In re: Arthur Tyler,

Reg. No. #A175-637,

Petitioner.

Petition for Commutation of Sentence.

Warrant of Execution issued. Petitioner isscheduled to be executed on May 28, 2014

VICKI RUTH ADAMS WERNEKE

Assistant Federal Public Defender

ALAN C. ROSSMANAssistant Federal Public Defender

Capital Habeas Unit1660 West Second Street, Suite 750

Cleveland, Ohio 44113(216) 522-4856

(216) 522-1951 (fax)vicki_werneke@fd.orgalan_rossman@fd.org

KATHRYN L. SANDFORD (0063985)Supervisor, Death Penalty DivisionOffice of the Ohio Public Defender250 East Broad Street, Suite 1400

Columbus, OH 43215(614) 466-5394

kathryn.sandford@opd.ohio.gov

COUNSEL FOR ARTHUR TYLER

With special assistance from Casandra Tice, Extern with FPDJ.D. Candidate 2014, Case Western Reserve University School of Law

Date: April 17, 2014

ARTHUR TYLER: INJUSTICE ON THE EAST SIDE OF CLEVELANDA CASE FOR CLEMENCY

On March 12, 1983, the worlds of Sander Leach, Leroy Head, and Arthur Tyler collided with

tragic results. By 5:00 p.m., that day Sander Leach was murdered. Thirty one years later, the State

of Ohio wants to execute Arthur Tyler for Mr. Leach’s murder, even though Leroy Head is the one

who shot and killed Mr. Leach. This clemency petition will explain how the tragic murder of Mr.

Leach happened at the hands of Leroy Head, how Arthur Tyler came to be convicted and sentenced

to death for that murder, and how the justice system failed Arthur Tyler on several levels. Executive

clemency needs to be granted for Arthur Tyler by commuting his death sentence to life imprisonment

with parole eligibility. Ideally, Arthur Tyler should be granted parole and released from prison for

time served. Mr. Tyler is not requesting a full pardon from the conviction, just that he be allowed

to go home, if not now, then sometime in the future.

The murder of Sander Leach was a senseless tragedy. Arthur Tyler recognizes that he shares

responsibility in this case as he brought Leroy Head to the Meat Market that fateful day. However,

as we will demonstrate, Arthur Tyler did not shoot Mr. Leach. Head falsely testified against Mr.

Tyler in order to save himself from the death penalty. There is grave doubt in this case. As Governor

John Kasich stated recently, “When there has been any doubt on this, we don’t execute.”

Cleveland Plain Dealer, 2/13/2014.

Leroy Head was released from prison in June 2008 and has been a free man for almost six

years.

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INDEX TO THE CLEMENCY APPLICATION

I. The Murder of Sander Leach

II. The Police Investigation

III. Leroy Head Shot and Killed Sander Leach

A. Head's first statement:B. Jeffrey Gillis's statement:C. Anthony Gillis's first statement:D. Arthur Tyler's arrest:E. Head's second statement:F. Anthony Gillis's second statement:G. Head's third statement:H. Head's testimony at first trial:I. Head's testimony at second trial:J. Head's statements to appellate counsel for Arthur Tyler:K. Head's 1991 affidavit: L. Head's various statements after the trials:M. Attempts by counsel for Arthur Tyler to have Head testify under oath:

IV. The Disarray of the State Court Appellate Record

V. Prosecutor Withheld Significant Information from Defense Counsel

A. Mr. Leach did have money on his person, contrary to the State's assertions at trialB. Prosecution also withheld another statement that Leroy Head admitted he was the

shooter.

VI. Prosecutor and Defense Counsel Shared Offices and Cases During Mr. Tyler's TrialA. Overview:B. Relationship between Gerstenslager and Charles Laurie:C. Relationship between Gerstenslager and Daniel Ryan:D. Relationship between Ryan and Joyce:E. Relationship Between Judge Nugent and Both the Defense and Prosecution:

VII. The 1985 Jury was Coerced into Returning a Death Sentence

VIII. The State of Ohio offered Arthur Tyler a plea deal.

IX. Conclusion

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I. The Murder of Sander Leach

After Sander Leach retired from housekeeping at the general hospital, he sold produce from

his van. He usually parked his van in a vacant lot next to a neighborhood convenience store called

the Meat Market, at the corner of East 66 Street and Zoeter Avenue, on the east side of Cleveland,th

Ohio. (Exhibit 1, Newspaper Article).

On Saturday, March 12, 1983, Mr. Leach had been at that corner most of the day selling his

produce to the people in the neighborhood. He went home about 2:30 to have lunch with his wife,

then went back to the corner. (Second Trial Tr. at 2446; State’s Clemency Response, Tyler Second

Trial page 2457). Just about 5:00 p.m., Ethel Threat heard gunshots. She ran to van, saw Mr.

Leach’s arms and legs, and then into the store, where she told the store owner that Mr. Leach had

been shot, and to call an ambulance. (Second Trial Tr. at 2276; State Clemency Response, Tyler

Second Trial page 2286). With the assistance of the store owner’s brother, Mr. Leach was laid down

in the back of the van, while everyone waited for the ambulance and police to arrive. (Second Trial

Tr. at 2332, 2341, 2350; State’s Clemency Response, Tyler Second Trial pages 2344, 2352, 2361).

Although there were many people around both in and out of the store, no one witnessed the shooting.

The paramedics and the police arrived almost immediately.

When the paramedics arrived, they found Mr. Leach laying on the floor of the van. He had

been shot twice. They attempted first aid, but he was pronounced dead at the scene.

When Mr. Leach’s body was brought to the coroner’s office that same day, there was an

inventory conducted of his clothing and property. Mr. Leach had in his pockets one .38 caliber

bullet, $91 in food stamps, $9.78 in change, and $54 in cash, along with a wallet and other

miscellaneous items. (Exhibit 2, 3/12/1983 Supp. Report, page 1).

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A woman who lived across the street from the Meat Market heard the gunshots, although at

first she thought it was back fire from a car. She looked out her window and saw an African

American man running up East 66 Street. A patrol unit later drove her along the route she believedth

this man took. (Exhibit 2, 3/12/1983 Supp. Report, page 6).

II. The Police Investigation

Two days after the murder of Mr. Leach, on March 14, 1983, the police were investigating

another homicide that had occurred in December 1982. The police found Anthony Gillis who told

them where to find his brother, Luther Aldridge, who was the main suspect in the other homicide.

The police took Anthony Gillis into custody, then went to the home of Gillis’s mother where the

police found his brothers, Jeffrey Gillis and Luther Aldridge. Leroy Head, a friend of Anthony

Gillis, was also there. The police took all three men into custody and transported them to the police

station for questioning. While at the police station, Leroy Head was noticeably nervous, even though

the police were aware he was not involved in the other homicide they were investigating. The Gillis

brothers told the police Head was nervous because he “had shot and killed that produce man at East

66 and Zoeter on March 12, 1983.” (Exhibit 3, 3/14/1983 Supp. Report). th

The police questioned Leroy Head that same night. At one point, he requested to speak to

his mother, which he did. According to the police report:

Head talk [sic] to his mother and after approx 3 minutes she came out of theroom crying and saying that he did it.

(Exhibit 3, 3/14/1983 Supp. Report). Head then gave a detailed statement of what occurred and took

responsibility for shooting Mr. Leach. (Exhibit 4, 3/14/1983 Statement of Leroy Head).

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III. Leroy Head Shot and Killed Sander Leach

A. Head’s first statement:

Head told the police that he was with Art. (Arthur Tyler has never used the nickname “Art.”)

Head did not know “Art’s” last name or even where he lived. According to Head, the plan was to

rob Mr. Leach of his money. When Head and Art approached, Mr. Leach was locking up the van.

Art was able to get the old man to open the van again and once inside announced “this is a stick up.”

Then Head came into the van and began searching the old man’s pockets. Mr. Leach pulled out a

gun, Head struggled with him, and the gun went off shooting Mr. Leach in the chest. Head and Mr.

Leach continued to struggle and the gun went off again. Art ran off at some point. Head took off

and returned to Anthony Gillis’s place. (Exhibit 4, 3/14/1983 Statement of Leroy Head).

B. Jeffrey Gillis’s statement:

Jeffrey Gillis gave a statement to the police on March 14, 1983. He stated “On Saturday,

March 12, 1983, around 6:00 p.m., at my mothers house I was sitting on the porch, and [Leroy Head]

came up, and he said that he shot a person. I asked him where and he said on 66 .” (Exhibit 5,th

3/14/1983 Statement of Jeffrey Gillis).

C. Anthony Gillis’s first statement:

Anthony Gillis also gave a statement to the police on March 14, 1983, about the Leach

murder and what he knew. Gillis was staying at the apartment of Scott Hill, a friend who had been

shot and was in the hospital. Leroy Head also was staying at the apartment with Gillis. According

to Gillis, on March 12, 1983, Arthur Tyler came over to the apartment while he and Head were there.

