Traditional foes back mercy for condemned killer

ANDREW WELSH-HUGGINS AP Legal Affairs Writer Published:

COLUMBUS, Ohio (AP) -- Defense attorneys and prosecutors who agree a condemned Ohio killer should be spared disagree on almost everything else about the case.

Attorneys for death row inmate Arthur Tyler told the Ohio Parole Board on Thursday their client is innocent and should be freed based on statements by a co-defendant. Cleveland prosecutors argued that Tyler's sentence should be commuted to life without parole because of questions about the conviction. They maintain Tyler was the man who fatally shot a Cleveland produce vendor in 1983.

"It's always been the Cuyahoga County prosecutor's position that he's the principal offender," Allan Regas, a Cuyahoga County assistant prosecutor, told the board.

Regas said the case doesn't meet the office's current standards for a capital punishment prosecution. He says the office wouldn't seek the death sentence today based on the evidence in the case, including what appears to be a lack of intent to shoot the victim.

The prosecutor's filing with the parole board also says the lack of the option of life without parole at the time may have led jurors to sentence Tyler to death. The only options under Ohio law in 1983 for jurors sentencing Tyler were death or life with parole after 20 or 30 years.

Ohio lawmakers added life without parole as an option in 1996, after which death sentences in Ohio began to decline.

Tyler, 54, is scheduled to die May 28 for the killing of Sander Leach during a robbery.

Tyler's first death sentence was overturned by a state appeals court in 1984 on the basis of poor legal assistance. He was convicted at a second trial and again sentenced to death.

Tyler's co-defendant, Leroy Head, pleaded guilty for his role in the slaying and was sentenced to life in prison with parole after 20 years for aggravated murder and seven to 25 years for aggravated robbery, according to court and parole board records. He was released from prison in 2008.

Head made two statements to police that the gun went off while he was struggling with Leach and that it was he, not Tyler, who was responsible for the shooting, according to Tyler's clemency request.

Head recanted those statements and testified against Tyler at the first trial, saying Tyler had threatened his family if he explained what happened that day. Head also testified at Tyler's second trial.

In later years, Head denied Tyler had ever threatened him and said he testified at the second trial because a prosecutor threatened to negate his plea deal, according to Tyler's parole board filing.

Head also made multiple statements to defense attorneys, fellow inmates and others that Tyler was not the shooter, according to the clemency request.

"Head signed a handwritten statement saying that he, not Arthur Tyler, shot the old man," the filing said, referring to a parole board exhibit dated April 27, 1986.

There is "grave doubt" about Tyler's guilt, federal public defender Vicki Werneke told the parole board Thursday.

"We will show the system has been unfair to Arthur Tyler throughout this process," Werneke said.

Prosecutors also are troubled by Head's comments.

"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," Cuyahoga County Prosecutor Tim McGinty said in his filing with the board.

Messages left at a Cleveland phone listing for Head were not returned, nor was one left with his attorney from his original trial. Werneke told the parole board Thursday that Head refused to cooperate because the board wouldn't offer him anything in exchange.

The parole board makes a recommendation to the governor, who has the final say.

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Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus