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Does this convicted killer deserve to die?

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Posted at 10:00 AM, Oct 17, 2016
and last updated 2016-10-17 14:31:07-04

Austin Myers became the youngest inmate on Ohio's death row two years ago after a judge sentenced him to the ultimate punishment for the 2014 murder of Warren County U.S. Navy recruit Justin Back.

Now the 21-year-old convicted killer is asking the Ohio Supreme Court to overthrow his murder conviction and death penalty sentence, arguing, among other issues, that he didn't actually kill the victim. He received a harsher sentence than his co-defendant, Tim Mosley, who he says carried out the actual murder.

"The imposition of the death penalty was so grossly unfair that it shocks the conscience in that the actual killer Mosley received life without (parole), while the accomplice Myers received the death penalty," says an appeal filed last month by Myers' attorneys, Timothy McKenna and Roger Kirk.

Indeed, legal experts say that executions of people who did not directly kill their victims are incredibly rare. The Death Penalty Information Center lists just 10 such cases out of the more than 1,400 executions since the Supreme Court reinstated the death penalty in 1976.

The case of a Texas man facing execution for a murder he did not directly take part in attracted national attention this summer. The Texas Court of Criminal Appeals halted the scheduled execution of Jeff Wood six days before he was set to die by lethal injection.

"(Myers' case) is a rare scenario where the actual physical killer cuts a deal and gets out of the death penalty," said Mark Krumbein, a former prosecutor turned defense attorney who's defended more than a dozen clients in capital murder cases. "I don't know how the (appeals) court would react to that." 

But prosecutors in the case argue that Myers doesn't fit within that narrow category of convicted killers who face execution under Ohio's felony-murder laws despite not actually killing anyone.

Not only did Myers actively aid in the murder of Back, a 2013 Waynesville High School graduate, they insist, he also masterminded it.

"Austin Myers is a serial killer who got caught after the first time," said Warren County Prosecutor David Fornshell, who prosecuted the case. "He wanted to kill."

 

A plan to kill

It was burglary that initially spurred Myers and Mosley, then 19, to action the day before the Jan. 28, 2014, murder of Back in the Wayne Township home he shared with his parents. But the carefully crafted plot soon changed to something altogether more sinister.

"Sometime in the first few hours, it turned over in Austin's mind as 'How do we kill him and get away with it?' " explained Fornshell. "Austin spent more time planning how to kill (Back) and get away with it than how to burglarize and get away with it."

Also on Myers' kill list, Fornshell said: Back's stepfather, Mark Cates, and Myers' mother and stepfather.

Justin Back's senior photo.

Mosley and Myers first devised a plan in which they would kill Back by injecting him with a syringe filled with cold medicine, but that scheme was thwarted when Myers' credit card was declined while purchasing the items. 

The two then borrowed money from a friend and purchased materials to fashion a garrote, or choking device, along with septic enzymes, which Mosley testified Myers said would aid in the decomposition of Back's body. 

Myers and Mosley visited Back, a childhood friend of Myers, at his home on Corwin Road the afternoon of the murder. Back, who friends say had a penchant for befriending misfits and underdogs, readily invited them in to watch movies.

The plan unfolded in the kitchen. Mosley flung the garrote over Back's head as Myers restrained him. But the device caught on Back's chin and as the teen begged for his life, a panicked Mosley pulled out a pocketknife and stabbed Back 21 times.

"(Mosley) admitted Myers did not know he was going to stab (Back)…" Myers' attorneys wrote in his appeal. "He said Myers told him later he thought he was just punching him as the blade was concealed in his hand."

Mosley and Myers cleaned up the scene and burned their bloodied clothes. They took a gun, safe and some of Back's clothing from the home to make it look like Back had run away before dumping his body below "Crybaby Ridge" in southwest Preble County.

 

Guilt and complicity

The plan unraveled quickly, with Mosley and Myers arrested early the next morning. Both faced a potential death sentence, but prosecutors later struck a deal with Mosley requiring him to testify against Myers in exchange for removing the death penalty from his possible sentence.

Instead, a judge sentenced Mosley, now 22, to life in prison without the possibility of parole.

Myers' attorneys, who did not respond to a request for comment, argue that because Mosley wielded the knife that killed Back -- a knife Mosley admitted Myers did not know he possessed -- he was the more culpable of the duo.

