Clemency Petition of Ernest Martin

APPLICATION FOR EXECUTIVE CLEMENCY FOR ERNEST MARTIN

FEBRUARY 25, 2003

TABLE OF CONTENTS

I. Introduction …………………………………………………………………………. 1
II. Ernest Martin’s Death Sentence Constitutes Disproportionate Punishment
1. Ernest Martin, and this offense, are not the “worst of the worst”…………………. 3
A. Ernest Martin
i) Youthfulness at time of offense……………………………………………… 3
ii) Lack of history of violence …………………………………………………. 4
iii) History of dual diagnoses – psychological disorder and mental retardation .. 4
B. Offense
i) Plan was to rob, premeditation for murder lacking …………………………. 8
ii) Victim was shot at night through a door ……………………………………. 9
III. Ernest Martin’s Death Sentence Constitutes Unequal Justice, Particularly Considering His Accomplice Received No Punishment Whatsoever ……………… 9
1) Accomplice/state witness Josephine Pedro got off “scot-free” while Ernest Martin received the death penalty ………………………………………………….. ………… 9
2) Ernest Martin has already spent 20 years in prison for the offense ………….. …… 11
IV. Ernest Martin’s 1983 Death Sentence Resulted From An Unfair And Unreliable Process
1. Ohio Death Penalty Law new in 1983 ……………………………………………… 12
2. Inexperience of trial court led to shoddy, unreliable proceedings………………….. 13
3. Inexperience of defense counsel led to poor representation …….………………… 14
4. Resulting verdict and death sentence unreliable (lingering doubts of guilt) ……… 19
V. Role of Clemency ……………………………………………………………………. 23
VI. Totality of Circumstances Warrant Granting of Clemency ……………………… 25
VII. Clemency Request …………………………………………………………………… 26

I. Introduction

Death is not the appropriate sentence for Ernest Martin. Ernest is not among the “worst of the worst” offenders, and his offense, although tragic, is not among the “worst of the worst” crimes. His sentence of death is an egregious example of disproportionate punishment and unequal justice. This is especially true in light of the fact that the accomplice to the offense received absolutely no punishment whatsoever.

Ernest is not among the “worst of the worst” offenders because: 1) he was young, only 22 years old, at the time of the offense; 2) he did not have a significant criminal history of being physically violent toward others; 3) he has suffered in life from a significant psychological disorder; and 4) he has a significant family history of, and has himself suffered from, serious developmental disabilities inclusive of mental retardation.

This offense is not among the “worst of the worst” offenses because: 1) the evidence indicates there was no plan to commit murder; and 2) it is highly questionable whether the perpetrator actually intended to kill the victim when the lethal shot was fired through a door at night.

Ernest Martin’s sentence of death is grossly unjust when compared to the fact that the accomplice, Josephine Pedro, went unpunished in trade for testifying for the prosecution. Ms. Pedro confessed to her crucial role in the crime, a role corroborated by another state witness who said Ms. Pedro had as much to do with the robbery as did Ernest. Yet, while Ernest received the ultimate sanction, Ms. Pedro, accomplice to the murder, walked away free. This unjust and disparate result is virtually incomprehensible. It is most likely due, however, to the abysmal performance by Ernest’s court-appointed counsel.

All indications are that counsel was hoping for a plea-bargain and were thus totally unprepared when the case went to trial. Counsel presented absolutely no evidence in defense, choosing simply to rest at the close of the prosecution’s case. Most significantly, counsel failed to present lone eye-witness E.J. Rieves-Bey, whose statements were favorable to the defense. Mr. Rieves-Bey was critical because he was the only witness who observed the gunman running away from Mr. Robinson’s store after the shots were fired. Mr. Rieves-Bey consistently stated that Ernest Martin was not the gunman. Defense counsel failed to ensure Mr. Rieves-Bey’s presence, inexplicably relying on prosecutor Carmen Marino to subpoena him to trial.

Defense counsel likewise performed deplorably at Ernest Martin’s mitigation hearing, where they did more harm to their client than good. Their representation was so deficient that the trial judge felt compelled to take over the hearing, calling out into the courtroom audience searching for volunteers to come up and testify on Ernest’s behalf. This stunning departure from proper procedures created the harmful appearance that even Ernest’s own family members had nothing good to say about him.

Undoubtedly, contributing to defense counsel’s appalling performance was their inexperience under the new capital statute. Ernest’s case was one of the earliest to be tried under Ohio’s new death penalty scheme. Consequently all parties involved lacked experience with the laws and proper procedures. This inexperience resulted in deficiencies and irregularities in the proceedings that contributed significantly to the manifest injustice Ernest incurred. Ernest Martin should not have to pay with his life simply because his trial occurred under these circumstances.

For these reasons, and the reasons more fully presented below, Ernest Martin’s death sentence should not be countenanced by the State of Ohio. In the interests of justice and mercy, Ernest Martin pleads for a recommendation of clemency by the Parole Board in the form of commutation of his sentence.

II. Ernest Martin’s Death Sentence Constitutes Disproportionate Punishment

1. Ernest Martin, and this offense, are not the “worst of the worst”

Virtually all of society agrees that if the government chooses to impose capital punishment, such punishment should be reserved for the “worst of the worst” criminals – i.e., those who commit the most heinous and reprehensible of crimes and those who are considered by society to be the most blameworthy. Ernest Martin does not fall into the category of the “worst of the worst” criminals. This offense does not fall into the category of the “worst of the worst” offenses.

A. Ernest Martin

i) Youthfulness at time of offense

Ernest Martin was young, only 22 years of age, at the time of the instant offense. His youthfulness should be considered as a factor weighing in favor of mercy and the granting of clemency. This is particularly true here, where -- assuming his involvement in the offense -- his immaturity and concomitant proclivity for rash behavior were likely contributing factors in the shooting that occurred.

