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Update: December 2017 Jay currently a case in the Sixth Circuit Court of Appeals.

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Explanation of why this case raises substantial constitutional questions

and is a case of great general and public interest


{¶12} This matter presents an issue of first impression to this court. We

conclude that given the issue of the trial court's jurisdiction and the lack of any statutory

authority relative to this request, our standard of review of the trial court's decision is de

novo "as a matter of law."





Jay's case is currently at the OHIO SUPREME COURT for a request of slides that Stark county is in possession of, here is a link to his case:



Canton repository

By Doug Staley IndeOnline.com staff writer Posted Jul 29, 2012 @ 11:19 PM

Innocence Project hopes medical records could help free Jay Biggs


Attorneys for the Ohio Innocence Project have asked a Stark County judge to order the release of medical records they say are critical to its review of the 2008 conviction of Jay L. Biggs, serving a life sentence without the possibility of parole for the June 2006 rape and murder of his infant daughter in Massillon.

Last week, attorney Carrie Wood filed a motion in Common Pleas Court requesting the release of microscopic slides from the autopsy conducted on Biggs’ 4-month-old daughter, Jaydee.

The motion states: "This request is made to ensure that (Biggs) is not being incarcerated for life for a crime for which he might ultimately not be guilty ... While the experts are waiting on the slides to complete their review, at least one expert expressed concerns about the medical testimony, and thus the underlying evidence used to convict and sentence (Biggs)."

Wood said the Innocence Project would have no further comment until the investigation is completed.

"The notice of appearance and the motion to release biological samples in this case speak for themselves," she said.

Attempts to reach trial attorney Paul Scarsella, a special prosecutor at the Ohio Attorney General’s Office, on Friday afternoon were unsuccessful.

The Innocence Project, founded in 2003 at the University of Cincinnati College of Law, seeks to identify inmates in state prisons who are innocent of the crimes they have been convicted of committing, according to its website. Innocence can be determined through several methods, including DNA evidence, new expert testimony or evidence of police misconduct. The website states the Innocence Project has helped 10 inmates regain their freedom.

In October 2008, Biggs was convicted of multiple felony charges, including aggravated murder, murder, rape and child endangering, following a six-day trial in Common Pleas Court. Authorities arrested Biggs in April 2008

after a nearly two-year

investigation. Authorities initially believed that Jaydee died of natural causes at the family’s Ninth Street SW home, but an autopsy later revealed signs of sexual trauma. During Biggs’ trial, Stark County Coroner P.S. Murthy and Summit County Medical Examiner Lisa Kohler testified that Jaydee was raped and died of asphyxia due to smothering.

A jury recommended that Biggs serve life in prison without the possibility of parole, a sentence that was imposed by Judge Charles Brown. Biggs appealed the conviction on the grounds that it was based on circumstantial evidence and conflicting testimony given by medical experts during the trial. However, the conviction was upheld by the Ohio 5th District Court of Appeals, which concluded that Biggs was the only person with "access and opportunity to cause the alleged crimes."

Court papers show that the Innocence Project, which was contacted by Biggs following his conviction, asked four medical experts to review the state’s "death investigation" documents and trial transcripts. Three of the four experts have asked to see the microscopic slides from the Coroner’s Office in order to complete their reviews.

The slides, according to court records, would confirm Murthy and Kohler’s findings or give all parties a chance "to review and reevaluate the evidence to ensure that (Biggs’) conviction is based on sound and up to date medical findings, and review the appropriate motions with a full and clear view of the scientific reliability of the evidence."

Costs associated with testing would be paid for by the Innocence Project.






Jay's appeal Brief

Explanation of why this Case Raises Substantial Constitutional Questions

And is a Case of Great General and Public Interest

Cases of alleged sexual abuse and murder of infants are, by their nature, of great general

and public interest. Where there is no direct evidence of guilt, the price of error is enormous on

both sides. A dangerous killer can be released. Or an innocent, grieving father can be falsely

imprisoned for causing the death of one whom he would have given anything to protect.

