Free Tyrone Noling

No Way Out
Lawyers say the case against Bob Gondor and Randy Resh could be titled The Insider's Guide to Prosecutorial Misconduct.

By Martin Kuz

Connie Nardi had the Upper Deck bar buzzing the night of August 14, 1988. As customers in the Mantua pub gawked and hollered, the lithe brunette danced barefoot on the bar, swiveling to the strains of classic rock. At one point, a young man named Troy Busta joined her, and the two bumped hips for a few minutes before climbing down. A half-hour later, wanting to cool off, they left to take a motorcycle ride.

About the same time, Bob Gondor ambled in and noticed his pal Randy Resh. The two men, buddies since childhood, grew up in Mantua, southeast of Cleveland. They worked with their hands, whether gripping tools on the job -- Gondor was a carpenter, Resh a roofer -- or beers at the bar. They knew Busta from the pub scene, but neither considered him much more than an acquaintance.

Yet their lives would become forever knotted with his when Nardi turned up dead the next day.

A fisherman spotted her half-naked body floating in a pond in Geauga County, a few miles from Upper Deck. The 31-year-old divorcée and mother had been strangled, apparently across the border in Portage County. Five days later, investigators arrested Busta, a high school dropout with a rap sheet dotted by drug and alcohol busts.

Upper Deck patrons saw Busta and Nardi exit the bar, return an hour later, and leave again. He would come back alone three hours later. Gondor and Resh also left the pub during the evening, visiting the nearby Village Tavern and returning to Upper Deck after an hour. That brief bar hop, they say, cost them their freedom.

Authorities would use Gondor and Resh's absence from Upper Deck to assert they rendezvoused with Busta and Nardi that night. Police alleged that the three men attempted to rape her; when she struggled, they killed her.

Busta, 21, would tell that story in court to avoid any possibility of sitting in the electric chair. In exchange for a term of 15 years to life, he pleaded guilty to murder in early 1989 and agreed to provide future testimony. He got his chance a year later, when Gondor and Resh, both 24, went to trial. With Busta the linchpin in the state's case, both were convicted and received sentences that likely ensured they would die behind bars.

The next 12 years passed with glacial slowness, as court after court rejected Gondor and Resh's appeals. Then, last June, their long shot seemed to come in.

Following a two-week hearing, Portage County Judge Charles Bannon ruled that the two friends' trial lawyers failed to disclose loads of compelling evidence that supported their claims of innocence. Bannon tossed out their convictions and granted them new trials.

Their good fortune didn't last. Within a month, County Prosecutor Victor Vigluicci appealed the ruling -- a move that once again plunged the case deep into court-docket purgatory and could keep the pair locked up several more years. Vigluicci salted the wound when he successfully fought Gondor and Resh's bond request to live under house arrest pending the appeal.

At first glance, Vigluicci's actions suggest typical prosecutor behavior. But closer scrutiny reveals a case rife with reasonable doubt -- about his office's credibility as much as Gondor's and Resh's guilt.

Legal observers say that anyone reading between the lines of Bannon's decision will discover what could be titled The Insider's Guide to Prosecutorial Misconduct. They argue that the judge's opinion, rather than proving the clumsiness of defense attorneys, shows authorities coerced testimony, blurred timelines, and concealed forensic data to clinch the case. Appealing his ruling, they add, only makes Vigluicci -- whose predecessor, David Norris, won the convictions -- look worse.

"This is just another severe example of prosecutors withholding evidence," says Richard Ofshe, a prominent authority on police interrogation tactics. The University of California at Berkeley professor testified on Gondor and Resh's behalf before Bannon. "It's another example of a prosecutor who isn't tough on crime. He's tough on the powerless."

Vigluicci counters that police and Norris nailed the right guys -- simple as that. "I've read the trial record," he says, "and if I felt we had put innocent people in prison, we would have dropped the case a long time ago. I obviously don't feel that way."

Critics contend Vigluicci could douse suspicion about his motives by dropping the case and blaming the mess on Norris, who left office in disgrace after a 1994 conviction for cocaine possession. He instead refuses to back off -- a defiance that appears to trouble even his own staff, says Martin Yant, a private investigator who worked the Nardi case.

"An assistant prosecutor told me . . . that there was hardly a day that went by that he didn't worry that they convicted two innocent men for a crime they didn't commit," Yant says. "That should tell you something."

