
not allow undersigned counsel to scan this document; he then withdrew the document claiming the
“work product” protection. Id. However, before confiscating it, Prosecutor Zeleznikar allowed
defense counsel to examine it. Counsel’s brief review revealed that the “document listed at least
three witness names, including Shirley Hatch, Edward Birmingham, and Joseph Egnor (Popil).
Under each name was a brief synopsis of those witness’s statements. Important to this request,
written under both Hatch and Birmingham’s names was something to the effect of ‘has never seen
b4.’” Id. Undersigned counsel also believes that the document was dated 2/2/88, which would have
put this conference pre-trial. Id.
Given undersigned counsel’s suspicion as to the exculpatory nature of this document,
undersigned counsel emailed Prosecutor Zeleznikar on February 27, 2020, explaining the following:
Frank,
Thank you again for meeting with us yesterday and allowing us to review the file
maintained by your office. I wanted to quickly follow-up to remind you once again
of your ongoing obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963) to
turn-over any information that is arguably exculpatory to Mr. Bonnell’s case. The
reason I believe it is prudent to write this email now is because of the one document
that you permitted us to read, but you then removed from the file due to the “work
product” exception. Because I know that you are new to the case and unaware of
the intricacies of the case, I will explain further why I believe this document is
Brady material.
From my quick review, I believe that document that you removed recorded a
conference with Rick Bombik, the trial prosecutor. Although I don’t know who Mr.
Bombik was meeting with (it could be the witnesses, a police officer or someone
else), this document listed at least three witness names, including Shirley Hatch,
Edward Birmingham, and Joseph Egnor (Popil). Under each name was a brief
synopsis of those witness’s statements. Important to this request, written under both
Hatch and Birmingham’s names was something to the effect of “has never seen
b4.” This statement is key to our claims that Mr. Bonnell could not have been the
perpetrator because both Hatch and Birmingham told the police that they had never
seen the perpetrator before, yet they both knew Mr. Bonnell before the crime. The
21
other thing that I would point out about this document is that I believe that it was
dated 2/2/88, which would put this conference pre-trial. So this would demonstrate
that Mr. Bombik was aware that Hatch and Birmingham stated this fact, something
that was not disclosed to defense counsel at the time of trial and only surmised
through public records requests following trial.
Both before and during our meeting, I know that you also pulled other documents
that you felt were covered by the “work product” exception. I would ask that you
consolidate the materials that you pulled from the file as “work product” and
maintain them in a separate file. I would then ask that you review all of those same
documents for Brady material. When you have completed your review, please let
me know if there are documents that should be turned over because they are either
(1) not in-fact protected by the work-product doctrine and/or (2) Brady material.
Thank you in advance for your assistance in this matter.
Kimberly S. Rigby
Exhibit 13.
Prosecutor Zeleznikar responded:
Kimberly,
You are welcome for the opportunity.
I am well aware of our constitutional and discovery obligations, but thank you for
the reminder. I would remind you that your client has no right to postconviction
discovery. If there is a claim that your client would like to pursue, I’d suggest you
file it, as I do not intend to litigate matters via email.
Have a great weekend.
Sincerely,
Frank Romeo Zeleznikar
Id.
One week after the discovery of the shell casings and morgue pellets, on March 4, 2020, the
Prosecutor then filed his MOJ in this Court. The prosecution stated the following as to the state of
the evidence in this case:
It cannot be disputed that Bonnell has been aware since at least 1995 that the items
in question were not preserved for testing. The extensive record documenting
22
Bonnell’s knowledge of that fact is recounted at length in the statement of facts
below. He’s known this evidence was lost or destroyed because the State
continuously, at every point in the last 24 years, has acknowledged that the
evidence was not preserved. This has never been a secret. The State never hid it
from Bonnell. For Bonnell to now claim that this information is new to him ignores
the last 24 years of litigation, all [of] which is preserved in writing on the court’s
docket.
MOJ, p. 1 (emphasis added).
Schroeder’s investigation revealed that the Medical Examiner’s Office still had
possession of 7 autopsy microslides, 4 swabs from Bonnell’s jacket, and 1 swab from
an autopsy microslide, as well as the jacket itself. The lead prosecutor signed out the
murder weapon, pellets, and cartridge case on “February 18, 1987 [sic, 1988]” and
never returned them. The .25 caliber shell casings had also been signed out, but the
name was illegible. . . .
Except for Bonnell’s jacket – which DNA Diagnostics tested in 2009 – the other
evidence either could not be located and did not appear to have been preserved.
Id. at 9-10.
It cannot be disputed in this case that Bonnell has been aware since at least 1995 that
the items in question were not preserved for testing.
Id. at 19.
June 15, 2017: The State wrote in its second report under R.C. 2953.75(B) that “the
only items of biological material still in existence for DNA testing are as follows:
seven autopsy microslides from the victim, Robert Bunner, four swabs from
Bonnell’s maroon and tan jacket, one swab from an autopsy microslide, and
Bonnell’s maroon and tan jacket[.]”
All of this demonstrates that Bonnell has known, since at least 1995, that the items in
