STATEMENT OF THE CASE: Arthur Tyler Case

On March 14, 1983, the police brought Leroy Head and two of his friends, Anthony Gillis and Jeffrey Gillis, to the police station to question them concerning an unrelated homicide.  The police believed that these individuals were witnesses, as opposed to suspects, to an unrelated murder. 

During the interviews, the subject of the Leach murder came up.  Anthony and Jeffrey Gillis informed the officers that Head shot Sander Leach, “HEAD came to there [sic] house right after the shooting and told them that he just kill [sic] the old man who sold produce on East 66th.” The police sought to talk with Head about the crime but he refused until he could speak with his mother, Barbara Head. 

The police officers transported her to the police station.  After meeting with her son “for approx [sic] 3 minutes she came out of the room crying and saying that he did it.” Head then confessed to police that while Tyler was outside Sander Leach’s van and unaware of what was taking place inside the van, Head and Leach struggled during which Head shot Mr. Leach.  Head reduced his oral confession to writing “at the first shot I starting [sic] falling over towards him, and that’s when the gun went off a second time”. On March 14, 1983, Detectives Svekric and Kunz took a written statement from Anthony Gillis.

In response to the question whether he knew who shot Sander Leach, Gillis responded “Yes, Leroy Head.”

On March 16, 1983 Tyler voluntarily appeared at the Cuyahoga County Sheriff’s Department.  When interviewed, he said that he was outside Mr. Leach’s van when Head shot the decedent.

On March 21, 1983, a Cuyahoga County Grand Jury indicted Head and Tyler for the Aggravated Murder and Aggravated Robbery of Sander Leach.  The Aggravated Murder charges as to both individuals contained two specifications; a firearm specification pursuant to R.C. 2929.71(A)(2) and death penalty specification pursuant to R.C. 2929.04(A)(7).  Id. 

The single death penalty specification as to each count alleged that Head and Tyler each committed the murder during the commission of the robbery and each individual was the principal offender in the commission of the offense. 

 Id.  Under Ohio law there could only be one individual, the person who fired the fatal shot into Sander Leach, eligible for the death sentence.                       

On March 24, 1983, Head again confessed to being the killer.  During an interview with Arthur Provenzano, an investigator for Arthur Tyler’s lawyer, Head wrote out a statement in which he admitted to having fatally shot Sander Leach while Tyler was outside the van. “I grabbed for it [the gun] and it went off – the old man fell back and I fell on top of him – the gun went off again.”                         

On May 18, 1983, the same Detective again met with Anthony Gillis.  He confirmed for the police that Head asked him to dispose of the pistol that he (Head) used to shoot Leach. “So I asked Leroy did he kill him, and he said I think so.”                        

Then on May 27, 1983, during a meeting involving Head and his lawyer, Stuart Saferin, and Assistant County Prosecutor Gerstenslager, Head changed his story and said that Arthur Tyler shot Sander Leach.                         

Within a week he pled guilty to the Aggravated Murder and Aggravated Robbery of Sander Leach.  The Aggravated Murder charge included a firearm specification, but not a capital specification, thereby removing all risk for Head that he would be sentenced to death.                       

On July 29, 1983, a jury, based primarily on the testimony of Head, found Tyler guilty of capital murder.  On August 9, 1983, the same jury returned a recommendation that Tyler be sentenced to death.                       

On August 31, 1983, the trial judge sentenced Tyler to death on the aggravated murder charge and to three years on the firearm specification and seven to twenty-five years on the Aggravated Robbery.  The trial court ordered that all sentences be served consecutively.                       

On the same day, the trial court also sentenced Head to twenty years to life on the Aggravated Murder charge, a flat three years on the firearm specification and seven to twenty-five years on the Aggravated Robbery with all charges to be served consecutively.                        

On December 27, 1984, the Cuyahoga County Court of Appeals reversed Tyler’s conviction because of the ineffective assistance of trial counsel.   State v. Tyler (December 27, 1984), Cuyahoga App. No. 47533.                       

