In 1987, Prosecutor Gary Van Brocklin addressed a panel of three judges deciding the fate of a man who had killed store clerk Ihsan Aydah of Youngstown, Ohio.
“Give him the same consideration he gave Ihsan Aydah – give him death,” Van Brocklin said. The judges agreed and sent the defendant, John Jeffrey Eley, then 38, to death row.
On Tuesday, 25 years after Eley was sentenced, Ohio Gov. John Kasich granted him clemency, in part because Van Brocklin, police detective Joseph Fajack and Judge Peter Economus changed how they felt about the case.
“It was something that bothered my conscience,” Van Brocklin told msnbc.com on Tuesday. “He wasn’t smart.”
At the time, a clinical psychologist found that Eley had borderline intelligence. Since then, a psychiatrist has found him to be mentally disabled -- relevant because the Supreme Court ruled in 2002 that mentally disabled defendants cannot be sentenced to death.
Van Brocklin recalled that Eley hadn't seemed sharp. The former county prosecutor, a self-described conservative Republican, said he had offered Eley a four-to-six year sentence in exchange for his testimony against his accomplice, Marvin Green. Green had given Eley the gun and told him to hold up the store.
But Eley refused to testify against his old friend.
“To this day, he quotes the Bible saying you shouldn’t be a witness,” Van Brocklin said. “But the Bible says you shouldn’t bear false witness. He’s not a bright guy.”
There were other details about the case that bothered the three lawmen. Eley had waived his right to a jury trial – that wouldn’t happen today. Also, life without parole was not a possible sentence at the time.
“This was the kind of case that nowadays would not be indicted capitally,” Van Brocklin said. “John Eley killed a man – life without parole would be a fair punishment. I never felt that I was overzealous, but I felt that it wasn’t fair.”
In June, Judge Economus wrote the parole board: "If I had been presented the additional mitigating evidence outlined in the clemency petition at the time of the trial, especially evidence of Mr. Eley's low intellectual functioning, his impoverished childhood, his significant alcohol and substance abuse, and his probable brain impairment, I would have voted for a sentence less than death."
It hadn't helped over the years that defending Eley was difficult, said Vicki Werneke, the assistant federal public defender who oversaw his case. Eley refused to be evaluated and spoke with her only by phone.
“He told his sisters he thought he would be released from prison and that Jesus was going to save him,” Werneke told msnbc.com. “I’m a believer and I think that maybe God did have a hand in it, but maybe it was through us.”
But the state didn't heed their pleas. On June 20, exactly 10 years after the Supreme Court ruling, an Ohio parole board voted, 5-3, to uphold Eley's death sentence.
It was unusual for the board to be divided, Werneke said. Even more so, however, was that the governor overruled their decision.
Then again, Gov. Kasich appears to be examining death row cases. In September, he spared a man who had slashed a woman’s throat during a 1987 robbery, The Associated Press reported. The governor said he was compelled by the man’s mental health history and the story of his tragic childhood.
In June, the governor removed a man from death row because the details of the crime were “frustratingly unclear.”
Of the governor, Van Brocklin said, “I have to commend him for a courageous stand. It’s easy to run the other way.”
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