LISBON — Whether or not a photo lineup that identified a Steubenville man in connection with the shooting death of Robert Herron, 30, Wellsville was “impermissibly suggestive” was taken under the advisement by County Common Pleas Court Judge Megan Bickerton following an evidentiary hearing on Monday.

Jeno Wall, 34, is charged with unclassified felonies of aggravated murder and murder and third-degree felony intimidation of an attorney, victim or witness in a criminal case, along with firearm specifications for allegedly using a firearm to cause Herron’s death last year in Wellsville.

The details of the photo lineup are not in dispute. Both the defense and the state agree that Wellsville Police Lt. Marsha Eisenhart showed a photo of the defendant to a witness just prior to presenting a six-photo array in the early morning after the shooting but differed on whether doing so had any influence on the outcome of the lineup.

Defense attorney Joe King argued that it did and called the photo lineup “tainted.” He argued the facebook photo led the witness to later identify his client as the shooter from the photo array.

The state argued that Wall and the witness, who owned the garage on 10th street where Herron was found mortally wounded just before midnight on Sept. 9, 2024, were already familiar with each other.

Eisenhart, a 32-year old veteran of Wellsville’s police force, was the only person called to the stand during Monday’s hearing. She testified she showed the witness a photo from Wall’s facebook profile and asked “is this him?” The witness then identified Wall as the shooter and later again from the photo lineup — an array generated by software that included a photo of Wall’s and the photos of five others that bore a resemblance to Wall and shared “similar characteristics” on a single sheet of paper.

Eisenhart said “minutes” had passed between the time she showed the witness the facebook photo and the photo lineup.

Assistant Prosecutor Tammie Riley Jones later presented time-stamped photos and logs that reflected 33 minutes had passed. The facebook photo was shown to the witness at 3:17 a.m. with the photo lineup taking place at 3:50 a.m.

Eisenhart also testified that the witness said he was acquainted with Wall, having interacted with him on four occasions. The witness told Eisenhart he had first met the defendant a week or so before the murder and that Wall had come to his residence three times the day of the shooting, walking across the street from where Brandon Kessler lived. According to Eisenhart, the witness did not know Wall’s legal name and could not recollect Wall’s nickname, only that it was “stupid.” Wall’s nickname on court documents is “Mally.”

Eisenhart said she herself had first been made aware of Wall prior to the shooting when the Wellsville Police Department received a tip that Wall was potentially dangerous and spending time in the village. Hours into the investigation of Herron’s death, Eisenhart said she learned the description of the shooter matched Wall and that is what prompted her to show the witness the first photo of the defendant.

Under questioning by King, Eisenhart admitted that she failed to follow certain procedures during the interview in regards to the photo lineup. Under Ohio Revised Code (ORC), a photo lineup should be conducted in ” a folder method” which involves using 10 identical folders — one folder containing a photo of the suspect, five containing fillers (people who match the suspect’s physical destruction) and four blanks (no images of any person) with the folders numbered and shuffled for blind administration. A blind administrator then presents them sequentially to the eyewitness while remaining “blind” — aware of which photo is the suspect’s. The folders are then presented to the witness one by one and the witness reports whether the photograph is of the person he or she saw and the degree of confidence in this identification before returning the folder with the photograph to the administrator. ORC also states that “when it is impracticable for either a blind or blinded administrator to conduct the photo lineup, the administrator shall state in writing the reason for that impracticability.”

Eisenhart testified she did not use a blind administrator due to a “manpower issue” as all other officers were out working the investigation. She also said the “folder method” was not used nor did she document why a blind administrator was unavailable.

In the motion requesting the hearing, King argued that the photo array violated his clients’ Sixth Amendment right as his attorneys were not present during the lineup. Jones countered the Sixth Amendment does not guarantee a right to counsel at a police photo lineup, arguing it is not considered a “critical stage” in the criminal process.

Still, the lineup must comply with the Due Process Clause that requires “a photo lineup or photo array be administered fairly to prevent unnecessarily suggestive identification procedures that could lead to a very substantial likelihood of irreparable misidentification.” Photo identification could be excluded from trial based on a due process violation.

As for the intimidation charge, county Prosecutor Vito Abruzzino said previously that stemmed from alleged actions by Wall following the shooting. Eisenhart testified on Monday that the witness said he was told by Wall “to keep his mouth shut.”

Wall faces life in prison without the possibility of parole if convicted of aggravated murder. He also faces a mandatory three years for each of the two firearm specifications.

Wall remains jailed under a $1 million cash or surety bond. His request for a reduced bond was denied in May and his jury trial remains set for 9 a.m. Sept. 23 with a status hearing set for 9:20 a.m. Sept. 5.

Kessler, 42, 10th Street, indicted for allegedly not being truthful in statements he gave to investigators related to the case and is charged with obstructing justice, a third-degree felony. A status hearing is set Sept. 25 at 1 p.m for Kessler.

Kessler remains jailed under a $50,000 cash or surety bond.

(Staff writer Mary Ann Greier contributed to this story)