Youth of the offender is legally recognized as a mitigating factor under Ohio’s death penalty statutory scheme. Ohio Revised Code Section 2929.04, which sets forth the legal criteria for imposition of a death sentence, lists seven (7) factors that are to be considered by the court or trial jury as weighing in mitigation of the offense. The factor listed as number four (4) is “[t]he youth of the offender.”

Ernest Martin was a young man back in January of 1983. He is now 42 years old. He has matured and, like anyone who has aged twenty years, is a very different person today than he was then. His youthfulness at the time should be taken into account by this Board in its consideration of clemency.

ii) Lack of history of violence

Ernest Martin’s life history and prior record do not reflect a depraved human being deserving society’s most severe punishment. His past criminal record is relatively short and demonstrates very little history of violence.

As can be seen from the trial court’s sentencing opinion, Ernest’s juvenile offenses were not serious. Of his three juvenile convictions, one involved breaking a window worth only $6.50 (six dollars and fifty cents), and another involved a theft of a $15 watch. The third conviction was for operating an automobile without the owner’s permission. None of these offenses involved any physical violence of any kind.

Ernest’s adult record also does not reflect that of a hard-core criminal. Prior to the instant offense Ernest was convicted on three occasions. One conviction was for receiving stolen property, another was for carrying a concealed weapon, and the third was for an assault. The assault is the only conviction on either Ernest Martin’s juvenile or adult record that is an offense involving physical violence. Even that offense, however, is somewhat misleading, as it involved a fight with a neighbor over windows being broken out of the Martin’s car. Ernest has always maintained that the neighbor instigated the fight.

Ernest’s record does not depict a violent human being, let alone a cold-blooded killer. The subject offense of 1983 was not within his character. His lack of a violent history or violent nature presents a strong reason for the recommendation of clemency.

iii) History of dual diagnoses - psychological disorder and mental retardation
Ernest’s background reveals an individual who, along with being born into a chaotic, unstable home environment lacking the presence of a positive male role model, suffered from significant psychological problems. In addition, he suffered from a mental disability along the lines of mild mental retardation. Because these deficits were not chosen by Ernest but instead were thrust upon him, particularly the mental deficits which appear to be hereditary, Ernest is less worthy of blame than the common criminal offender.

There appears to be a societal concensus that disfavors executing an individual who suffers from mental illness or mental retardation. For instance, a year 2002 Gallup poll shows that while the majority of American citizens favor capital punishment, they are not in favor of executing individuals who are either mentally ill or mentally retarded. See Appendix, exhibit 1. This survey demonstrates that 75% of United States adults oppose imposition of the death upon the mentally ill. A resounding 82% of the adult population opposes imposition of the death penalty upon the mentally retarded. In light of such figures, it is not surprising that the United States Supreme Court recently held that execution of an individual with mental retardation (whether in the form of mild, moderate, or profound) violates the United States Constitution.1

In Ohio, a mentally retarded person is defined as a person having significantly subaverage general intellectual functioning existing concurrently with deficiencies in adaptive behavior, manifested during the development period. The Supreme Court of the United States recognized the American Association on Mental Retardation (AAMR) and American Psychiatric Association definitions of mental retardation. The AAMR classifies mental retardation as “characterized by significant subaverage intellectual functioning, existing concurrently with related limitation in two or more of the following adaptive areas: communication, self-care, home living, social skills, community use, selfdirection, health and safety, functional academics, leisure and work. Mental retardation manifests itself before age 18.”3

Ernest began exhibiting behavioral and developmental problems at an early age. According to family members, when Ernest was nine or ten years old, teachers at school began expressing concern about him still sucking his thumb and giving limited responses in class. At the age of thirteen Ernest was referred by the school psychologist at Woodland Hills Elementary School to the Child Guidance Center in Cleveland for psychiatric evaluation. He was placed into counseling sessions as treatment. It was noted at this time (age 13) that Ernest was still wetting his bed. Based on a previous assessment by psychologist Nancy Schmidtgoessling, Ernest likely suffers from borderline personality disorder. See Appendix, exhibit 2. An individual with this diagnosis is known to exhibit, among other symptoms, “transient, stress-related paranoid ideation or severe dissociative symptoms.”4 The term “borderline” is used in this diagnosis because the disorder involves components of psychosis and borders on what is referred to in the mental health field as an Axis 1 diagnosis.

3 Mental Retardation: Definition, Classification and Systems of Supports 5 (9th ed. 1992); Atkins, 122 S.Ct. 2242, 2245, n. 3. 4 See Diagnostic and Statistical Manual IV of the American Psychiatric Association, 1994 ed. 5 Ernest Martin’s claim regarding mental retardation as a basis for vacating his death sentence is currently pending in state court. On February 24, 2003, a successor petition was filed in the Cuyahoga County Court of Common Pleas, along with a motion for a stay of execution in the Ohio Supreme Court, seeking to vacate his sentence

Ernest’s mental retardation5

In the 5th grade Ernest was placed in special classes labeled “EMR” – classes for the Educable Mentally Retarded. See Appendix, exhibit 2 (affidavit of mitigation specialist Pam Swanson). At that time Ernest’s IQ tested at 77. Id.; see also Appendix, exhibit 36 (affidavit of Dr. David Hammer, attached to Ernest Martin’s February 24, 2003 successor petition to vacate judgment based on his mental retardation). His placement in EMR classes signifies that early in his life Ernest was diagnosed by educators as being mentally retarded. Ernest has also been tested, as an adult, as having the intellectual functioning level of a 5th or 6th grader. Id. This is consistent with someone being mildly or borderline mentally retarded.