The death of Jaydee Biggs was a tragedy. But as Forensic Pathologist Werner Spitz

explained, her death was most likely a tragic case of' Sudden Infant Death Syndrome or an

accidental obstruction of her airway as she slept based on overfeeding by her mother. He also

testified that much of what the State called evidence of rape was simply the result of infection

and a government urologist's inappropriate use of a speculum in an autopsy. The State's experts

opined that the injuries were the result of rape and suffocation. Although there was evidence to

support the State's theory, the evidence was not sufficient beyond a reasonable doubt. And

while the evidence must be viewed in the light most favorable to the State, that standard must be

viewed with common sense. In this case, no reasonable jury could have found that Mr. Biggs

was guilty of killing and raping his daughter beyond a reasonable doubt.

Statetnent of the Case and the Facts

On the morning of June 5, 2006, Appellant.Iay Biggs found his four-month-old daughter

dead in her room. Almost two years later, he was arrested and charged with raping and killing

her. The charges carried a potential death penalty. He steadfastly maintained his innocence at

trial. He was convicted of two counts of aggravated murder with capital specifications, R.C.

2903.01; two counts of felony murder, R.C. 2903.02; one count of rape, R.C. 2907.02; and one

count of endangering a child, R.C. 2919.22. After the penalty phase of the capital trial, the jury

authorized a sentence of life without the possibility of parole. The trial court merged the all of

the counts into the first count of aggravated murder and sentenced Mr. Biggs to life in prison

without the possibility of parole.

On appeal, Mr. Biggs' lawyer raised only a single assignment of error challenging the

sufficiency and weight of the evidence. The court of appeals affirmed. This timely appeal




Proposition of Law

The State cannot convict a defendant without proving every element of the offense

beyond a reasonable doubt to the jury.

1. Introduction

The State's failure to prove each element of the offenses beyoud a reasonable doubt

violated Mr. Biggs' rights under the Fifth and Fourteenth Amendments to the United States

Constitution, Jackson v. Virginia (1979), 443 U.S. 307. Here, the evidence presented failed to

attain "the high degree of probative force and certainty required of a crimminal conviction" State

v. Getsy (1998), 180 Ohio St.3d 193, 193.

The evidence presented by the prosecution included no supporting forensic evidence and

the testimony of the experts presented by the State was replete with inconsistencies.

Furthermore, Dr. Spitz, who was considerably more qualified and experienced in the field of

forensic pathology, systematically undermined every one of the State's findings regarding the

cause of death and the allegations of sexual abuse. Further, the evidence did not prove beyond a

reasonable doubt that any person caused the death of the child, that Mr. Biggs caused the death

of the child, that the child had been sexually abused, that Mr. Biggs had sexually abused the

child, or that he had endangered the child.

II. 'I`he facts of this case

Despite the seriousness of a death penalty case, the matter came down to the following

issues: 1) the cause of the infant's death; 2) whether the infant had been sexually abused (vaginal

penetration by another); and 3) whether appellant had committed any offenses. No one testified

that they saw Mr. Biggs take any harmful action toward his daughter.


The scene of the death

At the scene, testimony indicated that Mr. Biggs told the sanitation workers who came in

to help and the police officers that a blanket had wound itself "tightly tlrree times around the

baby's neck." Both Mr. Biggs and his wife, Diane Biggs, testified the child was fed between 7:00

and 8:00 p.m., and that Mr. Biggs put the child to bed around 9:00 p.m. Although Mr. Biggs was

the only person that witnesses saw in the infant's room during the night and in the early morning,

Mrs. Biggs passed the room, and did not notice any problems. Another person in the house,

Patrick Smreckar, said that he (Patrick) was never upstairs. Mr. Biggs said that the bedroom

window was open all night. Police said they could find no evidence that someone forcibly

entered through the open window illegally.

The parents' immediate reaction

The witnesses at the scene at the time of the report testified Mr. Biggs was calm while

Mrs. Biggs was hysterical. A sanitation worker described him as in shock. It was the State's

theory that acting calm or being "a little bit nervous" after the death of one's infant child was

evidence of rape and murder. The court of appeals found that such evidence supported the

finding of guilt. The State and the court of appeals also found that concern for going to jail when

the police were investigating Mr. Biggs was a sign of guilt and evidence supporting the verdict.

