T wo weeks before he was scheduled to die for a crime he swore he did not commit, 52-year-old William T. Montgomery was granted a reprieve by Ohio Gov. John Kasich. “Too much doubt” was the rallying cry by Ohioans to Stop Executions as they flooded the governor’s office with petitions. The Ohio Parole Board agreed, recommending clemency by a vote of six to four. Ten days later, on March 26, Kasich stopped the April 11 execution and commuted Montgomery’s sentence to life without parole. Montgomery has insisted on his innocence for more than 30 years. In early March, forensic experts flew on their own dime to speak at his clemency hearing in Columbus. “As a forensic scientist, I normally do not get involved in petitions and politics,” Richard Eikelenboom, of the Colorado-based Independent Forensic Services, wrote on his website, linking to a Change.org page created by Montgomery’s supporters. “But in this case there is so much at stake.” Montgomery was convicted of killing two young women, Cynthia Tincher and Debra Ogle, in Toledo in 1986. They were discovered four days apart, both shot in the head. Montgomery knew the victims — and a ballistics analyst traced the evidence to his gun. Police concluded he killed both women on the same day, March 8, 1986, first murdering Ogle in order to rob her, then shooting Tincher to cover it up. But a review of autopsy records, photographs, and trial transcripts by Independent Forensic Services cast doubt on the state’s theory. At the clemency hearing, Eikelenboom’s lab partner and wife, Selma Eikelenboom-Schieveld, presented evidence to show that Ogle likely died closer to when her body was discovered, on the night of March 12. Her analysis compounded long-existing problems with the case. No blood, fingerprints, or other key forensic evidence linked Montgomery to the crime. Nor did he have a clear motive. Prosecutors won the death penalty by arguing that Montgomery killed Ogle in the course of a robbery, yet none of Ogle’s belongings were found in his possession. In fact, her wallet was found in the bedroom of a different man, Montgomery’s co-defendant and the state’s main witness against him: 24-year-old Glover Heard. In their clemency petition, lawyers for Montgomery emphasized Heard’s lack of credibility. The evidence pointed as much to Heard as to Montgomery. Moreover, Heard had cut a deal with the state “to avoid the death penalty and to avoid prosecution for an unrelated charge of gross sexual imposition with a 5-year-old child.” In exchange for testifying against Montgomery, Heard pleaded guilty to being complicit in the murders of Tincher and Ogle. He was sentenced to 15 years to life and remains behind bars. Montgomery’s was the third scheduled execution in a row not to go forward in Ohio. While Kasich has signed off on more than a dozen executions while in office, he has also commuted six death sentences. “That’s significant — and it speaks to a real discomfort with the death penalty as a whole,” said Abraham Bonowitz of Death Penalty Action. Concerns over innocence have played no small part. In 2014, Kasich spared the life of a man named Arthur Tyler. Like Montgomery, Tyler was convicted in 1986 and sentenced to die based largely on the word of a co-defendant who cut a deal with the state. The parole board was so troubled by Tyler’s case that a majority recommended commuting his sentence to life with the possibility of immediate parole. Instead, to Tyler’s dismay, Kasich commuted his sentence to life without parole.

Once the looming threat of execution is gone, the urgency around a questionable case can evaporate.

Cases like Tyler’s and Montgomery’s reveal a trap that can follow a reprieve based on an innocence claim. Once the looming threat of execution is gone, the urgency around a questionable case can evaporate. Jon Oebker, a former prosecutor who now represents Montgomery, has vowed to continue appealing his client’s case, however. “It’s clear to us that he did not receive a fair trial,” he said over the phone as Kasich weighed clemency last month. Oebker spent years on the opposite side of the death penalty fight, defending convictions for the capital crimes unit of the Ohio Attorney General’s Office. He remembers going before the parole board at clemency hearings. “I’d be pounding the table: ‘All these courts looked at it, they all affirmed it, no court reversed it,’” he recalled. But that didn’t mean the courts got it right. The procedural history in Montgomery’s case reflects serious divisions within reviewing courts when it comes to the issue of prosecutorial misconduct. After a federal district judge vacated Montgomery’s conviction in 2007 based on the state’s failure to disclose exculpatory evidence, the 6th Circuit Court of Appeals reversed the decision, sparking angry dissents. It is unclear what lies in store for Montgomery now. But there is good reason to believe he might not be convicted today. Surviving jurors from his 1986 trial have expressed deep misgivings about his case. One man acknowledged as early as 1992 that he believed Montgomery could have been rehabilitated due to his age and he did not know why he had sentenced him to die. More recently, in a signed affidavit, the man admitted harboring doubts over Montgomery’s guilt at the time. “Given the information I have today, I am not sure I would have found Mr. Montgomery guilty or voted for the death penalty,” he said.