Discussion was had about where they could obtain some money. Tyler and Head left and returned

about thirty minutes later. They both told Anthony Gillis that the produce man at East 66 Street andth

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Zoeter Avenue had been shot. Gillis picked Arthur’s picture out of a photo lineup. He told the police

though that Head told him he (Head) shot the man when the victim was reaching for the gun. Head

had a .38 caliber pistol that day, but Tyler did not have a gun. (Exhibit 6, 3/14/1983 Statement of

Anthony Gillis).

Leroy Head was arrested for the aggravated murder of Sander Leach.

D. Arthur Tyler’s arrest:

On March 15, 1983, Arthur Tyler voluntarily went to the Justice Center to talk to the police

after he heard he was wanted for questioning. Arthur Tyler was subsequently arrested at the Justice

Center for the aggravated murder of Mr. Leach. (Exhibit 7, Felony Arrest Card for Arthur Tyler).

On March 16, 1983, Head and Tyler were indicted by a grand jury for the aggravated murder and

aggravated robbery of Sander Leach. The aggravated robbery specification made this a capital case

for both Head and Tyler. (Exhibit 8, State of Ohio v. Leroy Head and Arthur Tyler, 3/16/1983).

E. Head’s second statement:

On March 24, 1983, Head signed a hand written statement changing the story of what

happened, but still taking full responsibility for killing Mr. Leach. In this statement, Head stated he

and Arthur went to the Meat Market to attempt to cash a welfare check for Scott Hill. When they

were unsuccessful in cashing the check, Head walked out of the store, noticed Mr. Leach leaving his

van, and decided at that moment to rob the man. Head followed Mr. Leach into the back of the van.

When Mr. Leach pulled out a gun, Head struggled with him and the gun fired, twice. Head ran away

from the scene and returned to Anthony Gillis’s apartment. (Exhibit 9, 3/24/1983 Statement of Leroy

Head).

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F. Anthony Gillis’s second statement:

On May 16, 1983, as the prosecutor was preparing for the Head and Tyler trials, the lead

prosecutor, Bill Gerstenslager, along with the police detectives, interviewed Anthony Gillis. At that

time, Gillis confirmed his earlier statement that Head admitted he had shot and killed Mr. Leach. In

order to get rid of the gun, Head gave it to Gillis who then sold it for $40. (Exhibit 10, 5/18/1983

Supp. Report). On May 18, 1983, Anthony Gillis made another formal police statement stating the

same. (Exhibit 11, Statement of Anthony Gillis, 5/18/1983).

G. Head’s third statement:

Before May 1983, Leroy Head’s statements all implicated himself as the shooter of Mr.

Leach. Arthur Tyler was not even involved in Head’s second statement. But, on the eve of Head’s

trial, the tables turned.

Head’s trial was scheduled to start June 8, 1983, before Arthur Tyler’s first trial. On May

27, 1983, after meeting with Prosecutor Gerstenslager and one of his attorneys, Head gave a different

version of what happened. In this statement, Head was the lookout and Tyler attempted to rob Mr.

Leach and shot him twice. After the shooting, when Head and Tyler were back at Tony Gillis’s

apartment, Tyler gave the gun to Head, who then gave it to Tony. Tyler left and brought back to

Head a change of clothes. (Exhibit 12, Statement of Leroy Head, 5/27/1983). Prosecutor

Gerstenslager signed this confession as a witness.

H. Head’s testimony at first trial:

At Arthur Tyler’s trial in July 1983, Head testified as the prosecution’s main witness and only

eye witness to the killing. Head told the jury that his two statements in March 1983 were mostly not

true and that he made up the idea for those statements. He claimed he told the police that he was the

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shooter because Arthur had threatened to harm his sisters if Head spoke about what happened. It is

curious though that Head implicated Arthur as involved in the armed robbery of Mr. Leach in his

initial statement. If he was afraid of Arthur so much as to take full responsibility for the murder,

then why did he mention Arthur at all in his initial statement? The supposed “threat” seems more

like a ruse to explain the change in his statements.

On the same day, and after Arthur Tyler was formally sentenced to death in 1983, Leroy Head

was sentenced to life imprisonment with no parole for 20 years for the aggravated murder, the

minimum sentence for a “capital conviction,” 3 years imprisonment for the gun charge, 7 to 25 years

maximum for aggravated robbery. (Exhibit 13, State of Ohio v. Leroy Head, Case No. CR-181132-

A, Transcript of Proceedings, 8/31/1983).

I. Head’s testimony at second trial:

Arthur Tyler’s conviction and sentence were reversed by the Eighth District Court of Appeals

and remanded for a new trial. At the retrial in 1985, the prosecution again called Leroy Head to

testify against Mr. Tyler; after all, he was the only “eyewitness” to the actual shooting. Head told

the jury that he pled guilty in 1983 so “that my life would be saved” as he was facing the electric

chair then himself. (Second Trial Tr. at 1813). Head began by acknowledging he had given two

statements in which he admitted to being the shooter. But as the prosecutor began questioning Head

about his third statement, in which he first implicated Mr. Tyler, Head said “I ain’t going to testify

against the man. . . . I am not going to testify against him.” (Second Trial Tr. at 1843). During an

in chambers discussion, the trial judge stated “this witness is getting on the stand and he is saying

‘I’m not going to testify’” and that it was clear he did not want to inculpate Mr. Tyler. (Second Trial

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Tr. at 1854). After lengthy discussion in chambers, the trial court ruled that the prosecutor could

use Head’s testimony from the 1983 trial should Head still refuse to testify.

But the next morning, Head testified against Arthur Tyler. Despite the prosecutor’s statement

to Head that “we haven’t had an opportunity to talk since you left last night” (Second Trial Tr. at

1886), apparently Head did meet with the prosecutor that evening.

J. Head’s statements to appellate counsel for Arthur Tyler:

In May 1989, appellate counsel for Arthur Tyler, Richard Vickers and Joann Bour-Stokes,

interviewed Leroy Head at the Southern Ohio Correctional Facility. Head told them he had not been

threatened by Arthur, and that he (Head) killed Mr. Leach, not Arthur Tyler. Further, Head stated

that the prosecutor threatened him at the second trial. (Exhibit 14, Affidavit of Richard Vickers,

dated 7/1/1991; Exhibit 15, Affidavit of Joann Bour-Stokes, dated 7/1/1991).

Vickers and Bour-Stokes realized the implications of the recantation of Head’s testimony at

Arthur’s trial, for both men. They also recognized that they could not advise Head of any legal

implications to himself should he recant his testimony. They took steps then to secure for Head

independent counsel who could provide him legal advice.

On May 18, 1989, two days after the meeting with Leroy Head, Bour-Stokes wrote to him

and related:

Because of the nature of our discussion, I thought it would be best if you had yourown attorney advise you of all the repercussions of any statement you make to me.I know you are aware of them, but I wanted to be sure that all of your interests areprotected. I have asked my boss to locate a criminal defense attorney who will bewilling to represent you. It will not be anyone from Cuyahoga County. Also, Ipromise you, it will be someone who is a good lawyer that you can trust.

Until I get a lawyer, I will not attempt to discuss the case with you. I want you to talkwith me only after you have consulted with your lawyer, and you both agree.

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(Exhibit 16, Letter from Joann Bour-Stokes to Leroy Head dated 5/18/1989).

The Ohio Public Defender office found attorney Matthew Arntz who agreed to provide Head

with independent advice as to the legal ramifications to him should he formally recant his testimony.

Bour-Stokes wrote to Arntz and provided him with the three statements Head gave prior to the trial

and his testimony at both trials. (Exhibit 17, Letter from Joann Bour-Stokes to Matthew Arntz dated

6/8/1989). In a memorandum Bour-Stokes prepared for Arntz, she stated:

Once I learned the incriminating nature of his story, I decided to ask him no furtherquestions. I felt the best course of action was to find an attorney who would bewilling to explain the implications of his offer of assistance to Arthur Tyler.

(Exhibit 18, Memorandum from Joann Bour-Stokes to Matthew Arntz, dated 6/8/1989).

After studying the materials from the Tyler trials and researching the issue, Arntz wrote

Leroy Head an extensive letter dated April 9, 1990, detailing the legal ramifications he would face

should he formally recant his trial testimony.

Under the circumstances, if you offer sworn testimony in any forum - post-convictionhearing, trial, or otherwise - that departs to a significant degree from what youtestified to at the second trial - you are very likely to subject yourself to indictmentfor perjury.

This will be true regardless of whether the version you offer at the new proceedingis ultimately accepted or believed by the judge or jury. In other words, your newestversion can either be believed or disbelieved, and may result in a perjury charge ineither instance.

Further, there is the matter that the version contained in your testimony at the secondTyler trial was corroborated in a number of instances by the testimony of others, aswell as by physical evidence admitted at trial.

***

I think that a perjury indictment is a very likely prospect should you offer a newsworn version of the events. With regard to the possibility of re-indictment for capital

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murder, I think you need to have some basic background information about pleabargaining in order to understand your position better.

***

If you should now come forward and announce that the version given at trial wasuntrue, you will have in effect cancelled out the plea bargain agreement and returnedto your position prior to negotiations. Again, this is because the contract wasobtained by a fraud committed on your part, and is therefore unenforcable by younow.

