COLUMBUS, Ohio (AP) — A condemned killer set for execution next month should be spared following questions raised about discrepancies in the case and the fairness of the trial, the Ohio Parole Board ruled Friday.
The board recommended 6-4 in favor of clemency for death row inmate William Montgomery, who is scheduled to die April 11 for the 1986 shooting of Debra Ogle during a robbery in the Toledo area. Republican Gov. John Kasich has the final say.
The board concluded commutation of Montgomery’s sentence to life without the possibility of parole is warranted.
The majority recommending clemency noted two jurors said after the trial that they had difficulty understanding the law and how to apply it, and one juror was permitted to remain on the jury despite exhibiting “troubling behavior and verbalizations” that raised a question over her fitness.
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The majority also noted concern that a police report in which witnesses said they saw Ogle alive four days after Montgomery is alleged to have killed her was never presented to the defense.
A federal judge and a panel of the 6th U.S. Circuit Court of Appeals ruled Montgomery deserved a new trial based in part on the missing report. But the full 6th Circuit rejected that argument. The witnesses later said they mistook Ogle’s sister for the missing woman.
“The failure to disclose that report coupled with the issues described above relative to Montgomery’s jurors raise a substantial question as to whether Montgomery’s death sentence was imposed through the kind of just and credible process that a punishment of this magnitude requires,” the recommendation stated.
The minority voting against clemency noted it found nothing that altered the jury’s conclusion that “Montgomery caused the deaths of two individuals.”
Montgomery’s execution is scheduled for the Southern Ohio Correctional Facility in Lucasville, the same day as the 25th anniversary of the prison riot in Lucasville that killed a guard and nine inmates. The Department of Rehabilitation and Correction says it’s aware of the coincidence and always has contingency plans for executions
Lucas County Prosecutor Julia Bates said the decision is now up to Kasich.
“I guess my only concern would be that he ever gets out of jail,” Bates said. “That would be very troubling to me.”
A statement from Montgomery’s attorneys, John Lewis and Jon Oebker, said they are pleased the majority “recognizes the inherent unfairness” of Montgomery’s trial.”
“We pray that Governor Kasich provides the relief to Mr. Montgomery so he may pursue a fair trial that is free of gross prosecutorial misconduct where all the evidence is considered, not just what prosecutors think is worthy of consideration,” the statement said.
The governor’s office did not immediately respond to a message seeking comment.
At issue before the board was Montgomery’s involvement in two killings, that of Ogle and her roommate Cynthia Tincher. Montgomery received the death sentence for Ogle’s death. He was convicted of murder but not sentenced to death for the shooting of Tincher.
Ogle was shot as part of a robbery, and Tincher was killed because she could identify Montgomery and his co-defendant, Glover Heard, according to the Lucas County prosecutor.
Tincher’s body was found in her car the day prosecutors say the women were killed, and Ogle’s body was found in woods five days later.
Heard and Montgomery each blamed the other for the killings. Heard pleaded guilty and agreed to testify against Montgomery in exchange for prosecutors dropping death penalty charges and a child molesting charge.
Prosecutors say evidence points to Montgomery as the killer, including his gun being used in both killings and eyewitnesses who saw him near Tincher’s car, where she was found dead.
Montgomery went to a dry cleaner the day of the killings and dropped off a jacket responsible for “putting a yellowish brown, brownish dripping mess on the floor,” according to prosecutors.
The evidence against Montgomery, including his own version of events, points to him as the killer of both women, Stephen Maher, an assistant Ohio attorney general, told the parole board March 8.
Montgomery’s attorney says an examination of Ogle’s autopsy casts doubt on the state’s version of the killings, which then calls into question the entire case against Montgomery.
Ogle’s body lacked signs of decomposition natural for a body left outside for several days, according to a review by Colorado-based Independent Forensic Services that had been requested by the defense. The pooling of blood indicated she died within six to 12 hours before she was found on March 13, 1986, not a few days earlier on March 8, 1986, the review says.
The Lucas County Prosecutor’s Office has questioned how likely it was in cold temperatures that decomposition would have occurred in Ogle’s body, contrary to the forensic examination’s conclusion.
Oebker also argued:
— The state withheld information at trial about other suspects, including jealous boyfriends and a “drug cartel” hit man.
— A juror who recommended death for Montgomery said in an affidavit last month he would not have done so based on the new autopsy evidence, including discrepancies about Ogle’s time of death.
— Another juror should not have been allowed to stay on the case after telling the trial judge she was a psychiatric patient who claimed to have seen a psychiatrist testifying on behalf of Montgomery in a dream 22 years earlier.
AP writer Lisa Cornwell contributed to this report from Cincinnati.