Image: Toledo Blade

he case of William Montgomery is hard to piece together. The records are incomplete and the trial transcript hard to follow. Memories are hazy — it was a generation ago. William Montgomery is hard to piece together. The records are incomplete and the trial transcript hard to follow. Memories are hazy — it was a generation ago. National news dominated the front page of the Toledo Blade on March 9, 1986. President Ronald Reagan was urging Congress to commit funding to the Contras in Nicaragua. A commission was investigating the explosion of the Challenger space shuttle the year before. But below the fold, a headline ran above a black-and-white photo of Cynthia Tincher. Her body had been discovered on the side of the road at the intersection of Wenz and Angola in Toledo. Her hands were folded in her lap. She had been shot in the head. The article described Tincher as hardworking and kind. Since graduating high school in 1984, she had been employed at a residential center “for severely and profoundly retarded people.” Her mother said she planned to study child psychology. Horror at Tincher’s murder gave way to fear and dread. Her roommate, 20-year-old Debra Ogle, had not shown up for work on March 8 — her car was found in an alley the next day. Ogle’s parents went on TV to urge anyone with information to come forward. But on the rainy evening of March 12, Toledo police discovered Ogle’s body in a wooded area not far from where Tincher was found. She wore a black jacket and white high-tops and was carrying a Walkman cassette player, the earphones hanging from her neck. Toledo police said they had been led to the body by William Montgomery, a 20-year-old black man with an outstanding warrant for forged checks. He had been arrested following a tip from Toledo’s Crime Stoppers hotline, which came from a man in the local jail. The caller said a man named Glover Heard had boasted to him over the phone about seeing two white women get murdered. The next day, Heard gave police the name of an alibi witness, who led them to Montgomery. Heard and Montgomery knew each other — they had gone with friends to a nightclub on the night before Tincher was found dead. Montgomery paid everyone’s way — he was known to carry plenty of cash — and after closing out the club well after midnight, he returned to his uncle’s house with his girlfriend and Heard. The couple got into a fight. Montgomery’s uncle would testify that when he went to break it up, he found Montgomery with a gun — a .380 Bersa. His uncle took the gun and put it on top of the refrigerator. After Heard and Montgomery left in a cab, Montgomery’s uncle realized the gun was gone. It is at this point that Heard’s and Montgomery’s alleged accounts diverge. According to police, Montgomery said he did not have enough cash left to get all the way home. So he told the cab driver to drop them off along the way, at the apartment shared by Ogle and Tincher. Acquaintances would confirm that Montgomery was friends with the women. Ogle was getting ready for work when Montgomery and Heard showed up, sometime around 5 a.m. She agreed to give them a ride. Montgomery said she dropped him off at his apartment, then drove off with Heard — it was the last time he ever saw her. But according to Heard, Montgomery ordered Ogle to pull over alongside a field. He made her get out of the car and walk about 40 meters, toward a wooded area. Heard said he saw Ogle squatting down. Then he heard gunshots. “I looked again and she was lying on the ground.” There were good reasons to be skeptical of Heard’s story. His account had changed wildly over time. In one early interview, he told police he’d spotted a drug dealer driving Ogle’s car. In another, Heard said a stranger at a car wash had told him about the murders. Then there was the fact that Ogle’s wallet and credit cards had been found in his dresser drawer — and her abandoned car had been found in an alley behind his home. But perhaps most obvious was his incentive to lie to save himself, not just from the death penalty but from a charge of sexually assaulting a young child. Nevertheless, Heard’s accusation and timeline became the basis for the state’s case against Montgomery.