Mr. Biggs called the coroner's office and said he might not be available to make funeral

arrangements because he might be in jail, and told people the police thougbt that his DNA was in

his child's body.

The forensic investigation

The State first examined the body at the Stark County Morgue, not at the scene. Coroner

P.S.S. Murthy, M.D. first made a visual examination, and found no signs of injury. He said he

noticed pallor around Jaydee's mouth and chin, but he noted this finding only after consulting

with the Coroner firom Summit County. He also said the pallor could have been caused by light

pressure and possibly by the bedding material. There were no finger marks on her face.

There were also signs of a skin infection of unknown duration in the vaginal area. Lab

tests showed the presence of e coli in her system, but Dr. Murthy believed it was caused by

contamination in the morgue. He said that the large amount of gas in her intestines could have

been caused by an infection- An e coli infection could also cause vomiting.

Dr. Murthy said that when he examined the infant's genital area, he saw blood in the

area. He stopped the examination and requested the assistance of Anthony Bertin, D.O., a

urologist and a deputy coroner with the Stark Couuty Morgue. Dr. Bertin said that upon

examination of the infant, he saw "blood coming from the vaginal opening" and "clotted blood

within the vaginal vault." Dr. Bertin testified the vaginal tissue looked "purplish in hue" as in a

"bruised" color as opposed to the usual redder color. These observations were made before the

use of a nasal speculum for the internal investigation.

Dr. Murthy said that the internal examination showed that the infant's "hymenal area is

torn apart. It's wide open." The speculum was inserted into the infant "very easily" which was

not natural, and clotting and fluid blood were observed in the vaginal vault where the hymen

would have been. Dr. Bertin also observed two long abrasions inside the vaginal vault which was

the source of the bleeding. Doctor Murthy determined that the girl died within an hour of being

fed based upon the amount of milk that remained in her stomach, and that she died from

asphyxia caused by smothering. This conclusion, however, was only reached after consulting

with the Summit County Coroner, Dr. Kohler. Dr. Murthy also conceded that it is very easy for

an infant to suffocate accidentally.

Dr. Bertin opined the physical findings were the result of "some blunt forced trauma"

caused by something penetrating the vaginal area (an animate or inanimate object). When asked

if the injuries could have been the "result of anything other than insertion of something into that

area," Dr. Bertin said that it could not have. Dr. Bertin opined the torn hymen, blood, clotting,

and abrasions were caused by "some object is forced up into the area at a low velocily."

Regarding the cause of death, Dr. Spitz disputed the findings of Dr. Murthy and those

with whom he consulted. Dr. Spitz is a specialist in forensic pathology who has performed sixty

thousand autopsies and has published the recognized treatise on the subject. He reviewed Dr.

Murthy's autopsy report, photographs, microscopic slides, lab reports, a letter from the Summit

County Coroner, and the police reports. Dr. Spitz's preference is to view the body at the scene

as the first step, something Dr. Murthy did not do. Dr. Spitz found no pallor around the mouth

when he reviewed the same photos as Dr. Kohler. In fact, Dr. Spitz found no evidence to support

Dr. Murthy's and Dr. Kohlers's conclusion that the death was caused by asphyxia at the hands of

another. Dr. Spitz concluded that the girl died from Sudden Infant Death Syndrome or an

accidental obstruction of the airway. The latter conclusion is based upon the presence of foam

around her mouth which was caused by aspirating food prior to death.

With respect to alleged sexual abuse, Dr. Spitz disputed the findings of the government

doctors. Dr. Spitz reviewed the autopsy reports, tissue samples and photos. He saw no blood in

the vaginal area, no injury to the hymen, and found the redness visible on the vagina was a

symptom of an infection caused by poor hygiene, specifically the presence of fecal matter. This

conclusion is supported by the presence of e coli in the child's blood. Furthermore, Dr. Kohler

agreed that poor hygiene can cause an infant to develop a vaginal infection. The small bruises

inside her vagina were likely caused by Dr. Bertin's improper use of speculum, where excising

the area would have been appropriate. Dr. Spitz stated that the use of speculum in pathology is

unusual because it can cause damage. Dr. Murthy admitted that Dr. Bertin had to bring a

speculum because Dr. Murthy did not even have one in his office. Dr. Spitz also explained that

an investigator should not insert an object into a cavity without being able to see what effect that

object will have on the surrounding area. The irritation cause by the infection could have bled a

small amount.

