Man challenges death sentence after actual killer given life

This undated photo provided by the Ohio Department of Rehabilitation and Correction shows Austin Myers. Lawyers for the condemned Ohio killer say it’s “patently unfair” that he received the death sentence for killing a friend during a burglary when the man’s accomplice, who delivered the fatal knife wounds, received a life sentence instead. (Ohio Department of Rehabilitation and Correction via AP)

COLUMBUS (AP) — Lawyers for a condemned Ohio killer say it’s “patently unfair” that he received the death sentence for killing a friend during a burglary when his accomplice, who delivered the fatal knife wounds, received a life sentence.

The attorneys for death row inmate Austin Myers also argued Tuesday before the Ohio Supreme Court that he should be spared because of his relative youth — he was 19 — at the time of the crime. A decision is weeks away.

Myers, now 22, was sentenced to die for the Jan. 28, 2014 killing in southwestern Ohio of childhood friend Justin Back, who was about to enter the Navy.

Back was killed as part of a burglary masterminded by Myers as a way to steal a safe and a gun, according to records filed with the high court. The plan was always to kill Back, the records say.

Myers’ sentence should be reduced to life without parole because the death penalty is disproportionate given the life sentence that co-defendant Tim Mosley received after agreeing to plead guilty and testify against Myers, according to a May 2016 filing with the court by Myers’ attorneys, Timothy McKenna and Roger Kirk.

“If the main offender gets life without parole, and the accomplice gets death, it is patently unfair,” they argued.

They say if anyone received a death sentence it should have been Mosley, who repeatedly stabbed the victim with a pocketknife.

Myers’ youth at the time should also be given more weight, since the U.S. Supreme Court has banned executing people for crimes committed under the age of 18, his attorneys said.

Prosecutors say the court can’t weigh proportion in the case because no factors for or against a death sentence were presented in Mosley’s case, since he pleaded guilty.

They also say there’s overwhelming evidence of Myers’ role in planning and carrying out the killing. Myers readjusted a garrote around Back’s neck when it wasn’t secure, told the victim “it’s almost over,” then held Back while Mosley stabbed him, prosecutors said in a September 2016 filing.

“Neither Myers nor Mosley was an ‘accomplice,'” said Kathryn Horvath, an assistant Warren County prosecutor, in the filing. “They were both culpable in preparing for, calculating, and executing Back’s murder.”

Where Myers’ youth is concerned, he had been an adult for a year when the crime was committed, she added.

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