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Confidential Settlement Leaves Questions About Alabama Execution Process Unanswered

Posted: March 30, 2018

One month after Alabama called off its two-and-a-half hour attempted execution of Doyle Hamm, the state reached a confidential settlement agreement in which it agreed not to seek another execution date and Hamm's attorney dismissed his client’s pending civil-rights lawsuit. In a March 27, 2018 press release, Columbia University law professor Bernard Harcourt, who has represented Hamm for 28 years, said the settlement was reached “after lengthy, fruitful discussions with the Alabama Attorney General's office.” But the settlement left unanswered numerous questions about what happened during the failed execution and about the state’s secret execution protocol. In response, Alabama’s death-row prisoners filed a motion in their on-going challenge to the state’s execution protocol seeking a federal court order to preserve all evidence from the attempted execution, and several leading media organizations have sought permission to intervene in Hamm’s case to obtain access to information that currently remains sealed. The confidential settlement came after Hamm’s attorney submitted a medical report by a doctor who examined Hamm three days after the failed execution. The report—the only public document describing the circumstances of the execution attempt—indicates that execution personnel unsuccessfully inserted IV needles more than 10 times into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and likely puncturing his bladder, causing blood in his urine. After executioners failed for more than two hours to set an intravenous execution line, Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution and held a news conference in which he repeatedly asserted the state had followed its execution protocol. “I wouldn’t characterize what we had tonight as a problem,” Dunn said. In the face of conflicting reports about the attempted execution, The Montgomery Advertiser, Alabama Media Group, and The Associated Press filed a motion to intervene in the lawsuit to gain access to sealed documents. “Open government is good goverment,” said Montgomery Advertiser Executive Editor Bro Krift. “There are few things the citizens of Alabama need to know more than how the state is executing someone.” Alabama does not disclose its execution protocol to the public nor does it allow the public to witness the part of the execution in which prison personnel attempt to insert the IV lines. The media's motion argued that, “[w]ithout access to the protocol, it is impossible for the public to understand if the failure was due to a problem inherent in protocol, or to some other cause.” Alabama continues to publicly deny that anything went wrong in its failed attempt to execute Hamm. On March 30, in response to motion to preserve evidence filed in the prisoners’ lawsuit, the Alabama Attorney General blamed the U.S. Supreme Court for the state’s failure to execute Hamm. Prosecutors wrote: “because the Supreme Court prevented Defendants [the Alabama Department of Corrections] from beginning preparations until a mere three hours before the execution warrant was set to expire, time ran out for Defendants and necessitated aborting the execution.” Also on March 30, Chief Judge Karon Owen Bowdre granted the media group's motion to intervene in Hamm’s case, but reserved judgment on whether to unseal the record. “The Press Movants claim an interest in this case because it centers on a ‘matter of intense public interest: the method by which the State of Alabama exercises the power to put people to death,’” Judge Bowdre wrote. “The court agrees.” In allowing the media organizations to intervene, the court found that neither Alabama prosecutors nor Doyle Hamm “adequately represent” the interests of “the public’s right of access to the records.”

 

BOOK: “Surviving Execution” Chronicles Miscarriages of Justice in the Richard Glossip Case