Testing other objects f'ound at the house

'I'wo days after the death, the police executed a search warrant at the home and forced

entry without attempting to contact any of the family members and without requesting the

assistance of the county crime lab. The police sent the basinet, three blankets and the child's one

piece, bib and socks to the crime lab. Before the search warrant, Diana and her mother removed

items from the home. Diana said that she and her mother were shopping at Wal-Mart for a dress

in which to bury the girl at the time. The Appellant's brother, however saw them removing

items from the home.

'I'he crime lab analyzed the blankets and found vomit stains and light spots of the child's

blood which could have been there for some time. No semen or blood from any other individual

was found. Her clothing contained vomit stains not blood. The girl's basinet was also tested

for blood and semen with negative results, although it also contained vomit stains. Swabs taken

from the parents' hands contained no blood or saliva. Swabs taken from the girl's body could

have been tested for DNA, such a test was not requested by law enforcement. A five-inch hair

found on the girl was clearly that of an adult but no attempt was made to determine its origin.

A family deals with a tragetly

The Biggs family moved out of Massillon a week after the funeral. They lived with Mr.

Biggs' parents before moving to Columbus. Diana started nursing school and Mr. Biggs got job

at Home Depot. Mr. Biggs kept in touch with his parents during this time. Mr. Biggs told his

manager at Home Depot that he suspected Amber Shue, a young woman who was living with

them just before their daughter died, was responsible for the death. Mr. Biggs and his wife

returned to northeast Ohio and lived with his parents after their car broke down putting them in

financial bind.

Others in or around the house when the child died

Mr. Biggs' wife, Diana Biggs, said that their house guest at the time, Amber Shue, had

left the home the Sunday night of the girl's death after Diana and Amber had an altercation.

Amber's boyfriend, Patrick Smrekar, came to the house around 9:00 p.m. and stayed until just

before 1:00 a.m. Mr. Biggs also told a detective that Amber had been living in the home, she did

not have a key to the house, and that she had left on Saturday morning and did not return.

Amber said that she had been living with the Biggs since the rniddle of May and that she left the

house Friday to go to work, spent the weekend with a male friend named Ian, and never returned

to the house. Diana, however, said that Amber did not leave until Saturday night. She was in the

hospital on Sunday being treated for an abscessed tooth. From there she went to Patrick's

parent's home and she found out about the death when a detective contacted Patrick a few days


Diana Biggs had arranged an "intervention" on Sunday night to address Amber's


of running around with several different men, and Diana invited Patrick. She expected

Amber to come home around 9:45 p.m. Mr. Biggs left the house that evening to look for Amber

after the girl was put to bed. He left in his car and was gone for a half an hour. He left a second

time to look for Amber in the neighborhood and was gone ten or fifteen minutes. No one saw

Amber come back that night and Diana tried to call her. Amber said she did not receive any calls

from Diana on Sunday, but Diana said that she called Amber on Ian's phone several times and

spoke to Amber two times. The second time they spoke, Amber was angry and used profanity

toward Diana. Eventually Diana found out Amber was at the hospital and was not going to come

back to the house to live. Diana collected two trash bags full of Amber's belongings and placed

them in the porch. She went to bed when Patrick left. Diana said that the Appellant had changed

the diaper in the living room before he put her to bed. Diana passed the girl's room on her way

and did not see anything out of the ordinary. She woke up once in the night when Patrick called

and again because of bright lights outside. Diana is a light sleeper.

Mr. Biggs and his wife were asked to come to the police station. They arrived

accompanied by several faniily members. The detective interviewed the parents separately

because they were emotional and may be mistaken about facts. The detective said it was

suspicious that he saw Mr. Biggs outside the door to the inteview room trying to listen in on his

wife's questioning, but during his questioning of Mr. Biggs, the detective asked if Diana was

suffering from post partum depression and Mr. Biggs was concerned for his wife. Furthermore,

these interviews took place within only an hour of when these parents learned of the death their child,

and the interviews took place in a room decorated as a child's room. The detective did not

think such a room would be traumatic to parents who had just lost an infant child.