question from the crime scene were not preserved.
Id. at 21
Bonnell did not just claim the evidence was destroyed – he knew that the evidence
was not preserved for testing. He knew this because the State continuously, at every
point in the last 24 years, has acknowledged that the evidence was not preserved. This
has never been a secret. The State never hid it from Bonnell. For Bonnell to now
claim that this information is new to him ignores the last 24 years of litigation, all
which is preserved in writing on the court’s docket.
Id.
23
Here, the State’s 2017 report, although thorough, did not change the status quo of
what the parties already knew: the evidence was not preserved and was not available
for testing.
Id. at 22.
Bad faith does not exist merely because evidence in a 32-year-old case cannot be
located…
Id. at 23.
Bonnell offers no evidence of bad faith. His analysis here consists of rehashing the
various items that he has known since at least 1995 were not preserved. He then asks
this Court to infer from nothing that those items cannot be located because the State
must have systematically destroyed them in deliberate bad faith attempt to prevent
Bonnell from proving his alleged innocence.
Id. at 33.
It is not surprising that in a 30-year-old case that predated DNA testing, items
collected from the crime scene would not still be available.
Id.
Id. at 34.
However, the existence of physical evidence the prosecutor’s file rebuts the above
material misstatements and suggest that the State of Ohio has wrongly claimed for the last
24 years that all evidence was never collected or destroyed.
III. Argument: This Court must accept jurisdiction and grant Bonnell a new trial.
A. The Prosecutor’s Office had actual or imputed knowledge that the shell casings
and pellets were in the file yet represented to the courts it was gone.
As the Prosecutor points out in his MOJ (see e.g., pp. 19, 21), Bonnell alleged as early as
1995 that certain evidence was mishandled, lost or destroyed. Defense counsel demanded that the
24
Prosecutor’s Office account for the physical evidence, as well as any and all exculpatory evidence,
in this capital case. However, years passed with no accounting. Any statement that the Cuyahoga
County Prosecutor’s Office made assumed the destruction, or lack of collection, of any requested
evidence. See e.g., MOJ, pp. 20-21.
When Bonnell requested DNA testing in 2004 and again in 2008, the Prosecutor’s vague
statements and assumptions that the evidence was either not collected or destroyed turned into
acknowledgments of their duty to search for any evidence. In his initial Response to Bonnell’s 2008
Application for DNA Testing, the Assistant Prosecuting Attorney at that time, Jon Oebker
acknowledged this obligation and explained, “The state is also continuing with its ongoing obligation
to establish the existence of any and all evidence in this trial.” See Initial Response to Second DNA
Application filed 4/23/08, attached Exhibit 15 (emphasis added). The trial court ordered the same:
that the Prosecutor’s Office search for, and then report back, whether any evidence could be found.
The trial court concluded its order stating that “Materials found, if any, are subject to further order
of this court.” See Order for DNA Testing filed 08/04/08, attached as Exhibit 16. Since 2008, the
Cuyahoga County Prosecutor’s Office has remained constant: claiming to the courts, undersigned
counsel, and to Appellant Bonnell, himself, that no physical evidence (except for one jacket) could
be located from this capital case. See e.g., Exhibits 12, 18, 19, 21-23.
Thus, starting at least in 2008 with the Prosecutor’s Response and the trial court’s order, the
Cuyahoga County Prosecutor’s Office and its employees recognized that they had an obligation to
diligently search for the missing evidence. As the Prosecutor points out, once Bonnell applied for
DNA testing, they also had a statutory duty to look for the evidence. R.C. 2973.75(A) lays out where
the Prosecutor is to search for this evidence:
25
In using reasonable diligence to make those determinations, the prosecuting
attorney shall rely upon all relevant sources, including, but not limited to, all of the
following:
(1) All prosecuting authorities in the case in which the offender was convicted of
the offense for which the offender is an eligible offender and is requesting the DNA
testing and in the appeals of, and postconviction proceedings related to, that case;
(2) All law enforcement authorities involved in the investigation of the offense for
which the offender is an eligible offender and is requesting the DNA testing;
(3) All custodial agencies involved at any time with the biological material in
question;
(4) The custodian of all custodial agencies described in division (A)(3) of this
section;
(5) All crime laboratories involved at any time with the biological material in
question;
(6) All other reasonable sources.
Id. (emphasis added).
Thus, besides the fact that each Prosecutor that has been on this case should have, and are
assumed to have, knowledge of what is in their own file, the statute explicitly states that a search
must be conducted of “all prosecuting authorities.” Id. A thorough search should have been
conducted under the statute. Former Assistant Prosecuting Attorney Christopher Schroeder affirmed
that he did, in fact, complete that search. Exhibit 1 to Prosecutor’s Report, attached as Exhibit 12.
Prosecutor Schroeder’s own sworn statement indicates that he searched the file himself and also
asked two other unknown employees from the Case Management Unit to search the same file:
I informed [the defense investigator] that my office had four boxes of material
related to the Melvin Bonnell case in our possession, but that those four boxes
contained only paper documents.
On December 6, 2016, I asked two employees of my office’s Case Management

