Wednesday, June 20, 2012

What's a Parole Board To Do?

It was early afternoon, a Tuesday, August 26, 1986, a cloudy day in Youngstown, the temperature in the low 80s, thunderstorms to come that evening.*
Melvin Green and Jeff Eley were hanging out when Green said they should go to the Sinjil Market, a place they called the "Arab store."  On the way, Green gave Eley a gun and told him to stick up the store.  He added that the Ihsan Aydah, whose store it was, kept a gun behind the counter.
You pretty much know what happened next, even if you didn't know.  Eley entered the store, pulled the gun, and told Aydah to put up his hands.  Green entered the store, Aydah went for his gun, and Eley shot him.  Green grabbed Aydah's wallet and some cash from the till.  Aydah died the next day..
Eley confessed.  They charged him with death specs figuring they'd trade them away in exchange for Eley rolling on Green.  He refused, which kind of forced their hands.
364 days after shooting Aydah, John Jeffrey Eley arrived on death row.
The plan is to murder Eley on July 26 of this year.  25 years and eleven months to the day since he shot Ihsan Aydah.
Eley was 37 when he killed Aydah.  He's 63 now.
He may or may not have mental retardation.  He may or may not be seriously mentally ill.  It's beyond serious dispute that he's what they used to call "slow" and that he's not altogether on top of what's going on.
He told the Parole Board he wants a full pardon.  He said he was framed.  He said he is wholly innocent.  His confession was faked, his signature on it must have been forged.  Nobody believes him.  Maybe he's delusional.  Maybe he's fantasizing.  Maybe he's just lying.**
The lead detective on the case thinks he shouldn't be executed.  The prosecutor who tried the case thinks he shouldn't be executed. At least one member of the three-judge panel that tried him and sentenced him to death thinks he shouldn't be executed.
Would that they'd thought so 25 years ago.
Today, the Parole Board issued it's decision.  By a vote of 5-3 they said he should die.
Oh, sure, all those folks who saw to it that he was sentenced to die think it was a mistake.  But, gee, he killed the man.  The dead body outweighs everything else.  And really, he hasn't proved he's retarded or insane.  And anyhow, the courts haven't found any of this sort of thing enough to undo his death sentence.
Wait, what's that last one?
The factors of Eley's head injuries, the possibility of residual doubt, an unpunished co-defendant and prosecutorial misconduct that Eley has provided to demonstrate that there was mitigation evidence that was not presented to the three-judge panel are not consistent with the trial transcripts or the state and federal court decisions. The merits of this argument were denied by several courts and a retroactive analysis conducted by the various courts found that this information would not be sufficient to outweigh the aggravating circumstances in this case.
That's the sort of bullshit the Board typically spouts.  But give it a moment's thought.  If the courts, if any court, had found those things compelling, Eley's sentence would have been vacated and he would be off death row.  Which means that the Parole Board wouldn't be considering his case.  Which means, when you get right down to it, that five members of the Parole Board think that one reason, maybe the most important reason, that Jeff Eley shouldn't have his sentence commuted to life in prison is that they have to decide whether they think his sentence should be commuted to life in prison. He should, that is, be denied relief because he's in a position to ask for it.
They could have written it this way.
When we need to decide whether to recommend commuting a death sentence, an important consideration, maybe the most important consideration, is whether there is a death sentence.  If there is, it shouldn't be commuted. 
There were three dissents, which is a lot.  They talked about the officials who now say he shouldn't be killed.  They talked about mental retardation and mental health.  They talked about Melvin Green.  But mostly what they said is that his is the wrong case.
The theory is that the death penalty is supposed to be for the worst of the worst.  The worst people who did the worst things.  If you buy into our version of the death penalty, that's what you're buying into.  Here's what the three dissenters said.
• Not the Worst of the Worst
o There are many prisoners on death row for Aggravated Murder during the course of a store robbery. Many of those have seriousness factors that are not present in this case (such as execution style or multiple slayings) that aggravate them. This case does not have circumstances to make it the worst of the worst.
o The only evidence as to whether Eley truly intended to kill the victim when he walked into the store is what he said during his police interview. He said " ... the Arab took his hands down and went under the counter. (Melvin) had told me he had a gun under the counter. I shot at him, trying to hit his shoulder." Later, after describing how Green took the victim's money and wallet, Eley said "I was in shock and just stood in front of the counter." This is hardly the reaction of someone who entered the store intending to kill the victim.
o Judge Peter Economus points out that "Mr. Eley's trial attorneys did not present any substantive mitigating evidence for us to consider when weighing the aggravating and mitigating circumstances." A strong mitigation case would have been difficult, given the client's uncooperativeness, but had there been more substantive mitigation and the availability of a sentence of Life without Parole, there is a good chance that the death sentence would not have been imposed.
o In order to convict co-defendant Melvin Green, the prosecution was willing to accept a punishment of less than death. The retributive needs of the state to condemn this very serious crime can be met with a punishment of life imprisonment without parole.
I don't know what happened that day at the Sinjil Market.  I don't know what was in Jeff Eley's mind.  I don't know how Melvin Green did or did not really orchestrate the whole thing. Neither do any members of the Parole Board.
Here's what I know.  
John Jeffrey Eley was 37 when he killed Ihsan Aydah.  He's 63 now.  He's been in prison for those 26 years, on death row for 25 of them. The folks who arranged for him to be sentenced to die think they shouldn't have done it.  A bare majority of the Parole Board thinks he should die, at least in part because his death sentence wasn't vacated before they got to decide.
The ball, as they say, is in Governor Kasich's court.

*If this sort of thing sounds vaguely familiar, it might be because you once read Raymond Chandler's The Big Sleep (or one of the hundreds of books that tried to copy Chandler's style). Here's the first sentence of The Big Sleep.
It was about eleven o'clock in the morning, mid October, with the sun not shining and a look of hard wet rain in the clearness of the foothills.
**Or maybe, despite overwhelming evidence of his guilt and nothing to support his innocence, he's telling the truth.  It's remarkably unlikely, but I suppose it's possible.  He wouldn't be the first guy.

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