The lawyers fighting the death penalty ordered for a former Northmont High School student want the Ohio Supreme Court to reconsider its affirmation of the sentence and scheduling of the execution.
Austin Myers’ lawyers said in a motion filed this morning that they want the state’s highest court to overturn the conviction and call a new trial “or in the alternative that his sentence be modified to life without parole.”
Myers, 23, is still apparently the second youngest on Ohio’s Death Row 3 1/2 years after being sentenced for the murder of childhood friend Justin Back, 18, of Wayne Twp., Warren County.
Last Thursday, the court affirmed the death penalty for Myers, for the stabbing death of Back at his home outside Waynesville in January 2014.
The execution was scheduled for July 20, 2022 in the decision.
Warren County prosecutor David Fornshell was pleased with the 7-0 ruling by the state’s highest court.
“The 7-0 decision is always something you like to see,” said Fornshell, who handled the appeal with Assistant County Prosecutor Kirsten Brandt. “That should give the public some confidence that Mr. Myers received a fair trial and a just punishment.”
Myers, of Clayton, was sentenced to death on Oct. 16, 2014, for Back’s murder during a robbery. Another Clayton man, Timothy Mosley, actually stabbed Back to death. Myers and Mosley both were 19 years old then.
Mosley received a sentence of life without parole.
Back, a 2013 Waynesville High School graduate, was about to enter the U.S. Navy.
Fornshell said he anticipated the defense to appeal to the U.S. Supreme Court, rather than seek reconsideration by the Ohio Supreme Court, as a result of the ruling.
But the motion for reconsideration filed by lawyers Timothy McKenna and Roger Kirk again pointed out Myers got the death penalty, although Mosley -who actually stabbed Back to death - was sentenced to life without parole in exchange for his testimony against Myers.
The motion also urged reconsideration, claiming Myers’ Miranda warnings against self incrimination were incomplete and that he received ineffective representation during the trial.
“Taken as a whole, Myers’ conviction should be vacated and his case remanded for a new trial. In the alternative, he should be given a life sentence in lieu of the death penalty as he was not the main offender, was a teenager, and had mental issues,” McKenna and Kirk said in their motion for reconsideration.
Testimony showed that Myers planned the deadly crime, although Mosley ultimately stabbed Back to death during a struggle with Mosley and Myers on the floor of the kitchen after a garrote designed to choke Back to death caught on his chin.
Myers and Back were friends until the eighth grade, when Myers moved to Clayton and attended Northmont. Testimony indicated Myers was the one who decided they should target Back’s home, unaware the family safe contained only $70 at the time.
Myers took various steps during two days of preparation, including acquiring septic chemicals he expected would help decompose Back’s body, and shot the body before he and Mosley disposed of it in woods in Preble County.
Last October, when the Ohio Supreme Court scheduled a hearing on Myers’ appeal of the death sentence, he was the second youngest facing the death penalty in Ohio to Damantae Graham, 20, sentenced to die in a Portage County case.
In their 60-page decision, the justices and Judge Cynthia Rice of the Eleventh District Court of Appeals, sitting for Justice William O’Neill, rejected arguments — including questions based on Myers’ relative youth — brought by McKenna and co-counsel Roger Kirk.
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