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Jack Dempsey

Other Arson Cases
At 11 p.m. on March 11, 1995, firefighters were called to a burning building on Lorain Avenue in Cleveland, Ohio. After the fire was brought under control, firefighters went to the basement to shut off the electricity in the building. There, they found 33-year-old Jack Dempsey unconscious, but alive.

Dempsey was suffering from severe smoke inhalation and tests showed a high level of morphine in his bloodstream. When he regained consciousness, he had severe memory loss, causing him to forget many of the events of the day of the fire.

The fire was declared arson based on multiple points of origin and evidence of forced entry. Dempsey’s car was found parked outside the building, but his keys were not found.

In December 1995, a Cuyahoga County grand jury indicted Dempsey on one count of aggravated arson and one count of burglary.

He rejected an offer from the prosecution to plead guilty to a charge of vandalism and went to trial in Cuyahoga County Court of Common Pleas in August 1996.

The prosecution contended—without providing a motive—that Dempsey broke into the building, set fires in two places and was overcome by smoke when he attempted to escape through the basement.
 
Dempsey’s defense lawyer called three witnesses to support the theory that someone had drugged Dempsey and then brought him to the building where he was dumped into the basement and the fire was started.

Two of the witnesses who testified were physicians who said they detected significant levels of morphine, alcohol and benzodiazepine (a tranquilizer) in Dempsey’s urine after he was brought in from the scene of the fire for medical treatment.

The third witness was Dempsey himself, who said he remembered going to a strip club called the Dollhouse to look for Steven Gallegos, who worked as a bouncer and bartender there. Dempsey said he ordered a non-alcoholic beer and after drinking it began to feel “very sick” and “spaced out.”  He said he recalled being in an apartment and that a syringe was stuck into his eye.

The trial judge barred Dempsey from testifying that he went to see Gallegos because a friend of his, Jean Tomusko, who was dating Gallegos, was upset because Gallegos was trying to recruit Tomusko’s daughter to be a stripper at the club. The judge ruled that testimony would have been inadmissible hearsay.

On August 16, 1996, the jury convicted Dempsey of aggravated arson and burglary. He was sentenced to 10 to 25 years in prison.

Dempsey appealed to the Ohio Court of Appeals for the Eighth Appellate District. While that appeal was pending, Dempsey filed a petition for post-conviction relief contending that his trial attorney provided an inadequate legal defense by failing to interview witnesses who would have corroborated the defense theory of what actually occurred.

The petition was accompanied by an affidavit from Stephanie Wyant, a waitress and dancer at the Dollhouse. Wyant said that Gallegos poured the beer and she served it to Dempsey on the night of the fire. Wyant recalled that almost immediately after drinking it, Dempsey put his head down on the table and appeared to pass out. Wyant also said in the statement that not long after she noticed that Gallegos and Dempsey were gone from the bar.  Although he returned later that night, Gallegos soon quit working at the bar and moved to Albuquerque, New Mexico, Wyant said.
 
Wyant also said that a few days after the fire, she found a set of keys in the bar’s basement that she did not recognize. The keys, which were discarded, resembled Dempsey’s missing keys.
 
In May 1999, the petition was denied because the trial judge ruled that Dempsey’s knowledge of the witnesses at the time of the trial foreclosed him from overturning the verdict. By then, Dempsey’s direct appeal had been rejected as well.
 
In October 2001, Dempsey filed a federal petition for a writ of habeas corpus raising the same issue—the failure of his trial lawyer to interview witnesses who would have supported Dempsey’s claim of having been drugged and taken to the building by Gallegos who then set the fire.
 
The petition said that prior to his trial, Dempsey gave his defense attorney the names of numerous potential witnesses, including Wyant. The petition said that Wyant provided the information about having served Dempsey and seeing him pass out and the sudden disappearance of Gallegos to Chief John Yatson of the Cleveland Fire Department’s investigation unit about 10 months after the fire, but Yatson never informed the prosecution of the statement and Dempsey’s attorney never interviewed Wyant.
 
The petition said that Julie Milano, the bar owner who actually found the keys, would have testified that Gallegos had access to the basement area where the keys were discovered.
 
Jean Tomusko, according to the petition, would have testified that she had an on-and-off relationship with Gallegos. Dempsey, who was studying to be a nurse, was taking care of one of Tomusko’s children, who was ill. Tomusko said that Gallegos had been to her residence and became incensed when he noticed a photograph of Dempsey on her refrigerator, saying, “Well, if I see him, I’ll crush him.”
 
Tomusko said that she told Dempsey that Gallegos was attempting to persuade Tomusko’s daughter to work as a stripper at the bar. As a result, Dempsey went to the Dollhouse to confront Gallegos and tell him to leave Tomusko’s daughter alone. Tomusko also said that on the night of the fire, she noticed that Dempsey’s photo was missing from her refrigerator.
 
In August 2005, U.S. District Judge Lesley Wells granted the petition, vacated Dempsey’s convictions and ordered a new trial.  The judge ruled that if Dempsey’s attorney “had adequately investigated the witnesses who had been provided…defendant’s explanation for his presence in the building would have been significantly more credible.”
 
The judge specifically cited Wyant’s recollection that Dempsey and Gallegos “left the bar at around the same time, that Gallegos left the bar in the middle of his shift, and that Gallegos acted very strange when he left, saying, ‘I have to go. It is something real, real important.’”
 
Dempsey, who had been released on parole in August 2003, went on trial a second time in August 2007. Bolstered by the testimony of the witnesses that were not called in his first trial, Dempsey was acquitted.
 
In 2013, Dempsey filed a lawsuit seeking compensation from the state of Ohio. In 2015, a judge declared Dempsey had been wrongfully convicted. The judge said that “the sad truth appears to be that Dempsey was the victim of an attempted murder, and the individuals who placed him in the building and set the fire that nearly killed him have never been held accountable for their crimes.”

In February 2016, after the state sought, but was denied, a new trial, a settlement was reached to pay $176,603 to Dempsey and to pay his attorneys $158,830.

– Maurice Possley

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Posting Date: 2/12/2016
State:Ohio
County:Cuyahoga
Most Serious Crime:Arson
Additional Convictions:Burglary/Unlawful Entry
Reported Crime Date:1995
Convicted:1996
Exonerated:2007
Sentence:10 to 25 years
Race:Caucasian
Sex:Male
Age at the date of crime:33
Contributing Factors:Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No