The Cuyahoga County Prosecutor’s Office retried Arthur Tyler in 1985.  The prosecution called Head as a witness.  Initially he claimed that he could not remember the events surrounding the shooting.  The trial judge adjourned the case over night.  The next morning, Head repeated his testimony from the first trial.                          On November 18, 1985, the jury found Tyler guilty of capital murder and the trial court again sentenced him to death.                         

On December 24, 1985, Head filed a motion with the trial court to dismiss the firearm specification, to which he had previously pled guilty.  The state subsequently concurred in the motion and the trial court vacated his plea as to the specification and dismissed the charge.  Clearly this was “payment” for his recalling the second version of the murder.                         

On January 16, 1986, the trial court sentenced Tyler to death as to the Aggravated Murder and an additional three (3) years on the gun specification.  The trial court sentenced Tyler to seven (7) years to twenty-five (25) years as to the Aggravated Robbery, with all counts to be served consecutively.                       

On April 27, 1986, Head stated, in his own handwriting, that he alone had shot Mr. Leach “I shot and killed him” and that Tyler was unaware the crime was taking place.                         

On May 16, 1989, Head told attorneys Joanne Bour-Stokes and Richard Vickers that he had lied when he testified at Tyler’s trial and that he (Head) killed Leach.  Head said the prosecutors threatened him at Tyler’s second trial that if he did not testify he would be tried for capital murder or sent to a less secure prison, with the prosecutor making sure the other inmates knew he was a snitch.                         

On July 27, 1991, Head confirmed in an affidavit that he, not Arthur Tyler, killed Leach. “Leach pulled a gun out and he was shot while we scuffled.”                        

On April 25, 1991, Luther Aldridge, a half-brother of Anthony Gillis, stated in an affidavit that he had gone to Gillis’s house around 6:00 p.m. on the day of the homicide.  Head was present and told Aldridge “that he had robbed and shot the vendor.”  Aldridge also stated that later in prison he encountered Head and asked him why he was letting Tyler remain on Death Row.  Head told Aldridge he was going to confess to the crime.                         

After moving through the State appellate and post-conviction procedures, a federal habeas corpus proceeding was brought.  On April 5, 2000, District Court Judge David A. Katz granted leave for counsel for Tyler to take the deposition of Head.  On June 21, 2000, Tyler deposed Head, who refused to answer any questions, citing his Fifth Amendment privilege against self-incrimination. Tyler’s counsel asked that a lawyer be appointed for Head and the Court agreed.                       

On September 7, 2000, Tyler again attempted to take the deposition of Head at the Marion Correctional Institution after Head and his new lawyer had a chance to confer.  Head confirmed his name but asserted his Fifth Amendment privilege as to all questions dealing with Arthur Tyler, the shooting of Sander Leach, and all related events before and after the shooting.                       

On September 19, 2000, Tyler filed a Motion to Compel the testimony of Head. Ohio Attorney General, Betty Montgomery, refused Judge Katz’s request to recommend to the Cuyahoga County Prosecutor that it grant immunity to Head. The Cuyahoga County Prosecutor also refused to extend immunity to Head.                       

On March 2, 2001, Judge Katz denied Tyler’s Motion to Compel, citing his lack of jurisdiction to compel a state prosecutor to grant immunity and the unwillingness of the Ohio Attorney General and Cuyahoga County Prosecutor’s Office to offer immunity to Head.

  ARGUMENT

                         Mr. Tyler seeks a writ of mandamus compelling Respondents Jim Petro and William Mason to grant immunity to Leroy Head so that he may be deposed by Mr. Tyler.  Mr. Tyler’s clear legal right to this relief resides in the Eighth Amendment to the United States Constitution.In order to be entitled to a writ of mandamus, the Relator must establish;

(1)Relator possesses a clear legal right to the relief prayed for, (2) Respondent is under a clear legal duty to perform the requested act, and (3) Relator has no plain and adequate remedy at law.”  State ex rel. Carter v. Wilkinson, 70 Ohio St.3d 65 (1994); State ex rel. Westchester Estates, Inc. v. Bacon , 61 Ohio St.2d 42 (1980).                       