Posted: March 29, 2018

In his new book Surviving Execution: A Miscarriage of Justice and the Fight to End the Death Penalty, Sky News reporter Ian Woods tells the story of his relationship with condemned Oklahoma prisoner Richard Glossip, whose case gained prominence after the U.S. Supreme Court agreed to review his challenge to the state’s lethal-injection procedures. Although Glossip’s case is most frequently associated with the Supreme Court’s 2015 decision in Glossip v. Gross and Oklahoma’s dramatic, last-minute recission of his execution warrant when the state’s anonymous drug supplier delivered the wrong execution drug, Surviving Execution focuses more on Glossip’s conviction itself and the author’s belief that Oklahoma is attempting to execute an innocent man. Glossip, who has consistently maintained his innocence, was prosecuted and sentenced to death in Oklahoma County by a prosecuting administration riddled with misconduct in capital cases. The book chronicles the details of Glossip’s conviction, exposing the numerous holes Woods sees in the state’s case. Against the backdrop of multiple execution dates, Woods explains how he developed a friendship with Glossip, and in turn, witnessed the intensive ourpouring of support that Glossip gained as his execution date approached, including the high-profile involvement of Sister Helen Prejean, actress Susan Sarandon, and British businessman Richard Branson. Woods—whom Glossip asked to witness the execution—also discusses his personal struggle over whether to watch a man die at the hands of the state. Glossip's execution, originally scheduled for January 2015, was stayed while the Supreme Court reviewed his lethal-injection case. After his narrow 5-4 loss in that case, Oklahoma rescheduled his execution for September 2015. That execution date was stayed by the Oklahoma courts to consider Glossip's claim of innocence. Ultimately, the state court gave the go-ahead for the execution, and Glossip's execution was rescheduled for later in the month. However, that execution attempt was halted when the state failed to obtain the correct lethal-injection drug and all executions in Oklahoma were put on hold while the state reviewed its execution procedures. Woods’ book attempts to combine journalistic independence with his search for the truth and his conclusion that Glossip was not guilty of the murder of victim Barry Van Trease. In a Sky News podcast just before the aborted execution was to occur, Woods summarized Glossip’s case, saying, “There is no incontrovertible proof that Richard Glossip is guilty of murder. No forensic evidence, no eyewitness account, other than that of the killer, who saved his own skin by blaming Richard. The state of Oklahoma is going to kill him on Wednesday, so I’m not going to sit on the fence any longer. I'm telling you: I think that’s wrong.” In Surviving Execution, Woods explains why.

 

Tennessee Supreme Court Rejects Attorney General’s Request for 8 Executions by Drug Expiration Date

Posted: March 28, 2018

The Tennessee Supreme Court has denied a request from the state's attorney general to schedule eight executions before the June 1, 2018 expiration date of Tennessee's supply of one of its execution drugs. Tennessee Attorney General Herbert Slatery had filed the request on February 14, saying that scheduling executions "after June 1, 2018 is uncertain due to the ongoing difficulty in obtaining the necessary lethal injection chemicals." The court's March 15, 2018 order did not explain why it rejected the request, but it did set two execution dates to be carried out later in the year. The court scheduled the execution of Edmund Zagorski for October 11 and set a December 6 execution date for David Earl Miller. Three other Tennessee death-row prisoners already had execution dates this year, though two of them—James Hawkins and Sedrick Clayton—have not yet completed their appeals. Thirty-three Tennessee death-row prisoners are challenging the state's use of midazolam as part of its execution protocol, arguing that the protocol "amounts to torturing prisoners to death." The prisoners cite botched executions in other states that have used midazolam, including Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. Because of that litigation and the Attorney General's statements about the unavailability of lethal-injection drugs, Tennessee's ability to carry out any of the scheduled executions remains uncertain. The state prosecutor's request was reminiscent of Arkansas's controversial attempt in April 2017 to carry out eight executions over the span of eleven days before its supply of midazolam expired. Four of those executions were stayed and witnesses reported indications that two of the executed prisoners—Jack Jones and Kenneth WIlliams—remained conscious during the execution process after the midazolam was supposed to have rendered them insensate. 

 

Ohio Governor Commutes Death Sentence of William Montgomery

Posted: March 27, 2018

Ohio Governor John Kasich has commuted the death sentence of 52-year-old William Montgomery (pictured) to life without the possibility of parole. Montgomery was scheduled to be executed on April 11. The one-page proclamation granting clemency (pictured right, click to enlarge) did not specify the grounds for Kasich's action and was not accompanied by a news release or statement to the media. The order, issued March 26, stated simply, "after consideration of all relevant factors, I ... have concluded that a commutation of the death sentence of William T.  Montgomery is warranted." Faced with issues of prosecutorial misconduct and questionable forensic evidence, the Ohio Parole Board voted 6-4 on March 16, 2018 to recommend that Kasich grant executive clemency to Montgomery, who was convicted and sentence to death in 1986 for two murders he maintains he did not commit. Lucas County Prosecutor Julia Bates opposed Montgomery's clemency application. An Ohio federal district court, affirmed by a federal appeals court panel, overturned Montgomery's conviction in 2007 because prosecutors had suppressed evidence and witness statements that undermined the state's version of how the crime occurred, but the full U.S. Court of Appeals for the Sixth Circuit reinstated the conviction in 2009, with five judges dissenting. Montgomery's supporters argued to the parole board that there was too much doubt about his guilt to risk executing a potentially innocent man. Prosecutors in the case withheld from the defense evidence that multiple witnesses had seen Debra Ogle, one of the women Montomgery was found guilty of murdering, alive four days after the date prosecutors said Montgomery had killed her and left her body in the woods. An independent review of the autopsy report showed that Ogle's body likely had been discovered within hours of her death. Adding to the doubt in the case, Montgomery's co-defendant, Glover Heard, told police five different stories before settling on a version of events that fit the prosecution's theory, and instead of facing the death penalty, he was sentenced to a term of years with eligibility for parole. The clemency grant was the sixth time Kasich had commuted a death sentence to life without parole. It was the second time a governor commuted a death sentence in 2018. Texas Governor Greg Abbott commuted Thomas "Bart" Whitaker's sentence on February 22, less than an hour before he was scheduled to be executed. There have been 287 grants of clemency to death-row prisoners in the United States on humanitarian grounds since 1976. Ohio governors have granted clemency to death-row prisoners twenty times in that time period.