Unit if our office had any additional items in storage from Bonnell's case. I specified
26
that I was looking “for physical exhibits - a handgun, two jackets, and a pillow.”
They later informed me that they had checked our office’s file storage areas and
that the only items we had related to Bonnell’s case were the four boxes of paper
documents I had already both reviewed and informed [the defense investigator]
about.
Prosecutor Schroeder repeated in that same affidavit that his Office had no physical
evidence from this case:
I reiterated that my office had no evidence in its possession from Bonnell’s case.
Prosecutor Schroeder also affirmed specifically as to the shell casings and the morgue
pellets that he did not know where they were located:
I also spoke to Det. Todd Marazzi, who also worked in the Forensic Lab. Det.
Marazzi stated that the actual pellets themselves would normally be in a file cabinet
in the Forensic Lab. He stated that if someone had pulled the Forensic Lab Report
card, however, this suggested that this person had removed the evidence (the two
morgue pellets) as well. Det. Marazzi showed me pages 286-287 from the Forensic
Lab run book, which indicated that morgue pellets A and 8 had been received by
SIU on December 8, 1987, associated with the “dead body of Robert Bunner.”
There was no further indication as to where the pellets were currently located.
Ms. Stewart provided me with copies of the Forensic Laboratory Report cards for
the .25 Tanfoglio pistol (Lab #244381), the morgue pellets (Lab #244492), the .25
cartridge case (Lab #244815), and two .25 caliber shell casings (Lab #245065). . .
The card for the two .25 caliber shell casings showed that it was signed out to
another individual, whose name was illegible to me, on February 23, 1988. There
was not further indication of what happened to any of these items.
But this begs the question: if Prosecutor Schroeder fulfilled his statutory (and court-ordered)
duty to search for the evidence, how did he then not see the envelopes shown above marked State’s
Exhibit 1 and 2, 38, and 53? See Exhibits 3-5. The answer is clear. Either Prosecutor Schroeder did
27
not conduct the required search (assuming somehow the prosecutor searched the file and somehow
missed these well-marked envelopes in plain sight in the binder labeled “Trial Exhibits” does not,
and cannot, constitute “reasonable diligence” according to the statute) and lied in his sworn affidavit,
claiming that he did. Or he conducted the search, saw the evidence in the file, and intentionally
deceived that courts, undersigned counsel, and Appellant Bonnell, stating that no evidence could be
located, save a single jacket.
In addition, knowledge of what is in his file, even if not actual, is imputed. Kyles v. Whitley,
514 U.S. 419, 437 (1995). As Kyles imputes knowledge of what is contained in a State actor’s file
onto the prosecution, so too should knowledge be imputed on the Prosecutor as to what is in his own
file. “[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others
acting on the government’s behalf in the case, including the police.” Kyles, 514 U.S. at 437
(emphasis added). Thus, at the very least, Prosecutor Schroeder had imputed knowledge of what was
contained in his file, particularly when he was specifically supposed to use “reasonable diligence”
to search for it, and later detailed before multiple courts the purportedly comprehensive nature of his
search.
In the trial court, Bonnell challenged Prosecutor Schroeder’s affidavit and requested the
opportunity to explore the attested to, but otherwise unverified, contentions in the affidavit. Now we
know that the Prosecutor’s Office had an ulterior motive for opposing the testing of the affidavit. If
challenged, the affidavit would have been proven false as to evidence in the Prosecutor’s own office.
Bonnell has established intentional malfeasance in the current circumstances. At the very least, the
Prosecutor had no idea what was in his own Office’s boxes. Not knowing what he himself possessed
undermines the contentions related to materials in the possession of other agencies. Stated another
way, if you do not know what you have, how can you know what others have? Of course, either
28
intentional malfeasance or a reckless disregard for the truth would have been discovered
immediately if a modicum of due process had been accorded as requested by Bonnell at the inception
of this case.
The Prosecutor may try to argue that he had no duty to report to Bonnell and this Court that
the shell casings and bullets still existed in his file, because Bonnell only requested that certain items
of evidence be tested for DNA. However, that argument must fail. Even if that argument would have
passed muster in 1995, and maybe even in 2004, starting in 2008, the Prosecutor specifically
acknowledged his duty to look for any and all evidence from this case, not just the evidence that
Bonnell originally requested in his Application for DNA Testing. Also, in 2017, when Assistant
Prosecuting Attorney Schroeder filed his report and affidavit, he clearly stated, multiple times, that
he had searched for any evidence from this case and had not found anything, save Bonnell's jacket.
Exhibit 12. Finally, the case before this Court no longer deals with Bonnell’s request for DNA
testing, but deals, instead, with a claim pursuant to Youngblood where Bonnell specifically claimed
that it was a violation of his constitutional rights that the Prosecutor's Office lost or destroyed all
evidence from this case (except for one jacket).
Prosecutor Schroeder repeatedly told the courts that all of the physical evidence in this capital
case was either lost or destroyed, save one jacket. See e.g., Exhibits 12, 18, 19, 21-23. Prosecutor
Zeleznikar then reiterated these same falsehoods. Thus, even if this Court finds that Prosecutor
Schroeder did not have knowledge of what was contained in his own file, Prosecutor Zeleznikar
indisputably does. As detailed in Exhibit 1, Prosecutor Zeleznikar was present in the same small
conference room where undersigned counsel found and photographed this missing physical
evidence. In addition, upon request of undersigned counsel, Prosecutor Zeleznikar, “opened the
envelope marked State’s Exhibits 1 and 2 (see Exhibit 3). He opened both the outer envelope as well
29
as the smaller interior one. Neither were sealed. The smaller interior envelope shown in Exhibits 6-
7 was labeled as detailed above. Mr. Zeleznikar confirmed the pellets were indeed inside the
envelope.” Exhibit 1 at ¶ 20. Thus, Prosecutor Zeleznikar has actual, personal knowledge that this
evidence is in his file. Yet, a mere week after seeing this evidence for himself, Prosecutor Zeleznikar
stated in his March 4, 2020 Memorandum in Response to Jurisdiction:
It cannot be disputed that Bonnell has been aware since at least 1995 that the items
in question were not preserved for testing. The extensive record documenting
Bonnell’s knowledge of that fact is recounted at length in the statement of facts
below. He’s known this evidence was lost or destroyed because the State
continuously, at every point in the last 24 years, has acknowledged that the evidence
was not preserved. This has never been a secret. The State never hid it from Bonnell.
For Bonnell to now claim that this information is new to him ignores the last 24
years of litigation, all [of] which is preserved in writing on the court’s docket.
MOJ, p. 1.
B. “Bad Faith” is proven.
Assuming arguendo that Bonnell had not previously established bad faith (see February 10,
2020 Memorandum in Support of Jurisdiction, filed in this instant case), the Prosecutor’s Office’s
actions over the last at least 12-24 years proves bad faith. As the Prosecutor pointed out in his MOJ,
“Bad faith implies more than bad judgment or negligence; instead, it ‘imports a dishonest purpose,
moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill
will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.’”
State v. Dunn, 9th Dist. Wayne No. 03CA0037, 2004-Ohio-2249, ¶ 63, quoting Hoskins v. Aetna
Life Ins. Co., 6 Ohio St.3d 272, 276 (1983).
As described above in Section A., Prosecutor Schroeder and Prosecutor Zeleznikar (if not
the prosecutors that preceded them in this matter) had knowledge that physical evidence remained