Between Busta's police statements and court testimony, his account of the murder shifted like sand in the Sahara.

The condensed version:

Busta claimed he took Nardi to a spot along the Cuyahoga River near Upper Deck on their first motorcycle trip, around 7 p.m. When they returned to the bar an hour later, he lied to Resh that he'd had sex with Nardi. Busta testified that he and Resh talked about coaxing her back to the river so Resh could "get some."

After Busta bought a "split" six-pack of Corona and Pabst, he and Nardi rode down to the river a second time around 8:30. Fifteen minutes later, Gondor and Resh arrived in Gondor's white pickup. When Nardi refused the trio's advances, Busta alleged, Resh ordered him and Gondor to pin her down while he ripped off her shorts and underwear. "She was gasping for air, still trying to fight," Busta said at Resh's trial.

When Nardi kicked Gondor, Busta testified, Resh punched her in the head several times, then choked her to death. The three men loaded Nardi into the back of Gondor's truck before dumping her body in the pond. Busta said he retrieved his motorcycle, chucked the leftover beer into nearby weeds, and returned to Upper Deck; the other two were there by the time he arrived.

Gondor and Resh deny following Busta anywhere that evening. "The only thing we're guilty of is being drunk," says Resh by phone from the Mansfield Correctional Institution. Before his conviction, the darkest blotch on his criminal record was a DUI; Gondor had a DUI and a domestic dispute offense. "This whole case is built on lies," Resh says.

Their version:

They watched Busta and Nardi leave the bar once and come back sometime later. Around 10 p.m., the two friends rode in Gondor's truck to Village Tavern, heading back within an hour to Upper Deck; Busta walked in a half-hour later. Gondor and Resh stayed until the bar closed at midnight, then drove to Resh's trailer in Shalersville Township and ordered pizza from Domino's. They picked up the pizza a short time later and returned home for the night.

Prosecutors would undercut their story with two crucial claims. One was made by a state forensics investigator, who testified that stains found in Gondor's truck were human blood. (Still fledgling at the time, DNA technology could not verify the blood's source.)

The other came from Lieutenant David Easthon, then with the Geauga County Sheriff's Department and the lead investigator in the case. He alleged that, a day before authorities went public about the murder, Gondor and Resh returned to Domino's to ask if anyone remembered their visit. Easthon accused them of trying to establish an alibi, saying only the killers could have known about Nardi's death at that point.

Defense witnesses, including workers at Upper Deck, Village Tavern, and Domino's, confirmed Gondor and Resh's whereabouts for much of the night. Their attorneys also pointed out disparities in Busta's various accounts. In one statement, he claimed he and Nardi had sex and snorted coke. But when lab tests showed no evidence of drugs or semen in her body, he said they only kissed, and still later that they hadn't touched at all. Similarly, Busta first alleged that Nardi went to the river the second time with two men in a car. Later, he insisted that Gondor and Resh followed him, and that Gondor had sex with Nardi.

None of the switchbacks seemed to bother jurors, who believed Busta and the prosecution's spin in both men's trials. Resh received consecutive sentences of 15 years to life for murder and 5 to 15 years for attempted rape. Gondor is serving consecutive terms of 10 to 25 years for manslaughter and kidnapping.

But last summer, Judge Bannon proved a tougher sell -- owing to the staggering amount of evidence that never surfaced at trial.

Among the details:

" A transcript of a taped interview with Busta, conducted by his defense lawyers and their investigator in September 1988.

The interview's give-and-take appears to serve as a virtual primer on witness coercion. Pressed to reveal who killed Nardi, Busta says, "I don't know who did this." Moments later, when prodded about whether Gondor and Resh were involved, he replies, "I mean I never witnessed any kind of hitting, they never hit here [sic], they never slapped her in front of me."

When one of his lawyers asks if he'd go along with "setting up" other suspects, however, Busta offers that he'd "do anything . . . to get myself out of this. I ain't sitting in no chair for somebody else."

Bannon saw red flags -- and, perhaps, an explanation for Busta's frequent contradictions. "This transcript shows pressure being exerted on Busta to decide on what he was going to say to the police," the judge wrote, "and shows Busta's uncertainty as to the facts of the murder of Connie Nardi."

