Victim’s Mother Joins Fight to Free ​“Likely Innocent” Death-Row Prisoner Walter Ogrod, Who Has Symptoms of Coronavirus

Saying she want­ed jus­tice for her mur­dered four-year-old daugh­ter, not ​“a closed case with an inno­cent per­son in jail,” Sharon Fahy has joined with the Philadelphia District Attorney’s Office and defense lawyers in the fight to imme­di­ate­ly free Walter Ogrod (pic­tured) from Pennsylvania​’s death row. 

On April 8, 2020, Fahy sub­mit­ted an affi­davit and a brief sup­port­ing the par­ties’ efforts to per­suade Philadelphia Court of Common Pleas Judge Shelley Robins New to address uncon­test­ed inno­cence claims the par­ties agree enti­tle Ogrod to a new tri­al. Citing Ogrod’s con­tin­u­ing bat­tle with an undi­ag­nosed viral infec­tion that has pro­duced symp­toms con­sis­tent with the COVID-19 coro­n­avirus, lawyers and Philadelphia pros­e­cu­tors filed a renewed motion request­ing prompt dis­po­si­tion of issues that have been before Judge Robins New since February 28. 

On that date, the Conviction Integrity Unit of the Philadelphia District Attorney’s Office filed a motion in state tri­al court stat­ing that Ogrod is ​“like­ly inno­cent” and urg­ing the court to vacate his con­vic­tion and death sen­tence. Judge Robins New ini­tial­ly set a hear­ing date for March 27 but, The Intercept reports, ​“in ear­ly March — before the coro­n­avirus shut­tered the Philadelphia courts and just before [Ogrod] fell ill — Robins New sum­mar­i­ly can­celed the hear­ing, with­out telling the lawyers.” The hear­ing date was resched­uled for June 5, and Robins New’s clerk report­ed­ly told the lawyers that the judge only hears crim­i­nal mat­ters on Fridays and had a pre-planned trip abroad that would make her unavail­able most of May. 

[UPDATE: On April 9, the Philadelphia Court of Common Pleas sum­mar­i­ly denied the par­ties’ motion. In an order served by email, the court stat­ed that a hear­ing on Ogrod’s inno­cence claims would take place as sched­uled on June 5.]

On March 18, Ogrod’s attor­neys filed two emer­gency motions after Ogrod began dis­play­ing symp­toms of coro­n­avirus, includ­ing a 106 degree fever and a dry cough. They sought an order to move Ogrod to a hos­pi­tal for test­ing and treat­ment, as well as an expe­dit­ed rul­ing on his inno­cence claims, cit­ing ​“Mr. Ogrod’s dire med­ical con­di­tion in the midst of a world­wide pan­dem­ic, the prison’s appar­ent inabil­i­ty to test him for the coro­n­avirus (COVID-19) and treat him, and his incar­cer­a­tion on death row despite his like­ly inno­cence.” The Philadelphia Court of Common Pleas grant­ed the motion for emer­gency treat­ment. However, the Pennsylvania Department of Corrections refused to com­ply with the order, argu­ing that the court lacked juris­dic­tion to rule on that issue and the court vacat­ed its order on March 25.

In her affi­davit, Fahy, whose daugh­ter Barbara Jean Horn was killed in 1988, wrote: ​“There is no ques­tion in my mind that Mr. Ogrod is inno­cent and that he should be released from prison imme­di­ate­ly.” Filed joint­ly with the Healing Justice Project, Fahy’s brief explained to the court how ​“wrong­ful con­vic­tions harm vic­tims and their fam­i­lies” and that Ogrod’s con­tin­ued incar­cer­a­tion is harm­ing her and Barbara Jean’s fam­i­ly. ​“I am sad and angry to find out 32 years lat­er that key evi­dence was with­held from me, my fam­i­ly and the courts,” Fahy said. ​“My daugh­ter is nev­er com­ing home but I want­ed jus­tice for her, not sim­ply a closed case with an inno­cent per­son in jail.”

Fahy urged that Ogrod be pro­vid­ed ​“what­ev­er med­ical treat­ment he needs.” He should ​“be released as soon as pos­si­ble,” she said. ​“The pos­si­bil­i­ty that an inno­cent man might die in jail would only serve to mul­ti­ply the pain Barbara Jean’s fam­i­ly has suffered.”

The joint motion filed by Ogrod’s lawyers and the Philadelphia District Attorney’s office states that “[a]ll inter­est­ed par­ties, includ­ing the victim’s fam­i­ly, agree relief is war­rant­ed and fur­ther incar­cer­a­tion of Mr. Ogrod would be a painful and unnec­es­sary injus­tice.” The motion also presents new data on the spread of coro­n­avirus in Pennsylvania pris­ons. As of April 7, it says, five pris­on­ers and four employ­ees at SCI-Phoenix, the facil­i­ty in which Ogrod is incar­cer­at­ed, have test­ed pos­i­tive for COVID-19. It is wide­ly believed that Ogrod is one of those five, but the Pennsylvania Department of Corrections has refused to con­firm that fact to Ogrod’s lawyers and, cit­ing patient pri­va­cy con­cerns, has not revealed the iden­ti­ties of these patients to the media or the public. 

Additionally, the motion invokes guid­ance from the Pennsylvania Supreme Court encour­ag­ing courts ​“to use advanced com­mu­ni­ca­tion tech­nol­o­gy to con­duct court pro­ceed­ings“ to facil­i­tate the con­tin­u­ance of judi­cial busi­ness dur­ing the pan­dem­ic. It is ​“abun­dant­ly clear,” the motion con­cludes, that a rul­ing ​“is not only war­rant­ed giv­en the uncon­test­ed evi­dence before the Court, it is encour­aged in light of the COVID-19 pandemic.” 

Journalist Tom Lowenstein, who wrote a book on Ogrod’s case, sug­gest­ed that Robins New’s inac­tion may be explained by her pri­or rela­tion­ship with the Philadelphia District Attorney’s office. Judge New was a pros­e­cu­tor in that office for 18 years, includ­ing work­ing as a homi­cide pros­e­cu­tor. Her men­tor, Lowenstein says, was Judith Rubino, the pros­e­cu­tor whose fail­ure to dis­close sig­nif­i­cant excul­pa­to­ry evi­dence is impli­cat­ed in the case. ​“She’s sit­ting on it now,” Lowenstein told The Intercept. ​“If she thinks she can get away with this as a ​‘defend­er of lib­er­ty,’ then this is the moment to make her under­stand that she is not.”