CLEVELAND -- On Monday, the Cuyahoga County Prosecutor's Office asked the Ohio Parole Board to recommend that Arthur Tyler's death sentence be commuted to life without the possibility of parole. Tyler has a clemency hearing scheduled for Thursday.
On March 12, 1983, Arthur Tyler killed Sander Leach, 74, during the commission of a robbery. Tyler was tried twice and, on both occasions, was sentenced to death. His death sentence has been upheld despite repeated collateral attacks in multiple courts.
Tyler claims that he is innocent and asks this Board to recommend that he receive clemency and have his sentence reduced from death to life in prison with parole eligibility.
"But Tyler is far from innocent and his participation in this crime cannot be reasonably questioned. Mr. Leach was robbed and killed because Tyler was indifferent to the suffering of others. Tyler had no issue committing crimes and negatively impacting society. Nowhere is this more evident than in his role in this murder," McGinty wrote.
Despite the Cuyahoga County Prosecutor's firm belief in Arthur Tyler's guilt, it is the position of the Prosecutor that this Board should recommend that Tyler's sentence be commuted from death to life in prison without parole eligibility. As will be further explained, this decision was reached after an exhaustive review of the facts of this case, applicable law, and in consideration of this Board's prior clemency recommendations.
STATEMENT OF THE CUYAHOGA COUNTY PROSECUTING ATTORNEY'S POSITION ON CLEMENCY HEARINGS
The Cuyahoga County Prosecuting Attorney has a policy of review in all capital cases. This policy applies with equal force to charging decisions in new cases, as well as past convictions that resulted in a death sentence. This review is conducted under strict standards of current law to ensure that only those aggravated murder cases so heinous and deserving that the facts and evidence have the weight to firmly and unanimously convince a jury of 12 or a judicial panel that the aggravating circumstances outweigh any and all mitigating factors beyond any reasonable doubt. Decisions will realistically consider the higher level of evidence required by state and federal appellate courts to uphold death penalty convictions than other types of crimes.
CUYAHOGA COUNTY PROSECUTING ATTORNEY'S REVIEW OF ARTHUR TYLER'S APPLICATION FOR CLEMENCY
In this case, there is no doubt that Mr. Leach was an innocent elderly victim who was targeted by Tyler and Head because of his vulnerability. Tyler has tried in vain for the past thirty years to obtain judicial relief. He is not entitled to any. No aspect of his claims warrant a new trial or any other court remedy. However, in reviewing this case under current law and standards, and in an effort to maintain the utmost public confidence in every capital sentence, the Cuyahoga County Prosecutor has elected to not pursue Tyler's execution.
At the time of Tyler's trial, Ohio law did not allow for the possibility of a sentence of life without parole for an aggravated murder conviction. A jury could impose only a sentence of life with the possibility of parole after 20 years, the possibility of parole after 30 years, or death. In light of the limited sentencing options, the absence of the option of a sentence of life without the possibility of parole in this case may have led to the imposition of the death sentence. While Tyler lacks any compelling mitigation, the absence of this important sentencing option warrants consideration in this case.
As with any case, the Cuyahoga County Prosecutor's Office reviewed the strength of the evidence against Tyler. Tyler was twice sentenced to death for this offense. The evidence against him included testimony by accomplice Leroy Head, Anthony Gillis, Felton "Judge" Parker, Annie Travick, Fazendo Cerafinjos, Susie Amerson, and Cassandra Vaught.
Tyler's own statements also put him with Head in the vicinity of the homicide. The evidence clearly demonstrates Tyler's involvement in the homicide. But 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.
The Cuyahoga County Prosecutor's Office is also mindful of a prior occasion where this Board unanimously recommended clemency in a similar situation. See In Re: Shawn L. Hawkins, OSP #A218-401.
In applying these factors under the standards of review adopted by the Cuyahoga County Prosecutor's Office, the facts of this case compel us to recommend that Tyler receive a sentence of life without the possibility of parole in this case.