Defense attorney Ronnie Wingate at the Lucas County Common Pleas Court in Toledo, Ohio, on Jan. 29, 2018. Photo: Kurt Steiss/The Blade

A s Montgomery went to trial in the fall of 1986, publicity and emotions ran high. Pro-death penalty activists rallied outside; one sign read “Deb and Cindy are dead, now it’s Montgomery’s turn to die.” Inside the courtroom, spectators sat in the first couple of rows wearing buttons identifying them as “Mothers of Murdered Children.” It was hard to find anyone who had not heard of the case. “It took us a while to get a jury,” recalled veteran defense attorney Ronnie Wingate, who represented Montgomery at trial. It was the first death penalty trial of his career. The atmosphere was racially charged. Wingate recalls entering the courtroom one day and hearing somebody shout the N-word at him. “I could not say who it was — didn’t know who it was,” he said. To their credit, he added, afterward, “they walked up to me and actually apologized.” Representing the state was James Bates, head of the criminal division of the Lucas County Prosecutor’s Office. Bates arrived at the office in 1972, the same year the landmark U.S. Supreme Court ruling in Furman v. Georgia imposed a four-year moratorium on executions. After Ohio passed its revised death penalty law in 1981, Bates won the state’s first new death sentence against a man named Billy Rogers, convicted of raping and murdering a child. The conviction didn’t stick — Rogers, who had the reported IQ of a child, was retried twice and eventually resentenced to life. Joining Bates was Lucas County Assistant District Attorney James Yavorcik, previously a reporter for the Toledo Blade. As a college journalist at Ohio State, Yavorcik once famously helped free a man falsely accused of murder after his investigation into the case became a cover story for the Columbus Monthly. After moving to the DA’s office, Yavorcik tried a number of murder cases alongside Bates before leaving for private practice in 1987. In an email, he recalled the evidence against Montgomery as “overwhelming.” In his opening statement, Yavorcik described the “senseless” murders of Tincher and Ogle as part of a “joint criminal enterprise.” After Montgomery killed Ogle, he said, Heard disposed of the stolen property — and “it was Mr. Montgomery’s job to dispose of the one witness that could tie [them] to this killing.” The state held that after Montgomery shot Ogle in the field in the early hours of March 8, he drove the car back to the women’s apartment, took the gun, and ordered Heard to take the car. He then forced Tincher out of her home, into her car, and to the intersection of Angola and Wenz, where he shot her in the head before fleeing on foot just after 7 a.m. To prove this, prosecutors called witnesses who had seen Tincher’s car that morning — and recalled someone in a dark jacket with a hood leaving the vehicle. The descriptions were shaky. “I have no idea if it was a sweatshirt, a jacket, or what it was,” one man testified. Like the other witnesses, he could not even tell if the person wearing it was a man or a woman. “All I know is it had a hood on it and it was pulled tight around his face — or the person’s face.” No one said they saw Montgomery wearing a dark hooded jacket the night before. But police had found a jacket that matched the description at his home. At trial, an employee at a local gun shop testified that Montgomery had worn “a jacket, like a windbreaker jacket with a hood,” weeks before the murders, on the day she sold him a .380 Bersa and some ammo — and that the hood was “tied tight under the chin.” Asked on the stand if the jacket had been tested for blood, Toledo Police Sgt. Larry Przeslawski said, “I don’t recall at this time.” The state also seized on one piece of clothing Montgomery had actually worn the night he went to the club: a blue pinstriped suit jacket he borrowed from his uncle. Witnesses said Montgomery had taken the jacket to the dry cleaner later in the day on March 8 — and an employee recalled it was soaking wet, dripping with an unidentified yellowish-brown liquid. During closing arguments, Bates freely described it as “dripping with the blood of Debra Ogle.” Przeslawski was a key witness for the state. He described how Montgomery led police to the body and gave various incriminating statements. According to Przeslawski, Montgomery insisted he only knew where to look for Ogle’s body because Heard had told him where it was. But it was hard to know what exactly he said. Montgomery’s statements had not been taped. Przeslawski simply summarized them in a report weeks later, explaining that he had relied on his memory, notes, and input from other officers. Wingate was not entitled to Przeslawski’s notes. And while he had been provided with the summarized statements from his client, other witness statements were kept from him until the trial was underway. In 1986 — and for decades afterward — trials were governed by a part of Ohio’s criminal code known as Rule 16. Under the rule, defense lawyers were barred from seeing previous statements by state witnesses until moments before they had to cross-examine them. “It basically infringes upon a defendant’s right to effective assistance of counsel — a defendant’s right to cross-examine, vigorously, a witness against him,” Wingate said. “But those were the rules we had to play by.” Wingate repeatedly asked state witnesses if they had spoken to police. If they had, he requested permission to see their previous statements but was only allowed to do so on a case-by-case basis, and once the judge had reviewed them for any inconsistencies. Bates and Yavorcik were present for the review, convincing the judge to deny access to certain items. At times there was no written record at all. Wingate was diplomatic in recalling Bates and Yavorcik. “I had known both of them and I had thought both were very fair,” he said. But the system “was geared towards a conviction.”