School records indicate that for the most part Ernest remained in classes for the Educable Mentally Retarded, at various schools attended, until he stopped going to school at age 18. After receiving all F’s both semesters of 10th grade and all F’s during a partial stint in the 11th grade (at John Jay High School in Cleveland), Ernest dropped out. It defies reason that Ernest was even passed onto the 11th grade after he obtained all F’s both semesters in the 10th grade. As one family member has stated, it seemed that schools occasionally passed Ernest onto the next grade level because they did not know what else to do.

Further indication that Ernest suffers from some form of mental retardation is that his family has a history of learning and developmental disabilities. Ernest’s sister, Debbie Reese Martin, was placed in Learning Disabled classes beginning at the age of 6 and suffers from depression. Her son (Ernest’s nephew) Curtis Martin, was also in Learning Disabled classes. Ernest’s sister, Rita Martin, was in Learning Disabled classes and also suffers from depression. Rita’s son, Donyelle Martin, is also in Learning Disabled classes, and receives SSI for his disabilities. Ernest also has two children of his own that suffer from developmental disabilities. Ernest’s son, Darnell Reese, was placed in Learning Disabled classes and was in school as Severely Behaviorally Handicapped. Ernest’s other son, Timothy Martin, was likewise placed in pursuant to the United States Supreme Court authority of Atkins v. Virginia. A copy of these pleadings are attached hereto as Appendix exhibit 36.

Learning Disabled classes and has a history of behavioral problems. Ernest also has one grandnephew, Kendrail Davis, who is in mentally retarded/developmentally disabled classes and another grandnephew, Kenneth Davis, who is placed in Special Classes. See Appendix, exhibit 2. The individual history of Ernest Martin as well as his family history strongly indicate that he has suffered throughout his life from mild mental retardation or a disability closely bordering mental retardation. In addition, he suffers from some degree of mental illness, most likely an illness that borders on an Axis 1 diagnosis. Under these circumstances, and in the interests of justice and standards of decency, the execution of Ernest Martin should not be countenanced. This Board should recommend clemency for Ernest Martin and his sentence should be commuted to a life sentence.

B. Offense

i) Plan was to rob, premeditation for murder lacking

The shooting death of Robert Robinson, as is the case with any murder, was a horrible and tragic crime. His death certainly caused great grief to his spouse, Anna Robinson, as well as any other surviving family members. The offense, however, does not fall into the category of what is typically considered to be the most heinous and reprehensible of crimes. This is partly because the shooting of Mr. Robinson by all appearances was not preplanned.

According to the state’s own witness, Josephine Pedro, in both her signed statement to the police and in her testimony at trial, the only plan discussed was that of robbing the store. There is no suggestion in the record that there was any plan but that of robbery. The shooting, as indicated by the state’s evidence presented, was apparently a knee-jerk reaction to the sudden discovery by the perpetrator that the door had been re-locked.

The record shows that this was troubling to the jury. As the trial transcript reveals, during deliberations, which continued over two nights and three days, the jury interrupted the process and sought further clarification, by way of instructions from the trial court. The jury requested further clarification regarding the legal meaning of each of the following terms: “purposely,” “specific intent,” and “prior calculation and design.” See Appendix, exhibit 3. These substantial questions surrounding whether the perpetrator even truly intended to kill the victim raise a red flag as to whether this offense merits imposition of capital punishment.

ii) Victim was shot at night through a door

Further evidence that the perpetrator in this case did not actually intend to kill the victim is the fact that the shots were fired at nighttime, through a partially solid, partially glass door. Poor visibility could have been a factor in the offense. The trial record is devoid of any discussion regarding visibility through the door that night. However, photographs of the scene are available. See Appendix, exhibit 4. The photographs suggest that visibility through the door may well have been obscured. The photographs raise substantial questions regarding the intent of the gunman.

III. Ernest Martin’s Death Sentence Constitutes Unequal Justice, Particularly Considering His Accomplice Received No Punishment Whatsoever

1) Accomplice/state witness Josephine Pedro got off “scot-free” while Ernest Martin received the death penalty

Facts of the offense

Ernest Martin’s death sentence resulted from a June 1983 aggravated murder conviction in the Cuyahoga County Court of Common Pleas for the shooting death of Robert Robinson. During the early morning hours of January 21, 1983, Josephine Pedro entered a small, cut-rate drug store owned by Mr. Robinson on Fairhill Road in Cleveland, Ohio.

As Mr. Robinson, age 70, finished locking the door behind Ms. Pedro, two shots were fired through the glass portion of the door. One of the shots struck Mr. Robinson in the chest, ultimately causing his death. The only other individual in the store at the time of the shooting was employee Monty Parker. Mr. Parker was in the back of the store (in the wine room) from where he heard shots fired but did not witness the shooting.

There were no witnesses to the actual shooting. There was one witness, however, E.J. Rieves-Bey, who lived across the street from Mr. Robinson’s store and who looked out his window after hearing the shots fired and observed a man running away from the scene. A few minutes after the shooting, Ernest Martin arrived at the store, as did witness E.J. Rieves-Bey. Both Ernest and Mr. Rieves-Bey talked to the police officers who arrived at the scene. The police also talked to Monty Parker, and Josephine Pedro.

On January 26, 1983, Antoinette Henderson gave a statement to the police in which she claimed that during the previous month of December 1982 she had overheard Ms. Pedro and Ernest Martin discussing a possible robbery of Mr. Robinson. Ms. Henderson, as it turns out, was an acquaintance of Ms. Pedro and Ernest Martin and had lived with them up until shortly before the subject offense. Prior to the January 21, 1983 shooting of Mr. Robinson, Ms. Henderson had a falling out with Ernest Martin and Ms. Pedro and was forced to move out of their residence.

On January 29, 1983, eight days after the shooting, the police entered the residence of Ernest Martin and Josephine Pedro and, apparently without a warrant, arrested them both. On January 31, 1983, after approximately 72 hours in custody, Ms. Pedro gave a statement to the police in which she incriminated herself, but also identified Ernest Martin as the gunman in the shooting death of Mr. Robinson.

