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Appeal focuses on ‘Brady’ stigma
Teddy Foltz’ confessed killer claims he was railroaded into pleading to the 14-year-old’s torture and murder in 2013.
“I was informed by my attorney [Ron Yarwood] to take the deal because we weren’t going to trial,” Zaryl G. Bush told The Vindicator. “Because they said I’d lose and they didn’t want it on their record. He said we just had to ‘fall on a sword.’
“‘Take the plea deal or you’ll never see your kids again.’”
Bush, 49, is now in year six of a 33-year to life sentence. His new attorney is hoping 7th District Court of Appeals judges remand Bush’s conviction and felony-life sentence back to the Mahoning County Common Pleas Court for a new trial. Bush claims he can produce favorable evidence that investigators failed to seek and defense attorneys failed to present to his trial court.
The lengthy investigation into Foltz’s gruesome death came after the 14-year-old endured physical and verbal torment from Bush, then-boyfriend of Foltz’ mother, Shain Widdersheim, also imprisoned for allowing the boy’s abuse.
When the teen died Jan. 26, 2013, investigators discovered severe head trauma and frostbitten feet.
The case consumed local headlines, placing “enormous amounts of pressure on the Struthers Police Department to apprehend a suspect,” reads Bush’s $33 million civil-rights suit, filed in April against Struthers investigators, including former detective Jeffrey J. Lewis – a 27-year veteran police officer who lost his job after he was found to have falsified a criminal report and withheld a witness years earlier in a 2000 case.
“This is the worst story I’ve ever been told,” Lewis said at the time. “[Foltz] was beaten and tortured almost every day of his life. I can understand how people can say he [Bush] cannot serve enough time for this case.”
An investigation by The Vindicator focused on Lewis and how his informal branding as a “Brady” or “Giglio” cop impacts the justice system in cases in which evidence can be questioned after the fact.
THE $50,000 WITNESS
The Fifth Amendment means the criminal justice system doesn’t get to choose who gets due process of law. And under a ruling in the 1963 U.S. Supreme Court case Brady v. Maryland, even prosecutors are required to help that process by producing evidence that may harm their cases and exonerate defendants.
In 2000, when Lewis worked for the Youngstown Police Department juvenile division, a man he charged with breaking into a city tavern was ultimately cleared – after spending three months in jail – when prosecutors began to suspect Lewis falsified his report and withheld a witness.
Lewis claimed to have been on a routine patrol on Jan. 4, 2000, near the former Shenanigan’s Irish Pub along Poland Avenue – which Lewis also owned at the time – when he discovered the break-in.
Lewis reported nabbing known petty theft convict John R. Tesyk Jr. nearby, noting Tesyk’s hands were muddy and his boots matched muddy footprints inside the bar. He reported Tesyk was carrying a “crack pipe” and various tools: screwdrivers, pliers and a vice grip.
But in his official report, Lewis neglected to mention another person came across the scene at the same time: Lewis’ insurance agent, whom he had planned to meet that day at the bar. That man’s account differed from Lewis’ and could have offered “exculpatory” evidence suggesting Tesyk’s innocence – though Lewis later testified he felt the man wasn’t a pertinent witness.
The now-retired assistant county prosecutor Patrick Pochiro, who was assigned to Tesyk’s case, later testified he’d met with Lewis and Tesyk’s attorney two days before Tesyk’s trial was set to begin. Lewis told him the insurance agent was a potential witness – but only after Tesyk’s attorney had left the meeting, according to a Youngstown Police Association arbitration report.
Lewis didn’t help Pochiro reach the insurance agent, either, even after repeated requests from Pochiro, according to testimony. But Pochiro knew the man’s name and, on the morning of the trial, started calling each one he found in a phone book. After tracking the man down, Pochiro found his account of the break-in differed enough to kill the case against Tesyk.
A year later, Tesyk sued Youngstown for $1 million, but settled for $50,000, according to the report.
The incident launched a monthslong internal investigation – during which Lewis failed polygraphs about his conduct – and he was fired from the Youngstown Police Department July 20, 2001.
Lewis appealed the same day, seeking reinstatement. The Youngstown Police Association entered arbitration with the city, but the final ruling in 2002 favored the city.
That arbitrator ultimately found several conflicts of interest in the case, beyond the fact that Lewis himself was assigned to investigate a crime at his own bar. The evidence revealed “the efforts of a ‘good old boy’ network to find a scapegoat” like Tesyk.
OFFICER CREDIBILITY
Of all active law enforcement officers in Mahoning County, only two – including Lewis – are recognized by the Youngstown Law Director’s office as having withheld what’s called “Brady” material in a criminal case. The “Brady” rule – which is also embedded in Ohio courts as Criminal Rule No. 16 – ensures defense attorneys have access to evidence that favors the defendant.
The other officer is Ohio State Highway Patrol trooper Jeremy Hartman, who in 2018 charged a man with operating a vehicle while under the influence after he reportedly failed portions of a sobriety test.
The court noted discrepancies between Hartman’s court testimony and his report and other evidence – most notably that he didn’t administer the sobriety test at all.
Hartman, a four-year trooper at the Canfield post who’d made a “couple-hundred OVI arrests,” according to court filings, was reprimanded and transferred to the patrol’s Warren post, where he remains active today.
In Lewis’ and Hartman’s cases, falsifying reports counts as a “Giglio” violation, referring to a further delineation of the “Brady” rule, which accounts for circumstances that damage the credibility of a witness, such as a police officer in a criminal case. That designation gets its name from Giglio v. United States, a 1972 U.S. Supreme Court case.