Consequently, under this reasoning, the State would then be free to re-indict you fora capital murder and engage in different plea bargaining - or none at all - whateverits preference, as it would owe you nothing.

***

I have obviously simplified a large, complex and somewhat unsettled area of the lawin this letter; however, I have tried to outline some of the concerns which will arisefrom your swearing out a new or different version of the events of Leach’s death. While no one can predict with certainty what a future Court will decide, my opinionis that in doing so, you will most likely create the risk not only of indictment forperjury (single or multiple counts), but also of re-indictment for capital murder, andrenewed eligibility for the death penalty if convicted.

I certainly applaud your willingness to work with Tyler’s attorneys, and if you canassist them in their investigation in some form or fashion other than by providingsworn testimony (for example, directing them to newly-discovered evidence,witnesses, etc.), I think you may do so without some of the dangers I have indicatedhere.

(Exhibit 19, Letter from Matthew Arntz to Leroy Head, 4/9/1990).

K. Head’s 1991 affidavit:

With full knowledge that he could be subject to further prosecution by the State of Ohio, by

independent counsel, Leroy Head freely gave an affidavit on July 29, 1991. In that 1991 affidavit,

Head repudiated his May 27, 1983, statement and his testimony at both trials, and admitted that he,

not Arthur Tyler, shot Mr. Leach. Further, he stated:

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After I refused to testify, the trial was recessed for the day. During the recess,Prosecutor Gerstenslager threatened me that if I did not testify against Arthur as I didin the 1983 trial, he would cancel the plea-bargain, prosecute me again, and seek thedeath penalty against me. He also told me not to mention this threat when I took thestand the following day. The prosecutor also offered to send me to a less securefacility if I testified and to short [sic] my time.

(Exhibit 20, 7/29/1991, Affidavit of Leroy Head, ¶ 7).

Head received a benefit from the prosecutor for his testimony at the second trial. After

Tyler’s 1985 trial was concluded, Head’s counsel, Stuart Saferin, filed a motion to reconsider the

sentence. The judge overruled the motion rather quickly. (Exhibit 21, State of Ohio v. Leroy Head,

Motion to Reconsider Sentence filed 1/8/1986, denied by Judge Sweeney 2/7/1986), Then the

prosecutor, Bill Gerstenslager, filed a very similar motion on February 18, 1986. On May 14, 1986,

Judge Frances Sweeney granted Prosecutor Gerstenslager’s request with a handwritten notation

“motion to set aside 3 year mandatory gun sentence is granted upon recon. of Pros. Gerstenslager.”

(Exhibit 22, State of Ohio v. Leroy Head, State’s Response to Defendant’s Motion to Reconsider

Sentence, filed 2/18/1986, granted by Judge Sweeney, 5/14/1986).

L. Head’s various statements after the trials:

Since both trials, Leroy Head has made statements to several different people. In all of those

statements, he acknowledges that he, not Arthur Tyler, shot Mr. Leach.

Date of Contact Person Head told and what he told them

March 12, 1983 - Luther Aldridge executed two affidavits (1991 and 2005) stating thatHead admitted to him that he killed Mr. Leach. Aldridge also sawHead’s mother at the police station when the detectives werequestioning Head about the murder. (Exhibit 23, Affidavits of LutherAldridge).

Summer of 1983 - According to Sammie Rogers, who was incarcerated with Leroy Headin the Justice Center that summer, Head bragged about killing

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someone. Head also told Rogers that he killed the old man in avegetable truck. (Exhibit 24, Statement of Sammie Rogers, dated1/27/1986).

November 1984 - Ernest Martin executed an affidavit in July 1991 stating that he wasincarcerated at Southern Ohio Correctional Facility with Arthur Tyler.Martin was on outside recreation with Tyler when he heard aconversation between Tyler and another inmate that he learned to beLeroy Head. Martin heard Head say that he had to testify againstTyler to have his own life. (Exhibit 25, Affidavit of Ernest Martin,dated 1/5/1991).

December 1985 - Romell Broom executed an affidavit in March 1986 stating that Headtold him when he was back at the Justice Center for the re-trial, thathe did not want to testify against Arthur Tyler, but the prosecutor andhis attorney worked out a deal. Head said he accidentally shot thevictim. (Exhibit 26, Affidavit of Romell Broom, dated 3/19/1986).

December 1985 - Alfred Morales stated he was housed in the Cuyahoga County Jailwith Leroy Head in December 1985. Head told Morales that ArthurTyler did not kill the old man. Further, Head said the prosecutorthreatened him with the death penalty if he did not testify at thesecond trial. (Exhibit 27, Affidavit of Alfred Morales, dated7/17/1991).

December 1985 - Clarence Thomas stated he was in the same pod with Leroy Head atthe Cuyahoga County Jail. Thomas heard Head state that he killedMr. Leach and that Tyler was not guilty. (Exhibit 28, Affidavit ofClarence Thomas, dated 8/5/1991).

April 1986 - Head signed a handwritten statement saying that he, not Arthur Tyler,shot the old man. (Exhibit 29, Handwritten Statement signed byLeroy Head, dated 4/27/1986).

April 1993 - Gregory Jones was incarcerated at the Trumbull Correctional

Institution after the Lucasville Prison riot. Jones knew both Head andTyler from the Cleveland area. Head told Jones that he, not ArthurTyler, killed Mr. Leach. (Exhibit 30, Affidavit of Gregory Jones,dated 3/17/2009).

January 2010 - Kevin Bell saw Leroy Head at a bus stop in Cleveland and offeredhim a ride. Head had been released from prison in June 2008 and hadreturned to Cleveland. Bell told Head he knew he was Arthur Tyler’s

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co-defendant. Head told Bell that he tried to do the best he could toright the wrong to prove that Arthur had nothing to do with Mr.Leach’s murder. (Exhibit 31, Affidavit of Kevin Bell, dated7/1/2010).

M. Attempts by counsel for Arthur Tyler to have Head testify under oath:

Post conviction counsel requested an evidentiary hearing with the Cuyahoga County Court

of Common Pleas. When the Cuyahoga County Prosecutor’s office responded to the post conviction

petition, there was not any counter affidavit by the lead prosecutor refuting Head’s accusation that

he was coerced and threatened by the prosecutor. When post conviction counsel submitted a sworn

affidavit from Head and supplemented the post conviction petition with the same, the prosecutor’s

office did not file anything in response to that either. When the post conviction appellate court ruled

on the petition, the appellate court acknowledged that while the briefs had referenced Head’s

affidavit, they could not locate it in the record filed in the Clerk’s office. So the court did not

consider it for any reason at all.

During the habeas proceedings, the federal judge recognized the importance of getting to the

bottom of Head’s allegation of having been coerced to testify against Mr. Tyler. The court granted

the request to depose Leroy Head about the various statements he made. In federal habeas, the taking

of a person’s deposition in the discovery phase of a case is often a precursor to an evidentiary

hearing. The court seemed prepared to get to the bottom of Mr. Head’s allegations.

If Head were to testify under oath consistent with his sworn Affidavit, it would, of course,

mean that he had perjured himself when he testified at trial that Mr. Tyler murdered Mr. Leach. And

it would also mean that he lied during his trial testimony when following that trial recess, he said

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there was no meeting with the Prosecutor, and that there were no threats made by the Prosecutor in

order to get him to place responsibility for the shooting on Mr. Tyler.

The federal court was providing the perfect opportunity, for the first time, to bring Mr. Head

before the court, under oath, to verify in detail the allegations in his Affidavit. Head was advised

of his Fifth Amendment right not to incriminate himself because he was testifying under oath for use

in a federal court proceeding. The parties asked that the Cuyahoga County Prosecutor Bill Mason

grant Head a promise of immunity from further prosecution so the deposition and possible

evidentiary hearing could go forward. Given the allegations in Mr. Head’s Affidavit, the parties

were looking for justice to be done.

But the Prosecutor’s Office refused. Without a promise of immunity, Mr. Head made clear

he would assert his Fifth Amendment rights and refused to answer any questions. He would not risk

being returned to prison. The Prosecutor’s office refused to change its position, so no deposition of

Leroy Head was ever conducted. Once again, the opportunity to have a judge assess Mr. Head’s

demeanor and credibility, under oath, subject to full cross-examination by both sides, was missed

and perhaps, more accurately, avoided.

The federal judge made clear to both the Attorney General and Mr. Tyler’s counsel that he

had no authority to force the hand of the Cuyahoga County Prosecutor’s Office when it came to

granting immunity from prosecution. And Mr. Head, as a result, was well within his constitutional

right not to testify and incriminate himself. There was, in short, nothing the federal court could do.

If the federal court would not act, maybe the state courts would assist. Counsel for Mr. Tyler

filed a mandamus action asking the state court to order the Cuyahoga County Prosecutor’s Office

to grant Head immunity so this issue of coercion by the Prosecutor’s Office could be fully addressed.

