Phyllis R. Crocker
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.
Phyllis L. Crocker 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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