“Anything that affects an officer’s credibility on the stand can have an impact on the case,” Mahoning County Prosecutor Paul Gains told The Vindicator.
The informal branding of “Brady” or “Giglio” cop can follow officers for their entire career.
The majority of “Brady” instances, however, relate to trial evidence and discovery, rather than the testimony of perjured cops, Boardman defense attorney Lynn Maro said.
“From my perspective, it does come up occasionally,” Maro said. “I file a motion for due process material any time I have a bigger case. ... The prosecutor has an obligation to seek out ‘Brady’ material from the police and disclose it.
“Doesn’t matter if it’s good faith or bad faith ... you have to turn it over.”
In the past, Maro has filed court motions illustrating county prosecutors’ shortcomings on the rule, she added – either they don’t understand how it’s intended to work or they simply ignore it.
“There have been incidents over the years with the Mahoning County prosecutor’s office where I feel they haven’t fulfilled their ‘Brady’ obligations in disclosing evidence favorable to the defense,” she said.
Gains disagrees, adding his office has offered open-file evidence discovery since he took office, meaning defense attorneys always have access to prosecutors’ entire case-file.
But as seen in Lewis’ case, police officers alone might be responsible for stifling important evidence – or simply missing it in the first place.
“That happens a lot, where we end up discovering evidence late,” Gains said. “We do the best we can to have the officers conduct as thorough an investigation as possible, but again, we invariably find evidence when we investigate further.
“That’s just the way the system is. I don’t think there’s a prosecutor’s office in the world that doesn’t find additional evidence when they’re preparing for trial.”
BACKGROUND CHECKS
Lewis spent nine years with Youngstown Police Department before his termination.
Today, the 48-year-old is a full-time patrolman with Poland Township Police Department and part-time at Lowellville Police Department. But he’s worked throughout Mahoning County since Youngstown let him go in 2001: The Mahoning County Sheriff’s Office and police departments in Struthers, Milton Township and Craig Beach, as well as with Humility of Mary Health Partner’s police force at local hospitals.
Unlike Youngstown, the office of attorney John Zomoida, law director for the city of Struthers – where Lewis served in various capacities from 1991 to 2014, according to his personnel records – doesn’t keep a list of known “Brady” cops, nor does the county prosecutor’s office, officials from those offices said.
Lewis’ personnel records from each of those departments are bursting with decades of training certifications, recommendation letters, awards and commendations on jobs well done, and hold few reprimands.
But none of the departments’ applications asks if officers have ever perjured or falsified reports. Some, however, do contain questions about previous discipline.
Lewis cited his split with YPD as “wrongful termination” when he reapplied to the sheriff’s office in July 2001, when his arbitration appeal was still pending. Records show he was deputized again as recently as 2017 as the Poland Township representative on the sheriff’s homicide task force, under current Sheriff Jerry Greene.
In his application to Milton Township Police Department, Lewis stated he left YPD over a “conflict with former Chief Richard Lewis.” On his Struthers application, his termination from YPD was because he “purchased a tavern,” resulting in discipline from the city police chief and “personal conflict.”
Lewis’ personnel file at the Lowellville department only contained his resume. Chief Rick Alli said nothing else was recorded, and Lewis didn’t have to fill out an employment application to work there because he was “well-known” in the law enforcement community.
Alli, who said he worked at YPD when Lewis was fired, didn’t seem fazed by Lewis’ “Giglio” violation.
“I remember a lot of the circumstances behind it – a lot of them weren’t substantiated,” Alli said. “Plus, I remember he had taken several polygraphs when he went to Struthers. ... He passed them.
“I never bothered to read all the stuff at YPD at that particular time,” he added.
The Vindicator reached out to Lewis through Alli, but Lewis did not respond to repeated requests for comment.
‘NO-MAN’S LAND’
In Bush’s civil suit against those who investigated the death of Teddy Foltz, he claims Struthers detectives Lewis and Raymond Greenwood conspired to manufacture or manipulate evidence to implicate Bush, including altering or falsifying witness statements, failing to interview witnesses who had “vital and key information to clarify and/or refute the facts of the investigation” and even forging dates on search warrants.
Gains said the majority of the evidence that would have been used against Bush had he actually gone to trial for Foltz’ death was compiled by the Ohio Bureau of Criminal Investigation. Though Lewis was one of Struthers’ detectives on the case, his involvement in trial preparation was minimal, Gains said. Though prosecutors would have been required to disclose Lewis’ “Giglio” violation from 2000, he said they “had no intention of using him as a witness.”
Bush claims his relatives submitted eyewitness statements and recordings that weren’t ultimately used by his trial attorney Yarwood and his first appellate attorney, Gary Levine.
Bush also was kept from gathering statements from witnesses himself due to ongoing court orders on pending domestic violence claims, said Atty. Michael Goins of Cleveland, who’s representing Bush in his second post-conviction relief appeal now before the 7th District court.
During a July hearing, appellate judges questioned why Bush’s new evidence was presented in the appellate court, on a second post-conviction appeal, rather than during trial.
“You’re telling us that two seasoned lawyers – because they didn’t feel like it – had exculpatory evidence they didn’t pursue?” 7th District Judge Cheryl Waite said in court. “That bends credulity.”
Without a way to change his plea and without evidence the court considers to be new and admissible, Goins said Bush is “stuck in no-man’s land” between the trial and appellate courts.
He’s arguing ineffective counsel as well as the unconstitutionality of Bush’s guilty plea, Goins said.
Goins said he expects the appellate court will rule within the next six months.