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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Joe D’Ambrosio: System is too flawed to allow executions

Joe D'Ambrosio
When Ohio resumed executions last July, I joined with other exonerated Ohio death-row survivors to warn Gov. John Kasich that it was only a matter of time before we’d risk executing a prisoner who might be innocent. And now William T. Montgomery is scheduled to be killed on April 11, despite rising doubts about his guilt.

I know a little about situations like this; I lived it. In 1989 I was convicted and sentenced to death for the murder of Tony Klann. I was charged with two other men, Michael Keenan and Ed Espinoza. My sentence was based on testimony from Espinoza that he gave in exchange for a 12-year sentence while I got death.

Montgomery was convicted and sentenced to death in 1986 for the murders of Cynthia Tincher and Debra Ogle. His conviction also was handed down solely on the testimony of the state’s star witness and co-defendant Glover Heard, whose story changed five different times before he settled on what was said at trial.

Only on the fifth time did Heard mention Montgomery as the murderer. And by the way, Heard was sentenced to 15 years to life, not death, for cooperating.

It doesn’t take an expert to see that Montgomery’s case has all the hallmarks of a wrongful conviction:

‒ Prosecutors withheld evidence

‒ A jailhouse informant gave information in exchange for leniency

‒ A co-defendant received a plea deal to testify

‒ The victims’ belongings were found in co-defendant’s possession

‒ Investigators tainted witness accounts

‒ Forensic evidence now disproves the state’s theory.

Montgomery is scheduled to be executed by the state of Ohio, but there is too much doubt surrounding his conviction. I would know — he and I have a lot in common.

During my trial, prosecutors withheld ten pieces of evidence that could have proved my innocence. No physical evidence ever tied me or Montgomery to the crimes we were accused of, and we both were victim to Brady violations, in which evidence that could have helped defend us was hidden by prosecutors.

In Montgomery’s case, the state suppressed evidence that several witnesses, specifically school classmates, saw Ogle alive four days after she allegedly was murdered. Not until six years after Montgomery’s sentence was this information brought to light from a public-records request, and that evidence has never been heard in open court.

Several pieces of physical evidence, such as Glover Heard’s shoes and Tincher’s diary, were lost or destroyed during the trial. They could have helped uncover the truth.

Ohio has executed 55 people since 1999. I am one of nine people exonerated from Ohio’s death row with evidence of innocence. On average, we spent 21 years wrongly imprisoned. Combined, we served 190 years incarcerated for crimes we did not commit. The National Academy of Science found that, statistically, 1 in every 25 men currently on death row is innocent.

In 2006, a federal judge in my case ruled that prosecutors had not turned over evidence that could have led the three-judge panel to find me not guilty. My conviction was thrown out, and after several long years of battling the state and more appeals, on Jan. 23, 2013, I became the 140th death-row exoneree and the sixth from Ohio.

When execution is the result, the system must be perfect 100 percent of the time. The facts above, and the obvious mistakes in my and Montgomery’s cases, show that the system is far from perfect.

Ohio legislators have had opportunities to put protections in place to correct the problem of wrongful convictions. Though an Ohio Supreme Court task force in 2014 made more than a dozen recommendations which could help prevent wrongful convictions, none of these particular reforms has been acted upon by state lawmakers. This means there’s plenty of opportunity for wrongful convictions to continue and it’s business as usual.

I don’t know who killed Cynthia Tincher and Debra Ogle, but I do know there is way too much doubt to execute William Montgomery for it. Based on the obvious wrongdoings in this case, I pray Governor Kasich commutes Montgomery’s sentence and remembers that when the state executes an innocent person, the mistake is irreversible.

Source: The Columbus Dispatch, Opinion, Joe D’Ambrosio, March 9, 2018. Mr. D’Ambrosio spent 24 years on death row in an Ohio prison for a 1988 murder of which he eventually was exonerated.


Next Ohio execution raises too much doubt


William T. Montgormery (center)
OHIOANS, no matter their view of capital punishment, want the death penalty to be both fair and accurate. This is why Gov. John Kasich should not allow the scheduled April 11 execution of William T. Montgomery to go forward.

Montgomery has been on Ohio’s death row for over 31 years for the 1986 murders of Cynthia Tincher and Debra Ogle in Toledo. He has consistently maintained his innocence from the time of his arrest. I don’t know if he is innocent or guilty, but I can say this: If death penalty reforms recommended in 2014 had been in place, he would not be facing execution.

I served as a member of the Supreme Court Joint Task Force on the Administration of Ohio’s Death Penalty from 2011-2014. I was appointed because of my deep experience with death penalty litigation and related issues.

The Task Force was established by Chief Justice of the Ohio Supreme Court Maureen O’Connor. It included academics like myself, legislators, prosecutors, defense attorneys, judges, law enforcement, and other experts. More than a dozen of our 56 recommendations will, if implemented, help prevent future wrongful convictions. These include:

● Recording in-custody interrogations;

● Accrediting coroners’ offices and crime scene evidence processing labs;

● Limiting the death penalty to cases where there is absolute proof of guilt;

● Prohibiting the death penalty when the state relies on a jailhouse informant;

● Giving full access to both the prosecution and the defense to all evidence known to exist; and

● Requiring the prosecutor to present exculpatory evidence to the grand jury.

When implemented, these and other recommendations will help prevent future wrongful convictions, but what about past cases? The next Ohioan scheduled to be executed is William T. Montgomery, on April 11, 2018. His case is one that should give all Ohioans pause.

In the Montgomery case, had any one of the above recommendations been in place, the death penalty would not have been an option. This case is riddled with characteristics that lead to wrongful convictions: jailhouse informant, prosecutorial misconduct, withheld exculpatory evidence and leniency to a co-defendant in exchange for testimony. We know today these elements are consistently found in wrongful conviction cases.

It is well known that Montgomery’s co-defendant played a role in the murders, yet it was his testimony as the state’s star witness which secured the conviction. This co-defendant routinely changed his story while police were investigating the crimes and it was not until the fifth version of his story that he implicated Montgomery. The co-defendant was in possession of the victim’s belongings, and one victim’s car was found in the alley behind the co-defendant’s home.

Most of the evidence raising doubts today was developed after the original trial was completed in 1986. In 2007, a new trial was ordered because prosecutors had suppressed evidence and eyewitness accounts that pointed away from Montgomery. The state appealed and in 2009 the ruling for a new trial was upheld. The state appealed again and in 2011 the order granting a new trial was overturned by the full 6th Circuit Court of Appeals, with five justices dissenting. After the full court’s reversal, a new forensic review of the autopsy of one victim, in 2012, debunked the state’s theory of the case and cast more doubt about the accuracy of the conviction.

The murders of Cynthia Tincher and Debra Ogle were horrific and vile. That is a fact no one can deny. However, the troubling facts of this case lead me to believe execution is not appropriate.

No court has reviewed all of the evidence available in this case today. 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.

Source: The Blade, Op-Ed, Phyllis L. Crocker, March 10, 2018. The author is Dean of University of Detroit Mercy School of Law. Previously she was on the faculty of the Cleveland-Marshall College of Law at Cleveland State University. She served on the Ohio Supreme Court Joint Task for on the Administration of Ohio’s Death Penalty from 2011-2014.


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning