COLUMBUS — When a lawyer for William T. Montgomery appears before the Ohio Parole Board on Thursday, he will not admit his client’s guilt but instead argue that the wrong man is headed for the lethal injection gurney.
The clemency hearing will take place 32 years to the day that Montgomery is believed to have killed Debra Ogle, 20, of South Toledo, during a robbery.
Montgomery, 52, faces execution on April 11 for the March 8, 1986, killing. He’s also serving a life sentence for killing Ms. Ogle’s roommate, Cynthia Tincher, 19, whom the prosecution theorized was shot because she could connect Montgomery and co-conspirator Glover Heard, Jr., to Ms. Ogle.
A clemency hearing for William T. Montgomery will take place 32 years to the date he’s accused of two murders.
Montgomery will not be in the room as the parole board hears from his lawyer, a Colorado forensics expert, the Ohio attorney general’s office, and potentially members of the victims’ families, including Ms. Ogle’s mother, Jane.
He declined to be interviewed by a board member at Chillicothe Correctional Institution, where death row is based, before the hearing.
Rather than use the clemency process to admit guilt, express remorse, and seek mercy, Montgomery’s lawyers will argue that he still deserves the new trial that a federal judge once ordered. The parole board can’t give him that new trial, but it could recommend that Gov. John Kasich grant him clemency.
The petition does not specify what type of clemency Mr. Kasich should grant. Often death row inmates suggest commutation to life in prison without parole, a sentencing option not available when Montgomery was tried.
“The main thing we want is to avoid the death penalty,” said his Cleveland attorney, Jon W. Oebker. “W.T. Montgomery has been adamant that his trial was not fair and that he is poised to be executed on a false set of facts.
“What he really wants is a new trial and a fair trial,” he said. “... He wants to get out. He’s maintained his innocence for 30 years. But the first step is we have to stop the execution.”
Lucas County Common Pleas Court Judge James Bates, who prosecuted the case, said he sent a letter to the board urging it not to recommend clemency.
“In my 45 years involved as a prosecutor and judge, this was one of the most heinous crimes I’ve ever dealt with,” he said. “If anybody deserves the death penalty ... this person is probably the worst I’ve ever dealt with.”
His wife, Lucas County Prosecutor Julia Bates, plans to attend the hearing but does not expect to testify. Judge Bates will not attend.
U.S. District Court Judge Solomon Oliver, Jr., ordered a new trial in 2007, and a three-judge panel of the Cincinnati-based U.S. 6th Circuit Court of Appeals agreed. But in 2011, the full 6th Circuit bench voted 10-5 to reverse those rulings and reinstate his convictions and sentences.
Montgomery has argued it was Heard, a childhood friend, who used Montgomery’s .380-caliber semiautomatic pistol, purchased about two weeks earlier, to shoot the two roommates.
But Heard, now 55, struck a deal with the prosecution to point the finger at Montgomery. He is serving a sentence of 15 years to life at Lebanon Correctional Institution for conspiracy and could get a parole hearing in 2021.
His lawyer points to eyewitnesses who told police they saw Ms. Ogle alive four days after she was believed to have been killed. And a Colorado forensics expert who in 2012 reviewed 26-year-old autopsy records and photos will argue Ms. Ogle could not have been dead as long as the prosecution theorized.
Together, Mr. Oebker contends, these disrupt the prosecution’s timeline and motives for both murders. Although believed to have been killed first, Ms. Ogle’s body was found in a wooded area four days after Ms. Tincher’s was found in her car. Both had been shot with the same gun.
Ms. Ogle’s abandoned car was found near Heard’s home the day after she was believed to have been murdered. Her wallet, driver’s license, and credit cards were found in his home.
It was the pretrial police report from former high school classmates of Ms. Ogle, saying they saw the then missing Ms. Ogle and waved to her in a car at her apartment complex, that triggered the federal order for a new trial.
The witnesses said she was with a white male and did not seem to be in distress. That report was not given to the defense before the trial, and the defense contends the state pressured three of the witnesses into later recanting their statements, saying they actually saw Ms. Ogle’s younger sister.
“This case contains a number of troubling elements — no independent, direct evidence of guilt; the Prosecution relied exclusively on the testimony of an accused murderer and child molester who cut a deal; withheld evidence; gross prosecutorial misconduct; and confused, tainted jurors — that taken alone are cause for concern if they resulted in a death verdict,” the clemency petition reads.
“But taken together, these elements are cause for alarm as the execution approaches,” it reads.
The petition contains affidavits from two jurors who in hindsight expressed being either confused by the case or suggested they would have recommended a different sentence if they knew about this other information at the time.
While the full 6th Circuit bench agreed that the police report had been suppressed, it said the report would not have undermined the state’s case.
It noted that the murders were committed with Montgomery’s gun, which was back in his possession after the murders.
A witness placed the gun in Montgomery’s possession that night, and his mother delivered it to police. Montgomery took police to the wooded areas where Ms. Ogle’s body was found.
The court also noted that the report that Ms. Ogle was still alive four days after the theorized murder date undermined Montgomery’s contention that Heard had killed the women using his gun.
“The murder weapon was already in custody when the [witnesses’] phone call was made,” Judge Bates said. “Heard was in custody when the phone call was made. Nobody had to change any testimony. It was the same weapon used to kill both girls. [Debra Ogle] couldn’t have been alive on that day.”
Ohioans to Stop Executions contends that if 13 of the proposed reforms sought by a task force convened by the state Supreme Court to examine Ohio’s death penalty process had been in place three decades ago, Montgomery likely wouldn’t have been sentenced to death.
“There’s too much doubt, and the state of Ohio should not carry out this execution,” organization spokesman Abe Bonowitz said. “And this guy still needs his justice. He should have his new trial. This evidence should all be in a courtroom.”
Among the proposed reforms is barring a death sentence when a case is based solely on jailhouse informant testimony and requiring prosecutors to provide to grand juries all exculpatory evidence.
Montgomery has asked the U.S. Supreme Court to hear an appeal of more recent lower court rulings that found he had waited too long to bring a motion for a new trial based on the 2012 forensics report. Mr. Oebker said another case will soon be filed before Judge Oliver in hopes of staying the execution.
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