Thursday, July 18, 2019
Staff report
YOUNGSTOWN — Attorneys argued the constitutionality of Zaryl Bush’s murder conviction and the viability of Bush’s post-conviction petition Thursday before Seventh District Court of Appeals judges.
Bush, 49, is serving 33 years to life for torturing and killing 14-year-old Teddy Foltz, of Struthers, in 2013.
Cleveland attorney Michael Goins appeared on Bush’s behalf, arguing Bush was denied rights to have evidence suggesting his innocence presented during his trial.
Zaryl’s mother Karen Bush and his adult son Noah claim the Struthers officers who investigated Zaryl Bush didn’t interview certain eyewitnesses whose statements could have defended Bush and that evidence Karen Bush submitted to Bush’s attorney was never utilized.
The decision not to execute affidavits for that evidence was made by Bush’s then-defense attorney Ron Yarwood, he said. Goins also argued the ineffectiveness of Yarwood’s counsel during Bush’s murder trial.
“It’s tantamount to denial of due process,” Goins said during the hearing. “Are we sacrificing his due process rights due to counsel’s choices he cannot control?”
Appellate Judge David D’Apolito questioned why the calls for Bush’s new evidence are only being presented now, during Bush’s second post-conviction appeal, which was denied along with the first in Mahoning County Common Pleas Court.
“You’re telling us that two seasoned lawyers — because they didn’t feel like it — had exculpatory evidence they didn’t pursue?” Seventh District Judge Cheryl Waite said. “That bends credulity.”
Ralph Rivera, assistant Mahoning County prosecutor, said though the state isn’t arguing the validity of Bush’s new affidavits — as this appellate hearing isn’t the proper venue — he said Bush’s claim can’t overcome certain procedural hurdles for a successful appeal.
Bush’s exculpatory evidence was known by the trial court before Bush pleaded guilty to killing Foltz and that court’s ruling precludes continued litigation on pre-existing evidence, he said.
“There’s zero evidence to establish if he had this information, why didn’t he do anything with it? There’s nothing new here,” he said. “This court already found [Bush’s guilty plea] was knowing and voluntary.”