 

POLL: Americans Overwhelmingly Oppose Death Penalty for Overdose Deaths

Posted: March 26, 2018

Americans of all ages, races, and political affiliations overwhelmingly oppose the Trump administration plan to pursue capital punishment for drug overdose deaths and believe it will have no effect on addressing the opioid public health crisis, according to a March 16-21, 2018 nationwide Quinnipiac University poll. By a 50-percentage-point margin (71% to 21%, with 8% saying they did not know or would not answer), Americans oppose the death penalty for persons convicted of selling drugs that contributed to a fatal overdose (click on graph to enlarge image). Three-quarters of Americans (75%-20%-5%) said that using the death penalty for drug sales leading to overdose deaths will not help stop the opioid crisis. Nearly three-fifths of Republicans (57%) both opposed the administration’s plan and thought it would not work. Opposition to the use of the death penalty for drug-overdose sales was highest among African Americans (90%), Democrats (87%), voters aged 18-34 (82%), and college-educated Whites (77%). 73% of women and 70% of men opposed the plan, as did 69% of Whites, Hispanics, and Independents. By margins of more than 3 to 1, men and women, Blacks and Whites, and Democrats and Independents also said using the death penalty would not help stop the opiod crisis. Hispanics by a margin of 2 to 1 thought it would not work. The Quinnipiac Poll also asked the 1,291 voters it surveyed several questions about the death penalty itself. In a question that asked simply “Do you support or oppose the death penalty for persons convicted of murder?,” 58% said they supported capital punishment, while 33% opposed. That contrasted with the most recent Gallup Poll, which reported 55% support for the death penalty, and the Pew Research Center poll, which reported support at 49%. When asked “Which punishment do you prefer for people convicted of murder: the death penalty or life in prison with no chance of parole?,” 51% of Quinnipiac Poll respondents said they preferred life without parole, versus 37% who preferred capital punishment. A Quinnipiac news release said this was the first time since the poll began asking this question in 2004 that a majority of Americans said they preferred the life-sentencing option. At the same time, however, poll respondents said by a 2 to 1 margin that they would not like to see the death penalty abolished nationwide. Democrats split on that question at 47%-46% in favor of abolition, but substantial majorities of every other demographic opposed abolition. “It’s a mixed message on a question that has moral and religious implications,” said Tim Malloy, the assistant director of the Quinnipiac University Poll. “Voters are perhaps saying, ‘Keep the death penalty, but just don’t use it.” 

 

Jury Notes Show Georgia Prosecutors Empaneled White Juries to Try Black Death-Penalty Defendants

