Post by SoulTrainOz on Jul 10, 2006 23:39:16 GMT -5
As in other 1980s cases, questions remain but execution looms
On a winter's evening 23 years ago, at the corner of East 66th Street and Zoeter Avenue in Cleveland, somebody pumped two .38-caliber bullets into the chest of 74-year-old Sanders Leach, killing the produce vendor instantly.
Leroy Head, then 18, confessed almost immediately.
Within minutes, he told two friends that he shot the fruit and vegetable man during a robbery, saying the old man forced his hand by trying to pull a gun.
Head told his mother he did it, too. She urged him to come clean.
So he told police he did it as well. And he signed a confession.
Cuyahoga County prosecutors, at the time among the most aggressive in Ohio in pursuing the state's newly reinstated option for capital punishment, sought the death penalty.
And they got it -- adding to what was becoming a bumper crop of death cases from the county during the 1980s.
But it was not Head who was condemned to die.
Just before trial, Head struck a deal with prosecutors and fingered his co- defendant, Arthur Tyler, instead.
And so, in a case that reveals how arbitrary a death sentence in Ohio can be, it's Tyler -- not Head -- who faces execution, possibly this year.
The case also illustrates what attorneys and judges alike assert: that the bar for winning a death sentence was much lower 2 decades ago -- especially in Cuyahoga County. And that challenges the legitimacy of basing executions on that standard today.
Evidence leaves little doubt that Tyler should be in prison. But whether he belongs on death row is another matter.
There was no indication that Leach's 1983 murder was pre-meditated. So, under Ohio law, only the "principal offender" - the triggerman - could be executed.
But police found no gun or fingerprints, and no eyewitnesses who could sort out who actually pulled the trigger.
Prosecutors argued that Head's accusation of Tyler was more credible than his earlier confessions. Head was allowed to plead to a lesser charge.
He could be paroled as early as next year, even though he has acknowledged several times since that he was the triggerman after all.
Jurors recommended death for Tyler.
But they never heard about the bullet and the cash that police found in Leach's clothing within hours of his death. Defense attorneys say this evidence could have helped Tyler, but it was never shared with them. And it was never aired in court.
Death-penalty cases reached peak in 1980s
Allegations of withheld evidence, even in capital cases, have cropped up time and again from the 1980s - the heyday of death-penalty prosecutions in Cuyahoga County.
From 1981, when capital punishment was reinstated in Ohio, until 1991, when John T. Corrigan retired as prosecutor, Cuyahoga County was among the state's most aggressive pursuers of the death penalty. And prosecutors were far more likely to get it during Corrigan's tenure than at any time since.
Roughly 70 % of all the death sentences that have been issued from Cuyahoga County since 1981 were already on the books or in the works by the time Corrigan retired in 1991. (He died in 2003.)
Today, 1 out of every 8 inmates on Ohio's death row got there by way of Cuyahoga County during the Corrigan years.
But times have changed and, along with them, the nature of capital prosecutions.
Some say that discovery - the mandatory pretrial disclosure of evidence to the defense - was more arbitrary and haphazard during the Corrigan years.
Sometimes, critics say, prosecutors wouldn't share important police reports at all. Sometimes, they read them aloud and made defense attorneys take notes.
And records show that prosecutors would sometimes disclose only parts of the reports, skipping over crucial details that might raise doubts about a defendant's guilt.
Some argue that these practices haven't changed much at all. But the stakes have only grown.
Executions are now nearing in several 1980s-era cases that have been clouded by claims of prosecutors hiding evidence. In some, the proof was so thin that even some advocates of capital punishment say it would be unlikely to win a death sentence today.
Citing "limited evidence" of guilt and a Cuyahoga County prosecutor's withholding of pivotal evidence, a federal judge early this year ordered a new trial for death-row inmate Joe D'Ambrosio.
Those same transgressions likely tainted both trials of Thomas Keenan, who was twice sent to death row for the same 1988 murder as D'Ambrosio - based on the same evidence.
Also, a federal appeals court has instructed a lower court to determine whether the same Cuyahoga County prosecutor in those cases improperly withheld evidence and deliberately misled the trial court in 1987 to win a death sentence against Gregory Lott.
Evidence not disclosed in cases from 1980s
Questions also have been raised about hidden evidence in the 1984 trial of Anthony Apanovitch who, according to his appellate attorney, may be the only inmate on Ohio's death row to be convicted entirely on circumstantial evidence.