At trial, physical or forensic evidence was lacking. There was no physical evidence retrieved from the scene directly linking Ernest to the crime. No murder weapon was ever produced by the state. Nor was any physical evidence of a robbery produced by the state. Store employee Monty Parker testified that he was aware of no money having been taken from the store. The prosecution’s chief evidence against Ernest Martin was the testimony of accomplice Josephine Pedro.

Ms. Pedro testified about the plan to rob Mr. Robinson’s store. The plan was for Ms. Pedro to get Mr. Robinson to open the door to the store -- which he was known to keep locked during late hours -- under the pretense that she needed to purchase some Nyquil for a cough. Ernest was then to come into the store behind her and rob Mr. Robinson. Based on Ms. Pedro’s testimony, Ernest was not only found guilty but received the ultimate sanction – death by execution. Yet Ms. Pedro was never prosecuted and received no punishment whatsoever.

This grossly disparate outcome constitutes disproportionate punishment. On this basis, Ernest Martin’s death sentence should be commuted.

2) Ernest Martin has already spent 20 years in prison for this offense

As of this summer, Ernest Martin will have been imprisoned on Ohio’s death row for 20 years. Due to the unique status of capital-sentenced inmates, conditions on death row are very restrictive. For example, inmates on death row have access to very little programming compared to the inmates in the general prison population. Twenty years of death row confinement, awaiting execution, is a long time and is severe punishment in and of itself. Given the circumstances of this offense, particularly the uncertainty regarding the intent of the shooter, Ernest Martin has already received considerable punishment.

Recently in Knight v. Florida, United States Supreme Court Justice Breyer discussed the impact of a lengthy delay upon an individual awaiting execution: It is difficult to deny the suffering inherent in a prolonged wait for execution--a matter which courts and individual judges have long recognized. [Citation omitted] More than a century ago, this Court described as "horrible" the "feelings" that accompany uncertainty about whether, or when, the execution will take place.

* * *

At the same time, the longer the delay, the weaker the justification for imposing the death penalty in terms of punishment's basic retributive or deterrent purposes. [Citation omitted] Nor can one justify lengthy delays by reference to constitutional tradition, for our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades.6

The concerns expressed by Justice Breyer are applicable here. Furthermore, Ernest Martin’s length of confinement is now twenty years greater than that of accomplice Josephine Pedro. This disparate treatment is unconscionable. Ernest Martin should be granted clemency and his sentence should be commuted.

IV. Ernest Martin’s Death Sentence Resulted From An Unfair And Unreliable Process

Ernest Martin’s death sentence was a consequence of a flawed and unfair trial process. The results of his trial, regarding both his actual guilt of the offense and his deserving of a death sentence, are suspect and unreliable.

1. Ohio’s death penalty law was new in 1983

Ernest Martin’s capital trial in June 1983 was one of the earliest to go to trial under Ohio’s newly enacted death penalty statute that became effective in October of 1981. Thus, none of the parties involved in Ernest Martin’s trial could possibly have been experienced with capital proceedings under Ohio’s new death penalty statutory scheme. Defense counsel, for example, undoubtedly had no experience in presenting a case in mitigation (at the sentencing phase) under the new procedures and new legal standards. Nor would counsel have had any other sources from which to obtain experienced guidance. It is readily apparent from the record of the trial that, as a consequence of this lack of experience under the new death penalty provisions, Ernest Martin suffered severely. In the end, Ernest Martin was sentenced to death under circumstances that fall short of the exacting level of confidence necessary to carry out his execution.

2. The inexperience of the trial court led to shoddy, unreliable proceedings.

The 1983 trial record reveals a number of irregularities occurring during the proceedings and calls forth a host of questions and suspicions regarding the outcome of Ernest Martin’s trial. In all likelihood the court’s, and counsel’s, unfamiliarity with a new process contributed to these irregularities. Regardless of the cause, however, the result was an unfair process for Ernest Martin.

Perhaps the most notable irregularity in this case is the lack of a complete record of trial proceedings. Significant portions of the proceedings are missing. Despite it being a capital case, the trial court, as well as defense counsel and the prosecutors, failed to ensure that a thorough record was preserved. First, none of the pre-trial proceedings held in court were recorded. Second, the proceedings are replete with side-bars (discussions between court and counsel at the bench) that were not recorded. Third, at both the culpability phase and the mitigation (sentencing) phase, the proceedings occurring when the jury returned from deliberations and returned its verdict, (which should include individual polling of the jury), were not recorded. Fourth, it has always been suspected, though counsel for Ernest Martin has never been able to prove, that immediately following the jury being sent into deliberations at the culpability phase, there were proceedings before the court regarding witness E.J. Rieves-Bey, who was a critical witness for the defense but never testified because he showed up minutes late for trial. Lastly, the record of the proceedings occurring in September and October of 1983 regarding a defense motion for new trial is also irregular. The transcript of that record ends with a notation that the hearing was continued until a further date. No further record exists.

The trial court engaged in improper behavior by over-reaching and taking on the role of an advocate in the case. For instance, prior to the mitigation hearing the trial judge took over the role of counsel – seemingly for the defense but actually in favor of the prosecution. As the parties approached the mitigation hearing, the record reveals that the trial judge, on his own initiative, undertook investigative action to obtain Ernest Martin’s psychiatric records. Astonishingly, the trial judge had the records sent directly to the court and not to defense counsel. Without objection by defense counsel, the trial judge reviewed the documents and stated on the record his interpretation of them regarding their lack of value as evidence for the defense.7 See Appendix, exhibit 5.