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The Prosecutor’s Office successfully opposed the mandamus action, arguing that the courts clearly

cannot force a Prosecutor’s Office to do anything like what was being requested.

Although we may agree with relator's assertion that the Prosecuting Attorneyshould seek justice in this case by granting Head immunity, without any statutoryauthority to justify the requested relief, the trial court had no authority to order theCounty Prosecutor to grant Head immunity. Accordingly, the trial court properlygranted respondents' motions to dismiss this action for failure to state a claim uponwhich relief in mandamus could be granted.

Tyler v. Petro, 2007 WL 766171 (8 Dist. Oh. Ct. App. 2007) (State’s Clemency Response, Tylerth

Judicial Decisions, Page 388).

IV. The Disarray of the State Court Appellate Record

For four and a half years, Mr. Tyler’s pending post-conviction petition languished in the

Cuyahoga County Court of Common Pleas. Having become a concern, the Ohio Supreme Court

itself contacted the trial court to make inquiry into the pending petition. During the time it lay

dormant, portions of Mr. Tyler’s post-conviction court file were lost or destroyed. Common Pleas

Judge Janet Burnside sought assistance from both parties in an effort to personally reconstruct what

she determined to be relevant parts of the record that were missing from the court. (Exhibit 32, Letter

of 7/23/1996; Exhibit 33, Letter of 7/5/1996). A July 16, 1996, letter from Mr. Tyler’s post-

conviction counsel to the trial judge, indicating “we will do whatever we can to help,” reflects the

good faith effort made trying to make certain Mr. Tyler’s post-conviction petition was adjudicated

on a complete record. Counsel informed and explained to the court that “[t]he file will be

voluminous . . ..” (Exhibit 34, Letter of 7/16/1996).

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In addition to receiving documents from Mr. Tyler’s post-conviction counsel, Judge Burnside

borrowed copies of Mr. Tyler’s post-conviction filings from the Cuyahoga County Prosecutor’s

Office.

On November 20, 1996, Judge Burnside issued her Judgment Entry denying Mr. Tyler’s

petition for post-conviction relief. In her Opinion, Judge Burnside noted that “the Petition and its

subsequent pleadings remained unattended to in the Clerk’s office until June, 1996 when the Ohio

Supreme Court notified this Court.” The court went on to detail some of the “procedural missteps”

that occurred in the court Clerk’s office and noted the effort the court had made to piece together the

record from Mr. Tyler’s counsel and the County prosecutor. (Exhibit 35, Judgment Entry

11/20/1996).

Unfortunately, upon completing her review, the trial court inexplicably returned all

documents it had obtained from the parties without either copying them or making them part of the

court record. (Exhibit 36, Letter of 12/13/1996). Thus, Mr. Tyler’s post-conviction record remained

incomplete on appeal.

Mr. Tyler moved and obtained permission from the court of appeals to supplement the record

with the case materials reviewed by the trial court. On July 16, 1997, the Court of Appeals noticed

that significant portions of Mr. Tyler’s record were again missing and instructed counsel for Mr.

Tyler to review the record that was before the appellate court, check for completeness and file any

necessary supplements to complete the record. (Exhibit 37, Journal Entry of 7/16/1997). Counsel

complied.

By September, however, the court record was again incomplete. Mr. Tyler moved, and the

court again granted a motion to remand the case to the trial court to correct and complete the record.

Page 17 of 40

Upon its return to the appellate court, the record still remained incomplete. (Exhibit 38, Journal

Entry of 9/2/1997; Exhibit 39, Journal Entry of 9/23/1997).

The lost evidence would have supported Mr. Tyler’s claim that the State’s principal witness

who identified him as the actual shooter had been threatened and coerced by the prosecutor to secure

his testimony against Mr. Tyler. Leroy Head had provided police with two statements that

exonerated Mr. Tyler as the principal offender of the homicide. These statements also inculpated

Head. A third statement inculpated Mr. Tyler and had secured for Head a plea agreement. At trial,

Head began to testify and acknowledged providing the first two statements. When asked about the

third statement Head refused to testify. Without asking the court to compel the witness to testify, the

prosecution sought and obtained a recess in the proceedings. When Head subsequently resumed

testifying the following day, he named Mr. Tyler as the principal offender in the Leach homicide.

In the course of his resumed testimony, Head denied he had discussed perjury concerns with

his counsel prior to his post-recess testimony. (Second Trial Tr. at 1951). During the course of his

cross-examination, Head also denied he had any discussion with prosecutor Gerstenslager during the

break in his testimony. (Second Trial Tr. at 1985).

In Mr. Tyler’s Petition to Vacate or Set Aside Judgment and/or Sentence Pursuant to Ohio

Revised Code Section 2953.21, Case No. CR-181132, par. 692, he alleged in his One Hundred-First

Claim for Relief that his convictions and sentences were “void and/ or voidable because the

prosecutor threatened a witness (Leroy Head) to obtain the witnesses’ testimony.” (Exhibit 40,

Petition to Vacate or Set Aside Judgment and/or Sentence).

As required under Ohio’s post-conviction statute, the claim was supported with evidence

dehors the record. That evidence was an affidavit from Mr. Head, which averred as follows:

Page 18 of 40

7) After I refused to testify, the trial was recessed for the day. During thisrecess, Prosecutor Gerstenslager threatened me that if I did not testify againstArthur [Tyler] as I did in the 1983 trial, he would cancel the plea bargain,prosecute me again, and seek the death penalty against me. He also told menot to mention his threat when I took the stand the following day. The1

prosecutor also offered to send me to a less secure facility if I testified and toshorten my time.

8) The following day, December 3, 1985, I did testify against Tyler so that theprosecutor would not seek the death penalty against me.

(Exhibit 20, Affidavit of Leroy Head dated 7/29/1991). Also attached to the post-conviction petition

was an affidavit from Alfred Morales, who was housed in the Cuyahoga County jail with Mr. Head.

He averred that Mr. Head told him that Mr. Tyler “did not kill the old man” and that Mr. Head stated

that the prosecutor threatened him to testify to the contrary. (Exhibit 27, Affidavit of Alfred

Morales). Attorneys Richard Vickers and Joann Bour-Stokes averred similarly. (Exhibit 14,

Affidavit of Richard Vickers; Exhibit 15, Affidavit of Joann Bour-Stokes).

On June 15, 1998, the post-conviction Court of Appeals conducted oral argument and on

September 10, 1998, issued its decision affirming the judgment of the lower court. State v. Tyler,

Case No. 71785, 1998 WL 59853 (Ohio Ct. App. Sept. 10, 1998). Remarkably, in the Opinion the

court stated certain materials referenced in the appellant’s brief were missing from the record:

Specifically, he references exhibits 66, 68, 75 and 78. Exhibit 75, in particular, is2

allegedly the affidavit of [Leroy] Head wherein he avers that he was threatened if hedid not testify and that he received sentencing consideration in exchange fortestifying. Nonetheless, these exhibits are not part of the record before this

As noted, subsequent to the recess, during the course of his cross-examination, Head1

indeed denied he had any discussion with prosecutor Gerstenslager after he had refused to testify atthe trial. (Second Trial Tr., at 1985).

Exhibit 66 is the Affidavit of Daniel J. Ryan, Esq., Exhibit 68 is the Affidavit of2

Ernest Martin, Exhibit 75 is the Affidavit of Leroy Head, and Exhibit 78 is the Exhibit of AlfredMorales.

Page 19 of 40

court. Considering that once we remanded this case because of an incompleterecord and requested counsel for both parties to insure its completeness, we areat a loss to explain their omission. Because they are not part of the recordbefore us, we are unable to consider any potential value these exhibits may havepossessed.

Id. at *6, fn. 3 (Emphasis added).

These missing exhibits were evidence dehors the record and critical for any adjudication of

the “coerced testimony” claim on the merits. Without these exhibits, the post-conviction claim was

unsustainable and missing any supporting evidence from outside the record, was rejected as res

judicata. (State’s Clemency Response, Tyler Judicial Decisions, p. 237-44, Journal Entry and

Opinion).

On September 21, 1998, a clearly frustrated Mr. Tyler filed a Motion for Reconsideration and

Supplementation of the Record, wherein counsel for Mr. Tyler advised that the Exhibit Affidavits

purported to be missing from the record were in fact contained in the record when counsel reviewed

the court record on January 9, 1998. (Exhibit 41, Motion for Reconsideration and Supplementation

of the Record). Counsel noted that when she had orally argued the case before the appellate panel

and discussed the claims, the Court of Appeals said nothing to indicate that these exhibits and

documents were missing at that time. Counsel’s motion attached additional copies of the “missing”

Affidavits as a means to supplement the record before the Court. (Id.) However, without comment,

the Court of Appeals summarily denied Mr. Tyler’s motion to reconsider on October 2, 1998.

(Exhibit 42, Journal Entry).

Thus, the decision rendered against Mr. Tyler was made without consideration of the entire

record. (Exhibit 42, Journal Entry). The Ohio Supreme Court thereafter declined to exercise

jurisdiction over the case. (Exhibit 43, Judgment Entry).