What was marginal evidence at the beginning got even weaker years after Apanovitch's conviction, when information previously withheld by Cuyahoga County prosecutors was forced into the open by a court order.
Even before those disclosures, three Ohio Supreme Court justices had misgivings about the paucity of evidence for a capital case and strong objections to the sentence of death.
Justice Herbert Brown and two colleagues argued unsuccessfully 19 years ago that "there is a substantial possibility" that Apanovitch may not even be guilty, much less a suitable candidate for execution.
"Can anyone quibble with the idea that lack of certainty as to a
defendant's guilt . . . should be a consideration in deciding whether the death penalty is appropriate?" Brown wrote.
Similar concerns - including questions about thin evidence and claims that prosecutors hid information that undermined their case - have also been raised in the case of John Spirko, convicted in Van Wert County for the 1982 murder of a rural postmaster. He is scheduled to die Nov. 29.
Death sentences drop sharply in county, state
Death-penalty prosecutions were much flimsier in the 1980s than they are today, said longtime defense attorney David Doughton, and for a combination of reasons.
"Between prosecutors being aggressive and using [the death penalty] as a political tool and us not knowing the law, it was a disaster for criminal defendants," Doughton said.
"It's not as much the case now as then," he said. "Now, only the worst of the worst get it."
Death sentences have fallen off dramatically in Ohio in recent years, according to state data, and even more so in Cuyahoga County - from an average of 3.2 per year from 1982 through 1990 to less than one per year since 1999.
And that's not simply because aggravated murder convictions are down by about 30 % per year.
Under Corrigan, one out of every seven aggravated murder convictions in Cuyahoga County resulted in a death sentence. Under Prosecutor Bill Mason, it has been one out of 25.
Even a death-penalty proponent like Cuyahoga County Common Pleas Judge Timothy J. McGinty says the standards for a death sentence have tightened considerably since the 1980s, when he was one of Corrigan's top prosecutors. And that, he said, might be a good thing.
McGinty bemoaned the "remarkable assault on the death penalty with the 2-decade appeals process." And he criticized anti-death-penalty appellate judges who are willing, he says, to overturn convictions on a "hyper technicality."
But, McGinty added, "The scrutiny is good. The death penalty should be reserved for the most heinous crimes with the most overwhelming evidence."
The judge conceded the system is much more selective now in death cases, but noted that it's jurors, not prosecutors, who have changed.
The numbers support that point.
State records show that Cuyahoga County prosecutors under Mason have obtained death-penalty indictments in slightly more than a quarter of all homicides in the county, about the same as under Corrigan.
But a homicide then was more than four times more likely to produce a death sentence than a homicide today.
Jurors "are more cautious now," McGinty said. "Now, they want overwhelming evidence."
He understands the wariness. "If it's not a clear-cut case, don't fry 'em," he said. "I have no trouble locking them up forever."
Truth often buried when deals are made
Some of the disputed cases from the 1980s - the D'Ambrosio and Keenan cases in particular - were among the toughest to try, McGinty said, because the prosecutor had to rely on informants.
"Informants are rats," he said.
A common problem with such cases is that the first guy to cut a deal would always claim he was just the lookout, while saying the other guy pulled the trigger.
"You're never really sure on that type of case," McGinty said.
But Arthur Tyler's case fits that profile exactly, which raises a
question: Assuming that somebody - the triggerman, under Ohio law - deserves to die for shooting Sanders Leach, does it matter whether it's Head or Tyler?
Both were almost certainly guilty of aggravated murder. Evidence placed both at the scene and had both planning to rob Leach. But who actually shot him?
On at least three separate occasions, Head said it was him, but then changed his story when prosecutors offered him a deal to avoid execution.
He was only the lookout, Head assured them on the eve of Tyler's trial. It was Tyler who pulled the trigger, and Tyler who rummaged through the dead man's pockets before fleeing.
As it happened, Tyler was actually convicted twice - by two separate juries - and sentenced to death both times.
(His first conviction was voided because of incompetence by his first lawyer, who referred to Tyler as a "pimp" in the jury's presence and argued against execution for his 23-year-old client by saying the victim was an "old codger" who was likely to die soon anyway.)
Prosecutor William Gerstenslager argued that Head's trial testimony against Tyler was credible because Head provided verifiable details about the lead-up to the crime.
But nobody could offer much help with the critical question: Who actually pulled the trigger?