The detective interviewed Mr. Biggs for a half an hour and did not record the interview.

The detective said that Mr. Biggs said that Mr. Biggs found the child with a blanket wrapped

around her neck and that he attempted CPR unsuccessfully. While the dectective was

interviewing Mr. Biggs and his wife, the coroner called, however lie did not indicate that there

was any evidence of suspicious circumstances. During the interview there was "no outward sign

that anything was wrong." An investigator with the Coroner's Office, however, said that he

contacted the detective as soon as he saw blood on Jaydee's vagina. (T. Vol. 9 at 18-19, 28). The

investigator said that the detective said he would be questioniig the family about that issue. At

the end of the interview, police swabbed the hands of the Mr. Biggs and his wife.

The detective contacted Mr. Biggs and his wife later the same day and demanded they

appear the next day for additional questioning. Mr. Biggs' family had convinced him to consult

an attomey, and on that advice Mr. Biggs refused the detective's request. Diana's father tried to

dissuade Mr. Biggs from seeking the advice of an attorney. The detective became angry at Mr.

Biggs' decision to exercise his right to counsel. Children Services had placed Alex, their other

child, with Mr. Biggs' parents purportedly to give the parents a "break." But when the parents

refused to comply with the detective's instruction, Alex was removed and Children Services

began a court action to take custody. When the detective removed Alex he told Mr. Biggs'

parents that their son "must be guilty." At the first hearing regarding Alex's custody the Mr.

Biggs discovered the allegation of sexual abuse.

The detective also interviewed Amber and Patrick. Patrick Smekar, Amber's exboyfriend

had been at the home until almost 1:00 Monday morning. Patrick arrived around 9:00

p.m. and claimed that this was the only time he was ever at the Biggs home or met Mr. Biggs.

Amber, however, said that Patrick had visited her at the Biggs residence at least once while she

was staying there. Patrick told the detective that he (Patrick) returned to the house after 1:00

a.m. and sat in his car across the street. Patrick also told the detective that he saw Mr. Biggs

through an upstairs window. At trial, however, Patrick claimed that he only drove by the house

and that he could not see any activity inside the house. He claimed that he drove around the

neighborhood looking for Amber, but he also said that he left the Biggs home when he

discovered that Amber was at the hospital. He also said that he did not remember calling Amber

on Ian's phone, although Amber said that Patrick called her on Ian's phone repeatedly

throughout the weekend.

Patrick claims he never returned to the Biggs home to pick up Amber's property and that

her property did not end up at his house, but Diana said that when Patrick woke her up with his

phone call early Sunday morning he said that he would be coming by to pick up Amber's things.

Later Diana was awaken by the light of a car outside which she assumed was Patrick.

Additionally Patrick said that he and Mr. Biggs had a beer while they waited for Amber, but

Diana said that neither Mr. Biggs or Patrick drank any alcohol that night and that any amount of

alcohol makes Mr. Biggs sick. She only recalls him drinking alcohol on one occasion and the

clerks at the local convenience store only remember selling him alcohol on one occasion

although he was a regular customer. Patrick also said that Mr. Biggs left the house twice that

night to look for Amber.

The therapist

The parents said that they were instructed by a physical therapist to roll up a blanket and

place it on the left side of the child's neck at night. Only Diana and her mother were present for

the visit to the therapist who allegedly gave these instructions. The therapist, however, denies

that she ever gave such an instruction. She said she told the family to let the child "sleep the way

she sleeps." The therapist examined the child on May 31, 2006 and found no bruising or any

sign of "foul play."


The evidence was insufficient to support the charges. This Court should accept

jurisdiction, vacate Mr. Biggs' convictions, and discharge him.

Respectfully submitted,

Office of thc Ohio Public Defender


 On the morning of June 4th 2006, Jay woke up like every other Monday morning to get ready for work. Diana, his wife went downstairs ahead of him. Jay got dressed and walked into the little short hallway that led downstairs, with the children's room to his right , he felt a chilly breeze and suddenly remembered that he had left the children's bedroom window open the night before. Jay went into the room to shut the window. What he found changed the rest of his life forever.