in their file, yet they repeatedly stated the exact opposite to the courts. Prosecutor Schroeder stated
in his report, his affidavit, and to the courts in various pleadings (see Section II above), that all the
30
evidence, save one jacket, is gone. This is false. Prosecutor Zeleznikar perpetuated that falsehood
even after seeing the evidence for himself. Deceiving this Court, the lower courts, and Bonnell
“imports a dishonest purpose” or “conscious wrongdoing” as required to prove bad faith pursuant to
Youngblood.
In addition, the Prosecutor’s statements to this Court constitute a knowing misrepresentation
of a material fact. See Ohio Professional Conduct Rule 3.3: Candor Toward the Tribunal. The Rule
provides that: “A lawyer shall not knowingly … make a false statement of fact … to a tribunal or
fail to correct a false statement of material fact … previously made to a tribunal by the lawyer.”
“‘Knowingly’ … denotes actual knowledge of the fact in question. A person’s knowledge may be
inferred from circumstances.” Prof. Cond. R. 1.0(g). Prosecutor Zeleznikar had actual knowledge
that the statements he made in the MOJ concerning the missing or destroyed evidence were false: he
saw the evidence with his own eyes just one week before he filed the MOJ. Exhibit 1 at ¶¶ 19-21.
From the circumstances, the Court should also infer that Prosecutor Schroeder knew that his oft-
repeated claim that all of the evidence in this case (save one jacket) was lost or destroyed was false,
because some of the allegedly lost or destroyed evidence was within his own file that he claimed to
have personally examined carefully and thoroughly. See generally Exhibit 12 (Prosecutor’s Report)
and Exhibit 1 to Prosecutor’s Report.
The statements are also material misrepresentations because they go to the crux of the issue
before this Court. Bonnell’s underlying claim is based on Arizona v. Youngblood, 488 U.S. 51 (1988)
and concerns the mishandling, loss, or destruction of all of the physical evidence in his case.
Specifically, Bonnell filed a Motion for New Trial, claiming constitutional violations due to the loss
or destruction of all the evidence in his case. He based these assertions on the 2017 Prosecutor’s
Report and sworn Affidavit of then Assistant Prosecuting Attorney Christopher D. Schroeder. See
31
Exhibit 12. Before, and again in response to that Motion for New Trial, the Prosecutor repeatedly
and consistently asserted that the physical evidence from Bonnell’s trial had disappeared, save one
jacket. See e.g., Exhibits 12, 18, 19, 21-23.
The Rules of Professional Conduct required the Prosecutors to be truthful with the Court.
See Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation) and Prof.Cond.R. 8.4(d) (prohibiting an attorney from engaging in
conduct prejudicial to the administration of justice); In re Disqualification of Cirigliano, 105 Ohio
St.3d 1223 (2004). The Prosecutors here violated both of these rules by engaging in dishonesty that
was, in turn, prejudicial to the administration of justice. Because this is a death penalty case, the
Prosecutor’s actions to mislead the courts and Bonnell are particularly egregious. The State was also
prepared to execute Bonnell on February 12, 2020. If not for Governor DeWine’s reprieve on
December 20, 2019, the State may have succeeded. This was all the while perpetuating the falsehood
that no evidence existed in this case to prove Bonnell’s innocence.
This Court cannot excuse the Prosecutor’s conduct as mere incompetence or “negligence,”
especially when Prosecutor Zeleznikar repeated these factual claims he knows are false because he
both saw and felt trial evidence in the prosecutor’s file just the week before filing his MOJ. Days
after seeing the evidence and days before filing the MOJ, Prosecutor Zeleznikar indicated to defense
counsel that he was “well aware of” his constitutional obligations. However, it seems that is not the
case. Actions speak louder than words—and the action of pleading something one knows not to be
true drowns out any suggestion of being “well aware of” constitutional responsibilities. Indeed,
awareness of the inaccuracy demanded corrective action—not doubling down on the inaccuracy.
The Rules of Professional Conduct required Prosecutor Zeleznikar to correct these
misstatements. Prof.Cond.R. 3.3(a)(1). “Consequently, although a lawyer in an adversary
32
proceeding is not required to present an impartial exposition of the law or to vouch for the evidence
submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law
or fact or evidence that the lawyer knows to be false.” Prof.Cond.R. 3.3, Comment [2] (emphasis
added). But, Prosecutor Zeleznikar did the opposite. Prosecutor Zeleznikar even attempted to use
the “extensive” search conducted by the Prosecutor’s Office as evidence of good faith:
MOJ, p. 34. This dishonest statement demonstrates prosecutorial bad faith. A week after handling
the evidence, the Prosecutor still attempted to deliberately deceive this Court, as successfully
accomplished in the courts below, by stating again that no such evidence exists.
If Bonnell had not proven bad faith by the state actors before, he has done so now. This Court
must accept jurisdiction and find a violation of Arizona v. Youngblood, 488 U.S. 51 (1988). Most of
the physical evidence is still missing at the hands of the State. Regardless of whether Bonnell has
proven that the evidence had apparent exculpatory value or merely potential exculpatory value
before it went missing, it no longer matters. 2 Physical evidence exists and was hidden from Bonnell
until now. The Prosecutor’s Office lied to this Court and the lower courts about the state of the
evidence. This is bad faith. This Court should order a new trial.
C. This is not harmless error.
The Prosecutor’s material misrepresentations to this Court and the lower courts is not
harmless error. First, the Prosecutor’s Office is sworn to uphold justice, not convictions. Berger v.
2
Bonnell stands on his arguments that he proved in his Memorandum in Support of Jurisdiction that the physical
evidence in his case would have had apparent exculpatory value at the time of loss or destruction. For the sake of this
argument though, if bad faith is proven, potential exculpatory value is sufficient to succeed under Youngblood.
33
United States, 295 U.S. 78, 88 (1935). The behavior laid-out in this Motion should not, and cannot,
be sanctioned by this Court. Deceiving the courts and Bonnell for years while simultaneously
seeking to execute him is egregious and the highest form of prosecutorial misconduct. The Cuyahoga
County Prosecutor’s Office prejudiced Bonnell by depriving him of legal proceedings free of the
taint of the corruption by malfeasant actors arguing a material falsehood to obtain the denial of relief.
The post-conviction process, the DNA process, and the new trial procedure provided by the Ohio
Legislature must mean something—and Bonnell should not be deprived a meaningful review of his
Brady and Youngblood claims due to the Prosecutors’ repeated falsehoods.
Second, these shell casings and morgue pellets are evidence that could, in fact, prove
Bonnell’s innocence. As Dr. Julie Heinig of DNA Diagnostics Center stated, “We do routinely receive
spent casings, for DNA analysis, from crime laboratories and police departments, and will test them . . .
We have been able to obtain DNA profiles from spent casings in a number of cases that we have tested
in the past.” See Exhibit 24. See also Exhibit 25, Montpetit and O’Donnell, An optimized procedure
for obtaining DNA from fired and unfired ammunition, Forensic Science International: Genetics
(March 23, 2015).
In addition, Forensic Scientist Marc Dupre of Forensic Comparative Science Specialists,
LLC, submitted a report in this case. He is an expert in “Firearms Testing and Evaluation, Bullet and
Cartridge Case Comparisons, Shooting Scene Reconstruction, Powder and Primer Gunshot Residue,
Range of Shooting Distance Determination, Tool Mark Examination and Comparisons” and more.
Dupre concurred with Dr. Heinig’s conclusion that the shell casings could, and should, be submitted
for DNA testing. He stated:
Lastly, it is common practice today to perform Touch DNA testing on discharged