At the mitigation hearing the trial judge again took over the role of defense counsel – again to the detriment of Ernest Martin – when the judge began calling out into the audience seated in the courtroom looking for volunteers to come to the witness stand to testify on Ernest Martin’s behalf. See Appendix, exhibit 6. This stunning departure from proper procedures prejudiced Ernest in that it created the impression that Ernest’s own family members had nothing good to say about him.

3. The inexperience of defense counsel led to poor representation.

7 The Cuyahoga County trial judge in this case, Daniel O. Corrigan, does not have a stellar record. In 1976 Judge Corrigan was reprimanded by the Cleveland and Cuyahoga County Bar Associations for failing to conform his conduct to the precepts of the Judicial Canons of Ethics and the Judicial Code of Conduct. This stemmed from findings that Judge Corrigan, who was known to be heavily in debt at the time, had been involved in business transactions with attorneys who appeared before him or received appointments by him. See Appendix, exhibit 7.

Years later, in 1988, Judge Corrigan was sued by a Cleveland defense attorney who claimed that the Judge appointed attorneys to cases dependent upon their contributions to his election campaign, averring that the Judge “trade[d] cases for cash.” State of Ohio, ex rel. Kirtz v. Corrigan, 1990 WL 7158 (Ohio App. 8Dist).

Ernest Martin received minimal assistance at both phases of his trial from courtappointed counsel. This minimal assistance contributed to his receiving an overall unfair trial. Counsel inexplicably allowed the case to be rushed to trial. Ernest was indicted on February 9, 1983, and defense counsel James Carnes and Herbert Adrine were assigned to the case on March 2, 1983. The trial began on June 6, 1983. The record suggests that counsel was hoping for a plea agreement and did not expect to go to trial. That translated into an utter failure to prepare their case for trial.

Defense counsel’s poor performance began with their numerous failures in the pretrial preparation. Defense counsel filed a total of three (3) pre-trial motions: a motion for discovery, a motion for an investigator, and a motion to sever offenses. Such a paucity of pretrial defense motions is unheard of in a capital case. Counsel failed to file the most obvious of pretrial motions – a request for a bill of particulars, a motion to suppress evidence based on a warrantless arrest, a motion for funds for an expert in ballistics - let alone the host of other motions which are filed by defense counsel in a capital case as a matter of course to at least preserve issues for appeal.

Defense counsel’s failure to file any challenges to the constitutionality of what was then Ohio’s new death penalty law exposes their cavalier approach to Ernest’s case. Even though Ohio’s statute has withstood challenges over the years, back then failing to fulfill their rudimentary duty to challenge a new statute for a capital client reveals their across-the-board ineffectiveness.

Furthermore, defense counsel failed to adequately investigate the facts of the case. Most importantly, counsel failed to personally meet with and interview witness E.J. Rieves-Bey. Mr. Rieves-Bey was an important witness because he was the only witness who observed the gunman running away from Mr. Robinson’s store after the shots were fired. Counsel did obtain a statement from Mr. Rieves-Bey taken by a court-appointed investigator well before trial. The statement was certainly helpful to the defense in that Rieves-Bey was able to say that: 1) “I think they got the wrong man.”; 2) the man he saw running from the store was bigger than Ernest Martin; and 3) Antoinette Henderson (Rieves-Bey’s sister-in-law who testified about the planning of the robbery), was “a big liar” who was feuding with Josephine Pedro and holding a grudge against both Ms. Pedro and Mr. Martin.

Defense counsel failed to seize upon the usefulness of this witness in conducting their defense. Based on his above statements alone, defense counsel should have, at a minimum, met with E.J. Rieves-Bey, prepared him for testifying, and subpoenaed or otherwise secured his presence for trial. Defense counsel also should have conducted interviews of Antoinette Henderson, E.J. Rieves-Bey’s brother (common-law husband of Ms. Henderson), and Ms. Pedro based on Mr. Rieves-Bey’s statement regarding Ms. Henderson’s motives for lying to the police. Defense counsel did none of this, and instead incredibly relied upon prosecutor Carmen Marino to subpoena Mr. Rieves-Bey to appear. For some reason Mr. Rieves-Bey did not timely make it to court.8

8 The record of the prosecutor, Carmen Marino, like that of Judge Corrigan, is not untarnished.

Prosecutor Marino has a proven track record of violating constitutional rules of fair play at trial. State v. Liberatore, 69 Ohio St.2d 583, 589-90 (1982) (“the prosecutorial blunders in this case are too extensive to be excused.”); State v. Owensby, 1985 Ohio App. LEXIS 7351, *3 (1985) (“prosecutor’s comments clearly outside the bounds of mere ‘earnestness and vigor[.]’”); State v. Heinish, 1988 Ohio App. LEXIS 3644, *20 (1988) (“Clearly the prosecutor improperly commented on excluded evidence.”); State v. Lott, 51 Ohio St. 3d 160 (1990); State v. Harris, 1990 Ohio App. LEXIS 5451 (1990) (prosecutorial misconduct found, but harmless); State v. Hedrick, 1990 Ohio App. LEXIS 5647 (1990) (prosecutorial misconduct by making improper comments on matters outside of record and on defendant's failure to testify.); State v. Durr, 58 Ohio St.3d 86 (1991) (improper comments on the appellant's unsworn statement, the appellant's prior convictions, and mitigating factors held harmless.); State v. Keenan, 66 Ohio St.3d 402 (1993) (presenting an “aggravated example” of prosecutorial misconduct); State v. D’Ambrosio, 67 Ohio St.3d 185 (1993) (prosecutorial misconduct found, but either waived or harmless); State v. Johnson, 1992 Ohio App. LEXIS 4256, *17 (1993) (prosecutorial misconduct “[rose] to the level of being constitutional errors.”); State v. Matthews, 1999 Ohio App. LEXIS 896, *5 (1999) (prosecutor denied making a deal with witnesses, however “[t]here is ample evidence to suggest that [the witness] at least did in fact receive just what the assistant county prosecutor said he would not give him.”).

