A man found guilty of murder and robbery in Guernsey County and sentenced to life in prison should be retried or released because his conviction was improper, a federal appeals court ruled Wednesday.

        The 6th U.S. Circuit Court of Appeals ruled that prosecutors were improperly allowed to use the taped statement of another man as evidence against Vincent Calvert in his trial in the Feb. 4, 1996, slaying of Robert Bennett. Mr. Calvert's lawyer thus was unable to cross-examine the witness to counter his taped statement, the appeals judges said in upholding arguments by Ohio public defenders representing Mr. Calvert.

        The appeals court sent the case back to U.S. District Judge George Smith in Columbus and directed him to order Mr. Calvert's release from custody. The state first would have the option to retry Mr. Calvert.

        The Ohio attorney general's office will review the appellate court's ruling before deciding whether to appeal it, said Bret Crow, a spokesman for Attorney General Betty Montgomery.

        The appeals judges said the taped statement from Erwin Mallory, a co-defendant in the case, enabled the prosecution to implicate Mr. Calvert.

        “The jury did not hear, from anyone but Mallory, that Calvert caused the death of Bennett with prior calculation and design,” Judge William Stafford wrote for the appeals court.

        That enabled the prosecution to persuade jurors that Mr. Calvert had planned to attack Mr. Bennett, the appeals judges concluded.

        Mr. Calvert, 37, was convicted of aggravated murder and aggravated robbery. He was sentenced to life in prison on the murder conviction, with eligibility for parole after 30 years, plus an additional 10 to 25 years on the robbery conviction.
       

Constitutional right violated

        The state summoned Mr. Mallory to testify at Mr. Calvert's trial. But when Mr. Mallory cited his Fifth Amendment privilege against self-incrimination and refused to testify in person, the prosecutor, over defense objections, admitted Mr. Mallory's previous taped statement to police.

        That violated Mr. Calvert's constitutional right to confront witnesses testifying against him, the appeals judges said.

        Mr. Calvert said Mr. Mallory had attacked Mr. Bennett with an ax and a butcher knife, accusing Mr. Bennett of cheating him out of $100 the previous night.

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