cartridge cases collected at homicide crime scenes to establish who may have
loaded them into the firearm. Due to the constantly changing eyewitness statements
regarding the assailant, I recommend this test be conducted on the three cartridge
cases found at the homicide scene.
34
Exhibit 26, p. 3. Thus, these spent casings are evidence that Bonnell could have, and would have,
asked to be submitted for DNA testing had he known they were available for that testing.
Dupre also offered his expert opinion on renewed firearms comparison of the shell casings
and bullets from this case. As to the bullets, he found, “Like the firearm, these smooth bullets are a
forensic oddity and they should be reexamined using current technology and examination practices.”
Id. at 2. As to the shell casings: “Significant advancements in firearm comparisons have occurred
since 1987. For instance, the existence of ‘subclass characteristics’ had not yet been discovered and,
therefore, not taken into account when conducting comparisons.” Id. at 3. He went on: “I can’t rule
out the possibility that the firing pin impressions Detective Yonkers used in his comparisons had
subclass characteristics causing him to inadvertently make a false match.” Id. Finally, he concluded,
“Like the firearm and smooth bullets, these cartridge cases should be reexamined using current
technology and examination practices.” Id. Again, had Bonnell been aware of the existence of this
physical evidence, he would have requested that the court order that his expert be able to examine
the shell casings and bullets and compare the shell casings against the bullets. This is particularly
concerning in a case that “certainly warrants a comprehensive reexamination of all related physical
evidence using current technology and examination practices.” Id. at 6.
Moreover, given the demonstrated inaccuracy as to the existence of physical evidence by the
Prosecutor, this Court must not rely on Prosecutor Schroeder’s affidavit as evidence of a thorough
and comprehensive search for evidence. Prosecutor Schroeder’s own file contained evidence that he
overlooked or deliberately hid when he presented his affidavit to the Court. If the Prosecutor cannot
accurately state what is in the four boxes he possesses and controls, there is no basis to find
credibility in any description that the Prosecutor gives regarding what evidence other agencies
possess. An accounting subject to a true adversarial process must occur to determine what other
35
items remain tucked away in a file. For instance, if the Tanfoglio .25 caliber handgun were recovered
(and it very well could be, since there is no record of destruction of it, as there is with the other
handgun from this case), it could be both tested for touch DNA and also compared against the bullets
and shell casings under current technology and examination practices. See Exhibit 26 at pp. 1-3.
Third, the Prosecutor’s Office—while inaccurately stating that these shell casings do not
exist—relied on the shell casings in their recitation of the facts and in arguing that there is
“overwhelming evidence” against Bonnell. For instance, in the March 4, 2020 MOJ, Prosecutor
Zeleznikar stated:
Police officers retraced the chase scene and found a .25 caliber automatic pistol
which was later identified as appellant’s. The weapon was test-fired and the test
bullets were compared to the bullets found in Bunner’s body. The test bullets and
the bullets retrieved from Bunner’s body had the same characteristics, and test
casings matched spent bullet casings found at the murder scene.
MOJ, p. 4. (emphasis added).
Police found a .25 caliber Tanfoglio handgun, later identified as Bonnell’s, on the
street along the route of the chase. Test casings fired from the gun matched spent
bullet casings found at the scene, and the test bullets fired from the gun were
consistent with the bullets removed from Bonnell’s body.
Id. at 42. The Prosecutor relied on this evidence as key evidence for the State, while at the same time
hiding these casings and bullets in his file. Any argument that this physical evidence does not matter
must fail because the Prosecutor’s Office deprived Bonnell of an examination of the evidence via
the material misstatement that no evidence existed.
Fourth, besides what is already pled in his February 10, 2020 Memorandum in Support of
Jurisdiction at pp. 2-3, 30-37, Bonnell also has additional new evidence that undercuts the entirety
of the Prosecution’s remaining case. 3 Eyewitness misidentification is the leading cause of wrongful
3
This new evidence was prepared in anticipation of Bonnell’s January 2020 clemency hearing which was delayed when
Governor DeWine granted Bonnell a reprieve of his execution date until March 18, 2020.
36
convictions, 4 and Bonnell’s 1989 conviction was based on troubling and unreliable eyewitness
evidence. Dr. Scott Gronlund, Ph.D., an expert in eyewitness identification, reviewed the statements
and testimony of the two eyewitnesses and various police reports of the officers who interviewed
both Hatch and Birmingham. He concluded “the eyewitness evidence in this fails to provide
independent and probative evidence of Bonnell’s guilt.” Exhibit 27, p. 7. He believes that Officers
“Kukula and Stanczyk’s decision that Bonnell was the shooter began a series of events that resulted
in Birmingham and Hatch complying with what was proposed to them, rather than Birmingham and
Hatch relying on their own memories about who committed the shooting that night in 1987.” Id. As
Dr. Gronlund details, “It is important to emphasize that the decision to detain Bonnell was a result
of the hypothesis developed by Kukula and Stanczyk: The man at the car crash (Bonnell) was the