Defense counsel’s failure to ensure the presence of E.J. Rieves-Bey was inexcusable. He was the lone witness the defense planned to present, as evidenced by counsel’s reference to Mr. Rieves-Bey during opening argument. See Appendix, exhibit 8. His testimony was highly important. Though the state has argued that Rieves-Bey’s statements were in some ways consistent with the story of Josephine Pedro, Mr. Rieves-Bey has always maintained that the man he saw running away from the store after the shots were fired was not Ernest Martin.

After Mr. Rieves-Bey failed to appear, counsel had nothing whatsoever to present in defense. Indeed, the defense rested without putting on any witnesses or evidence of any kind. At Ernest Martin’s sentencing hearing, defense counsel exhibited a complete lack of experience and understanding as to how to present a case in mitigation. Counsel’s performance at mitigation was nothing short of abysmal.

Defense counsel wholly failed to prepare for the mitigation hearing. Remarkably, defense counsel failed to do even the most obvious preparation by neglecting to conduct an investigation into Ernest’s background. In order to properly prepare and present evidence in mitigation, it is necessary to investigate and assess the client’s life history, including psychosocial and physical development. Mitigation investigation requires thorough interviewing and record collection, with the interviewing typically beginning with the client’s immediate family, and extending to significant others such as teachers, mentors, local pastors, and additional relatives and acquaintances.

Here, except for reportedly limited and frustrating contacts with the father, counsel failed to even meet with and/or interview Ernest’s immediate family. These family members included Ernest’s mother, three brothers, three sisters, and grandmother – all of whom were willing to assist Mr. Martin in any way they could. See Appendix, exhibits 9-16.

Counsel also failed to conduct a collection of records and documentary evidence pertinent to their client and his history. The most obvious documents counsel failed to pursue were Ernest’s medical, mental health, educational, employment, juvenile and adult prison records. Counsel further failed to seek the services of an expert to pursue possible medical, psychological, sociological or other explanations for the offense for which their client was being sentenced.

Given counsel’s lack of preparation, it is not surprising that the mitigation hearing was nothing short of disastrous. First, defense counsel waived opening argument. This failure is inexcusable in a capital case and indicates a complete lack of a defense theme or strategy. Second, defense counsel called only two witnesses: 1) a probation officer; and 2) Ernest’s mother.

The probation officer testified for 2-3 minutes in order to place a probation report into evidence which did more harm than good. The report brought in evidence of Ernest’s juvenile record and a victim impact statement which, but for counsel’s grave error, never should have gone to the jury. Ernest’s mother, the only witness of the two called by defense counsel who could do any good for the client, was unprepared.

While counsel did ask her to write a statement concerning her son, Mrs. Martin was not informed until the day of the mitigation hearing that she would be asked to testify. See Appendix, exhibit 9. Nor had counsel contacted Mrs. Martin before the mitigation hearing to confirm or discuss any information that she had provided in her written statement regarding her son’s background. Of course, trial counsel should have begun discussing Mrs. Martin’s testimony with her months before when they should have interviewed her as a fact witness for trial, let alone at some point before the mitigation hearing. This deficient performance by counsel was wholly ineffective and constituted an abdication of advocacy on behalf of the client.

The mitigation hearing deteriorated following Mrs. Martin’s testimony. At that point defense counsel declared to the court that they had nothing further to offer. Yet the hearing continued. The trial judge, perhaps due to perceived inadequacies of counsel, proceeded to assume counsel’s role. Remarkably, the trial judge began calling out to the audience seated in the courtroom looking for volunteers to come to the witness stand to testify on Ernest Martin’s behalf. Defense counsel allowed this circus-like atmosphere to flourish without objection.

The trial court’s conduct created the prejudicial and incorrect appearance that not even Ernest Martin’s closest family members desired to say anything positive on his behalf. See Appendix, exhibit 6. Many of Ernest’s family members could have testified at his mitigation hearing, but they were never interviewed, let alone prepared, by defense counsel. See Appendix, exhibits 9-16. Ernest’s grandmother was then “put on the spot” by the trial court and decided on the spur of the moment to testify. Her unprepared testimony, which constituted all of five pages of transcript, concluded the pathetic defense in mitigation.

In sum, Ernest Martin’s court-appointed counsel performed poorly at all phases of his trial. Their failures were pervasive. Their poor performance certainly contributed to the overall unfairness of Ernest Martin’s trial and to the undue harsh result Ernest incurred.

4. The resulting verdict and death sentence are unreliable

The trial of Ernest Martin was unfair. The trial was unfair because: the trial court and counsel were unfamiliar with trying a capital case under the new death penalty statute; important portions of the trial record were not kept or are otherwise missing; important pieces of physical evidence were destroyed and no longer exist; the trial court engaged in over-reaching and improper conduct; the prosecution relied not on physical or forensic evidence but on the testimony of suspect witnesses; defense counsel inexplicably failed to subpoena the presence of the lone planned defense witness, under suspicious circumstances wherein defense counsel relied on a subpoena issued by the prosecuting attorney; and defense counsel practically abandoned their client after he insisted on his innocence and demanded a trial, failing to present any defense at the culpability phase and allowing the mitigation phase to collapse before the court and jury.

Lingering doubts about guilt

Due, in part, to this unfairness, there continue to be lingering doubts regarding Ernest’s guilt. The prosecution’s case relied upon suspect witnesses, not physical evidence. Virtually no physical or forensic evidence was produced at trial proving Ernest Martin shot Mr. Robinson. No gun that could be linked to the shooting was ever produced. No items of evidence such as clothing taken from Ernest Martin on which the victim’s blood, or pieces of glass from the door, was found to connect him to the crime. Nor was there any evidence of gunshot residue, from paraffin tests, found on Ernest Martin or his clothing.

