Pittsburgh Post-Gazette – by Michael A. Fuoco
Attorneys for murder exoneree Lewis Jim Fogle have filed a lawsuit in U.S. District Court in Pittsburgh seeking unspecified compensatory and punitive damages from Indiana County, two former prosecutors and seven state police troopers involved with the investigation and trial that wrongfully sent him to prison for 34 years until new DNA testing won his freedom in 2015.
In the 32-page lawsuit, the New York firm of Neufeld Scheck & Brustin contend that mounting pressure over a stalled, nearly five-year investigation into a 1976 rape and murder of an Indiana County girl led the officials to “engage in multiple acts of misconduct to cobble together a case by any means necessary. Jim Fogle was the victim of that malfeasance.”
Mr. Fogle, now 65, and who goes by his middle name, was arrested in 1981 and convicted the following year of second-degree murder of 15-year-old Deann “Kathy” Long, whose body was found in a wooded area not far from her Cherry Tree home. The Innocence Project of New York won his freedom in August 2015 after it discovered the existence of new DNA evidence from Kathy’s body that excluded him. He was exonerated the following month.
“No court can give Jim that time back,” noted Emma Freudenberger, one of his attorneys, “but what this suit can do is bring the misconduct to light and provide some measure of comfort for the remaining years of his life.”
The lawsuit contends the defendants used statements and witnesses against Mr. Fogle they knew were untrue or unreliable and in doing so violated his Constitutional rights of due process and protection from malicious prosecution, fabrication of evidence and withholding of exculpatory evidence.
As detailed in an ongoing series by the Pittsburgh Post-Gazette, Mr. Fogle suffers from PTSD. He has no steady income, unable to find work as a handyman. Unlike 31 other states, Pennsylvania provides no compensation to the wrongfully convicted.
Moreover, while he remains friends with his wife, they have been unable to resurrect their marriage and other family relationships have been strained or don’t exist.
Among those being sued are former Indiana County District Attorney Gregory Olson, and former county Assistant District Attorney William Martin. Today, Mr. Olson is a retired Indiana County judge; Mr. Martin is a current Indiana County judge. Neither they nor Mike Clark, Indiana County solicitor, could be reached for comment. A State Police spokeswoman in Harrisburg said the department does not comment on pending litigation.
The suit notes that investigators only focused on Mr. Fogle and three other defendants and quickly arrested them after they were implicated by Earl Elderkin, “known as ‘Spaceman’ because he claimed that he and his kids were from outer space.” The lawsuit notes that Mr. Elderkin was an early suspect in 1976 because he resembled a composite image of a man into whose car Kathy was last seen entering.
Elderkin, now deceased, gave five different stories to police between 1976 and 1981, the last one after he admitted himself to a psychiatric ward and was later hypnotized by an amateur hypnotist. In that tale, for the first time, he said that he and two other men were present when Jim and his brother, Dennis, raped Kathy before Jim shot her in the head with a rifle.
Because of his conflicting statements and the amateur hypnotism, a judge barred Elderkin from testifying. None of the other defendants was prosecuted. Three jailhouse informants came forward to tell authorities Mr. Fogle confessed to them. It was primarily on their testimony that Mr. Fogle was convicted.
Michael A. Fuoco: mfuoco@post-gazette.com or 412-263-1968. Twitter: @michaelafuoco