Tyler and Head were the only ones at the scene. Only they know which of Head's stories is true: his confessions or his trial testimony.
That's where the unheard evidence might have mattered.
In his original confession, Head told authorities that Leach pulled a gun during the robbery and was shot twice as he and Head struggled over the weapon.
Head said he left the gun in Leach's van when he fled. Police said no gun was found there, but that's hardly definitive: Testimony revealed that at least two people from the neighborhood were in and out of the van before police arrived. One actually moved the body. So, there's no telling whether the shooter left a gun or not.
Police also said that Leach's wife told them he never took a gun to work. So, the prosecution argued, Head's confession had to be a fabrication.
But records show that Mrs. Leach told defense investigators the opposite - that her husband usually did carry a gun with him.
And according to apparently undisclosed portions of a police report, detectives found an unspent .38-caliber bullet in Leach's pocket - the same caliber as the gun that killed him.
Key evidence in case not shared with defense
Dan Ryan, a defense attorney in Tyler's second trial, said last month that he was never told about the bullet, which could have been used to support Head's original confession.
"Why would he [Leach] have a bullet if he didn't have a gun to put it in?" Ryan said.
Perhaps even more significant is the money.
In his testimony against Tyler, Head said that he had acted as lookout for the robbery, that he heard shots fired, looked inside Leach's van and saw Tyler going through the dead man's pockets.
But what neither Ryan nor the jury knew is that police found $154 in cash and food stamps as they went through Leach's clothing at the coroner's office.
That evidence could have supported a scenario - similar to Head's original confession - in which the would-be robber was so startled by Leach pulling a gun and the shooting that followed that he didn't stick around to finish the job.
But it also undermines a key feature of Head's testimony.
"He had to be lying about Tyler going through his pockets," Ryan said.
"There is no way, when you've got a guy who's been accused of robbery, that the victim still has money in his pockets."
Ryan - himself a former prosecutor - accused Gerstenslager of not
following the rules requiring disclosure of evidence.
Gerstenslager said he can't remember the evidence after all this time, but that his policy was always to disclose everything in his file.
Former County Prosecutor Corrigan wouldn't allow his prosecutors to open their files to defense lawyers, Gerstenslager said, "but we read them the files. I did, anyway. We told them everything we knew."
A trial transcript suggests, however, that Gerstenslager may have skipped some things.
In response to a question about disclosure of evidence, Gerstenslager assured the trial judge that he showed or read a part of the original police report to Ryan a few weeks before Tyler's trial - specifically, pages 6 and 7.
The information about the bullet and the money was in that same report. But it was on page one.
Death penalty brings out 'freakish inconsistency'
On several occasions since Tyler was sentenced to die, largely on Head's say-so, Head has reverted to his original admission that he was the triggerman.
But now, despite a request by a federal judge, prosecutors are no longer interested.
In a 1989 interview with two public defenders, records show, Head admitted that he was the shooter but lied about Tyler because prosecutors threatened him with a death sentence. Two years later, in a sworn affidavit, Head essentially repeated his original confession to police.
Tyler's appellate lawyers have been trying for years to get Head to say as much in court.
Head has responded by taking the Fifth. (He has been advised by attorneys that he could be re-charged with capital murder if he repudiates his trial testimony.)
The only apparent solution would be to offer him immunity from further prosecution, but U.S. District Judge David Katz noted that only a prosecutor can do that.
So, Katz asked the Ohio attorney general's office to recommend the immunity option to local prosecutors.
The attorney general's office declined.
And Cuyahoga County Prosecutor Mason's office has said it has no intention of making any such offer.
It's the kind of "freakish inconsistency" that the death penalty brings out of the criminal justice system, said Tyler's appellate attorney, Richard Kerger.
The "desire for retribution" is so strong, he said, that even with added safeguards built in, problems with evidence and other apparent anomalies are tolerated in capital cases that wouldn't be allowed even in a civil suit over money.
Kerger has asked Cuyahoga County Common Pleas Judge Janet Burnside to order Mason to grant immunity to Tyler - to prevent the wrong man from being executed. The request is pending.
But Kerger remains baffled that, even with a man's life on the line, what he calls a "fundamental unfairness" has been allowed to stand.
The state is being allowed to use the threat of a death sentence "to pick and choose the testimony it wants," Kerger said, first by encouraging a witness to testify and then by "effectively sealing his lips."
Meanwhile, it's saying to Tyler: "You give up your life to the state."
