If You Broke It, You Should Pay for It

Dog-bites-man news from the Times:  

They won't be pardoning Cameron Todd Willingham anytime soon.* 

What?  You thought they would?  You thought that Texas would admit that his conviction, death sentence, and execution for a crime that did not occur was a horrible - even if an understandable - mistake?  You thought Rick Perry's parole board would acknowledge that he wasn't a minister of justice when he signed off on Willingham's killing while the evidence that there was no crime (and therefore, duh, no criminal) was right in front of him?  You thought they'd say that he was just a stone killer? And they were too?

Grow up.

Which brings me to Joe D'Ambrosio, though it's not the same thing.

For one thing, he's still alive.  Ohio (that's another difference) wanted to kill him.  This time there was in fact a crime (yet a third difference).  Anthony Klann was murdered.  Eddie Espinoza (the state's key witness against Joe) and Stoney Lewis (the only one with an actual motive) are the ones who slit his throat, then dumped his body.

But Joe spent 22 years on death row, not fighting for a life sentence but fighting to be free.  Because he didn't kill anyone.  Wasn't there.  Not him.  No way.

So how'd it happen?  The prosecutors lied and cheated.  Hid evidence.  Made shit up.  They'd done it to other folks.  They did it to Joe.  

I'm not exactly saying that they set out to frame an innocent man.  I'd guess that they figured Espinoza was telling something close to the truth when he cut a deal to save himself and blame Joe and Michael Keenan.  And then - well, what's the point of taking him to trial if you don't ensure that the evidence will convict him?  And if you have to invent some evidence to ensure that, and if you have to hide some other evidence?  Well, shit.  You're righteous so who gives a fuck about the rules.  They're for sissies.

Joe's out now.  Hell of a guy.  We had a few beers a couple of weeks ago, him talking about how fucked up the system is and how hard he fought all those years and how he now travels around talking to folks and trying to get them to understand.  And to act.

He was also hoping but not optimistic that maybe his lawsuit against the prosecutors and the cops and the government might get some traction in the 6th Circuit after the district judge threw it out.  This week the answer came.  No.  Oh, the circuit's opinion makes clear that Joe was victimized, that the prosecutors lied and cheated, all that stuff.  And it makes clear that they're not supposed to do those things.  But you know, the law didn't exactly say that.  (Radley Balko lays it all out in his blog at the Post, and I'm not going to rehash it here - at least not today.) 

But like I say, Joe's a fighter.  You don't survive as he did, struggle for all those years not just to cheat the hangman but to walk out a free man, without having fight in you.  

And then there's Arthur Tyler.  He's not Willingham and he's not Joe.  

It was just over 30 years ago March 12, 1983. Someone shot and killed Sander Leach.  There were two possible killers.  Either Leroy Head or Arthur Tyler. 

The evidence all points to Head. He confessed. Repeatedly.  At least 11 times. He confessed to the police.  He confessed to friends.  He confessed to his mother for god's sake.  He confessed and confessed.  He said he acted alone.  Then the cops and the prosecutors told him that if he didn't change his story and blame Tyler, he'd end up on death row.  So he told them that he didn't do it. Tyler did.  Which they believed.  

Because who wouldn't believe a confessed murderer when, after you threaten him he decides to blame someone else?

He's out of prison now.  And here's the thing, he still says he did it and Tyler didn't.  Or at least, he was still saying it when he wrote and signed an affidavit that was filed with Tyler's post-conviction petition. An affidavit the court promptly lost.  (Really, you can't make this shit up, or at least, there's no reason to because it actually happened  and happens.  Matt Brown and Scott Greenfield have been talking about who doesn't get paid any attention by the courts. The court lost the fucking affidavit! Gimme a break.)

Anyhow, lost affidavit or not, Head was all set to testify that what he'd told folks (except the jury) was true - that he was the killer and not Tyler.  Until the cops and the prosecutors said again 

Then you'll be undoing your plea bargain and we'll put you on death row.

So once again he . . . .

Todd Willingham is dead.  Joe D'Ambrosio is out and exonerated (even if not compensated).**  Arthur Tyler?  They're planning to kill him May 28.  For the crime Leroy Head probably committed.

Look, it's not that Tyler's a saint.  It's just that he probably didn't kill Sander Leach.  And no matter how you spin that, it means he shouldn't be on death row.

And then there's this.  The law at the time said that the sentencing options did not include LWOP.  

Now, imagine a fair trial.  You know, one where Head admits what he says whenever he isn't under threat of death.  One where the cops admit that Leach had over $150 cash in his pockets after the killer left, which pretty much gives the lie to Head's claim that he saw Tyler rifling Leach's pockets and stealing whatever was there after he killed the guy.  Imagine, that is, a trial where it's clear that whatever Arthur Tyler may have done that day in March 31 years ago it wasn't murder Sander Leach.

And imagine that the jury said, OK, makes sense.  Tyler didn't kill him.  But maybe he was involved. So they convict him of a lesser crime.  Or they give him one of the life sentences.  Which include possible out dates.

It's not just that Arthur Tyler shouldn't be on death row.  It's not just that they shouldn't kill him.  It's that they shouldn't give him death in prison, which is the usual best you get if the Parole Board and the gov decide to fix things.

And really, robbery gone wrong - which is what happened just with Head as, almost certainly, the robber.  That's not a death case today.  Not in Cuyahoga County.  Tim McGinty's the elected Prosecutor now, and he'll likely support a commutation to LWOP.  William Gerstenslager, the line prosecutor who put Tyler on the row, who coerced Head, who believes despite the evidence and the logic that Tyler must have done it because he just must have.  (Head's credible when he blames Tyler because he says things he could only have known if he was there, Gerstenslager said.  Of course, if he killed Sander Leach, he was there.)  Yet even Gerstenslager has said he would support a commutation to LWOP.

And that is, after all, a win in this business.  But for the guy who didn't do it?  When the law didn't allow LWOP?  When it wouldn't allow LWOP if Tyler were tried today?

Anything's possible.  The Sun could burn out tomorrow.  Malaysia Air Flight 370 might turn up having landed safely on an uncharted island in the Indian Ocean.  The Republicans in the House of Representatives might unanimously concede they were mistaken and that the Affordable Care Act is the finest and noblest piece of legislation in American History and that their foolish opposition means they don't deserve the public trust so they're all resigning.  

It's even possible that Head told the truth when he said that Arthur Tyler killed Sander Leach.

So don't cut him loose.  But don't kill him.  And don't make it LWOP.  Give him a chance.  Really.  It's not too much to ask.  It wouldn't be the end of the Republic.  Not even the end of the Buckeye State. But it'd be the right thing to do.  

And then?  

Give Joe D'Ambrosio a boatload of cash.  It won't make up for those years, nothing will.  But it'd be a start.

And Todd Willingham?  Fess up Texas.  

I have more suggestions, but they'll have to wait for another post.  This one's too long.  

--------------------
*The parole board's one-page letter denying the pardon request said he can apply for a formal exoneration again in two years.  Because, you know, he'll be more innocent then.

**Leroy Head is out, too, having served the time for admitting under threat of death that he didn't kill Sander Leach.