The state’s witnesses, upon whose testimony the state largely rested its case, were untrustworthy and unreliable. Witness Josephine Pedro was an alleged accomplice to the murder. Although she testified that she was not provided any promises in exchange for her testimony against Ernest Martin, she very curiously was never prosecuted, nor apparently charged, with any offense related to the murder. See Appendix, exhibit 17. Given what Ms. Pedro had to gain, i.e. her freedom from lengthy incarceration, by satisfying the state’s desire that she testify against Ernest Martin, her testimony is highly suspect.

Witness Antoinette Henderson, who could only say that she overheard a conversation between Ernest and Ms. Pedro in which they purportedly discussed the possibility of robbing Mr. Robinson, was also unreliable. Ms. Henderson had formerly resided with both Ms. Pedro and Ernest, and reportedly had had a falling out with the two of them that caused her to have to move out of the residence. See Appendix, exhibit 18, at pp. 7-8. Further, Ms. Henderson was plainly shown to be untrustworthy while on the witness stand. During cross-examination, for example, defense counsel caught her in a bald-faced lie, under oath, regarding the number of children to whom she had given birth. See Appendix, exhibit 19. Furthermore, according to the statement provided by E.J. Rieves-Bey, Ms. Henderson was known to “lie about everything.” See Appendix, exhibit 18, at p. 5. The testimony of Ms. Henderson, like that of Josephine Pedro’s, merits little consideration.

In addition, evidence was weak to prove the “specific intent” to kill necessary for Ernest’s conviction. The very circumstances of the crime call this element of the offense into question. The evidence presented was that Mr. Robinson was shot through a glass door, late at night, while Mr. Robinson was standing inside his store and the perpetrator was outside. No evidence was presented by the State to demonstrate the extent of visibility, if any, into the store that the perpetrator would have or could have possessed. None of the witnesses testified as to how much of the door was composed of glass, as opposed to how much of it was solid wood or other material.

Moreover, Ms. Pedro’s statement to the police confirms that, if her story is to believed, there was never any intention to kill Mr. Robinson; rather, the intention was only to rob him: “T.J. [Ernest] told me that all he was going to do was pull the gun and Robb [sic] the old Man and get the money and split.”9 Under these circumstances, and in light of the lack of evidence presented by the state on this issue, a myriad of scenarios can be conceived consistent with the evidence presented in which the perpetrator of the offense fired the gun without possessing the requisite specific intent to kill someone.10 In cases of circumstantial evidence, as is the case here, the jury should be able to rule out other possible scenarios that are consistent with the evidence presented. Here, however, the evidence was insufficient to rule out other possible scenarios in which the requisite specific intent to kill was absent.

The question of “specific intent” was of sufficient import that it was clearly a concern to Ernest’s jury. Indeed, during their deliberations at the culpability phase, the jury forwarded a written note to the trial judge requesting clarification of their instructions on this issue. See Appendix, exhibit 20. In sum, the state’s case relied on weak, circumstantial evidence. The evidence produced posits a theory of a crime based upon speculation and the testimony of unreliable witnesses. As a consequence there continue to be lingering doubts regarding Ernest Martin’s guilt. Under such circumstances, his death sentence should be commuted.

Death sentence an unreliable result

The unfairness and irregularities of Ernest’s mitigation hearing likewise undermine confidence in the accuracy, and appropriateness, of his sentence of death. Ernest might not be on death row today were it not for the miserable performance of his defense counsel. Counsel helped ensure a death verdict by failing to present anything of mitigating value. Had counsel fulfilled their duty to conduct a background investigation of their client, and had counsel presented available mitigating evidence, e.g., regarding both Ernest’s psychological dysfunction and problems in the area of mental retardation, the jury may have been swayed to impose a different sentence.

9 January 31, 1983 Police Statement of Josephine Pedro. 10 As examples of such possible scenarios, the perpetrator may have simply panicked when he encountered the locked door to the store, and began firing his gun without particularly aiming at anything or thinking precisely about where he was shooting; or the perpetrator may have encountered the locked door and intended only to shoot through the door to gain entrance into the store, not intending to hit anyone with the gunshots. 11 The other recognized purpose for vesting the power of clemency in the executive was that it permitted the president to pursue ends beneficial to the state such as the quelling of rebellions or the protection of spies.

Ernest’s death sentence is further unreliable because the record of the jury returning their recommendation of a death sentence is missing. When the jury returns its verdict, each jury member is typically “polled” to confirm that the verdict truly reflects his or her individual decision. Without any record of this, there is, and will always be, an uncertainty regarding the death verdict delivered.

V. Role of Clemency

The role of clemency, in short, is to correct manifest injustice and to temper harsh and disproportionate court rulings with the Executive’s power of mercy. The discretion to grant clemency is broad.

The power of clemency is vested in the governor of Ohio by Article III, Section 11, of the Ohio Constitution. The governor is given broad discretion in exercising that power. Section 11 empowers the governor to grant reprieves, commutations, and pardons for all crimes and offenses (except in cases of treason and impeachment), “upon such conditions as he may think proper.”