Bates theorized that Montgomery had gone to the victims’ home “for sexual purposes,” then killed them because “they said no.”

On October 7, 1986, Glover Heard took the stand. He described how Montgomery directed Ogle to drive and park at the side of the road, and how he then heard the shots and saw her on the ground. He said he did little to confront Montgomery about the murder. “I asked him once and he said, ‘You don’t want to know,’” Heard testified. “And I left it at that.” In an interview, Detective Arthur Marx had told Heard it would have been “physically impossible” for him to see what he said he saw. Marx had recovered Ogle’s body. It was twice as far away from the road as Heard had estimated, Marx said. Plus, it would still have been dark at that hour. But on the stand, Marx said he had just been trying to keep Heard talking. Another detective testified that it was Heard who led police to Ogle’s body, only to correct himself — “I get the names confused between the two people,” he said. In total, 32 witnesses testified for the state. The defense called none. “I honestly don’t know” why, Wingate said, speculating that he probably felt the state had not met its burden of proof in the case. In a fiery closing argument, Bates theorized that Montgomery had gone to the victims’ home “for sexual purposes,” then killed them because “they said no.” On October 9, the jury found Montgomery guilty. Defense witnesses were called during the sentencing phase. But they seemed to do more harm than good. An uncle of Montgomery’s painted a frightening portrait of a family marked by generations of violence. Jurors learned that Montgomery had been convicted of manslaughter as a teenager after shooting an uncle who had groomed him to deal drugs, apparently in self-defense. If the goal was to explain the trauma of his upbringing, a clinical psychologist who diagnosed him with mental illness gave especially sabotaging testimony. “I was not however able to find that this psychosis would be a mitigating factor,” Dr. Gerald Briskin said. (What he meant was that his analysis did not support an insanity defense.) Briskin described Montgomery as coddled, with an inflated sense of self, pointing to such evidence as Montgomery’s signature, which included the title “Mr.” — a flourish Briskin found self-aggrandizing. Montgomery insisted on his innocence because he could not admit there was anything wrong with him, Briskin said. As for Montgomery’s potential to respond to treatment, “the prognosis would be guarded.” But the most bizarre moment came shortly after the jury began deliberating. A juror sent a note to the judge explaining that, as a psychiatric patient undergoing shock therapy in 1964, she had seen Dr. Briskin in a dream. “He was fat, carried a briefcase and a clock,” she wrote. “I thought he looked like Satan.” Rather than remove the juror, the judge asked her a series of questions. Would the incident she described affect her ability to be fair and impartial? No, she said. “OK, very good,” the judge said, and sent her back to the jury room. On October 11, the jury sentenced Montgomery to death. “All you can do is look at your client, say, ‘I’m sorry,’ you know?” Wingate said. He has tried a lot of capital cases since then. The losses don’t get easier. “It eats at you.”