Page 20 of 40

V. Prosecutor Withheld Significant Information from Defense Counsel

A. Mr. Leach did have money on his person, contrary to the State’s assertions at trial.

The voluminous records, transcripts, and materials associated with Arthur Tyler’s case are

staggering to review, to organize, to digest, and to comprehend their relation to one another.

Although Mr. Tyler has had competent and caring counsel for many years, prior counsel failed to

either notice or recognize the significance of two critical police reports. Prosecutor Gerstenslager

failed to share these reports with trial counsel as required by Brady v. Maryland.

On page one of a seven page police report dated March 12, 1983, entitled ORIGINAL

REPORT is an inventory of the property on the victim, Sander Leach, which consisted of “one key,

nail clipper, black wallet with misc papers, one 38 cal bullet, glass case, pen, $91.00 in food

stamps, $9.78 in change in $54.00 in cash.” (emphasis added). (Exhibit 2, Supp. Report

3/12/1983).

The significance of this report cannot be overstated. First, the victim had a live 38 caliber

bullet in his pocket. This begs the question of why would he have an unspent live bullet if he did

not have a gun with him. Second, he had a substantial amount of money, both in cash, change and

food stamps.

Despite this police report that clearly states there was money on Mr. Leach’s person, the

prosecutor put forth evidence and argument at both trials that Mr. Leach was broke and had nothing

of value on him at the time of the murder. (Tyler First Trial: State Opening Statement, at 745 of

1802; Direct of Head, at 776 of 1802; Re-direct of Head, at 900 of 1802; Direct of Mrs. Leach, at

1161 of 1802; State First Closing Argument, at 1466 of 1802, 1474 of 1802; State Final Closing

Argument, at 1534 of 1802); (Tyler Second Trial: State Opening Statement, at 1796 -97of 3256;

Page 21 of 40

Direct of Head, at 1900, 1909, 1918, 1948 of 3256; Direct of Mrs. Leach, at 2457-58 of 3256; State

Argument for Admission of Evidence, at 2743, 2744, 2774 of 3256; State First Closing Argument,

2926, 2927, 2936, 2955, 2956, 2958 of 3256; State Final Closing Argument, 2990, 3005-06 of

3256). The prosecutor knew of the report’s existence as he claimed during a pre-trial hearing that

he shared with defense counsel pages 6 and 7 of the March 12, 1983. (“As a matter of fact, we

showed the defense counsel a police report dated 3-12-83, page six and seven.” Tyler Second Trial

at 2427 of 3256).

Both trial counsel, Daniel Ryan and David Joyce, have stated in recent declarations that

testimony that the victim had no money on him was a critical part of the prosecution’s case against

Arthur Tyler.

One aspect I recall from the case was that Mr. Leach was broke and had no moneyon him. I recall that Leroy Head testified that after Arthur shot the victim, herummaged through the victim's pockets. I also recall that the prosecutors argued atboth the guilt and sentencing trials that Arthur had searched the victim's pockets formoney and how there was none on him, even directing the jury to the crime scenephotos that seemed to indicate a pocket was turned inside out. This was an importantaspect of the case as robbery, or an attempted robbery, was the specification thatmade this a capital case.

(Exhibit 44, Declaration of David Joyce, ¶ 6). The police report that stated otherwise also would

have been important and crucial to their defense at the trial.

This information would have been critical for the defense team to have at the timeof the trial. This information would have been used to impeach Leroy Head. Theinformation documented in the police report that Mr. Leach had money, food stamps,and a live bullet on his person fits more with Head's initial statement to the policewhere he took full responsibility for the homicide. This information also could havebeen used to argue against the robbery specification that made this a capital case.

(Exhibit 45, Declaration of Daniel Ryan, ¶ 10).

Page 22 of 40

B. Prosecution also withheld another statement that Leroy Headadmitted he was the shooter.

Another police report that was never disclosed to trial counsel was a statement by Jeffrey

Gillis dated March 14, 1983. (Exhibit 5, Statement of Jeffrey Gillis 3/14/1983). Jeffrey Gillis is the

brother of Anthony Gillis and Luther Aldridge. Jeffrey was arrested along with his brothers and

Leroy Head on March 14, 1983 for the Stefan Deba murder. Jeffrey told the police that on Saturday,

March 12, 1983, Leroy Head told him he shot a person on 66 and that he had taken $300 from theth

person that he shot. Although the statement is brief, it is exculpatory to Arthur Tyler and should

have been provided to trial counsel. The fact the prosecutor did not call Jeffrey Gillis as a witness

is telling. Trial counsel could have investigated the statement further by interviewing Jeffrey Gillis

as a potential witness for the defense.

Prosecutor Gerstenlager was no stranger to such misconduct or “grossly negligent and

‘sloppy actions’.” Cuyahoga County Bar Association v. Gerstenlager, 45 Ohio.St.3d 88 (Ohio

1989). On August 16, 1989, Gerstenslager was publicly reprimanded for his failure to turn over

evidence to defense counsel. Although the panel found he did not knowingly refuse to turn over

hospital records, his actions were “grossly negligent and ‘sloppy’.” The misconduct for which he

was publically reprimanded was for activities that occurred from November 11, 1983 to June 21,

1984 as outlined in State v. Kong In Re: William E. Gerstenslager, 1985 WL 8414 at *1-5 (8 Dist.th

Ohio Ct. App. 1985). This activity was a failure to disclose exculpatory evidence to the defense.

Page 23 of 40

VI. Prosecutor and Defense Counsel Shared Offices and Cases During Mr. Tyler’s Trial

A. Overview:

The first trial of Arthur Tyler began July19, 1983. The prosecutor for the trial was William

E. Gerstenslager. On July 29, 1983, Arthur Tyler was found guilty of aggravated murder. On August

9, 1983, following a mitigation hearing, the jury recommended death. On August 31, 1983, Judge

Francis Sweeney sentenced Arthur Tyler to death by electric chair. On that same day, Charles Laurie

was appointed as Mr. Tyler’s attorney for direct appeal.

On direct appeal, a claim of ineffective assistance of counsel was successfully raised. On

December 27, 1984, the Eighth District Court of Appeals reversed and remanded for a new trial.

Following Mr. Laurie’s successful representation, Mr. Tyler requested that Mr. Laurie be named his

attorney for the second trial. Mr. Tyler’s request was granted. At the time, Cuyahoga County named

two people to the defense. Mr. Laurie recommended Daniel Ryan to be his co-counsel. (Exhibit 46,

Ryan Depo, at 10:4-18; Exhibit 47, Laurie Depo, at 5:19-22). Mr. Ryan had been introduced to Mr.

Laurie by Donald Nugent. (Exhibit 46, Ryan Depo at 7:9-15). The second trial began on November3

18, 1985 and the prosecuting attorney was again Mr. Gerstenslager. On October 22, 1985, Mr. Ryan

filed a motion to remove himself from the case and replace himself with Mr. David Joyce. (Exhibit

48, Motion to Assign New Counsel). Joyce was appointed. Ryan explained in his deposition that

he had a potential scheduling conflict due to a civil case which he thought was going to be his

million dollar verdict. (Exhibit 46, Ryan Depo at 17:4-14). However, Ryan participated in the trial,

Donald Nugent was an assistant county prosecutor from 1975-1985. He also had a3

private law practice from 1974-1985. He was a Cuyahoga County Court of Common Pleas judgefrom 1985-1992. He was then a judge on the Eighth District Court of Appeals from 1993-1995. Judge Nugent was appointed a federal district judge for the Northern District of Ohio in 1995.http://www.ohnd.uscourts.gov/home/judges/judge-donald-c-nugent/

Page 24 of 40

but did not have the motion to assign new counsel vacated until after the trial, presumably to ensure

his receipt of the attorney’s fees. (Exhibit 49, Motion to Vacate Order Removing Daniel Ryan).

After Mr. Tyler’s direct appeal from the second trial was denied, a motion to reopen the

appeal based on the ineffective assistance of appellate counsel (also called a Murnahan application)

was filed on June 29, 1993, and denied on June 14, 1994, by the Eighth District Court of Appeals.

(Opinion, State’s Clemency Response, Tyler Judicial Decisions, pages 236-44). Judge Donald

Nugent, with Judges Blackmon and Dyke concurring, denied the ineffective assistance of appellate

counsel claim on a procedural basis and never addressed the merits of any of the claims. One of Mr.

Tyler’s assignments of error addressed the issue that there was a conflict between the prosecutor,

Gerstenslager, and Mr. Tyler’s trial attorneys, Laurie and Ryan, who were all business associates

at the time of Mr. Tyler’s trial. Many of the assignments discussed either Gerstenslager’s

prosecutorial misconduct or trial counsel’s ineffectiveness. A ruling in favor of the motion and

allowing the direct appeal to be reopened would have meant conceding that there was a meritorious

ineffective assistance of trial counsel claim or that prejudicial prosecutorial misconduct occurred.

