June 20, 2012  Source : http://www.therepublic.com

COLUMBUS, Ohio — The prosecutor who charged John Eley with a capital crime and a judge who sentenced him to death both want the killer of a Youngstown convenience store owner spared, saying he doesn’t deserve a death sentence.

Their unusual support was not enough to sway the Ohio Parole Board, which voted 5-3 Wednesday in a rare split decision to recommend against clemency for Eley.

Eley, 63, is scheduled to die July 26 for the 1986 killing of store owner Ihsan Aydah. Gov. John Kasich has the final say on mercy.

Eley refused to testify against his alleged conspirator, Melvin Green, in exchange for a deal that would have removed the death penalty. Green, who was acquitted in a separate trial, was considered the mastermind of the crime by investigators.

Opposition to Eley’s execution from the prosecutor and the judge, as well as the detective who investigated the crime, don’t outweigh the nature of the crime, according to the five board members who rejected clemency.

The supporters’ assertions “do not outweigh the fact that Eley took the gun from Green, entered the store with the intent to rob the victim, knew that the victim had a gun and might try to use it, and then shot him in the head,” the board said.

The board also rejected claims by Eley’s lawyers that he is mentally ill and mentally disabled.

It’s not unusual for judges or prosecutors to change their mind about individual cases or the death penalty itself, but on-the-record testimony on behalf of a condemned inmate is relatively rare.

The three board members who supported Eley’s plea for mercy say he is not the “worst of the worst” killers, and argue that many similar convenience store robbers who committed more serious crimes escaped death sentences.

They also said the crime wouldn’t have happened without Green. And they argued that Eley was a victim of a game of bluff by prosecutors as they threatened him with a death sentence to force his testimony against Green.

“The prosecutors ‘played a bluff’ all the way to the end, and when Eley did not cooperate, they were stuck with the death penalty conviction,” the three dissenting members said.

Former Mahoning County prosecutor Gary Van Brocklin told the board that Green set up the entire robbery. Former Mahoning County judge Peter Economus — now a federal judge — said if defense attorneys had presented more reasons why Eley should have been spared, he wouldn’t have voted in favor of a death sentence.

Clemency “should be granted for Mr. Eley in this case,” Economus wrote to both the parole board and Kasich on June 7.

“Frankly, I am surprised that his death sentence was not modified by the courts who have reviewed this case over the years.”

Board members opposed to clemency rejected Economus’ argument, saying several courts have previously ruled that factors that could have been presented to the jury about Eley but weren’t — such as the effect of a head injury in earlier life on his behavior — wouldn’t have changed the outcome.

Green, 54, is in prison and scheduled for release in October on charges he illegally carried a concealed weapon, had a gun in a car and possession of drugs. But he also faces the possibility of additional time for violating parole on a prior aggravated robbery conviction, according to state prison records. Those charges are unrelated to the Eley case.