While there is little known legislative history behind this provision of the Ohio Constitution, it is considered probable that the power was given to the governor for reasons similar to those that led to the vesting of the federal clemency power in the president. One of the two distinct purposes behind the authorization of the presidential power of clemency was that it acted as a check on the legislative and judicial branches by permitting the president to rectify injustices that might result from inflexible adherence to the law.11

In Ohio, applications for pardon or commutation of sentence are to be made to the Ohio Adult Parole Authority (APA), which subsequently issues a report and recommendation to the governor.12 The little guidance provided by way of statutory or administrative standards as to when clemency should be recommended by the APA is broad in scope, and speaks to the interests of justice. Specifically, the guidance given is that the APA may recommend clemency if it reasonably concludes that such action “would further the interests of justice and be consistent with the welfare and security of society.”13

The United States Supreme Court has also clarified the role of clemency. In Ex parte Grossman, addressing the role of the pardoning power in the federal constitutional scheme, the Supreme Court stated: Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential … to vest some other authority than the court’s power to ameliorate or avoid particular criminal judgments.14

The Supreme Court emphasized the importance of discretion in the exercise of the clemency power, stating that “whoever is to make it useful must have full discretion to exercise it.”15 More recently, in Herrera v. Collins, the Supreme Court described the power of executive clemency as the “fail-safe” in the American criminal justice system, recognizing that “[i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”16

The role of clemency has taken on greater significance in recent years due to state and federal legislation restricting an inmate’s access to state post-conviction and federal habeas corpus relief. Changes in both state law in Ohio and federal law in 1996 make it exceedingly more difficult for an inmate to bring forth any subsequent petitions for judicial relief beyond his “one bite at the apple” in state and federal post-conviction proceedings. It is a virtual mathematic certainty that such restrictions will result in fewer injustices in capital cases being rectified by the courts. For this reason, the broad power to grant clemency should be exercised more frequently to serve as the safety net for those injustices the courts fail to address.17

VI. The Totality of Circumstances Warrant Clemency

The totality of the circumstances presented herein warrant the granting of clemency to Ernest Martin. As demonstrated, there are a number of injustices extant in Ernest’s case. If not in their individual capacity, then considered as a whole, these injustices demand relief. The numerous injustices incurred by Ernest relate to, and exacerbate, one another. The injustice of Ernest receiving death for an offense not among the “worst of the worst” relates to the injustice of accomplice Josephine Pedro getting off “scot-free.” If the offense had truly been so appalling and heinous, it is unlikely that the prosecution would have allowed an accomplice to go completely free.

The injustice of Ernest receiving death despite his serious mental disabilities also relates to the injustice resulting from Ms. Pedro’s freedom, in that Ernest’s mental deficits make it likely that Ms. Pedro, more so than Ernest, was responsible for plotting the robbery. Lastly, the injustice of the disproportionate punishment and the extremely disparate result between Ernest Martin and Josephine Pedro is inter-related with the injustice of the unfair trial process.

The combination of the lack of experience of the parties regarding the newly enacted death penalty laws and procedures, the irregularities that occurred (including defense counsel relying on a prosecutor to subpoena a defense witness), the inappropriate conduct of the trial judge, the intellectual deficits of the client, and the abysmal performance by court-appointed defense counsel, explains how such a manifest injustice could occur.

VII. Clemency Request

Ernest Martin, through counsel, in the interests of justice and mercy, pleads for clemency and asks for a commutation of his death sentence to a life sentence.

Respectfully submitted,

DAVID H. BODIKER, Ohio Public Defender
TIMOTHY R. PAYNE, Assistant State Public Defender KYLE E. TIMKEN, Assistant State Public Defender Counsel For Petitioner ERNEST MARTIN

APPENDIX OF SUPPORTING DOCUMENTS

Exhibit 1 2002 Gallup Poll regarding death penalty and mental retardation Exhibit 2 February 21, 2003 Affidavit of Mitigation Specialist Pam Swanson Exhibit 3 Trial transcript, pp. 644 Exhibit 4 Photos of crime scene - store door Exhibit 5 Trial transcript, pp. 651-54, 688 Exhibit 6 Trial transcript, pp. 690-91 Exhibit 7 March 3, 1976 news article – Judge Daniel O. Corrigan Exhibit 8 Trial transcript, p. 43 Exhibit 9 July 13, 1987 Affidavit of Frances Martin Exhibit 10 July 13, 1987 Affidavit of Terry Davis Exhibit 11 July 13, 1987 Affidavit of Lee Martin, Jr. Exhibit 12 July 13, 1987 Affidavit of Eric Martin Exhibit 13 July 13, 1987 Affidavit of Erwin Martin Exhibit 14 July 13, 1987 Affidavit of Debra Reese. Exhibit 15 July 13, 1987 Affidavit of Rita Martin Exhibit 16 Trial transcript, pp. 314-15 Exhibit 17 March 28, 1983 statement of E.J. Rieves-Bey Exhibit 18 Trial transcript, pp. 358-59 Exhibit 19 Trial transcript, pp. 644-50 Exhibit 20 Letter from Debrah Reese Martin (Ernest’s sister) Exhibit 21 Letter from Erwin Martin (Ernest’s brother) 28 Exhibit 22 Letter from Curtis Martin (Ernest’s nephew) Exhibit 23 Letter from Germaine Grayson (friend of family) Exhibit 24 Letter from Frances Martin (Ernest’s mother) Exhibit 25 Letter from Hattie Johnson (Ernest’s grandmother) Exhibit 26 Letter from Rita Martin (Ernest’s sister) Exhibit 27 Letter from Laketta Tate (Ernest’s daughter) Exhibit 28 Letter from Kathryn Davis (Ernest’s niece) Exhibit 29 Letter from Terry L. Davis (Ernest’s sister) Exhibit 30 Letter from Shelley Reese (mother of Ernest’s child) Exhibit 31 Letter of Valerie Tate (mother of Ernest’s two children) Exhibit 32 Letter from Beverly A. Keyes (friend of family) Exhibit 33 Letter from Rosa Lee (friend of family) Exhibit 34 Letter from Vanessa Tate (aunt of Ernest’s two children) Exhibit 35 Letter from Reverend Robert Hull (friend of family) Exhibit 36 February 24, 2003 Motion for Stay and Petition to Vacate Judgment based on mental retardation (Cuyahoga County Court of Common Pleas)