Inmates raise their hands in surrender as armed guards watch on the recreation yard of the Southern Ohio Correctional Facility in Lucasville, Ohio, on April 21, 1993. Photo: Lennox McLendon/AP

O hio had not executed anyone in more than 20 years when Montgomery arrived at the Southern Ohio Correctional Facility in Lucasville. Derrick Wayne Jamison, who was sent to death row in 1985, remembers playing basketball with Montgomery, whom he called Terry. “They used to let us play the guards,” he said. Jamison remembers Montgomery as well-liked; he would help other guys with their law work. But in the 1990s, everything changed. The 1993 Lucasville prison riot broke up and isolated the death row population, putting men on 23-hour-lockdown. A few years later, a man named Wilford Berry Jr. gave up his appeals, becoming the state’s first “volunteer” for execution. The other men hated him, Jamison recalled. “They knew that once they started killing, they wouldn’t stop.” After Berry was executed in 1999, “it was like a dark cloud came over the state of Ohio,” Jamison said. Since Montgomery has been on death row, 55 people have been executed. “Can you imagine what that has done to that man’s mind?”

One record revealed that both jackets had indeed been tested for blood — with negative results.

Jamison was exonerated in 2005, after his attorneys discovered that prosecutors had withheld key police reports from his 1984 trial. Under the U.S. Supreme Court ruling in Brady v. Maryland, the state was obligated to disclose such exculpatory evidence. Yet Brady violations remain a persistent problem. In Montgomery’s case, post-conviction attorneys filed a Freedom of Information Act request in 1992, seeking records in his case. They received a trove of police reports that apparently had never been disclosed. The items are described in Montgomery’s post-conviction filings. One record revealed that both jackets had indeed been tested for blood — with negative results. Another report mentioned a pair of Nikes belonging to Heard, which police suspected might be stained with blood. Yet another showed that witnesses had seen a maroon car parked near Tincher’s car early on March 8 — police photographs showed a similar vehicle parked at Heard’s home. There were also alternative suspects besides Heard who had never been revealed. One was Ogle’s boyfriend. Another was Tincher’s stepfather, who had been accused of sexually molesting and stalking her. But he was a police officer — and was close friends with Przeslawski, who had taken him to identify Tincher’s body after responding to the scene. According to the post-conviction filings, a key piece of potential evidence — Tincher’s diary — had been turned over to the stepfather, “effectively destroying it.” But most shocking was a hand-written police report from March 12, 1986 — days after both women had allegedly been murdered. A man had called the Toledo Police Department to say that at 1:20 a.m., he and several friends had been in the parking lot of Ogle’s apartment building “when they saw a blue Ford Escort with Debbie Ogle driving around the complex.” Later they saw her again, with “a white male with long side burns. She did not appear distressed.” The withheld evidence formed part of the basis for Montgomery’s writ of habeas corpus. In 2007, U.S. District Judge Solomon Oliver overturned Montgomery’s conviction based on the withheld police report. In a 124-page opinion, he wrote that “the state’s case was not airtight and that it could have been undermined by sufficient contradictory evidence.” The Lucas County Prosecutor’s Office responded swiftly, obtaining affidavits from the individuals who had claimed to see Ogle alive in 1986. They said that they had been mistaken — it was Ogle’s sister they had seen. “People often mistook me for Debbie,” the sister wrote in an affidavit of her own, confirming she drove a blue Escort. Prosecutors filed a motion asking Oliver to reverse his decision and defended the lack of disclosure, pointing out that the report would only have undermined the defense’s theory pointing to Heard as the real killer, since he was already in custody on March 12. But Oliver was unmoved. “To permit a prosecutor to withhold exculpatory evidence without repercussion would set poor precedent,” he wrote. The proper place to consider the new witness statements, he added, “is at a retrial in state court.” In a phone call, Yavorcik, who now practices personal injury law, denied any misconduct. “I wish I had a great story about how I concocted some crazy scheme to keep this out,” he said, adding that, as a former reporter, he knew a good story needed a villain. But he had no recollection of ever seeing the report. “Now, should I have seen it? Probably,” he said. “But I know one thing: There was certainly no conscious decision to keep that from the defense.” Bates, who is now a Lucas County judge, echoed what Yavorcik said. In a phone call, he emphasized that the pinstriped jacket had been cleaned three times, which accounted for the lack of blood found by the lab. As for the dark jacket with the hood, he said, “I don’t recall that particular jacket.” The same year as Oliver’s ruling, the American Bar Association released a sweeping review of Ohio’s death penalty system. Over nearly 500 pages, it listed areas in dire need of reform, most pressing among them: “Inadequate Procedures to Protect the Innocent.” The ABA called for a moratorium on the death penalty, to no avail. Prosecutors continued seeking death sentences and protecting old convictions. In Montgomery’s case, the task had fallen to Lucas County Prosecutor Julia Bates — the wife of James Bates, who first sent him to death row. In October 2009, a panel of the 6th Circuit Court of Appeals affirmed the District Court’s decision and remanded Montgomery’s case for a new trial. But in August 2011, in an en banc ruling, the 6th Circuit reinstated Montgomery’s death sentence on the grounds that the police report was not material. In a vociferous dissent, Circuit Court Judge Gilbert Merritt decried the majority opinion for giving “a disincentive for prosecutors to comply with the law.” It was impossible to know what the outcome would have been if the police report had been given to the defense in 1986, he argued. The right thing would be to allow Montgomery “a jury trial free of gross prosecutorial misconduct.”