(source: Cleveland Plain Dealer)
On a winter's evening 23 years ago, at the corner of East 66th Street and Zoeter Avenue in Cleveland, somebody pumped two .38-caliber bullets into the chest of 74-year-old Sanders Leach, killing the produce vendor instantly.
Leroy Head, then 18, confessed almost immediately.
Within minutes, he told two friends that he shot the fruit and vegetable man during a robbery, saying the old man forced his hand by trying to pull a gun.
Head told his mother he did it, too. She urged him to come clean.
So he told police he did it as well. And he signed a confession.
Cuyahoga County prosecutors, at the time among the most aggressive in Ohio in pursuing the state's newly reinstated option for capital punishment, sought the death penalty.
And they got it -- adding to what was becoming a bumper crop of death cases from the county during the 1980s.
But it was not Head who was condemned to die.
Just before trial, Head struck a deal with prosecutors and fingered his co- defendant, Arthur Tyler, instead.
And so, in a case that reveals how arbitrary a death sentence in Ohio can be, it's Tyler -- not Head -- who faces execution, possibly this year.
The case also illustrates what attorneys and judges alike assert: that the bar for winning a death sentence was much lower 2 decades ago -- especially in Cuyahoga County. And that challenges the legitimacy of basing executions on that standard today.
Evidence leaves little doubt that Tyler should be in prison. But whether he belongs on death row is another matter.
There was no indication that Leach's 1983 murder was pre-meditated. So, under Ohio law, only the "principal offender" - the triggerman - could be executed.
But police found no gun or fingerprints, and no eyewitnesses who could sort out who actually pulled the trigger.
Prosecutors argued that Head's accusation of Tyler was more credible than his earlier confessions. Head was allowed to plead to a lesser charge.
He could be paroled as early as next year, even though he has acknowledged several times since that he was the triggerman after all.
Jurors recommended death for Tyler.
But they never heard about the bullet and the cash that police found in Leach's clothing within hours of his death. Defense attorneys say this evidence could have helped Tyler, but it was never shared with them. And it was never aired in court.
Death-penalty cases reached peak in 1980s
Allegations of withheld evidence, even in capital cases, have cropped up time and again from the 1980s - the heyday of death-penalty prosecutions in Cuyahoga County.
From 1981, when capital punishment was reinstated in Ohio, until 1991, when John T. Corrigan retired as prosecutor, Cuyahoga County was among the state's most aggressive pursuers of the death penalty. And prosecutors were far more likely to get it during Corrigan's tenure than at any time since.
Roughly 70 % of all the death sentences that have been issued from Cuyahoga County since 1981 were already on the books or in the works by the time Corrigan retired in 1991. (He died in 2003.)
Today, 1 out of every 8 inmates on Ohio's death row got there by way of Cuyahoga County during the Corrigan years.
But times have changed and, along with them, the nature of capital prosecutions.
Some say that discovery - the mandatory pretrial disclosure of evidence to the defense - was more arbitrary and haphazard during the Corrigan years.
Sometimes, critics say, prosecutors wouldn't share important police reports at all. Sometimes, they read them aloud and made defense attorneys take notes.
And records show that prosecutors would sometimes disclose only parts of the reports, skipping over crucial details that might raise doubts about a defendant's guilt.
Some argue that these practices haven't changed much at all. But the stakes have only grown.
Executions are now nearing in several 1980s-era cases that have been clouded by claims of prosecutors hiding evidence. In some, the proof was so thin that even some advocates of capital punishment say it would be unlikely to win a death sentence today.
Citing "limited evidence" of guilt and a Cuyahoga County prosecutor's withholding of pivotal evidence, a federal judge early this year ordered a new trial for death-row inmate Joe D'Ambrosio.
Those same transgressions likely tainted both trials of Thomas Keenan, who was twice sent to death row for the same 1988 murder as D'Ambrosio - based on the same evidence.
Also, a federal appeals court has instructed a lower court to determine whether the same Cuyahoga County prosecutor in those cases improperly withheld evidence and deliberately misled the trial court in 1987 to win a death sentence against Gregory Lott.
Evidence not disclosed in cases from 1980s
Questions also have been raised about hidden evidence in the 1984 trial of Anthony Apanovitch who, according to his appellate attorney, may be the only inmate on Ohio's death row to be convicted entirely on circumstantial evidence.
