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Published: Tuesday, 11/4/2003

Court restores killer s death penalty

BY JAMES DREW
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - The U.S. Supreme Court yesterday reversed the decision of a federal appeals court that said Gregory Esparza should not be executed in the 1983 robbery-murder of an East Toledo carryout clerk.

The seven-page, unsigned decision reinstates the death penalty for Esparza, said Douglas Cole, state solicitor in the attorney general s office.

Esparza is on death row at the state maximum-security prison in Mansfield for the murder of Melanie Gerschutz, 38, during a robbery Feb. 12, 1983, at the Island Variety Carryout. About $110 was stolen.

Last year, the U.S. 6th Circuit Court of Appeals upheld a ruling by U.S. District Judge Kathleen O Malley of Cleveland that said Esparza should not be executed. Those decisions could have led to Esparza being resentenced to life in prison with the possibility of parole after 20 years.

The appeals court said the indictment against Esparza charged him with aggravated murder, but it did not specify he was the “principal offender” in Ms. Gerschutz s murder.

That violated Esparza s constitutional right to due process and provisions designed to make capital punishment laws comply with the Eighth Amendment ban on “cruel and unusual punishment,” the appeals court said.

The federal appeals court decision also said Lucas County Common Pleas Court Judge Reno Riley, Jr., did not instruct the jury that being the principal offender would make Esparza eligible for the death sentence.

The state appealed and the U.S. Supreme Court agreed with its argument that the indictment s wording was a “harmless error,” and that the jury determined Esparza was the principal offender.

Referring to the 6th Circuit, the U.S. Supreme Court said, “A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this court is, at best, ambiguous. “

The state attorney general s office said it was rare for the U.S. Supreme Court to reinstate a death sentence.

“It is very important because if the [appeals court] decision was left uncorrected, it could have led to a lot of uncertainty and potential reversals in many of Ohio s capital cases,” said Kim Norris spokesman for state Attorney General Jim Petro.

Mr. Cole said the 6th Circuit will consider other issues that Esparza has raised in his appeals. If the state prevails, it would ask the Ohio Supreme Court to set a date for Esparza s execution by injection at the state maximum-security prison in Lucasville.

The U.S. Supreme Court ruled that Judge Riley had told the jury it must determine “whether the state has proved beyond a reasonable doubt that the offense of aggravated murder was committed while the defendant was committing aggravated robbery.”

“In light of these instructions, the jury verdict would surely have been the same had it been instructed to find as well that the respondent was a principal in the offense. After all, he was the only defendant charged in the indictment. There was no evidence presented that anyone other than [Esparza] was involved in the crime or present at the store,” the U.S. Supreme Court said.

But Esparza s attorney, Jeffrey Kelleher, disputed that statement, saying the U.S. Supreme Court based its decision on “facts that have been proven untrue.”

Audrey Gonzales, a cousin of Esparza, said she hasn t given up hope that his life would be spared. Esparza was 21 when he was convicted in 1984 of shooting the 38-year-old Ms. Gerschutz during a robbery.

“It is unfair he is being held to pay for a crime that he had not committed. Being there and doing it are two different things. It is not even justice,” Ms. Gonzales said.

Mr. Kelleher said he will ask the U.S. Supreme Court to reconsider its decision. If it does not, he said he will argue on Esparza s behalf when the case returns to the federal appeals court in Cincinnati.

At Esparza s trial, his sister and a jail inmate testified that Esparza confessed to the murder.

But Mr. Kelleher said Esparza s attorneys were not given information before his trial that the other carryout clerk, James Barailloux, had given several descriptions of the man in the ski mask he identified as Esparza at the trial. Prosecutors did not turn over evidence that suggested another man was involved in the robbery-murder, he said.

“I conclude that either they [the Supreme Court justices] are ignoring the plain facts or they did not look closely enough at this case before making this decision,” Mr. Kelleher said.


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