COLUMBUS, Ohio (CN) – A 22-year-old Ohio man who was convicted as a teenager for the brutal murder of his childhood friend asked the Ohio Supreme Court on Tuesday to reverse his death sentence, claiming he did not touch the knife used to kill the victim.
Prosecutors meanwhile argued at the Thomas J. Moyer Ohio Judicial Center on Tuesday morning that there is more than enough evidence to find that Austin Myers was the chief architect of a plan to murder 18-year-old Justin Back.
The case attracted national and international attention when Myers became the youngest man on Ohio’s death row and his co-defendant Timothy Mosley avoided the death penalty, even though he had stabbed Back to death.
Three years ago, a jury found Myers guilty of aggravated murder, kidnapping, aggravated robbery, aggravated burglary, grand theft of a firearm, tampering with evidence, safe cracking and abuse of a corpse.
Myers had gone to Back’s home on Jan. 28, 2014 in southwestern Ohio to rob and kill Back, a high school graduate who was about to enter the Navy.
The two teens conspired to kill Back at his Wayne Township home and steal a safe. At first, Mosley tried to strangle Back with a wire. When that failed, he stabbed Back 21 times after Back had begged the two teenagers to spare his life. Myers held the victim while Mosley delivered the fatal blow.
Back’s body was found in West Alexandria, 20 miles west of Dayton, after the duo had taken a gun, the safe and clothes to make it seem like Back had run away from the house he shared with his parents.
Though Myers had shot several bullets into Back’s dead body, he claims Mosley had more culpability for the murder than he did.
Mosley received a life sentence without parole after agreeing to cooperate with prosecutors and testify against Myers, who is now the second youngest man on death row after 20-year-old Damantae Graham, who was convicted for the 2016 shooting murder of Kent State University student Nick Massa.
On appeal to the Ohio Supreme Court on Tuesday morning, Myers’ lawyer Timothy McKenna asserted that the death penalty is unfair in light of Mosley’s more lenient sentence, violates his client’s due process rights and is cruel and unusual punishment.
“Even if you decide or conclude based on your independent review they were equally culpable, we have an outcome that is not fair,” McKenna said.
Chief Justice Maureen O’Connor noted that Mosley had decided to cooperate with the authorities while Myers had not.
“When two or more defendants are involved in a crime, the first one that is cooperative with law enforcement is the one who gets the deal. Happens all the time,” O’Connor said.
But McKenna said his client did not know that Mosley had a knife and was going to stab Back.
He urged the panel to take into consideration Myers’ age at the time. He had turned 19 three weeks before the murder, the attorney said, and was a troubled teen who had spent time in psychiatric care and struggled with mental issues after his parents had divorced.
But Warren County prosecutor David Fornshell urged the court to uphold the death sentence. He said there was nothing impulsive about Myers’ behavior and that he had carefully planned the murder, visiting a Lowe’s hardware store in Trotwood, Ohio, to purchase wire as well as septic enzymes, ammonia and rubber gloves to dispose of the body.
“Nobody reasonably could describe his actions that day or those days as being impulsive,” Fornshell said.
The prosecutor argued that it would be a mistake to compare Myers’ death sentence with Mosley’s life without parole.
“It’s not a comparison specifically of two defendants in a particular case. It’s a comparison of whether defendant’s conduct, in this case, is proportional to other cases where this court has affirmed the death penalty,” Fornshell said.
The prosecutor also argued that Myers was not prejudiced by the introduction of notes Mosley had taken before the murder. McKenna characterized that as a diary, but Fornshell said it was a sheet of paper listing supplies, adding that the state had complied with discovery rules and Myers’ attorney did not ask for more time to prepare.
The prosecutor said the state only became aware of the note about a week before trial.
“For this reason the state of Ohio would request that you hold the aggravating circumstances in this case outweigh the mitigating factors and impose a sentence of death on Austin Myers for his role in the aggravated murder of Justin Back,” Fornshell said.
Chief Justice O’Connor said the court would take the case under advisement.
Myers is on death row at the Chillicothe Correction Institution. Mosley, now 23, is serving his sentence at the Ross Correctional Institution.