For Want of a Nail

There are, as I've surely said before in this blawg, no guarantees in this business.

Juries surprise.  Judges surprise.  God knows witnesses surprise.  And if clients didn't surprise, there wouldn't be clients.  (OK that last isn't exactly true, but you get the idea.)

And so, when Billy Slagle hanged himself in his cell, it was a surprise.  If only he'd known.  If only his lawyers had got hold of him to tell him.   If only they'd learned a little earlier.

Because it turns out that there was a really good chance, not a guarantee (remember, there are no guarantees in this business) but a really good chance of a stay.  And maybe, just maybe, of him getting out down the road.  

We have to go back to Tim McGinty.  He is, if you haven't been paying attention, the Cuyahoga County Prosecutor, the one who asked the Parole Board to recommend that the Governor spare Billy's life and who's office then asked the courts to let Billy be killed.  I don't have any particular knowledge of why he took such seemingly inconsistent positions, but one possibility involves a matter of who had the power to do what.

See, when Billy Slagle was convicted of Aggravated Murder with death specifications, there were several possible sentences.  One, of course, was execution, which is what he got.  The others all contained the possibility - not the promise, perhaps not even the likelihood, but the possibility - of parole.  The most extreme would have required him to serve every day of 30 years in prison before being first eligible for parole.  What wasn't a possibility was LWOP, death in prison.  We didn't add that to out capital sentencing options in Ohio until 1996.

Here's where the legal stuff comes in.  Courts can maybe undo the death sentence, but they can't impose a sentence that wasn't available at the time of the crime.  That means that no court could give Billy Slagle LWOP.  (Given the arcana of Ohio law at the time, it may not even have been possible to construct the functional equivalent of an LWOP sentence, but I haven't tried to work it out in his case, so I'll leave that alone.)

What the courts can't do, in this case, the governor can.  In granting clemency and commuting a sentence, he can basically impose whatever he wants.  LWOP is a gubernatorial option.  And that's what McGinty wanted Governor Kasich to impose.  

So, maybe McGinty's thinking was that he wouldn't favor a judicial resentencing because Billy Slagle deserved, in his mind, LWOP.  I'm guessing, you understand, but it's not unreasonable speculation.

Except, like I say, there are surprises.

On Friday, after the trial court denied Slagle's motion for new trial and after McGinty had opposed granting him a stay and opposed the Supreme Court vacating the death sentence, and after Billy's lawyers had met with him for the day, they got a call from McGinty.  Alan Johnson in the Columbus Dispatch has the story as he apparently got it from Vicki Werneke one of his lawyers.

Werneke said late Friday afternoon, Cuyahoga County Prosecutor Timothy McGinty called [Joe] Wilhelm [another of his lawyers] with a revelation: county prosecutors offered Slagle a plea deal at his original trial 26 years ago. He would serve 30 years and be eligible for parole. 

That's not really all that surprising.  Even in capital cases, plea offers are common - historically that's been especially true in Cuyahoga County.  But, and here's the thing, back then, back when he could have taken the deal and gotten that life sentence with parole eligibility after 30 years, back then, Billy Slagle's lawyers didn't tell him.

Which was horribly improper.  And in light of Missouri v. Frye, a recent decision by the U.S. Supreme Court, is a credible basis for Billy to get back into court and even now, after 26 years, accept the deal.

As Ron Popeil would say, That's not all.

McGinty agreed not to oppose a stay so that Slagle's team could litigate the question.

Except it was the weekend.  They were going to file the motion for stay this morning.  They'd talk to Billy today.

But you know, there are no guarantees in this business.  

Billy Slagle, who appeared fine when his lawyers left him on Friday, hanged himself in his cell early Sunday morning.  He was 44 years old.  He'd spent 26 years in prison.  He might have been eligible for parole in 4 more years.  He almost surely wouldn't have gotten it then.  But down the road?  In another 10? or 15?  or 20?  

One wonders where the irony ends and the tragedy begins.