" A second forensics report on the stains in Gondor's pickup.

Dale Laux of the Ohio Bureau of Identification and Investigation claimed testing revealed blood in the truck's bed liner. It was the only forensic proof the state presented to bolster Busta's account about the disposal of Nardi's body. One catch: Prosecutor Norris also had a report from a renowned California research institute that stated no blood was detected. The stains, a scientist concluded, were "most likely perspiration."

" Work records that deflate the state's allegations that Gondor and Resh tried to cover their tracks.

Nardi vanished on a Sunday night. The next Wednesday, after locating her truck in Upper Deck's parking lot, police put out the word about her murder. By Thursday, they had questioned Gondor and Resh, since they had been alone in the bar with Busta near closing time. On Friday, the two friends went to Domino's to talk to employees. Drunk the night of Nardi's slaying, they wanted to sort out where they had gone and when, in case police grilled them again.

But prosecutors would assert that Gondor and Resh returned to Domino's on Tuesday -- a day before news of the slaying spread. Two workers, Brenda Holcomb and Rick Hollibaugh, told authorities the men stopped by on Tuesday, according to prosecutors, who portrayed the visit as a desperate, telltale attempt to concoct an alibi. The rationale sounds plausible, except that work records show Holcomb and Hollibaugh pulled the same shift only once that week -- on Friday.

" A potential witness's police statement that further erodes Busta's testimony.

Investigators interviewed Pauline Green, who lived on the opposite bank of the river where Busta said the killing occurred. She reported seeing a man and a woman on a motorcycle on her side of the river that night at 7, along with two other men on motorcycles. Around 11:30 -- when witnesses placed Gondor and Resh at Upper Deck -- she saw two people on a motorcycle drive past her house and throw something into the weeds. The next morning, she picked up three Pabst cans and two Corona bottles.

The woman's statement, Bannon wrote, "could have been used by defense counsel to show that Busta had lied about the location of the crime, and he may have committed the crime with two other people on motorcycles. Further, Mrs. Green did not see a white pickup truck . . ."

Since jurors were in the dark about such critical documents, Bannon -- who declined comment to Scene -- deemed their verdicts "not worthy of confidence." In ordering new trials, he faulted defense lawyers Gary Levine and James Draper for missing evidence that Prosecutor Norris insisted could be found in the prosecution's "master file."

Norris inherited the case from prosecutors in Geauga County, where Nardi's body wound up. After Busta pleaded guilty, Geauga prosecutors ceded control, because his conviction ostensibly validated the premise that the murder occurred in Portage County. But Norris's zeal exceeded his integrity, Levine and Draper say.

Both lawyers contend that not even satellite imagery could have pinpointed the key material in the "master file" -- it wasn't there. They note that defense attorneys base their arguments largely on reports provided by police and prosecutors -- the same people trying to put their clients away. Levine, a longtime Cleveland lawyer who represented Gondor, suspects the Portage County office played hide-the-evidence to seal its case.

"There's no way on God's green earth that any lawyer out of law school for 10 minutes would not have utilized these things had they been provided," he says. If a grand jury had heard the details cited by Bannon, he adds, "It's doubtful either of these guys would have even been indicted."

Draper handled Resh's trial defense and now serves as Cleveland's public safety director. He seconds Levine's praise of Bannon's decision to vacate the convictions, but says, "We were ineffective because it was state-induced. I don't have any doubt in my mind that [prosecutors] concealed evidence. And I think the judge knows that, too."

Norris, now with the Florida Public Defender's Office, scoffs at the accusation. He kept open files in all cases, he says, and no documents were withheld or slipped in at the last minute to thwart defense lawyers. While he regards the interview transcript and additional forensics report as "inconsequential," he dismisses the idea that Busta fingered Gondor and Resh to shield others.

"He doesn't have the character to protect anyone but himself," Norris says. "They were involved with him . . . There's no other conclusion you could come to."

It's no shock that Levine and Draper would attest to their own aptitude. Or that Tracey Leonard and James Owens, the Columbus lawyers handling the appeals, back them up. More telling is that Gondor and Resh vouch for their trial counsel.

"Something like the interview transcript or a [forensics] report, you wouldn't miss that," says Gondor, housed at the Grafton Correctional Institution. "It's too obvious."