B. Relationship between Prosecutor Gerstenslager and Charles Laurie:

On October 10, 1983, Charles Laurie sent a letter to Mr. Tyler on Laurie, Hull & Doyle

letterhead. This letterhead included the name of Donald C. Nugent, who would later be the same

Judge Nugent that dismissed Mr. Tyler’s Murnahan application. Another name appears on this

letterhead: William E. Gerstenslager. Mr. Tyler could not have anticipated the potential issues with

Judge Nugent, but Mr. Tyler was understandably concerned when he saw Gerstenslager’s name atop

the letter from Laurie. (Exhibit 50, Letter from Laurie to Tyler, dated 10/10/1983).

Page 25 of 40

After Mr. Tyler received this letter, he asked Laurie if this was the same Gerstenslager that

prosecuted him. On September 27, 1984, Laurie confirmed that it was the same man, but that

Gerstenslager shared office space with Laurie. He stated that when Laurie was assigned to represent

Mr. Tyler, “he [Gerstenslager] removed himself from the case and has had nothing at all to do with

your [Tyler’s] appeal.” (Exhibit 51, Letter from Laurie to Tyler dated 9/27/1984).

Strangely, Laurie felt that if criminal defense counsel and the opposing prosecutor were

working together on a civil case, this need not be revealed to the criminal client. (Exhibit 47, Laurie

Depo, at 9:1-23). This is completely contrary to the Rules of Professional Conduct. Rule 1.9(b)

states:

A lawyer shall not knowingly represent a person in the same or a substantially relatedmatter in which a firm with which the lawyer formerly was associated had previouslyrepresented a client 1) whose interests are materially adverse to that person; and 2)about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c)that is material to the matter; unless the former client gives informed consent,confirmed in writing.

Laurie accepted Mr. Tyler’s case at a time when Gerstenslager was still associated with Laurie, Hull

& Doyle. Laurie was clearly aware that this could be a potential issue, evidenced through his

response to Mr. Tyler’s letter. Gerstenslager appeared on the Laurie Hull & Doyle letterhead in 1985

after the second trial had been granted and retrial had proceedings had commenced. (Exhibit 52,

Released signed by Arthur Tyler on letterhead dated 4/22/1985).4

Additionally Ryan, Laurie, and Gerstenslager all claimed that they were not a part4

of an association, but rather they were in an office sharing agreement. They say the name of thearrangement was Law Office Management. Strangely, Laurie rarely used Law Office Managementletterheads. Instead he used the letterhead of his firm. In State v. Myers, 2005 WL 3009108, *2(Ohio 10 Dist. Ct. App. 2005), the court of appeals held that the term “law firm” could potentiallyth

mean “any group of attorneys that may be associated in some fashion, such as by renting office spacefrom another practitioner, or by sharing the cost of office space and expenses.” The Court goes onto argue “that the same reasoning can be employed when the financial interests of attorneys in the

Page 26 of 40

C. Relationship between Prosecutor Gerstenslager and Daniel Ryan:

Ryan worked in the same law office sharing arrangement where Laurie and Gerstenslager

were members. During this deposition, Ryan frequently discussed his high level of respect for and

friendship with Gerstenslager. (Exhibit 46, Ryan Depo at, 25:3-4; 40:19-20; 43:20). Ryan also

frequently discussed his belief that Mr. Tyler’s case is the case that ruined his relationship with

Gerstenslager. (Exhibit 46, Ryan Depo at 24:21-25:4; 40:21-24; 40:25-41:3; 44:13-18; 44:20-45:5).

Gerstenslager and Ryan were working together on two personal injury cases and it is likely that they

were both a 50/50 fee sharing arrangement. (Exhibit 46, Ryan Depo, at 15:4-5; 43:17-24). Following

Mr. Tyler’s case, and Gerstenslager’s newfound distrust in Ryan, Gerstenslager requested that Ryan

return the referral cases. “He didn’t want [Ryan] working on it and [Ryan] respected

[Gerstenslager’s] opinion.” (Exhibit 46, Ryan Depo, at 44:16-18).

Ryan revealed that he and Laurie had an office sharing arrangement with Gerstenslager. He

does not have “a specific recollection” of revealing the shared economic interest though. (Exhibit

46, Ryan Depo at 45:9-17). When asked if he revealed the economic relationship with Mr. Tyler,

Ryan states, “I can’t say for sure, but I may have. It wasn’t a big deal. He knew that Bill and I had

practiced law together. I explained it to him. Arthur was pretty much running his own show.”

(Exhibit 46, Ryan Depo at 45:24-46:2).

Contrary to what Ryan states, it was indeed a big deal. The Code of Professional Conduct at

the time that Ryan was representing Arthur Tyler and working on civil cases referred to him by

Gerstenslager, required that Ryan decline proffered employment from Gerstenslager unless it was

private sector may be at stake even though their relationship does not share the formality of apartnership or professional association.” Id. Laurie’s understanding of his duty to disclose all of theaspects of the relationships with Gerstenslager was entirely incorrect.

Page 27 of 40

obvious he could adequately represent both parties and both parties consent after full disclosure.5

First Ryan did not fully disclose to Mr. Tyler the extent of his relationship with Gerstenslager

because he failed to tell Mr. Tyler that Gerstenslager had referred to Ryan a case that would have

resulted in a payday for Ryan. Further the Code called for lawyers to “avoid even the appearance of

professional impropriety.” Ryan’s failure to fully disclose to Mr. Tyler his relationship with 6

Gerstenslager created the appearance of impropriety. Even if it did not affect his representation, Mr.

Tyler should have been fully informed and consented to Ryan’s continued work on the case.

Ryan also referenced previously working with Gerstenslager during their time at the Ohio

Bell Telephone Company as well as when both attorneys were working at the Cuyahoga County

Prosecutor’s office. (Exhibit 46, Ryan Depo at 13:20-14:5). In Joyce’s deposition, he states, “[Ryan]

would be the one who was always talking to [Gerstenslager].” (Exhibit 53, Joyce Depo at 26:21-22).

He goes on further to say, “I think [Ryan and Gerstenslager] were friends. Obviously they had a long

acquaintance.” (Exhibit 53, Joyce Depo at 26:24-25). Joyce remarked that “[Ryan] felt he was doing

5

DR 5-105. REFUSING TO ACCEPT OR CONTINUE EMPLOYMENT IF THE INTERESTS OFANOTHER CLIENT MAY IMPAIR THE INDEPENDENT PROFESSIONAL JUDGMENT OFTHE LAWYER. (A) A lawyer shall decline proffered employment if the exercise of his independent professionaljudgment in behalf of a client will be or is likely to be adversely affected by the acceptance of theproffered employment, except to the extent permitted under DR 5-105(C) * * *(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if itis obvious that he can adequately represent the interest of each and if each consents to therepresentation after full disclosure of the possible effect of such representation on the exercise of hisindependent professional judgment on behalf of each.

CANON 9: A Lawyer Should Avoid Even the Appearance of Professional6

Impropriety

Page 28 of 40

what he felt necessary to keep his relationship with Gerstenslager because they might try another

case together.” (Exhibit 53, Joyce Depo at 27:13-16).

Unfortunately, Gerstenslager’s deposition reveals very little about the circumstances of Mr.

Tyler’s case, and he professed that “the second trial I don’t even remember.” (Exhibit 54,

Gerstenslager Depo at 8:5). Strangely, though, he could remember the fact that Mr. Tyler’s first trial

attorney owned only two dirty suits that he wore to court. (Exhibit 54, Gerstenslager Depo at 6:24-

25).

D. Relationship between Ryan and Joyce:

There was a clear struggle between Ryan and Joyce. Joyce’s concern with Ryan’s relationship

with Gerstenslager is significant. Reading their respective depositions shows the antagonistic

relationship between the two attorneys. Joyce said that if Ryan worships something it is the dollar

sign. (Exhibit 53, Joyce Depo at 18:8-9). Ryan stated, “My biggest mistake was getting Mr. Joyce

involved.” (Exhibit 46, Ryan Depo at 49:10-11). Ryan stated that the Judge did not formally approve

Joyce as one of the trial attorneys. (Exhibit 46, Ryan Depo at 17:25-18:2). This is not true. Ryan

wrote a motion to assign Joyce as new counsel, which was granted, as well as a motion to vacate

order removing himself as attorney of record, which, again, was granted. Ryan claimed that Joyce

offered to stay involved in the case for free. (Exhibit 46, Ryan Depo at 19:13-15). After the trial,

Joyce sued Ryan for attorney’s fees. The sheer animosity between the two attorneys serving in some

capacity as co-counsel can not have been good for Mr. Tyler’s trial. No matter which tale of the trial

attorneys you believe, Joyce or Ryan, it is clear that they had very different feelings on how to

conduct the trial. And that was reflected in Ryan’s closing argument before the jury at the mitigation

Page 29 of 40

trial. (Second Trial Tr. at 317-18, State’s Clemency Response, Tyler Second Trial pages 3175-3176).