"In this case, if anyone was most deserving of execution, it was the principal offender Tim Mosley who repeatedly stabbed the victim," the appeal says. "If he was not given the death penalty, then accomplice Myers should not be given the death penalty either."

But prosecutors insist that Back would still be alive but for Myers, who they say not only targeted his childhood friend, who Mosley did not know prior to the murder, but also helped carry it out by restraining Back during the attack.

"Neither Myers nor Mosley was an 'accomplice,' " wrote Fornshell in his response to the appeal. "They were both culpable in preparing for, calculating and executing Back's murder."

Moreover, prosecutors say, Mosley cooperated with police early in the case even before a plea deal had been struck and pointed investigators to evidence that independently corroborated his story.

Myers, said Fornshell, continued to minimize his involvement in the case, never expressed remorse and even planned to return to Back's home to kill his stepfather after the pair disposed of Back's body.

"That was, by far, the most difficult decision we had to do in the case," said Fornshell, of the plea deal with Mosley. "By doing the plea agreement with Tim, it allowed us to present the entire story to the jury of what happened. Tim filled in the blanks between the corroborating evidence."

Krumbein said that while it's unlikely for accomplices who did not directly kill a victim to be charged with capital murder, the court will decide if Myers played an equal role in the murder.

"The defense attorney is saying Myers did not do the final actions that killed the victim and therefore he is not the main perpetrator and should not receive the death penalty," he said. "If Myers was holding the victim down while (Mosley) had a knife about to stab the victim, he would have a hard argument that he wasn't really part of the murder." 

Justin Back with his family.

An uphill battle

Myers' attorneys point to 17 other grounds for appeal in the 128-page brief and ask that the court acquit Myers, order a new trial or vacate his death penalty sentence and order a new resentencing hearing.

Among their arguments:

  • Because Myers had turned 19 less than a month before the murder, had no prior record and demonstrated a history of mental health issues, his attorneys argue that he should have been sentenced to life in prison without parole, not the death penalty. Prosecutors counter that, under Ohio law, Myers was an adult and that "plenty of adults have similar backgrounds and do not calculate, design and commit aggravated murder … "
  • Defense attorneys argue that while police read Myers his Miranda rights, they never asked him to waive those rights in writing before he spoke with investigators. Moreover, Myers requested an attorney and was never provided one, his attorneys say. Prosecutors insist that signed written waivers are not required by law and say Myers orally communicated he understood his rights before answering questions. Investigators stopped questioning Myers after he requested an attorney and the interview resumed only after Myers indicated he wanted to make a voluntary statement, prosecutors added.
  • Myers' attorneys accuse prosecutors of failing to disclose to the defense key material evidence they planned to present in court until the eve of the trial. When defense attorneys requested a continuance to review the "last-minute discovery dump," a judge denied the request, they said. "Again, it was trial by ambush by the state who played by any rules it wanted in order to obtain a death penalty conviction of 19-year-old Austin Myers," Myers' attorneys wrote in the appeal. Prosecutors contend they provided newly discovered evidence to Myers' defense attorneys promptly, that defense attorneys had several days to review the new material during the jury selection process and that excluding the evidence was not likely to change the trial's outcome.
  • Attorneys handling Myers' appeal also claim that his trial attorneys did not cross-examine key witnesses, present opening arguments or put on the stand experts who might have swayed jurors from recommending the death penalty -- all decisions prosecutors insist amount to strategic decisions made by defense attorneys, not legal errors.

Myers' lengthy grounds for appeal isn't uncommon, says Krumbein.

"Defense attorneys take any possible issue and at least bring it up and explore it," he explained. "It's like a shotgun. They will hit as many things as they can and hope that some of them will work."

In its evaluation of Myers' appeal, the court will examine whether any of the alleged mistakes are severe enough that it might have affected the outcome of the trial and sentence, said Krumbein.

"Once it goes from the trial level to the court of appeals, the odds of success are much less," he said. "You're fighting an uphill battle."

Many of the arguments made by Myers' attorneys in his appeal appear unlikely to be persuasive, Krumbein said. But, he cautioned, it's difficult to predict how the court might evaluate an appeal in a capital murder case.   

"Any of these grounds for appeal is a possible winner," he said. "All it takes is one issue."