Prosecutor frustrated by ‘frivolous’ motion to overturn local death sentence

Warren County Prosecutor David Fornshell called the latest motion filed to overturn a Clayton man’s death sentence frivolous and frustrating.

In the motion filed Tuesday in the Ohio Supreme Court, lawyer Elizabeth Orrick claims, among other things, that lawyers previously handling the appeal of Austin Myers, now 24, provided "ineffective counsel" in the appeal filed on Oct. 27, 2014.

Orrick also claimed Myers’ trial lawyers erred in his defense, and alleged misconduct by prosecutors and errors by Judge Donald Oda II should warrant reopening of the appeal.

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“While we understand this is just another step in the process, frivolous motions like these are why it takes 15-20 years from the time someone receives the death sentence until it is actually carried out. It’s very frustrating not only for prosecutors, but more importantly, for the families of the victims,” Fornshell, who personally argued the case before the Ohio Supreme Court, said in a text-message response Wednesday.

Myers was convicted in 2014 of murdering a childhood friend, Justin Back, 18, of Wayne Twp., and sentenced to death. Back was about to join the U.S. Navy.

Myers was the youngest person on Ohio’s Death Row at the time.

Timothy Mosley, the other Clayton man charged in the case, entered a plea to life in prison without parole and cooperated with prosecutors.

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“As can be seen from the meritorious issues that were not presented in this case, appellate counsel were prejudicially ineffective,” Orrick said in the motion.

Orrick urged the court to reopen the case because direct-appeal counsel failed to include a complete transcript “of all the proceedings against him.”

In addition, Orrick claims “direct appeal counsel’s failure to reconstruct the trial court’s repeated discussions with counsel that took place off the record.”

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Orrick claims Myers’ trial lawyers should have moved for suppression of evidence against Myers on his cellphone, eliminated two jurors “who had been exposed to pretrial publicity” and renewed their request for a change of venue and continuance.

In addition, Orrick claims Myers’ trial lawyers should have called more witnesses about his mental health, helped him prepare his statement and “properly” challenged “Mosley’s purported notebook.”

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Myers’ trial lawyers, Greg Howard and John Kaspar, did contest the use of the notebook, found eight months after the alleged murder.

Lawyer Timothy McKenna argued for Myers’ life before the Ohio Supreme Court.

Myers is being held in the Chillicothe Correctional Institution.

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