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Front Page - Friday, December 20, 2019

Free but not cleared: A 20-year quest for justice


Chattanooga attorney Pettit relives eye-opening fight to clear relative



John Pudelski had breathed prison air for 11 years, locked within the walls of an Ohio correctional institution after a jury convicted him in 1999 of killing his 12-day-old daughter, Elly.

On the night Pudelski’s fate was sealed, he says he was watching television when his wife brought Elly out of the bedroom, where she and the baby had been sleeping. After his wife returned to bed, Pudelski says he fed his daughter and then dozed off with her cradled in his arms. When he awoke, he says he returned Elly to her crib before returning to bed and falling asleep next to his wife.

The next thing Pudelski knew, it was morning and his wife was screaming.

The coroner who examined Elly found a skull fracture. This gave the prosecution the ammunition it needed to pursue a case of homicide against Pudelski.

The defense called well-regarded forensic experts who testified the death was consistent with a birth-related injury. But the prosecution argued there was no evidence to support a birth injury.

Pudelski was sent to prison facing 15 years to life.

This was an unexpected turn of events for a computer programmer whose only previous brush with the law had been a single speeding ticket, but he was where the prosecution had said he deserved to be.

Pudelski, however, maintained his innocence and pursued the restoration of his freedom. His hope then faded as he burned through his available appeals and lost a bid for a new trial.

His mother, Delores, had found a photograph of Elly showing a bruise on her head several days after she was born. The prosecutors who had originally argued there was no birth injury claimed there was a minor birth injury and a lethal blunt force injury, and the judge said the photograph brought nothing new to light.

As the days, weeks, months and years in prison faded into a gray blur for Pudelski, his family continued to search for legal alleyways that might lead to his release but found only dead ends.

Then Pudelski’s sister, Denise Zubizarreta, and her husband, Miguel, pressed Chattanooga lawyer Richard Pettit into service in 2010.

Pettit was an unlikely soldier in the battle for Pudelski’s freedom. Not only did he live several hundred miles south of where Pudelski was being held, he was a civil litigator and mediator, not a criminal attorney. But Pettit was married to Marcie, Zubizarreta’s cousin, making him family and a potential asset in the case.

“John had been living in a pit of outrageous injustice for years,” Pettit says. “He was wrongfully convicted based solely on circumstantial evidence. And he had never done anything to hurt his daughter. He was simply the last person to hold her before she was found dead. So, I agreed to help.”

A voracious reader, Pettit is known for meticulously dissecting a situation and closely studying its pieces in his pursuit of the truth. But his initial belief in Pudelski’s innocence was based on instinct.

“My inner sense of deciding when someone is lying was convinced John was telling the truth,” Pettit says.

The scientific evidence in the case and the clever ways Pettit says the prosecution twisted the facts into innuendo during the trial reinforced his belief in Pudelski’s innocence.

“That kind of prosecution was tragically common at the time,” he points out. “The forensic evidence and analysis of injuries in infants was less understood, and rookie coroners had a lot of company in pressing for the notoriety and prominence of seeking convictions.”

Years of disappointment and frustration had left Pudelski disillusioned with the justice system, and he doubted Pettit could turn things around. But Pettit was convinced there was no basis to sustain Pudelski’s conviction, so he rolled up his sleeves and started working.

Little did he know he was embarking on a nine-year journey that would take a heavy toll.

Uphill battle

Pettit was tasked not with securing Pudelski’s freedom but finding and recruiting those who could. “My job was to put the right people in the right seats on the bus,” he explains. “That’s a limited role, but it played to my strength, which is relationships.”

Pettit soon learned this was like firing heavy artillery at a fortified wall. His first volley involved coordinating a petition for clemency with Doug Berman, a professor of law at Ohio State University, and Cyril Wecht, a world-renowned expert in forensic pathology.

After Ohio Gov. Ted Strickland failed to address Pudelski’s petition as he was leaving office, Pettit established ties with his replacement, Gov. John Kasich. Over a year later, Kasich denied the petition without reason or analysis.

As Pettit regrouped, Pudelski’s parole hearing appeared on the horizon. This gave him time to assemble a new team consisting of Columbus, Ohio-based parole attorney Barry Wilford and former Ohio State attorney general Jim Petro.

Wilford’s immediate impression of Pudelski’s trial is that it had been a battle of experts that had erred on the wrong side of justice.

“Michael Baden is a god in the realm of forensics. I’d seen questions bounce off him like he was wearing a suit of armor. The others had world class credentials,” Wilford said. “And contrary to what the state said, experts at that level don’t need to take a case to make a buck. Plenty of people want to hire them.”

Wilford’s impressions of Pettit were more favorable. “One of the first things I recognized about Richard was his Southern demeanor,” he says. “We don’t see that up here. He was humble, reserved and empathetic. It was easy to fall into a working relationship with him.”