E. Relationship Between Judge Nugent and Both the Defense and Prosecution:

Before Judge Nugent ruled on Mr. Tyler’s Murnahan Application, he too was in this odd

office sharing arrangement with Laurie, Gerstenslager and Ryan. (Exhibit 50, Letter from Laurie

to Tyler dated 10/10/1983; Exhibit 55, Letter from Laurie to Tyler dated 6/24/1984; Exhibit 56,

Letter from Laurie to Corrigan dated 3/6/1985; Exhibit 52, Release signed by Arthur Tyler on

letterhead dated 4/22/1985). From 1983-1985, Judge Nugent’s name appears on the letterhead of

Laurie, Hull & Doyle. Laurie and Judge Nugent both graduated from Cleveland Marshall College

of Law in Cleveland, Ohio in 1974 and were admitted to the Ohio Bar on November 9, 1974. Later,

Judge Nugent introduced Ryan to Laurie, because Judge Nugent was in a similar situation to that

of Ryan and Gerstenslager: assistant county prosecutor with a private civil practice on the side.

(Exhibit 46, Ryan Depo at 7:9-15; Exhibit 54, Gerstenslager Depo at 3:25-4:1). Judge Nugent was

associated with Ryan, Laurie and Gerstenslager at the time that Laurie was first assigned to Mr.

Tyler’s direct appeal of the first trial. He was still at Laurie, Hull & Doyle when Laurie, and later

Ryan, were assigned to also handle Mr. Tyler’s second trial. A Murnahan Application requires a

determination of ineffective assistance of appellate counsel, but in order to do that a court must find

that there was a meritorious claim that appellate counsel failed to raise. These claims tend to be

ineffective assistance of trial counsel or prosecutorial misconduct claims. Consequently Judge

Nugent would have had to determine that there was a meritorious claim of misconduct by three of

his former coworkers, with whom he was associated at the time of the trial, which was being

appealed. As noted previously, the application was dismissed on procedural grounds without

addressing the merits of any of the underlying claims.

Page 30 of 40

Judge Nugent should have disqualified himself from the Murnahan litigation. In Ohio,

during the hearing of this motion, the disqualification rule read: “A judge shall disqualify himself

or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including

but not limited to instances where:... a lawyer with whom the judge previously practiced law served

during such association as a lawyer concerning the matter,...” Oh. St. C.J.C. Canon 3(E)(1)(b)

(1973). Even if Judge Nugent had no knowledge of Tyler’s case from when he was in the law office,

he was required to disqualify himself. Disqualification was necessary at least to prevent an

appearance of impropriety.

VII. The 1985 Jury was Coerced into Returning a Death Sentence

On Monday afternoon, December 16, 1985, having been convicted of the homicide of Mr.

Leach, Arthur Tyler’s case was submitted to the jury for penalty phase deliberations. After two days

of deliberations the jury presented the court with a question.

If one group of jurors is positive that the aggravating factors outweigh the mitigatingfactors and wishes to recommend the death penalty, but the remaining jurors arejust as positive that the mitigating factors are strong enough not to recommendthe death penalty and neither group is willing to change that decision, what isthe proper procedure to follow at that point?

(Exhibit 57, Question from Jury). Under Ohio’s capital sentencing scheme at the time of Mr.

Tyler’s trial, after a person was found guilty, if the jury was deadlocked or split about whether a

death sentence should be imposed, a life sentence was to be automatically imposed. O.R.C. §

2929.03(D)(2) says clearly that in order to have a death sentence imposed, the jury must be

unanimous:

Absent such a [unanimous] finding, the jury SHALL recommend that the offenderbe sentenced to LIFE IMPRISONMENT with parole eligibility after serving twenty

Page 31 of 40

full years of imprisonment or to LIFE IMPRISONMENT after serving thirty fullyears of imprisonment.”

But, in response to the jury’s question, the judge did not follow the law. The judge did not tell the

jury that Mr. Tyler would be sentenced to life, and the judge did not tell them to go back and decide

whether he should serve 20 full years or 30 full years before even becoming eligible for parole.

Instead the judge instructed the jury:

Ladies and gentlemen of the jury, the Court is advised that you have indicateddifficulty in reaching a verdict. Now the Court suggests to you that since the trial ofthis case means a great deal to the parties and to the public and has been expensivein time, efforts and money, the Court urges you to make every reasonable effort toagree on a verdict. You may consider that this case must at some time be decidedand that you were selected in the same manner and from the same sources fromwhich any future jury must be selected. There is no reason to suppose that the casewould ever be submitted to twelve individuals more intelligent, more impartial ormore competent to decide it, or that additional evidence will be produced by eitherside. It is your duty to make every reasonable effort to decide the case if you canconscientiously do so.

The Court instructs you to return to the jury room and continue your deliberations. So, that is it. I mean, what it says essentially, is that you know – I mean, you can doit as well as anybody. You can just go back there and deliberate. We are not helpingyou very much, I know, but look, consider what was the evidence that was presented. I have the charge back there, you have the charge with you. If you want to look at it,you can certainly look at it. And none of these decisions are easy, but they have tobe made. And just do the best you can, because, as I said, who is going to be betterable to do it. So, go on back there.

(Second Trial Tr. at 380-81, State’s Clemency Response, Tyler Second Trial pages 3238-39). While

the trial court may not have meant to instruct the jury in such a coercive manner, the messages

received by the jury were quite significant.

- that the trial of this case “meant a great deal to the public”

- and he told them that the trial had been “expensive in time, efforts and money,”

Page 32 of 40

- and he urged them “to make every reasonable effort to agree [unanimously] ona verdict.”

- and he told them that “this case must at some time be decided,” either by them orby “some future jury,”

- and if by a future jury, he told them that jury “would be selected in the samemanner as the current jurors were selected”

- and he explained that as a result, there was “no reason to suppose that the casewould ever be submitted to twelve individuals more intelligent, more impartialor more competent to decide it.”

- Finally, the Court told them that the Court knew this would not be an easy decisionfor them “but it had to be made.” And the Court told them to “just do the best youcan, because, as I said, who is going to be better able to do it. So, go on backthere.”

And the Court “instructed them to continue your deliberations.”

The jury did return to deliberate, having been told that after two days of deliberations, even

though they were divided about whether Mr. Tyler should be given a life sentence, and even though

they were all positive in their determinations, that verdict was unacceptable. They needed to

deliberate some more and come to a unanimous decision. And the following day the jury returned

with a death verdict.

The instruction the trial court gave to the jury was simply incorrect and contrary to Ohio law.

Under Ohio’s death penalty statute at that time, there would not have been a new jury to retry the

sentencing phase, especially when some jurors had decided they were positive death was not

warranted.

When the Ohio Supreme Court reviewed this issue on direct appeal of Mr. Tyler’s conviction

and sentence, it found the instruction was error, but “harmless” and that it did not make any

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difference. (State v. Tyler, 553 N.E.2d 576 (Ohio 1990); State’s Clemency Response, Tyler Judicial

Decisions, page 169).

Recently, almost 30 years later, one of those jurors who was “positive” that death was not

warranted, Ms. Angela Acy -Hardaway, provided an Affidavit in which she recalled her experience

during this deliberation. (Exhibit 58, Affidavit of Angela Acy-Hardaway). She attested that “after

being deadlocked during the penalty phase of deliberations, upon being ordered by the judge to go

back and make a decision," she was of the belief the jurors had no option other than to sentence Mr.

Tyler to death.

Having the Ohio Supreme Court on record recognizing the jury instruction was clearly a

misstatement of Ohio law, Mr. Tyler was hopeful that the federal court would rule that the mistake

could not possibly be harmless. The claim was properly raised in Mr. Tyler’s federal Petition for a

Writ of Habeas Corpus. And it was certainly one of his most compelling claims. But then something

truly unusual happened. When the district court denied Mr. Tyler’s habeas petition on May 20,

2002, the court never addressed this claim.

Dejected for sure, Mr. Tyler noticed almost immediately that the court had simply not ruled

on this most important claim. Five days after the decision came out, he wrote his habeas lawyer.

In a letter to habeas counsel dated May 25, 2002, Mr. Tyler raised an agitated concern about the

decision:

And I don’t know if you know it or not? But [the Judge] never answered my deadlockissue claim , and we have to get back with him on that because that is the key theonly key I ever banked on

We need his answer to that, or at least file a motion to him to let him know he missedit an [sic] its importance to this case . . . You let pass I’ll die, you get it answered,

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that’s my one chance not to die with what he’s done, my only chance. I need you tomake him answer that issue you get it in you save my life.

Get this issue answered. The judge cited it in his table of contents (Claim 24) but henever answered it period . . . and he needs to . . . that’s what will save my life rightnow.

(Exhibit 59, Letter from Arthur Tyler to Rick Kerger).

Mr. Tyler surely expected his habeas counsel to respond to his demand by filing something

with the district court. But unexplainedly, his habeas counsel did not take any action. Three weeks

later, in a letter dated June 16, 2002, he wrote to his lawyer again. He explained to his lawyer that

he “didn’t even know the jury had come back deadlocked until he got a copy of his transcript.” He

repeated his belief, that this was his “best issue.” And he repeated his concern that “the judge . . .

never even addressed the dead lock issue.” (Exhibit 59, Letter from Arthur Tyler to Rick Kerger).

