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The State of Ohio plans to execute William T. Montgomery on April 11, 2018. With substantive doubts about his guilt hanging over the case, Montgomery is seeking executive clemency from Governor John Kasich. The application for clemency provides a helpful overview of the key potential grounds for leniency; here, we focus on the serious prosecutorial misconduct and the unreliable informant testimony that create serious doubts about Montgomery’s purported role in the murders of Cynthia Tincher and Debra Ogle. It should go without saying that cases that result in the harshest possible punishment, the death penalty, should be meticulously prosecuted on strong, unassailable evidence. Yet, time and again we see that that’s simply not what happens. William Montgomery’s case demonstrates how even a weak case can result in a death sentence in our criminal justice system.

The State’s case against Montgomery is built on two highly problematic pillars: one, a theory of the case so unlikely that prosecutors had to withhold evidence indicating that a victim was alive after they said she was dead; and two, the testimony of an unreliable informant as the key evidence against Montgomery.

One of the biggest problems is that undisclosed evidence strongly contradicts the State’s theory, placing a victim alive and well after the date prosecutors claimed Montgomery had killed her. The Lucas County prosecutors’ version of the tragic crime said both women were killed by Montgomery on the same date. But, six years after the trial that resulted in the defendant’s conviction and death sentence, the defense team uncovered undisclosed police reports indicating that several witnesses had seen Ms. Ogle alive four days after the prosecution argued that she was murdered.

At one point, a federal court granted Montgomery a new trial because of this apparent Brady violation. A divided en banc Sixth Circuit Court of Appeals reversed that decision, with 11 judges voting to reverse and five judges dissenting. Even the majority opinion had to concede that the State improperly suppressed exculpatory evidence:

[T]he pretrial police report—which indicated that several witnesses had seen one of Montgomery’s alleged victims alive four days after the State argued that he killed her—is favorable to Montgomery because it casts doubt on the State’s theory of the case. . . . [I]t is undisputed that this pretrial police report was suppressed by the State.

It was the disturbing materiality requirement upon which the majority based its decision to deny relief.  Nevertheless, the court tried to make clear that the Lucas County prosecutors breached their ethical duty to disclose exculpatory evidence: “In reaching our decision, we emphasize that ‘saying that a particular nondisclosure was not a Brady violation in no way suggests that the prosecutor did not have a duty to disclose the information.” Of course, one would be forgiven for thinking that the court actually let prosecutors off the hook by reinstating a conviction that was handed down at a trial where the defense was hamstrung because the State did not disclose critical exculpatory evidence. (But the Sixth Circuit cannot take full blame for the Supreme Court’s failure to remedy its problematic materiality doctrine.)

One of the Sixth Circuit’s dissenting judges went hoarse voicing his discontent with the outcome. In Judge Merritt’s words, “In a case of blatant prosecutorial misconduct, no one has seriously contested the fact that the prosecutor suppressed the evidence simply because it was inconsistent with his theory of the case.” To any steward of justice, this is a hair-raising reality. Merritt continued, “But the majority’s failure to recognize and condemn the prosecutor’s obvious disregard of the Brady rule suggests a predisposition to find prosecutorial reasonableness in the face of prosecutorial misconduct.” One major factor in the Sixth Circuit’s decision was relief-destroying statutory requirement that federal courts defer to state courts in habeas review; here, the state courts had voiced little concern about the State’s disclosure decision.

The misconduct by itself is worrisome, but it accompanies another major problem with this prosecution: with no physical or forensic evidence tying Montgomery to the crime, the State relied on the testimony of Montgomery’s co-defendant, Glover Heard. Facing the same two counts of aggravated murder as well as a separate charge of gross sexual imposition involving a five year-old child, Heard struck a sweetheart deal. The State dropped these three charges and permitted him to plead guilty to complicity to murder in exchange for his testimony. These deals—extremely common in our system—open the floodgates for some of the most unreliable testimony imaginable. Heard had the strongest of incentives to say what prosecutors wanted him to say; if he did not, he could have been facing an execution date.

There are plenty of reasons to wonder about the propriety of Montgomery’s upcoming execution. Prosecutorial misconduct leading to doubts about his guilt is chief among them.

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