Wilford also says he was impressed with Pettit’s encyclopedic knowledge of the case.

“Richard knew a large part of the record about the trial, especially the forensic evidence. The key to succeeding in this business is using whatever assets you can find, and here was this totally unusual asset for me to utilize.”

Despite the deployment of two powerful legal guns, the parole board rubber-stamped its denial and handed Pudelski 10 more years of prison. Wilford says he believes Pudelski’s claim of innocence was the kiss of death.

“They want to hear you’re remorseful and won’t do it again,” he says. “The best I can do with a claim of innocence is be forthright and say this is a credible claim; this isn’t someone who can’t accept his guilt.”

Pudelski’s last best hope was to file another motion for a new trial. Despite the disappointing losses they had suffered, Pettit says he believed they had acquired the ammunition they needed to demolish the stubborn wall that stood between his client and freedom.

This included photographs a family member had found on Pudelski’s computer in 2010 that showed a bloody red bruise on Elly’s head immediately after she was born.

“No one had seen them before, and John had apparently forgotten about them,” Pettit says. “I thought they would be a game changer.”

In addition, Pettit and his team were armed with a comprehensive review by Dr. William Cox, a forensic pathology and forensic medicine professional with extensive education and experience in neuropathology. Cox’s report discredited the forensic basis on which the coroner had relied for dating the age of Elly’s skull fracture.

“Many of the scientific assumptions and understandings that led to John’s conviction were no longer valid,” Pettit explains.

Wilford filed the motion for a new trial two months after the failed parole board hearing, certain he was breathing new life into a dying cause. And then nothing happened for more than a year.

Tired of the system’s foot-dragging, Wilford scheduled a status conference with the presiding judge, John Setula, in early 2017. When the conference finally took place in April, Setula asked the prosecution a question Pettit had been pondering since 2010: “What interest does the State of Ohio have in keeping an innocent man in prison?”

Although a hearing was scheduled for September, the prosecution asked for more time to obtain a counter expert opinion and analyze the computer on which the photographs were found. Setula granted their request, ushering in another year of waiting.

Light at the end

As the days, weeks, months and years of laboring on the case converged into a gray blur, Pettit remained steadfast in his quest to free Pudelski.

During this long stretch of his life, Pettit endured many personal travails. A husband and father of four, he nearly died from a series of pulmonary embolisms and, in 2011, a tornado destroyed his family’s home. The violent winds sent a 60-foot tree crashing through the roof of the house to land within 3 feet of his son.

But when a sea of voices rose to tell Pettit he’d done well but it was time to quit, he didn’t listen. These voices included those of Denise and Miguel Zubizarreta.

“They saw the toll the case was taking on me and said, ‘This is too much; we can’t require this of your life,’” Pettit notes. “But I told them I wasn’t going to give up. Part of that is because I have a fiercely genuine interest in authenticity and very little stomach for hypocrisy.”

The rest of Pettit’s resolve grew out of his Christian faith. While a student of Covenant College, he had been taught that Christ has preeminence in all things, and when he prayed about the case, the reply he says he received was never, “Give up.”

“If your faith is in something true, then it should make a difference in everything you do,” he says. “To have an opportunity to help John but not do it would be wrong.”

So, Pettit continued to creatively analyze and resourcefully think his way through the case. “There was always another thing worth trying. As vaporous as the hope might have been, it was still hope,” he says. “It never occurred to me that I had done all I could do and should give up.”

“Richard never flagged or faltered,” Wilford says. “His resilience was remarkable, especially when you consider how he had taken on something that was not in his wheelhouse.”

Pettit gave a measure of his hope to Pudelski, who was drained of optimism. He also listened patiently during many of his trips to Ohio as Pudelski spent hours railing against everything that had happened to him.

“John needed a safe place to vent so he wouldn’t take things out on his family, or fight with the other inmates, or do anything that messed up what he had, which was very little,” Pettit points out.

Pettit says performing this service scarcely qualifies him for sainthood, as he’s tranquil by nature. “I’m so laid back, people frequently check me for a pulse,” he says dryly. “I’m also used as a human sedative.”

Pudelski says Pettit’s sympathy helped to cool his anger. “My case seemed to bother him as much as it bothered me, which was comforting.”

The following January brought news that bolstered Pettit’s optimism: Two of the three experts the prosecution had hired to provide a counter opinion agreed with Cox.

Thomas Andrew, a prominent forensic pathologist, was hired first and said strong things about the flaws in the scientific basis for Pudelski’s conviction. So, the prosecution hired Michael Baker, whose report was even more critical of the evidence.

Backed against a wall, the prosecution hired a third expert – Mary Case – who Pettit derisively says is known to say “crazy things on behalf of the prosecution.” Case submitted a one-page affidavit saying the injury was “fresh.”