shooter.” Id.
Dr. Gronlund added that as to Birmingham, “The showup presented to Birmingham was
highly suggestive. It was conducted after Birmingham was escorted by three police officers to view
an unconscious man whose face was partially obscured by an oxygen mask.” Id. at 4 (emphasis
added). Dr. Gronlund explained:
Birmingham likely was given no warning that the individual he was about to see may
or may not be the shooter. Worse, the police might have told Birmingham that they
had the shooter and his job was to identify him. It is possible that, under these
circumstances, Birmingham viewed his task to be to comply with these pressures and
indicate that the man lying in the ER was the perpetrator, rather than to examine the
suspect’s face to determine if it matched his memory of the perpetrator.
Id. at 5. Dr. Gronlund also explained how Birmingham’s identification may also have been
influenced by what is known as “unconscious transference.” Unconscious transference is when
4
See e.g., https://www.innocenceproject.org/all-cases/#eyewitness-misidentification, last accessed March 25, 2020;
https://wmich.edu/sociology/causes-wrongful-conviction, last accessed March 25, 2020.
37
someone appears familiar, but that familiarity arises from a different context. Dr. Gronlund
postulates that this phenomenon may be present here, since Birmingham “admit[ted] that he had
seen the defendant ‘a couple of times back in the summer, he used to go out with Michele.’” Id. This
is even more likely the case since Birmingham first claimed to not know the shooter. He only
changed his story after the officers presented him with Bonnell’s familiar face.
Dr. Gronlund likewise found that Hatch’s “‘identification’ of Bonnell was not based on her
memory.” Id. at 6. As he explained:
Instead, two factors pushed Hatch toward the conclusion that Bonnell is the shooter.
First, Hatch “read the clippings,” by which I assume she was referring to some
newspaper report indicating that Melvin Bonnell had been arrested for the shooting.
…. The second factor that pushed Hatch toward the conclusion that Bonnell was the
shooter was whatever Birmingham told Hatch about the identification that he made.
Id. Dr. Gronlund concluded that “the information Hatch provided to the police involving Bonnell
was a deduction that she made, it was not an independent piece of evidence extricated from her
memory by an identification test.” Id. (emphasis added). Thus, though these identifications were
always untrustworthy, advancements in the understanding of eyewitness identification underscores
why they cannot now be considered at all as “independent and probative evidence of Bonnell’s
guilt.” Id. at 7.
Forensic Scientist Marc Dupre also opined about other aspects of Bonnell’s case, including
Bonnell’s red and tan corduroy jacket (the same jacket that was the lone piece of evidence that the
Prosecutor’s Office claimed to still have; the same jacket that a State’s witness testified definitively
did not have the victim’s blood on it at trial; and the same jacket that was found in the Prosecutor’s
“closet” two years post-trial and then disappeared and reappeared once again in the 8th District Court
of Appeals file in 2008). Dupre is “highly skeptical of the validity of [the DNA] results due to the
cross-contamination conditions this coat was subjected to while displayed in trial.” Exhibit 26, p. 4.
38
He explained, “I have seen firsthand how physical evidence is routinely comingled during a trial.
All types of physical evidence is introduced and it’s necessary to be taken out of its’ protective
packaging and handled by attorneys and witnesses.” Id.
As a shooting scene reconstruction expert, Dupre also commented on the crime scene. He
noted the lackluster investigation, even for 1987; he specifically pointed out that officers did not
properly process the crime scene, nor did they take an adequate number of photographs to document
the state of the crime scene. Id. He found that “the assailant would have had considerable blood
transfer on their clothing and hands from having close and direct contact with the victim.” Id. Dupre
noted that if Bonnell were actually the perpetrator, he would have suspected to have seen “blood
deposits to be found on [Bonnell’s] hands, clothing, car door handles, steering wheel, gear shift as
well as the firearm he was suspected of handling.” Id. But he did not. He further concluded that “it
is highly improbable that [Bonnell] would have been able to remove copious amounts of blood from
his hands and/or clothing in a very short amount of time.” Id. Finally, Dupre added that the bullet
trajectory is “consistent with the shooter being around the same height or taller than Mr. Bunner.”
Id. at 5. Bonnell is shorter than Bunner. However, Joseph Popil—Bonnell’s alternate suspect—is
noticeably taller.
Prior to discovering the State’s most recent misconduct, Bonnell also spoke with several of
the original jurors from his 1989 capital trial. Undersigned counsel informed these jurors about the
evidence that has come to light since trial. 5 The response was overwhelming—all jurors who made
5
Undersigned counsel relayed the following evidence to the jurors: The inconsistent statements initially made by Hatch
and Birmingham; the test for gunshot residue that was conducted on Bonnell’s coat, that produced negative results; the
perjured testimony of the responding Officers Jesinowski and Montalyo (who testified that they made no reports, when
we now have those reports); that we now have an eyewitness identification expert (Dr. Gronlund) who has called into
question the identifications made by Hatch and Birmingham; and the fact that (undersigned counsel thought) all of the