 His daughter, four-month-old Jaydee Lynn Biggs was in her bassinet, with a blanket covering her head and face. Jay quickly went to the bassinet, yelling oh s***, call 911. He began trying to pull the cover off her face. He said his whole body felt numb because of that rush of fear that a parent gets that runs through their body when they see their child is hurt.

He got the blanket off of Jaydees face and head, she had dried vomit on her face, and her body was stiff. He picked her up and placed her on the floor to do CPR but then he realized it was too late. Jay put his baby back in her bassinet and grabbed his one- and-a-half-year-old son out of his crib, which was in the same room and went downstairs.

Diana said she tried to call 911 but could not connect with 911 on the phone, the trash men came to the door to collect money for a bill, Diana told them her baby was dead, Jay handed his phone to them and asked them to call 911.

Two years later on April 9th, 2008 Jay was arrested for a murder and sexual assult of his daughter, neither ever occurred.

Jay Biggs is innocent. 

There was no physical evidence of any kind that connects him to these charges, because there was not any crime committed. He was facing the death penalty; they offered him a deal of 15 years. His father and I were allowed to go into the judge’s chambers and talk with him about the deal, he said “Mom and Dad I did not do this. He did not take the deal he had a jury trial. Jay got life in prison without the possibility of parole.

 He was not home alone the day of his daughter's death, his wife Diana Collins Biggs was home with him the entire day and night, she testified that he put the children to bed and came right back downstairs less than 5 minutes later. The night before Jay found his daughter, he left the house to pick up Amber from work. (A friend of Diana's who needed a place to stay). Diana and Patrick (Amber's boyfriend and father of Amber's baby who was taken away from her) were at the house while Jay was gone (Diana and Jay were trying to help the couple get back together that night)

 Dr. Werner Spitz said that a blunt force trauma did not occur, the baby (Jaydee) had a very serious infection ( ecoli was found in her blood stream) the expert witness also said that the baby (Jaydee) choked on her own spit up. They arrested Jay two years after his daughter died, they had many stories in their small town newspaper during these two years, and the newspaper even did an online poll to see if people thought that Jay or his wife should be arrested. Then the tv news stations picked up the story at Jay’s time of arrest (we had reporters knocking at our door)

 Before Jay even went to trial people already decided, he was guilty. The comment section of the newspapers was full of hateful and vile things that should happen to Jay before he even had his trial. People hear and read about a crime against a baby and they do not even listen to the facts of the case.

 So now, we are fighting to get Jay out of prison, he is currently working on a couple of legal avenues. We believe that the truth will be seen that Jay is an innocent man in prison. We wanted to make this web site to tell people Jay's account about the whole thing with trial transcripts excerpts which actually show how the county deputy coroner, (a kidney doctor) who (another expert witness testified) used the wrong instruments in the autopsy which caused the damage they claimed Jay did. In addition, there was a hair found in the diaper that was not consistent with Jay so their crime lab did not test it. The web site will show how Jay was railroaded. Please keep us in your prayers and thanks for the support. The Biggs Family

 Jaydee was born premature weighing 3lbs. 10 ozs, she was having trouble holding down her formula at home as her mother and other people testified to in court. Her mother called the doctors office about this problem on May 2nd. 

On June 4th, Jay found Jaydee with her blanket over her head, covering her face. When he pulled the blanket off, she had dried vomit on her face and she was gone.

Below is the doctors note: 

Visit our facebook pages:

Jay Biggs is Innocent


 Jay Biggs Innocent Man in Prison      

at link below 




Biggs, 24, of Clinton, told Brown he is innocent and will appeal. He asked Brown to consider granting him the possibility of parole.

"You did give me a fair trial, but fair isn't always just," Biggs said. "You cited it yourself when you told the jury that you don't have to believe everyone's testimony. ... I don't know what I could have done. I told the truth. I was offered a deal, but I didn't take it because I thought the truth would set me free."










Contact us @ innocentmaninprison@yahoo.com

Or Facebook  jaybiggs.innocent@facebook.com

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Sons, Daughters and Family in Prison



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