Defense experts agree, calling the transcript of Busta's interview the .44 magnum of smoking guns. It lays bare how authorities exploited an 1,800-volt incentive -- the amount of current coursing through the electric chair -- to persuade Busta to implicate Gondor and Resh. Says Berkeley's Ofshe: "[Prosecutors] made him a deal. They were willing to offer him a way out. And it's all on tape. It doesn't get much more blatant than that."

Adds Jim McCloskey, head of Centurion Ministries, a New Jersey-based nonprofit that advocates on behalf of prisoners it believes were wrongfully convicted: "What you had were overzealous prosecutors who kept critical information hidden from the defense and the juries. It's inexcusable."

Busta, now 35, did not respond to Scene's interview requests. But what he said on the stand in 1990 -- whether to save himself, cover for two other people, or both -- still reverberates for the men he testified against.

Resh, 39, divorced his wife a decade ago to spare her from a life married to a prisoner. Gondor, 38, split with his fiancée for similar reasons, and his ailing father passed away last year. Still, for all the time they have lost, their lifelong friendship remains intact. The two trade letters as they work on their case, the one task that helps them shut out their frustration.

"You try not to dwell on [the future]," Resh says. "You have to live the reality of being in here."

Prosecutor Vigluicci betrays little edginess when discussing Gondor and Resh. Only when it's mentioned that some think Judge Bannon's ruling turned on prosecutors behaving badly, not defense lawyers' gaffes, does he flare.

"That's been a mischaracterization of his decision," he says. "His decision included no finding that my predecessor did anything wrong in this case."

Vigluicci declines to go into specifics. But he says filing an appeal has nothing to do with grudges, and everything to do with routine.

In the same way Gondor and Resh appealed earlier court rulings that went against them, his office has done likewise. He denies any sinister intent to drag out appeals, or to cover for Norris or investigators. He simply thinks Gondor and Resh killed Nardi, a view that also explains why he opposes the granting of bond. Even when a conviction is overturned, he points out, it's "extremely rare" for a prisoner to go free if an appeal is pending.

"What we're doing is pursuing the legal process as we would in any other criminal case. The appeals take time. That's not our fault, that's not the defense's fault. It just takes time."

Martin Yant spits out such reasoning. The Columbus private investigator maintains that the case cuts deeper than Vigluicci cares to admit.

Yant helped dig up details in the mid-'90s that later would show up in Bannon's ruling, including the prosecution's skewed Domino's timeline and Pauline Green's statement about seeing three motorcycles near the river. He interviewed dozens of people who told him authorities showed no interest in information that clashed with their Gondor-Resh theory, or that hinted at two other men taking part in the killing.

Typical was Billy Ratcliff, who visited Upper Deck the night Nardi died and corroborated Gondor and Resh's claim that they returned to the bar at 11 p.m. When he suggested to Lieutenant Easthon that Gondor and Resh were not involved in the murder, "Easthon blew up and stormed out," Ratcliff told Yant. "[He] said, 'I'll get you one of these days.'"

Bannon also discerned Easthon's apparent bout of tunnel vision. His ruling refers to an interview Easthon conducted with Upper Deck owner Ed Douglas, who mentioned that he'd heard Busta and Nardi went to a party with two other men after leaving the bar the second time. Easthon brushed him off: "Well, we haven't spoken to these two guys, yeah, we're beyond that. We're in the more critical stages now."

Yet Bannon interpreted the statement, which again purportedly lurked in the prosecution's "master file" but did not surface at trial, as exactly that -- critical. "This report could have been used to impeach Lieutenant Easthon's testimony for his failure to follow up a potential lead and to lend credibility to the evidence indicating that Busta committed the offense with two men other than Gondor and Resh."

Before their arrests, Gondor and Resh claim, Easthon would bait them by saying, "I know you guys were there. The first one to tell the truth gets all the breaks." They admit their initial brashness toward the cop may have goaded him into ignoring other possible suspects.

In one instance, Gondor recalls, Easthon interrogated him at home, peppering him with questions about whether he loaded Nardi's body into his pickup. An irritated Gondor finally slid his keys across a countertop and told the cop to take the truck. "I said he could scrape every damn inch of paint off it if he wanted to, I didn't care. I had nothing to hide."