But for reasons unexplained, his lawyer never went back to the district court, never brought

to the court’s attention that the court had inadvertently failed to adjudicate that claim, and perhaps

most importantly, never asked the court to adjudicate the claim so it could be addressed if necessary

on appeal. And so it came to pass that this claim was lost and never resolved by any federal court.

Clearly frustrated, and in an act of unsophisticated but desperate diligence, Mr. Tyler, acting

pro se, returned to state post-conviction court and tried to relitigate his case himself. And for the

next 2+ years, in almost non-stop litigation, he did just that. He raised the issue of the erroneous jury

instructions during the penalty phase writing:

when the jury deadlocked, and reported to the court that, they were deadlocked withone group finding that the aggravating circumstances outweighed the mitigatingfactors, and the other group finding the opposite, and indicate [sic] neither group waswilling to change their decision.

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(Exhibit 40, Petition for Post Conviction Relief). But, once you have had your opportunity to litigate

something you cannot go back for a do-over. You cannot do it in state court, and you cannot do it

in federal court.

Not surprisingly, and opposed at every turn by the State’s lawyers, Mr. Tyler’s pro se petition

was dismissed on procedural grounds in the state trial court. It was dismissed on procedural grounds

in the state appellate court, and before the Ohio Supreme Court. When Mr. Tyler brought it back

into federal court, it was again dismissed on procedural grounds and over two years later it finally

died in the Sixth Circuit. In rejecting his pro-se application the Sixth Circuit stated the obvious,

noting it was clear “he intends to stand on the claims that were raised [in his original habeas

petition]. . . . Nothing in Tyler’s pro se motion for authorization indicates that he proposes to raise

any new claim.” (Tyler v. Anderson, Case No. 08-3251; State’s Clemency Response, Tyler Judicial

Decisions, page 385).

Over five years later, with his case long decided and over, and now with an execution date

looming, and new additional counsel on board to assist with Clemency preparation, on August 16,

2013, original habeas counsel filed a Motion to Withdraw. (Exhibit 60, Motion to Withdraw by Rick

Kerger). In the motion, counsel accepted “full responsibility for the failure to bring the claim to the

Court’s attention earlier and in a more timely fashion.” He noted that “After the habeas petition was

denied by the district court in 2002 . . . Counsel had failed to notice that the district court did not

address” the critical issue. He noted that Mr. Tyler had brought the improper and coercive jury

instruction issue directly to counsel’s attention in timely letters. He noted that he had “no doubt that

the letters were received.” And Counsel wrote this in his Motion to Withdraw:

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To suggest that Mr. Tyler is at fault for counsel’s failures is inappropriate, . . . thebottom line is the failure to bring this important issue to the attention of the courtearlier was not Mr. Tyler’s fault, but that of undersigned counsel. Therefore, in theinterest of justice and in recognition of counsel’s inexcusable neglect in Mr. Tyler’scase, counsel moves to withdraw from this habeas case.

(Exhibit 60, Motion to Withdraw). The motion was granted the very next day. The court

simultaneously appointed the Capital Habeas Unit (CHU) of the Office of the Federal Public

Defender for the Northern District of Ohio as lead counsel for Petitioner.

Counsel with the CHU had filed a motion with the federal district court under Fed. R. Civ.

Proc. 60(b) informing the court that it had failed to address the jury instruction claim. The court

acknowledged that it had failed to address the issue, but because it had been eleven years since the

court had ruled, the motion was too late. The court denied the motion, but did authorize an appeal

to the Sixth Circuit Court of Appeals. The Sixth Circuit recently refused to allow this claim to be

adjudicated on the merits, saying, in spite of Arthur Tyler’s repeated efforts to get it litigated, Mr.

Tyler should have been more diligent ten years ago.

VIII. The State of Ohio offered Arthur Tyler a deal if he plead guilty.

When Arthur Tyler was first questioned by the police, he was told if he plead guilty and

agreed to testify against Leroy Head, that he would be sentenced to life imprisonment with parole

after 20 years. This was the same deal that Head received. Mr. Tyler though declined to testify

against Head and to plead guilty to a crime he neither planned nor committed, nor actually saw who

shot the victim.

At the trial in 1985, the question about whether Mr. Tyler would accept a plea offer was

addressed by Judge Sweeney on the record. Judge Sweeney asked Mr. Tyler if he were offered a

plea by the prosecution, would he take it. Mr. Tyler responded “No, sir. I’m innocent.” (Second

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Trial Tr. at 17; State Clemency Response, Tyler Second Trial page 17). In Mr. Tyler’s unsworn

statement to the jury, he mentioned that he was asked to plea bargain, but he refused. (Second Trial

Tr. at 282; State’s Clemency Response, Tyler Second Trial at 3138). Defense counsel and the

prosecutor discussed the fact there was a plea offer to Mr. Tyler, even during the trial, in their closing

arguments to the jury. (Second Trial Tr. at 310-11; 332-33; State’s Clemency Response, Tyler

Second Trial pages 3168-69; 3190-91). Even though the prosecutor offered a life sentence with

parole after 20 years to Arthur Tyler, the fact that Mr. Tyler maintained he was innocent throughout

both trials, meant the State of Ohio had to seek the ultimate punishment because:

It is about someone who took another life and what punishment is appropriate forthat. The statutes have it and the statutes have a procedure for punishment in everycase whether it is a traffic ticket or whether it is an aggravated murder specification.

(Second Trial Tr. at 332; State Clemency Response, Tyler Second Trial page 3190). That is not

justice, that is just revenge. That is a recognition by the State of Ohio that Arthur Tyler is not the

worst of the worst, and that he should have been treated the same as the co-defendant..

IX. Conclusion

There is grave doubt in this case. At this point, there is no way to know definitively what

happened that tragic night 31 years ago. But we believe that the evidence indicates clearly that Leroy

Head is the person responsible for the murder of Sander Leach. The opportunity to have a fair

hearing where both Mr. Tyler and the prosecution could question Leroy Head, the only eyewitness,

about his various statements has long passed. The prosecution has thwarted every attempt to present

Leroy Head in person and under oath before a judge, in both state and federal court.

The unfairness in the proceedings has plagued this case for decades. Head was offered a deal

to testify against Arthur Tyler, who was offered the same deal if he had testified against Head in the

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first place. Even after Head’s deal was completed, at the retrial, the prosecution was willing to allow

Mr. Tyler to plead to the same sentence as Head. But because Mr. Tyler chose to go to trial and

assert his innocence, he should be saddled with the ultimate punishment and now executed?

The prosecution withheld critical evidence from the defense. The prosecution had to have

known that Mr. Leach had money in his pocket, but chose to hid that fact from the defense, and then

argued to the jury that Mr. Leach had no money and was killed because of that. The prosecution also

withheld a statement from another person who stated Head confessed to the murder.

The defense attorneys and the prosecutor had an obvious conflict of interest. They seemed

more concerned about their private civil law practice than they were about seeing justice was served

both for Arthur Tyler and the people of Cuyahoga County.

The jury was coerced into returning a death sentence verdict. Even if one believes Arthur

Tyler is guilty, at the very least, he should never have been put back on death row after the jury came

back with their deadlock verdict. The jury was told in no uncertain terms by the trial court that they

had to return with a death sentence.

Judge James D. Sweeney, the judge who presided over Arthur Tyler’s second trial,

recognized even at the time of the trial, the case against Mr. Tyler was problematic. Judge Sweeney

agrees clemency is warranted for Mr. Tyler.

Commuting [Mr. Tyler’s] sentence would be entirely fair and proportional when onereviews the events of this case and when one further considers that the codefendant,who has admitted on many occasions that he was the actual shooter is no longerconfined.

(Exhibit 61, Affidavit of James D. Sweeney, 9/19/2012). There have been presented here a

multitude of reasons that individually, and certainly collectively, warrant this Board recommending

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to Governor Kasich that executive clemency be granted. Therefore, on behalf of Arthur Tyler, we

beseech the Ohio Parole Board and Governor John Kasich to commute the death sentence imposed

to a life sentence, and give Mr. Tyler credit for time served and release him from prison now.

Respectfully submitted,

/s/ Vicki Ruth Adams Werneke VICKI RUTH ADAMS WERNEKE (0088560)Assistant Federal Public Defender

/s/ Alan C. Rossman ALAN C. ROSSMAN (0019893)Assistant Federal Public DefenderCapital Habeas Unit1660 West Second Street, Suite 750Cleveland, Ohio 44113(216) 522-4856 (216) 522-1951 (fax)vicki_werneke@fd.orgalan_rossman@fd.org

/s/ Kathryn L. Sandford KATHRYN L. SANDFORD (0063985)Supervisor, Death Penalty DivisionOffice of the Ohio Public Defender250 East Broad Street, Suite 1400Columbus, OH 43215(614) 466-5394kathryn.sandford@opd.ohio.gov

COUNSEL FOR ARTHUR TYLER

With special assistance from Casandra Tice, Extern with FPDJ.D. Candidate 2014Case Western Reserve University School of Law

Date: April 17, 2014

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