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Update: The Parole Board recommended the commutation of Tyler’s sentence and the Governor agreed. Tyler’s sentence was commuted to life without parole on May 1.

 

Cuyahoga County Prosecutor Timothy McGinty has asked the Ohio Parole Board to grant clemency to Arthur Tyler, who is scheduled for execution on May 28, 2014. Specifically, McGinty is recommending a reduced sentence for Tyler from the death penalty to life-without-parole.

McGinty says he arrived at his decision after conducting an exhaustive investigation into the facts of the case. He concluded that the conflicting statements given by Tyler’s co-defendant about Tyler’s culpability coupled with the fact that life-without-parole was not an available sentence at the time Tyler was tried calls for a commutation to preserve public confidence in the justice system:

[I]n reviewing this case under current law and standards, and in an effort to maintain the utmost public confidence in every capital sentence, the Cuyahoga County Prosecutor has elected to not pursue Tyler’s execution.

At the time of Tyler’s trial, Ohio law did not allow for the possibility of a sentence of life without parole for an aggravated murder conviction. A jury could impose only a sentence of life with the possibility of parole after 20 years, the possibility of parole after 30 years, or death. In light of the limited sentencing options, the absence of the option of a sentence of life without the possibility of parole in this case may have led to the imposition of the death sentence. While Tyler lacks any compelling mitigation, the absence of this important sentencing option warrants consideration in this case…

Tyler’s own statements also put him with Head in the vicinity of the homicide. The evidence clearly demonstrates Tyler’s involvement in the homicide. But Head’s evolving statements are cause for concern, and while it does not negate Tyler’s guilt, it may undermine public confidence in Tyler’s sentence.

The Cuyahoga County Prosecutor’s Office is also mindful of a prior occasion where this Board unanimously recommended clemency in a similar situation. See In Re: Shawn L. Hawkins, OSP #A218-401.

In applying these factors under the standards of review adopted by the Cuyahoga County Prosecutor’s Office, the facts of this case compel us to recommend that Tyler receive a sentence of life without the possibility of parole in this case.

Despite McGinty’s continuing insistence that Tyler is guilty of the crime for which he was sentenced to death, the prosecutor has taken a rare step by publicly asserting that Tyler’s execution would likely undermine public confidence in the justice system.

In addition to the concerns around the credibility of Tyler’s co-defenant’s testimony at trial, Tyler’s clemency petition also raises prosecutorial misconduct claims. Namely, the withholding of exculpatory and impeaching evidence by the original prosecutor on the case, William Gerstenlager, who was later publicly sanctioned by the Ohio Supreme Court for suppressing favorable evidence in another case. Tyler’s lawyers write in his clemency petition:

On August 16, 1989, Gerstenlager was publicly reprimanded for his failure to turn over evidence to defense counsel. Although the panel found he did not knowingly refuse to turn over hospital records, his actions were “grossly negligent and ‘sloppy’.”

That finding comes from Cuyahoga County Bar Association v. Gerstenlager, 45 Ohio.St.3d 88 (Ohio 1989).

This is not the first time McGinty has shown leadership by thoroughly reviewing a controversial situation and taking concrete steps to address it. In June last year we reported on McGinty’s decision to fire a problem prosecutor who had assumed a fake identity on Facebook to manipulate defense witnesses in a pending murder case. Not only did McGinty take swift steps to deal with his unethical staff member, but he informed the judge and defense counsel about the incident, removed his office from the case and handed it over to the Ohio Attorney General.

More recently, McGinty announced that his office would create a Conviction Integrity Unit to review applications from prison inmates and attorneys for cases of possible wrongful conviction to “continue to build public confidence in the justice system.” The senior prosecutor in charge of the unit told The Plain Dealer:

[P]rosecutors are supposed to seek justice and if the unit finds there is credible evidence that a person is not guilty, it will assist in trying to vacate their convictions or to get them released.

If building public confidence in the criminal justice system is McGinty’s goal, he has picked a smart way to go about it. His willingness to admit errors and rectify them – whether they are the errors of his office or past county prosecutors – communicates honesty and a sincere commitment to justice to his constituents.

 

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