ARTHUR TYLER IS NOT INNOCENT
Arthur Tyler claims to be innocent of murder, yet, by his own admission, he is at least an accomplice to the aggravated murder of Mr. Leach. His entire argument is premised on the multiple statements of co-defendant, Leroy Head. However, Tyler's conviction was obtained from the testimony of multiple witnesses. Just as Tyler has never received judicial relief on any issue surrounding Head's statements, nor should this Board use it to grant Tyler parole eligibility.
Tyler's first trial began on July, 19, 1983. The jury heard, among other witnesses, the following evidence:
- The jury was informed that Head had entered into a guilty plea. Head testified about his two prior inculpatory statements and explained that they were false and were the result of threats made by Tyler against Head and his family
- Head provided specific details about the offense including that: 1) Anthony Gillis provided an unloaded .38 revolver; 2) Tyler and Head obtained bullets from Felton Parker; and 3) Tyler borrowed a nickel and purchased a paper bag to conceal the gun. These facts, relevant to the jury's determination of Tyler's guilt, were all corroborated by other witnesses
- Anthony Gillis corroborated Head's testimony about the .38 caliber revolver. Gillis testified that he previously implicated Head as the shooter because of fear of Tyler
- Felton Parker testified that Tyler and an unknown man sought ammunition for a .38 caliber revolver. Parker testified that he gave them bullets
- Cassandra Vaught, who was Head's girlfriend and was at Scott Hill's apartment, corroborated Head's account of being threatened by Tyler at Hill's apartment.
- Annie Travick, a clerk at a nearby store, testified that Tyler came in to store and borrowed a nickel to purchase a brown bag.
Tyler's first trial resulted in a death sentence but the conviction was ultimately reversed as a result of ineffective assistance of counsel. State v. Tyler, 8th Dist. Cuyahoga App. No. 47533, 1984 WL 6408. Tyler's retrial began on November 18, 1985. Head testified for the state a second time and his testimony was again corroborated by multiple witnesses:
- Head again testified regarding his multiple statements. He testified that Tyler threatened him. He also testified that he received a letter from Tyler in jail where Tyler asked him not to cooperate because Head was his only hope
- Head was questioned about any promises or benefits that were offered to him before he made his third statement, which implicated Tyler. Head testified that there was no benefit at that time and that he was told that his statement would be investigated
- Head testified that he refused to testify initially because he was being attacked by other inmates for being a snitch. Head was moved to protective custody
- Anthony Gillis again testified that he gave Tyler and Head the gun. Gillis said that when they returned, Tyler had the gun and said he had to burn the silly old man. Gillis testified that Tyler threatened that if anyone talked, someone else was going to die. Gillis was questioned about his former statement implicating Head as the shooter.
Felton Parker again testified to giving Tyler six bullets. Annie Travick again testified that Tyler borrowed a nickel so he could purchase a bag. Fazendo Cerafinjos testified that she saw Tyler the morning of the homicide looking into the Meat Market. She heard the gunshots and saw a thin, black male running with something under his arm.
Fisal Abu Handeh, the co-owner of the meat market, testified that he did not remember Tyler being in his store and did not remember cashing a check the day of the homicide.
Susie Amerson testified that she saw two men running: one tall and thin and one short and heavy. Ms. Amerson testified that the shorter male came from around the back of the van and that the taller male had something in his hands. Ms. Amerson testified that the tall man ran away first.
Tyler also testified at both trials. During the second trial, Tyler testified that he and Head planned to cash a welfare check at the Meat Market. Tyler said that he went into the store while Head stayed outside. Tyler said he learned that Mr. Leach was shot and went back to Gillis's house where he claims Head said he shot Mr. Leach. Tyler said he forgot to return the welfare check so he cashed it on Monday and gave $10. of the check to Head.