Mr. Tyler’s legal right to the writ is rooted in the constitutional restrictions placed on the death penalty.  The United States Supreme Court has made it clear that the Eighth Amendment imposes a strict framework on the imposition of the death penalty that is not present for other criminal punishments.  Woodson v. North Carolina, 428 U.S. 280 (1976); see also Gregg v. Georgia, 428 U.S. 153 (1976).  This is as it should be because the death penalty is qualitatively different from a sentence of imprisonment.  “Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976).  It is because of this fundamental difference that there is “a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”  Id.                        

 For this requirement of greater reliability to be met, the full range of relevant information must be considered so that there can be no doubt that the penalty is appropriate.  To that end, the Supreme Court has said, “We believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of … the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304 (1976); see also California v. Brown, 479 U.S. 538 (1987); see also Eddings v. Oklahoma, 455 U.S. 104 (1982) (holding that the “capital defendant generally must be allowed to introduce any relevant mitigating evidence regarding his character or record and any of the circumstances of the offense”).                       

A defendant’s right to have the full range of relevant information considered cannot exist in isolation.  It is a constitutional protection without meaning or substance if the court does not take reasonable steps ensuring that the defendant has access to information that is crucial to facts surrounding his conviction.                         

In the present situation, Mr. Tyler seeks to offer information that is not only relevant but crucial to the circumstances surrounding his conviction and sentence.  Mr. Tyler’s conviction was based upon Mr. Head’s testimony that Mr. Tyler committed the murder.  However, Mr. Head’s testimony on the critical events has been inconsistent in the extreme, primarily when it benefited Mr. Head.             

On more than five occasions, Mr. Head stated that he had in fact committed the murder that Mr. Tyler was eventually convicted of committing.  During Mr. Tyler’s second trial Mr. Head initially testified that he could not remember the events surrounding the murder.  After the trial Mr. Head stated that he had lied at Mr. Tyler’s trial when he testified that Mr. Tyler committed the murder, and he reiterated that he (Head) had killed the victim. Furthermore, Mr. Head stated that prosecutors threatened him at Tyler’s second trial.  According to Head, the prosecutors told him that if he did not testify he would be tried for capital murder or sent to a less secure prison, with the prosecutor making sure the other inmates knew he was a snitch.  Finally, on at least five occasions, acquaintances of Mr. Head, including his own mother, said that Mr. Head had told them he shot and killed the victim.              Respondent does not, and cannot, argue that Mr. Tyler lacks the legal right to have the court consider crucial information such as what would have been learned in a deposition of Mr. Head.  The controlling law is simply too clear.  Rather, Respondent attempts a rear-guard action by denying him access to the source of the information most critical to his conviction.  This is patently improper.                       

The refusal to take the utterly reasonable step of granting Mr. Head immunity so that he may be deposed has the effect of eviscerating Mr. Tyler’s right to a full consideration of relevant evidence.  More, Mr. Tyler’s conviction was based upon Mr. Head’s testimony, thus making Mr. Head’s knowledge not only relevant but crucial to the proper understanding of the circumstances surrounding Mr. Tyler’s conviction and sentence.  Most importantly, the Judges of the Courts of Common Pleas in Ohio possess the inherent power to do all things necessary to the administration of justice.  Slabinski v. Servisteel Holding Co. (Lorain Cty. 1980), 33 Ohio App. 3d 345.  What greater need could there be for a judge to ensure that justice was administered than to require the Attorney General and the Cuyahoga County Prosecutor to unseal the lips of the witness they have used to obtain a death sentence they now seek to support?                   

