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Judge orders attorneys in Herring case to decide how to use evidence
By Joe Gorman
YOUNGSTOWN
Gregory Meyers says he doesn’t think he should make the prosecution’s job any easier after his client already is facing the death penalty for a murder at a South Side bar in 1996.
Meyers, who represents 36-year-old Willie Herring, told Judge John Durkin in Mahoning County Common Pleas Court on Thursday it is not his duty to suggest to prosecutors or agree what evidence they should or can use in a second mitigation phase to determine if Herring should be put to death.
The burden of proof is on the state, he said.
His remarks came after Judge Durkin said he must reread the transcripts of Herring’s trial because of a prosecution motion to have some or all witnesses read their testimony from the first trial in the second mitigation phase, which is set for November.
Prosecutor Paul Gains said he asked two months ago if defense lawyers had any objection to having testimony read. Gains said he was basing that decision on a similar case in Hamilton County, where some people in the first case testified at later proceedings and their testimony was different, which created issues for appeal.
Gains said he thought it may be easier to just read the original testimony to jurors so that issue would not come up, and said he asked if Herring’s attorneys agreed.
But Meyers said he does not have to agree to anything because he does not have any burden.
“It’s not our job to figure this out,” Meyers said.
Herring had been convicted in 1998 of three counts of complicity to commit aggravated murder, two counts of attempted aggravated murder and two counts of aggravated robbery, all with firearm specifications, for the April 30, 1996, robbery and shooting at the Newport Inn, 179 W. Indianola Ave.
A jury recommended he be sentenced to death, and Judge Durkin agreed.
But in December, the state Supreme Court vacated his death sentence, saying that improper mitigation was presented by Herring’s defense lawyers to jurors during the trial’s mitigation phase.
The high-court decision affirmed a similar decision by the 7th District Court of Appeals.
The high court ruled a new sentencing hearing must take place to determine if Herring should receive the death penalty.
After hearing testimony, jurors will choose among death, 30 years to life in prison and 20 years to life in prison, unless the death penalty is removed from the table.
Meyers also said, after going through the old trial records, he had some concerns about some of the defense work done for Herring at the original trial. He said Herring’s original defense lawyers failed to cross-examine a victim in the robbery who claimed to have been shot four times but medical records contradicted his claim.
Meyers also said he wanted access to videotaped police interviews with witnesses; he has the transcripts but no video. He also wants medical records from a Pittsburgh hospital for the victim who claimed to have been shot four times.
Judge Durkin ordered prosecutors to provide that evidence if they can find it, and also ordered attorneys from both sides to meet and decide if there is any testimony they can agree can be read into the record instead of having those witnesses testify again at the trial’s new mitigation phase.