The prosecution also confirmed the photographs had not been altered.

In spite of Case’s assessment, Pettit says, “I believed the judge would grant a motion for a new trial, and I was certain the state would never bring it,” he says. “As a non-criminal defense attorney, I’m thinking, ‘we have this.’”

Setula scheduled an evidentiary hearing on the motion for a new trial for May 18, 2018. Both sides then stipulated the affidavits contained all of the relevant information and that the judge could make a decision.

And then nothing happened for a year.

After eight months of waiting for Setula to rule on the motion, Wilford reached out to the prosecution to see if the two sides could agree on a solution that would result in Pudelski’s release.

Pettit was not thrilled. “I thought, ‘After all this time, are we selling out John just to get him out?’”

Pudelski, however, had experienced a change of heart. He had been 30 when the cell door first slammed shut behind him, and was now 50. Although the years behind bars had robbed him of his momentum in life, his two daughters from a previous marriage were in their 20s and growing older by the day. He had a newborn grandson who didn’t yet know him.

Also, Pudelski knew a new trial would only extend his incarceration. So, it was time for him to step through whichever door opened to home.

After negotiating the details for seven months, the prosecution and defense agreed to a deal in which Pudelski pleaded to involuntary manslaughter and two counts of child endangerment.

The state released him for time-served in August.

Bittersweet ending

For two decades, Pudelski clung to his claim of innocence like it was his lifeblood. But after a meritorious clemency petition, an attempt at being paroled and a stab at a motion for a new trial, he was released on a time-served plea deal that did not exonerate him.

Pudelski had to swallow a bitter pill to achieve his freedom. So did Pettit.

“John’s innocence was never established, and the outrage and violation of causing an innocent person to suffer legal punishment was never addressed,” he says. “There’s something wrong when the facts don’t matter.”

Wilford echoed Pettit’s discontent in an email to Mark Godsey, director of the Ohio Innocence Project.

“Innocent and free, though not exonerated. The faulty Ohio criminal justice system has been exposed, though not taken to task,” he wrote.

Pettit says the outcome of Pudelski’s case reveals easy reforms that need to occur for justice to matter more in the U.S. judicial system.

“It’s good to have able prosecutors putting the bad guys behind bars when they belong there, but I think there’s room for substantial change in the way we determine where those lines are,” Pettit says.

Pudelski’s freedom seems to have come at the cost of Pettit’s long-held belief in the superiority of the American justice system.

“Many innocent people are behind bars,” he says. “I had always thought the system would protect them and provide a remedy when there’s merit, but now it looks like it doesn’t care.”

Though disgruntled, Pettit is pleased Pudelski is breathing free air again and able to enjoy the time he has left with family and friends.

“I would not blame John if he wanted to sit on a beach for the rest of his life and play with his grandson,” he adds.

“My happier ending would have been a finding of innocence and formal exoneration, but a time-served plea deal was the quickest way to win his freedom so he could get back to life.”

Wilford says he is also pleased Pudelski is no longer in prison but seems disappointed in the process.

“I’m ecstatic for John and his family that this injustice has been balmed, but the whole thing leaves me nauseous,” he says.

Although Pudelski is not legally innocent of killing his daughter, he’s no longer incarcerated for a crime he says he didn’t commit and is thrilled to be on the other side of the walls that held him captive for two decades.

He notes that his time in prison now seems unreal, like a bad dream from which he has finally awakened.

“Being back out feels normal,” he says. “Part of that is because I never considered prison to be home. To me, that life was abnormal.”

Since being released in August, Pudelski has been living with his mother in a Cleveland suburb and enjoying the small pleasures he was denied in prison.

“Being able to control the temperature of the water in the shower is nice,” he admits. “In the summer in prison, you sweat more coming out of the shower than you do going in.”

Pudelski also has secured employment developing applications for use on the internet.

Meanwhile, Pettit is still getting used to feeling of being unburdened by the case. And when Pudelski finally emerged from Grafton Correctional Institution a free man, he felt overwhelmed and undone.

“I hadn’t realized the crushing weight of the burden I’d been carrying until it was lifted from me,” he acknowledges.

As Pudelski reached the arms of his loving family, Pettit receded into the background, feeling numb and not yet sure if it was OK for him to straighten his back.

“I didn’t know how to feel. I had prepared myself for the devastation of failure – for John to commit suicide or for the motion for a new trial to be denied. I was ready for a lot of things but had never given any thought to success.”

Pettit says he is certain about one thing: He doesn’t want to become a champion for the wrongfully incarcerated. Instead, he’s going to focus on his general civil practice and read as much as his eyes can stand.

“My humanity has benefited tremendously from being involved in John’s case,” he says. “I’m a better person than I was. I have more to offer the world than I did. And I’m sleeping better than I have in a long time because of it.

“But I don’t want to become a crusader.”