evidence, except for Bonnell’s jacket, had gone missing at the hands of the State. See e.g., Exhibit 30, ¶ 13.
39
statements to counsel were taken aback that they were not given all the evidence and indicated that
the information now known to counsel would have made a difference to their consideration as to
both Bonnell’s guilt and sentence.
As the jury chairperson, Juror Carole Kmetz, stated, “If I knew the defense was not given all
the police reports and discovery they should have received before the trial, this would have made a
difference to me. . . . I may not have voted to convict Melvin Bonnell.” Exhibit 28, ¶ 9. Juror Gayle
Edwards reiterated “Knowing all of this new information, this would have made a difference to me.
I would have wanted to know all of this at the time. Because all of this is so inconsistent with what
we were told, the jury may not have convicted Bonnell at all. I may not have voted for a conviction.”
Exhibit 29, ¶ 12. Juror Brown told counsel that the information revealed to her “absolutely would
have made a difference” to her verdict. Exhibit 30, ¶ 14. Mr. Thomas Chuna, the son of one of the
alternate jurors at trial, relayed that his father never believed that Bonnell was guilty of this offense.
“This case haunted my dad since the trial.” Exhibit 31, ¶ 3. His father thought all along that Bonnell
was being “railroaded” and the police had set-up Bonnell as the “patsy.” Exhibit 30, ¶ 4. When Mr.
Chuna heard about the information that was withheld from defense counsel and the jury, he stated
“I can tell you that if my dad was here right now, he would be in tears. He would then explode in
emotion knowing that he was right all along in what he thought.” Id. at ¶ 10. Thus, not just one or
two, but one-fourth of the jurors (plus an alternate juror) that sat in judgment of Bonnell may have
changed their vote as to guilt, had they had all of the information now before this Court.
The jurors each relied on different pieces of withheld information in changing their minds as
to guilt. For instance, Juror Kmetz specifically stated that “If I heard testimony that the defendant’s
jacket was tested for gunshot residue and the results were negative, this would have made a
difference to me.” Exhibit 28, ¶ 5. Juror Edwards pointed out that she too was interested in seeing
40
the results of any gunshot residue testing done. She indicated further that she “remember[ed] that
Bonnell was wearing white clothes. I thought those clothes would have had blood on them if he did
it, but I do not believe that we were shown the clothes. I would have liked to have seen them.”
Exhibit 29, ¶ 4. Both Jurors Edwards and Brown indicated that the following would have made a
difference to them: (1) the inconsistent statements originally made by Hatch and Birmingham and
the fact that an eyewitness identification expert has further called those identifications into question;
(2) the test for gunshot residue that was conducted on Bonnell’s coat that produced negative results;
and (3) the perjured testimony of the responding officers. Exhibit 29, ¶¶ 7-10; Exhibit 30, ¶ 13. Juror
Edwards further recalled that “a detective testified that Bonnell’s finger was twitching, and that the
detective also testified that after you fire a gun, you twitch your finger like that.” Exhibit 29, ¶ 3.
Had Juror Edwards been given an alternate explanation—that this twitching was indicative that
Bonnell was actually experiencing a seizure because of his head injury—she states that this too
would have weighed in favor of changing her vote. Id. at ¶¶ 11-12; see also Exhibit 32.
Thus, in a case that was not clear-cut even at the time of trial, 6 the Prosecutor’s case against
Bonnell has now collapsed. See also Memorandum in Support, pp. 2-3, 30-37. The errors apparent
in this pleading are not harmless error, and, even though not required, Bonnell has proven that the
actions of the Prosecutor’s Office prejudiced him. This Court must grant relief.
IV. Conclusion.
If in response to this Motion, Prosecutor Zeleznikar retracts the false misrepresentations
made to this Court, this does not, and cannot, cure the harm to Bonnell. These material
misrepresentations not only prejudiced the instant case, but these errors infected the proceedings in
the lower courts and over the past 12-24 years of litigation.
6
The jurors took over two days to deliberate on the sentence, sent several notes from the jury room, and, in the end, the
trial court had to give the jury a dynamite charge before the jury rendered a verdict. Tr. 1695-99.
41
Therefore, this Court must grant Appellant Bonnell relief pursuant S.Ct.Prac.R. 4.01.
Bonnell requests this Court accept jurisdiction and grant Bonnell a new trial based upon violations
of Arizona v. Youngblood, 488 U.S. 51 (1988). If Bonnell had not before met the standard for bad
faith, he does now. Alternatively, Bonnell requests this Court accept jurisdiction and order the
appointment of a Special Master to oversee this case. And, again, in the alternative, Bonnell requests
this Court accept jurisdiction, remand to the trial court with instructions that the trial court appoint
a Special Prosecutor (see Motion to Strike the Appellee’s March 4, 2020 Memorandum in Response
to Jurisdiction, Motion to Disqualify the Cuyahoga County Prosecutor’s Office, and Motion to
Appoint the Office of the Ohio Attorney General as Special Prosecutor), and hold a hearing on
Bonnell’s Motion for New Trial where Bonnell can have a true and fair adversarial process to
determine what other physical evidence, if any, still remains available for testing and comparison in
this case and where Bonnell can further prove he warrants relief.
Respectfully submitted,
Office of the Ohio Public Defender