Respondent’s legal duty to grant immunity to Mr. Head stems from two sources.  First, the primary duty of all prosecutors is to seek justice, not merely to convict.  Polo Fashions, Inc. v. Stock Buyers Intern., Inc., 760 F.2d 698 (6th Cir. 1985); See also ABA Code of Professional Responsibility, Canon 7-13; See also, Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).  In the case at bar, justice requires that the penalty imposed is correct and just.  Respondents’ dogged refusal to allow access to Mr. Head can only be explained by their singular focus on maintaining the conviction rather than justice.  A party concerned with justice would ensure that all relevant information was considered before making the irreversible decision of executing a human being, while a party simply trying to “win” would close its eyes to all evidence contrary to its position.                          

Because Mr. Head was a reluctant witness, the State utilized all of its leverage over him to elicit the testimony that it sought, including the patently improper threat that he would be transferred to a less secure prison and the other prisoners would be told that he was a “snitch” if Mr. Head did not testify as the State desired.  Now, however, the State is suddenly unwilling to let the Courts learn the truth of the matter.  Rather than play its rightful role as the arbiter of justice and fairness, the State has become a participant in a contest where it seeks to win at all costs.  It extracted the testimony it needed from Mr. Head, and now wants to make sure he is never heard from again.  Respondents’ behavior cannot be characterized by anything other than purposefully and stubbornly closing its eyes rather than pursuing justice.                          

In its pleadings in the Trial Court seeking dismissal of this Petition, the State made the following statement:“It is self-evident that the risk of future prosecution for testimony that is contradictory to that previously given is a sufficient basis for one’s refusal to testify.  However, a witness who is granted immunity continues to be subject to prosecution for perjury, tampering with evidence, or falsification.  R.C. 2945.44(C); State v. Asher (1996), 112 Ohio Appt. 3d 646, 679 N.E. 2d 1147.”  Motion to Dismiss filed by the State of Ohio, pg. 5.                        

The State thus clearly recognizes the threat to its conviction from Head’s testimony.  If he were going to testify as he had previously in the trials, there would be no basis for a Fifth Amendment claim.  Respondents realize that different testimony will be forthcoming.           

Another source of Respondent’s duty to grant immunity, as noted previously, is the Eighth Amendment.   Because the penalty of death is qualitatively different, the Constitution requires that states go the “extra mile” to insure that persons sentenced to death have every reasonable opportunity to present facts supporting a sentence of less than death.  Gardner v. Florida, 430 U.S. 349, 355-58 (1977); Locket v. Florida, 438 U.S. 586, 597-99 (1978); McGautha v. California, 402 U.S. 183 (1971).  Procedures that otherwise comport with the Fourteenth Amendment do not satisfy the Eighth Amendment.  Beck v. Alabama, 477 U.S. 625 (1980).           

The need for increased reliability does not stop after a defendant is sentenced to death. Appellate courts in capital cases are required to conduct extraordinary reviews not required in non-capital cases.  R.C. 2929.05.  Death sentenced individuals pursuing post-conviction relief have a special right to appointed counsel.  R.C. 2953.21(I)  In the context of federal habeas proceedings, death sentenced individuals have the right to the appointment of two qualified attorneys while non death sentenced individuals have no such right. 21 U.S.C. 848(q)(B), McFarland v. Scott, 512 U.S. 849, 854 (1994). A habeas petitioner sentenced to death can qualify for an evidentiary hearing, when a non-death sentenced individual would not qualify. Siripongs v. Calderon, 35 F.3d 1308, 1310 (9th Cir. 1994). A capital habeas petitioner “should be presented every opportunity possible . . . to present facts relevant to his constitutional claims.”  Wilson v. Butler, 825 F.2d 879, 883 (5th Cir. 1987).  The Respondent should be required to grant immunity. 

To allow his execution to proceed would not be merely cruel and unusual but in fact freakish.   

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