COLUMBUS, Ohio (AP) - A man convicted of killing a Cleveland produce vendor three decades ago should be spared the death penalty and made eligible for parole immediately, the Ohio Parole Board ruled Tuesday in a decision that honors the requests of the prisoner's lawyers and prosecutors, who all pushed for clemency.
The board cited several statements by the co-defendant of death row inmate Arthur Tyler taking responsibility for the 1983 shooting, as well as the Cuyahoga County prosecutor's position that the killing would not be prosecuted as a death penalty case today.
The board rejected the prosecutor's request to change the sentence to life without parole. A minority of the board said his sentence should be commuted to 33 years, making him eligible for parole in two years.
"Given the doubt that surrounds the evidence, commutation to life without the possibility of parole would not serve the interests of justice in this case," the board said.
Gov. John Kasich declined through a spokesman to comment. Tyler, 54, is scheduled to die May 28 for the killing of Sander Leach during a robbery. Leach's relatives oppose clemency for Tyler.
Tyler's lawyers welcomed the news, and said they "remain sincere in our belief that Mr. Tyler has served in excess of 30 years for a homicide he did not commit."
On Monday, the state announced it would increase the dosage of its two-drug lethal injection combination, while standing by the 26-minute execution of Dennis McGuire on Jan. 16, during which McGuire made repeated snorting-like gasps.
Attorneys for Tyler told the board April 24 that their client is innocent and should be freed. Cleveland prosecutors argued that Tyler's sentence should be changed to life without parole because of questions about the conviction, though they maintain Tyler was the man who fatally shot the produce vendor in 1983.
The case doesn't meet the office's current standards for a capital punishment prosecution, Allan Regas, a Cuyahoga County assistant prosecutor, told the board. He said the office wouldn't seek the death sentence in such a case today based on the evidence, which includes what appears to be a lack of intent to shoot the victim.
Prosecutor Tim McGinty said Tuesday he respected the board's decision.
Tyler's first death sentence was overturned by a state appeals court in 1984 on the basis of poor legal assistance. He was convicted at a second trial and again sentenced to death.
The co-defendant, Leroy Head, pleaded guilty for his role in the slaying and was sentenced to life in prison with parole after 20 years for aggravated murder and seven to 25 years for aggravated robbery, according to court and parole board records. He was released from prison in 2008.
Head twice made statements to police that the gun went off while he was struggling with Leach and that it was he, not Tyler, who was responsible for the shooting, according to Tyler's clemency request.
Head recanted those statements and testified against Tyler at the first trial, saying Tyler had threatened his family if he explained what happened that day. Head also testified at Tyler's second trial.
In later years, however, Head denied Tyler had ever threatened him and said he testified at the second trial because a prosecutor threatened to negate his plea deal, according to Tyler's parole board filing.
Head also made several statements to defense attorneys, fellow prisoners and others that Tyler was not the shooter, according to the clemency request.
Messages left at a Cleveland phone listing for Head were not returned, nor was one left with his attorney from his original trial.
Ohioans to Stop Executions, the state's leading death penalty opposition group, urged Kasich to grant clemency.