What was marginal evidence at the beginning got even weaker years after Apanovitch's conviction, when information previously withheld by Cuyahoga County prosecutors was forced into the open by a court order.
Even before those disclosures, three Ohio Supreme Court justices had misgivings about the paucity of evidence for a capital case and strong objections to the sentence of death.
Justice Herbert Brown and two colleagues argued unsuccessfully 19 years ago that "there is a substantial possibility" that Apanovitch may not even be guilty, much less a suitable candidate for execution.
"Can anyone quibble with the idea that lack of certainty as to a
defendant's guilt . . . should be a consideration in deciding whether the death penalty is appropriate?" Brown wrote.
Similar concerns - including questions about thin evidence and claims that prosecutors hid information that undermined their case - have also been raised in the case of John Spirko, convicted in Van Wert County for the 1982 murder of a rural postmaster. He is scheduled to die Nov. 29.
Death sentences drop sharply in county, state
Death-penalty prosecutions were much flimsier in the 1980s than they are today, said longtime defense attorney David Doughton, and for a combination of reasons.
"Between prosecutors being aggressive and using [the death penalty] as a political tool and us not knowing the law, it was a disaster for criminal defendants," Doughton said.
"It's not as much the case now as then," he said. "Now, only the worst of the worst get it."
Death sentences have fallen off dramatically in Ohio in recent years, according to state data, and even more so in Cuyahoga County - from an average of 3.2 per year from 1982 through 1990 to less than one per year since 1999.
And that's not simply because aggravated murder convictions are down by about 30 % per year.
Under Corrigan, one out of every seven aggravated murder convictions in Cuyahoga County resulted in a death sentence. Under Prosecutor Bill Mason, it has been one out of 25.
Even a death-penalty proponent like Cuyahoga County Common Pleas Judge Timothy J. McGinty says the standards for a death sentence have tightened considerably since the 1980s, when he was one of Corrigan's top prosecutors. And that, he said, might be a good thing.
McGinty bemoaned the "remarkable assault on the death penalty with the 2-decade appeals process." And he criticized anti-death-penalty appellate judges who are willing, he says, to overturn convictions on a "hyper technicality."
But, McGinty added, "The scrutiny is good. The death penalty should be reserved for the most heinous crimes with the most overwhelming evidence."
The judge conceded the system is much more selective now in death cases, but noted that it's jurors, not prosecutors, who have changed.
The numbers support that point.
State records show that Cuyahoga County prosecutors under Mason have obtained death-penalty indictments in slightly more than a quarter of all homicides in the county, about the same as under Corrigan.
But a homicide then was more than four times more likely to produce a death sentence than a homicide today.
Jurors "are more cautious now," McGinty said. "Now, they want overwhelming evidence."
He understands the wariness. "If it's not a clear-cut case, don't fry 'em," he said. "I have no trouble locking them up forever."
Truth often buried when deals are made
Some of the disputed cases from the 1980s - the D'Ambrosio and Keenan cases in particular - were among the toughest to try, McGinty said, because the prosecutor had to rely on informants.
"Informants are rats," he said.
A common problem with such cases is that the first guy to cut a deal would always claim he was just the lookout, while saying the other guy pulled the trigger.
"You're never really sure on that type of case," McGinty said.
But Arthur Tyler's case fits that profile exactly, which raises a
question: Assuming that somebody - the triggerman, under Ohio law - deserves to die for shooting Sanders Leach, does it matter whether it's Head or Tyler?
Both were almost certainly guilty of aggravated murder. Evidence placed both at the scene and had both planning to rob Leach. But who actually shot him?
On at least three separate occasions, Head said it was him, but then changed his story when prosecutors offered him a deal to avoid execution.
He was only the lookout, Head assured them on the eve of Tyler's trial. It was Tyler who pulled the trigger, and Tyler who rummaged through the dead man's pockets before fleeing.
As it happened, Tyler was actually convicted twice - by two separate juries - and sentenced to death both times.
(His first conviction was voided because of incompetence by his first lawyer, who referred to Tyler as a "pimp" in the jury's presence and argued against execution for his 23-year-old client by saying the victim was an "old codger" who was likely to die soon anyway.)
Prosecutor William Gerstenslager argued that Head's trial testimony against Tyler was credible because Head provided verifiable details about the lead-up to the crime.
But nobody could offer much help with the critical question: Who actually pulled the trigger?
Tyler and Head were the only ones at the scene. Only they know which of Head's stories is true: his confessions or his trial testimony.
