Because Not Him

If not him, then who?  

And not him.

Lest there be any doubt, I'm talking about this guy.

 James Holmes.  Killer of 12.  

The nightmare in the Colorado movie theater.

He's batshit crazy, of course.  But that didn't stop the prosecutors. 

He was willing to plead, offered to plead 2 years ago.  Just take killing him off the table. Life without the possibility of parole.  LWOP.  Death in prison by natural means rather than by state killing.  That didn't stop the prosecutors.

Millions of dollars.  Months of testimony.  Potentially years of appeals and post-trial.  That didn't stop the prosecutors.

Because he planned.  And executed.  He entered a crowded movie theater.  Midnight showing.  The Dark Knight Returns.  With gas grenades and handguns and long guns.  He wore fucking body armor f'rgodssake.  

Batshit crazy the prosecutor's own experts said.  Batship crazy like a fox, the prosecutors said.  Not enough for him to die.  He has to be killed.

Because if not him, then who?

And, as it happens.  Despite the tears and the horror and the anger and the impassioned pleas to kill, f'rgodssake kill.  But no.

Not him.

Not him.

Which means, just maybe, that it's finally time to admit it.

Because if not him.

Then, really, 

Not anyone.

Because not him.

Do Not Go Gently

Have I mentioned that this thing is fucked up?

If you pay attention to these things, you know the plot.  Arthur Tyler sat on death row for 30 years for a murder that was probably committed by Leroy Head. 

The case was mucked up from the start, filled with prosecutorial misconduct and incompetent defense lawyering.  And Leroy Head, who despite confessing repeatedly that he and he alone killed Sander Leach testified that Tyler did it.  And then there were the parts of the record lost by the clerk of courts and, well, as I said, mucked up from the start.

So when the Parole Board said not just that Tyler shouldn't be killed but that he should be likely released either right away or in a couple of years, there was good reason to think --

But not to think what actually happened when Kasich said, 

Let him die in prison of natural causes.  Commute the sentence from murder in prison to death in prison.

Let me be very clear.  LWOP is better than murder as a sentence.  Conditions can be better, too.  Here's Tyler.

I can say it is a big change for me to walk around free of shackles, free of handcuffs. 

That's from an open letter* he wrote to Kasich as reported by Alan Johnson in the Dispatch.   Sure, Tyler'd like to thank Governor.  But

You didn't give me the gift of life, you re-sentenced me to death in prison for a murder I did not commit.

Which is, of course, both right and wrong.  Kasich could, after all, have let Tyler be killed.  But it's 30 years he's been in prison now, insisting that he didn't do it.  And probably he didn't.  Leroy Hand, who probably did?  Good guess.

So yeah, maybe it's a big change.  But as he told the Gov
I am not free of this nightmare of wrongful conviction.  
The thing is, the Governor can fix it.  Just as he didn't have to commute the sentence at all, and just as he didn't have to turn it into LWOP, 

Just as he could damn well have done what the Parole Board (his Parole Board) suggested, recommended, he still can.  Tyler knows.

I am truly sorry that Mr. Sander Leach was killed," Tyler wrote. "It was a tragedy, but I’m not the person who killed him. The system failed. I am not a murderer. I am not someone that you need to lock up and throw the key away. Sir, you were my last line of defense, the last person who could look at my case and say, “Enough is enough.”

"I am not a monster. I implore you to take another look at this case. All Ohioans want a fair and accurate criminal justice system. Please look at this again."

I suppose maybe in a couple of years. Maybe if he gives up politics. Maybe someday.

In the meantime, Arthur Tyler, probably innocent, waits to die in prison. With a sentence of no hope.

And John Kasich? Alan Johnson checked with him.

Kasich's office has indicated he has no plans to revisit Tyler's clemency.

Yeah.

Do Not Go Gentle into that Good Night

by Dylan Thomas

Do not go gentle into that good night,
Old age should burn and rave at close of day;
Rage, rage against the dying of the light.
Though wise men at their end know dark is right,
Because their words had forked no lightning they
Do not go gentle into that good night.
Good men, the last wave by, crying how bright
Their frail deeds might have danced in a green bay,
Rage, rage against the dying of the light.
Wild men who caught and sang the sun in flight,
And learn, too late, they grieved it on its way,
Do not go gentle into that good night.
Grave men, near death, who see with blinding sight
Blind eyes could blaze like meteors and be gay,
Rage, rage against the dying of the light.
And you, my father, there on the sad height,
Curse, bless, me now with your fierce tears, I pray.
Do not go gentle into that good night.
Rage, rage against the dying of the light.

-----------------------
*But apparently not on line anywhere.

Fuck Hope

And so it ends.

Really, I can't say it was a surprise.  The Parole Board went out on a limb.  The Governor, a likely entry into the Republican presidential nomination sweepstakes in 2016, didn't.

Oh, he's not going to kill Tyler.  There's too much opposition to that and too little support for it.  

But the prospect of allowing the Parole Board to let him out on the street someday? The guy who may or may not (probably not, but there are only two people who really know) have actually killed Sander Leach? The guy who juries twice said should be killed?

Oh, sure.  There were letters.  But many, maybe most, just asked for LWOP which is what Ohioans To Stop Executions was pushing.  (OTSE didn't like my blog post urging a chance for parole some day, tried to talk me into changing it and urging only LWOP.)  Don't kill him, but really, let's hold actual compassion for a likely innocent man in check.

Which he did.  Today, just a day after the Parole Board said to give him a chance.  Reminding us again that the Board can recommend whatever it wants and the Governor has carte blanche to ignore that recommendation if he's so inclined.

Still.

There's this new study that shows that something like 4.1% of those we sentence to die in this country are factually innocent.  It won't likely convince anyone who doesn't already believe it.  And maybe nobody much cares about percentages anyhow.  But Arthur Tyler isn't a percentage.  He's a man. Who's just spent 30 years in prison and now learns that he's going to die there even if the state won't be expediting that death.  And for a crime he likely didn't commit.

But the Gov took the easy way.  Did what the county prosecutor said.  Gave him the sentence that wasn't available at the time: 

Death in Prison.
Life without Hope.

Way to go, John.

  Tyler Commutation

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.

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.