Posted: March 23, 2018

New court filings argue that Columbus, Georgia prosecutors had a pattern and practice of systematically striking black prospective jurors because of their race, discriminatorily empanelling all- or nearly-all-white juries to try black defendants on trial for their lives in capital murder cases. In a supplemental motion seeking a new trial for Johnny Gates (pictured)—a black man sentenced to death by an all-white jury in 1977 for the rape and murder of a white woman—lawyers from the Southern Center for Human Rights and the Georgia Innocence Project presented evidence from seven capital trials involving his trial prosecutors, showing that they carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. “Race discrimination undermines the credibility and reliability of the justice system,” said Patrick Mulvaney, managing attorney for capital litigation at the Southern Center. “Mr. Gates is entitled to a new trial that is fair and free of race discrimination.” Jury selection notes from the seven cases contain “W”s next to the name of each white juror and “N”s next to the names of the black jurors, and variously describe black jurors as “slow,” “old + ignorant,” “cocky,” “con artist,” “hostile,” and “fat.” They say one white male would be “a top juror” because he “has to deal with 150 to 200 of these people that works for his construction co.” Prosecutors also kept racial tallies of the empaneled jurors, with twelve marks in the white column and none in the black column. In Gates' case, prosecutors rated jurors on a scale of 1 to 5, with 5 being the most favored, and ranked every black juror a “1.” The only white juror ranked a “1” had said he was opposed to the death penalty. The Muscogee County District Attorney’s Office’s office repeatedly refused to disclose the jury notes to Gates’s lawyers until the trial court issued an order in February directing them to do so. The notes were never disclosed to the defendants in the other cases, three of whom—Jerome Bowden, Joseph Mulligan, and William Hance—Georgia has already executed. Gates was prosecuted by Douglas Pullen and William Smith. Pullen prosecuted five capital trials involving black defendants between 1975 and 1979, striking all 27 black prospective jurors and successfully empaneling five all-white juries. A decade later, he prosecuted Timothy Foster, another black defendant sentenced to death by all-white Columbus jury for strangling an elderly white woman. Foster's lawyers subsequently discovered jury selection notes that documented similar discriminatory practices in his case, and in May 2016, the U.S. Supreme Court vacated Foster’s conviction saying that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” Gates’s second prosecutor, Smith, was one of the prosecutors in four capital trials of black defendants between 1975 and 1979. In three of those case, prosecutors struck all of the black prospective jurors. In the fourth, Gates’s motion says, prosecutors struck ten black prospective jurors, but could not empanel an an all-white jury “because the final pool of prospective jurors had more black citizens than the prosecution had strikes.” Gates was taken off death row in 2003 because of intellectual disability. He is also challenging his conviction on grounds of innocence and arguing that prosecutors withheld exculpatory evidence in the case. Blood found at the scene was a different blood type than both Gates and the victim and DNA testing of implements used to restrain the victim did not match Gates. After interrogation by police, Gates gave a taped confession that was inconsistent with the physical evidence. A different confession, given earlier by a white man caught fondling the victim’s body in the funeral home, more accurately described the crime scene. The next court hearing in the case is scheduled for May 7.

 

U.S. Supreme Court Rules in Favor of Texas Death-Row Prisoner Denied Investigative Funding

Posted: March 22, 2018

In a decision that clarifies the showing indigent prisoners must make to obtain investigative services, the U.S. Supreme Court has ruled in favor of a Texas death-row prisoner who was denied funding to challenge the death sentence imposed in his case. In Ayestas v. Davis, the Court unanimously ruled that the Texas federal courts had applied an overly restrictive legal standard in denying Carlos Ayestas (pictured) funding to investigate and develop his claim that his lawyer had provided ineffective representation in the penalty phase of his trial. Federal law requires habeas-corpus courts in death-penalty cases to provide funding that is "reasonably necessary" to the petitioner's case. The U.S. Court of Appeals for the Fifth Circuit, however, has instead required indigent applicants to demonstrate a "substantial need" for funding. The Court returned the case to the federal appeals court to reconsider Ayestas's request for funding using the proper standard. Ayestas, a 48-year-old Honduran national, was sentenced to death in Harris County, Texas in 1997. His trial counsel conducted virtually no life-history investigation and presented a case for life to the jury that lasted just two minutes and included only a single letter from an English teacher in prison. Both his trial and state post-conviction lawyers overlooked available evidence of mental illness and brain damage—including head trauma and substance abuse—and failed to develop a record of the mitigating evidence that his federal habeas lawyers argued should have been presented in his case. The lawyers appointed to represent Ayestas in federal court sought funding to investigate his background, upbringing, and mental health history, without which, they argued, he would be unable to discover mitigating evidence indispensable to presenting a meaningful case to spare his life. The Texas federal district court, applying the Fifth Circuit's "substantial need" test, denied him funding and dismissed his habeas corpus petition, and the Fifth Circuit affirmed. Justice Samuel Alito, writing for a unanimous Supreme Court, reversed and ordered the federal appellate court to reconsider Ayestas's request for funding. In determining whether a funding request is "reasonably necessary" to the petitioner's case, Justice Alito wrote, federal courts courts should assess "whether a reasonable attorney would regard the services as sufficiently important." This standard "requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way." In a concurring opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote "to explain why, on the record before this Court, there should be little doubt" that Ayestas had already made a showing sufficient to obtain funding. Trial counsel's obligation to thoroughly investigate possible mental illness, she wrote, "exists in part precisely because it is all too common for individuals to go years battling an undiagnosed and untreated mental illness. ... [T]he troubling failures of counsel at both the trial and state postconviction stages of Ayestas’ case are exactly the types of facts that should prompt courts to afford investigatory services, to ensure that trial errors that go to a 'bedrock principle in our justice system' do not go unaddressed." 

