COLUMBUS, Ohio - The prosecutor who helped send the killer of a Youngstown store owner to death row told the state Parole Board on Tuesday that the condemned inmate should be spared because the crime didn't rise to the "heinous" level that deserves capital punishment.
Former Mahoning County prosecutor Gary Van Brocklin said he tried repeatedly to get John Eley to testify against another man he believes is the mastermind of the 1986 shooting in exchange for a lesser sentence.
That other man, Melvin Green, gave Eley the gun used in the shooting and told him to go into the store, which had banned Green for previous threats, Van Brocklin said via a video interview presented to the parole board.
"Basically, he set up the entire robbery," Van Brocklin said.
He also said that, while not making light of the death of Sinjil Market owner Ihsan Aydah, the robbery of the convenience store was the type of killing that was prosecuted more frequently as a death penalty case in the early days of the law. Ohio's current capital punishment law was enacted in 1981.
"It wasn't in the more heinous nature of cases that now receive the death penalty," Van Brocklin said.
It's not unusual for judges or prosecutors to change their mind about individual cases or the death penalty itself, but such testimony on behalf of a condemned inmate is relatively rare.
Eley, 63, is scheduled to die by injection July 26. He confessed to the killing to police and invoked his Fifth Amendment right to refuse to testify against Green, who was acquitted.
"I don't want to go through all this ritual," Eley told a court psychologist in 1987, according to a written presentation to the board by Paul Gains, the current Mahoning County prosecutor, who opposes clemency.
"I did it. I want to do my time," Eley said in that interview. "I don't want to talk about it. I'm sorry I did it, that's all."
Green, 54, is in prison and scheduled for release in October on charges he illegally carried a concealed weapon, had a gun in a car and possession of drugs. But he also faces the possibility of additional time for violating parole on a prior aggravated robbery conviction, according to state prison records. Those charges are unrelated to the Eley case.
Scott Krichbaum, who represented Green at trial in 1987, said Tuesday that the state had enough to charge Green but not to convict him.
"It's a common tactic to blame the other guy," Krichbaum, now a Mahoning County judge, said in a phone interview. "That's pretty standard in criminal defense."
Eley's attorneys based their argument for clemency around Green's role in the shooting. They also presented evidence that Eley came from an impoverished childhood, abused alcohol and drugs, had brain impairment and is mentally disabled and mentally ill.
Gains says Eley was a career criminal who showed no remorse over the shooting and whose IQ of 82 is well above the threshold of mental disability.
Gains presented evidence to the board that Eley withdrew his claim of mental disability eight years ago and that psychological reports from the trial draw opposite conclusions about mental illness and mental disability.
Gains noted Eley had already been to prison twice by the time of Aydah's slaying.
"And where Eley's attorneys now say that Melvin Green should be blamed for the crime, the evidence is unrebutted that Eley was the shooter, and that Eley went into the store alone while Green waited outside for Eley to subdue Mr. Aydah," Gains said in his board filing.
The board will make its recommendation next week to Republican Gov. John Kasich, who has the final say.
Tuesday's hearing came the same day a Cuyahoga County judge began a hearing on a death row inmate who received a last-minute reprieve last week.
Attorneys for Abdul Awkal are presenting witnesses and arguments to Judge Stuart Friedman that Awkal is mentally incompetent to be put to death for killing his estranged wife and brother-in-law in a Cleveland courthouse 20 years ago. The hearing continues Wednesday.
Attorneys say Awkal believes the CIA is orchestrating his execution. The state says courts and experts have previously ruled Awkal competent.
The reprieve that Awkal received from Kasich rescheduled his execution for June 20.
Andrew Welsh-Huggins can be reached at http://twitter.com/awhcolumbus .