Hamilton County prosecutors drop murder charge against man who spent 13 years in prison

A judge dismissed murder charges Wednesday against a Cincinnati man who spent more than a decade in prison because of a conviction his attorneys say was based on lies by a police informant.

The judge's decision means Marcus Sapp, who was convicted of shooting to death Andrew Cunningham in Oakley in 2008, will remain free and will not face another trial. His conviction hinged in part on the testimony of jailhouse informant Quincy Jones, who, as detailed in an Enquirer investigation earlier this year, was a felon who routinely swapped testimony for leniency in his own cases.

Sapp's case was among several homicide cases examined by The Enquirer because they involved informants who traded testimony for plea deals and other consideration. The Enquirer identified six homicide cases involving informants that later unraveled.

Sapp’s conviction was overturned by Judge Jody Luebbers in January 2023. Prosecutors, however, said they were determined to retry the case and fought for the past year to convict Sapp and send him back to prison.

But prosecutors gave up the fight Wednesday, filing a one-page motion citing several problems they'd face during a second trial. Those include the unavailability of several witnesses, including a man who lived with Cunningham and had claimed Sapp was one of the two men who broke into their apartment.

Another problem, prosecutors said, was that Jones would be unavailable to testify at a second trial because he was murdered in 2012.

“Due to the lengthy passage of time, memories of specific events have faded or been lost and important evidence is no longer available,” prosecutors said in their motion. It was signed by longtime assistant prosecutor Seth Tieger, who had been handling the retrial with colleague Allison Oswall.

Hamilton County Prosecutor Melissa Powers said the decision to drop the case should not be mistaken for doubt about Sapp's guilt among police and prosecutors. "Marcus Sapp is a killer," Powers said in an email. "A jury of his peers determined he was a killer. Our certainty of that fact has not changed in the fifteen years since he was indicted.

"The only thing that has changed in that time is our ability to successfully prosecute the case against him a second time."

Defense attorneys say conviction was flawed from the start

Sapp's lawyers, however, said Sapp's conviction was flawed from the beginning. They said the prosecution's failure to turn over important evidence, including details about Jones and his prolific work as an informant, stacked the deck against Sapp.

"Marcus would never have been convicted if the whole evidence had been out there," said Marty Pinales, one of Sapp's lawyers. "He should not have been charged in the first place."

Though Jones told the jurors in Sapp's case that he received no benefit from testifying against Sapp, he got a new plea deal two months later that allowed him to walk out of jail, despite his conviction on reduced charges of manslaughter.

Sapp's lawyers said Jones, who claimed Sapp admitted to him that he killed Cunningham, lied about the confession to secure his own plea deal and save himself a long prison sentence. The Enquirer found that Jones testified or assisted police in at least 12 homicide cases, including Sapp's.

"Marcus is not the only innocent man in prison based on his lies," another of Sapp's lawyers, Eric Eckes, said last year of Jones.

On Wednesday, Eckes took issue with Powers' insistence Sapp is guilty.

"The current prosecutor's office says they remain certain of Marcus' guilt," he said. "It was that misguided certainty that was the cause of the misconduct uncovered in this case."

After The Enquirer investigation ran, Powers said she would be open to creating a statewide database to track the use of informant testimony in criminal cases. However, she didn't acknowledge that Jones or other informants might have provided faulty testimony.

Eckes and Pinales were honored Tuesday night with a Courageous Advocate Award from the Potter Stewart American Inn of Court for their work on Sapp’s case. When accepting the award, Eckes said he wouldn’t feel comfortable displaying it until Sapp’s case was officially over.

Pinales said neither lawyer had any idea that finality would come the next morning.

“I said at the ceremony yesterday I have been practicing for a half century and our pro-bono work on this case has been the most satisfying,” Pinales said. “Today, I am just overjoyed.”

Pinales called Sapp straight away, who said they needed to celebrate. Then Pinales called Sapp's mother.

When Sapp was originally tried, he faced charges in three murders: Cunningham in 2008, and Todd Oliver and Robert Lane, who died the year prior. The cases were separate but similar enough that they were tried together. The jury acquitted Sapp in the 2007 murders but found him guilty in Cunningham’s.

The evidence was stronger in the Cunningham case because in addition to Jones testifying that he’d heard Sapp admit to the killings, one of Cunningham’s roommates also identified him. However, the Ohio Innocence Project at the University of Cincinnati College of Law began looking into the case and learned the roommate had initially identified a different man – a fact police and prosecutors did not share with Sapp’s original lawyers.

Luebbers overturned the conviction because of Brady violations, or prosecutors’ withholding exculpatory evidence from the defense. Prosecutors denied any wrongdoing and refiled the charges.

Over the past 16 months, Eckes, Pinales and Mark Godsey, executive director of the Ohio Innocence Project, fought to have investigative documents disclosed and items from the crime scene tested for DNA. Prosecutors objected but Luebbers ordered them to comply.

Even after DNA testing excluded Sapp from having touched key evidence, such as shell casings from the shooting, prosecutors maintained he was guilty.

"Marcus Sapp is innocent," Godsey said. "Even the very recent DNA test results show this. The case revealed disturbing patterns about how murder convictions are obtained in this city."

Godsey praised Judge Luebbers for her work on the case. As the original trial judge, Luebbers oversaw Sapp's trial and sent him to prison after his conviction, but she also ordered a new trial years later when defense attorneys unearthed problems, such as details about Jones and the failure by prosecutors to disclose relevant information to the defense.

"Judge Luebbers went above and beyond," Godsey said.

Sapp is one of four men whose murder convictions have been overturned since 2022. In each case, prosecutors have insisted the men were guilty and blamed the reversals on overzealous judges.

In the wake of those decisions, Powers in March launched a conviction integrity unit ostensibly to help ensure guilty people aren't sent to prison for crimes they didn't commit. But she told The Enquirer that the unit isn't really needed and is simply an extension of already-existing practices. The last time she knew of prosecutors wrongly convicting anyone was in 1982, she said, in a case that was overturned eight years later.

This article originally appeared on Cincinnati Enquirer: Wrongful conviction: Informant testimony sent Cincinnati man to prison