That's where the unheard evidence might have mattered.
In his original confession, Head told authorities that Leach pulled a gun during the robbery and was shot twice as he and Head struggled over the weapon.
Head said he left the gun in Leach's van when he fled. Police said no gun was found there, but that's hardly definitive: Testimony revealed that at least two people from the neighborhood were in and out of the van before police arrived. One actually moved the body. So, there's no telling whether the shooter left a gun or not.
Police also said that Leach's wife told them he never took a gun to work. So, the prosecution argued, Head's confession had to be a fabrication.
But records show that Mrs. Leach told defense investigators the opposite - that her husband usually did carry a gun with him.
And according to apparently undisclosed portions of a police report, detectives found an unspent .38-caliber bullet in Leach's pocket - the same caliber as the gun that killed him.
Key evidence in case not shared with defense
Dan Ryan, a defense attorney in Tyler's second trial, said last month that he was never told about the bullet, which could have been used to support Head's original confession.
"Why would he [Leach] have a bullet if he didn't have a gun to put it in?" Ryan said.
Perhaps even more significant is the money.
In his testimony against Tyler, Head said that he had acted as lookout for the robbery, that he heard shots fired, looked inside Leach's van and saw Tyler going through the dead man's pockets.
But what neither Ryan nor the jury knew is that police found $154 in cash and food stamps as they went through Leach's clothing at the coroner's office.
That evidence could have supported a scenario - similar to Head's original confession - in which the would-be robber was so startled by Leach pulling a gun and the shooting that followed that he didn't stick around to finish the job.
But it also undermines a key feature of Head's testimony.
"He had to be lying about Tyler going through his pockets," Ryan said.
"There is no way, when you've got a guy who's been accused of robbery, that the victim still has money in his pockets."
Ryan - himself a former prosecutor - accused Gerstenslager of not
following the rules requiring disclosure of evidence.
Gerstenslager said he can't remember the evidence after all this time, but that his policy was always to disclose everything in his file.
Former County Prosecutor Corrigan wouldn't allow his prosecutors to open their files to defense lawyers, Gerstenslager said, "but we read them the files. I did, anyway. We told them everything we knew."
A trial transcript suggests, however, that Gerstenslager may have skipped some things.
In response to a question about disclosure of evidence, Gerstenslager assured the trial judge that he showed or read a part of the original police report to Ryan a few weeks before Tyler's trial - specifically, pages 6 and 7.
The information about the bullet and the money was in that same report. But it was on page one.
Death penalty brings out 'freakish inconsistency'
On several occasions since Tyler was sentenced to die, largely on Head's say-so, Head has reverted to his original admission that he was the triggerman.
But now, despite a request by a federal judge, prosecutors are no longer interested.
In a 1989 interview with two public defenders, records show, Head admitted that he was the shooter but lied about Tyler because prosecutors threatened him with a death sentence. Two years later, in a sworn affidavit, Head essentially repeated his original confession to police.
Tyler's appellate lawyers have been trying for years to get Head to say as much in court.
Head has responded by taking the Fifth. (He has been advised by attorneys that he could be re-charged with capital murder if he repudiates his trial testimony.)
The only apparent solution would be to offer him immunity from further prosecution, but U.S. District Judge David Katz noted that only a prosecutor can do that.
So, Katz asked the Ohio attorney general's office to recommend the immunity option to local prosecutors.
The attorney general's office declined.
And Cuyahoga County Prosecutor Mason's office has said it has no intention of making any such offer.
It's the kind of "freakish inconsistency" that the death penalty brings out of the criminal justice system, said Tyler's appellate attorney, Richard Kerger.
The "desire for retribution" is so strong, he said, that even with added safeguards built in, problems with evidence and other apparent anomalies are tolerated in capital cases that wouldn't be allowed even in a civil suit over money.
Kerger has asked Cuyahoga County Common Pleas Judge Janet Burnside to order Mason to grant immunity to Tyler - to prevent the wrong man from being executed. The request is pending.
But Kerger remains baffled that, even with a man's life on the line, what he calls a "fundamental unfairness" has been allowed to stand.
The state is being allowed to use the threat of a death sentence "to pick and choose the testimony it wants," Kerger said, first by encouraging a witness to testify and then by "effectively sealing his lips."
Meanwhile, it's saying to Tyler: "You give up your life to the state."
(source: Cleveland Plain Dealer)