 

Supreme Court Declines to Review Arizona Case Challenging Constitutionality of Death Penalty

Posted: March 21, 2018

The U.S. Supreme Court has declined to review a sweeping challenge to the constitutionality of capital punishment brought by Arizona death-row prisoner Abel Hidalgo (pictured). After scheduling consideration of Hidalgo v. Arizona for ten separate court conferences, the Court on March 19 unanimously denied Hidalgo’s petition for writ of certiorari. In a statement issued in conjunction with the Court’s ruling, however, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, expressed concern about a second issue raised by Hidalgo—the constitutionality of Arizona’s method of deciding which defendants are eligible for the death penalty. The four justices said that the Arizona Supreme Court had misapplied Supreme Court precedent on that “important Eighth Amendment question,” but believed the factual record was insufficiently developed to warrant the court’s review of the case at this time. Hidalgo had presented records from more than 860 first-degree murder cases over an eleven-year period in Maricopa County—where he was charged—showing that 98% of first-degree murder defendants in that county were eligible for the death penalty, but had been denied an evidentiary hearing to further develop the issue. This “evidence is unrebutted,” the four justices said, and “would seem to deny the constitutional need to ‘genuinely’ narrow the class of death-eligible defendants.” Although “[e]vidence of this kind warrants careful attention and evaluation,” they wrote, the absence of an evidentiary hearing had left the Court with a factual record that “is limited and largely unexamined by experts and the courts below.” With an “opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here,” the four justices said, “the issue presented in this petition [would] be better suited for certiorari.” The court declined without comment to review a broader challenge Hidalgo presented to the constitutionality of capital punishment itself. Hidalgo is one of many death-row prisoners to raise that issue in the wake of a 2015 dissent by Justices Breyer and Ginsburg in Glossip v. Gross in which they said it is “highly likely that the death penalty violates the Eighth Amendment” prohibition against cruel and unusual punishments.

 

Public Health Experts Criticize Trump’s Proposal to Seek Death Penalty for Drug Traffickers

Posted: March 20, 2018

Saying “the ultimate penalty has to be the death penalty,” President Donald Trump (pictured) announced on March 19 that he will direct the Department of Justice to seek the death penalty against drug traffickers. The proposal, included as part of the administration’s plan to address an opioid epidemic that has resulted in as many as 64,000 overdose deaths in 2016 alone, drew immediate criticism from public-health and criminal-justice experts. “We can’t execute our way out of this epidemic,” said Dr. Andrew Kolodny, co-director of the Opioid Policy Research Collaborative at Brandeis University. “To be talking about the death penalty sounds to me like a step backwards.” During the announcement, Trump acknowledged resistance to his death-penalty proposal, saying, “[m]aybe our country's not ready for that. It's possible, it’s possible that our country is not ready for that.” Since 1994, federal law has authorized the death penalty for “drug kingpins” who traffic in large quantities of drugs, even if no killing has occurred. But the U.S. Supreme Court has ruled that the death penalty is unconstitutional for crimes against individuals in which no one is killed, and no prior administration—Republican or Democratic—has used the drug kingpin provision to seek the death penalty. Experts said the opioid crisis should be dealt with as a public-health issue and that harsher penalties for drug dealers would not fix the problem. Instead, they said, the administration should focus on addiction treatment. “The reality is, most people who are selling drugs are suffering from opioid addiction, and they sell drugs to support their own habit,” Dr. Kolodny said. “When I start hearing about the death penalty, it just seems to me we’re going in the wrong direction.” Dr. Guohua Li, professor of epidemiology and anesthesiology at Columbia University, agreed, saying “[c]riminal justice can play a complementary role in addressing the opioid crisis, but relying on the criminal justice system to address public health problems has proven unwise, costly, ineffective and often counterproductive.” Legal experts said the constitutionality of death sentences for drug dealers would likely be the subject of extensive litigation. “The death penalty is uncertain as a constitutionally permissible punishment without that connection to an intentional killing,” said Ohio State University law professor Doug Berman. Hamilton County, Ohio, Prosecuting Attorney Joe Deters, known for aggressively pursuing the death penalty, said “[t]o seek a death penalty case [simply for for drug trafficking] would be almost impossible. We'd have serious constitutional problems.” Former Harris County, Texas, homicide prosecutor Ted Wilson called the proposal “kind of over-the-top.” The death penalty for drug dealers "in my opinion just doesn’t fit,” he said. Senator Dick Durbin (D-Illinois) compared the President’s death-penalty proposal to past failed drug policies, saying, “We cannot arrest our way out of the opioid epidemic—we tried that and ended up with an even bigger addiction problem and the world’s largest prison population. The war on drugs didn’t work in the 80’s, and it won’t work now by reviving failed deterrence measures like the death penalty for drug dealers.  We must instead crack down on the over-production and over-prescribing of painkillers, and increase treatment for those suffering from addiction—both of which have bipartisan support in Congress." A study by the Pew Charitable Trusts, released March 8, found that harsher penal sanctions had no measurable impact on drug use, drug overdose deaths, and drug arrests. The data, Pew said, “reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations. The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.”