Tyler's testimony at his second trial was inconsistent with both his prior testimony and, admittedly, his statement to this Board earlier this month. Tyler told this Board that he and Head intended to rob the Meat Market. Tyler said that they plan was that he was going to go in and ask to cash the check and that he would wave Head in when the safe was opened. Tyler said he was known as the guy that cashed fake checks and that he had set up similar robberies in the past. He said that the check casher was not there so he never waved Head in. He claimed Head committed the murder while he was in the store and that he ran to Scott Hill's house. Tyler then claimed that he got Head a change of clothes and did not see him again until trial.
While Tyler claims Head's changing stories mean he is innocent, he offers no explanation for his own evolving version of events. What is clear is that Tyler's conviction for murdering Mr. Leach is corroborated by multiple witnesses and has withstood decades of judicial scrutiny. He is not innocent and is not deserving of an opportunity for parole.
CLAIM OF PROSECUTORIAL MISCONDUCT
Tyler next claims he should be granted clemency because of prosecutorial misconduct. Tyler argues that the trial prosecutor failed to disclose two police reports. One which indicated that Mr. Leach was found in possession of money and a bullet and another which included a statement by Jeffrey Gillis in which he claimed that Head was the shooter.
Tyler has repeatedly alleged some form of prosecutorial misconduct. All of those claims were rejected as a basis for relief by every court which reviewed them. Tyler's claims here are similarly baseless. With respect to his first claim, the State presented evidence that Mr. Leach came home at lunch and left some money at home. The references to the record that Tyler relies upon to argue the importance of this information simply do not support his argument. The fact that Mr. Leach was located with money does not lessen Tyler's guilt in this manner, it only means that he did not fully realize his goal. With respect to the Jeffrey Gillis claim, Tyler's counsel was aware at trial that Head made differing statements. This is not a new fact. Head's statements were the basis of multiple court filings, all of which Tyler lost.
Tyler's attempts to argue innocence of the crime with allegations of prosecutorial misconduct do not change the operative facts upon which he was found guilty; nor do those allegations change the fact that upon review in State and federal court, no court has disturbed the verdict that Tyler killed Mr. Leach
CLAIM OF ATTORNEY MISCONDUCT
Tyler also argues that there was a business relationship between the trial prosecutor, two of defense counsel, and one of the judges that ruled on Tyler's motion to reopen his appeal. This argument smacks of a conspiracy theory underserving of consideration. The record and repeated court decisions clearly show that Tyler was zealously represented from his second trial through all of his appellate litigation. Mr. Laurie, one of the attorneys Tyler complains of, actually secured the reversal of Tyler's first conviction despite any claimed conflict of interest. It also appears that Tyler requested that Laurie continue to represent him at the second trial. Strangely, Tyler references these alleged conflicts but never felt strongly enough to pursue this matter in the appropriate method.
CLAIMS OF IMPROPRIETY AS TO THE JURY INSTRUCTION
Tyler concludes by arguing that the trial court improperly instructed the jury about deliberation when it was apparently divided on whether or not to impose the death sentence. In reviewing this claim, the Ohio Supreme Court found that while the instruction was erroneous, it was not coercive. State v. Tyler, 50 Ohio St.3d 24, 553 N.E.2d 576 (1990.) The court found that the instruction, directed at all jurors, reduced the pressure to reach a verdict. After losing this argument in the Supreme Court of Ohio, Tyler unsuccessfully raised this issue in federal court. See Tyler v. Anderson —F.3d—, 2014 WL 1465040 (C.A. 6,
Ohio.) Just as the courts have rejected Tyler's legal arguments, this Board should do the same and deny Tyler's request for a parole recommendation.
CONCLUSION AND RECOMMENDATION
Without diminishing the severity of this offense, and with the goal of providing a just and appropriate punishment, after accounting for all factors in this case, to include the facts of the crime and subsequent developments, the Cuyahoga County Prosecutor asks this Board to recommend that the Governor commute Tyler's sentence from death to life without the possibility of parole. The Cuyahoga County Prosecutor firmly opposes any commutation that would lead to Tyler's release.
Cassandra Vaught testified in the first trial but she was unable to be located for the retrial and the trial court refused to admit her prior testimony.