Youngstown Daily Legal News

Wife cyanide poisoning case heading back to court

ANNIE YAMSON
Special to the Legal News
Published: January 14, 2015

A man accused of murdering his wife with cyanide was granted a fourth trial last week when a panel of judges in the 8th District Court of Appeals ruled that the Cuyahoga County Court of Common Pleas erred by imposing an indefinite prison term.

The defendant, Robert Girts, was indicted for the murder of his wife, Diane Girts, in 1993. Diane died in September 1992.

According to a summary of the state’s evidence contained in Girts’ 1997 appeal, Girts and his wife lived in a house that adjoined the funeral home where Girts worked as a funeral director and embalmer.

On the morning of Sept. 2, 1992, Girts was traveling back home from Chicago after helping his brother move.

That afternoon, Diane was found dead in the bathtub of her home when she failed to show up for a scheduled shift at her job.

Police initially found no signs of foul play or any obvious signs of suicide.

Because they could not determine a cause of death, Diane’s body was transported to the county coroner’s office for an autopsy.

The coroner also could not initially determine a cause of death.

On September 20, Girts contacted the police and handed over an apparent suicide note from Diane.

The note was undated and stated, “I hate Cleveland. I hate my job. I hate myself.”

He explained that Diane had been despondent over their recent move to Cleveland, her weight and the fact that she had suffered three miscarriages.

At about the same time, the coroner ordered department toxicologists to test for poisons in Diane’s system.

The results indicated that that Diane had ingested about twice the minimum lethal dose of potassium cyanide.

The test was conducted twice, using two different methods, and produced the same results.

Diane’s death was subsequently classified as a homicide, but investigators still had no potential suspects.

Girts cooperated in a subsequent search of his home for poisons but investigators found nothing.

It was not until the police broadcast a plea for assistance in locating a possible suspect on a TV crime watch service that suspicion was cast on Girts.

As a result of the TV broadcast, Girts’ commanding officer in the Army reserves came forward in January 1993 with information that she had sent Girts two grams of potassium cyanide.

She explained that she worked as a chemist in her civilian job and that Girts contacted her asking for the poison.

The facts of the case state that he told her he was going to use it to control groundhogs on the funeral home’s property.

A funeral home employee, however, told police that the grounds did not have a groundhog problem.

Other people soon came forward with information that corroborated police suspicion of Girts.

A colleague at the funeral home described conversations in which Girts’ story of his wife’s death changed.

The colleague stated that Girts first maintained that Diane had committed suicide and probably obtained the cyanide on the street.

Later, he would allege that “someone at the coroner’s office must have spilled” the cyanide and produced the positive test results.

Another colleague stated that Girts once abruptly interrupted her in order to ask how to measure a gram.

He said he needed to know in order to measure medicine into his dog’s food, but Girts’ veterinarian told police that he did not prescribe medication for the dog.

Eventually, the state settled on two factors motivating the murder. It was discovered that Girts had a fitful affair with another woman.

Girts also received $50,000 as proceeds from Diane’s life insurance.

The money was tied to Girts’ purchase of a new home and his desire to invest $10,000 into another funeral home as a silent partner.

Girts’ was eventually arrested and his case proceeded to a jury trial where he was found guilty of aggravated murder and then sentenced to a prison term of 20 years to life.

In 1994, the 8th District court reversed the conviction and remanded the case for a new trial.

Again, Girts was convicted by a jury on the aggravated murder charge and, in 1997, the 8th District court affirmed the conviction. The Ohio Supreme Court subsequently denied a discretionary appeal.

Girts proceeded to file a writ of habeas corpus in the U.S. District Court for the Northern District of Ohio, arguing that his conviction for aggravated murder violated his Fifth and Sixth Amendment rights because the prosecution improperly commented on his right to remain silent during closing argument.

The district court denied the petition, leading to Girts’ appeal in federal court.

The U.S. 6th Circuit Court of Appeals reversed the district court’s denial of the petition and remanded the case with instructions to the lower court to release Girts from custody unless the state granted him a new trial within 180 days.

Girts was released pending a retrial. Prior to the commencement of the third trial, he entered into a plea agreement with the state.

Girts pleaded guilty to involuntary manslaughter and insurance fraud in exchange for a “pre-Senate Bill 2 sentence.”

“Under the sentencing structure in place prior to S.B. 2, a sentence on the charge of involuntary manslaughter ranged from five to 25 years and a sentence for insurance fraud ranged from one to five years,” states the 8th District court’s procedural summary of the case.

Accordingly, Girts was sentenced to five to 25 years for the manslaughter count to run consecutively with a one to five-year sentence for the fraud.

The trial court credited Girts with 15 years, 10 months and 34 days of jail time.

Though he waived his appellate rights as part of his plea agreement, the 8th District court still agreed to address Girts’ most recent appeal.

“Girts’ argument, whether ultimately successful or not, is premised on his claim that his sentence is contrary to law,” wrote Presiding Judge Eileen A. Gallagher in the opinion she authored on behalf of the three-judge appellate panel. “As such, it cannot be waived.”

Girts’ contention hinged on the fact that the trial court committed error when it imposed an indefinite sentence. The appellate panel agreed.

Gallagher noted that involuntary manslaughter, a first-degree felony, carries a statutorily required definite prison term that “shall be three, four, five, six, seven, eight, nine, 10 or 11 years.”

Those sentencing provisions are pursuant to R.C. 2929.14(A) as amended by House Bill 86 which went into effect in 2011.

Under the same law, a sentence for insurance fraud must also be imposed under the provisions of H.B. 86.

The appellate panel held that Girts should have been sentenced under H.B. 86 even though he committed his crimes prior to its enactment.

Gallagher cited the Ohio Supreme Court’s slip opinion in State v. Limoli, where the high court examined the effect of H.B. 86 on a defendant who was convicted of an offense specified in H.B. 86 prior to its effective date but not sentenced until after its effective date.

“The court concluded that ... courts must sentence individuals who committed that offense prior to H.B. 86’s effective date under H.B. 86 sentencing provisions,” wrote Gallagher.

The court of appeals noted that the trial court sentenced Girts under pre-S.B. 2 provisions, rendering his indefinite sentence void.

“Given these facts as outlined above, Girts could not have entered his guilty plea intelligently and knowingly since he believed pre-S.B. 2 sentencing law applied,” wrote Gallagher.

The appellate panel attributed the error to a misunderstanding of the law on both sides, concluding that “a mutual mistake of fact is grounds for a recision of a contract,” that contract being the plea agreement.

“Indeed, the sate may not have offered the plea if it knew Girts would be sentenced under H.B. 86,” wrote Gallagher. “Accordingly, we vacate both the indefinite prison sentence and Girts’ plea ... and remand the case to the trial court for trial on the original count of aggravated murder.”

Judges Patricia Blackmon and Eileen T. Gallagher joined Gallagher to form the majority.

The case is cited State v. Girts, 2014-Ohio-5545.

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