 

Ohio Parole Board Recommends Clemency for Death-Row Prisoner William Montgomery

Posted: March 19, 2018

Faced with doubts about prosecutorial misconduct and the accuracy of forensic evidence, the Ohio Parole Board has recommended that Governor John Kasich grant executive clemency to William T. Montgomery (pictured), scheduled to be executed on April 11. Montgomery was convicted and sentence to death in 1986 for two murders he has long maintained he did not commit. An Ohio federal district court, affirmed by a federal appeals court panel, overturned his conviction in 2007 because prosecutors had suppressed evidence and witness statements that undermined its version of how the crime occurred, but with five judges dissenting, the full U.S. Court of Appeals for the Sixth Circuit reinstated the conviction. Montgomery's supporters argued to the parole board that there was too much doubt about his guilt to risk executing a potentially innocent man. Prosecutors argued at trial that Montgomery murdered Debra Ogle and then killed her roommate, Cynthia Tincher to prevent her from testifying against him, then dumped Ms. Ogle's body in the woods where it was not discovered for four days. However, prosecutors withheld from the defense evidence that multiple witnesses had seen Ms. Ogle alive four days after she supposedly had been killed and an independent review of the autopsy report showed that Ms. Ogle's body likely had been discovered within hours of her death. The report noted that a body left in the woods for four days in above-freezing temperatures would have shown signs of decomposition, insect infestation, and animal predation, none of which were present, and the body's state of lividity indicated death had occurred within twelve hours of its discovery. Adding to the doubt in the case, Montgomery's co-defendant, Glover Heard told police five different stories before settling on a version of events that fit the prosecution's theory and, instead of facing the death penalty, was sentenced to a term of years with eligibility for parole. Montgomery’s lawyers also presented the parole board with affidavits that undermined its confidence in the jury verdict, including one from a juror who was confused as to what the law required, another from a juror who had doubts about Montgomery’s guilt, and a third juror whose psychiatric behavior raised questions about her ability to serve. The Board majority cited both the State’s failure to disclose the witness reports that Ms. Ogle was alive after the State claimed she had been killed and the jurors’ affidavits as reasons for recommending commutation. Four Board members opposed commutation, arguing that the information presented was insufficient to overturn the jury verdict and finding no “manifest injustice” in the case that they believed warranted clemency. In an op-ed in the Toledo Blade, Phyllis Crocker, Dean of the University of Detroit Mercy School of Law and a former member of the Ohio Supreme Court Joint Task on the Administration of Ohio’s Death Penalty, wrote: "At best, Montgomery was convicted on a false set of facts and at worst, he may be actually innocent. In death penalty cases there must be no doubt whatsoever. There is too much doubt to allow this execution." Montgomery's lawyer, Jon Oebker, reiterated that his client's assertion of innocence and said the defense plans to "explore every avenue we can." Governor Kasich must issue a decision on the pardons board's recommendation before the April 11 execution date.

 

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