Ohio Supreme Court questions lawyer arguing for Clayton man’s life


Ohio Supreme Court justices poked holes on Tuesday in the arguments of the lawyer who wants them to spare the life of the second-youngest person on Ohio’s Death Row.

RELATED: High court to hear local man’s death penalty appeal

Chief Justice Maureen O’Connor and Justice Terrence O’Donnell were the primary questioners of Timothy McKenna, the lawyer arguing for the life of Austin Myers, 22, of Clayton. The justices also questioned Warren County Prosecutor David Fornshell, who personally argued that Myers should be executed for the murder of Justin Back, 18, in January 2014.

McKenna argued for the high court to overturn Myers’ death sentence on a variety of grounds, including his youth — Myers was 18 at the time and the youngest facing the death penalty in Ohio — and the fact his co-defendant, Timothy Mosley, got life in prison without parole in exchange for his testimony against Myers.

MORE: Wife waives right to jury trial while husband faces death penalty

O’Donnell pointed out criminal law allowed for Myers to get a harsher sentence although he had a co-defendant who actually committed the murder. Back was stabbed 21 times on the floor during a struggle on the kitchen floor of his home.

“When one does one part, the other does another, both are equally guilty. You know that law,” O’Donnell said during an hour of oral arguments.

O’Donnell pointed out it was Myers who led Mosley to Back’s home outside Waynesville, a point in line with the prosecution’s position.

“They were equally culpable,” McKenna countered. “They should have the same penalty.”

O’Connor pointed out the long history of defendants who cooperate with prosecutors getting lighter sentences.

“It happens all the time,” she said.

MORE: Ohio Supreme Court justice boasts of bedding 50 women in defense of ‘all heterosexual males’

McKenna also accused investigators of reading Myers his Miranda rights “late in the game” and failing to provide him a lawyer during interrogation at the Clayton Police Department.

Justice Judith French pointed out Myers was told he was “free to go.”

“How much clearer do the officers need to be?” she asked.

Fornshell said Myers was read his rights and offered legal representation, and was not questioned by Clayton police about the case before the deputies arrived to interrogate Myers and Mosley in adjoining rooms at the Clayton Police Department.

When the deputies arrived, “he was sleeping in the back of a Clayton Police Department cruiser,” Fornshell said, since he was denied re-admittance to the Mosley home after initial questioning.

“Mr. Myers didn’t have a place to live,” Fornshell said, adding it was 15 degrees below zero on the night they were arrested after dumping the body in Preble County.

MORE: New death date set for man after execution halted

Fornshell listed cases in which the Ohio Supreme Court had affirmed death penalties for 18- and 19-year-olds and pointed out Myers was a year older than 18, the minimum age standard set for the death penalty in the state.

In response to questions from O’Donnell, Fornshell said there was no diagnosis of a mental condition and said defense lawyers intentionally decided against calling an expert to describe Myers’ mental condition.

“He could have called a mental health expert. He made the decision not to,” Fornshell said.

Fornshell also emphasized that Myers was the one who knew Back and knew that he had a safe at the home outside Waynesville.

In addition, Fornshell laid out a series of steps taken by Myers over two days leading to the killing.

Follow Lawrence Budd on Twitter

“Austin was more culpable,” he said, urging the high court to “impose the sentence of death.”

McKenna pointed to a notebook produced right before the trial as evidence Mosley was more involved in the planning than prosecutors portrayed and claimed that Myers’ lawyers erred in not calling a mental health expert.

“That expert could have swayed one juror,” he said.

The court typically issues opinions within six months, but it was unclear when a decision would be issued in this case.




Next Up in Local

Downtown Dayton’s beloved holiday tradition gets some new additions
Downtown Dayton’s beloved holiday tradition gets some new additions

Dayton’s long-running holiday tradition, the Rike’s Wonderland Windows, has something new this year.  Two new window boxes and four new elves are making their debut in the Wintergarden of the Schuster Performing Arts Center.  The first new box is currently on view showcasing a scene from a performance of The Nutcracker on stage...
Packers QB Aaron Rodgers donating $1M to assist California wildfire victims
Packers QB Aaron Rodgers donating $1M to assist California wildfire victims

Green Bay Packers quarterback Aaron Rodgers has pledged $1 million to help victims recover from the Camp Fire that has devastated California, the Milwaukee Journal Sentinel reported. >> Read more trending news  Rodgers, a Northern California native who grew up in Chico and attended Butte College near Paradise, tweeted a video Wednesday...
There’s a reason tons of people will be headed to Tank’s this holiday weekend
There’s a reason tons of people will be headed to Tank’s this holiday weekend

Quick question: What's your favorite casual late night neighborhood hangout spot that serves all-day breakfast, burgers and overstuffed deli sandwiches? If you said Tank's Bar & Grill we're operating on the same wave length.  The popular spot that has become a mainstay since opening in 1987 will mark its fifth year serving Thanksgiving dinner...
98 Degrees is ‘super excited about being back in Cincinnati’ for Christmas show
98 Degrees is ‘super excited about being back in Cincinnati’ for Christmas show

Brothers Nick Lachey and Drew Lachey, Justin Jeffre and Jeff Timmons — known as 98 Degrees — will bring the “98 Degrees at Christmas 2018” to Cincinnati’s Aronoff Center on Saturday, Nov. 24. at 8 p.m. Tickets for the concert start at $39.50 and can be purchased at www.cincinnatiarts.org. As part of a 36-city tour that...
Here are 5 things shoppers forget to buy at Thanksgiving
Here are 5 things shoppers forget to buy at Thanksgiving

As shoppers rush around during the frantic holiday season among major crowds, they easily forget that last item on the Thanksgiving dinner list, store managers said. The five most commonly forgotten buys are cream cheese, cream of mushroom soup for casseroles and gravy, celery, butter and sweet potatoes, according to Meijer. Average families are expected...
More Stories