Richard Eikelenboom sits on the witness stand during the Casey Anthony murder trial in Orlando, Fla., on June 21, 2011. Photo: Red Huber/AP

S hortly after Montgomery’s death sentence was reinstated, in November 2011, a Dutch woman who corresponded with Montgomery contacted Richard Eikelenboom. Originally from the Netherlands, the DNA expert had spent years investigating cases for defense attorneys and prosecutors alike. He was struck by the United States’ adversarial system, in which forensic scientists working for defendants were treated like the enemy. “I used to work for the National Lab in the Netherlands, and they always called me ‘Crimefighter,’” Eikelenboom said. Yet he and his wife were often derided in the U.S. as “hired guns.” Eikelenboom remembers telling Montgomery what he tells all prospective clients: “We’re going to work for you, but if we find things which are incriminating, we also report that.” He did not have access to any of the physical evidence in the case — to his dismay, much of it had apparently been destroyed, making DNA testing far less likely. Still, within the case records, some things jumped out. For one, Ogle’s death records contained contradictory information. The coroner’s verdict said Ogle “came to her death officially on the 12th day of March, 1986,” but in the section on cause and manner of death, the coroner had typed: “Homicide/Gunshot Wound, 3/8/86.” It looked like he had changed his conclusion, with no explanation. To Eikelenboom-Schieveld, medical director of Independent Forensic Services, the photos suggested that the later date — which was the day Ogle was discovered — was more accurate: Her corpse showed few signs of decomposition, or hints of animal or insect activity. What’s more, police reported that she had been found facedown on the ground, but photos showed lividity — areas where blood pools and settles after death — on Ogle’s side and back. Because lividity becomes fixed after about 12 hours, this suggested she had been killed closer to her discovery by police, who moved her body at the scene. In a report, Eikelenboom-Schieveld estimated that Ogle had died “somewhere between 12 hours to a maximum of 36 hours prior to discovery of the body.” Under Ohio law, a motion for a new trial based on newly discovered evidence must be filed within 120 days of conviction. But exceptions can be made if a defendant was prevented from discovering the evidence sooner. In 2013, Montgomery’s attorneys filed a delayed motion for a new trial before the Lucas County Court of Common Pleas based on Independent Forensic Services’ findings. There was reason to hope Lucas County Prosecutor Julia Bates might even be open to considering the evidence. In a Toledo Blade story published the same year as Montgomery’s motion, Bates revealed her personal misgivings about the death penalty. Capital cases were “tortuous” for all involved, she said, including for victims’ relatives, who can wait decades to see a sentence carried out. In capital cases, she added, “the guilt should be absolute. It should be unquestionable.”

One prosecutor dismissed the apparent lack of insect or animal activity on Ogle’s body, saying she did not see many flies in Toledo in March.