Easthon, now the Middlefield police chief and under orders from Vigluicci to keep mum about the case, provides only the blandest of sound bites when asked about the two men. "I know they're guilty," he says. "Juries have convicted these people . . . Prosecutors have looked at this case and concluded that they're guilty."

Norris says his assistant prosecutors and investigators, after receiving the case from Geauga County, raked over all the details and talked to nearly every witness Easthon interviewed. But while still convinced of their guilt, Norris concedes that if Gondor and Resh returned to Domino's after police went public about the murder, as now appears to be true, "That would be a significant piece of evidence."

Nonetheless, Vigluicci insists he's unaware of anyone on his staff who, as Yant suggests, believes authorities put the screws to Gondor and Resh. "If somebody feels that way, I would expect them to come to me and talk about it. That hasn't happened." He adds that it's premature to predict whether he would retry the two men once he exhausts appeals -- a process that could stretch on for years.

Meanwhile, prosecutors in neighboring counties, facing similar circumstances in other high-profile cases, recently have chosen to ease off the retrial accelerator -- if grudgingly.

In 2001, Cuyahoga County prosecutors let Michael Green, wrongfully convicted of rape 13 years earlier, go free after DNA evidence cleared him. Last year in Summit County, prosecutors balked at retrying two men, Nathaniel Lewis and Jimmy Williams, after doubts arose about their rape convictions.

Williams, who served 10 years, won his release after his alleged victim recanted. Prosecutor Sherri Bevan Walsh, who inherited the case from her predecessor, says the woman's decision to retract her accusation sank the case. But Walsh says she briefly considered fighting on, because she's uncertain of Williams's innocence. "In general, as prosecutors, we do not like to see those who have committed a crime walking the streets."

The problem is that prosecutors tend to have an overripe sense of an accused person's guilt, former Stow Prosecutor Tom Watkins says. Now in private practice, he represented Williams. "[Prosecutors] don't like to give in to the fact that they screwed up, or even just to give in to the facts. All they want to do is keep that mark on the wall that shows they got a conviction."

Those marks often don't get erased until outside pressure surges, says Kirk Migdal, Lewis's lawyer. Lewis served five years before an appeals court granted him a new trial because a judge suppressed portions of his alleged victim's diary. The woman declined to return to Ohio to testify again, and Walsh allowed Lewis to walk. "The press and the general public were on my client's side," Migdal says. "I'm sure that weighed into [Walsh's] decision, either subconsciously or consciously."

While Walsh denies that public scrutiny influenced her, the media have begun circling Vigluicci. The Beacon Journal has covered Gondor and Resh's case, calling for their release in a November editorial. A Cleveland TV station also has a story in the works. (Connie Nardi's two children, now in their 20s, declined comment on the case, as did her ex-husband.)

Whether because of pure conviction, pride, or a fear that Gondor and Resh would sue the county if freed, Vigluicci remains resolute about their guilt. Appellate attorneys Leonard and Owens don't expect him to bend. Earlier this week, the 11th District Court of Appeals sided with the county in rejecting their clients' second bond request for release on house arrest. Leonard thinks prosecutors opposed the request out of a profound sense of obstinacy.

"They would take this case to the U.S. Supreme Court on up to the U.N. if they could," she says. "They're doing anything they can to delay the release of these guys."

Gondor's late father, a Hungarian immigrant who fled his homeland in 1956, put the prosecution's tactics in a more historical context. "Even when the communists ran Hungary," he would say, "it wasn't this bad."

A jury convicted Resh in July 1990. Before Gondor went to trial two months later, he rejected a plea that would have given him his freedom in a couple of years. After a jury convicted him but before he was sentenced, prosecutors made an even sweeter offer: 5 to 25 years, with a good chance of being released on shock probation after only six months. He could have the deal if he signed a piece of paper with three words on it: "I was there."

Gondor refused, knowing well he might spend the rest of his life in prison.

"What he did," defense lawyer Levine says, "takes some real stones. It also tells you how much these guys believe in their innocence."

At least one juror who voted to convict Resh has changed her mind. Leonard and Owen submitted her affidavit to Judge Bannon last summer. He refused to allow the document into evidence, but it's revealing all the same. The woman states that after reviewing the new details presented on appeal, she no longer trusts the prosecution's account. At the bottom of the paper, she scribbled a final sentence.

"I do not believe Mr. Resh is guilty."