Supervising Attorney, Death Penalty Department
Counsel of Record
/s/ Erika M. LaHote

Erika M. LaHote [0092256]
250 East Broad St., Suite 1400

Columbus, Ohio 43215
(614) 466-5394
(614) 644-0708 - Fax
42
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Appellant Melvin Bonnell’s Motion for
Relief Pursuant to S.Ct.Prac.R. 4.01 was forwarded to Frank Romeo Zeleznikar, Assistant
Cuyahoga County Prosecutor via email at fzeleznikar@prosecutor.cuyahogacounty.us on this 30th
day of March 2020.

43

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Supreme Court of Ohio Clerk of Court - Filed March 30, 2020 - Case No.

In The Supreme Court Of Ohio

STATE OF OHIO, | Case No. 2020-0210

Appellant Melvin Bonnell’s Motion for Relief Pursuant to S.Ct.Prac.R. 4.01

Cuyahoga County Prosecutor’s Office Office of the Ohio Public Defender

Michael C. O’Malley [0059592] Kimberly S. Rigby [0078245]

Frank Romeo Zeleznikar [0088986] Erika M. LaHote [0092256]

Justice Center 250 East Broad St., Suite 1400

STATE OF OHIO, | Case No. 2020-0210

Appellant Melvin Bonnell’s Motion for Relief Pursuant to S.Ct.Prac.R. 4.01

Currently pending before this Court is Melvin Bonnell’s Memorandum in Support of

[hereinafter MOJ] filed in this Court.

Office of the Ohio Public Defender

/s/ Kimberly S. Rigby

/s/ Erika M. LaHote

250 East Broad St., Suite 1400

Counsel for Appellant Melvin Bonnell

2953.75(B) and attached sworn affidavit of Assistant Prosecuting Attorney Christopher D.

prosecutorial misconduct, this Court must now intervene.

Memorandum in Response to Jurisdiction, Motion to Disqualify the Cuyahoga County Prosecutor’s

II. Relevant Facts.

Beginning in 1995 with Appellant Bonnell’s original post-conviction proceedings, defense

miscellaneous materials were not preserved.”).

the following day.

states in relevant part:

Id. at 4-5 (internal citations omitted).

At the undersigned prosecutor’s direction, employees of the Prosecutor’s Office

Id. at 5 (internal citations omitted).

Id. at 5-6 (internal citations omitted).

Id. at 6 (internal citations omitted) (emphasis added).

Id. at Exhibit 1 to Prosecutor’s Report, p. 1, ¶ 5 (emphasis added).

Id. at 1-2, ¶ 5 (emphasis added).

On December 6, 2016, I asked two employees of my office’s Case Management

Id. at 3, ¶ 16 (emphasis added).

Id. at 8, ¶ 43 (emphasis added).

Id. at11, ¶ 62.

Id. at 14, ¶ 74.

Id. at 14, ¶ 76.

As detailed in the Prosecuting Attorney’s Report Pursuant to R.C. 2953.75(B), filed

the Prosecutor’s own file.

Appellee’s Merit Brief states the following:

the entirety of the argument to this Court.

Later, in response to a question by Justice O’Donnell, Prosecutor Schroeder stated, “Judge

for reconsideration, which this Court denied on December 12, 2018.

Prosecutor’s Brief in Opposition states in relevant part:

The Appellee’s Merit Brief states:

Exhibit 23, p. 17.

corrective remedial action.

of Jurisdiction in the instant case.

Cuyahoga County Prosecutor’s Office. Because Assistant Prosecuting Attorney Christopher

containing the following:

the baggie, as seen below:

put this conference pre-trial. Id.

Given undersigned counsel’s suspicion as to the exculpatory nature of this document,

Thank you in advance for your assistance in this matter.

Prosecutor Zeleznikar responded:

the evidence in this case:

MOJ, p. 1 (emphasis added).

24 years that all evidence was never collected or destroyed.

evidence. See e.g., MOJ, pp. 20-21.

the Prosecutor is to search for this evidence:

(6) All other reasonable sources.